Taiwanese Human Rights
Key Legal Issues
Laws of War: Part 3
Laws of War: Part 3
Taiwan and the Laws of War
Part 3
With the Fall 1945 close of hostilities in WWII, the Republic of China (ROC) authorities maintained, and have continued to maintain up to the present day, that Taiwan was retroceded to the ROC upon the date of the Oct. 25, 1945, surrender ceremonies, even though there was no treaty signed on that day. As a further complication, the People’s Republic of China (PRC) claims itself as the legitimate successor to the ROC, and hence maintains that Taiwan is a part of the PRC. The role of the United States as the “conqueror” and “legal occupier” (aka “principal occupying power”) is totally ignored.
However, paragraph 351 of US Army Field Manual FM 27-10, which is taken directly from the Annex to Hague Convention No. IV, of Oct. 18, 1907, embodying the "Regulations Respecting the Laws and Customs of War on Land" (aka “Hague Regulations”) tells us that there was no retrocession.
Some important commentary on the status of the Hague Regulations under international law is given as follows --
Commentary from the website of the International Committee of the Red Cross (ICRC):
One of the purposes for which the First Hague Peace Conference of 1899 was convened was "the revision of the declaration concerning the laws and customs of war elaborated in 1874 by the Conference of Brussels, and not yet ratified". The Conference of 1899 succeeded in adopting a Convention on land warfare to which Regulations are annexed. The Convention and the Regulations were revised at the Second International Peace Conference in 1907. The two versions of the Convention and the Regulations differ only slightly from each other.
Some of the States which ratified the 1899 Convention did not ratify the 1907 version. (The USA is not included in this group.) For more details, see the ICRC website.
The provisions of the two Conventions on land warfare, like most of the substantive provisions of the Hague Conventions of 1899 and 1907, are considered as embodying rules of customary international law. As such they are also binding on States which are not formally parties to them.
In 1946 the Nüremberg International Military Tribunal stated with regard to the Hague Convention on land warfare of 1907:
"The rules of land warfare expressed in the Convention undoubtedly represented an advance over existing International Law at the time of their adoption ... but by 1939 these rules ... were recognized by all civilized nations and were regarded as being declaratory of the laws and customs of war." (reprinted in AJIL, Vol. 41, 1947, pp. 248-249). In 1948, the International Military Tribunal for the Far East expressed an identical view.
D.Schindler and J.Toman, The Laws of Armed Conflicts, Martinus Nihjoff Publisher, 1988, pp.69-93.
Internet Source: https://www.icrc.org/ihl/INTRO/195
Additionally, the fact that surrender ceremonies do not, and cannot, result in any transfer of territorial sovereignty may be further verified by examining the situations of other territories mentioned in the April 28, 1952, San Francisco Peace Treaty (SFPT).
In particular, the circumstances of Korea clearly show that the disposition of territory does not take effect automatically at the signing of an instrument of surrender and new arrangements are later required to effectuate it. This was the situation with the surrender of Japan after the close of hostilities in WWII, even though Japan's actual control of the Korean Peninsula did not continue past that date. It was only under the provisions of the SFPT that Japan later formally recognized the independence of Korea.
Importantly, under the customary laws of warfare there are no rationale whereby a distinction between "military occupation" and "annexation" can be legally achieved on the date of the surrender of local military troops.
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