Taiwan and the Laws of War

Part 1

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In trying to understand Taiwan’s legal status, much valuable information can be gained from U.S. Supreme Court cases which deal with situations arising from the conduct of war. The following excerpt from Dooley v. U.S., 182 U.S. 222 (1901) is one excellent example.

"The right of one belligerent to occupy and govern the territory of the enemy while in its military possession is one of the incidents of war, and flows directly from the right to conquer. We therefore do not look to the Constitution or political institutions of the conqueror for authority to establish a government for the territory of the enemy in his possession, during its military occupation, nor for the rules by which the powers of such government are regulated and limited. Such authority and such rules are derived directly from the laws of war, as established by the usage of the world and confirmed by the writings of publicists and decisions of courts,- in fine, from the law of nations. . . . The municipal laws of a conquered territory or the laws which regulate private rights, continue in force during military occupation, except so far as they are suspended or changed by the acts of the conqueror. . . . He, nevertheless, has all the powers of a de facto government, and can at his pleasure either change the existing laws or make new ones."

Dooley v. U.S., 182 U.S. 222 (1901)

A close reading of this excerpt clearly shows that it is the “conqueror” that has jurisdiction over the conquered territory. The conqueror has the right, and indeed the obligation, to conduct the military occupation of the conquered territory.

The international norms regarding the conduct of military occupation include the Hague Conventions, Geneva Conventions, and other established precedent. This body of law is often called “the laws of war,” or sometimes more broadly as “the customary laws of warfare.” More specifically, The laws of war are derived from two principal sources:

1. Lawmaking Treaties (or Conventions). These include the Hague Conventions and the Geneva Conventions.
   
   
2. Custom. Although some of the law of war has not been incorporated in any treaty or convention to which the United States is a party, this body of unwritten or customary law is firmly established by the custom of nations and well defined by recognized authorities on international law.

Lawmaking treaties may be compared with legislative enactments in the national law of the United States and the customary law of war with the unwritten Anglo-American common law.