Who Determines a State of War Exists in International Law?

There has been some confusion as to who, in particular, determines whether a state of war exists for international law purposes. Is it a decision made by army commanders, international courts, or the heads of state? To answer this question we first need to understand the term war. By definition, war is a violent contention between two or more countries, called States, which is allowable under international law.

War as it is understood today is different from what it was understood in the nineteenth century when the Hawaiian Kingdom government was unlawfully overthrown by United States armed forces on January 17, 1893. According to Professor Brownlie, “The right of war, as an aspect of sovereignty, which existed in the period before 1914, subject to the doctrine that war was a means of last resort in the enforcement of legal rights, was very rarely asserted either by statesmen or works of authority without some stereotyped plea to a right of self-preservation, and of self-defence, or to necessity or protection of vital interests, or merely alleged injury to rights or national honour and dignity.” (Ian Brownlie, International Law and the Use of Force by States (1963) 41).

In the absence of a system of dispute resolution, such as today’s Permanent Court of Arbitration (est. 1899) or the International Court of Justice (est. 1945), war was seen as a form of judicial procedure, a litigation of sorts between nations that involved lethal punishment. It was a means by which one State could obtain redress for wrongs committed against it. War, however, was considered a course of last resort.

“It was generally thought that a state of war came into existence between two countries if, and only if, one of these countries made it clear that it regarded itself as being in a state of war,” says Judge Greenwood. (Christopher Greenwood, “Scope of Application of Humanitarian Law,” in Dieter Fleck (ed), The Handbook of the International Law of Military Operations (2nd ed., 2008) 45). Representatives of countries in international law are Heads of Governments, whether they are Presidents, Monarchs or Prime Ministers. Any political determination made by these Heads of States that their countries are in a state of war is conclusive. In the case of the United States it would be the President, and in the case of the Hawaiian Kingdom it would be the Monarch.

International law differentiates a “declaration of war” from a “state of war.” According to McNair and Watts, “the absence of a declaration…will not of itself render the ensuing conflict any less a war.” In other words, since a state of war is based upon concrete facts of military action there is no requirement for a formal declaration of war to be made. In 1946, a United States Federal Court had to determine whether a United States naval captain’s life insurance policy, which excluded coverage if death came about as a result of war, covered his death during the Japanese attack of Pearl Harbor on December 7, 1945. The family of the captain was arguing that the United States was not a war at the time of his death because the Congress did not declare war against Japan until the following day. The Court denied the family’s claim and determined, “that the formal declaration by the Congress on December 8th was not an essential prerequisite to a political determination of the existence of a state of war commencing with the attack on Pearl Harbor.” (New York Life Ins. Co. v. Bennion, 158 F.2d 260 (C.C.A. 10th, 1946), 41 American Journal of International Law (1947), 682).

On the 100th anniversary of the United States unlawful overthrow of the Hawaiian Kingdom government in 1893, the United States Congress enacted a joint resolution offering an apology. Of significance in the resolution was a particular “whereas” clause, which stated “Whereas, in a message to Congress on December 18, 1893, President Grover Cleveland reportedly fully and accurately on the illegal acts of the conspirators, described such acts as an ‘act of war, committed with the participation of a diplomatic representative of the United States and without authority of Congress, and acknowledged that by such acts the government of a peaceful and friendly people was overthrown.” (Annexure 2Larsen v. Hawaiian Kingdom, 119 International Law Reports (2001) 612).

At first read, it would appear that the “conspirators” were the subjects that committed the “act of war,” but this is misleading. First, under international law, only a country can commit an “act of war”, whether through its military and/or its diplomats; and, second, under municipal laws, which are the laws applicable to a particular country, conspirators within a country could only commit treason not “acts of war.” These two concepts are reflected in the terms coup de main and coup d’état. The former is a successful invasion by an outside military force, while the former is a successful internal revolt, which was also referred to in the nineteenth century as a revolution. According to the United States Department of Defense, a coup de main is an “offensive operation that capitalizes on surprise and simultaneous execution of supporting operations to achieve success in one swift stroke.” (U.S. Department of Defense, The Dictionary of Military Terms (2009)).

In a petition to President Cleveland on December 27, 1893, from the Hawaiian Patriotic League, its leadership, comprised of Hawaiian statesmen and lawyers, clearly articulated the difference between a “revolution” and a “coup de main,” and, as such, an international crime was committed. The petition read:

“Last January, a political crime was committed, not only against the legitimate Sovereign of the Hawaiian Kingdom, but also against the whole of the Hawaiian nation, a nation who, for the past sixty years, had enjoyed free and happy constitutional self-government. This was done by a coup de main of U.S. Minister Stevens, in collusion with a cabal of conspirators, mainly faithless sons of missionaries and local politicians angered by continuous political defeat, who, as revenge for being a hopeless minority in the country, resolved to ‘rule or ruin’ through foreign help. The facts of this ‘revolution,’ as it is improperly called, are now a matter of history.” (Petition of the Hawaiian Patriotic League to President Cleveland (Dec. 27, 1893), The Executive Documents of the House of Representatives (1895), 1295).

Whether by chance or design, the 1993 Congressional Apology Resolution did not accurately reflect what President Cleveland stated in his message to Congress on December 18, 1893. When Cleveland stated that the “military demonstration upon the soil of Honolulu was of itself an act of war,” he was referring to United States armed forces and not to any of the conspirators. 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.” Clearly the act of war was committed by the armed forces of the United States. The landing, however, was just the beginning stage of a coup de main with the ultimate goal of seizing control of the Hawaiian government.

As part of the plan, the U.S. diplomat, John Stevens, would prematurely recognize the small group of insurgents on January 17th as if they were a successful revolution thereby giving it de facto status. International law, however, provides the parameters by which a revolution is deemed to have been successful. Foreign States would acknowledge success when an insurgency has secured complete control of all governmental machinery, no opposition by the lawful government, and has the acquiescence of the national population. According to Professor Lauterpacht, “So long as the revolution has not been successful, and so long as the lawful government…remains within national territory and asserts its authority, it is presumed to represent the State as a whole.” (E. Lauterpacht, Recognition in International Law (1947) 93). With full knowledge of what constitutes a successful revolution, Cleveland provided a blistering indictment:

“When our Minister recognized the provisional government the only basis upon which it rested was the fact that the Committee of Safety…declared it to exist. It was neither a government de facto nor de jure. That it was not in such possession of the Government property and agencies as entitled it to recognition is conclusively proved by a note found in the files of the Legation at Honolulu, addressed by the declared head of the provisional government to Minister Stevens, dated January 17, 1893, in which he acknowledges with expressions of appreciation the Minister’s recognition of the provisional government, and states that it is not yet in the possession of the station house (the place where a large number of the Queen’s troops were quartered), though the same had been demanded of the Queen’s officers in charge.” (Annexure 1—President Cleveland’s message to the Senate and House of Representatives dated 18 December 1893, Larsen v. Hawaiian Kingdom, 119 International Law Reports (2001) 605).

“Premature recognition is a tortious act against the lawful government,” explains Professor Lauterpacht, which “is a breach of international law.” (Ibid, 95). And according to Stowell, a “foreign state which intervenes in support of [insurgents] commits an act of war against the state to which it belongs, and steps outside the law of nations in time of peace.” (Ellery C. Stowell, Intervention in International Law (1921) 349, n. 75). Furthermore Stapleton states, “Of all the principles in the code of international law, the most important—the one which the independent existence of all weaker States must depend—is this: no State has a right FORCIBLY to interfere in the internal concerns of another State.” (Augustus Granville Stapleton, Intervention and Non-Intervention (1866) 6).

Cleveland then explained to the Congress the egregious effects these acts of war had upon the Hawaiian government and its apprehension of a “cabal of conspirators” who committed high treason.

“Nevertheless, this wrongful recognition by our Minister placed the Government of the Queen in a position of most perilous perplexity. On the one hand she had possession of the palace, of the barracks, and of the police station, and had at her command at least five hundred fully armed men and several pieces of artillery. Indeed, the whole military force of her kingdom was on her side and at her disposal, while the Committee of Safety, by actual search, had discovered that there were but very few arms in Honolulu that were not in the service of the Government. In this state of things 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. Accordingly, some hours after the recognition of the provisional government by the United States Minister, the palace, the barracks, and the police station, with all the military resources of the country, were delivered up by the Queen upon the representation made to her that her cause would thereafter be reviewed at Washington, and while protesting that she surrendered to the superior force of the United States, whose Minister had caused United States troops to be landed at Honolulu and declared that he would support the provisional government, and that she yielded her authority to prevent collision of armed forces and loss of life and only until such time as the United States, upon the facts being presented to it, should undo the action of its representative and reinstate her in the authority she claimed as the constitutional sovereign of the Hawaiian Islands.” (Annexure 1—President Cleveland’s message to the Senate and House of Representatives dated 18 December 1893, Larsen v. Hawaiian Kingdom, 119 International Law Reports (2001) 606).

According to Professor Wright, “War begins 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.” Quincy Wright, “Changes in the Concept of War,” 18 American Journal of International Law (1924) 758). In his review of customary international law in the nineteenth century, Professor Brownlie concluded, “that in so far a ‘state of war’ had any generally accepted meaning it was a situation regarded by one or both parties to a conflict as constituting a ‘state of war.’” (Brownlie, 38).

Cleveland concluded by an “act of war…the Government of a feeble but friendly and confiding people has been overthrown.”(Annexure 1—President Cleveland’s message to the Senate and House of Representatives dated 18 December 1893, Larsen v. Hawaiian Kingdom, 119 International Law Reports (2001) 608). More importantly, Cleveland referred to the Hawaiian people as “friendly and confiding,” not “hostile.” This is a classic case of where the United States President admits an unjust war, but a state of war nevertheless. In the absence of a treaty or agreement to end the state of war that has ensued for over a century, international humanitarian law regulates the Hawaiian situation.

These are the very matters that will come before the International Commission of Inquiry: Incidents of War Crimes in the Hawaiian Islands—The Larsen Case.

From a “State of Peace” to a “State of War” – Hawai‘i and the United States since 1893

As the Tribunal at the Permanent Court of Arbitration in Larsen v. Hawaiian Kingdom pointed out in, “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.” (Award, Larsen v. Hawaiian Kingdom, 119 International Law Reports (2001) 581). As an independent State, the Hawaiian Kingdom was a member of the Family of Nations along with other independent States including the United States. According to Westlake in 1894, they comprised, “First, all European States […] Secondly, all American States […] Thirdly, a few Christian States in other parts of the  world, as the Hawaiian Islands, Liberia and the Orange Free State.” (John Westlake, Chapters on the Principles of International Law (1894) 81).

In 1893, there were 44 independent and sovereign States in the Family of Nations: Argentina, Austria-Hungary, Belgium, Bolivia, Brazil, Bulgaria, Chili, Colombia, Costa Rica, Denmark, Ecuador, France, Germany, Great Britain, Greece, Guatemala, Hawaiian Kingdom, Haiti, Honduras, Italy, Liberia, Lichtenstein, Luxembourg, Netherlands, Mexico, Monaco, Montenegro, Nicaragua, Orange Free State that was later annexed by Great Britain in 1900, Paraguay, Peru, Portugal, Romania, Russia, San Domingo, San Salvador, Serbia, Spain, Sweden-Norway, Switzerland, Turkey, United States of America, Uruguay, and Venezuela. In 1945, there were 45, and today there are 193.

From a State of Peace to a State of War—No Middle Ground

International law, which is law between nations, formed the protocol and relations between these member States. “Traditional international law was based upon a rigid distinction between the state of peace and the state of war,” states Judge Greenwood (Christopher Greenwood, “Scope of Application of Humanitarian Law,” in Dieter Fleck (ed), The Handbook of the International Law of Military Operations (2nd ed., 2008) 45). “Countries were either in a state of peace or a state of war; there was no intermediate state.” (Ibid.) This is also reflected by the fact that the renowned jurist of international law, Lassa Oppenheim, separates his treatise on International Law into two volumes, Vol. I—Peace, and Vol. II—War and Neutrality.

Throughout the nineteenth century, the Hawaiian Kingdom was not only independent and sovereign, but also a neutral State explicitly recognized by treaties with Germany, Spain and Sweden-Norway. The Hawaiian Kingdom enjoyed a state of peace with all States. This status of affairs, however, was interrupted by the United States when the state of peace was transformed to a state of war that began on January 16, 1893. On January 17, 1893, Queen Lili‘uokalani, the Executive Monarch of the Hawaiian Kingdom, made the following protest and a conditional yielding of her authority to the President of the United States in response to military action taken against the Hawaiian government by order of the U.S. resident diplomat John Stevens. The Queen’s protest 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 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.” (Annexure 2, Larsen v. Hawaiian Kingdom, 119 International Law Reports (2001) 612).

Under international law, the landing of American troops without the consent of the Hawaiian government was an act of war. But in order for an act of war to transform the status of affairs to a state of war, the act must be unlawful under international law. In other words, an act of war would not change the status of affairs to a state of war from that of peace if the action were legal under international law. According to Professor Wright, “An act of war is an invasion of territory…and so normally illegal. Such an act if not followed by war gives grounds for a claim which can be legally avoided only by proof of some special treaty or necessity justifying the act.” (Quincy Wright, “Changes in the Concept of War,” 18 American Journal of International Law (1924), 756).

Military action in a foreign State considered lawful under international law, includes proportionate reprisals in response to another State’s action just short of all out war, and military actions taken to protect its citizenry in the foreign State. Furthermore, the act of war must have been intentional—animo belligerendi, to overthrow the government of the invaded State. As international law is a law between States, which derives from agreements, the claim made by Queen Lili‘uokalani that United States troops unlawfully invaded the kingdom had to be acknowledged by the President of the United States as true. In her protest she called upon the President to investigate the facts and then “undo the action of its representatives and reinstate me in the authority which I claim as the constitutional sovereign of the Hawaiian Islands.” In international law, this is called restitutio in integrum.

After ten months of investigating the overthrow, President Cleveland notified the Congress on December 18, 1893, that the “military demonstration upon the soil of Honolulu was of itself and act of war” that could not be justified under international law as “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.” (Annexure 1—President Cleveland’s message to the Senate and House of Representatives dated 18 December 1893, Larsen v. Hawaiian Kingdom, 119 International Law Reports (2001) 604).

The President then 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 been overthrown.” (Ibid, 608). He notified the Congress that he initiated negotiations with the Queen “to aid in the restoration of the status existing before the lawless landing of the United States forces at Honolulu on the 16th of January last, if such restoration could be effected upon terms providing for clemency as well as justice to all parties concerned.” (Ibid, 610). What Cleveland did not know at the time of his message to the Congress was that the Queen, on the very same day in Honolulu, accepted the conditions for settlement in an attempt to return to a state of peace. The executive mediation began on November 13, 1893 between the Queen and U.S. diplomat Albert Willis. The President was not aware of the agreement until January 12, 1894.

Despite being unaware of the agreement to settle, President Cleveland’s political determination was an acknowledgment that the United States was in a state of war with the Hawaiian Kingdom since the invasion occurred on January 16, 1893, as stated by the Queen in her protest on January 17, 1893. International law defines war as “a contention between States for the purpose of overpowering each other.” (L. Oppenheim, International Law, vol. II—War and Neutrality (3rd ed., 1921) 74).

Once a state of war ensued between the Hawaiian Kingdom and the United States, “the law of peace ceased to apply between them and their relations with one another became subject to the laws of war, while their relations with other states not party to the conflict became governed by the law of neutrality.” (Greenwood, 45). This outbreak of a state of war between the Hawaiian Kingdom and the United States would “lead to many rules of the ordinary law of peace being superseded…by rules of humanitarian law.” (Ibid, 46).

A state of war “automatically brings about the full operation of all the rules of war and neutrality.” (Myers S. McDougal, “The Initiation of Coercion: A Multi-temporal Analysis,” 52 American Journal of International Law (1948) 247). And according to Venturini, “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.” (Gabriella Venturini, “The Temporal Scope of Application of the Conventions,” in Andrew Clapham, Paola Gaeta, and Marco Sassòli (eds), The 1949 Geneva Conventions: A Commentary (2015), 52). Only by a treaty or agreement between the Hawaiian Kingdom and the United States could a state of peace be restored, without which a state of war ensues.

In order to transform the state of war to a state of peace an attempt was made by executive agreement entered into between President Cleveland, by his resident diplomat Albert Willis, and Queen Lili‘uokalani in Honolulu on December 18, 1893 (David Keanu Sai, “A Slippery Path Towards Hawaiian Indigeneity: An Analysis and Comparison between Hawaiian State Sovereignty and Hawaiian Indigeneity and Its Use and Practice Today,” 10 Journal of Law and Social Challenges (2008) 119-127). Cleveland, however, was unable to carry out his duties and obligations to restore the situation that existed before the unlawful landing of American troops due to political wrangling in the Congress. The state of war continued.

It is a common misconception that only through a declaration of war by the Congress could a state of war exist for the United States. A Federal court in 1946, however, dispensed with this theory in New York Life Ins. Co. v. Bennion. The Court stated, “it cannot be denied that the acts and conduct of the President, acting in furtherance of his constitutional authority and duty, would constitute a political determination of a state of war of which the courts would take judicial notice. We can discern no demonstrable difference in the supposition and the actual facts, and we therefore conclude that the formal declaration by the Congress on December 8th was not an essential prerequisite to a political determination of the existence of a state of war commencing with the attack on Pearl Harbor [on December 7th].” (New York Life Ins. Co. v. Bennion, 158 F.2d 260 (C.C.A. 10th, 1946), 41 American Journal of International Law (1947), 682).

Therefore, the conclusion reached by President Cleveland that an act of war had been committed by the United States was a “political determination of the existence of a state of war,” and that a formal declaration of war by the Congress was not essential. The “political determination” by President Cleveland regarding the actions taken by the military forces of the United States on 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. Both “political determinations,” being acts of war, created a state of war for the United States. A declaration of war by the Congress was not essential in both situations.

The Duty of Neutrality by Third States

When the President declared that a state of war existed by an act of war committed by the American military in his message to Congress, all of the other 42 States were under a duty of neutrality. “Since neutrality is an attitude of impartiality, it excludes such assistance and succour to one of the belligerents as is detrimental to the other, and, further such injuries to the one as benefit the other.” (L. Oppenheim, International Law, vol. II—War and Neutrality (3rd ed., 1921) 401).

The duty of a neutral State, not a party to the conflict, “obliges him, in the first instance, to prevent with the means at his disposal the belligerent concerned from committing such a violation,” e.g. to deny recognition of a puppet government unlawfully created by an act of war. (Ibid, 496). Twenty of these States violated their obligation of impartiality by recognizing the so-called Republic of Hawai‘i, a United States puppet government created by an act of war committed by the United States on January 17, 1893. These States include:

“If a neutral neglects this obligation, he himself thereby commits a violation of neutrality, for which he may be made responsible by a belligerent who has suffered through the violation of neutrality committed by the other belligerent and acquiesced in by him.” (Ibid, 497). The recognition of the so-called Republic of Hawai‘i did not create any legality or lawfulness on the part of the puppet regime, but rather is the indisputable evidence that these States’ violated their duty to be neutral. Diplomatic recognition of governments occurs during a state of peace and not during a state of war, unless providing recognition of belligerency status. The recognitions were not recognizing the Republic as a belligerent in a civil war with the Hawaiian Kingdom, but rather under the false pretense that the Republic succeeded in a revolution and therefore was the new government of Hawai‘i during a state of peace. As such, their relationship with the Hawaiian Kingdom has since been regulated by humanitarian law.

State of War—No Question

The state of war has ensued to date, only to be concealed by a false narrative promoted by the United States government that Hawai‘i was purportedly annexed in 1898 through American legislation (Sai, Slippery Path, 84-94), coupled with a formal policy of the war crime of denationalizing school children beginning in 1906. The purpose of the policy was to obliterate the national consciousness of the Hawaiian Kingdom in the minds of the children and replace it with American patriotism. Within three generations, the effect of the denationalization was nearly complete.

The Hawaiian Kingdom has been in a “legal” state of war with the United States for over a century and the application of the laws of occupation and applicable humanitarian law has not diminished. Without a treaty between the Hawaiian Kingdom and the United States to return the state of affairs back to a state of peace, the state of war continues. As Judge Greenwood stated, “Countries were either in a state of peace or a state of war; there was no intermediate state.”

This is the longest state of war ever to have taken place in the history of international relations, which has created a humanitarian crisis of unimaginable proportions. International humanitarian laws apply, which includes customary international law regarding war and neutrality, 1907 Hague Regulations and the 1949 Geneva Conventions.

International Commission of Inquiry: Incidents of War Crimes in the Hawaiian Islands – The Larsen Case

Proceedings to establish an International Commission of Inquiry under Part III of the 1907 Hague Convention for the Pacific Settlement of International Disputes stemming from the Larsen v. Hawaiian Kingdom arbitration held under the auspices of the Permanent Court of Arbitration (1999-2001) were initiated under a Special Agreement dated January 19, 2017. The title for these proceedings is “Incidents of War Crimes in the Hawaiian Islands—The Larsen Case.”

On March 3, 2017, Professor Francesco Francioni was designated by the parties by a supplemental agreement to be the appointing authority, whose function is to form the International Commission of Inquiry. Professor Francioni is an ad hoc judge on the International Tribunal for the Law of the Sea as well as serving as one of five arbitrators in a dispute under the auspices of the Permanent Court of Arbitration, The “Enrica Lexie” Case (Italy v. India). The parties notified the appointing authority that the prospective commissioners shall not United States citizens; must have command of the English language; have expertise in international humanitarian law; and include, at least, one woman.

Article I of the Special Agreement was amended by the parties on March 26, 2017 to allow the Commission to designate a Secretary General to serve as a registry, and for the President of the Commission to work with the Secretary General in order to determine a location for the sitting of the Commission. The only stipulation by the parties is that the sitting shall be in Europe.

Big Island Video News: Trump Inherits Hawaiian Kingdom War Crimes, Scholar Says

HAWAII (BIVN) – “Violations of international law of unimaginable proportions,” Dr. Keanu Sai says, adding Donald Trump “is responsible – as the president – for how the military operates here.”

This is part 3 of our story trilogy presenting a recent video interview with the fascinating – and controversial – political scientist, Dr. David Keanu Sai.

HAWAII – President Donald Trump’s first weeks in office have been a whirlwind of executive action and controversy. From the Oval Office, Trump’s social media tweets – once seen as inconsequential entertainment – can now carry international ramifications. How the new president handles it all remains to be seen. But he hasn’t minced words about the situation his administration is dealing with.

“To be honest, I inherited a mess,” President Trump said during a recent press conference. “It’s a mess, at home and abroad. A mess.”

Dr. Keanu Sai agrees with him, to some extent.

“They’ve inherited war crimes,” Sai said during a recent interview with Big Island Video News. “He did. He inherited it. And he is the successor of presidents since 1893 who have inherited war crimes committed in Hawaiʻi. Violations of international law of unimaginable proportions.”

Sai earned his Ph.D. from the University of Hawaii for his work on proving the continued existence of the Hawaiian Kingdom. Following the illegal overthrow of Queen Liliʻuokalani in 1893, there was never a legal treaty of annexation, Sai says. According to the political scientist, Hawaii is under a prolonged and illegal occupation, under international humanitarian law. Since the U.S. has not upheld the laws of the occupied state, the issue of war crimes under the Geneva Conventions comes into play.

Sai understands why many people don’t see it that way.

The fact that people in Hawaiʻi are clueless as to what Hawaiʻi was in the 19th century is the evidence of the crime. My great-grandparents were born in the Kingdom in 1880. I know nothing about the Kingdom. That wasn’t because I just didn’t know it. It’s because no one taught me. People did not teach anything because everything had to be Americanized. So, we’re the evidence of the crime. For Donald Trump and his administration, he really has nothing to do with Hawaiʻi. Nothing. Because he’s a president in America. The entities that have everything to do with our situation is the United States Pacific Command and the military here, boots on the ground. Because we’re in a sovereign country. We’re a separate country. Donald Trump is in another separate country. But he is responsible – as the president – for how the military operates here. But he also inherited all the liability of the previous presidents.”

– Dr. Keanu Sai, Feb. 2017 BIVN interview

 

Sai and Trump once shared similar, highly controversial positions on another presidential topic, although they arrived at their conclusions for different reasons. At the same time Donald Trump was trying to prove his predecessor in the White House was not born in the United States, Dr. Sai was lecturing on his own version of the “birther” movement.

Donald Trump, he was the birther man, right? I smiled when he first came out with ‘Barack Obama was not born in the United States’. I actually gave a presentation at NYU – also at Harvard – and it was titled ‘Why the birthers are right for all the wrong reasons.’ Barack Obama was born in Hawaiʻi. He was born at Kapiolani Hospital just about three years before I was born there. I was born in 1964. I believe he was born in 1961. He was not born in the United States, period. But I’m not saying he’s not an American. His mom was an American, so he’s an American citizen. There’s no doubt there. But he’s not natural born. Now, not being natural-born affects your status as a president, because under Article 2 of the United States Constitution the president and vice president have to be natural-born citizens. He wasn’t natural born. If he wasn’t natural-born, then he wasn’t president. If he wasn’t president, what was his administration for eight years? But see, that’s not my problem. That’s the United States’ problem.”

– Dr. Keanu Sai, Feb. 2017 BIVN interview

 

Does Sai believe President Trump has been fully apprised of the political situation in Hawaiʻi? He can only guess.

I would think (Trump’s administration) might want to keep this from (Trump), because he might use that to say he was correct against Barack Obama. The intelligence agencies fully apprised, I know, George W. Bush and Barack Obama. No doubt. Because there were international proceedings were taking place. Now, whether or not the intelligence group is advising Donald Trump about this? I don’t know. I would think they wouldn’t want to tell them because he’s going to take it out of context. Because, you’re talking about a powder keg here that can blow; economically, politically and criminally.”

– Dr. Keanu Sai, Feb. 2017 BIVN interview

 

Sai has been trying to educate the public on this subject for years, chronicling his work on the Hawaiian Kingdom blog. His has traveled the world, lecturing on this topic at the University of Cambridge, filing complaints and entering into proceedings at The Hague. He has recently initiated fact finding Commission of Inquiry as provided for by the Permanent Court of Arbitration, which arose out of the Larsen v Hawaiian Kingdom case.

My job is to fix this problem. There is no doubt that the (U.S.) State of Hawaii – although they’re illegal – they’re in control. To use a metaphor: I’m not about to have this plane called “Hawaiian” airlines, who’s flying high in the sky, disguised as if it’s “American” airlines, painted red white and blue. That paint is chipping off … This is Hawaiian airlines. We are still not in control of our plane but it is our plane. The Kingdom’s still exists. We’re not in control of it. I have to be careful that this plane doesn’t take a nosedive – economically, legally and politically – by people who are incompetent. So, I take every step very seriously to address this problem.”

– Dr. Keanu Sai, Feb. 2017 BIVN interview

 

Sai’s attempt to avoid a “nosedive” was recently thrust into the media spotlight. With the spending practises of the Office of Hawaiian Affairs under scrutiny, Sai’s contract to produce a manuscript on land tenure in Hawaii has become a controversy. The manuscript was never submitted for publication, although Sai was still paid $70,000 by OHA.

Sai even called one of the news stories on the controversial contract “fake news”. Something else he has in common with the Donald.

That goes to the heart as to why I refused – at this stage – to submit this manuscript that implicates all these people for war crimes, until I take the necessary steps to ensure that this plane doesn’t crash. That’s what’s important to me. Whether people believe it or not, it doesn’t matter. Can you falsify it? I’m not asking you to agree. And that’s my background. This is my approach as to how I do things. I take a very practical approach. I’m a retired (military captain). I still am an officer. These are some very hard issues and not everybody can grasp it. But there is no doubt that i know it and I’m responsible for it, because I know it. And that that’s what’s important.”

– Dr. Keanu Sai, Feb. 2017 BIVN interview

Big Island Video News: Larsen v. Hawaiian Kingdom Case Explained

HILO (BIVN) – In a video interview, Dr. Keanu Sai details the Permanent Court of Arbitration in Geneva in 2001, and how the proceedings led to a Commission of Inquiry.

HILO, Hawaii – As the awareness builds over an international fact finding proceeding, there is a renewed interest in the Larsen v the Hawaiian Kingdom case that years ago led to the present day Commission of Inquiry.

Dr. Keanu Sai, a well known political scientist, represented the Hawaiian Kingdom in the tribunal convened at the Permanent Court of Arbitration at The Hague. In the video above, Sai details the proceedings and why he says they were so important. He also explains how the 2001 arbitration led to the Commission of Inquiry.

On January 24, 2017 the International Bureau of the PCA was notified by joint letter to initiate the fact finding proceedings. A $10,000 advance deposit has already been made towards the costs.

In recent weeks, Dr. Federico Lenzerini – a professor of international law from the University of Siena Law Department in Italy – has been making the rounds with Sai in Hawaii, building awareness of the fact-finding inquiry by filming TV interviews and even making a large presentation at the Kamehameha School Kapalama Campus on January 30.

Big Island Video News: Keanu Sai Responds To OHA Contract Report

HILO (BIVN) – Sai, a Ph.D. of political science from the University of Hawaii, says there is much more to the story of his unfulfilled contract with the Office of Hawaiian Affairs to produce a manuscript on Hawaii land title.

HILO, Hawaii – Political scientists Dr. Keanu Sai is objecting to his portrayal in a recent TV news story that reported on a contract he entered into with the embattled Office of Hawaiian Affairs to produce a manuscript on land tenure in Hawaii.

On February 14, Hawaii News Now reported that OHA – currently under pressure to conduct an audit of administrative expenditures – paid $70,000 to a “former felon at the center of the Hawaiian sovereignty debate for a report he never produced,” according to internal agency documents obtained by Hawaii News Now.

The news story reported “Sai said he dropped the study because it would have justified the current land title system, which he believes is illegal,” and that “he’s not returning the money to OHA.”

After the story aired, Sai fired back with an email to reporter Rick Daysog that he says he blind carbon copied to over 300 other recipients.

“I am very disappointed with your story on Hawai‘i News Now that sought to portray me as a fraud,” Sai wrote. “It was very distasteful, disrespectful and irresponsible.”

Sai said the report failed to state his reasoning for not submitting the manuscript for publication. “I’m protecting State of Hawai‘i officials, which includes the OHA Trustees, from criminal liability for committing the specific crimes of pillaging land revenues under international humanitarian law,” Sai wrote. “I will submit it for publication when I am satisfied that I’ve done all that I can to mitigate the criminal liability of State of Hawai‘i officials, even when they don’t believe I’m trying to help them.”

Sai was particularly unhappy with the reference to his felony conviction under Perfect Title, which he wrote about in detail in his email to Daysog.

“When you brought up Perfect Title Company in the interview, I told you that the attacks I received in the 1990s did not address historical facts and laws that apply to land titles in its title reports that the company produced, but rather the slandering of my name and reputation by constantly saying I was advising people to not pay their mortgages. I never did. In fact, I told you that a mortgage is a “security instrument” or “collateral” that secures the repayment of a loan. The loan is what you pay and not a mortgage. With or without a mortgage the borrower still owes the outstanding money left on the loan. As such, Perfect Title Company was advising its clients that they had title insurance to cover their debt owed under the loan. This is a called a lender’s title insurance policy that the lender requires the borrower to purchase in the event that that there’s a defect in title and the mortgage is, as a result, void. When Perfect Title Company’s clients began to file their insurance claims with their title insurance companies, the title companies in Hawai‘i, such as Title Guaranty led by their attorney John Jubinsky, an all out assault began against myself and Perfect Title Company in order to shift attention away from title companies. At a symposium put on at the Hawai‘i Prince Hotel by the Hawai‘i Developers Council in July of 1997 that centered on Perfect Title Company, Bruce Graham, an attorney and instructor of land titles at the William S. Richardson School of Law School and one of the panelists along with myself, admitted to me after that he could not refute Perfect Title’s land title reports. His only comment to me was that America’s here and that’s just how it is. I was not intimidated by this statement because I knew that America had nothing to do with title insurance. It was the title companies in Hawai‘i that would lose. From title insurance policies to the lie that Perfect Title was telling people not to pay their mortgage was absurd but it persisted even today in your story. This is how shallow your story is.

These malicious attacks in the media by the title companies led to a police raid of our office and my arrest for racketeering, tax evasion and theft. These outlandish allegations were unfounded but it was disseminated throughout the media as if I was part of the mafia. They later dropped these outlandish charges and indicted me on a so-called attempted theft of property by doing a title search and showing that the title was defective as a result of the illegal overthrow of the Hawaiian government in 1893. There were no lawful notaries after the January 17, 1893 to acknowledge the transference of title by deed. All titles could not be conveyed after January 17. The title companies and the State of Hawai‘i could not refute this fact. Furthermore, I told you over the phone that real estate is not the subject of larceny or theft. Only personal property, which is moveable, such as a car or cash, is capable of being stolen, but real property, which is immovable, such as real estate, is not capable of being stolen because you can’t move the land therefore you can’t steal it. The whole process was malicious, and where was the media in all of this. They were all complicit and whenever I was interviewed by reporters such as Barbara Marshall or Rob Perez they always twisted what I said in order to maintain their false narrative. I also remember you told me in the interview that you worked with Rob Perez at the newspaper during this time, which I then became very suspect because you apparently have the same bias.”

– Dr. Keanu Sai email

 

“I can only surmise that your story fits quite well under the heading of Alternative Facts and Fake News because the real facts apparently don’t matter to you,” Sai wrote at the conclusion of his email.

Sai sat down for an interview with Big Island Video News in an attempt to present his side of the story.

During the interview, Sai also discussed his involvement in a future Fact finding to be conducted through the International Court of Arbitration, and – the big news maker these days – President Donald Trump.

NEXT: The Larson Case, Round Two – International Fact Finding

Big Island Video News: Hawaiian Kingdom International Inquiry Discussed

HAWAII ISLAND (BIVN) – A Fact Finding Commission is being initiated at the Permanent Court of Arbitration at The Hague. The new advocate for the Kingdom, Dr. Federico Lenzerini, spoke to Puna residents on Friday.

HAWAII ISLAND – The Counsel and Advocate representing the Hawaiian Kingdom in a recently initiated international fact finding proceeding spoke to a small audience at a Puna home on Friday evening.

Dr. Federico Lenzerini, Professor of International law from the University of Siena Law Department in Italy, talked about the complexities of a new special agreement to form a Commission of Inquiry under the auspices of the Permanent Court of Arbitration at The Hague. Lenzerini spoke in the garage of Kale Gumapac’s Hawaiian Paradise Park home.

Dr. Lenzerini, working alongside Dr. Keanu Sai – a well known political scientist and lecturer at the University of Hawai‘i – said the proceeding picks up where the Larsen v the Hawaiian Kingdom case left off in 2001.

On January 19, 2017, the Hawaiian Kingdom Government and Lance Paul Larsen entered into a Special Agreement to form a Fact-finding Commission that would delve into the alleged occupation of the Hawaiian Kingdom by the United States. Dr. Sai has been working as agent for the Kingdom in the international arbitration.

Over the past week, Lenzerini and Sai have been making the rounds in Hawaii, building awareness of the fact-finding inquiry by filming TV interviews and even making a large presentation at the Kamehameha School Kapalama Campus on January 30.

The Larsen dispute began in 1999. Larsen, a Hawaiian subject, alleged that the Government of the Hawaiian Kingdom is in “continual violation of its 1849 Treaty of Friendship, Commerce and Navigation with the United States of America”, as well as “the principles of international comity” by allowing “the unlawful imposition of American municipal laws … within the territorial jurisdiction of the Hawaiian Kingdom.”

Documents say Larsen “served an illegally imposed jail sentence resulting directly from the continued unlawful imposition and enforcement of American municipal laws within the Hawaiian Kingdom.”

The dispute was taken up by a Tribunal at the Permanent Court of Arbitration. Both parties were seeking a ruling from the tribunal that would “decide and determine the territorial dominion of the Hawaiian Kingdom under all applicable international principles, rules and practices.”

Dr. Keanu Sai represented the Hawaiian Kingdom as its agent in the proceeding. Dr. Sai maintained the party responsible for the violation of the Larsen’s rights, as a Hawaiian subject, was the United States Government. Both Larsen and the Kingdom agreed “the primary cause of these injuries is the prolonged occupation of the Hawaiian Islands by the United States of America.”

The United States was not a party to the agreement to arbitrate, and did not participate in the proceeding.

In its Award, the Tribunal determined that “there is no dispute between the parties capable of submission to arbitration” and that, “the Tribunal is precluded from the consideration of the issues raised by the parties by reason of the fact that the United States of America is not a party to the proceedings and has not consented to them.”

Although the Tribunal’s award did not make a determination involving the occupation, both Dr. Sai and Dr. Lenzerini say the Kingdom was acknowledged as a State for administrative purposes by the Permanent Court of Arbitration. The proceeding also opened the door to a fact finding inquiry.

“At one stage of the proceedings the question was raised whether some of the issues which the parties wished to present might not be dealt with by way of a fact-finding process,” the Tribunal’s award stated.

“In addition to its role as a facilitator of international arbitration and conciliation,” the Award document states, “the Permanent Court of Arbitration has various procedures for fact finding, both as between States and otherwise.”

The Tribunal noted a new special agreement would be needed between Larsen and the Kingdom before fact-finding could be initiated.

The Hague Conventions of 1899 and 1907 provide for International Commissions of Inquiry. However, the costs of the fact-finding process – which amounted in excess of $150,000, participants say, to be bore by the claimant, Mr. Larsen – delayed the action.

In the Special Agreement reached this January, it was decided that the Hawaiian Kingdom will bear the burden of costs for the fact-finding. On January 24, 2017 the International Bureau of the PCA was notified by joint letter to initiate the proceedings. A $10,000 advance deposit has already been made towards the costs.

Lenzerini, with his wife and child by his side, stopped by Gumapac’s house en route to a visit to see the volcanic activity down by Kalapana. Gumapac has worked closely with Dr. Sai on separate matters involving the U.S. occupation which have also been presented at the international level.

The Commission of Inquiry is not a Tribunal, Lenzerini told those assembled in Puna. There will be no judgement, only an evaluation of the facts under the perspective of international humanitarian law.

It is important that the determinations be made public, Lenzerini said, “so it will be possible to spread the knowledge of the history and of the truth of the Hawaiian kingdom within the international community,” since Larson and the Kingdom have agreed to make the findings public.

Next will be the nomination of an appointing authority who will be tasked with nominating the three-member Commission of Inquiry.

The appointing authority must be impartial, competent, and have “a very definite idea about who can be the best personalities to serve as members of the commission,” Lenzerini said.

These rules of international humanitarian law apply to military occupations even where there has been no resistance, as happened in Hawaii at the end of the 19th century.

The Commission of Inquiry will have the task to give an opinion on this point, according to Lenzerini: What is the position of the Hawaiian Kingdom under international humanitarian law, and what are the duties of the Hawaiian Kingdom towards its citizens, “first of all Mr. Larsen, then its citizens living here in Hawaii or abroad, and even aliens. Aliens who come here and are subject to the laws enforced in this land.”

Several rules of international humanitarian law are applicable, Lenzerini says, including pillaging, the obligation to administer the laws of the occupied country, deprivation of public property, and violation of a fair trial, among others.

Lenzerini cautioned those in attendance that “sometimes it is quite hard to guarantee the effectiveness of the rules” of international law.

“There are no avenues to claim respect,” Lenzerini said. Especially when – in this case, the United States – an “indispensable third party” is not a part to the agreement for international arbitration and cannot be bound by a commission’s rulings.

Lenzerini says that a fact finding is different, however. Although there will be no determination, Lenzerini believes the inquiry will provide a forum for the stories of Hawaii’s people to be known by the international community. He expects there could be an opportunity to provide testimony and evidence, depending on the will of the Commission that is formed.

These things usually last for quite a long time. “Talking about years,” Lenzerini said.

According to its website, the Permanent Court of Arbitration (PCA) is “an intergovernmental organization established by the 1899 Hague Convention on the Pacific Settlement of International Disputes. The PCA has 121 Member States.” The PCA is headquartered at the Peace Palace in The Hague, the Netherlands, and “facilitates arbitration, conciliation, fact-finding, and other dispute resolution proceedings among various combinations of States, State entities, intergovernmental organizations, and private parties.”

Issues that Matter: Permanent Court of Arbitration, International Commission of Inquiry – Larsen case

Dr. Lynette Cruz, host of “Issues that Matter,” interviews Dr. Federico Lenzerini, Professor of International law from the University of Siena Law Department, Italy, and Dr. Keanu Sai, political scientist and lecturer at the University of Hawai‘i, on the topic of proceedings that have been initiated at the Permanent Court of Arbitration stemming from the Larsen v. Hawaiian Kingdom arbitration case.

Dr. Sai, as Agent, and Dr. Lenzerini, as Counsel and Advocate, represent the Hawaiian Kingdom in these proceedings.

International Commission of Inquiry Proceedings Initiated at The Hague

On January 19, 2017, the Hawaiian Kingdom Government and Lance Paul Larsen entered into a Special Agreement to form a Fact-finding Commission of Inquiry under the auspices of the Permanent Court of Arbitration (PCA), The Hague, Netherlands. The International Bureau of the PCA was notified by joint letter, from the Hawaiian Government and Mr. Larsen, on January 24, 2017 to initiate the proceedings.

This move toward fact-finding is in direct response to the recommendation of the Tribunal in paragraphs 13.1-13.3 of the Award (2001) in Larsen v. Hawaiian Kingdom, 119 Int’l L. Rep. 566, 597 (2001). The Tribunal stated, “In addition to its role as a facilitator of international arbitration and conciliation, the Permanent Court of Arbitration has various procedures for fact-finding, both as between States and otherwise.” The Tribunal further stated it could “reconstitute itself as a fact-finding commission, [but a] new compromis or agreement would…have been required.”

As pointed out by the Tribunal, “Part III of each of the Hague Conventions of 1899 and 1907 provide for International Commissions of Inquiry,” and that the “PCA has also adopted Optional Rules for Fact-finding Commissions of Inquiry.” In other words, the Tribunal provided two options to form a fact-finding commission, the first under the 1907 Hague Convention, and, second, the Optional Rules. Both the Hawaiian Kingdom and Larsen agreed to the rules provided under Part III—International Commissions of Inquiry (Articles 9-36), 1907 Hague Convention, I. The International Bureau facilitates both options.

After the issuance of the Award, the parties did request for the Tribunal to be reconstituted as a Fact-finding Commission of Inquiry but due to the projected costs at the time it was later withdrawn. During the arbitration, the parties had to contend with the prospect of who would bear the burden of the costs for fact-finding since Mr. Larsen, as claimant in the arbitration, bore the costs, which amounted in excess of $150,000.00. This move, however, did not preclude the parties from entering into an agreement at a later date. Under Article VI of the Special Agreement (January 19, 2017) it was agreed that the Hawaiian Kingdom would bear the burden of costs for the fact-finding.

Prior to facilitating the establishment of the Tribunal in Larsen v. Hawaiian Kingdom, the PCA had to assure that it possessed institutional jurisdiction, which requires one of the parties to be a State. From the record of the arbitral proceedings there are two instances where the PCA acknowledged the Hawaiian Kingdom as a State for administrative purposes. The first instance is in the PCA Case Repository containing Larsen v. Hawaiian Kingdom, wherein the Respondent—Hawaiian Kingdom is identified as a “State” and the Claimant—Lance Paul Larsen as a “Private entity.” The second instance is in Annex 2—Cases conducted under the auspices of the PCA or with the cooperation of the International Bureau, PCA Annual Report 2011. In the PCA’s 2011 Annual Report, the Larsen v. Hawaiian Kingdom arbitration was listed as the thirty-third case that came under the auspices of the PCA pursuant to “article 47 of the 1907 Convention.” Article 47 provides, “The jurisdiction of the Permanent Court may, within the conditions laid down in the regulations, be extended to…non-Contracting Powers.”

According to Article III of the Special Agreement, “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 norm and framework of international humanitarian law; and, 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 norm and framework of international humanitarian law.”

The formation of the Fact-finding Commission of Inquiry is not a new proceeding for the PCA to determine its institutional jurisdiction, but rather, a continuation of the proceedings already held under the jurisdiction of the PCA that moves from a dispute under arbitration to a situation under fact-finding.

The Smoking Gun! No Question on Illegality of the U.S. Overthrow of the Hawaiian Government in 1893

In 2016, Duke University Press published Tom Coffman’s Nation Within: The History of the American Occupation of Hawai‘i. While this book has been in circulation since 1998, it is the first time that an academic publisher has put its name to the book. The goal of Duke University Press is “to contribute boldly to the international community of scholarship.” “By insisting on thorough peer review procedures in combination with careful editorial judgment, the Press performs an intellectual gatekeeping function, ensuring that only scholarship of the highest quality receives the imprimatur of the University.”

Dr. Keanu Sai, a political scientist, whose doctoral research covered the American occupation of the Hawaiian Kingdom and its continued existence today as an independent State, was asked by the Hawaiian Journal of History to write a book review of Coffman’s Nation Within for its first publication in 2017. In his review, Dr. Sai reveals the “smoking gun” that was brought to his attention by Dr. Ron Williams of the University of Hawai‘i at Manoa.

***************************************************************

In Nation Within: The History of the American Occupation of Hawai‘i, Tom Coffman exhibits a radical shift by historians in interpreting political events post-1893. When Coffman first published his book in 1998, his title reflected a common misunderstanding of annexation. But in 2009, he revised the title by replacing the word Annexation with the word Occupation. Coffman admitted he made this change because of international law (p. xvi). By shifting the interpretive lens to international law, Coffman not only changed the view to occupation, but would also change the view of the government’s overthrow in 1893. While the book lacks any explanation of applicable international laws, he does an excellent job of providing an easy reading of facts for international law to interpret.


In international law, there is a fundamental rule that diplomats have a duty to not intervene in the internal affairs of the sovereign State they are accredited to. Every sovereign State has a right “to establish, alter, or abolish, its own municipal constitution [and] no foreign State can interfere with the exercise of this right” (Halleck’s International Law, 3rd ed., p. 94). For an ambassador, a violation of this rule would have grave consequences. An offended State could proceed “against an ambassador as a public enemy…if justice should be refused by his own sovereign” (Wheaton’s International Law, 8th ed., p. 301).

John Stevens, the American ambassador to the Hawaiian Kingdom arrived in the islands in the summer of 1889. As Coffman notes, Stevens was already fixated with annexation when he “wrote that the ‘golden hour’ for resolving the future status of Hawai‘i was at hand,” (p. 114) and began to collude with Lorrin Thurston (p. 116). Thurston was not an American citizen but rather a third-generation Hawaiian subject. Stevens’ opportunity to intervene and seek annexation would occur after Lili‘uokalani “attempted to promulgate a new constitution, [which] was the event Thurston and Stevens had been waiting for” (p. 120).

On January 16, Stevens orders the landing of U.S. troops and “tells Thurston that if the annexationists control three buildings—‘Iolani Palace, Ali‘iolani Hale, and the Archives—he will announce American recognition of the new government” (p. 121). The following day, “Stevens tells the queen’s cabinet that he will protect the annexationists if they are attacked or arrested by government police” (Ibid.). However, unbeknownst to Stevens, the insurgents only took over Ali‘iolani Hale, which housed “clerks of the Kingdom” (p. 125). One of the insurgents, Samuel Damon, knowing Stevens’ recognition was premature, sought to convince Lili‘uokalani that her resistance was futile because the United States had already recognized the new government, and that she should order Marshal Charles Wilson, head of the government police, to give up the police station. Wilson was planning an assault on the government building to apprehend the insurgents for treason in spite of the presence of U.S. troops.

International law clearly interprets these events as intervention and Stevens to be a “public enemy” of the Hawaiian Kingdom. This was the same conclusion reached by President Grover Cleveland, whose investigation was an indictment of Stevens and the commander of the USS Boston, Captain Gilbert Wiltse. “The lawful Government of Hawai‘i was overthrown without the drawing of a sword or the firing of a shot,” Cleveland said, “by a process every step of which, it may be safely asserted, is directly traceable to and dependent for its success upon the agency of the United States acting through its diplomatic and naval representatives” (p. 144). Because of diplomatic immunity, the United States, as the sending State, would be obliged to prosecute Stevens and Wiltse for treason under American law.

On December 20, 1893, a resolution of the U.S. Senate called for a separate investigation to be conducted by the Senate Committee on Foreign Relations. Chaired by Senator John Morgan, a vocal annexationist, the purpose of the Senate investigation was to repudiate Cleveland’s investigation and to vindicate Stevens and Wiltse of criminal liability. One week later, the Committee held its first day of hearings in Washington, DC. Stevens appeared before the Committee and fielded questions under oath on January 20, 1894. When asked by the Chairman if his recognition of the provisional government was for the “purpose of dethroning the Queen,” he responded, “Not the slightest—absolute noninterference was my purpose” (Report from the Committee on Foreign Relations— Appendix, p. 550).

After the hearings, two reports were submitted on February 26, 1894—a Committee Report and a Minority Report. The committee of eight senators was split down the middle, with Morgan giving the majority vote for the Committee Report. Half of the committee members did not believe Stevens’ testimony of his non-intervention. The Minority Report stated, “We can not concur…in so much of the foregoing report as exonerates the minister of the United States, Mr. Stevens, from active officious and unbecoming participation in the events which led to the revolution” (Ibid., p. xxxv).

The Senate Committee’s investigation could find no direct evidence that would disprove Stevens’ sworn testimony, but in 2016, the “smoking gun” was found that would prove Stevens was a public enemy of the Hawaiian Kingdom, committed perjury before the Committee, and would no doubt have been prosecuted under the 1790 federal statute of treason. The Hawaiian Mission Houses Archives is processing a collection of documents given to them by a descendent of William O. Smith. Smith was an insurgent that served as the attorney general for Sanford Dole, so-called president of the provisional government.

The “smoking gun” is a note to Dole signed by Stevens marked “private” and written under the letterhead of the “United States Legation” in Honolulu and dated January 17, 1893. Stevens writes, “Judge Dole: I would advise not to make known of my recognition of the de facto Provisional Government until said Government is in possession of the police station.”

As a political scientist, Coffman’s book is a welcomed addition to arresting revisionist history.

Japan’s Center for Glocal Studies Publishes Article on the Acting Government of the Hawaiian Kingdom

Japan’s Seijo University’s Center for Glocal Studies has published, in its latest journal for 2016, an article authored by Dennis Riches titled “This is not America: The Acting Government of the Hawaiian Kingdom Goes Global with Legal Challenges to End Occupation [this is a hot link to download the article].” The word Glocal Studies is a combination of the words Global and Local Studies.

The study focused on the American occupation of Hawai‘i and its global impact, which includes war crimes. It also included an interview of Dr. Keanu Sai by the author who is a faculty member of Seijo University, Japan. Seijo’s Glocal Research Center is also supported by the Japanese Ministry of Education, Culture, Sports, Science and Technology.

In his concluding remarks of the study, the author wrote:

I became interested in Hawai‘i’s status as an occupied country through an earlier interest in the struggle of Okinawans to have US military bases removed from their territory. I naively thought, like many in Japan, that the US should move these military operations back to Hawai‘i because they rightly belong on American territory. Yet as I compared the two places, I learned that under international law Hawai‘i actually had a stronger claim than Okinawa on the right to reject an American military presence. Unfortunately, Okinawa never had foreign treaties and recognition as an independent state before it was absorbed by Japan. This leaves Okinawa to fight for self-determination through a political negotiation with the Japanese government, and the Japanese government is very committed to its alliance with America. Although Prime Minister Shinzo Abe stated in his speech of August 15, 2015, “We shall abandon colonial rule forever and respect the right of self-determination of all peoples throughout the world,” it is unlikely that he had Okinawans in mind, or anyone specifically, as a people he would assist in becoming independent.

During the interview, as a spokesperson for the provisional government, Professor Sai was careful not to discuss the policy or ideology that a future legitimate government would follow. Those are to be decided by democratic choices that Hawaiians make after the occupation ends. However, it was encouraging to hear Professor Sai, a former US Army captain, express a strong personal view that Hawai‘i’s record as a neutral country is not something that should be up for future debate. It’s a fundamental value that makes the work to restore the nation worthwhile, and it is something that can inspire the global community as well.

There is an increasing global desire for America to scale back its interventionism and close its global network of military bases. The day has come when the world doesn’t want it, and America can no longer afford it. It is ironic that a place that everyone thinks is American is the place that has the strongest chance of using international law to expel the American military presence. Other nations are bound by their treaties and Status of Forces Agreements. It is also inspiring too to think that this will happen in the place that was the last place on the globe to be inhabited by humans, and the last to be contacted by the European explorers who launched the age of Western Empire.

Today, Western science turns its back on earthly problems as it tries to build telescopes and train astronauts to Mars-walk on Hawaiian mountains, but for those who prefer to deal with the home we have, Hawai‘i can be a symbol of our last hope to avoid the catastrophes of environmental destruction and war, just as it was a last hope for the Polynesian explorers who first came in the years of the early Christian calendar—an interesting coincidence considering the peaceful aspirations of Christianity that preceded the meeting of two cultures in Hawai‘i in the 18th century. Now that Japan has reinterpreted its “peace” constitution to allow for overseas deployments in assistance of allies, the world should support Hawai‘i not only for the sake of self-interested realism but more importantly for the role Hawai‘i can play as a new standard bearer of the idea that nations can renounce war, choose neutrality and gain security from a system of international law that protects their sovereignty.

Settling the Confusion of Sovereignty and Independence

There is still much confusion regarding the terms sovereignty and independence in the Hawaiian community, which is the result of denationalization through Americanization. First there are two sovereignties – “internal” and “external.” By definition, sovereignty is the supreme governmental authority over the territory of a State. Where a particular State may have “internal” sovereignty over its territory, it may not have “external sovereignty” regarding its place as a State in international law. An example of this is the State of New York, which has “internal” sovereignty over its territory, but its “external” sovereignty is in the United States of America. It is the United States, and not New York, that is the independent State.

Because international law distinguishes between “internal” and “external” sovereignties, a State would remain independent and sovereign, despite its government, which exercises its internal sovereignty, having been overthrown by another State and subsequently occupied. This is why the law of occupation mandates the occupier to administer the laws of the occupied State under Article 43 of the 1907 Hague Convention, IV.

Section 358 of the United States Army Field Manual 27-10 clearly articulates this point, where “military occupation confers upon the invading force the means of exercising control for the period of occupation. It does not transfer the sovereignty to the occupant, but simply the authority or power to exercise some of the rights of sovereignty.”

Below is an article that was originally posted December 10, 2013

In Hawai‘i there is a political trend called the sovereignty or independence movement that began in the 1970s. This political wing, which grew out of the Hawaiian cultural renaissance movement, is comprised of diverse groups of aboriginal Hawaiians working toward the goal or aspiration of achieving sovereignty or independence. These groups vary in ideologies and organization, but all of them have been operating on the false assumption that the United States has independence and sovereignty over Hawai‘i and therefore the goal is separation or secession through a process commonly referred to as self-determination. According to the United Nations, self-determination is the right of the people of a non-sovereign nation to choose their own form of governance separate from the foreign State that has the sovereignty and independence under international law.

Actions taken by these groups are centered on political activism that have taken many forms at both the national and international levels. This political trend has led to confusion regarding Hawai‘i’s true status and basic terminology and the application of the terms “sovereignty” and “independence.” Also adding to the confusion is the psychological effects of “presentism” and “confirmation bias.” Presentism is “an attitude toward the past dominated by present-day attitudes and experience,” and confirmation bias is “a tendency to search for or interpret information in a way that confirms one’s preconceptions, leading to statistical errors.”

Sovereignty by definition is absolute authority exercised by a State over its territory, territorial seas, and its nationals abroad, which is independent of other States and their authority over their territory, territorial seas, and its nationals abroad.  Authority over a State’s nationals abroad is called personal supremacy, and authority over territory is territorial sovereignty. Therefore, sovereignty is associated with political independence and the terms are often interchangeable.

The term State, under international law, means a political unit that has a centralized government, a resident population, a defined territory and the ability to enter and maintain international relations with other States. A State is a legal person in international law that possesses rights and obligations. A nation, however, is a group of people bound together by a common history, language and culture. Every State is a nation or a combination of nations, but not every nation or nations comprise a State. Since the nineteenth century, a State comes into existence only if other States have recognized it, which represents the entirety of the international order. In other words, a few States may have given explicit recognition, but the majority hasn’t. Until the majority of States have provided recognition to the nation or group of nations, international law does not recognize the new State because its independence over its territory, territorial seas, and its nationals abroad has not been acknowledged by the international community of States.

The most recent example of a sovereignty movement by a nation seeking State sovereignty and independence and ultimately achieving it was Palestine. On November 29, 2012, the member States of the United Nations voted overwhelmingly to recognize Palestinian Statehood. Up to this date, Palestine was a nation seeking sovereignty and independence, which is called self-determination. Once a State has been recognized the recognizing States cannot deny it later, and there exists a rule of international law that preserves the independence of an already recognized State, unless that State has relinquished its independence and sovereignty by way of a treaty or customary practice recognized by international law.

According to the Permanent Court of International Justice (PCIJ), in the 1927 seminal case S.S. Lotus between France and Turkey, “International law governs relations between independent States. The rules of law binding upon States therefore emanate from their own free will as expressed in conventions (treaties) or by usages generally accepted as expressing principles of law and established in order to regulate the relations between these co-existing independent communities or with a view to the achievement of common aims. Restrictions upon the independence of States cannot therefore be presumed.” In other words, once a State is acknowledged as being independent it will continue to be independent unless proven otherwise. Therefore, the State will still have sovereignty and independence over its territory, territorial seas, and its nationals, even when its government has been overthrown and is militarily occupied by a foreign State. During occupations the sovereignty remains vested in the occupied State, but the authority to exercise that sovereignty is temporarily vested in the occupying State, which is regulated by the Hague and Geneva Conventions, and international humanitarian law.

When the PCIJ stated that restrictions upon the independence of States could not be presumed, it did not mean that international law could not restrict States in its relations with other States that are also independent. In the Lotus case, the PCIJ explained, “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. In this sense jurisdiction is certainly territorial; it cannot be exercised by a State outside its territory except by virtue of a permissive rule derived from international custom or from convention (treaty).” The PCIJ continued, “In these circumstances, all that can be required of a State is that it should not overstep the limits which international law places upon its jurisdiction; within these limits, its title to exercise jurisdiction rests in its sovereignty.”

The United States Supreme Court in 1936 recognized this restriction and limitation of a State’s authority in international law in U.S. v. Curtiss-Wright Corp. The U.S. Supreme Court stated, “Neither 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. As a member of the family of nations, the right and power of the United States in that field are equal to the right and power of the other members of the international family. Otherwise, the United States is not completely sovereign.”

In 2001, the Permanent Court of Arbitration (PCA), in its dictum in Larsen v. Hawaiian Kingdom, verified Hawai‘i to be an independent State. In its arbitral award, the PCA stated, “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.” As an independent State, international law provided a fundamental restriction on all States, to include the United States of America, that it may “not exercise its power in any form in the territory of another State.”

Since 1898, the United States has unlawfully exercised its power within the territory of the Hawaiian Kingdom militarily, legislatively and economically. On July 7, 1898, the United States Congress enacted a joint resolution unilaterally annexing the Hawaiian Kingdom over the protests of Hawai‘i’s Queen and people. Two years later, Congress enacted another law by creating a territorial government that took over the governmental infrastructure of the Hawaiian Kingdom that was previously high jacked by insurgents since 1893 with the support of the United States military. In 1959, the Congress again passed legislation transforming the territorial government into the 50th state of the American Union. Under both international law and United States constitutional law, these Congressional actions have no force and effect in Hawai‘i. Despite the propaganda and lies that have been perpetuated since the beginning of the occupation that Hawai‘i was annexed by a treaty, the Hawaiian Kingdom continues to be an independent State that still retains its personal supremacy over its nationals abroad, and territorial sovereignty over its territory and territorial seas. The exercising of this authority, however, is limited only by the Hague and Geneva Conventions and the fact of an illegal and prolonged occupation.

A common statement made by sovereignty advocates is that the people have to collectively decide on the question of sovereignty and that it should be put to a vote. This is incorrect if Hawai‘i is already a sovereign and independent State. This prospect is valid only if Hawai‘i is a nation seeking sovereignty and independence, which is commonly referred to as “nation-building” under a people’s right to self-determination, but Hawai‘i is not. Self-determination and nation-building is the United Nations process by which sovereignty and independence is sought, but it is not guaranteed. This process provides to the people of a non-sovereign nation who have been colonized by a foreign State to choose whether or not they want independence from the foreign State, free association as an independent State with the foreign State, or total incorporation into the foreign State.

Recently, Maohi Nui (French Polynesia) has been reaffirmed by the United Nations as having a right to choose independence from France, free association with France, or total incorporation into France. Maohi Nui is by definition a sovereignty movement and education is key to ensuring that the people decide Maohi Nui’s status through decolonization with full knowledge, and not be influenced or coerced by political activism that is French driven. It won’t be easy for Maohi Nui, but the process of exercising self-determination should be fair under United Nations supervision and in line with General Assembly resolutions.

If other independent States cannot affect or change the independence of an established State and its sovereignty under international law, how can Hawai‘i’s people believe they can do what States can’t? Because the Hawaiian Kingdom continues to exist under international law as an independent State, not only is the sovereignty movement rendered irrelevant, but also the status of Hawai‘i as an occupied State renders the State of Hawai‘i government and other federal agencies in the Hawaiian Islands self-proclaimed. It is within this international legal framework that actions taken by Federal government officials, State of Hawai‘i government officials, and County government officials are being reported to international authorities for war crimes under the Hague and Geneva Conventions, and the Rome Statute that established the International Criminal Court.

Re-education is crucial for Hawai‘i’s people and the world on the reality that Hawai‘i is an already independent and sovereign State that has been under an illegal and prolonged occupation. Before restoration of the de jure Hawaiian government takes place in accordance with the 1893 executive agreements, international law mandates that the occupying Power must establish a military government in order to administer Hawaiian Kingdom law (Article 43, Hague Convention, IV) and to also begin the withdrawal of all military installations from Hawaiian territory (Article 2, Hague Convention, V). This is the first and primary step toward transition.

The following terms and definitions are from the Hawaiian history textbook “Ua Mau Ke Ea-Sovereignty Endures.”

Independent State—A state that has absolute and independent legal and political authority over its territory to the exclusion of other states. Once recognized as independent, the state becomes a subject of international law. According to United States common law, an independent State is a people permanently occupying a fixed territory bound together by common law habits and custom into one body politic exercising, through the medium of an organized government, independent sovereignty and control over all persons and things within its boundaries, capable of making war and peace and of entering into international relations with other communities around the globe.

Sovereignty—Supreme authority exercised over a particular territory. In international law, it is the supreme and absolute authority exercised through a government, being independent of any other sovereignty. Sovereignty, being authority, is distinct from government, which is the physical body that exercises the authority. Therefore, a government can be overthrown, but the sovereignty remains.

Colonization—Colonization is the building and maintaining of colonies in one territory by people from another country or state. It is the process, by which sovereignty over the territory of a colony is claimed by the mother country or state, and is exercised and controlled by the nationals of the colonizing country or state. Though colonization there is an unequal relationship between the colonizer and the native populations that reside within its colonial territory. These native populations are referred to as indigenous peoples and form the basis of the 2007 United Nations Declaration on the Rights of Indigenous Peoples.

De-colonization—De-colonization is the political process by which a non-self-governing territory under the sovereignty of the colonizing state or country becomes self-governing. According to the United Nations Resolution 1541 (XV), Principles which should guide Members in determining whether or not an obligation exists to transmit the information called for under Article 73 e of the Charter, “A Non-Self-Governing Territory can be said to have reached a full measure of self government by: (a) Emergence as a sovereign independent State; (b) Free association with an independent State; or (c) Integration with an independent State.”

Self-determination—A principle in international law that nations have the right to freely determine their political status and pursue their economic, social and cultural development. The international community first used the term after World War I where the former territorial possessions of the Ottoman Empire and Germany were assigned to individual member countries or states of the League of Nations for administration as Mandate territories. The function of the administration of these territories was to facilitate the process of self-determination whereby these territories would achieve full recognition as an independent and sovereign state. After World War II, territories of Japan and Italy were added and assigned to be administered individual member countries or states of the United Nations, being the successor of the League of Nations, and were called Trust territories. Also added to these territories were territories held by all other members of the United Nations and called Non-self-governing territories. Unlike the Mandate and Trust territories, they were not assigned to other member countries or states for administration, but remained under the original colonial authority who reported yearly to the United Nations on the status of these territories. Self-determination for Non-self-governing territories had three options: total incorporation into the colonial country or state, free association with the colonial country or state, or complete independence from the colonial country or state. Self-determination for indigenous peoples does not include independence and is often referred to as self-determination within the country or state they reside in.

Sovereignty movement—A political movement of a wide range of groups in the Hawaiian Islands that seek to exercise self-determination under international law as a Non-self-governing unit, or to exercise internal self-determination under the 2007 United Nations Declaration on the Rights of Indigenous Peoples. The commonality of these various groups is that their political platforms are based on aboriginal Hawaiian identity and culture and use of the United Nations term indigenous people. The movement presumes that the Hawaiian Kingdom and its sovereignty were overthrown by the United States January 17th 1893, and therefore the movement is seeking to reclaim that sovereignty through de-colonization. The movement does not operate on the presumption of continuity of the Hawaiian Kingdom as an independent state and the law of occupation, but rather on the aspiration of becoming an independent state or some form of internal self-determination within the laws of the United States.

Issues that Matter: Italian Universities invite Dr. Sai to present on Hawai‘i’s Occupation

Dr. Lynette Cruz, host of “Issues that Matter,” interviews Dr. Keanu Sai on recent trip to Italy. Dr. Sai was invited to participate in an academic conference in Ravenna, Italy, as well as guest lectures as the University of Siena Law School and at the University of Torino.