Taiwan and the Laws of War

Part 4

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Other important paragraphs in Chapter 6 of FM 27-10 are 355 and 362.

355. Occupation as Question of Fact Military occupation is a question of fact. It presupposes a hostile invasion, resisted or unresisted, as a result of which the invader has rendered the invaded government incapable of publicly exercising its authority, and that the invader has successfully substituted its own authority for that of the legitimate government in the territory invaded.

Comments on paragraph 355 in relation to the Taiwan status issue may be given as follows:

Looking at the historical record of Taiwan, the "hostile invasion" was naval and aerial bombardment conducted by U.S. military forces. In Chapter 2 of Formosa Betrayed, author George H. Kerr indicates the beginning of such U.S. aerial bombardment as Thanksgiving Day 1943, and gives further information on bombing raids throughout 1944. In Chapter 2 of Untying the Knot, author Richard Bush also states that U.S. airplanes had begun bombing targets on Taiwan in November 1943.

Notably, the military forces of the ROC did not participate in attacks against Taiwan or the four main Japanese islands during the period of WWII in the Pacific.

Paragraph 355 is also important because it informs us that the existence of military occupation, including military government, is not a political question.

362. Necessity for Military Government
Military government is the form of administration by which an occupying power exercises governmental authority over occupied territory. The necessity for such government arises from the failure or inability of the legitimate government to exercise its functions on account of the military occupation, or the undesirability of allowing it to do so.

Comments on paragraph 362 in relation to the Taiwan status issue may be given as follows:

In his opus Military Government and Martial Law, U.S. Army Brigadier General William E. Birkhimer discussed military government in detail. The most important of his conclusions may be summarized as follows –

• The U.S. Constitution has placed no limit upon the war powers of the government, but they are regulated and limited by the laws of war. One of these powers is the right to institute military governments.
  
  
• Military government continues until legally supplanted.
  
  
• Military government may be exercised not only during the time that war is flagrant, but down to the period when it comports with the policy of the dominant power to establish civil jurisdiction.

In the Ryukyus, after the surrender ceremonies on June 23, 1945, the USMG authorities appointed a military governor. Later, local groups were nurtured to form their own civil administration, including executive, legislative, and judicial agencies. U.S. Supreme Court decisions have held that the inhabitants of territory conquered by U.S. military forces do enjoy certain fundamental rights under the U.S. Constitution.

In summary, The Law of Land Warfare FM 27-10 is a Field Manual compiled by officers in the U.S. Army, and made available to members of all of the United States’ armed services, as well as members of the general public. However, frankly speaking, most civilians have never come in contact with this manual. This includes the large numbers of civilians (many of whom have advanced degrees in law) who serve in the U.S. State Dept. and who formulate U.S. policy in regard to Taiwan.