Clarifying Army Regulations and Terms Regarding a Military Government of Hawai‘i

After securing Phase I of the of the Council of Regency’s strategic plan where in 1999 the Permanent Court of Arbitration “verified the Hawaiian Kingdom as independent State and subject of international law,” Phase II was initiated to expose “Hawaiian Statehood within the framework of international law and the laws of occupation as it affects the realm of politics and economics at both the international and domestic levels.” This exposure has brought out many aspects of international law and the law of occupation that many have heard only for the first time.

There are terms such as international humanitarian law, which the military refers to as the law of armed conflict. International law distinguishes between a State and its government. What occurred on January 17, 1893, was that United States troops and a diplomat overthrew the government of the Hawaiian Kingdom. The Hawaiian State was not affected by the overthrow and remained a subject of international law with its rights and duties intact. This type of situation under international humanitarian law is called belligerent occupation where the Occupying State must administer the laws of the Occupied State until a treaty of peace comes into effect.

The only way the United States could have acquired the territory of the Hawaiian Kingdom, called the Hawaiian Islands, is by way of a treaty of peace that cedes Hawaiian territory to the United States. The United States was unable to acquire Hawaiian territory by a treaty of cession because it overthrew the government. A treaty requires the government of a State to cede its territory. Instead, the United States enacted a congressional joint resolution purporting to have annexed the Hawaiian Islands at the height of the Spanish-American War in 1898. Since 1898, the United States has been unlawfully imposing its laws over Hawaiian territory, which is the war crime of usurpation of sovereignty during military occupation.

In the case of Hawai‘i, we are dealing with role of the Adjutant General of the Army and Air National Guard. Under federal and State law, the National Guard can serve two commanders in chief but not at the same time. According to Article II, section 2 of the U.S. Constitution, the President becomes the commander in chief of the National Guard “when called into the actual Service of the United States.” Until that time, the commander in chief of the National Guard is the Governor of the State.

Article V of the State of Hawai‘i Constitution provides that the Governor is the Chief Executive of the State of Hawai‘i. He is also the commander-in-chief of the Army and Air National Guard and appoints the Adjutant General who “shall be the executive head of the department of defense and commanding general of the militia of the State.” Section 121-9 of the Hawai‘i Revised Statutes states, “The adjutant general shall perform such duties as are prescribed by law and such other military duties consistent with the regulations and customs of the armed forces of the United States as required by the governor.” In other words, the Adjutant General operates under two regimes of law, that of the State of Hawai‘i and that of the United States Army.

When the National Guard is called into State active duty, not federal active duty, the Governor is the commander-in-chief and has command and control. Under him is the Adjutant General that has command and control of the forces that have been activated. This is what occurred when certain units of the Army and Air National Guard were activated in 1992 when Hurricane Iniki devastated the island of Kaua‘i. Governor John Waihe‘e was the commander-in-chief and Brigadier General Edward Richardson was the Adjutant General. When the Hawai‘i Army and Air National Guard were called to federal active duty for deployment to Iraq during Second Gulf War in 2005, the commander-in-chief changed from State of Hawai‘i Governor Linda Lingle to President George W. Bush.

These American laws, however, don’t apply in the Hawai‘i situation. Unlike the other 49 Governors of States in the Federal Union their authorities derive from American laws that include both Federal and State laws. Because the State of Hawai‘i is outside of the borders of the United States, and as such is foreign territory, the authority of the State of Hawai‘i to include its Governor is stripped. The reason for this is the authority of the Governor derives from the 1959 Statehood Act, which under international law is a war crime. What allows the State of Hawai‘i to exist, however, is international humanitarian law and the law of occupation. Under these laws, the State of Hawai‘i is a civilian armed force acting for the United States as an occupying State.

The decision to establish a military government in foreign territory is not with the U.S. President as commander-in-chief but rather with the most senior commander of the armed forces in foreign territory that has come under effective control. Article 42 of the 1907 Hague Regulations states, “Territory is considered occupied when it is actually placed under the authority of the hostile army.” The State of Hawai‘i, and not the Federal government, is in effective control of 94% of Hawaiian territory.

According to United States Army Field Manual 27-5—Civil Affairs Military Government, the theater commander over foreign territory to come under military occupation bears full responsibility for establishing a military government. That person is a general officer and designated as military governor and is authorized to delegate his authority and title, in whole or in part, to a subordinate commander.

Section 8 of FM 27-5 states, “In occupied territory the commander, by virtue of his position, has supreme legislative, executive, and judicial authority, limited only by the laws and customs of war and by directives from higher authority.” Section 3 states that the reasons for establishing a military government “are either military necessity as a right, or as an obligation under international law.” And since military occupation “suspends the operation of the government of the occupied territory, the obligation arises under international law for the occupying force to exercise the functions of civil government looking toward the restoration of maintenance of public order.”

In this situation, it is the State of Hawai‘i Adjutant General that has the responsibility and duty to establish a military government for Hawai‘i under international law and begin to administer Hawaiian Kingdom laws and the provisional laws in accordance with 2014 Proclamation of Provisional Laws by the Council of Regency.