Hawai‘i: A Humanitarian Crisis of Unimaginable Proportions

UN_Human_Rights_Council_LogoIn a move to bring international attention to the humanitarian crisis in the Hawaiian Islands as a result of the United States prolonged and illegal occupation since the Spanish-American War, a Complaint was submitted to the United Nations Human Rights Council (Council) on May 23, 2016. Dr. Keanu Sai represents the complainant, Kale Kepekaio Gumapac, as his attorney-in-fact. Dr. Sai also represents Gumapac before Swiss authorities regarding war crimes. Additional documents that accompanied the Complaint, included: War Crimes Report: Humanitarian Crisis in the Hawaiian Islands by Dr. Sai, his Declaration and Curriculum Vitae.

Dr. Keanu Sai“The lodging of the complaint was two-fold,” explains Dr. Sai. “First, the complaint will draw attention to the prolonged occupation of the Hawaiian Kingdom, which has created a humanitarian crisis of unimaginable proportions never before seen. Second, the purpose of the complaint is to report the war crimes committed against Kale Gumpac by Deutsche Bank, officials of the State of Hawai‘i, and others, which is now before the Swiss Federal Criminal Court. As a victim of war crimes, Mr. Gumapac is one of thousands, if not millions of victims who reside in Hawai‘i under an illegal foreign occupation.”

The Council was established in 2006 by the United Nations General Assembly and was formerly known as the United Nations Commission on Human Rights. The General Assembly gave the Council two main responsibilities: (a) promote universal respect for the protection of human rights and fundamental freedoms for all, without distinction of any kind and in a fair and equal manner; and (b) address situations of violations of human rights, including gross and systematic violations, and make recommendations to resolve them. The Council is comprised of 47 member States of the United Nations who are elected by the United Nations General Assembly for a term of three years.

The Council has a human rights mandate, but has also included as part of its mandate international humanitarian law. International human rights law are rights inherent in all human beings, whatever their nationality, place of residence, sex, national or ethnic origin, color, religion, language, or any other status. These rights are expressed in treaties such as the International Covenant on Civil and Political Rights and the International Convention on the Elimination of All Forms of Racial Discrimination. International humanitarian law is a set of rules to protect civilians and non-combatants during an armed conflict, which includes military occupation. Humanitarian law is expressed in treaties such as the 1907 Hague Convention, IV, and the 1949 Geneva Convention, IV.

In the past, it was thought that human rights law applied only during peace time and humanitarian law applied only during armed conflict, but current international law recognizes that both bodies of law are considered as complementary sources of obligations in situations of armed conflict. In its 2008 Resolution 9/9—Protection of the human rights of civilians in armed conflict, the Council emphasized “that conduct that violates international humanitarian law, including grave breaches of the Geneva Conventions of 12 August 1949, or of the Protocol Additional there of 8 June 1977 relating to the Protection of Victims of International Armed Conflicts (Protocol I), may also constitute a gross violation of human rights.”

The Council then reiterated “that effective measures to guarantee and monitor the implementation of human rights should be taken in respect of civilian populations in situations of armed conflict, including people under foreign occupation, and that effective protection against violations of their human rights should be provided, in accordance with international human rights law and applicable international humanitarian law, particularly Geneva Convention IV relative to the Protection of Civilian Persons in Time of War, of 12 August 1949, and other international instruments.”

Accompanying the Complaint is a War Crime Report that provides a comprehensive narrative of Hawai‘i’s legal and political history since the nineteenth century to the present. In the Report, Dr. Sai explains, “The Report will answer, in the affirmative, three fundamental questions that are quintessential to the current situation in the Hawaiian Islands:

  1. Did the Hawaiian Kingdom exist as an independent State and a subject of international law?
  2. Does the Hawaiian Kingdom continue to exist as an independent State and a subject of International Law, despite the illegal overthrow of its government by the United States?
  3. Have war crimes been committed in violation of international humanitarian law?”

After answering these questions in the affirmative, Dr. Sai would then conclude that the UNHRC has the authority to investigate the complaint “under the complaint procedure provided for in paragraph 87 of the annex to Human Rights Council resolution 5/1.”

Before providing the facts of Gumapac’s case, the Complaint gives a short summary of the Hawaiian Kingdom’s continued existence as a State under international law, and that this status was explicitly recognized by the Secretariat of the Permanent Court of Arbitration (PCA) in Lance Larsen v. Hawaiian Kingdom (1999-2001).

In the Complaint, Dr. Sai states, “Since the occupation began, the United States engaged in the criminal conduct of genocide under humanitarian law through denationalization. After local institutions of Hawaiian self-government were destroyed by the United States through its installed insurgency, a United States pattern of administration was imposed in 1900, whereby the former Hawaiian national character was obliterated.”

Dr. Sai went on to provide a pattern of criminal conduct in violation of international humanitarian law: “The United States interfered with the methods of education; compelled education in the English language; banned the use of Hawaiian, being the national language, in the schools; compulsory or automatic granting of United States citizenship upon Hawaiian nationals; imposed conscription of Hawaiian nationals into the armed forces of the United States; imposed the duty of swearing the oath of allegiance; confiscated and destroyed property of Hawaiian nationals for militarization; pillaged the property and estates of Hawaiian nationals; imposed American administrative and judicial systems; imposed American financial and economic administration; colonized Hawaiian territory with nationals of the United States; permeated the economic life through individuals whose nationality and/or allegiance was American; and denied Hawaiian nationals of aboriginal blood their vested right to health care at no charge at Queen’s Hospital, which was established by the Hawaiian government for that purpose.”

The Complaint calls upon the Council to take action without haste and recommends the Council to:

  • Strongly call upon the Government of the United States of America and its armed force, the State of Hawai‘i, to take urgent measures to comply fully with their obligations under international law, including international humanitarian law and human rights law;
  • Underline that the Government of the United States of America has the primary responsibility to make every effort to strengthen the protection of the civilian population in the Hawaiian Islands and to investigate and bring to justice perpetrators of violations of human rights and international humanitarian law; and
  • Appoint a Special Rapporteur on the humanitarian crisis in the Hawaiian Islands given the gravity and severity of an illegal and prolonged occupation of an independent State that has been allowed to continue unfettered without precedent in the history of international relations.

Additionally, the Council oversees a process called Universal Periodic Review (UPR), which involves a review of the human rights records of all member States of the United Nations, which includes its record of complying with international humanitarian law. In UPRs, the Council decided in its Resolution 5/1 that “given the complementary and mutually interrelated nature of international human rights law and international humanitarian law, the review shall taken into account applicable international humanitarian law.”

In the Complaint, Dr. Sai also draws attention to the UPR done on the United States in 2015. “The February 6, 2015 Report of the United States submitted to the United Nations High Commissioner for Human Rights in Conjunction with the Universal Periodic Review deliberately withheld information of the Hawaiian Kingdom despite the United States’ full and complete knowledge of arbitration proceedings held under the auspices of the PCA, and where the Secretariat of the PCA explicitly recognized the continuity of the Hawaiian Kingdom.”

Dr. Sai further states that “the draft report of the Working Group on the Universal Periodic Review of the United States dated May 21, 2015, and the final report of the United Nations Human Rights Council adopted on September 24, 2015, omits any mention of the Hawaiian Kingdom as well.” Instead, the 2015 UPR of the United States treats native Hawaiians as an indigenous people, which, under United Nations instruments, are nations of people that are non-States and reside within the territory of a State, such as Native American tribes. Common words that are associated with indigenous people include terms such as self-determination, colonization, and decolonization.

The 2015 UPR reflects the deception that has been perpetuated by the United States in order to conceal its prolonged occupation of the Hawaiian Kingdom that has now lasted for over a century, and the genocide of the Hawaiian citizenry who have been led to believe that aboriginal Hawaiians are an indigenous people that have been colonized by the United States. In the Complaint, Dr. Sai states, “Hawaiian nationals of aboriginal blood are not indigenous people as defined under United Nations instruments, but are defined under Hawaiian Kingdom law as Hawaiian subjects who comprise the majority of the national population.”

The American occupation of Hawai‘i is the longest occupation in the history of international relations, and it will be a shock for the international community to find out that the United States seized an internationally recognized neutral country in order to bolster its military, and carried out a policy of genocide through denationalization in violation of international humanitarian law. This policy that was carried out in 1900 resulted in the obliteration of Hawaiian national consciousness among the citizenry of the Hawaiian Kingdom in less then two generations.

Dr. Lynette Cruz interviews Dr. Sai on the topic of genocide through denationalization on her television show, Issues that Matter. Dr. Sai explains the difference between international humanitarian law and human rights law, and how genocide has and continues to occur through denationalization of Hawaiian subjects.

Pretext of War: 1894 Protest of Queen Lili‘uokalani

Lili‘uokalani_3The following protest by Queen Lili‘uokalani dated June 20, 1894 was lodged with the United States Secretary of State Walter G. Gresham. The protest was delivered by H.A. Widemann on June 22, 1894 to United States diplomat Albert S. Willis, assigned to the American Legation in Honolulu. Queen Lili‘uokalani’s protest centers on the events that transpired in January 1893 on the pretext of war and the creation of a pretended government.

January 17, 1893, was the first armed conflict between the Hawaiian Kingdom and the United States of America. The second armed conflict would occur on August 12, 1898 when the Hawaiian Kingdom would be unlawfully occupied by the United States during the Spanish-American War.

The pretended government installed by the United States on January 17, 1893, calling itself the provisional government, would change its name to the Republic of Hawai‘i in 1894, to the Territory of Hawai‘i in 1900, and finally to the State of Hawai‘i in 1959.

US troops 1893

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His Excellency
W.G. Gresham
Secretary of State
Washington, D.C.

To His Excellency
Albert S. Willis
U.S. Envoy Extraordinary Minister Plenipotentiary.

Sir,

Having in mind the amicable relations hitherto existing between the government which you here represent and the government of Hawaii, as evidenced by many years of friendly intercourse, and being desirous of bringing to the attention of your government the facts here following, I, Liliuokalani, by the grace of God, and under the Constitution of the Hawaiian Kingdom, Queen, do hereby solemnly protest that I am now and have continuously been since the 20th day of January A.D. 1891, the Constitutional Sovereign of the Hawaiian Kingdom; that on the 17th day of January A.D. 1893 – (in the words of the President of the United States himself) – “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. A substantial wrong has thus been done which a due regard for our national character as well as the rights of the injured peoples requires we should endeavor to repair;” that on said date I and my government prepared a written 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 said protest was forwarded to the President of the United States, also to Sanford B. Dole, Vice Chairman of the Executive Council of the said Provisional government, and was by the latter duly acknowledged; that in response to said protest the President of the United States sent a special commissioner in the person of Honorable James H. Blount to Honolulu to make an accurate, full, and impartial investigation of the facts attending the subversion of the Constitutional Government of Hawaii and the installment in its place of the Provisional Government; that said Commissioner arrived in Honolulu on the 29th day of March, A.D. 1893 and fulfilled his duties with untiring diligence and with care, tact and fairness; that said Commissioner found that the government of Hawaii surrendered its authority under a threat of war, until such time only as the government of the United States, upon the facts being presented to it should reinstate the Constitutional Sovereign, and the provisional government was created to exist until terms of union with the United States of America have been negotiated and agreed upon, also that but for the lawless occupation of Honolulu under false pretexts by the United States forces and but for the United States Minister’s recognition of the provisional government when the United States forces were its sole support, and constituted its only military strength, I, and my government would never have yielded to the provisional government, even for a time, and for the sole purpose of submitting my case to the enlightened justice of the United States, or for any purpose; also that the great wrong done to this feeble but independent state by an abuse of the authority of the United States should be undone by restoring the legitimate government.

That since the happening of said events, the executive and the Congress of the United States have formally declined the overtures of the said Provisional Government for the annexation of the Hawaiian Islands to the United States. That notwithstanding said facts, said provisional government has continued to exercise the functions of government in this Kingdom to the present date, and that its course, from the time of its inception to the present, has been marked by a succession of arbitrary, illiberal and despotic acts, and by the enactment and enforcement of pretended “laws” subversive of the first principles of free government and utterly at variance with the traditions, history, habits, and wishes of the Hawaiian people.

That said Provisional Government has now recently convened and is now holding what it is pleased to term a constitutional convention, composed of nineteen (19) self-appointed members being the President and Executive and Advisory Councils of said provisional government, and eighteen (18) delegates elected by less than ten percent (10%) of the legal voters of the Kingdom, consisting almost entirely of aliens, and chiefly of such aliens as have no permanent home or interest in Hawaii, and which said convention is now considering a draft of a constitution (copy of which is hereto attached) submitted for its approval by the Executive Council of said provisional government consisting of the President and Ministers thereof.

That it is the expressed purpose of the said provisional government to promulgate such Constitution as shall be approved by said convention without submitting it to a vote of the people, or of any of the people, and to thereupon proclaim a government under such constitution, and under the name of the Republic of Hawaii.

That the said provisional government has not assumed a republican or other Constitutional form, but has remained a mere executive council or oligarchy, set up without the consent of the people; that it has not sought to find a permanent basis of popular support, and has given no evidence of an intention to do so; that its representatives assert that the people of Hawaii are unfit for popular government and frankly avow that they can be best ruled by arbitrary or despotic power, and that the proposed constitution so submitted by said executive council of the provisional government for the approval of said convention does not provide for or contemplate a free, popular or republican form of government but does contemplate and provide for a form of government of arbitrary and oligarchical powers, concentrated in the hands of a few individuals irresponsible to the people, or to the representatives of the people, and which is opposed to all modern ideas of free government.

Wherefore, I, the constitutional sovereign of the Hawaiian Kingdom on behalf of myself and the people of my said Kingdom do hereby again most solemnly protest against the acts aforesaid and against any and all other acts done against myself, my people, and the Constitutional government of the Hawaiian Kingdom, and I do hereby most earnestly request that the government represented by you will not extend its recognition to any pretended government of the Hawaiian Islands under whatever name it may apply for such recognition, other than the constitutional government so deposed as aforesaid, – except such government shall show its title to exist by the will of the people of Hawaii, expressed at an election wherein the whole people shall have had an opportunity, unembarrassed by force, and undeterred by fear or fraud to register their preferences as to the form of government under which they will live.

With assurances of my esteem, I am, Sir,

Liliuokalani

The Martens Clause and War Crimes in Hawai‘i

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Under the principles of international law, officials of the United States were capable of committing war crimes when the Hawaiian Kingdom was first invaded on January 17, 1893 and occupied until April 1, 1893; and invaded again and occupied since August 12, 1898 during the Spanish-American War. The criminal conduct committed by German, Austrian and Bulgarian officials against Serbia and its people are very similar to the criminal conduct by the United States after 1898 against the Hawaiian Kingdom and its people.

Hawai’i Aloha – Song Across Hawai’i – Playing For Change Collaboration

“Hawai’i Aloha” features dozens of Hawai‘i’s top artists across many genres, and over 1,000 youth from 10 Hawaiian charter schools in one epic song. Recorded live across 27 locations, this is Hawaiiʻs most widely known song, used to close important gatherings of all sizes. It is a song of unity and Aloha ‘Aina (Aloha for one’s birthplace, land and home).

About this collaboration: Mana Maoli, a Hawaiian nonprofit, teamed up with Playing for Change and 4 Miles as part of their Mana Mele Project, which features a solar mobile studio and a Music & Multimedia academy. Alongside the youth – on campus, in real world settings, and in this video, is the “Mana Mele Collective” – over 200 artists, engineers, and filmmakers who donate their time and talents to mentorships, recordings and concerts in support of these schools. We hope you enjoy watching this collaborative effort as much as we enjoyed creating it!

For lyrics and a bit of history behind “Hawaiʻi Aloha”

Under International Law Native Hawaiians are Victims of Genocide

Under international humanitarian law, which includes the law of occupation and the protection afforded civilians who are not engaged in war, denationalization is not only a war crime but is synonymous with the term genocide. Since the occupation of the Hawaiian Kingdom began during the Spanish-American War, the United States embarked on a deliberate campaign of forced denationalization in order to conceal the occupation and militarization of a neutral State. Denationalization, in its totality, is genocide.

Children_Salute_1907

Prior to World War I, violations of international law did not include war crimes, or, in other words, crimes where individuals, as separate and distinct from the State or country, could be prosecuted and where found guilty be punished, which included the death penalty. The Commission on the Responsibility of the Authors of the War and on Enforcement of Penalties (Commission on Responsibility) of the Paris Peace Conference of 1919 took up the matter of war crimes after World War I (1914-1918). The Commission identified 32 war crimes, one of which was “attempts to denationalize the inhabitants of occupied territory.”

Although the 1907 Hague Convention, IV, did not specify the term “denationalization” as a war crime, the Commission on Responsibility relied on the preamble of the 1899 Hague Convention, II, which states, “Until a more complete code of the laws of war is issued, the High Contracting Parties think it right to declare that in cases not included in the Regulations adopted by them, populations and belligerents remain under the protection and empire of the principles of international law, as they result from the usages established between civilized nations, from the laws of humanity and the requirements of the public conscience.” This preamble has been called the Martens clause, which was based on a declaration read by the Russian delegate, Professor von Martens, at the Hague Peace Conference in 1899.

In October of 1943, the United States, the United Kingdom and the Soviet Union established the United Nations War Crimes Commission (UNWCC). World War II had been waging since 1939, and atrocities committed by Germany, Italy and Japan drew the attention of the Allies to hold individuals responsible for the commission of war crimes. On December 2, 1943, the UNWCC adopted by resolution the list of war crimes that were drawn up by the Commission on Responsibility in 1919 with the addition of another war crime—indiscriminate mass arrests. The UNWCC was organized into three Committees: Committee I (facts and evidence), Committee II (enforcement), and Committee III (legal matters).

Committee III was asked to draft a report expanding on the war crime of “denationalization” and its criminalization under international law. Committee III did not rely solely on the Martens clause as the Commission on Responsibility did in 1919, but rather used it as an aid to interpret the articles of the 1907 Hague Convention, IV. It, therefore, concluded that “attempts to denationalize the inhabitants of occupied territory” violated Article 43, where the occupying State must respect the laws of the occupied State; Article 46, where family honor and rights and individual life must be respected; and Article 56, where the property of institutions dedicated to education is protected.

In 1944, Professor Raphael Lemkin first coined the term “genocide” in his publication Axis Rule in Occupied Europe (p. 79-95). The term is a combination of the Greek word genos (race or tribe) and the Latin word cide (killing). The 1919 Commission on Responsibility did list “murders and massacres; systematic terrorism” as war crimes, but Professor Lemkin’s definition of genocide was much broader and more encompassing.

Raphael LemkinAccording to Professor Lemkin, “Generally speaking, genocide does not necessarily mean the immediate destruction of a nation, except when accomplished by mass killings of all members of a nation. It is intended rather to signify a coordinated plan of different actions aiming at the destruction of essential foundations of the life of national groups, with the aim of annihilating the groups themselves. The objectives of such a plan would be disintegration of the political and social institutions, of culture, language, national feelings, religion, and the economic existence of national groups, and the destruction of the personal security, liberty, health, dignity, and even the lives of the individuals belonging to such groups.”

“Genocide has two phases,” argued Professor Lemkin, “one, destruction of the national pattern of the oppressed group; the other, the imposition of the national pattern of the oppressor. This imposition, in turn, may be made upon the oppressed population which is allowed to remain, or upon the territory alone, after removal of the population and the colonization of the area by the oppressor’s own nationals. Denationalization was the word used in the past to describe the destruction of a national pattern.” Professor Lemkin believed that denationalization was inadequate and should be replaced with genocide.

The term genocide, however, was not a war crime under international humanitarian law at the time, but it appears that Committee III was in agreement with Professor Lenkin that it should be a war crime. The problem that faced Committee III was how to categorize genocide as a war crime under the Hague Convention, IV. On September 27, 1945, Committee III argued that denationalization was not a single act of “depriving the inhabitants of the occupied territory of their national characteristics,” but rather a program that attempted to achieve this result through: “interference with the methods of education; compulsory education in the language of the occupant; … the ban on the using of the national language in schools, streets and public places; the ban on the national press and on the printing and distributing of books in the language of the occupied region; the removal of national symbols and names, both personal and geographical; [and] interference with religious services as far as they have a national peculiarity.”

Committee III also argued that denationalization included other activities such as: “compulsory or automatic granting of the citizenship of the occupying Power; imposing the duty to swearing the oath of allegiance to the occupant; the introduction of the administrative and judicial system of the occupying Power, the imposition of its financial, economic and labour administration, the occupation of administrative offices by nationals of the occupying Power; compulsion to join organizations and associations of the occupying Power; colonization of the occupied territory by nationals of the occupant, exploitation and pillage of economic resources, confiscation of economic enterprises, permeation of the economic life through the occupying State or individuals of the nationality of the occupant.”

Committee III also stated that these activities by the occupying State or its nationals would also “fall under other headings of the list of war crimes.”

There were apparent similarities between Professor Lemkin’s definition of genocide and the Committee III’s definition of denationalization. Professor Lemkin argued that genocide was more than just mass murder of a particular group of people, but “the specific losses of civilization in the form of the cultural contributions which can only be made by groups of people united through national, racial or cultural characteristics (Lemkin, Genocide as a Crime under International Law, 41 AJIL (1947) 145, at 147).” Similarly, Committee III argued that denationalization “kill[s] the soul of the nation,” and was “the counterpoint to the physical act of killing the body, which was ordinary murder (Preliminary Report of the Chairman of Committee III, C.148, 28 Sept. 1945, 6/34/PAG-3/1.1.0, at 2).”

In its October 4, 1945 report “Criminality of Attempts to Denationalise the Inhabitants of Occupied Territory,” Committee III renamed denationalization to be genocide.

On December 11, 1946, the General Assembly of the United Nations adopted a resolution that declared genocide a crime under the existing international law and recommended member States to sign a convention. After two years of study, the General Assembly adopted the Convention on the Prevention and Punishment of the Crime of Genocide on December 9, 1948. By the Convention, genocide has been recognized as a crime even when there is no war or the occupation of a State. Genocide became an international crime along with piracy, drug trafficking, arms trafficking, human trafficking, money laundering and smuggling of cultural artifacts. During war or the occupation of a State, genocide is synonymous with the war crime of denationalization.

In the Trial of Ulrich Greifelt and Others (October 10, 1947-March 10, 1948) at Nuremberg, the United States Military Tribunal asserted Committee III’s interpretation that genocide can be committed through the war crime of denationalization. In its decision, the Tribunal concluded that, “genocide…may be perpetuated through acts representing war crimes. Among these cases are those coming within the concept of forced denationalisation (p. 42).”

The Tribunal explained, “In the list of war crimes drawn up by the 1919 Commission on the Responsibility of the Authors of the War and on Enforcement of Penalties, there were included as constituting war crimes ‘attempts to denationalize the inhabitants of occupied territory.’ Attempts of this nature were recognized as a war crime in view of the German policy in territories annexed by Germany in 1914, such as in Alsace and Lorraine. At that time, as during the war of 1939-1945, inhabitants of an occupied territory were subjected to measures intended to deprive them of their national characteristics and to make the land and population affected a German province (p. 42).”

When the Hawaiian Kingdom was occupied during the Spanish-American War, the United States operated in complete disregard to the recognized principles of the law of occupation at the time. Instead of administering the laws of the Hawaiian Kingdom, being the occupied State, the United States imposed its own laws, administration, judiciary and economic life throughout the Hawaiian Islands in violation of Hawaiian independence and sovereignty. According to Professor Limken, this action taken by the United States would be considered as “the imposition of the national pattern of the oppressor,” which is the second phase of genocide after the national pattern of the occupied State had been destroyed under the first phase.

In other words, the actions taken by the United States was precisely what the Axis Powers did in occupied territories during World War I and II, which, according to Committee III, included “interference with the methods of education; compulsory education in the language of the occupant; … the ban on the using of the national language in schools, streets and public places; the ban on the national press and on the printing and distributing of books in the language of the occupied region; the removal of national symbols and names, both personal and geographical; [and] interference with religious services as far as they have a national peculiarity. [As well as] compulsory or automatic granting of the citizenship of the occupying Power; imposing the duty to swearing the oath of allegiance to the occupant; the introduction of the administrative and judicial system of the occupying Power, the imposition of its financial, economic and labour administration, the occupation of administrative offices by nationals of the occupying Power; compulsion to join organizations and associations of the occupying Power; colonization of the occupied territory by nationals of the occupant, exploitation and pillage of economic resources, confiscation of economic enterprises, permeation of the economic life through the occupying State or individuals of the nationality of the occupant.”

Under Hawaiian law, native (aboriginal ) Hawaiians had universal health care at no charge through the Queen’s Hospital, which received funding from the Hawaiian Kingdom legislature. Early into the occupation, however, American authorities stopped the funding in 1904, because they asserted that the collection of taxes used to benefit a particular ethnic group violated American law. In a legal opinion by the Territorial Government’s Deputy Attorney General E.C. Peters on January 7, 1904, to the President of the Board of Health, Peters stated, “I am consequently of the opinion that the appropriation of the sum of $30,000.00 for the Queen’s Hospital is not within the legitimate scope of legislative authority.”

Since 1904, aboriginal Hawaiians had to pay for their healthcare from an institution that was established specifically for them at no charge. According to the International Criminal Court’s (ICC) Elements of Crimes, one of the elements of the international crime of “Genocide by deliberately inflicting condition of life calculated to bring about physical destruction,” is that the “conditions of life were calculated to bring about the physical destruction of that group, in whole or in part.” The ICC recognizes the term “conditions of life” includes, “but is not necessarily restricted to, deliberate deprivation of resources indispensable for survival, such as food or medical services, or systematic expulsion from homes.”

As a result of the “deliberate deprivation of…medical services,” many aboriginal Hawaiians could not afford medical care in their own country, which has led to the following dire health statistics today.

  • 13.4% of aboriginal Hawaiians who were surveyed in 2013 reported that they do not have any kind of health care coverage, which is the highest rate across all ethnic groups surveyed (Nguyen & Salvail, Hawaii Behavioral Risk Factor Surveillance System, State of Hawai‘i Department of Health).
  • Aboriginal Hawaiians have the highest rate of diabetes in the Hawaiian Islands (Crabbe, Eshima, Fox, & Chan (2011), Native Hawaiian Health Fact Sheet 2011, Office of Hawaiian Affairs, Demography Section, Research Division).
  • 5% of aboriginal Hawaiians are overweight, which is higher than any other ethnic group in the Hawaiian Islands (Nguyen & Salvail, 2013).
  • 7% of aboriginal Hawaiians have high blood pressure, being second only to Japanese at 39.7% (Nguyen & Salvail, 2013).
  • Aboriginal Hawaiians are more likely to have chronic diseases than non-aboriginal Hawaiians (Nguyen & Salvail, 2013).
  • 48% of the deaths of aboriginal Hawaiian children occur during the perinatal period (Crabbe et al., 2011).
  • 7% of aboriginal Hawaiian adults report being diagnosed with a depressive disorder (Nguyen & Salvail, 2013).

Professor Lemkin would view these statistics as connoting “the destruction of the biological structure” of aboriginal Hawaiians, which is the outcome of the second phase of genocide where the imposition of the national pattern of the oppressor has been established. In addition to these statistics are added the deaths of aboriginal Hawaiians who died in the wars of the United States after forced conscription into the Armed Forces and their compulsion to swear allegiance. These wars included World War I, World War II, the Korean War and the Vietnam War.

US Recruiting Poster