the Laws of War by Richard W. Hartzell and Roger C. S. Lin
PREFACE . . . . the amount of invective hurled at the "One China Policy" has increased with each passing year since the Shanghai Communique was promulgated in Feb. 1972. However, what all these interested observers and pundits have failed to comprehend is that in fact the "One China Policy" rests on a very precise and detailed legal formulation. Unfortunately for those who need to understand the true facts of the "Taiwan question" in order to make effective policy decisions, or to offer criticism in an accurate fashion, this legal formulation is not something that is taught in undergraduate or graduate courses in US universities, in online study courses, or in seminars sponsored by leading think-tanks. Indeed, you would be very hard-pressed to find any books on this topic in any large metropolitan library. Not only is it well outside the realm of "civilian law," it is even outside the realm of "codified law." A broad general description of this area of legal studies would be "the laws of war," but a more exacting designation would have to be stated as "the customary laws of warfare." MODERN CONCEPTS OF THE LAWS OF WAR Most modern concepts of the laws of war date from the post-Napoleonic period, some go back earlier. In the late 1930's, the US Department of the Army decided to put together a compendium of all this data. The Army researchers assembled quite a bit of information and edited it into a Field Manual code-named FM 27-10 "The Law of Land Warfare." The first edition was published Oct. 1, 1940. US ARMY FIELD MANUAL FM 27-10 Up to the present day, FM 27-10 has been updated a few times (the most recent edition is July 1976), but it is still incomplete in many respects. Reading through its nine chapters, you won't find commentary from On the Laws of War and Peace (1625) by Hugo Grotius, or The Law of Nations (1758) by Emerich de Vattel, although in discussing laws of war issues, those authors are often considered authoritative. You won't find references to the famous nineteenth-century treatises of Military Law and Precedents by Colonel William Winthrop, Military Government and Martial Law by William E. Birkhimer, or other volumes which were at one time or another regarded as "standard references" by US Army personnel. You won't find annotations from the abundant Supreme Court or international court decisions which deal with war, conquest, military occupation, military commissions, war crimes, and similar matters. You won't find any mention of Joseph Story's Commentaries on the Constitution (1833) which involve similar issues. You won't find quotations from the International Committee of the Red Cross's Commentaries on the four 1949 Geneva Conventions and their Protocols, or analysis from the Military Law Review, widely regarded as the premier journal of military legal scholarship in the USA and published since 1958. You won't find references to peace treaties, and examples of how the different clauses are to be interpreted based on military jurisdiction, Supreme Court dicta, established international precedent, etc. so indeed a lot of information is missing. For the purposes of this research report, we will call this the "uncompiled content." Most importantly, in terms of military occupation, FM 27-10 primarily deals with situations which are "in and out." In other words, US troops land on the beaches or at the border, the territory is conquered, military occupation is conducted, a peace settlement is reached, sovereignty is restored, and the troops leave. Chapter 6 of FM 27-10 covers military occupation. The first paragraph is "Territory is considered occupied when it is actually placed under the authority of the hostile army." That is a definition of "military occupation" which is well established in the customary laws of warfare. In fact, it is a direct quote from the Annex to Hague Convention No. IV (1907), embodying the Regulations Respecting the Laws and Customs of War on Land. However, nowhere in Chapter 6 is any specific discussion of the US military occupation of areas which then become territorial cessions in a peace treaty. So, where are the customary laws for handling such matters? FM 27-10 is now widely available on the internet. In addition to that manual, one needs to study treatises written by military law experts and international legal authorities, court decisions, international conventions, etc. and to research established precedent, military history, and all topics which fall in the realm of the "uncompiled content" as mentioned above. FROM THE SPANISH AMERICAN WAR TO TAIWAN For the purpose of considering the "Taiwan question" in the world today, and understanding the implications of the "One China Policy," the Spanish American War is a good starting place. The territorial cessions of Puerto Rico, Guam, the Philippines, and Cuba all resulted from that conflict. An overview of the precedent established for dealing with those territorial cessions provides many meaningful insights into the customary laws of warfare. These can guide us in evaluating Taiwan's situation after WWII. As defined by US Supreme Court justices in Ex parte Milligan (1866), "military jurisdiction" under the US Constitution is of three kinds. In particular, so-called "military government" is "to be exercised in time of foreign war without the boundaries of the United States...". Or, in more modern terminology, "military government" is the form of administration by which an occupying power exercises government authority over occupied territory. In the situation of Puerto Rico, we can say that United States Military Government (USMG) began with the surrender of Spanish troops on Aug. 12, 1898. The post-war peace treaty came into effect on April 11, 1899, and Article 2 specified: Spain cedes to the United States the island of Porto Rico and other islands now under Spanish sovereignty in the West Indies, and the island of Guam in the Marianas or Ladrones. Most civilians would assume that the military occupation of Puerto Rico ended at that point. However, such is not the case. In fact, USMG in Puerto Rico only ended on May 1, 1900 with the commencement of "civil government." The basis for the "civil government" established in Puerto Rico was the Foraker Act passed by the US Congress. A comparative example for Cuba is also illustrative. USMG in Cuba began with the July 17, 1898 surrender of Spanish troops. Article 1 of the April 11, 1899 peace treaty specified: Spain relinquishes all claim of sovereignty over and title to Cuba. And as the island is, upon its evacuation by Spain, to be occupied by the United States, the United States will, so long as such occupation shall last, assume and discharge the obligations that may under international law result from the fact of its occupation, for the protection of life and property. Interestingly, the wording of Article 1 specifies that Cuba "is to be occupied by the United States . . . . . " (future tense) and yet the historical record shows that Cuba was already occupied as of mid-July 1898 (past tense). Is this contradictory? The answer is no. However, a close examination of the military history and the treaty provisions give us an insight into a very important aspect of the customary laws of warfare which is crucial for the understanding of territorial cessions after war. Specifically, we must recognize that for a territorial cession: the military government of the (principal) occupying power does not end with the coming into force of the peace treaty, but continues until supplanted by a fully recognized "civil government" for the area. We can review the two examples of Puerto Rico and Cuba in more detail to see exactly how this works. Note: Puerto Rico and Cuba were both territorial cessions. These areas were ceded by Spain in the peace treaty. We must recognize the broad original senses of the verb "cede" and the noun "cession," which are used to denote the "surrendering of possession of," "relinquishment of sovereignty over," "renouncing of all right, title and claim to," etc. MILITARY ATTACKS AGAINST PUERTO RICO AND CUBA All military attacks against (Spanish) Puerto Rico and (Spanish) Cuba were conducted by United States military forces. Earlier, in the American Insurance Company case (1828), US Supreme Court Chief Justice Marshall had offered this penetrating analysis: "The Constitution confers absolutely on the government of the Union the powers of making war and of making treaties; consequently, that government possesses the power of acquiring territory, either by conquest or by treaty." In other words, Puerto Rico and Cuba were both "acquired" by the United States under the principle of conquest. What is the principle of conquest? Basically, the principle of conquest says that territory may be "acquired" by conquest, and then the disposition of that territory must be conducted according to the customary laws of warfare. In the most general terms, that will mean military occupation followed by a peace settlement. If there is a territorial cession involved, then there needs to be a formal peace treaty. In the peace treaty after the Spanish American War of 1898, Spain relinquished or otherwise gave up all claims of sovereignty over Puerto Rico and Cuba. For Puerto Rico, the USA was designated as the recipient of the cession, but for Cuba no recipient was designated. Both were under USMG for extended periods. Thus, an important point must be recognized -- for a territorial cession, it is fully proper to call the period in which the military government of the (principal) occupying power is in operation as "military occupation." In modern parlance, the period in time before the coming into force of the peace treaty is referred to as "belligerent occupation." The period in time after the coming into force of the peace treaty until the end of the military government of the (principal) occupying power is called "friendly occupation" or the "civil affairs administration of a military government." USMG in Cuba ended on May 20, 1902, with the beginning of the "civil government" operations of the Republic of Cuba. USMG in Puerto Rico ended on May 1, 1900, with the beginning of US "civil government" in the territory. A similar analysis can be done for Guam and the Philippines, but the Puerto Rico and Cuba examples provide the basic parameters. THE INSULAR CASES OF THE US SUPREME COURT In the Insular Cases of the US Supreme Court (beginning 1901), it was determined that the Spanish American War cessions were "insular areas" of the United States. What were the common characteristics of these cessions? In the pre-Napoleonic era, in many countries throughout the world, conquest by military forces was quite frequently viewed as legal grounds for annexation of the territory. However, these legal norms began to change in the post-Napoleonic era, approximately from 1830 onward. (In fact, the United States government recognized the difference between "military occupation" and "annexation" even in the late 1700's.) Importantly, when United States military troops had seized control of Puerto Rico in 1898, it was military occupation not annexation. Under military occupation, the victorious state which occupies an enemy's territory is only an administrator. The rules of usufruct apply. According to the customary laws of warfare, the occupying power will be exercising control over the occupied territory, and a wide variety of responsibilities arise therewith. The local population also has numerous rights in this arrangement. Hence, a determination of "the occupying power" is a prerequisite for discussing the legal status of the territory, as well as the rights and responsibilities of the people living therein. Note: even in the present day, the Geneva Conventions and the Hague Conventions do not contain a definition of "the occupying power," although this terminology is used quite extensively when discussing laws of war issues. The information on this webpage is excerpted from The One China Policy and Taiwan's Identity Crisis |