State of Hawai‘i v. Kaulia – A Recipe for War Crimes?

When the United States assumed control of its installed puppet regime under the new heading of Territory of Hawai‘i in 1900, and later the State of Hawai‘i in 1959, it surpassed “its limits under international law through extraterritorial prescriptions emanating from its national institutions: the legislature, government, and courts (Eyal Benvenisti, The International Law of Occupation (1993), p. 19).” The legislation of every state, including the United States of America and its Congress, are not sources of international law.

In The Lotus case, (1927 PCIJ Series A, No. 10, p. 18), the Permanent Court of International Justice stated that “Now the first and foremost restriction imposed by international law upon a State is that—failing the existence of a permissive rule to the contrary—it may not exercise its power in any form in the territory of another State.” According to Judge Crawford, derogation of this principle will not be presumed (James Crawford, The Creation of States in International Law (2nd ed., 2006), p. 41).

Since Congressional legislation has no extraterritorial effect, it cannot unilaterally establish governments in the territory of a foreign state. According to the U.S. Supreme Court, “[n]either the Constitution nor the laws passed in pursuance of it have any force in foreign territory unless in respect of our own citizens, and operations of the nation in such territory must be governed by treaties, international understandings and compacts, and the principles of international law (United States v. Curtiss Wright Export Corp., 299 U.S. 304, 318 (1936)).”

The U.S. Supreme Court also concluded that “[t]he laws of no nation can justly extend beyond its own territories except so far as regards its own citizens. They can have no force to control the sovereignty or rights of any other nation within its own jurisdiction (The Apollon, 22 U.S. 362, 370 (1824)).” Therefore, the State of Hawai‘i cannot claim to be a government as its only claim to authority derives from Congressional legislation that has no extraterritorial effect. As such, international law defines the State of Hawai‘i as an organized armed group.

According to Henckaerts and Doswald-Beck, Customary International Humanitarian Law, Vol. I (2009), p. 14, “organized armed groups … are under a command responsible to that party for the conduct of its subordinates.” They explain that “this definition of armed forces covers all persons who fight on behalf of a party to a conflict and who subordinate themselves to its command.” Article 1 of the 1907 Hague Convention, IV, states:

“The laws, rights, and duties of war apply not only to armies, but also to militia and volunteer corps fulfilling the following conditions: (1) To be commanded by a person responsible for his subordinates; (2) To have a fixed distinctive emblem recognizable at a distance; (3) To carry arms openly; and (4) To conduct their operations in accordance with the laws and customs of war.”

In 2013, State of Hawai‘i v. Kaulia, 128 Hawai‘i 479, 486 (2013), the State of Hawai‘i Supreme Court responded to a defendant who “contends that the courts of the State of Hawai‘i lacked subject matter jurisdiction over his criminal prosecution because the defense proved the existence of the Hawaiian Kingdom and the illegitimacy of the State of Hawai‘i government, with “whatever may be said regarding the lawfulness” of its origins, “the State of Hawai‘i … is now, a lawful government.” This is a bold statement to be made by the Supreme Court without providing any evidence of its lawfulness other than declaring its lawfulness.

From a standpoint of evidence, the jurisdiction of the State of Hawai‘i court stems from its lawfulness. This lawfulness, however, is allowed to be challenged by a defendant under Rule 12(b)(1) of the Hawai‘i Rules of Civil Procedure, which provides for a defendant to file a motion to dismiss based upon subject matter jurisdiction. In Nishitani v. Baker, 82 Haw. 281, 289 (1996), the State of Hawai‘i Intermediate Court of Appeals (ICA) stated,

“that although the governments of the State of Hawaii and the United States had recently acknowledged the illegality of the overthrow of the Kingdom, neither recognizes that the Kingdom exists at the present time (citations omitted).  Because the defendant had ‘presented no factual (or legal) basis for concluding that the Kingdom exists as a state in accordance recognized attributes of a state’s sovereign nature,’ we determined that the defendant had failed to meet his burden under HRS ß 701-115(2) (1993) of proving his defense of lack of jurisdiction. … [And] where immunity claims are raised as a defense to jurisdiction, the burden is on the defendant to establish his immunity status.”

The citation by the ICA of HRS ß 701-115(2) states, “No defense may be considered by the trier of fact unless evidence of the specified fact or facts has been presented.” In other words, it is incumbent on the defendant to present the evidence if he is challenging the jurisdiction of the court. In Kaulia, there was no evidentiary hearing by the trial court because the trial court denied Kaulia his right to present ‘specified fact or facts” that conclude “the Kingdom exists as a state in accordance recognized attributes of a state’s sovereign nature.”

Kaulia’s attorney sought to have Dr. Keanu Sai serve as an expert witness. Dr. Sai had been admitted in both criminal and civil proceedings as an expert witness on the continued existence of the Hawaiian Kingdom as a State under international law.

“[O]n March 15, 2010, Kaulia filed a Motion to Dismiss Complaint (Motion to Dismiss) challenging the court’s jurisdiction over the case based on the existence of the Kingdom of Hawai‘i (Kingdom). At the hearing on the Motion to Dismiss, the court confirmed that in off-the-record conferences it had denied Kaulia’s request for an evidentiary hearing to call witnesses, including one Dr. Keanu Sai, to establish the existence of the Kingdom. The court then denied Kaulia’s Motion to Dismiss.” State of Hawai‘i v. Kaulia,128 Haw. 479, 482 (2013).

On appeal, the ICA held that “[t]he Circuit Court did not err in precluding Kaulia from calling a witness to present evidence concerning the Kingdom of Hawai‘i in support of his motion to dismiss case for lack of jurisdiction (State of Hawai‘i v. Kaulia, 127 Haw. 414 (2012),” despite the ICA’s previous decision in State of Hawai‘i v. Lorenzo, 77 Haw. 219, 221 (1994), that “it was incumbent on Defendant to present evidence supporting his claim…that the Kingdom exists as a state in accordance with recognized attributes of a state’s sovereign nature.” According to The American Heritage Dictionary (2nd ed., 1982),  the term ‘incumbent’ is defined as “[i]mposed as an obligation or duty; obligatory.” Legally, the phrase ‘incumbent on’ means “mandatory, obligatory, requisite (William C. Burton, Legal Thesaurus 754 (2nd ed., 1992)).”

Like the ICA, the Supreme Court in blatant disregard of the ICA cases of Lorenzo and Baker, “rejected Kaulia’s argument that the circuit court erred in precluding Kaulia from calling a witness to present evidence concerning the existence of the Kingdom in support of his Motion to Dismiss (State of Hawai‘i v. Kaulia, 128 Haw. 479, 487 (2013)).”

The irony of this whole matter is that the Supreme Court cited Lorenzo and Baker as its basis to deny Kaulia’s argument, which is that “it was incumbent on Defendant to present evidence supporting his claim…that the Kingdom exists as a state.” The decisions by the Circuit Court, ICA and Supreme Court in Kaulia clearly run counter to HRS ß 701-115(2). According to this flawed logic, so long as the trier of fact (judge) can prevent the defense from presenting “evidence of the specified fact or facts” it does not need to consider it. Prosecutors and plaintiff’s attorneys now cite State of Hawai‘i v. Kaulia as the precedent case to deny defendants’ motions to dismiss. This is a feeble attempt to close the door that they opened in 1994 in State of Hawai‘i v. Lorenzo.

The State of Hawai‘i courts have established an echo chamber to shield themselves from the precedence set by the courts themselves in Lorenzo and Baker. The term echo chamber is “widely used in today’s lexicon, that describes a situation where certain ideas, beliefs or data points are reinforced through repetition of a closed system that does not allow for the free movement of alternative or competing ideas or concepts.” As Mohajer, The Little Book of Stupidity: How We Lie to Ourselves and Don’t Believe Others 20, 7 (2015), wrote:

“The confirmation bias is so fundamental to [our] development and [our] reality that you might not even realize it is happening. We look for evidence that supports our beliefs and opinions about the world but excludes those that run contrary to our own… In an attempt to simplify the world and make it conform to our expectations, we have been blessed with the gift of cognitive biases.”

While this game of hide and seek is being played out by the State of Hawai‘i judiciary, these actions constitute violations of the 1907 Hague and the 1949 Geneva Conventions, which have been codified by the Congress under 18 U.S.C. §2441—War crimes.

The United Nations Independent Expert, Dr. Alfred M. deZayas notified the State of Hawai‘i judiciary to not “plunder…enable or collude.” Plunder is another word for the war crime of pillaging, which is prohibited under Article 28 of the 1907 Hague Convention, IV, 18 U.S.C. §2441(c)(2). To deny a person of a fair and regular trial is also a war crime under Article 147 of the 1949 Geneva Convention, IV, 18 U.S.C. §2441(c)(2). The terms enable and collude are terms associated with conspiring to commit war crimes.

Big Island Video News (BIVN): Hawaiian Kingdom Files Lawsuit Against President Trump

HAWAII ISLAND – Keanu Sai has filed a petition for an emergency writ of mandamus with U.S. Federal District Court in Washington, D.C.

(BIVN) – David Keanu Sai, Ph.D., acting as Chairman of the acting Council of Regency for the Hawaiian Kingdom, has filed a lawsuit against United States President Donald Trump regarding the prolonged American occupation of the Hawaiian Islands.

Sai, who will be speaking at a La Ho‘iho‘i Ea event in Kalapana this weekend, filed the lawsuit on June 25 in U.S. Federal District Court in Washington, D.C.

The suit comes on the heels of the February 25 memorandum written by Dr. Alfred M. deZayas – the United Nations Independent Expert under the Office of the High Commissioner for Human Rights – to members of the judiciary of the State of Hawai‘i advising the courts “should not lend themselves to a flagrant violation of the rights of the land title holders” and “must not enable or collude in the wrongful taking of private lands”, based on the understanding that Hawaii is a “sovereign nation-state in continuity” which is “under a strange form of occupation by the United States resulting from an illegal military occupation and fradulent annexation.”

The conclusion of Dr. deZayas is nothing new to followers of Sai’s work. He has been working at home and abroad to educate the world about the Hawai‘ian Kingdom. Last year, shortly after President Donald Trump took office, we interviewed Sai about a series of topics, including alleged “war crimes” as it relates to international law.

Hawaiian Kingdom Files Lawsuit Against President Trump in Washington, D.C.

PRESS RELEASE
For immediate release – 17 July 2018

Petition for an Emergency Writ of Mandamus filed with U.S. Federal District Court in Washington, D.C., against President Trump regarding the prolonged American occupation of the Hawaiian Islands

[David Keanu Sai vs. Donald John Trump et. al, Case: 1:18-cv-01500]

HONOLULU, 17 July 2018 — On Monday morning, 25  June 2018, the Chairman of the acting Council of Regency for the Hawaiian Kingdom, H.E. David Keanu Sai, Ph.D., filed with the United States District Court for the District of Columbia a Petition for an Emergency Writ of Mandamus against President Donald John Trump. This Petition concerns the illegal and prolonged occupation of the Hawaiian Islands and the failure of the United States to administer the laws of the Hawaiian Kingdom as mandated under Article 43 of the 1907 Hague Convention, IV, Respecting the Laws and Customs of War on Land (36 Stat. 2199) and under Article 64 of the 1949 Geneva Convention, IV, Relative to the Protection of Civilian Persons in Time of War (6 U.S.T. 3516). The United States has ratified both treaties. The case has been assigned to Judge Tanya S. Chutkan under civil case no. 1:18-cv-01500.

Under American rules of civil procedure, a petition for writ of mandamus is an administrative remedy that seeks to compel an officer or employee of the United States or any of its agencies to fulfill their official duties. It is not a complaint alleging certain facts to be true. The Hague and Geneva Conventions obligates the United States, as an occupying State, to administer the laws of the occupied State. There is no discretion on this duty to administer Hawaiian Kingdom law. This duty is mandated under international humanitarian law.

Furthermore, according to the U.S. Constitution, treaties, such as the Hague and Geneva Conventions, are the supreme law of the land, and the United States is bound by them just as they are bound by the U.S. Constitution or any of the laws enacted by the Congress. Consequently, the failure of the United States to administer Hawaiian Kingdom laws has created a humanitarian crisis of unimaginable proportions where war crimes have and continue to be committed with impunity. War crimes have no statutes of limitation.

The Petition mentions Iraq’s violation of international humanitarian law when it invaded Kuwait on 2 August 1990, and, like the United States, did not administer Kuwaiti law as mandated by the Hague and Geneva Conventions. This led to the formation of the United Nations Compensation Commission (UNCC) by the United Nations Security Council under resolution 687 (1991). The mandate of the UNCC was to process claims and pay compensation for losses or damages incurred as a direct result of Iraq’s unlawful invasion and occupation of Kuwait. In total, the UNCC awarded $52.4 billion dollars for an unlawful occupation that lasted seven months. If this formula is applied to the unlawful invasion and occupation of the Hawaiian Kingdom since 16 January 1893 that compensation amount would be staggering.

This law suit comes on the heels of a memorandum, dated 25 February 2018, by the United Nations Independent Expert, Office of the High Commissioner for Human Rights, to the members of the judiciary of the State of Hawai‘i. The memo’s author, Dr. Alfred deZayas, who served as the Independent Expert until he retired on 30 April 2018, stated:

“As a professor of international law, the former Secretary of the UN Human Rights Committee, co-author of book, The United Nations Human Rights Committee Case Law 1977-2008, and currently serving as the UN Independent Expert on the promotion of a democratic and equitable international order, I have come to understand that the lawful political status of the Hawaiian Islands is that of a sovereign nation-state in continuity; but a nation-state that is under a strange form of occupation by the United States resulting from an illegal military occupation and a fraudulent annexation. As such, international laws (the Hague and Geneva Conventions) require that governance and legal matters within the occupied of the Hawaiian Islands must be administered by the application of the laws of the occupied state (in this case, the Hawaiian Kingdom), not the domestic laws of the occupier (the United States).”

In the Petition, the Hawaiian Kingdom begins with a preliminary statement concerning international proceedings held at the Permanent Court of Arbitration, The Hague, Netherlands.

“When the South China Sea Tribunal cited in its award on jurisdiction the Larsen v. Hawaiian Kingdom case held at the Permanent Court of Arbitration (“PCA”), that should have garnered international attention, especially after the PCA acknowledged the Hawaiian Kingdom as an independent state and not the fiftieth State of the United States of America. The Larsen case was a dispute between a Hawaiian national and his government, who he claimed was negligent for allowing the unlawful imposition of American laws over Hawaiian territory that led to the alleged war crimes of unfair trial, unlawful confinement and pillaging.”

Chairman Sai served as Agent for the Hawaiian government in Larsen v. Hawaiian Kingdom, PCA Case no. 1999-01. Before forming the ad hoc tribunal, the PCA acknowledged the Hawaiian Kingdom’s continued existence as an independent State and that the Hawaiian Kingdom would access the jurisdiction of the PCA as a non-Contracting Power pursuant to Article 47 of the 1907 Hague Convention for the Pacific Settlement of International Disputes.

Chairman Sai stated, “the United States, as an occupier, is mandated to administer Hawaiian Kingdom law over Hawaiian territory and not its own, until they withdraw.  This is not a mere descriptive assumption by the occupying State, but rather it is the law of occupation. And this was precisely what the Larsen v. Hawaiian Kingdom arbitration was founded on—the unlawful imposition of American laws.” In 2001, Bederman and Hilbert reported in the American Journal of International Law:

“At the center of the PCA proceedings was…that the Hawaiian Kingdom continues to exist and that the Hawaiian Council of Regency (representing the Hawaiian Kingdom) is legally responsible under international law for the protection of Hawaiian subjects, including the claimant. In other words, the Hawaiian Kingdom was legally obligated to protect Larsen from the United States’ “unlawful imposition [over him] of [its] municipal laws” through its political subdivision, the State of Hawaii. As a result of this responsibility, Larsen submitted, the Hawaiian Council of Regency should be liable for any international law violations that the United States had committed against him.”[1]

The Tribunal was comprised of three renowned international jurists, namely, Judge James Crawford, SC, current member of the International Court of Justice, Judge Christopher Greenwood, QC, former member of the International Court of Justice, and Dr. Gavan Griffith, former Australian Solicitor General.

Larsen sought to have the Tribunal adjudge that the United States had violated his rights. He then sought the Tribunal to adjudge that the Hawaiian government was liable for those violations. Although the United States was formally invited, by the Hawaiian government, to join in the arbitration on 3 March 2000, it chose not to. The United States absence thus raised the indispensable third-party rule for Larsen to overcome. In its award (para. 7.4), however, the Tribunal acknowledged the Hawaiian Kingdom’s lawful political status since the nineteenth century.

“[I]n the nineteenth century the Hawaiian Kingdom existed as an independent State recognized as such by the United States of America, the United Kingdom and various other States, including by exchanges of diplomatic or consular representatives and the conclusion of treaties.”

After returning from oral hearings held at The Hague in December of 2000, the Council of Regency adopted a policy of education and exposure of the Hawaiian Kingdom’s lawful political status as an independent State. The Council made this decision to address the American policy of denationalization—Americanization that was implemented throughout the schools in the islands since 1906. Denationalization is a war crime. Within three generations, Americanization had effectively obliterated the national consciousness of the Hawaiian Kingdom in the minds of Hawai‘i’s people. This denationalization has resulted in a common misunderstanding that since President Barrack Obama was born in Hawai‘i, he was born within the United States. He was not. He was born in the Hawaiian Kingdom to an American mother and a Kenyan father. As such, he was born an American citizen by parentage—jus sanguinis, but not as a natural born citizen—jus soli.

It would take 18 years of education and exposure to prompt the Hawaiian government to file the Petition for Emergency Writ of Mandamus. The Petition was filed with the Federal Court in accordance with 28 U.S.C. §1331 (federal question jurisdiction), 28 U.S.C. §1651(a) (writ of mandamus), and 5 U.S.C. §702 (waiver of sovereign immunity). The Petition also names as nominal respondents twenty-eight countries that had diplomatic relations with the Hawaiian Kingdom to include treaties, and five international agencies. All of the respondents received a copy of the filed Petition, through the United States Postal Service, with a cover letter noting that a summons would be forthcoming.

They include the United States, the Indo-Pacific Command, the State of Hawai‘i, Australia, Austria, the Bahamas, Belgium, Belize, Brazil, Canada, Chile, China, Cuba, France, Germany, Guatemala, Hungary, Italy, Japan, Luxembourg, Mexico, the Netherlands, New Zealand, Norway, Peru, Portugal, Russia, Spain, Sweden, Switzerland, and the United Kingdom. Also included was the United Nations Secretary General, the President of the United Nations General Assembly, the President of the United Nations Security Council, the President of the United Nations Human Rights Committee, and the Chairman of the Permanent Court of Arbitration’s Administrative Council.

In his letter to the United Nations Secretary General, Chairman Sai invoked the law of State responsibility. Chairman Sai stated:

“As an internationally wrongful act, all States shall not ‘recognize as lawful a situation created by a serious breach within the meaning of Article 40, nor render aid or assistance in maintaining that situation (Responsibility of States for Internationally Wrongful Acts, 2001),’ Article 40 provides that a ‘breach of such an obligation is serious if it involves a gross or systemic failure by the responsible State to fulfill the obligation.’ By letter to United States President Donald John Trump dated 5 July 2018, the Hawaiian Kingdom gave notice of claim and invoked responsibility of the United States, in accordance with Article 43, for a serious breach of an obligation to comply with international humanitarian law.”

Chairman Sai then made the following request to the Secretary General:

“As a State not a member of the United Nations, but a member of the Universal Postal Union since 1882, being a specialized agency of the United Nations, I should be grateful if you would have this letter and the full text of its enclosures circulated as an official document of the General Assembly and of the Security Council.”

The United States has been in an illegal state of war against the Hawaiian Kingdom since 1893

On 9 March 1893, President Grover Cleveland, at the request of Queen Lili‘uokalani, conducted an investigation into the overthrow of the Hawaiian Kingdom government that occurred on 17 January 1893. Her Majesty notified the President that the overthrow of her government was committed by the United States diplomat assigned to the Hawaiian Kingdom, John Stevens, and by the unauthorized landing of United States armed forces.

President Cleveland appointed James Blount, former Chairman of the House Committee on Foreign Affairs, as Special Commissioner. Commissioner Blount arrived in Honolulu on 31 March 1893 and initiated his investigation the following day. After sending periodical reports to Secretary of State Walter Gresham in Washington, D.C., Blount completed his final report on 17 July 1893. On 18 October 1893, Gresham submitted his report to the President. Gresham concluded:

“The Government of Hawaii surrendered its authority under a threat of war, until such time only as the Government of the United States, upon the facts being presented to it, should reinstate the constitutional sovereign… Should not the great wrong done to a feeble but independent State by an abuse of the authority of the United States be undone by restoring the legitimate government? Anything short of that will not, I respectfully submit, satisfy the demands of justice.”

The following month, on 18 December 1893, President Grover Cleveland notified the Congress of the findings and conclusions of his investigation. President Cleveland stated:

“And so it happened that on the 16th day of January, 1893, between four and five o’clock in the afternoon, a detachment of marines from the United States steamer Boston, with two pieces of artillery, landed at Honolulu. The men, upwards of 160 in all, were supplied with double cartridge belts filled with ammunition and with haversacks and canteens, and were accompanied by a hospital corps with stretchers and medical supplies. This military demonstration upon the soil of Honolulu was of itself an act of war, unless made either with the consent of the Government of Hawaii or for the bona fide purpose of protecting the imperiled lives and property of citizens of the United States. But there is no pretense of any such consent on the part of the Government of the Queen, which at the time was undisputed and was both the de facto and the de jure government. In point of fact the existing government instead of requesting the presence of an armed force protested against it.”

The President concluded:

“By an act of war, committed with the participation of a diplomatic representative of the United States and without authority of Congress, the Government of a feeble but friendly and confiding people has thus been overthrown. A substantial wrong has thus been done which a due regard for our national character as well as the rights of the injured people requires we should endeavor to repair.”

When President Cleveland concluded that by an act of war committed against the Hawaiian Kingdom on 16 January 1893, which led to the unlawful overthrow of the Hawaiian government the following day, he acknowledged the situation under international law transformed from a state of peace to a state of war. Only by way of a treaty of peace could a state of war be transformed back to a state of peace. To explain this transformation, Chairman Sai, as Hawaiian Ambassador-at-large, authored a memorandum titled The Larsen v. Hawaiian Kingdom Case at the Permanent Court of Arbitration and Why There Is An Ongoing Illegal State of War with the United States of America Since 16 January 1893 (16 October 2017). This memorandum has been translated into Farsi, French, German, Italian, Japanese, Russian and Spanish.

On the very same day the President notified the Congress of the illegal overthrow of the Hawaiian government, an agreement of restoration and peace was negotiated between the new U.S. diplomat assigned to the Hawaiian Kingdom, Albert Willis, and the Queen. Negotiations began on 13 November and lasted until 18 December 1893. However, due to political wrangling going on in the Congress, the President was unable to fulfill the United States’ obligation under the agreement of peace with the Queen. Five years later in 1898, the United States fraudulently annexed the Hawaiian Islands during the Spanish-American war and fortified it as a military outpost. Hawai‘i currently serves as headquarters for the U.S. Indo-Pacific Command.

In 2013, the New York Times reported North Korea’s announcement that “all of its strategic rocket and long range artillery units ‘are assigned to strike bases of the U.S. imperialist aggressor troops in the U.S. mainland and on Hawaii.” The Hawaiian Kingdom’s existential threat has been heightened today by the rhetoric of U.S. President Donald Trump and North Korea’s Kim Jong-un.

Instead of establishing a system to administer Hawaiian Kingdom law in 1893, the United States maintained their installed insurgency, calling itself the Provisional government, who, under the protection of U.S. troops, unlawfully seized control of the Hawaiian government apparatus. In 1894, these insurgents renamed themselves as the Republic of Hawai‘i. Six years later, the U.S. Congress changed that name to the Territory of Hawai‘i. And in 1959, Congress changed that name to the State of Hawai‘i. The U.S. Congress could no more establish a government in the Hawaiian Kingdom by enacting domestic statutes, than it could establish a government in Germany or in the United Kingdom.

Since the United States’ admitted unlawful overthrow of the Hawaiian Kingdom government in 1893, there has been no lawful government in the Hawaiian Islands until the Hawaiian Council of Regency was established in 1995. The unlawful overthrow of the Hawaiian government 125 years ago, however, did not affect the continuity of the Hawaiian Kingdom as an independent State under international law. The Hawaiian Kingdom continued to remain in existence just as Iraq continued to exist despite its government being overthrown in 2003 by United States armed forces.

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[1] David Bederman & Kurt Hilbert, “Arbitration—UNCITRAL Rules—justiciability and indispensible third parties—legal status of Hawaii,” 95 American Journal of International Law (2001) 927, at 928.

United Nations Acknowledges the Occupation of the Hawaiian Kingdom

On May 10, 2018, Mrs. Routh Bolomet, a Hawaiian-Swiss citizen, provided Dr. Keanu Sai with a remarkable document that came out of the United Nations Office of the High Commissioner for Human Rights in Geneva, Switzerland, regarding Hawai‘i. Mrs. Bolomet told Dr. Sai that it was her hope that the document authored by Dr. Alfred M. deZayas, would help in bringing the American occupation to an end. Dr. Sai said, “To call this document ‘remarkable’ is an understatement.”

In 2006, the United Nations Human Rights Council was formed as an intergovernmental organization within the United Nations system. The Council replaced the United Nations Commission on Human Rights that was established in 1946. The Council is comprised of 47 member States of the United Nations that serve for a three year term.

On September 29, 2011, the Council passed resolution 18/6 in order to establish an Independent Expert for the promotion of a democratic and equitable international order. The Council decided to establish a new Independent Expert, with the authority to identify possible obstacles to the promotion and protection of a democratic and equitable international order, to identify best practices and to work in cooperation with States in order to foster the adoption of measures at the local, national, regional and international levels.

The President of the Council, Ambassador Laura Dupuy Lasserre of Uruguay, nominated Dr. deZayas and on March 23, 2012 he was elected by the Council as the first Independent Expert on the promotion of a democratic and equitable international order by the United Nations Human Rights Council. The United States served as a member State of the Council when Dr. deZayas was elected.

The Council requested the newly elected Independent Expert to present its first report to the Council at its twenty-first session in 2012. An interim report was submitted in 2012 that was followed by a full report in 2013. Yearly reports have been submitted ever since.

An Independent Expert, also known as a Special Rapporteur, is a person who examines and reports on a specific human rights issue or theme. The Independent Expert reports to both the United Nations Human Rights Council and the United Nations General Assembly. Dr. deZayas completed two three-year terms where his mandate was completed on April 30, 2018.

Of the fifteen topics of responsibility for the Independent Expert that come under its mandate, two topics resonate regarding Hawai‘i’s situation of a prolonged and illegal occupation.

  1. The right of peoples and nations to permanent sovereignty over their natural wealth and resources; and
  2. The right of all peoples to peace.

In order to achieve the realization of these subjects, the Independent Expert, among other tasks, will:

  1. Identify possible obstacles to the promotion and protection of a democratic and equitable order, and to submit proposals and/or recommendations to the Human Rights Council on possible actions in that regard;
  2. To raise awareness concerning the importance of promoting and protecting of a democratic and equitable international order; and
  3. To work in cooperation with States in order to foster the adoption of measures at the local, national, regional and international levels aimed at the promotion and protection of a democratic and equitable international order.

Of particular note in his 2012 initial Report to the Council, Dr. deZayas stated:

“The Independent Expert will build on the studies already conducted by the Commission on Human Rights, the Subcommission on the Promotion and Protection of Human Rights, the Human Rights Council and its Advisory Committee, as well as on the work of the family of special rapporteurs, General Assembly and Commission on Human Rights resolutions on the right of peoples to peace (Assembly resolution 39/11, Commission resolution 2002/71).”

The Commission on Human Rights resolution 2002/71, adopted on April 25, 2002, regarding “the right of peoples to peace” affirmed “the obligation of all States to refrain in their international relations from the threat or use of force against the against the territorial integrity or political independence of any State, or in any other manner inconsistent with the purposes of the United Nations.” It is apparent that this reference would directly apply to the United States violation of the Hawaiian Kingdom’s territorial integrity and its political independence, which brought about an illegal state of war.

In his 2013 Report to the United Nations General Assembly, Dr. deZayas was unaware of Hawai‘i’s true legal status as an independent and sovereign State that has been under an illegal and prolonged occupation. He assumed that Hawai‘i was a part of the United States and that the native population (aboriginal Hawaiians) had the status of indigenous peoples with a right to self-determination.

This misrepresentation is understandable given the fact that the United States and the State of Hawai‘i actively promoted this false narrative, and some aboriginal Hawaiians even attend sessions of the United Nations Permanent Forum on Indigenous Issues in New York, in addition to participating in United Nations Human Rights bodies, in Geneva, promoting aboriginal Hawaiians as a colonized people and not as nationals of an occupied State.

Under the heading “Lack of democratic participation by indigenous and unrepresented peoples” in the 2013 Report, Dr. deZayas notes aboriginal Hawaiians as an indigenous people. A reference is made in the Report to Concluding Observations of the Human Rights Committee on the Second and Third U.S. Reports to the Committee (2006) in footnote 55 under the heading of “indigenous and unrepresented people.” The Committee was comprised of 18 experts that assumed Hawai‘i to be a part of the United States. The Committee is not to be confused with the United Nations Human Rights Council, which is comprised of 47 member States (nation-states) and not individual experts. The Committee noted it:

“regrets that it has not received sufficient information on the consequences on the situation of Indigenous Native Hawaiians of Public Law 103-150 apologizing to the Native Hawaiian Peoples for the illegal overthrow of the Kingdom of Hawaii, which resulted in the suppression of the inherent sovereignty of the Hawaiian people.”

The underlying problem taken here by the Committee of experts is their failure to distinguish between the government and the nation-state (State). It was admitted by the United States that the overthrow was illegal, but it was an illegal overthrow of the government and not the nation-state. Despite the illegal overthrow of the government, the Hawaiian Kingdom, as a nation-state, would continue to exist under a prolonged occupation by the United States. This is similar to the American overthrow of the Iraqi government in 2003, but Iraq, as a nation-state, continued to exist under a military occupation until it ended in 2009. Iraqi nationals during the period of occupation were not a colonial territory of the United States.

In addition, the nation-state is called the “Hawaiian Kingdom,” not the “Kingdom of Hawai‘i.” The term “Kingdom of Hawai‘i” was used in the United States 1993 Apology Resolution, Public Law 103-150. It is an American term.

In the 1893 Protest by Queen Lili‘uokalani she stated, “I, Liliuokalani, by the grace of God and under the constitution of the Hawaiian Kingdom, Queen, do hereby solemnly protest against any and all acts done against myself and the constitutional Government of the Hawaiian Kingdom.” She did not identify the country as the “Kingdom of Hawai‘i.”

Based on this misinformation of Hawai‘i’s legal status, Dr. deZayas provided the following recommendation in paragraph 69(n) of the 2013 Report.

“The General Assembly may consider revisiting the reality of self-determination in today’s world and refer to the Special Committee on Decolonization and/or other United Nations instances communications by indigenous and unrepresented peoples wherever they reside, inter alia, in Alaska, Australia, Canada, Chile, China, the Dakotas, French Polynesia, Hawaii, Kashmir, the Middle East, the Moluccas, New Caledonia, Northern Africa, Sri Lanka and West Papua, with reference to Chapter XI of the Charter of the United Nations. The General Assembly may also consider amending its rules and procedures to allow for the participation of indigenous and non-represented peoples. Meanwhile, the Assembly should urge States to implement the Declaration on the Rights of Indigenous Peoples. It should ensure that indigenous, non-represented peoples, marginalized and disempowered peoples, and peoples under occupation have a genuine opportunity to participate in decision-making processes.”

Five years later, Dr. deZayas, did a complete reversal on his understanding of Hawai‘i’s legal status from a colonized people with a right to self-determination to a nation-state, called the Hawaiian Kingdom, that has been under a military occupation by the United States since 1893.

On February 25, 2018, Dr. deZayas authored a memorandum titled “Re: The case of Mme Routh Bolomet” in response to a complaint submitted to the Council by Mrs. Bolomet in 2017. Without getting into the particulars of Mrs. Bolomet’s complaint, the Independent Expert addressed the broader issue of the military occupation of the Hawaiian Kingdom and the requirement of the United States, as the occupying State, to administer the laws of the occupied State, being the Hawaiian Kingdom. He stated,

“I have come to understand that the lawful political status of the Hawaiian Islands is that of a sovereign nation-state in continuity; but a nation-state that is under a strange form of occupation by the United States resulting from an illegal military occupation and a fraudulent annexation. As such, international laws (the Hague and Geneva Conventions) require that governance and legal matters within the occupied territory of the Hawaiian Islands must be administered by the application of the laws of the occupied state (in this case the Hawaiian Kingdom), not the domestic laws of the occupier (the United States).

Here follows Dr. deZayas’ Memorandum in its entirety, which can be downloaded in PDF format.

His memorandum also serves as an amendment to the 2013 Report correcting the legal status of Hawai‘i as an occupied State and not an issue of self-determination for an indigenous group of people. In line with this change, Article 69(e) of his recommendations is more appropriate, “States should ratify the individual complaints procedures of the United Nations human rights treaties, adhere to and utilize the inter-State complaints procedures, and globalize the reach of the International Criminal Court.”

Dr. deZayas’ Memorandum was sent by the Swiss Postal service, La Poste, in Geneva, to the United States President, the Secretary of State, the State of Hawai‘i Attorney General, a State of Hawai‘i Judge Gary W.B. Chang of the Land Court, and State of Hawai‘i Judge Jeanette H. Castagnette of the First Circuit. Mrs. Bolomet is a defendant in a case before both Judge Chang and Judge Castagnetti.

Illegal State of War Brief

When the South China Sea Tribunal cited in its award on jurisdiction the Larsen v. Hawaiian Kingdom case held at the Permanent Court of Arbitration, it should have garnered international attention, especially after the Court acknowledged the Hawaiian Kingdom as a state and Larsen a private entity. The Larsen case was a dispute between a Hawaiian national and his government, who he alleged was negligent for allowing the unlawful imposition of American laws over Hawaiian territory that led to the alleged war crimes of unfair trial, unlawful confinement and pillaging. Larsen sought to have the Tribunal adjudge that the United States of America violated his rights, after which he sought the Tribunal to adjudge that the Hawaiian government was liable for those violations. Although the United States was formally invited it chose not to join in the arbitration thus raising the indispensable third party rule for Larsen to overcome. What is almost completely unknown today is Hawai‘i’s international status as an independent and sovereign state, called the Hawaiian Kingdom, that has been in an illegal state of war with the United States of America since 16 January 1893. The purpose of this article will be to make manifest, in the light of international law, the current illegal state of war that has gone on for well over a century and its profound impact on the international community today.

U.S. Commits “Acts of War” against the Hawaiian Kingdom

Today marks 125 years of an Unjust War waged against the Hawaiian Kingdom by the United States of America. This profound and fundamental fact has been obscured through a deliberate and relentless barrage of denationalization by the United States.

This process, which is known as Americanization and which is a war crime, has nearly obliterated the national consciousness of the Hawaiian Kingdom in the minds of Hawai‘i’s people, and by extension, the international community. Samuel Damon, an insurrectionist and traitor to Hawai‘i, stated in 1895, “If we are ever to have peace and annexation the first thing to do is to obliterate the past.” Damon also served as Trustee for the Kamehameha Schools from 1884-1909.

The key to understanding the prolonged and unjust war between the Hawaiian Kingdom and the United States is to begin with the legal status of the Hawaiian Kingdom under international law. Since war, whether just or unjust, is regulated by international law, the Hawaiian Kingdom would need to have been an independent State prior to the American invasion on January 16, 1893. As an independent State it would have been a subject of international law, and, therefore, international law would be the lens through which to interpret the invasion as well as determining whether or not an unjust war was triggered.

The Hawaiian Kingdom as an Independent State

In 2001, the Permanent Court of Arbitration’s arbitral tribunal, in Larsen v. Hawaiian Kingdom, declared “in the nineteenth century the Hawaiian Kingdom existed as an independent State recognized as such by the United States of America, the United Kingdom and various other States, including by exchanges of diplomatic or consular representatives and the conclusion of treaties.” The terms State and Country are synonymous.

As an independent State, the Hawaiian Kingdom entered into extensive treaty relations with a variety of States establishing diplomatic relations and trade agreements. The Hawaiian Kingdom entered into three treaties with the United States: 1849 Treaty of Friendship, Commerce and Navigation; 1875 Commercial Treaty of Reciprocity; and 1883 Convention Concerning the Exchange of Money Orders. In 1893 there were only 44 independent and sovereign States, which included the Hawaiian Kingdom, as compared to 197 today.

On January 1, 1882, it joined the Universal Postal Union. Founded in 1874, the UPU was a forerunner of the United Nations as an organization of member States. Today the UPU is presently a specialized agency of the United Nations.

By 1893, the Hawaiian Kingdom maintained over ninety Legations and Consulates throughout the world. In the United States of America, the Hawaiian Kingdom manned a diplomatic post called a legation in Washington, D.C., which served in the same function as an embassy today, and consulates in the cities of New York, San Francisco, Philadelphia, San Diego, Boston, Portland, Port Townsend and Seattle. The United States manned a legation in Honolulu, and consulates in the cities of Honolulu, Hilo, Kahului and Mahukona.

“Traditional international law was based upon a rigid distinction between the state of peace and the state of war (p. 45),” says Judge Greenwood in his article “Scope of Application of Humanitarian Law” in The Handbook of the International Law of Military Occupations (2nd ed., 2008), “Countries were either in a state of peace or a state of war; there was no intermediate state (Id.).” This is also reflected by the fact that the renowned jurist of international law, Professor Lassa Oppenheim, separated his treatise on International Law into two volumes, Vol. I—Peace, and Vol. II—War and Neutrality.

Presidential Investigation of the Overthrow of the Hawaiian Government

On January 16, 1893, United States troops invaded the Hawaiian Kingdom without just cause, which led to a conditional surrender by the Hawaiian Kingdom’s executive monarch, Her Majesty Queen Lili‘uokalani, the following day. Her conditional surrender read:

“I, Liliuokalani, by the grace of God and under the constitution of the Hawaiian Kingdom, Queen, do hereby solemnly protest against any and all acts done against myself and the constitutional Government of the Hawaiian Kingdom by certain persons claiming to have established a provisional government of and for this Kingdom.

That I yield to the superior force of the United States of America, whose minister plenipotentiary, His Excellency John L. Stevens, has caused United States troops to be landed at Honolulu and declared that he would support the said provisional government.

Now, to avoid any collision of armed forces and perhaps the loss of life, I do, under this protest, and impelled by said force, yield my authority until such time as the Government of the United States shall, upon the facts being presented to it, undo the action of its representatives and reinstate me in the authority which I claim as the constitutional sovereign of the Hawaiian Islands.”

In response to the Queen’s conditional surrender of her authority, President Grover Cleveland initiated an investigation on March 11, 1893, with the appointment of Special Commissioner James Blount whose duty was to “investigate and fully report to the President all the facts [he] can learn respecting the condition of affairs in the Hawaiian Islands, the causes of the revolution by which the Queen’s Government was overthrown, the sentiment of the people toward existing authority, and, in general, all that can fully enlighten the President touching the subjects of [his] mission (p. 1185).” After arriving in the Hawaiian Islands, he began his investigation on April 1, and by July 17, the fact-finding investigation was complete with a final report. Secretary of State Walter Gresham was receiving periodic reports from Special Commissioner Blount and was preparing a final report to the President.

On October 18, 1893, Secretary of State Gresham reported to the President, the “Provisional Government was established by the action of the American minister and the presence of the troops landed from the Boston, and its continued existence is due to the belief of the Hawaiians that if they made an effort to overthrow it, they would encounter the armed forces of the United States.” He further stated that the “Government of Hawaii surrendered its authority under a threat of war, until such time only as the Government of the United States, upon the facts being presented to it, should reinstate the constitutional sovereign, and the Provisional Government was created ‘to exist until terms of union with the United States of America have been negotiated and agreed upon (p. 462).’” Gresham then concluded, “Should not the great wrong done to a feeble but independent State by an abuse of the authority of the United States be undone by restoring the legitimate government? Anything short of that will not, I respectfully submit, satisfy the demands of justice (p. 463).”

Investigation Concludes United States Committed Acts of War against the Hawaiian Kingdom

One month later, on December 18, 1893, the President proclaimed by manifesto, in a message to the United States Congress, the circumstances for committing acts of war against the Hawaiian Kingdom that transformed a state of peace to a state of war on January 16, 1893. Black’s Law Dictionary defines a war manifesto as a “formal declaration, promulgated…by the executive authority of a state or nation, proclaiming its reasons and motives for…war.” And according to Professor Oppenheim in his seminal publication, International Law, vol. 2 (1906), a “war manifesto may…follow…the actual commencement of war through a hostile act of force (p. 104).”

Addressing the unauthorized landing of United States troops in the capital city of the Hawaiian Kingdom, President Cleveland stated, “on the 16th day of January, 1893, between four and five o’clock in the afternoon, a detachment of marines from the United States steamer Boston, with two pieces of artillery, landed at Honolulu. The men, upwards of 160 in all, were supplied with double cartridge belts filled with ammunition and with haversacks and canteens, and were accompanied by a hospital corps with stretchers and medical supplies (p. 451).”

President Cleveland ascertained that this “military demonstration upon the soil of Honolulu was of itself an act of war, unless made either with the consent of the Government of Hawaii or for the bona fide purpose of protecting the imperiled lives and property of citizens of the United States. But there is no pretense of any such consent on the part of the Government of the Queen, which at that time was undisputed and was both the de facto and the de jure government. In point of fact the existing government instead of requesting the presence of an armed force protested against it (p. 451).” He then stated, “a candid and thorough examination of the facts will force the conviction that the provisional government owes its existence to an armed invasion by the United States (p. 454).”

“War begins,” says Professor Wright in his article “Changes in the Conception of War,” American Journal of International Law, vol. 18 (1924), “when any state of the world manifests its intention to make war by some overt act, which may take the form of an act of war (p. 758).” According to Professor Hall in his book International Law (4th ed., 1895), the “date of the commencement of a war can be perfectly defined by the first act of hostility (p. 391).”

The President also determined that when “our Minister recognized the provisional government the only basis upon which it rested was the fact that the Committee of Safety had in the manner above stated declared it to exist. It was neither a government de facto nor de jure (p. 453).” He unequivocally referred to members of the so-called Provisional Government as insurgents, whereby he stated, and “if the Queen could have dealt with the insurgents alone her course would have been plain and the result unmistakable. But the United States had allied itself with her enemies, had recognized them as the true Government of Hawaii, and had put her and her adherents in the position of opposition against lawful authority. She knew that she could not withstand the power of the United States, but she believed that she might safely trust to its justice.” He then concluded that by “an act of war, committed with the participation of a diplomatic representative of the United States and without authority of Congress, the Government of a feeble but friendly and confiding people has been overthrown (p. 453).”

“Act of hostility unless it be done in the urgency of self-preservation or by way of reprisals,” according to Hall, “is in itself a full declaration of intent [to wage war] (p. 391).” According to Professor Wright in his article “When does War Exist,” American Journal of International Law, vol. 26(2) (1932), “the moment legal war begins…statutes of limitation cease to operate (p. 363).” He also states that war “in the legal sense means a period of time during which the extraordinary laws of war and neutrality have superseded the normal law of peace in the relations of states (Id.).”

Unbeknownst to the President at the time he delivered his message to the Congress, a settlement, through executive mediation, was reached between the Queen and United States Minister Albert Willis in Honolulu. The agreement of restoration, however, was never implemented. Nevertheless, President Cleveland’s manifesto was a political determination under international law of the existence of a state of war, of which there is no treaty of peace. More importantly, the President’s manifesto is paramount and serves as actual notice to all States of the conduct and course of action of the United States. These actions led to the unlawful overthrow of the government of an independent and sovereign State. When the United States commits acts of hostilities, the President, says Associate Justice Sutherland in his book Constitutional Power and World Affairs (1919), “possesses sole authority, and is charged with sole responsibility, and Congress is excluded from any direct interference (p. 75).”

According to Representative Marshall, before he became Chief Justice of the U.S. Supreme Court, in his speech in the House of Representatives in 1800, the “president is the sole organ of the nation in its external relations, and its sole representative with foreign nations. Of consequence, the demand of a foreign nation can only be made of him (Annals of Congress, vol. 10, p. 613).” Professor Wright in his book The Control of American Foreign Relations (1922), goes further and explains that foreign States “have accepted the President’s interpretation of the responsibilities [under international law] as the voice of the nation and the United States has acquiesced (p. 25).”

Despite the unprecedented prolonged nature of the illegal occupation of the Hawaiian Kingdom by the United States, the Hawaiian State, as a subject of international law, is afforded all the protection that international law provides. “Belligerent occupation,” concludes Judge Crawford in his book The Creation of States in International Law (2nd ed., 2006), “does not affect the continuity of the State, even where there exists no government claiming to represent the occupied State (p. 34).” Without a treaty of peace, the laws of war and neutrality would continue to apply.

Big Island Video News (BIVN): Dr. Keanu Sai La Ku‘oko‘a Conference Presentation

HILO, Hawaii – The political and agent representing the Provisional Government of the Hawaiian Kingdom, gives a two hour presentation in Hilo.

(BIVN) – In the opening presentation kicking off a two-day Lā Kuʻokoʻa educational conference in Hilo, Dr. Keanu Sai gives a lengthy talk on the Hawaiian Kingdom and the United States occupation.

Sai told attendees about the delay of the first hearing of the International Commission of Inquiry constituted under the Permanent Court of Arbitration in the Larsen v. Hawaiian Kingdomcase, and took some questions at the end. But the bulk of his presentation dealt with what he shows to be an ongoing state of war between the United States and the Hawaiian Kingdom, and the subsequent illegal annexation by Congressional resolution. The information covered forms the basis of Sai’s doctoral thesis and his work at The Hague.

Big Island Video News (BIVN): International Inquiry Delayed After “Political Bomb”, Sai Says

HILO, Hawaii – Keanu Sai told attendees at a Hilo Lā Kuʻokoʻa conference that the Secretary-General of the Permanent Court of Arbitration “has just been exposed as an agent for the United States at the highest level of the court.”

(BIVN) – The first sitting of the International Commission of Inquiry, initially scheduled for January 16 and 17, 2018 on the grounds of ‘Iolani Palace at the Kana‘ina Building, has been delayed.

Political scientist Dr. Keanu Sai, who is also the agent representing the Provisional Government of the Hawaiian Kingdom in the Inquiry that stems from the Larsen v. Hawaiian Kingdom arbitration held at the Permanent Court of Arbitration from 1999-2001, made the announcement during a Lā Kuʻokoʻa educational conference held in Hilo on Saturday.

“We’re gonna probaly have to hold back on the hearing of January 16 and 17, and probably move it to March,” Sai said.

The orginal January hearing dates would have coincided with the 125th anniversary of the American invasion of the Hawaiian Kingdom on January 16, 1893 – which was followed by the conditional surrender of the Hawaiian government by Queen Lili‘uokalani on January 17, 1893.

According to the Hawaiian Kingdom blog:

At the core of these proceedings will be the unlawful imposition of American laws that led to the unfair trial, unlawful confinement and pillaging of Lance Paul Larsen, a Hawaiian subject and victim of war crimes committed against him by the United States through its armed force—the State of Hawai‘i. These war crimes were committed in 1999.

The reasons for the delay seem steeped in international intrigue.

“I gotta be honest,” Sai told the crowd at the Boys and Girls Club gym during the Lā Kuʻokoʻa event, “I always kept thinking ‘how is the United States gonna obstruct these proceedings?’ They’re not gonna just sit there and let it happen, right?”

The Tribunal in the 1999-2001 arbitration concluded that “it could not determine whether the (Hawaiian Kingdom) has failed to discharge its obligations towards (Larsen) without ruling on the legality of the acts of the United States of America – something the Tribunal was precluded from doing as the United States was not party to the case,” the PCA says on its website. Sai says the U.S. was given the opportunity to participate before the Tribunal was convened. The U.S. State Department declined, he said, instead asking to access the records of the PCA proceedings.

“If there was any time that the United States could have stopped these proceedings, it would have been then in 2000,” Sai said. “But they would have to show the Hawaiian Kingdom doesn’t exist as a state. They couldn’t.”

17 years later, and the International Commission of Inquiry – an avenue recommended by the Tribunal in its 2001 award – is about to get underway.

“This is headquarters for Pacific Command. 118 military installations here,” Sai said of the United States. “You’re not just gonna sit down and let this whole things happen.”

As things were moving along towards the first hearings, Sai said suddenly, the Secretary-General of the Permanent Court of Arbitration, Hugo Hans Siblesz, “obstructed the proceedings,” via a letter, saying that entities who are not members of the United Nations “cannot use this court.”

“We were already there!” Sai said, reliving his astonishment. “This case is stemming from the original case.”

Sai and his deputy agents tried to contact the Secretary-General, to no avail. “Something’s happening,” Sai thought. “Number one, that’s very evasive. This guy doesn’t want to talk.”

The events prompted Sai to travel to the Hague, where the Permanent Court of Arbitration is located. But before doing so, Sai looked into the cryptic statements contained in Secretary-General Siblesz’ letter. His research led him to conclude that the Secretary-General “was actually representing the United States and protecting them in these proceedings.”

“The Secretary-General cannot operate outside of the Hague convention,” Sai said. “That means the Secretary-General has just been exposed as an agent for the United States at the highest level of the court. That’s huge. That’s a political bomb, right there.”

The story goes on. “A formal complaint was received – and I can’t say which country”, Sai said, “but we met with an embassy in the Hague and I was received as an ambassador-at-large for the Hawaiian Kingdom, and they acknowledged receipt of a formal complaint against the Secretary-General.”

“We’re gonna take it to another level now,” Sai said. “Now, we’re taking it to all 122 countries,” also known as the Contracting Party states, whose diplomatic representatives comprise the Administrative Council of the Permanent Court of Arbitration. “And we’re also gonna take it to all 193 countries at the (United Nations).”

Sai says the embassy of the country filing the complaint is asking to “keep things bilateral and confidential” for the time being, as negotiations take place at the international level.

Big Island Video News will be posting the entire presentation given by Sai during Saturday’s Lā Kuʻokoʻa educational conference.

The Martens Clause and War Crimes in Hawai‘i

The term “war crimes” was not coined until 1919 after the First World War ended in Europe. A common misunderstanding is that individuals whose criminal conduct constituted a war crime could only be prosecuted if that conduct arose after 1919. This is not the case because under the principles of international law, war crimes could have been committed since, at least, 1874, when delegates of fifteen European States gathered in Brussels, Belgium, at the request of Russia’s Czar Alexander II, in order to draft an international agreement concerning the laws and customs of war.

Among these fifteen States an agreement was made, but it wasn’t ratified by these States. It did, however, lead to the adoption of the Manual of the Laws and Customs of War at Oxford in 1880. Both the Brussels Declaration and the Oxford Manual formed the basis of the two Hague Conventions of 1899 and 1907.

At the Peace Conference held in The Hague, Netherlands in 1899, countries from across the world met in order to codify what was already accepted as customary international law regarding the rules of warfare and occupation, which is known today as international humanitarian law. The cornerstone of international humanitarian law during the occupation of a State is the duty of the occupying State to administer the laws of the occupied State, which is reflected in Article 43 of the 1899 Hague Convention, II.

Article 43 states, “The authority of the legitimate power having actually passed into the hands of the occupant, the latter shall take all steps in his power to re-establish and insure, as far as possible, public order and safety, while respecting, unless absolutely prevented, the laws in force in the country.” This article is a combination of Article 2, “The authority of the legitimate Power being suspended and having in fact passed into the hands of the occupants, the latter shall take all the measures in his power to restore and ensure, as far as possible, public order and safety,” and Article 3, “With this object he shall maintain the laws which were in force in the country in time of peace, and shall not modify, suspend or replace them unless necessary,”  of the 1874 Brussels Declaration. The Brussels Declaration was referenced in the Preamble of the 1899 Hague Convention, II. Article 43 was restated in the 1907 Hague Convention, IV.

Although the United States signed and ratified both the 1899 and the 1907 Hague Regulations, which post-date the occupation of the Hawaiian Islands, the “text of Article 43,” according to Benvenisti, author of The International Law of Occupation (1993), p. 8, “was accepted by scholars as mere reiteration of the older law, and subsequently the article was generally recognized as expressing customary international law.” Graber, author of The Development of the Law of Belligerent Occupation: 1863-1914 (1949), p. 143, also states, that “nothing distinguishes the writing of the period following the 1899 Hague code from the writing prior to that code.”

As an occupying State, the United States was obligated to establish a military government, whose purpose would be to provisionally administer the laws of the occupied State—the Hawaiian Kingdom—until a treaty of peace or agreement to terminate the occupation has been done. According to United States Army Field Manual 27-10 (1956), sec. 362, “Military government is the form of administration by which an occupying power exercises governmental authority over occupied territory.” The administration of occupied territory is set forth in the Hague Regulations, being Section III of the 1907 HC IV. According to Schwarzenberger, author of “The Law of Belligerent Occupation: Basic Issues,” 30 Nordisk Tidsskrift Int’l Ret (1960), p. 11, “Section III of the Hague Regulations … was declaratory of international customary law.”

Also, consistent with what was generally considered the international law of occupation in force at the time of the Spanish-American War, the “military governments established in the territories occupied by the armies of the United States were instructed to apply, as far as possible, the local laws and to utilize, as far as seemed wise, the services of the local Spanish officials (Munroe Smith, “Record of Political Events,” 13(4) Political Science Quarterly (1898), 745, p. 748).”

Many other authorities also viewed the 1907 Hague Regulations as mere codification of customary international law, which was applicable at the time of the overthrow of the Hawaiian government and subsequent occupation. These include: Gerhard von Glahn, The Occupation of Enemy Territory: A Commentary on the Law and Practice of Belligerent Occupation (1957), 95; David Kretzmer, The Occupation of Justice: The Supreme Court of Israel and the Occupied Territories (2002), 57; Ludwig von Kohler, The Administration of the Occupied Territories, vol. I, (1942) 2; United States Judge Advocate General’s School Tex No. 11, Law of Belligerent Occupation (1944), 2 (stating that “Section III of the Hague Regulations is in substance a codification of customary law and its principles are binding signatories and non-signatories alike”).

The contracting States to the 1899 Hague Convention, II, also recognized that they were codifying existing customary international law and not creating new law. In its Preamble, it states, “Until a more complete code of the laws of war is issued, the High Contracting Parties think it right to declare that in cases not included in the Regulations adopted by them, populations and belligerents remain under the protection and empire of the principles of international law, as they result from the usages established between civilized nations, from the laws of humanity, and the requirements of the public conscience.” This particular provision of the Preamble has come to be known as the Martens clause. Professor von Martens was the Russian delegate at the 1899 Hague Peace Conference, that recommended this provision be placed in the Preamble after the delegates were unable to agree on the status of civilians who took up arms against the occupying State.

The Commission on the Responsibility of the Authors of the War and on Enforcement of Penalties was established at the Paris Peace Conference in 1919 after World War I. Its role was to investigate the allegations of war crimes and recommend who should be prosecuted. In its report (Pamphlet No. 32, p. 18), the Commission identified 32 war crimes, two of which were “usurpation of sovereignty during military occupation” and “attempts to denationalise the inhabitants of occupied territory.”

Although these crimes were not specifically identified in 1899 Hague Convention, II, or the 1907 Hague Convention, IV, the Commission relied solely on the Martens clause in the 1899 Hague Convention, II. In other words, the Commission concluded that the war crimes of “usurpation of sovereignty during military occupation” and “attempts to denationalise the inhabitants of occupied territory” were recognized under principles of international law since at least the 1874 Brussels Declaration.

Under the war crime of usurpation of sovereignty during military occupation, the Commission concluded that from 1915-1918, Bulgaria engaged in criminal conduct when it “Proclaimed that the Serbian State no longer existed, and that Serbian territory had become Bulgarian,” and that “official orders show efforts of Bulgarisation (Pamphlet No. 32, p. 38).” The Commission also concluded Bulgaria committed the following acts of usurpation of sovereignty:

  • Serbian law, courts, and administration ousted
  • Taxes collected under Bulgarian fiscal regime
  • Serbian currency suppressed
  • Public property removed or destroyed, including books, archives and MSS (g., from the National Library, the University Library, Serbian Legation at Sofia, French Consulate at Uskub)
  • Prohibited sending Serbian Red Cross to occupied Serbia

The Commission also concluded that Austrian and German authorities also engaged in the following criminal conduct of usurpation of sovereignty during military occupation from 1915 to 1918 during the occupation of Serbia (Pamphlet No. 32, p. 38).

  • The Austrians suspended many Serbian laws and substituted their own, especially in penal matters, in procedure, judicial reorganization, &c.
  • Museums belonging to the State (g., Belgrade, Detchani) were emptied and the contents taken to Vienna

Under the war crime of attempts to denationalize the inhabitants of occupied territory, the Commission concluded that from 1915-1918, Bulgaria engaged in the following criminal conduct in occupied Serbia (Pamphlet No. 32, p. 39).

  • Efforts to impose their national characteristics on the population
  • Serbian language forbidden in private as well as official relations
  • People beaten for saying “Good morning” in Serbian
  • Inhabitants forced to give their names a Bulgarian form
  • Serbian books banned—were systematically destroyed
  • Archives of churches and law courts destroyed
  • Schools and churches closed, sometimes destroyed
  • Bulgarian schools and churches substituted—attendance at school made compulsory
  • Population forced to be present at Bulgarian national solemnities

The Commission also concluded that Austrian and German authorities also engaged in the following criminal conduct of attempts to denationalize the inhabitants of occupied territory from 1915 to 1918 during the occupation of Serbia (Pamphlet No. 32, p. 39).

  • Austrians and Germans interfered with religious worship, by deportation of priests and requisition of churches for military purposes
  • Interfered with use of Serbian language

The prosecution of German officials and their Allies for war crimes committed during World War I, however, was dismal. Of 5,000 individuals reported for war crimes only 12 were tried and 6 were convicted. Despite this failure, it was the beginning of imposing criminal liability on individuals for violations of international law that eventually became firmly grounded after the Second World War, which led to war crimes legislation in countries who were contracting parties to the 1949 Geneva Conventions, and also the establishment of the International Criminal Court.

Under the principles of international law, officials of the United States were capable of committing war crimes when the Hawaiian Kingdom was first invaded on January 16, 1893 and occupied since January 17 when the Hawaiian government was unlawfully seized. The criminal conduct committed by German, Austrian and Bulgarian officials against Serbia and its people during the First World War (1914-1918) are very similar to the criminal conduct by the United States since January 16, 1893 against the Hawaiian Kingdom and its people.

First Sitting of the International Commission of Inquiry on ‘Iolani Palace Grounds

The International Commission of Inquiry in Incidents of War Crimes in the Hawaiian Islands—The Larsen Case that stems from the Larsen v. Hawaiian Kingdom arbitration held at the Permanent Court of Arbitration from 1999-2001, will be holding its first hearing on the grounds of ‘Iolani Palace at the Kana‘ina Building on January 16 and 17, 2018.

The hearing will be closed to the public, but the proceedings will be live streamed on the Internet. At the core of these proceedings will be the unlawful imposition of American laws that led to the unfair trial, unlawful confinement and pillaging of Lance Paul Larsen, a Hawaiian subject and victim of war crimes committed against him by the United States through its armed force—the State of Hawai‘i. These war crimes were committed in 1999.

These two days will mark 125 years of the American invasion of the Hawaiian Kingdom on January 16th and the conditional surrender of the Hawaiian government by Queen Lili‘uokalani on January 17th calling upon the President of the United States to investigate the unlawful actions taken by its diplomat who ordered the landing of U.S. troops. While in the Palace, the Queen drafted the following conditional surrender to the United States:

After investigating the overthrow of the Hawaiian government, President Cleveland notified Congress on December 18, 1893, that the “military demonstration upon the soil of Honolulu was of itself an act of war.” Cleveland noted “that on the 16th day of January, 1893, between four and five o’clock in the afternoon, a detachment of marines from the United States steamer Boston, with two pieces of artillery, landed at Honolulu. The men, upwards of 160 in all, were supplied with double cartridge belts filled with ammunition and with haversacks and canteens, and were accompanied by a hospital corps with stretchers and medical supplies.” He then concluded that by “an act of war, committed with the participation of a diplomatic representative of the United States and without authority of Congress, the Government of a feeble but friendly and confiding people has been overthrown.”

Under international law, when a Head of State concludes that an act of war was committed by its military on foreign soil it changes the state of affairs from a state of peace to a state of war. According to McDougal and Feliciano, authors of “The Initiation of Coercion: A Multi-temporal Analysis,” 52 American Journal of International Law (1958) p. 247, a state of war “automatically brings about the full operation of all the rules of war and neutrality.” And, according to Venturini, author of “The Temporal Scope of Application of the Conventions,” in Andrew Clapham, Paola Gaeta, and Marco Sassòli (eds), The 1949 Geneva Conventions: A Commentary (2015), p. 52, if “an armed conflict occurs, the law of armed conflict must be applied from the beginning until the end, when the law of peace resumes in full effect.”

Koman, author of The Right of Conquest: The Acquisition of Territory by Force in International Law and Practice (1996), p. 224, states that “the laws of war … continue to apply in the occupied territory even after the achievement of military victory, until either the occupant withdraws or a treaty of peace is concluded which transfers sovereignty to the occupant.” In the Tadić case, decision on the Defense Motion for Interlocutory Appeal on Jurisdiction (Appeals Chamber), October 2, 1995, §70, the International Criminal Court for the Former Yugoslavia indicated that the laws of war—international humanitarian law—applies from “the initiation of … armed conflicts and extends beyond the cessation of hostilities until a general conclusion of peace is reached.”

The political determination by President Cleveland, regarding the actions taken by the military forces of the United States since January 16, 1893, was the same as the political determination by President Roosevelt regarding actions taken by the military forces of Japan on December 7, 1945 in its attack of Pearl Harbor. On December 8, 1941, President Roosevelt notified Congress:

“Yesterday, December 7th, 1941—a date which will live in infamy—the United States of America was suddenly and deliberately attacked by naval and air forces of the Empire of Japan. The United States was at peace with that nation… [and] since the unprovoked and dastardly attack by Japan on Sunday, December 7th, 1941, a state of war has existed between the United States and the Japanese Empire.”

Both political determinations by these Presidents created a “state of war” for the United States under international law. Japan entered into a peace treaty in 1951, which came into effect the following year. However, there is no treaty of peace between the Hawaiian Kingdom and the United States. Consequently, the United States was bound by customary international law to administer the laws of the Hawaiian Kingdom until a peace treaty has been negotiated. After Japan signed a treaty of surrender in 1945, the United States occupied Japan until 1952 whereby a military government was formed, with General MacArthur as its military governor, and who administered Japanese law and not American law.

The deliberate failure by the United States to administer Hawaiian Kingdom law has led to the unlawful imposition of American laws in the Hawaiian Kingdom that formed the basis of the dispute between Lance Larsen, a Hawaiian subject, and the Provisional Government of the Hawaiian Kingdom in Larsen v. Hawaiian Kingdom at the Permanent Court of Arbitration, The Hague, Netherlands. The unlawful imposition of American laws within Hawaiian territory is the war crime of “usurpation of sovereignty” of the occupied State. And the failure to comply with the law of occupation in the administration of Hawaiian Law according to Article 43 of the 1907 Hague Convention, IV, is a war crime as well.

Commission of Inquiry Formed: Professor Schabas Final Commissioner Appointed

Professor William Schabas is the final commissioner to be appointed as a member of the International Commission of Inquiry in Incidents of War Crimes in the Hawaiian Islands—The Larsen Case that stems from the Larsen v. Hawaiian Kingdom arbitration held at the Permanent Court of Arbitration from 1999-2001. Professor Schabas was appointed by the Provisional Government of the Hawaiian Kingdom and Dexter Kaiama, attorney for Lance Larsen, on October 14, 2017.

The Commission of Inquiry has been duly constituted which comprises of Professor Schabas from Middlesex University London and the University of Leiden, Professor Pierre D’Argent from the  University of Louvain and Professor Jean d’Aspremont from the University of Manchester.

In these proceedings, the Provisional Government of the Hawaiian Kingdom is represented by Dr. Keanu Sai, as Agent, Professor Federico Lenzerini, Ph.D., as Deputy-Agent, and Ben Emmerson, QC, from the Matrix Chambers in London, as Counsel.

William Schabas is professor of international law at Middlesex University in London. He is also professor of international criminal law and human rights at the University of Leiden. Professor Schabas is also emeritus professor of human rights law at the National University of Ireland Galway and honorary chairman of the Irish Centre for Human Rights, invited visiting scholar at the Paris School of International Affairs (Sciences Politiques), honorary professor at the Chinese Academy of Social Sciences in Beijing, visiting fellow of Kellogg College of the University of Oxford, visiting fellow of Northumbria University, and professeur associé at the Université du Québec à Montréal. Prof. Schabas is a ‘door tenant’ at the chambers of 9 Bedford Row, in London.

Professor Schabas holds BA and MA degrees in history from the University of Toronto and LLB, LLM and LLD degrees from the University of Montreal, as well as honorary doctorates in law from several universities. He is the author of more than twenty books dealing in whole or in part with international human rights law, including: The Universal Declaration of Human Rights: travaux préparatoires (Cambridge: Cambridge University Press, 2013); Unimaginable Atrocities, Justice, Politics and Rights at the War Crimes Tribunals (Oxford: Oxford University Press, 2012), The International Criminal Court: A Commentary on the Rome Statute (Oxford: Oxford University Press, 2010), Introduction to the International Criminal Court (Cambridge: Cambridge University Press, 2011, 4th ed.), Genocide in International Law (Cambridge: Cambridge University Press, 2nd ed., 2009) and The Abolition of the Death Penalty in International Law (Cambridge, Cambridge University Press, 2003, 3rd ed.). He has also published more than 350 articles in academic journals, principally in the field of international human rights law and international criminal law. His writings have been translated into Russian, German, Spanish, Portuguese, Chinese, Japanese, Arabic, Persian, Turkish, Nepali and Albanian.

Professor Schabas is editor-in-chief of Criminal Law Forum, the quarterly journal of the International Society for the Reform of Criminal Law.He is President of the Irish Branch of the International Law Association and chair of the International Institute for Criminal Investigation. From 2002 to 2004 he served as one of three international members of the Sierra Leone Truth and Reconciliation Commission. Professor Schabas has worked as a consultant on capital punishment for the United Nations Office of Drugs and Crime, and drafted the 2010 and 2015 reports of the Secretary-General on the status of the death penalty.

Professor Schabas was named an Officer of the Order of Canada in 2006. He was elected a member of the Royal Irish Academy in 2007. He has been awarded the Vespasian V. Pella Medal for International Criminal Justice of the Association internationale de droit pénal, and the Gold Medal in the Social Sciences of the Royal Irish Academy.

The Commission of Inquiry will hold its first hearing in Honolulu on January 16 and 17, 2018, which marks the 125th year of the United States’ invasion on the 16th, the illegal overthrow of the Hawaiian government on the 17th, and the ensuing prolonged occupation since. According to Article III of the Special Agreement to form an International Commission of Inquiry:

“The Commission is requested to determine: First, what is the function and role of the Government of the Hawaiian Kingdom in accordance with the basic norms and framework of international humanitarian law; Second, what are the duties and obligations of the Government of the Hawaiian Kingdom toward Lance Paul Larsen, and, by extension, toward all Hawaiian subjects domiciled in Hawaiian territory and abroad in accordance with the basic norms and framework of international humanitarian law; and, Third, what are the duties and obligations of the Government of the Hawaiian Kingdom toward Protected Persons who are domiciled in Hawaiian territory and those Protected Persons who are transient in accordance with the basic norms and framework of international humanitarian law.”

Law Across the Sea: Larsen v. Hawaiian Kingdom

On October 9, 2017, Dr. Keanu Sai was interviewed on a show “Law Across the Sea” hosted by Mark Shklov who is a practicing attorney. The interview centered on the Larsen v. Hawaiian Kingdom arbitration and the International Commission of Inquiry in Incidents of War Crimes in the Hawaiian Islands—The Larsen Case that stemmed from the arbitration case.

Professor D’Argent Second Commissioner Appointed

Professor Pierre D’Argent is the second of three commissioners to be appointed as a member of the International Commission of Inquiry in Incidents of War Crimes in the Hawaiian Islands—The Larsen Case that stems from the Larsen v. Hawaiian Kingdom arbitration held at the Permanent Court of Arbitration from 1999-2001. Professor D’Argent was appointed by the Provisional Government of the Hawaiian Kingdom and Dexter Kaiama, attorney for Lance Larsen, on October 8, 2017.

In these proceedings, the Provisional Government of the Hawaiian Kingdom is represented by Dr. Keanu Sai, as Agent, Professor Federico Lenzerini, Ph.D., as Deputy-Agent, and Ben Emmerson, QC, from the Matrix Chambers in London, as Counsel.

Pierre D’Argent is full professor at the University of Louvain in Belgium, where he holds the Public International Law Chair. He is also a guest professor at Leiden University in the Netherlands. He is Associate Member of the Institut de droit international and member of the Brussels Bar, acting as special counsel to Foley Hoag LLP. He specializes in advising and representing states before international courts and tribunals. He appeared as counsel before the International Court of Justice and later served the court as first secretary.

He has published extensively in matters relating to international law and has lectured in many universities around the world. He has been director of studies at The Hague Academy of International Law and has taught a specialized course at the Academy. He has contributed to the UN Audiovisual Library of International Law.

The Commission of Inquiry will hold its first hearing in Honolulu on January 16 and 17, 2018, which marks the 125th year of the United States’ invasion on the 16th, the illegal overthrow of the Hawaiian government on the 17th, and the ensuing prolonged occupation since. According to Article III of the Special Agreement to form an International Commission of Inquiry:

“The Commission is requested to determine: First, what is the function and role of the Government of the Hawaiian Kingdom in accordance with the basic norms and framework of international humanitarian law; Second, what are the duties and obligations of the Government of the Hawaiian Kingdom toward Lance Paul Larsen, and, by extension, toward all Hawaiian subjects domiciled in Hawaiian territory and abroad in accordance with the basic norms and framework of international humanitarian law; and, Third, what are the duties and obligations of the Government of the Hawaiian Kingdom toward Protected Persons who are domiciled in Hawaiian territory and those Protected Persons who are transient in accordance with the basic norms and framework of international humanitarian law.”