Monthly Archives: September 2013

Hawaiian Kingdom files Application Instituting Proceedings at the International Court of Justice

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THE HAGUE, NETHERLANDS, 27 September 2013 — The acting Government of the Hawaiian Kingdom filed with the Registrar of the International Court of Justice an Application Instituting Proceedings against the Republic of Austria, Barbados, the Kingdom Peace Palaceof Belgium, the Republic of Botswana, the Republic of Bulgaria, the Republic of Costa Rica, the Republic of Côte d’Ivoire, Democratic Republic of the Congo, the Kingdom of Denmark, the Republic of Djibouti, the Commonwealth of Dominica, the Dominican Republic, the Arab Republic of Egypt, the Republic of Finland, Gambia, Georgia, the Hellenic Republic of Greece, the Republic of Guinea, the Republic of Guinea-Bissau, the Republic of Haiti, the Republic of Honduras, the Republic of Ireland, the Republic of Kenya, the Kingdom of Lesotho, the Republic of Liberia, the Grand Duchy of Luxembourg, the Republic of Madagascar, the Republic of Malawi, the Republic of the Marshall Islands, the United Mexican States, the Kingdom of the Netherlands, the Kingdom of Norway, the Islamic Republic of Pakistan, the Republic of Paraguay, the Republic of Peru, the Republic of Senegal, the Republic of South Sudan, the Republic of Suriname, the Kingdom of Swaziland, the Kingdom of Sweden, the Swiss Confederation, the Democratic Republic of Timor-Leste, the Togolese Republic, the Republic of Uganda, and the Oriental Republic of Uruguay for treaty violations and serious breaches of peremptory norms. Austria, Belgium, Denmark, Netherlands, Norway, Sweden, and Switzerland have treaties with the Hawaiian Kingdom. All (45) States have accepted the jurisdiction of the Court beforehand, including the Hawaiian Kingdom.

The filing of the Application is directly tied to the Hawaiian Kingdom’s Protest and Demand filed with the President of the United Nations General Assembly on August 10, 2012. The Application is seeking enforcement of the Hawaiian Kingdom’s Demand that States comply with their treaty obligations and obligations under customary international law.

Also submitted with the Application was a Request for the Indication of Provisional Measures of Protection. The request states the “fact that serious breaches of rules of jus cogens have been ongoing for over a century only amplifies the urgent request that the Court indicate provisional measures to protect and preserve the rights of the Hawaiian Kingdom.” The Court is requested to declare that:

a)    All member States of the United Nations, which includes the States herein named, in compliance with the duty of non-recognition imposed under Articles 41(1) and 41(2) of the Articles of State Responsibility for International Wrongful Acts, are under an obligation:

1)    to recognize the illegality and invalidity of the United States of America’s continued presence in the Hawaiian Kingdom;

2)    to refrain from lending any support or any form of assistance to the United States of America with reference to its illegal occupation of the Hawaiian Kingdom;

3)    to abstain from entering into treaty relations with the United States of America in all cases whereby the government of the United States of America purports to act on behalf of or concerning the Hawaiian Kingdom;

4)    to abstain from sending consular agents to the territory of the Hawaiian Kingdom, purportedly under arrangements and/or agreements with the United States of America, and to withdraw any such agents already there;

5)    to abstain from entering into economic, military and any other form of relationship or dealing with the United States of America on behalf of or concerning the Hawaiian Kingdom, which may entrench its authority over the territory;

b)    With respect to existing bilateral treaties, member States of the United Nations, which includes the States herein named, in compliance with the duty of non-recognition imposed under Articles 41(1) and 41(2) of the Articles of State Responsibility for International Wrongful Acts, must abstain from invoking or applying those treaties or provisions of treaties concluded by the United States of America on behalf of or concerning the Hawaiian Kingdom, which include and/or involve active intergovernmental co-operation.

c)     With respect to multilateral treaties, however, the same rule cannot be applied to certain general conventions such as those of a humanitarian character, the non-performance of which may adversely affect the people of the Hawaiian Kingdom;

d)    All member States of the United Nations, which includes the States herein named, in compliance with the duty of non-recognition imposed under Articles 41(1) and 41(2) of the Articles of State Responsibility for International Wrongful Acts, should not result in depriving the people of the Hawaiian Kingdom of any advantages derived from international co-operation. In particular, while official acts performed by the Government of the United States of America on behalf of or concerning the Hawaiian Kingdom since the occupation began on 12 August 1898 are illegal and invalid, this invalidity cannot be extended to those acts, such as, for instance, the registration of births, deaths and marriages, the effects of which can be ignored only to the detriment of the inhabitants of the Territory.

e)     With respect to non-member States of the United Nations, the illegality of the United States of America’s presence in the Hawaiian Kingdom is opposable to all States in the sense of barring erga omnes the legality of a situation which is maintained in violation of international law: in particular, no State which enters into relations with the United States of America concerning the Hawaiian Kingdom may expect the United Nations or its Members to recognize the validity or effects of such relationship, or of the consequences thereof.

The acting Government of the Hawaiian Kingdom  designated David Keanu Sai, Ph.D., its Ambassador-at-large, as Agent for these proceedings, and Dexter Ke‘eaumoku Ka‘iama, Esq., its Attorney General, as Deputy Agent. Dr. Sai served as lead Agent for the Hawaiian Kingdom in Larsen v. Hawaiian Kingdom (1999-2001) and presented oral arguments at the Peace Palace on December 7, 8, and 11, 2000. Members of the arbitral tribunal included Professor James Crawford, SC, as presiding arbitrator, with Mr. Gavan Griffith, QC, and Professor Christopher Greenwood, QC, serving as associate arbitrators. Professor Greenwood is now a Judge of the International Court of Justice. Both the Permanent Court of Arbitration and the International Court of Justice are located in the Peace Palace, The Hague, Netherlands.

Sai_ICCWhile in The Hague, Dr. Sai also met with a member of the International Criminal Court’s Information & Evidence Unit at the Court’s headquarters to inquire into the status of the Hawaiian Kingdom’s Referral to initiate an investigation for war crimes. He confirmed that it is still under review and that the Office of the Prosecutor will be in communication shortly.

Dr. Keanu Sai to Present Hawai‘i’s Occupation to Swiss Diplomats in Zurich

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Zurich FlyerThe Swiss Diplomats – Zurich Network has invited Dr. Keanu Sai to the city of Zurich to give a presentation on the prolonged and illegal occupation of the Hawaiian Kingdom. The title of Dr. Sai’s presentation is “Hawai‘i – An American State or a State Under American Occupation.” Professor Niklaus Schweizer, a former Swiss Consul for Hawai‘i and a professor at the University of Hawai‘i at Manoa, will be giving the introduction. After the presentation there will be a panel discussion comprised of Dr. Sai, Professor Schweizer, and former Swiss Ambassador to the United States and Germany, Dr. Christian Blickenstorfer. The presentation and panel is scheduled for Monday, November 11, 2013.

On July 20, 1864, the Hawaiian Kingdom entered into a Treaty of Friendship, Establishment and Commerce with Switzerland that established perpetual peace and reciprocal liberties. Article 1 states: “Hawaiians shall be received and treated in every canton of the Swiss Confederation, as regards their persons and their properties, on the same footing and in the same manner as now are or may hereafter be treated, the citizens of other cantons. The Swiss shall enjoy in the Hawaiian Islands all the same rights as Hawaiians in Switzerland.” The treaty was negotiated on behalf of the Hawaiian Kingdom by Sir John Bowring, who was a Knight Bachelor of Great Britain and Commander of the Order of Leopold of Belgium. The Hawaiian-Swiss Treaty has not been terminated by either the Hawaiian Kingdom or the Swiss Confederation.

The Diplomatic Network is aware of the Hawaiian-Swiss Treaty, the Hawaiian arbitration, Larsen v. Hawaiian Kingdom, at the Permanent Court of Arbitration at the Hague, Netherlands, from 1999-2001, the Hawaiian complaint filed with the United Nations Security Council in 2001, and the Hawaiian protest and demand filed with the United Nations General Assembly in 2012. Dr. Sai served as lead agent in the arbitration proceedings and the filings with the United Nations.

German Federal Prosecutor Receives War Crime Complaint From Hawai‘i Attorney Against Deutsche Bank

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Yesterday, the German Federal Prosecutor received a war crime complaint filed by attorney Dexter Kaiama alleging the Management Board of Deutsche Bank, Judge Greg K. Nakamura, and Deutsche Bank attorneys Charles R. Prather, Sofia M. Hirosone, and Michael G.K. Wong committed criminal acts against his clients Mr. Kale Kepekaio Gumapac and Mr. Harris Bright, both being Hawaiian subjects and protected persons under the Fourth Geneva Convention, 1949. The basis of the complaint is Section 6(9) of the German Criminal Code, which authorizes the German government to prosecute crimes committed by a German abroad, the German Code of Crimes against International Law (CCAIL), and the 1879 Hawaiian-German Treaty of Friendship, Commerce and Navigation and Consular Convention. Deutsche Bank is a German financial institution headquartered in Frankfurt, Germany.

The complaint alleges that “Deutsche Bank, despite having no valid and legal interest in both of my clients’ property, has deliberately ignored pursuing its proper remedy for financial recovery, and instead, intentionally violated CCAIL (and international law) by initiating a fraudulent and unlawful court process to obtain unlawful orders to evict my clients from their property, thereby committing violations of the CCAIL.” In the complaint, it states that both clients mortgaged their properties that was eventually assigned to Deutsche Bank, but were unaware that their titles to their properties were defective as a direct result of the illegal overthrow of the Hawaiian government by the United States in 1893 and the United States subsequent illegal and prolonged occupation.

Laulima Title Search and Claims, LLC, a company owned by Gumapac, was contracted to investigate the title to both properties and determined “This claim involves a defect of title by virtue of an executive agreement entered into between President Grover Cleveland of the United States and Queen Lili‘uokalani of the Hawaiian Kingdom, whereby the President and his successors in office were and continue to be bound to faithfully execute Hawaiian Kingdom law by assignment of the Queen under threat of war on January 17th 1893. The notaries public in the Hawaiian Islands and the registrar of the Bureau of Conveyances were not lawful since January 17th 1893, and therefore title to the estate in fee-simple” defective, “because…the deed of conveyance was not lawfully executed in compliance with Hawaiian Kingdom law.”

Since a mortgage is a lien on the title to the property, a defect in title would consequently render the lien invalid, which would also invalidate any foreclosure and ejectment proceedings stemming from the mortgage. In order for lenders to protect themselves from this type of situation,  they require the borrowers to purchase title insurance as a condition of the loan. Both Gumapac and Bright purchased title insurance while they were in escrow that covered the amount of the money each had borrowed. The complaint provides a definition of title insurance from Black’s Law dictionary as a “policy issued by a title company after searching the title, representing the state of that title and insuring the accuracy of its search against claims of title defects.” The complaint further states that title insurance is an “indemnity contract that does not guarantee the state of the title but covers loss incurred from a defect in land titles that would arise from an inaccurate title report.”

Both Gumapac and Bright each sent a letter with the evidence of the defect in title to Deutsche Bank, and called on “Deutsche Bank to cease the ejectment proceedings and to file an insurance claim under the lender’s title insurance policy.” Deutsche Bank refused to file the insurance claim and maintained the proceedings to evict Gumapac and Bright in the Third Circuit Court in Hilo.

Because Deutsche Bank refused to file the insurance claim, motions to dismiss with evidence were filed with the Third Circuit Court. The basis for the dismissals were that since Hawai‘i is under a prolonged and illegal occupation, the court, which is an American court, cannot claim to have authority in the Hawaiian Islands if Hawai‘i is not part of the United States. Despite having Judge Nakamura take judicial notice of the evidence and the attorneys for Deutsche Bank providing no counter evidence, Judge Nakamura denied the motion and eventually issued the orders for eviction. According to Kaiama, this is evidence of an unfair trial and pillaging because Deutsche Bank is attempting to seize property that they have no legal interest through a court that is illegal. Both unfair trial and pillaging are war crimes under Sections 8 and 9 of the German Code of Crimes against International Law.

On November 14, 2006, the Center for Constitutional Rights filed a war crime complaint with the German Federal Prosecutor against:

  • Former Secretary of Defense Donald Rumsfeld
  • Former CIA Director George Tenet
  • Undersecretary of Defense for Intelligence Dr. Stephen Cambone
  • Lieutenant General Ricardo Sanchez
  • Major General Walter Wojdakowski
  • Major General Geoffrey Miller
  • Colonel Thomas Pappas
  • Major General Barbara Fast
  • Colonel Marc Warren
  • Former Chief White House Counsel Alberto R. Gonzales
  • Former Assistant Attorney General Jay Bybee
  • Former Deputy Assistant Attorney General John Yoo
  • General Counsel of the Department of Defense William James Haynes, II
  • Vice President Chief Counsel David S. Addington

The complaint was filed under the same provisions of German law cited by Kaiama, but on April 27, 2007, the Federal Prosecutor announced she would not proceed to prosecute because in order for Germany to prosecute crimes committed abroad by foreigners against foreigners outside the country, there needs to be a domestic linkage. The defendants named in the complaint were not German, the victims were not German and there was no direct link to Germany. The Federal Prosecutor stated:

“The purpose of Sec. 153f StPO is to take account of the consequences for the German justice system arising from the applicability of universal jurisdiction. The view that the most consistent possible worldwide prosecution of violations of international criminal law should be ensured militates in favor of carrying out investigations. On the other hand, it is necessary to counteract the danger that complainants will seek out certain states as sites of prosecution—like Germany in this case—that have no direct connection with the acts complained of, simply because their criminal law is favorable to international law.”

Unlike the Rumsfeld complaint, the Hawaiian complaint has a “direct connection” to Deutsche Bank that is headquartered in the city of Frankfurt, Germany, and the German “prosecution of violations of international criminal law should be ensured militates in favor of carrying out investigations.” Kaiama has requested arrest warrants be issued for the following individuals:

  • Jürgen Fitschen, Co-Chief Executive Officer of Deutsche Bank
  • Anshu Jain, Co-Chief Executive Officer
  • Stefan Krause, Chief Financial Officer
  • Stephan Leithner, Chief Executive Officer Europe (except Germany and UK), Human Resources, Legal & Compliance, Government & Regulatory Affairs
  • Stuart Lewis, Chief Risk Officer
  • Rainer Neske, Head of Private and Business Clients, and
  • Henry Ritchotte, Chief Operating Officer
  • Greg K. Nakamura, Circuit Court Judge
  • Charles R. Prather, attorney for Deutsche Bank
  • Sofia M. Hirosone, attorney for Deutsche Bank
  • Michael G.K. Wong, attorney for Deutsche Bank

Kaiama also calls for those alleged defendants in Hawai‘i “be extradited to Germany for prosecution to the full extent of the law under the Treaty between the United States of America and the Federal Republic of Germany concerning Extradition that has been in force since August 29, 1980.” Kaiama also requests “immediate formal action be taken by the office of the prosecutor to have Deutsche Bank cease and desist the impending actions of Lt. Patrick Kawai, State of Hawai‘i Department of Public Safety Sheriff’s Department, to include his superiors and his deputies, to remove my clients from their home.” Kawai has already been reported to the Philippine Government for the war crime of pillaging a Filipino citizen’s property in Kona, Island of Hawai‘i.