Monthly Archives: February 2024

Component Commands of the Indo-Pacific Command Notified to Withdraw from the Hawaiian Islands prior to October 26, 2024

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On October 20, 2023, the Council of Regency, as the government of the occupied State, initiated the process to terminate the 1884 Supplemental Convention (“Pearl Harbor Convention”). Secretary of State Antony Blinken received the notice of termination from the Council of Regency on October 26, 2023, at 05:47 hours, which consequently triggered the tolling of twelve months. According to the terms of the Pearl Harbor Convention, the treaty will be terminated on October 26, 2024, 05:47 hours.

The Pearl Harbor Convention extended the duration of the 1875 Commercial Reciprocity Treaty an additional seven years until 1894, unless either the United States or the Hawaiian Kingdom gives notice to the other of its intention to terminate the treaty and convention. According to Article I:

The High Contracting Parties agree, that the time fixed for the duration of the said Convention, shall be definitely extended for a term of seven years from the date of the exchange of ratifications hereof, and further, until the expiration of twelve months after either of the High Contracting Parties shall give notice to the other of its wish to terminate the same, each of the High Contracting Parties being at liberty to give such notice to the other at the end of the said term of seven years or at any time thereafter.

As a condition for the extension of the commercial treaty, the United States sought exclusive access to Pearl Harbor. Article II of the Pearl Harbor Convention provides:

His Majesty the King of the Hawaiian Islands grants to the Government of the United States the exclusive right to enter the harbor of Pearl River, in the Island of Oahu, and to establish and maintain there a coaling and repair station for the use of vessels of the United States, and to that end the United States may improve the entrance to said harbor and do all other things needful to the purpose aforesaid.

According to Article 1, the Pearl Harbor Convention came into effect in 1887 after ratifications were exchanged in Washington, D.C., and would last for seven years and further until “either of the High Contracting Parties shall give notice to the other of its wish to terminate the same,” where termination would commence twelve months after the notification is received by the other High Contracting Party. Although the Hawaiian government was unlawfully overthrown by the United States on 17 January 1893, the Hawaiian Kingdom as a State under international law continued to exist.

After the Hawaiian government was overthrown by the United States in 1893, the United States did nothing with Pearl Harbor until 1908 when the United States Congress allocated monies to build a naval station instead of a “coaling and repair station.” This violated the terms of the Pearl Harbor Convention as well as violating the Hawaiian Kingdom’s neutrality under international law.

The Pearl Harbor Convention has a direct nexus to the presence of the U.S. military component commands of the Indo-Pacific Command that has military installations and firing ranges outside of the perimeter of Pearl Harbor. Component commands of the Indo-Pacific Command include: United States Army Pacific, United States Marine Corps Forces Hawai‘i, and United States Joint Base Pearl Harbor-Hickam.

A note of the Hawaiian Kingdom attached to the Pearl Harbor Convention stated, “that Hawaiian Sovereignty and jurisdiction were not impaired that the Hawaiian Government was not bound to furnish land for any purpose and that the privilege to be granted should be coterminous with the Treaty.” Coterminous is defined as “having the same boundaries,” which is limited to Pearl Harbor.

The unlawful presence of the United States military has transformed the Hawaiian Kingdom from a neutral State into a military target by its adversaries, which first occurred on 7 December 1941 when Japan’s military forces attacked U.S. military targets. The high probability of military attacks by other countries, such as North Korea, China, and Russia continue due to the rising tensions in the Indo-Pacific region. In 1990, the Federal Emergency Management Agency’s Risks and Hazards—A State by State Guide listed 6 targets for nuclear attack that would effectively annihilate the entire Island of O‘ahu. The presence of the United States military places the civilian population of the Hawaiian Kingdom into perilous danger.

The component commanders—General Charles A. Flynn, Commander U.S. Army Pacific, Lieutenant General William M. Jurney, Commander U.S. Marine Corps Forces Hawai‘i, Captain Mark Sohaney, USN, Commander U.S. Joint Base Pearl Harbor-Hickam, and Colonel Monica Gramling, Deputy Commander U.S. Joint Base Pearl Harbor-Hickam, were notified by Dr. David Keanu Sai, as Head of the Royal Commission of Inquiry:

In light of the termination of the Pearl Harbor Convention, all Title 10 military forces of the four component commands of the Indo-Pacific Command—Army, Navy, Air Force and Marines, shall forthwith cease and desist any and all military exercises, to include utilizing live fire ranges across the islands, and anywhere within 200 nautical miles from the low water mark of the shoreline of the islands that constitute the Hawaiian Kingdom’s territorial sea and its exclusive economic zone, and to complete the withdrawal from the Hawaiian Islands by 26 October 2024.

The Staff Judge Advocates of the Indo-Pacific Command and the 25th Infantry Division were also included with the notifications. In his letters, Dr. Sai restated from the Council of Regency’s proclamation terminating the Pearl Harbor Convention:

And, We do require that when the United States has received this notice of termination, it shall, prior to the expiration of twelve months in accordance with Article I of the 1884 Supplemental Convention, remove all movable property at its military facilities throughout the Hawaiian Islands, including unexploded munitions, and fuel, with the exception of real property attached to the land or erected on it, including manmade objects, such as buildings, homes, structures, roads, sewers, and fences, to include on other properties that have been or are currently under its supervision and command.

Dr. Sai stated that the reasoning for notifying the component commands was because it was unclear whether the State Department notified Indo-Pacific Command of the termination of the Pearl Harbor Convention. Dr. Sai also stated that it did not appear that U.S. troops were beginning to be withdrawn. In his letters to the commanders of the component commands, Dr. Sai addressed the war crimes of confiscation or destruction of property:

Military installations and target ranges beyond Pearl Harbor were unlawfully confiscated by the United States from the Hawaiian Kingdom public lands and the estates of private persons in violation of international humanitarian law and the law of occupation. Live fire at these target ranges constitute destruction of property. According to Professor William Schabas, renowned expert on international criminal law, war crimes and human rights, in his legal opinion on war crimes being committed in the Hawaiian Kingdom, there are five elements of the war crime of confiscation or destruction of property.

Following the end of hostilities during the Second World War, the war crimes tribunals in Nuremburg and Tokyo, “marked a clear recognition by the international community that all members of the chain of command who participate or acquiesce in war crimes must bear individual criminal responsibility.” Command responsibility arises when the military superior during an occupation of a foreign State fails to exercise sufficient control and accountability for his/her subordinates’ in the commission of war crimes. And a “non-military commander is [also] responsible for omissions which lead to the commission of crimes.” The doctrine of command responsibility arises when a superior, by omission, fails to control or punish those under his/her command.

Dereliction of the performance of a duty arises when a commander took no action to prevent, stop, or punish. Confiscation and destruction of property are war crimes and commanders of the four component commands have a duty to stop the further commission of these and other war crimes. Dereliction of the performance of a duty is also a war crime of omission.

Dr. Sai’s letter concluded with:

Since 17 April 2023, I have been in communication with Major General Kenneth Hara of the State of Hawai‘i Department of Defense, regarding his duty under international law and Army regulations, to transition the State of Hawai‘i into a military government. Of note in my meeting with BG Okamura on November 1, 2023, he stated to me that the withdrawal of U.S. troops because of the termination of the Pearl Harbor Convention will create chaos. I acknowledged that it would indeed be chaotic, and then answered that is precisely why MG Hara must establish a military government to facilitate the withdrawal of U.S. troops and begin to comply with the law of occupation. BG Okamura responded to me with that’s a good plan.

Unlike American politicians, members of the military have a duty and responsibility to comport with international law and regulations. To begin to withdraw Title 10 troops under your command is a duty imposed by the terms of a treaty and that you have command responsibility. Your presence in this country was by virtue of a treaty that would last from 1887 to 1894, and further, unless either country gives notice to the other of its intention to terminate. That notice to terminate was received by the United States on 26 October 2023 at 05:47 hours, which triggered the tolling of 12 months for termination. Therefore, your withdrawal is a duty imposed by the termination of that treaty that is not affected by any presidential or congressional action.

There would be no duty imposed upon you if the Hawaiian Kingdom had ceased to exist as a State under international law, but this is not the case because the United States recognized the continued existence of the Hawaiian Kingdom as a State and the Council of Regency as its government by opinio juris. Additionally, the United States explicitly recognized the Council of Regency by agreement so it could be granted permission to access all records and pleadings of the Larsen v. Hawaiian Kingdom case at the Permanent Court of Arbitration.

The Piercing Effect of International Criminal Culpability upon Individuals that are Outside of the United States

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When United States President Grover Cleveland admitted that the overthrow of the government of the Hawaiian Kingdom was an “act of war,” it triggered international humanitarian law and the law of occupation on January 17, 1893. Instead of restoring Queen Lili‘uokalani as the Executive Monarch under a treaty called an executive agreement, by exchange of notes, between the Queen and President Cleveland, on December 18, 1893, Cleveland’s successor, President William McKinley unilaterally seized the Hawaiian Islands when he signed into American law the joint resolution of annexation on July 7, 1898. The purpose of the unilateral seizure of the Islands was to establish a military outpost to protect the west coast of the United States.

For the past 131 years, the United States has not been held to account for their violations of international law and the sovereignty of the Hawaiian Kingdom because violations of international law did not hold governmental officials of the State accountable for the actions of soldiers who committed war crimes. In 1919, there was an attempt to hold to account the German Kaiser for war crimes by an international tribunal established by the Allies of the First World War.

In its report, the Commission on the Responsibility of the Authors of the First World War concluded, “All persons belonging to enemy countries, however high their position may have been, without distinction of rank, including Chiefs of States, who have been guilty of offenses against the laws and customs of war or the laws of humanity, are liable to criminal prosecution” by the international tribunal. The United States, however, was against this. U.S. members of the Commission stated:

In regard to the latter point, it will be observed that the American representatives did not deny the responsibility of the heads of states for acts which they may have committed in violation of law, including in so far as their country is concerned, the laws and customs of war, but they held that heads of states are, as agents of the people, in whom the sovereignty of any state resides, responsible to the people for the illegal acts which they may have committed, and that they are not and that they should not be made responsible to any other sovereignty.

In other words, the United States position was to have the countries themselves prosecute their Heads of State. This position also implied that if the country’s won’t prosecute their Heads of State, their criminal culpability would go unchecked. The United States position would change, however, after the fall of the Nazi government and the Imperial Japanese government during the Second World War. Here an international tribunal was established to try high-level officials of the Nazi regime for war crimes and high-level officials of the Imperial Japanese government. This unified system laid the groundwork for the creation of international criminal law.

As stated by the International Military Tribunal at Nuremberg, in United States, France, Great Britain, and the Soviet Union v. Göring et al. (1948), “crimes against international law are committed by men, not by abstract entities, and only by punishing individuals who commit such crimes can the provisions of international law be enforced.” Abstract entities are countries called States. In other words, you can’t punish the State, but you can hold to account members of the government of a State, whether civilian or military, for war crimes.

In 2002, the International Criminal Court (ICC) was established in The Hague, Netherlands for the prosecution of war crimes. 123 States approved the Rome Statute that established the ICC with jurisdiction over their territories. Collectively, you have 124 governmental organizations to prosecute war crimes, which are the 123 prosecutors and criminal courts of the States, and the prosecutor and courts of the ICC. Prosecutions for war crimes by the ICC are “for the most serious crimes of international concern,” while prosecution by the 123 States are for war criminal that enters into the territory. According to Article 1 of the Rome Statute:

An International Criminal Court is hereby established. It shall be a permanent institution and shall have the power to exercise its jurisdiction over persons for the most serious crimes of international concerns, as referred to in this Statute, and shall be complementary to national criminal jurisdiction. The jurisdiction and functioning of the Court shall be governed by the provisions of this Statute.

The significance of Article 1 is that the primary responsibility to prosecute war criminals are the 123 States and not the ICC. The war criminal reports by the Royal Commission of Inquiry (RCI) establish the evidentiary basis for prosecution by these States when those subjects of the reports enter their territory. As part of its mandate, it is also the duty of the RCI to ensure that these war criminals get prosecuted by all means necessary. There are no statutes of limitations to prevent the prosecution of war crimes. The Council of Regency is currently in communication with the legal counsel at the United Nations regarding the Hawaiian Kingdom’s accession to the Rome Statute that grants jurisdiction of the ICC over the territory of the Hawaiian Kingdom.

To begin to comply with international humanitarian law and the law of occupation, the decision to be made by February 17, 2024, does not fall upon an “abstract entity” called the United States or the State of Hawai‘i but rather upon Major General Kenneth Hara and the members of the State of Hawai‘i Legislature and the County Councils themselves.

For Major General Hara, his duty under international humanitarian law and the law of occupation is to transform the State of Hawai‘i into a military government on February 17. The action to be taken by members of the State of Hawai‘i Legislature and the County Councils is to cease and desist by February 17 the commission of the war crime of usurpation of sovereignty during military occupation.

Their failure to comply does not affect the mandate of the RCI or the continued existence of the Hawaiian Kingdom. Their failure to comply with the law of occupation merely serves as evidence of meeting the elements of the war crime and having criminal culpability.

The State of Hawai‘i finds itself at a Crossroads on February 17, 2024

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In a letter that was emailed to Major General Hara yesterday by Dr. David Keanu Sai, as Head of the Royal Commission of Inquiry, he opened with:

On behalf of the Council of Regency, I hereby make a final appeal for you to perform your duty of transforming the State of Hawai‘i into a military government on February 17, 2024, in accordance with Article 43 of the 1907 Hague Regulations, Article 64 of the Fourth Geneva Convention, and Army regulations. To not do so, you will have command responsibility for the commission of the war crime of usurpation of sovereignty during military occupation by the legislative, executive, and judicial branches of the State of Hawai‘i.

Copied to the letter included members of the State of Hawai‘i Legislature and the County Councils. In that letter, Dr. Sai then laid out the circumstances that led to establishing the date of February 17, 2024, as the deadline for action. After 24 years of exposure of the Hawaiian Kingdom as an occupied State, the State of Hawai‘i is now at a crossroads. To continue on the path of illegality, or to change course because of legality is the question that faces officials of the State of Hawai‘i. In his letter to the members of the Legislature and County Councils on February 7, 2024, Dr. Sai wrote:

[I]f you shall not cease the enactment of American municipal laws and continue to commit the war crime of usurpation of sovereignty during military occupation with impunity, you will be the subject of a war criminal report, which will provide the factual information, to include this letter of communication, that satisfies the aforementioned four elements of criminal culpability. I urge you not to take this lightly. War crimes have no statute of limitations.

These ultimatums put forth by the Royal Commission of Inquiry stems from its duty and responsibility to investigate and prosecute war crimes committed within Hawaiian territory. This responsibility is not a choice but a duty, under international law, in order to protect the population of an occupied State. On the contrary, there is no responsibility or duty to enact American laws by officials that were elected by the American citizenry in the territory that is occupied by the United States because to do so is the war crime of usurpation of sovereignty during military occupation. However, to commit an international crime the act must be accompanied with mens rea or the guilty mind. In other words, the war crime must be committed with intent and knowledge.

Prior to receiving the letter from the Royal Commission of Inquiry it could be assumed that the members of the Legislature and the County Councils were not aware that their action in enacting American laws in an occupied State was unlawful under international law. But after they received the letter, the circumstances have changed, and their continued action of enacting laws would be committed with intent and knowledge.

Last year, when Germany prosecuted Irmgard Furchner, a 97-year-old woman, of being an accessory to more than 10,000 murders for her role as a secretary to the SS commander of the Nazis’ Stutthof concentration camp during the Second World War, the prosecutors had to prove intent. In the case, the judges were convinced Furchner “knew and, through her work as a stenographer in the commandant’s office of the Stutthof concentration camp from June 1, 1943, to April 1, 1945, deliberately supported the fact that 10,505 prisoners were cruelly killed by gassings, by hostile conditions in the camp,” by transportation to the Auschwitz death camp and by being sent on death marches at the end of the war.

In the Hawaiian situation, the enactment of American laws is the source of secondary war crimes such as denationalization through Americanization, unfair trial by a court that lacks lawful authority, unlawful confinement ordered by a judge without authority, destruction of property as the case of Mauna Kea, etc. Therefore, the enactment of American laws in an occupied State is not an innocent act of legislative responsibility unless there is irrefutable evidence that the Hawaiian Kingdom is not an occupied State. If the Hawaiian Islands constitute a part of the territory of the United States and that the State of Hawai‘i is a lawfully established government under the constitution and laws of the United States, then officials of the State of Hawai‘i have nothing to worry about.

Professor William Schabas, renowned expert on international criminal and war crimes, states that in order to establish criminal intent for war crimes, there is no requirement for a legal evaluation as to the existence of an occupation stemming from an international armed conflict. Instead, there is only a requirement for the awareness of the factual circumstances of an occupation. Conversely, a legal evaluation would be welcomed not for determining whether an act constitutes a war crime, but for providing irrefutable evidence that the Hawaiian Kingdom does not continue to exist as an occupied State.

This is why Major General Hara, after being apprised by Dr. Sai on April 17, 2023, that war crimes are being committed in the Hawaiian Kingdom as an occupied State, he tasked his Staff Judge Advocate, Lieutenant Colonel Lloyd Phelps, to investigate. He could not find any legal basis to conclude Major General Hara has no such duty to establish a military government because the Hawaiian Kingdom is not an occupied State and that the State of Hawai‘i is a lawful entity. There exists no such legal opinion.

In fact, the Department of Justice’s Office of Legal Counsel does have a legal opinion on the annexation of Hawai‘i by a congressional legislation that it published in 1988. The opinion is not what you would expect from the federal government on Hawai‘i. The legal opinion was advising the State Department on the legal issues raised by a proposed Presidential proclamation to extend the territorial sea from three miles off the coast of the United Stats to twelve miles. In that legal opinion, Acting Assistant Attorney General Douglas W. Kmiec concluded,

It is therefore unclear which constitutional power Congress exercised when it acquired Hawaii by joint resolution. Accordingly it is doubtful that the acquisition of Hawaii can serve as an appropriate precedent for a congressional assertion of sovereignty over an extended territorial sea.

In support of this conclusion, Acting Assistant Attorney General Kmiec relied on statements made in 1898 by members of the Congress, and also writings of constitutional scholar Professor Westel Willoughby who stated:

The constitutionality of the annexation of Hawaii, by a simple legislative act, was strenuously contested at the time both in Congress and by the press. The right to annex by treaty was not denied, but it was denied that this might be done by a simple legislative act. … Only by means of treaties, it was asserted, can the relations between States be governed, for a legislative act is necessarily without extraterritorial force—confined in its operation to the territory of the State by whose legislature it is enacted.

If it is unclear how Congress could annex foreign territory by legislative action, it would be equally unclear how Congress could establish the State of Hawai‘i by legislative action in 1959. Without a treaty all American laws imposed in the Hawaiian Kingdom constitutes the war crime of usurpation of sovereignty during military occupation.

In 2014, however, there was an attempt by an official of the State of Hawai‘i to get an answer from the State Department regarding the functions of the State of Hawai‘i in light of the 1988 legal opinion. The Office of Hawaiian Affairs top executive, Dr. Kamana‘opono Crabbe, submitted a formal request with the U.S. Department of State requesting a legal opinion from the U.S. Attorney General’s Office of Legal Counsel addressing the legal status of the Hawaiian Kingdom under international law.

In his letter to Secretary of State John F. Kerry, Crabbe said, “because the Department of State is the United States’ executive department responsible for international relations and who also housed diplomatic papers and agreements with the Hawaiian Kingdom, I am respectfully submitting a formal request to have the Department of State request an opinion from the Office of Legal Counsel, Department of Justice, addressing the following questions:

• First, does the Hawaiian Kingdom, as a sovereign independent State, continue to exist as a subject of international law?

• Second, if the Hawaiian Kingdom continues to exist, do the sole-executive agreements bind the United States today?

• Third, if the Hawaiian Kingdom continues to exist and the sole-executive agreements are binding on the United States, what effect would such a conclusion have on United States domestic legislation, such as the Hawai‘i Statehood Act, 73 Stat. 4, and Act 195?

• Fourth, if the Hawaiian Kingdom continues to exist and the sole-executive agreements are binding on the United States, have the members of the Native Hawaiian Roll Commission, Trustees and staff of the Office of Hawaiian Affairs incurred criminal liability under international law?”

This letter boxed in the Secretary of State by forcing him to answer the first question as to whether the Hawaiian Kingdom continues to exist as a subject of international law. If the Office of Legal Counsel can write a legal opinion that the Hawaiian Kingdom does not continue to exist, they don’t have to answer following three questions. The Secretary of State did not make the request for a legal opinion from the Office of Legal Counsel, which affirms the 1988 legal opinion that Congress could not annex the Hawaiian Islands by legislation.

Major General Hara and members of the Legislature and the County Councils should take heed of this information as February 17, 2024, is fast approaching.

The Duty to Protect the Population in Hawai‘i from War Crimes Committed by the State of Hawai‘i

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The legal basis for the Council of Regency’s establishment under Hawaiian constitutional law and the legal doctrine of necessity was based on the continued existence of the country called the Hawaiian State. What was unlawfully overthrown on January 17, 1893, was the government of the Hawaiian Kingdom and not the Hawaiian Kingdom as a State under international law. In fact, international law protects the State and its continuity from the continuous violations of its sovereignty by another State. What international law cannot protect, however, is the population of the Hawaiian Islands from denationalization through Americanization that began as a formal policy in 1906.

Under international criminal law, denationalization is the process of replacing the national consciousness of the Hawaiian Kingdom, to include its language, in the minds of school children with the national consciousness of the United States and its English language. Within three generations since 1906, the national consciousness of the Hawaiian Kingdom was wiped clean in the minds of the population in the Hawaiian Islands. Denationalization is a policy carried out in the school systems of the occupied States that attempts to change the national consciousness in the minds of school children. The United States and the Allied Powers in the First World War determined denationalization to be a war crime committed by Germany, Austria, and Bulgaria against the population of the Kingdom of Serbia when Serbia was occupied.

From the Allied Powers 1919 Commission on Responsibilities for the First World War, under the heading “attempts to denationalize the inhabitants of occupied territory,” the Commission charged several crimes committed in Serbia by the Bulgarian authorities: “Efforts to impose their national characteristics on the population;” “Serbian language forbidden in private as well as in 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 compulsory;” “Population forced to be present at Bulgarian national solemnities.” The Commission also stated that in Serbia the Austrian and German authorities “interfered with religious worship, by deportation of priests and requisition of churches for military purposes. Interfered with the Serbian language.” In United States v. Greifelt et al., in 1948, the war crimes tribunal specifically referred to the war crime of denationalization by German authorities in occupied territories during the Second World War. The tribunal observed:

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. The methods applied by the Nazis in Poland and other occupied territories, including once more Alsace and Lorraine, were of a similar nature with the sole difference that they were more ruthless and wider in scope than in 1914-1918. In this con­nection the policy of ‘Germanizing’ the populations concerned, as shown by the evidence in the trial under review, consisted partly in forcibly denationalizing given classes or groups of the local population, such as Poles, Alsace-Lorrainers, Slovenes and others eligible for Germanization under the German People’s List. As a result in these cases the programme of genocide was being achieved through acts which, in themselves, constitute war crimes.

The operative word used when describing the policy and acts of denationalization committed against the population of occupied States in both World Wars was “attempts.” The reason for the choice of this word was because the First World War only lasted for four years, and the Second World War only lasted six years. The American occupation is now at 131 years where the lies to conceal the occupation have become institutionalized and perceived to be the truth. As British novelist Dresden James wrote, “When a well-packaged web of lies has been sold gradually to the masses over generations, the truth will seem utterly preposterous and its speaker a raving lunatic.”

Another war crime committed by German, Austrian and Bulgarian authorities in occupied territories during the First World War was usurpation of sovereignty during military occupation. Usurpation of sovereignty is the imposition of the laws of the occupying State over the territory and its population of the occupied State. During the military occupation of a State, the occupying State is obligated to temporarily administer the laws of the occupied State until there is a treaty of peace. To impose the occupying State’s laws is a crime.

The Commission on Responsibility for the First World War charged that in Poland the German and Austrian forces had “prevented the populations from organising themselves to maintain order and public security” and that they had “[a]ided the Bolshevist hordes that invaded the territories.” It said that in Romania the German author­ities had “instituted German civil courts to try disputes between subjects of the Central Powers or between a subject of these powers and a Romanian, a neutral, or subjects of Germany’s en­emies.” In Serbia, the Bulgarian authorities had “[p]roclaimed that the Serbian State no longer existed, and that Serbian territory had become Bulgarian.” It listed several other war crimes of Bulgaria committed in occupied Serbia: “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 (e.g., from the National Library, the University Library, Serbian Legation at Sofia, French Consulate at Uskub);” “Prohibited sending Serbian Red Cross to occupied Serbia.” It also charged that in Serbia the German and Austrian authorities had committed several war crimes: “The Austrians suspended many Serbian laws and substituted their own, especially in penal matters, in procedure, judicial or­ganisation, etc.;” and “Museums belonging to the State (e.g., Belgrade, Detchani) were emptied and the contents taken to Vienna.”

The crime of “usurpation of sovereignty” was referred to by Judge Blair of the American Military Commission in a separate opinion in United States v. Alstötter et al. of 1951, “This rule is incident to military occupation and was clearly intended to protect the inhabitants of any occupied territory against the unnecessary exercise of sovereignty by a military occupant.”

When the Hawaiian government was restored by a Council of Regency in 1997, it also held vicarious liability for its actions. As a constitutional monarchy, the primary duty of the Hawaiian government is to protect the rights of its population. In Larsen v. Hawaiian Kingdom at the Permanent Court of Arbitration, Larsen was alleging that he was not being protected by the Regency because the Regency, he argued, was allowing the unlawful imposition of American laws over him which led to his unfair trial and incarceration. The Regency denied this allegation but used the Permanent Court of Arbitration to recognize the continued existence of the Hawaiian Kingdom as a State and the Regency as its government.

This duty for governments to protect its population from war crimes reached the international level in 2005. At the United Nations World Summit in 2005, the Responsibility to Protect was unanimously adopted. The principle of the Responsibility to Protect has three pillars: (1) every State has the Responsibility to Protect its populations from four mass atrocity crimes—genocide, war crimes, crimes against humanity and ethnic cleansing; (2) the wider international community has the responsibility to encourage and assist individual States in meeting that responsibility; and (3) if a state is manifestly failing to protect its populations, the international community must be prepared to take appropriate collective action, in a timely and decisive manner and in accordance with the UN Charter. In 2009, the General Assembly reaffirmed the three pillars of a State’s responsibility to protect their populations from war crimes and crimes against humanity. And in 2021, the General Assembly passed a resolution on “[t]he responsibility to protect and the prevention of genocide, war crimes, ethnic cleansing and crimes against humanity.” The third pillar, which may call into action State intervention, can become controversial.

Rule 158 of the International Committee of the Red Cross Study on Customary International Humanitarian Law specifies that “States must investigate war crimes allegedly committed by their nationals or armed forces, or on their territory, and, if appropriate, prosecute the suspects. They must also investigate other war crimes over which they have jurisdiction and, if appropriate, prosecute the suspects.” This “rule that States must investigate war crimes and prosecute the suspects is set forth in numerous military manuals, with respect to grave breaches, but also more broadly with respect to war crimes in general.”

What faced the Regency was how to protect a population from the commission of war crimes when that population itself had been completely denationalized into believing that the State of Hawai‘i exists as a lawful government under United States laws. The Regency’s strategy after returning from the PCA in the Netherlands was to effectively engage the devastating effects of denationalization through academic research at the university level. Since 2000, this research made public through published peer review articles, master’s theses, doctoral dissertations, books, and classroom instruction have managed to tear down the facade that the State of Hawai‘i is lawful and that the United States is an occupying Power.

During the occupation of the territory by an occupying State, there are two legal systems that exist at the same time, that of the occupied State and that of the occupying State. As Professor Krystina Marek explains, in “the first place: of these two legal orders, that of the occupied State is regular and ‘normal,’ while that of the occupying power is exceptional and limited. At the same time, the legal order of the occupant is…strictly subject to the principle of effectiveness, while the legal order of the occupied State continues to exist notwithstanding the absence of effectiveness.” The Regency knew that while the State of Hawai‘i exercised effective, but unlawful, control of Hawaiian territory there are rules that apply called international humanitarian law and the law of occupation. To knowingly violate these international laws created criminal culpability. While the Regency has no effective control as a result of the American occupation, it does have effective control of factual and legal information that it will use to compel compliance where the prolonged occupation will eventually come to an end by a treaty of peace.

Determined to hold to account individuals who have committed war crimes and human rights violations throughout the Hawaiian Islands, being the territory of the Hawaiian Kingdom, the Council of Regency, by proclamation on April 17, 2019, established a Royal Commission of Inquiry (“RCI”) in similar fashion to the United States proposal of establishing a Commission of Inquiry after the First World War “to consider generally the relative culpability of the authors of the war and also the question of their culpability as to the violations of the laws and customs of war committed during its course.” Dr. David Keanu Sai serves as Head of the RCI and Professor Federico Lenzerini from the University of Siena, Italy, as its Deputy Head.

On February 7, 2024, the RCI sent a letter of communication to all members of the State of Hawai‘i legislature and the County Councils regarding the war crime of usurpation of sovereignty during military occupation. In the letter, Dr. Sai apprised them of his communication he’s had since April 17, 2023, with Major General Kenneth Hara, State of Hawai‘i Adjutant General, regarding his duty to transform the State of Hawai‘i into a Military Government and to begin to administer the laws of the Hawaiian Kingdom as the occupied State. Dr. Sai directed Major General Hara that, in accordance with international laws and Army regulations, he will issue a proclamation transforming the State of Hawai‘i into a Military Government. Should he fail to do so would be a dereliction in the performance of his duty and the war crime of omission.

Major General Hara would also be made the subject of an RCI war criminal report for the purpose of prosecution. There are no statutes of limitation for war crimes, which means a person can be prosecuted regardless of his age. In 2022, a German court convicted a 97-year-old women for war crimes she committed during the Second World War.

Major General Hara also has the duty to protect officials and employees of the State of Hawai‘i and the Counties who, like the Legislature and County Councils, are committing the war crime of usurpation of sovereignty during military occupation. The RCI has given more than enough time for Major General Hara to have completed his due diligence done by his Staff Judge Advocate Lieutenant Colonel Lloyd Phelps as to the continued existence of the Hawaiian Kingdom as an occupied State. On July 27, 2023, he acknowledged that the Hawaiian Kingdom continues to exist, which consequently triggered his duty.

A Brief History of International Law and its Application to the Hawaiian Kingdom Today

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There are two laws that distinguish themselves from each other. There are “national” laws that are established within countries called States, and there are “international” laws that are established by the States themselves. Sources of national laws include the constitution, whether written or unwritten, statutes enacted by the legislature, and decisions by the highest court if the country is a common law system, e.g. United States and the Hawaiian Kingdom. Civil law countries like Italy and Germany do not have judge made laws. An indicator of whether the country is common law is if they have jury trials.

Every State is geo-political, which means that each State has their own geographical location and unique political experience that contribute to the function of their government, whether autocratic or democratic. And foreign influences and interests is what drives government reform and survival. In this regard, no two countries are alike.

Current international law has its roots in the Middle Ages of Europe. At the time, the Holy Roman Empire had great influence over the kings and dukes called Cannon Law. However, commercial, and maritime law was developing as well. In England the Law Merchant was established that covered rules governing foreign trade, which England, because of its naval power, declared was universal. This resulted in mercantile courts being established in trading ports throughout Europe to resolve disputes between traders of goods. According to Professor Malcolm Shaw,

Such rules, growing out of the Middle Ages, constituted the seeds of international law, but before they could flourish, European thought had first to be developed by that intellectual explosion known as the Renaissance. This complex of ideas changed the face of European society and ushered in the modern era of scientific, humanistic and individualistic thought.

The eventual fall of the supremacy of the Holy Roman Empire in 1648 gave rise to the States headed by kings and dukes. With a history of interaction between themselves that grew into custom prior to the fall, the interactions escalated with the introduction of the concept of sovereignty and centralized control of government of the State by another concept called the Leviathan, especially in the States of England, France and Spain. The concept of Leviathan was espoused by Thomas Hobbs in 1651 that advocated for a centralized monarchical form of government. With the printing press invented in the fifteenth century, this Hobbsian theory reached the ruling classes across Europe, who at the time were the only ones that could read.

With the rise of States and their interaction with each other, custom became the foundation of international law, which was supplemented with treaties. Eventually, principles of law that prevailed in the different States became norms or rules of international law that was universally accepted. When the Kingdom of Hawai‘i became a British Protectorate in 1794, the Hawaiian Kingdom in the nineteenth century was very much influenced by British forms of governance and the development of international law.

As a result of the positivist movement within States, which was a movement based on a scientific approach in thought rather than on faith, the movement eventually moved into the political and legal realms of governance called legal positivism. This movement eventually created the basis for a departure from the natural law of kings and dukes that relied on cannon law and moral thought, to a legal system that is based on existing and verifiable laws established by the legislature or the judges in a common law system. It establishes logic, consistency, and measurability like the methods of science and mathematics. Most importantly, legal positivism promotes predictability. In the courts of a common law country, this is called stare decisis, which is decision making by precedent set in previous court decisions.

Legal positivism eventually advocated the rule of law and not the politics of power, which drove many countries in Europe in the mid-nineteenth century into constitutional forms of governance and the recognition of civil and political rights. The French Revolution was an extension of this movement against absolute rule by a King. The Hawaiian Kingdom was riding this wave of government reform as it spread throughout Europe, and it successfully evolved from absolute rule to a constitutional form of governance with democratic principles without suffering the pains of revolution by the people like the case of France.

Positivism eventually would reach the international realm and be the driving force in reforming international law. Since constitutionalism separated government from the person of the king, which means the king was no longer the supreme absolute ruler but now a constitutional head of government, there would now be a separation of the government from the State.

In the sixteenth century, French jurist and political philosopher Jean Bodin stressed the importance that “a clear distinction be made between the form of the state, and the form of the government, which is merely the machinery of policing the state.” Nineteenth century political philosopher Frank Hoffman also emphasizes that a government “is not a State any more than a man’s words are the man himself,” but “is simply an expression of the State, an agent for putting into execution the will of the State.” Professor Quincy Wright, a twentieth century American political scientist, also concludes that, “international law distinguishes between a government and the state it governs.” Therefore, a State would continue to exist despite its government being overthrown by military force by another State’s armed forces.

As a result, customary international law would begin to be codified into treaty law. One particular aspect of customary international law was to bring order into the chaos of war, which was recognized as a means of enforcement of international law. Codification of the international laws of war began at the Brussels Conference in 1874 where the representatives of powerful and weak States advocated the formulation of the laws of war through multilateral treaties. While the first multilateral treaties that codified the laws of war were not done until 1899 called the Hague Conventions, rules of war eventually became accepted by States as customary international law, and they were recognized by States when they were at war since the mid-nineteenth century.

When a State’s territory is “effectively” occupied, customary international law obligates the occupying State to ad­minister the laws of the occupied State. This is reflected in Articles 2 and 3 of the 1874 Brussels Declaration where, “[the occupying State] shall take all the measures in his power to restore and ensure, as far as possible, public order and safety [and] shall maintain the laws which were in force in the country in peacetime, and shall not modify, suspend or replace them unless necessary.” Although the Declaration failed to be signed off by the European States and become codified, it did have scholarly approval. The Institut de droit international (IDI) in 1875 declared:

[A]lthough there was room for improvement, the new rules on occupation as suggested by the 1874 Brussels Declaration were essentially more favorable to peaceful citizens and public and private ownership in occupied territories than what had been provided by practice thus far and by the teaching of most scholars. The IDI subsequently adopted the same rules in its Oxford Manual on Land Warfare (1880).

Eventually codification occurred in 1899. Article 43 of the 1899 Hague Regulations 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.” According to Professor Eyal Benvenisti:

The law of occupation as ultimately expressed in the 1899 Hague Regulations imposes two types of obligations on an army that seizes control of enemy land during war: the obligation to protect the life and property of the inhabitants and the obligation to respect the sovereign rights of the ousted government.

The “text of Article 43, according to Professor Benvenisti, “was accepted by scholars as mere reiteration of the older law.” Professor Doris Graber states that “nothing distinguishes the writing of the period following the 1899 Hague code from the writing prior to that code. And according to Professor Georg Schwarzenberger, “the Hague Regulations…was declaratory of international customary law.” The United States government also recognizes that Article 43 is customary international law that predates the Hague Regulations. In a 1943 legal opinion, the United States stated:

The Hague Convention clearly enunciated the principle that the laws applicable in an occupied territory remain in effect during the occupation, subject to change by the military authorities within the limits of the Convention. Article 43: … This declaration of the Hague Convention amounts only to a reaffirmation of the recognized international law prior to that time.

The administration of occupied territory is set forth in the Hague Regulations, being Section III of the Hague Regulations. The 1899 Hague Regulations was superseded by the 1907 Hague Regulations. Also, consistent with what was generally consid­ered the international law of occupation, in force at the time of the Spanish-American War that predates the codification, the “military governments established in the territories occupied by the armies of the United States were instructed to apply, as far as possible, the local laws and to utilize, as far as seemed wise, the services of the local Spanish officials.”

Commenting on the occupation of the Hawaiian Kingdom, Professor Patrick Dumberry states:

[T]he 1907 Hague Convention protects the international personality of the oc­cupied State, even in the absence of effectiveness. Furthermore, the legal order of the occupied State remains intact, although its effectiveness is greatly diminished by the fact of occupation. As such, Article 43 of the 1907 Hague Convention IV provides for the co-existence of two distinct legal orders, that of the occupier and the occupied.

Stark parallels can be drawn between what the United States did to the Hawaiian Kingdom and what Iraq did to Kuwait in 1990, commonly referred to as the First Gulf War. Just as Iraq, without justification, invaded Kuwait and overthrew the Kuwaiti government August 2, 1990, the United States did the same to the Hawaiian Kingdom and its territory. Where Kuwait was under a belligerent occupation by Iraq for 7.5 months, the Hawaiian Kingdom has been under a belligerent occupation by the United States for 131 years.

Hiding the occupation does not legalize it under international law. The international law of occupation has and continues to apply in the prolonged American occupation of the Hawaiian Kingdom. Hawaiian national consciousness is regained through education and knowing its legal and political history.

Customary International Law, the Hawaiian Kingdom and the Permanent Court of Arbitration

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International law literally means the law between (inter) nations called States and not above these States. Domestic or municipal laws, on the other hand, are laws that reside within (intra) a State and that the persons in the territory of the State are subject to these laws. The reason why international is between and not above States is because they are considered politically independent from each other and are sovereign over their territory and their nationals abroad. This creates sovereign equality among the States. Therefore, for international law to be established, the State has to consent by international custom or by treaty.

According to article 38 of the Statute of the International Court of Justice these are five primary sources of international law: (a) treaties between States; (b) customary international law derived from the practices of State; (c) general principles of law recognized by civilized nations; and as subsidiary means for the determination of rules of international law; (d) judicial decisions and the writings of “the most highly and qualified publicists.”

Regarding customary international law there must be evidence that States accept the practice as law. The evidence must show a consensus among States concerning rules or actions—practices done by States as well as by international organizations that were established by States. According to Professor Ian Brownlie this evidence includes the following:

diplomatic correspondence, policy statements, press releases, the opinions of official legal advisers, official manuals on legal questions, e.g. manuals of military law, executive decisions and practices, order to naval forces etc., comments by governments on drafts produced by the International Law Commission, state legislation, international and national judicial decisions, recitals in treaties and other international instruments, a pattern of treaties in the same form, the practice of international organs, and resolutions relating to legal questions in the United Nations General Assembly.

According to the International Court of Justice, for a rule of customary international law to exist, there needs to be “two conditions [that] must be fulfilled” where there is a “‘settled practice’ together with opinio juris,” where the practice is accepted as law by States. This acceptance can be achieved by the silence or omission of the concerned States regarding the practice. In other words, States do not always have to say “I accept as law” the practice that was done in order for it to be considered law. Opinio juris is Latin for “an opinion of law.” The opinio juris can be the creation of a “new” rule of international law, or the acceptance of an “existing” rule of international law.

An example of a “new” rule of international law was when the Hawaiian Kingdom was recognized as an independent State by Great Britain and France on November 28, 1843. As a recognized independent State, the Hawaiian Kingdom would be protected under the rules of international law, in particular, the “existing” rule that the Hawaiian Kingdom as a State would continue to exist despite the military overthrow of its government. This existing rule is called the presumption of continuity of a State, which means that the State is presumed to continue to exist despite the removal of its government by another State.

This existing rule of international law is explained by Judge James Crawford where he states, there “is a presumption that the State continues to exist, with its rights and obligations…despite a period in which there is no, or no effective, government,” and belligerent occupation “does not affect the continuity of the State, even where there exists no government claiming to represent the occupied State.” Addressing the presumption of the German State’s continued existence despite the military overthrow of the Nazi government during the Second World War, Professor Brownlie explains:

Thus, after the defeat of Nazi Germany in the Second World War the four major Allied powers assumed supreme power in Germany. The legal competence of the German state [its independence and sovereignty] did not, however, disappear. What occurred is akin to legal representation or agency of necessity. The German state continued to exist, and, indeed, the legal basis of the occupation depended on its continued existence.

Therefore, “If one were to speak about a presumption of continuity,” explains Professor Matthew Craven, “one would suppose that an obligation would lie upon the party opposing that continuity to establish the facts substantiating its rebuttal. The continuity of the Hawaiian Kingdom, in other words, may be refuted only by reference to a valid demonstration of legal title, or sovereignty, on the part of the United States, absent of which the presumption remains.” Evidence of “a valid demonstration of legal title, or sovereignty, on the part of the United States” would be an international treaty, particularly a peace treaty, whereby the Hawaiian Kingdom would have ceded its territory and sovereignty to the United States. Examples of foreign States ceding sovereign territory to the United States by a peace treaty include the 1848 Treaty of Peace, Friendship, Limits, and Settlement with the Republic of Mexico and the 1898 Treaty of Peace between the United States of America and the Kingdom of Spain. There is no treaty of peace where the Hawaiian Kingdom ceded its sovereignty and territory to the United States, which means the Hawaiian Kingdom continues to exist under international law and that the present system of government under United States domestic law called the State of Hawai‘i is illegal.

One piece of evidence of international custom is “the practice of international organs” that have been established and are managed by States like the United Nations or the Permanent Court of Arbitration (PCA). The former was established by States who became Contracting States to the 1945 Charter of the United Nations, and the latter was established by States who became Contracting States to the 1899 Hague Convention for the Pacific Settlement of International Disputes (1899 PCA Convention), which was superseded by the 1907 Hague Convention for the Pacific Settlement of International Disputes (1907 PCA Convention). What will eventually come before the PCA in the Hawaiian Kingdom case is whether the Hawaiian Kingdom continues to exist as a State from the nineteenth century, and not whether the Hawaiian Kingdom is a new State. This brings it squarely under the existing rule of “continuity” or “discontinuity” of a State that was already established.

Because the PCA establishes ad hoc arbitral tribunals to resolve international disputes on a case by case basis, it must first have institutional jurisdiction before it can form the tribunal. For those States that are Contracting States to the 1899 PCA Convention when the PCA was established, they had automatic access to the PCA facilities. However, it was possible for non-Contracting States to have access to the PCA facilities as well.

Article 26 addressed the jurisdiction of the PCA in two parts, for Contracting States and for non-Contracting States. The first part of article 26 states, “The International Bureau at The Hague is authorized to place its premises and its staff at the disposal of the Signatory Powers for the operations of any special Board of Arbitration.” In other words, if the arbitral tribunal, being a “special Board of Arbitration,” was formed by the Contracting State or States and not by the PCA, they could still have access to the PCA “premises and its staff.”

The second part states, “The jurisdiction of the Permanent Court may, within the conditions laid down in the Regulations, be extended to disputes between non-Signatory Powers, or between Signatory Powers and non-Signatory Powers, if the parties are agreed on recourse to this Tribunal.” In other words, the second part grants access to disputes with non-Contracting States. In international law, the term “Powers” are synonymous with “States.”

At a meeting of the Contracting States in The Hague, Netherlands, it was agreed that the 1899 PCA Convention would be replaced by the 1907 PCA Convention. Article 47 reiterated the two-part institutional jurisdiction of the PCA. The first part states, “The Bureau is authorized to place its offices and staff at the disposal of the Contracting Powers for the use of any special Board of Arbitration.” The second part states, “The jurisdiction of the Permanent Court may, within the conditions laid down in the regulations, be extended to disputes between non-Contracting Powers or between Contracting Powers and non-Contracting Powers, if the parties are agreed on recourse to this Tribunal.”

Prior to the Larsen v. Hawaiian Kingdom case that lasted from November 8, 1999, to February 5, 2001, there were six instances where the PCA Secretary General recognized either both or one of the parties to the dispute to be a non-Contracting State to the 1899 or the 1907 PCA Conventions. The action taken by the PCA Secretary General is a practice of an “international organ” recognizable under international custom. When the PCA recognizes the State as a non-Contracting State it relies on “existing” rules of international law that provides for its existence or, in the case of the Hawaiian Kingdom, its continued existence.

In annex 2 of the PCA’s 111th Annual Report in 2011, certain cases have a footnote that states, “Pursuant to article 47 of the 1907 Convention (article 26 of the 1899 Convention).” In annex 2, the Larsen v. Hawaiian Kingdom is listed as the 33rd case under the jurisdiction of the PCA since its inception in 1899. If both parties to the dispute are Contracting States but the dispute involves a “special Board of Arbitration” than that created by the PCA it would be noted to have been established pursuant to article 47 of the 1907 PCA Convention or pursuant to article 26 of the 1899 PCA Convention. If the case involved a non-Contracting State, it would also be cited by the same wording of the footnote. Here is the link to the current 122 States that are Contracting States to the 1899 and 1907 PCA Conventions.

Regarding the involvement of a non-Contracting State to the dispute, the first instance was an arbitration between Norway and Sweden called The Grisbådarna Case that lasted from March 14, 1908, to October 23, 1909. The subject of the dispute was the maritime boundary between the two countries in the aftermath of the separation of the union of the Swedish-Norwegian Kingdom in 1905. Prior to the dissolution of the union, the Swedish-Norwegian Kingdom became a Contracting State to the 1899 PCA Convention on September 4, 1900. However, after the dissolution, Sweden became a Contracting State to the 1907 PCA Convention on January 26, 1910, and Norway became a Contracting State to the 1907 PCA Convention on November 18, 1910. Both countries were non-Contracting States during the arbitration, and, therefore, were allowed access to the jurisdiction of the PCA under article 47.

The second instance was a dispute between Russia and Turkey, called the Russian Claim for Interest on Indemnities case, that lasted from July 22, 1910, to November 11, 1912. While Russia became a Contracting State to the 1907 PCA Convention on January 26, 1910, Turkey was and continues to be a non-Contracting State.

The third instance was a dispute between the French High Commission to the States of Levant under Mandate (Syria and Lebanon) and the Egyptian Government over Egypt’s refusal to have the French Company Radio Orient in Egypt to receive any telegrams. The proceedings lasted from November 11, 1938, to April 2, 1940. Although France became a Contracting State to the 1907 PCA Convention on December 6, 1919, Egypt did not become a Contracting State until November 4, 1968.

The fourth instance was a dispute between France and Greece regarding the administration of light houses. The proceedings lasted from July 15, 1931, to July 24, 1956. Although France became a Contracting State to the 1907 PCA Convention on December 6, 1910, Greece was and continues to be a non-Contracting State.

The fifth instance was in 1997 in a dispute between Italy and Costa Rica regarding a dispute over a loan agreement between the two countries. The proceeding lasted from September 11, 1997, to June 26, 1998. While Italy is a non-Contracting State to the 1907 PCA Convention, Costa Rica did not become a Contracting State until after the arbitration on July 20, 1999.

In 1928, a precedence was set for the PCA to allow a dispute between a “private entity” and a State. In this case, there was a dispute centered on a contract between China and Radio Corporation of America—Radio Corporation of America v. China. The proceeding lasted from November 10, 1928, to April 13, 1935. The jurisdiction of the PCA was invoked by China, that became a Contracting State on January 26, 1910, according to article 47 because it involved a “special Board of Arbitration” that was not established by the PCA.

While China was the first Contracting State to have a dispute with a “private entity” that came under the jurisdiction of the PCA in 1928, the Larsen case was the first instance that the PCA had jurisdiction over a dispute between a non-Contracting State—the Hawaiian Kingdom and a “private entity”—Larsen in 1999.