Swiss Federal Criminal Court Recognizes Switzerland’s Treaty with the Hawaiian Kingdom was Never Cancelled and Implies Hawai‘i was Never Annexed

In a cogent and thoughtful decision the Swiss Federal Criminal Court Objections Chamber recently issued two important and profound statements as to the sovereignty of the Hawaiian Kingdom. Although the Court held that, the filing was untimely and no longer appropriate in a Swiss Federal Criminal Court. The case has now been moved to the Criminal Law section of the Swiss Federal Supreme Court in Lausanne. These procedural issues do not diminish the two critical statements the Court made about the status of Hawai‘i.

Download Federal Criminal Court Decision (German) (translation to English)

First, the Court stated that the 1864 Treaty between Switzerland and the Hawaiian Kingdom was never canceled—and is still in effect. Second, the Court identified certain officials and former officials of the State of Hawaii by name as possibly subject to a continuing investigation as to alleged war crimes. Although the Court ruled the filing was untimely, the Court did provide a means by which the plaintiffs could obtain review in the Swiss Supreme Court.

Professor Williamson B.C. Chang, a law professor at the University of Hawai‘i at Manoa, called this statement by the Swiss Court “an extraordinary assessment of the status of Hawaii with enormous ramifications. It confirms my own views that the United States never acquired the Hawaiian Islands, either in 1898 or thereafter.”

Professor Chang also stated, “Indeed, the fact that the statement was made, given that there was no need to make such a statement, renders the statement even more significant. If Hawai‘i had been annexed then all treaties of the Hawaiian Kingdom would have become void.”

The U.S. congressional joint resolution that purportedly annexed Hawai‘i in 1898 during the Spanish-American War stated, “The existing treaties of the Hawaiian Islands with foreign nations shall forthwith cease and determine, being replaced by such treaties as may exist, or as may be hereafter concluded, between the United States and such foreign nations.” Obviously the Swiss Court was not swayed by the language of the joint resolution of Congress, and therefore concluded that the Hawaiian-Swiss Treaty was not cancelled.

To Professor Chang, the statement of the Swiss Court directly contradicts the official position of the United States as currently maintained by the United States Department of State, Office of the Historian, on its official website, “The McKinley Administration also used the [Spanish-American] war as a pretext to annex the independent state of Hawaii… At McKinley’s request, a joint resolution of Congress made Hawaii a U.S. territory on August 12, 1898.”

Second, and equally significant, the Objections Chamber of the Swiss Federal Criminal Court specifically named present and former State of Hawai‘i officials as well others who are defendants and alleged war criminals. Again, the Swiss Criminal Court dismissed on the grounds of untimeliness, nevertheless, the Court held that plaintiffs had a pathway to bring their claims before the Swiss Supreme Court. Thus, the actions of the Defendants will continue to be examined before that Court.

The naming of names is significant because the Court had no need to identify these individuals. Those named are the former Chief Executive Officer of Deustch Bank, Joseph Ackerman, the former Governor of the State of Hawai‘i, Neil Abercrombie, current Lieutenant Governor Shan Tsutsui, former Director of the Department of Taxation, Frederik Pablo, and former deputy Director, Joshua Wisch.

The Swiss criminal action began when the Swiss Attorney General received a war crimes report by Dr. Keanu Sai, as the attorney-in-fact for Mr. Kale Gumapac, a Hawaiian subject, who was a victim of war crimes in December 2014. Dr. Sai also represents another war crimes victim who is a Swiss citizen residing in the Hawaiian Islands, but his name is kept confidential for safety concerns. Prosecutor Andreas Muller from the Attorney General’s Competence Centre for Terrorism and Competence Centre for International Criminal Law initiated a war crimes investigation.

Prosecutor Muller abandoned the investigation on February 3, 2015, and Dr. Sai objected to the Swiss Federal Criminal Court Objections Chamber seeking an order to direct the Prosecutor to complete the investigation and proceed with the prosecution.

The Objections Chamber concluded they were prevented from hearing the objection because of a previous court case that stated if a private courier, such as FedEx, was used to submit documents to a court it would only recognize the date it was received and not the date it was postage marked. There was a 10-day period to object after Dr. Sai received the Prosecutor’s decision and report on March 23, 2015. The deadline to object was April 2, 2015. Although, the objection was sent via FedEx on April 1, 2015, it did not arrive at the Objections Chamber until April 8.

“When I received the Prosecutor’s report I needed to get it translated into the English language in order to draft the objection,” said Dr. Sai. “Once I got the translation, I wrote the objection, which was 12 pages, and then I proceeded to get it translated into German before sending it off. After the translation was completed on April 1, I immediately went to FedEx.” At the request of Dr. Sai, the Clerk of the Federal Criminal Court forwarded the case to the Federal Supreme Court in Lausanne.

In a letter (German) (translation to English) to Dr. Sai from the Criminal Law Section of the Federal Supreme Court dated May 21, 2015, the Clerk of the Court stated the Supreme Court will accept the case if Dr. Sai would “explicitly state by June 5, 2015 that the Federal Supreme Court should accept and treat [his] submission as an objection in criminal matters.” As directed, Dr. Sai drafted a letter dated May 24, 2015 (German) (translation to English), which stated “I hereby explicitly state that the Federal Supreme Court should accept and treat my submission in the above case as an objection in criminal matters pursuant to the provisions of the Federal Supreme Court Act (BGG) of June 17, 2005.” Dr. Sai’s letter arrived in Switzerland by a personal courier and mailed to the Supreme Court through the Swiss postal service on May 28, 2015, which met the deadline of June 5.

Big Island News Video: Kanuha Talks About Delivering War Crimes Complaint To Canada

Big Island Video New Canada War Crimes Kanuha

HILO – On May 14, it was reported that a war crimes complaint was filed in Canada in connection with the planned Thirty Meter Telescope project on Mauna Kea. Since then, Kaho‘okahi Kanuha – one of the two individuals that made the international trip to deliver the complaint – returned to Hawaii. Kanuha is a spokesperson for the group that is blocking TMT from the summit of Mauna Kea. We spoke to him in Hilo on Saturday afternoon, May 16th.

The complaint was drafted by Kanuha’s attorney Dexter Kai’ama. Kanuha was accompanied by Dr. Keanu Sai, who drafted a detailed War Crimes Report at the request of Kai’ama. Shortly after the headline grabbing arrests that took place on the mountain on April 2, Big Island Video News spoke to both men.

One of the 31 arrested on Mauna Kea was Kanuha. Since then, his role in the movement has transformed as he takes on speaking engagements across the islands, although his position in regards to the TMT has not changed.

Since this interview was conducted, TMT announced Canada as a full partner in the project.

KITV 4 News: TMT Opponent Kaho‘okahi Kanuha files Formal War Crimes in Canada

KITV War Crimes

Click here to view the KITV News clip that aired on Wednesday May 13, 2015.

HONOLULU—And there are no signs of slowing down for TMT opponents. In Canada earlier today, they filed formal war crimes complaints with the Canadian Justice Department.

Activist Kaho‘okahi Kanuha says the charges are for desecration of property, unlawful confinement, and being denied the right to a fair trial. The last two relates to the arrests of 31 protestors who blocked construction of the thirty-meter telescope.

Kaho‘okahi Kanuha in Canada stated: “We’re working off of the fact that Hawai‘i was never legally annexed by the United States of America. This has gotten international attention, world-wide attention, and the ramifications of the actions taking place on the mountain, are very, very, they’re huge.”

Kanuha says that filing initiates a preliminary inquiry into their complaints. He says if the Canadian Justice Department finds “probable cause”—it will launch a criminal investigation.

Canada and War Crimes

Canada is a constitutional monarchy. The British Monarch is the Head of State and the Canadian Prime Minister is the Head of Government. Canada received its dominion status in 1867 under the Constitution Act enacted by the British Parliament. This Act provided self-government for Canada while the British Monarch remained the Head of State represented by a Governor General. Today the Constitution Act of 1867 forms the basis of Canada’s constitution.


Since 1867, Canada’s treaties with other countries required the countersignature of a British Minister. The first treaty Canada entered into on its own was with the United States in 1923—the Halibut Treaty. Prior treaties that Great Britain entered into with other countries before 1923 applied to Canada if it mentioned the treaties application to British dominions as well as to the United Kingdom.

When the Hawaiian Kingdom entered into a Treaty of Friendship, Commerce and Navigation in 1851 with the British, the treaty applied to the United Kingdom and the British Monarch’s dominions, which included Canada. The Hawaiian-British Treaty would also apply to other countries that achieved dominion status, which today is referred to as realm status, include Antigua and Barbuda, Australia, The Bahamas, Barbados, Grenada, Jamaica, New Zealand, Papua New Guinea, St. Christopher and Nevis, St. Lucia, St. Vincent and the Grenadines, Solomon Islands, and Tuvalu. All realm countries recognized the British Monarch as the Head of State.

The Hawaiian-British Treaty is permanent and has no provision for cancellation. Other treaties the Hawaiian Kingdom entered into that have no provisions to terminate and are permanently binding include Denmark (1846) and Japan (1871).

In 1985, Canada established the Commission of Inquiry on War Criminals “to conduct such investigations regarding alleged [Nazi] war criminals in Canada, including whether any such persons are now resident in Canada and when and how they obtained entry to Canada.” The Commission made recommendations on how to bring war criminals to justice proposed amendments to laws to accomplish this.

By virtue of these recommendations, specialized war crime sections were established in the Department Justice, the Royal Canadian Mounted Police (RCMP), and the Citizenship and Immigration Canada. In 1998, the War Crimes Program was established as an interdepartmental initiative between these three departments. In 2003, the Canada Border Services Agency joined the three.

On December 18, 1998, Canada signed the International Criminal Court’s (ICC) Rome Statute that reinforced Canada’s commitment to enact further legislation to criminalize war crimes, crimes against humanity, and genocide. In 2000, Canada enacted the Crimes Against Humanity and War Crimes Act that authorized Canadian authorities to prosecute war crimes committed on Canadian territory and outside of Canada. If the war crimes are committed on Canadian territory, the jurisdiction is territorial. If the war crimes are committed abroad by a Canadian the jurisdiction is active personality principle, and if the victim of the war crime is Canadian the jurisdiction is passive personality principle. If the war crimes committed abroad have no direct connection to Canada, the jurisdiction is universal principle.

The ICC exercises universal jurisdiction with the primary responsibility to prosecute is with countries that signed the Rome Statute, but for cases that will be prosecuted by the ICC, Canada amended its Mutual Legal Assistance in Criminal Matters Act (1985) in 2015 to allow Canadian authorities to assist the ICC Prosecutor with their own investigation of persons and the gathering evidence in Canada.

RCMP Bldg (1)The RCMP National Division’s Sensitive and International Investigations unit is responsible criminal investigations for war crimes. The Sensitive and International Investigations “is tasked with investigating the activities of suspected war criminals who have sought safe haven in Canada. These investigations require strong collaboration between the RCMP and our national and international partners, the ability to adapt to various foreign legal systems while respecting their customs and laws, and bringing these convicted war criminals to justice by denaturalizing, deporting or extraditing them.”

This unit works together with the Department of Justice’s Crimes Against Humanity and War Crimes Section. War crimes can be reported to both agencies and both are headquartered in Ottawa, capital city of Canada.

War Crimes on Mauna Kea Reported to Canadian Federal Authorities

Dexter_KaiamaOTTAWA, CANADA – On May 13, 2015, attorney Dexter Ka‘iama reported war crimes of unlawful confinement, deprivation of a fair trial, and destruction of public property to the Department of Justice’s Crimes against Humanity and War Crimes section and to the Royal Canadian Mounted Police (RCMP) National Division’s Sensitive and International Investigations on behalf of his client, Mr. Kaho‘okahi Kanuha. War crimes were alleged to have been committed by TMT International Observatory, LLC, (TMTIO), which has a Canadian partner, the Association of Canadian Universities for Research in Astronomy. Canada’s government also recently committed $250 million dollars for the construction of the thirty-meter telescope by TMTIO on Mauna Kea.

Ka‘iama requested Dr. Keanu Sai, a political scientist, to draft a War Crimes Report to accompany the complaint so Canadian authorities can understand the context of why war crimes are being committed in the Hawaiian Islands. The report affirmatively answers four fundamental questions that underlie Ka‘iama’s complaint: first, whether the Hawaiian Kingdom existed as an independent State and a subject of international law in the nineteenth century; second, whether the Hawaiian Kingdom continues to exist as an independent State and a subject of International Law, despite the illegal overthrow of its government by the United States on January 17, 1893; third, whether war crimes have been committed in violation of international humanitarian law; and, fourth, whether the Canadian Government is capable of investigating and prosecuting war crimes that occur outside of its territory.

Download the War Crimes Complaint.
Download the War Crimes Report.

RCMP Shield

Due to a court appearance on Maui, Ka‘iama was unable to accompany Kanuha to meet with the Canadian authorities. In his stead, Dr. Sai, who is Ka‘iama’s law office’s expert consultant on these matters, accompanied Kanuha. In a letter to the Canadian authorities, Ka‘iama stated, “Dr. Sai is perhaps the foremost qualified expert to answer any questions you may have regarding the case as well as the circumstances of why the Hawaiian Islands are currently under an illegal and prolonged occupation by the United States since the Spanish-American War, 1898, being an international armed conflict as defined under common Article 2 of the 1949 Geneva Conventions.”

KITV-Kanuha“We met with two Constables who were criminal investigators of the RCMP’s Sensitive and International Investigations unit at their headquarters,” said Kanuha. “They fully understood what we were saying about war crimes and they took it very seriously. At first they were puzzled because they assumed Hawai‘i was a part of the United States, but Dr. Sai was able to explain why and how we were occupied since the Spanish American War. Dr. Sai even lightened things up when he asked them if they ever saw the movie Matrix, and after they both said yes, he jokingly told them that they just took the red pill and now they know about Hawai‘i’s occupation. Dr. Sai even told the Constables that Keanu Reeves, a Canadian citizen who played Neo in the Matrix, was his cousin.”

The war crimes were reported in accordance with the Canadian Crimes Against Humanity and War Crimes Act (2000) and international humanitarian law. Ka‘iama stated, “I am filing this complaint, on behalf of my client, Mr. Chase Michael Kaho‘okahi Kanuha, a Hawaiian subject and protected person, for the war crime of deprivation of liberty when he, along with thirty other individuals, was unlawfully arrested and temporarily detained on April 2, 2015, in the taking of protective measures to prevent the war crime of destruction of public property during occupation to be carried out by TMT International Observatory, LLC, (TMTIO) upon the summit of Hawai‘i’s largest mountain Mauna a Wakea, also known as Mauna Kea. Additionally, my client is reporting the war crimes of destruction of public property during occupation committed in the building and erecting of the following thirteen observatories:

  1. University of Hawai‘i Institute for Astronomy’s UH telescope built in 1970;
  2. NASA’s Infrared Telescope Facility built in 1979;
  3. CFHT Corporation’s Canada-France-Hawai‘i Telescope built in 1979;
  4. UKIRT’s United Kingdom Infrared Telescope built in 1979;
  5. East Asian Observatory’s James Clerk Maxwell Telescope built in 1987;
  6. Caltech Submillimeter Observatory’s telescope (10-meter) built in 1987;
  7. National Radio Astronomy Observatory’s Very Large Baseline Array radio-telescope antennas built in 1992;
  8. M. Keck Observatory’s Keck I telescope built in 1993;
  9. M. Keck Observatory’s Keck II telescope built in 1996;
  10. National Astronomical Observatory of Japan’s Subaru Telescope built in 1999;
  11. Gemini Observatory’s Gemini Northern Telescope built in 1999;
  12. Smithsonian Astrophysical Observatory and the Academia Sinica Institute of Astronomy and Astrophysics of Taiwan’s Submillimeter Array built in 2002;
  13. University of Hawai‘i at Hilo’s UH Hilo Educational Telescope built in 2010.”

In the complaint, Ka‘iama invoked his client’s rights under the 1851 Hawaiian-British Treaty with the filing of this complaint. Article VIII provides, “The subjects of either of the contracting parties, in the territories of the other, shall receive and enjoy full and perfect protection for their persons and property, and shall have free and open access to the courts of justice in the said countries, respectively, for the prosecution and defense of their just rights; and they shall be at liberty to employ, in all causes, the advocates, attorneys or agents of whatever description, whom they may think proper; and they shall enjoy in this respect the same rights and privileges as native subjects.” The treaty, among other things, provides reciprocal rights to the subjects of the Hawaiian Kingdom and to the subjects of Her Majesty in all of her dominions, which includes Canada.

Download the 1851 Hawaiian-British Treaty

The treaty is perpetual and has no provisions for termination, except for termination of articles 4, 5, and 6 that apply to duties and trade. According to Dr. Sai, “the treaty continues to be binding on Her Britannic Majesty in right of Canada or any of its provinces.” In 1893, the Hawaiian Kingdom maintained a Legation in London, a Consul General in Toronto (Ontario), and Consulates in Montreal (Québec), Belleville (Ontario), Kingston (Ontario), Rimouski (Québec), St. Johns (Newfoundland and Labrador), Yarmouth (Nova Scotia), Victoria (British Columbia), and Vancouver (British Columbia).

After Ka‘ima stated, “In accordance with the principle that war crimes shall not be treated with impunity, and also pursuant to §702.1 of Canada’s Unit Guide (1990), which notes that the Geneva Conventions ‘impose an obligation on all nations which have ratified them to search for and try all persons who committed or ordered to be committed grave breaches of the Conventions,’” he requested “that an enquiry be instituted by the RCMP’s Sensitive and International Investigations concerning the alleged violations of the 1949 Geneva Convention, IV. And, if after careful review the violations have been established, I call upon the Canadian authorities to put an end to the violations and punish those responsible without any possible delay.”

Kanuha said, “This is not a conflict between culture and science, but rather on procedures that have not complied with international law and the law of occupation. If Hawai‘i is legally a part of the United States then there are no war crimes, but if Hawai‘i is not then we are forced to deal with the ramifications of this new reality and war crimes that have been committed on Mauna a Wakea. This has been a learning process for me and for many others as well. I never thought stopping the building of the thirty-meter telescope would be at the international level.”

CONTACT: Dexter Ka‘iama, Esquire
Phone: (808) 284-5675