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Commentary on US Army Field Manual FM
27-10 The Law of Land Warfare  in relation to
the Taiwan status issue  
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• US Army Field Manual
• contains the laws of war
• as recognized by the United States.

FM 27-10
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• Local Governments under Duress
• and
• Puppet Governments

Chapter 6 OCCUPATION, paragraph 366
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• For over thirty years, US Commander in Chief has
  been
• the ringmaster of a three-ring circus called the
  "One
• China Policy." While it is a clever riddle of
  foreign policy
• to keep the participants in a quandary as they
  attempt to
• peacefully resolve the final status of Taiwan,
  the legal
• circumstances of the US being the paramount
  authority
• and having the ROC continuing as the designated
  local
• administrative authority is the creation of an
  illegal
• situation of possible proxy occupation.
• 
  
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• Major errors in the post-WWII handing of the
• Taiwan question in late 1945 and early 1946 are
  (1)
• the announcement of October 25, 1945, as "Taiwan
• Retrocession Day," (2) the mass naturalization of
  
• Taiwanese persons as Republic of China (ROC)
  citizens,
• and (3) (in August 1951) the imposition of
  mandatory
• military conscription laws over native Taiwanese
  persons.
• Such actions in areas under belligerent
  occupation
• constitute war crimes.
• 
  
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• During the 1940's, the US was still officially
  sponsoring
• the Republic of China (ROC) as the "legal
  government of
• China." The origin of the Taiwan question began
  with
• General Douglas MacArthur's early September 1945
• directions to Chiang Kai-shek to go to Taiwan and
  accept
• the surrender of Japanese troops. The Chinese
  Civil War
• period of the late 1940's culminated in the late
  1949
• Chinese Nationalist (KMT) retreat to Taiwan and
  its
• degeneration into the status of a
  "government-in-exile".
• Meanwhile, the People's Republic of China was
  founded
• on October 1, 1949.
  
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• During the 1945-47 period, the USA officially
  maintained about
• 50,000 U.S. Marines in the China mainland to
  defend the ROC
• against the Chinese Communist Party (CCP) and its
  Russian
• backers. As conditions in Manchuria further
  deteriorated and the
• CCP was coming to power, the KMT secured their
  base on
• Formosa by initially massacring over 30,000 local
  residents (and
• more in the following years) whom were still
  internationally
• regarded as being "Japanese nationals" by the
  legal fact that during
• that era Taiwan was still part of "Japan," and
  the ROC military
• troops in Taiwan were merely fulfilling the role
  of a "subordinate
• occupying power." This was still many years prior
  to the signing or
• coming into force of the post-war peace treaty,
  which was the San
• Francisco Peace Treaty (SFPT).
  
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• The February 28, 1947 events in "Japan" (i.e.
• Japanese territory) occurred during a period of
• belligerent occupation under the paramount
• authority of the United States as "principal
• occupying power." Moreover, a period of "White
• Terror" by the KMT authorities continued for
• long after the April 28, 1952 legally-binding
  terms
• of the SFPT, in which Japan ceded "Formosa and
• the Pescadores."
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• This proxy massacre beginning February 27, 1947,
• was not an authorized Act of State and ultimately
  the
• USA bears the responsibility for the KMT actions
  on
• Formosa in 1947. It weighs upon the burden of the
  US
• conscience that any remaining war crimes of the
  KMT
• acting in their capacity as military governors
  fulfilling the
• local functions of the Formosan government (from
• October 25, 1945 to May 20, 2000) be prosecuted
  by a
• US Military Commission, often called an "Article
  2 Court
• for areas under United States Military
  Government.
• 
  
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• Otherwise, political supporters
• of the International Criminal
• Court may find "jurisdiction
• to bring cases against the ROC
• and even possibly the US policy
• supporters of the ROC
• government in the post WWII
• period.
•  
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• Thus it is imperative that the jurisdiction of
  SFPT
• "war crimes" be closed by the USA for the
• protection of US interests in Taiwan as well as
• the protection of all US foreign policy makers
• effectively connected with these KMT human
• rights abuses and war crime atrocities committed
• within this territorial jurisdiction of this SFPT
  
• cession.
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• Under the US Constitution, cases concerning the
• rights of US citizens in the Taiwan cession will
• require the creation of the US Court of Taiwan.
• Taiwan "island citizens" will continue to use the
  
• local court system. Whether the US Court of
• Taiwan will have jurisdiction over war crimes,
• or a separate tribunal will be established for
  that
• purpose, is clearly open to further discussion.
  
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• Reference is made to William E. Birkhimer,
  Military
• Government and Martial Law, 3rd edition (1914),
  Chapter
• IX "Laws Obligatory Within Occupied Territory",
  Section
• 141 "Plenary power, appoint war courts,
  judicially settled"
• Thus it has been solemnly determined that the
  authority
• of the President, and of commanders under him,
  for the
• establishment of courts in conquered territory is
  complete,
• limited only by the exigencies of service and the
  laws of
• war that such courts, if given jurisdiction by
  the power
• bringing them into existence, properly may take
• cognizance of questions, military, criminal, and
  civil . . . .
• 
  
  
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• In Ex parte Quirin (1942), the US Supreme Court
• held that "The act of Congress in providing for
  the
• trial before military tribunals of offenses
  against
• the law of war is sufficiently definite, although
  
• Congress has not undertaken to codify or mark the
  
• precise boundaries of the law of war, or to
  enumerate
• or define by statute all the acts which that law
• condemns.''  
• 
  
• 
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•  

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• For territorial cessions, the legal principle
  that "the
• military government of the principal occupying
  power
• continues past the time when the peace treaty
  comes into
• force" is discussed and illustrated in many US
  Supreme
• Court cases. The earliest of these is perhaps
  Cross v.
• Harrison (1853), which explains the situation of
  the
• California territory after the Mexican American
  War.
• Also see Dooley v. U.S. (1901), DeLima v. Bidwell
  
• (1901), and Santaigo v. Nogueras (1909).
• 
  
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• From 1952 to the present, there has been no
  announcement of the end of United States Military
  Government (USMG) in Taiwan. By contrast, the end
  of USMG jurisdiction in Puerto Rico, Guam, Cuba,
  and the Philippines was made by US presidential
  proclamation. Hence, today, Taiwan is still under
  the jurisdiction of USMG.
• 
  
• 
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• The laws of war are applicable
• in areas under
• military government.
• Moreover, the US Supreme Court has continually
  held
• that "The jurisdiction of military authorities,
  during or
• following hostilities, to punish those guilty of
  offenses
• against the laws of war is long-established."
• 
  
  
  
• 
  
  
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• More information
• http//www.taiwanadvice.com/declare.htm
• http//www.taiwanbasic.com/taiwan/tda5.htm

Taiwan Defense Alliance
A New Look at Taiwan's International Legal Position
-- new research based on the laws of war
19
Taiwan Defense Alliance H Research Group By
Richard Hartzell, Jeffrey Geer, Roger C. S. Lin
Edited by Audrey Deng (Contact me)