Comments on paragraph 366 in relation to the Taiwan status issue:
by Richard W. Hartzell, Roger C. S. Lin, and Jeffrey Geer
For over thirty years, the 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 a situation of possible illegal proxy occupation.
Major errors in the post-WWII handing of the Taiwan question in late 1945 through the early 1950's 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 in Jan. 1946, 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.
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. Those instructions were contained in General Order No. 1, issued on Sept. 2, 1945.
The Chinese Civil War period of the late 1940's culminated in the late 1949 Chinese Nationalist (KMT) retreat to occupied Taiwan and its degeneration into the status of a "government-in-exile." Meanwhile, the People's Republic of China (PRC) was founded on Oct. 1, 1949.
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," the announcement of "Taiwan Retrocession Day" on Oct. 25, 1945 and the mass-naturalization of native Taiwanese persons in Jan. 1946 were both serious violations of international law, and (most importantly) the ROC military troops in Taiwan were merely fulfilling the role of "proxy occupying forces," -- or in more formal terminology -- 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).
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."
Under the laws of war of the post-Napoleonic period, a proxy occupation is a military occupation where the occupying power directs a "co-belligerent" (i.e. ally) to undertake the occupation of a particular area, as a substitute for the occupying power handling the occupation of that area directly.|
The Hague Conventions and the Geneva Conventions do not specifically define the terminology of "the occupying power," and many legal researchers are confused about this aspect.
In fact the conqueror is the occupying power.
A proxy occupation is of course illegal if the military forces undertaking the occupation are violating the laws of war.
This massacre beginning February 28, 1947, in territory under a proxy occupation was not an authorized Act of State and ultimately the USA bears the responsibility for the KMT actions on Formosa in 1947 and later years. It weighs heavily 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 Oct. 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. 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.
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 protection of the 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.
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.
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 . . . .
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.
The laws of war are applicable in areas under military government.
Link: FM 27-10 The Law of Land Warfare