Press Release: WPLC, IADL, and NLG file joint Amicus Brief Supporting the Hawaiian Kingdom’s Complaint Against the US Requesting a Declaratory Judgment and Effective End of U.S. Occupation

July 30, 2021

Contact:

Natali Segovia, Staff Attorney, WPLC: defense@waterprotectorlegal.org

NLG International Committee: international@nlg.org

Download the amicus brief here.

Honolulu—The Water Protector Legal Collective (WPLC), alongside the International Association of Democratic Lawyers (IADL) and National Lawyers Guild (NLG), filed an amicus curiae (“friend of the court”) brief today in support of the Hawaiian Kingdom’s complaint against the United States government, President Joe Biden, and other defendants, due to the unlawful occupation of Hawai‘i by the United States since January 17, 1893. The complaint and the amicus brief request Declaratory and Injunctive Relief, namely for the US to end the occupation of the Hawaiian Kingdom. 

Hawai‘i has been illegally occupied by the US since 1893, when businessmen and politicians helped John Stevens overthrow Queen Lili‘uokalani and the Hawaiian government. One-hundred years later, President Clinton would apologize and the US would acknowledge that Hawaiian Kingdom never relinquished their land. That is not enough. The people of the Hawaiian Kingdom have remained continuously opposed to the illegal occupation of the US and its effects, including de-nationalization, the exploitation of natural resources, legacy of racial unrest sown by colonialism, and over-tourism at the expense of Native Hawaiians. 

Mr. Dexter Ke`eaumoku Ka`iama, Acting Attorney General for the Hawaiian Kingdom who filed the original complaint, described the amicus brief filed by the three legal organizations: “The amicus transcends over 128 years of the illegal occupation of the Hawaiian Kingdom, the violations of international law and international humanitarian law and political pressures and trappings brought to maintain this illegality.  Instead, the amicus rightly directs our attention to the undisputed history of the Hawaiian Kingdom and proper application of international law, US Constitutional law and compacts (treaties) between the sovereign States of the Hawaiian Kingdom and the United States.” 

While relief in this matter would seemingly be barred by the political question doctrine, the amicus brief states the federal and state courts of Hawai’i are de facto Article II courts since 1893 because the US occupation of the Hawaiian Kingdom has never ended or been resolved through an operative peace treaty. Experts in international law and human rights have determined that without some type of transfer of sovereignty, the Hawaiian Kingdom and its people have the sole right to that land. There is judicial precedent of at least 12 Article II executive “occupation” courts in U.S. legal and political history since the Mexican War in 1846, provisional courts during the Civil War, and through 1971 when the United States returned Okinawa and Ryukyu Islands to Japan after WWII. 

“At its core,” says WPLC Staff Attorney Natali Segovia, “this case is about the sovereignty of the Hawaiian Kingdom and the right of self-determination of an entire Nation. I don’t mean luke-warm self-determination within the boundaries of a settler state; I mean the self-determination that is at the heart of international law: the right of nations to self-govern to freely determine their political status, their economic, social, and cultural development within their own territory. Standing Rock, Line 3, and the #Landback movement share this in common. WPLC began at Standing Rock, where the fight for the water and for future generations was a manifestation and exercise of self-determination of the Oceti Sakowin Oyate and Indigenous Peoples and allies around the world that answered their call. WPLC is committed to supporting those struggles for sovereignty and self-determination of Indigenous Peoples and Original Nations wherever we can.” 

“As an organization that values human rights and the rights of ecosystems over property interests, the NLG supports all Native peoples’ right to self-determination and resistance against settler-colonial oppression—whether it be in Palestine, Standing Rock, or Hawai’i. The US is no exception to standards set by international and humanitarian law, and must end its occupation of the Hawaiian Kingdom,” said NLG President Elena Cohen.

IADL President Jeanne Mirer said, “As an international organization of human rights lawyers dedicated to the furtherance of peace, justice, and the rule of law, the IADL reiterates its support for the Hawaiian Kingdom and the people of Hawai‘i in their ongoing struggle for sovereignty, and self-determination. The United States has an obligation to comply with international humanitarian law and the law of occupation.”

Mr. Ka`iama concluded, “Filing of the amicus coincides with the formal restoration of the Hawaiian Kingdom from the British Government on July 31, 1843.  A day that is remembered and celebrated as Lā Hoʻihoʻi Ea (“Restoration Day”).  So too, this amicus will be forever marked and fondly remembered in the annals of the Hawaiian Kingdom. Aloha ‘Āina.” 

“Aloha ‘Āina” is Hawaiian for “love of the land.” As legal organizations committed to human rights, international law, and the rule of law, we stand — for the land, for the water, and for future generations.

Counsel for Amici Curiae NLG, IADL, and WPLC are Natali Segovia, Joseph (Joey) Chase, and Charles Heaukulani.

#Landback #HawaiianKingdom #AlohaAina

The International Association of Democratic Lawyers (“IADL”) is an international organization of human rights lawyers and jurists founded in 1946, with member associations and individual members in over 90 countries and with consultative status in ECOSOC. IADL is dedicated to upholding international law and promoting the tenets of the UN Charter in furtherance of peace and justice. 

The National Lawyers Guild (“NLG”) was formed in 1937 as the first national racially integrated bar association in the U.S. to advocate for the protection of constitutional, human, and civil rights.

The Water Protector Legal Collective (“WPLC”) is an Indigenous-led legal non-profit organization that began in 2016 as the on-the-ground legal team at Oceti Sakowin camp at Standing Rock in defense of Water Protectors in frontline resistance to the Dakota Access Pipeline. WPLC continues to provide legal support and advocacy to Indigenous Peoples and Original Nations, the Earth, and climate justice movements.

Support the Hawaiian Kingdom. To learn more, visit: 

The International Association of Democratic Lawyers and the National Lawyers Guild Enter Hawaiian Kingdom v. Biden Federal Court Case

The International Association of Democratic Lawyers (IADL), the National Lawyers Guild (NLG) and the Water Protector Legal Collective (WPLC) entered the federal case of Hawaiian Kingdom v. Biden, et al., at the United States District Court for the District of Hawai‘i. This morning, the three organizations collectively filed a “Motion for Leave to File Amicus Curiae Brief on Behalf of Nongovernmental Organizations with Expertise in International Law and Human Rights Law.” Lawyers for the IADL, NLG and WPLC, are Natali Segovia, Joseph Chase, and Charles Heaukulani. Segovia and Chase are also members of the NLG.

The Legal Information Institute explains that amicus curiae is “Latin for ‘friend of the court.’ Frequently, a person or group who is not a party to an action, but has a strong interest in the matter, will petition the court for permission to submit a brief in the action with the intent of influencing the court’s decision. Such briefs are called ‘amicus briefs.’”

The Motion states:

Counsel for amici curiae International Association for Democratic Lawyers, National Lawyers Guild, and the Water Protector Legal Collective—nongovernmental organizations with expertise in International Law and Human Rights Law, hereby move this Court for an order allowing it to file the attached amicus curiae brief in support of Plaintiff, the Hawaiian Kingdom. In support of this motion, the movant states:

1. The nongovernmental organizations whose views are represented in this brief have expertise in public international law, international human rights, humanitarian law, and norms regarding statehood, sovereignty, and self-determination.

2. Movants submit this brief to ensure a proper understanding and application of the international law and historical precedent relevant to this case regarding Article II occupation courts. The amici are additionally human rights organizations that have an interest in ensuring an informed interpretation of international human rights law in domestic jurisprudence.

3. Plaintiff has consented to the filing of this brief. Defendant County of Kaua‘i has indicated it opposes the filing of this brief. Other Defendants have either not taken a position or not entered an appearance in this case.

4. For the foregoing reasons, we respectfully request the Court’s permission to file the amicus brief attached hereto. In the alternative, we request a pre-motion conference with the Court for leave to file such a brief.

The IADL/NLG/WPLC supports the Hawaiian Kingdom’s position that since the U.S. District Court is located within the territory of the Hawaiian Kingdom and not within the territory of the United States, it’s authority can only come as an Article II Court and not an Article III Court. Articles II and III refers to the U.S. Constitution where Article II describes the authority of the President and Article III describes the authority of the Supreme Court and the lower federal courts. According to Professor Bederman, who authored a law article titled “Article II Courts,”:

What, then, is distinctive about a court established under Article II of the Constitution? First, executive tribunals are established without an act of Congress or any other form of legislative concurrence. Congressional intent concerning the status of a presidential court is irrelevant because no congressional approval is needed. The fact that the President alone can create an executive court places it outside the scope of Article III of the Constitution, which demands that Congress shall establish courts inferior to the Supreme Court. Second, the executive courts are created pursuant only to the power and authority granted to the President in Article II of the Constitution. In practice, the only presidential power that would call for the creation of a court is that arising from his responsibility as Commander in Chief of the armed services and his consequent war-making authority.

Article II courts were established in Germany after the Nazis surrendered in 1945. Since then, western Germany was occupied by the United States, France and Great Britain until 1955 when a treaty of peace came into effect between Germany and the three occupying States that changed the state of affairs under international law from a state of war to a state of peace. During the occupation, these Article II Courts had jurisdiction “over all persons in the occupied territory,” except for Allied armed forces, their dependents, and civilian officials, for “all offenses against the laws and usages of war, all offenses under any proclamation, law, ordinance, notice or order issued by or under the authority of the Military Government or of the Allied Forces, and all offenses under the laws of the occupied territory or any part thereof.”

In its amicus, the IADL/NLG/WPLC explain, “Most importantly, functioning as an Article II court here would not undermine all this Court’s past judgments; previous judgments and laws of the United States would remain in effect unless they are at odds with the laws of the occupied Hawaiian Kingdom.” They then cite the 2014 proclamation of the Council of Regency of the Hawaiian Kingdom’s Provisional Laws:

We do hereby proclaim that from the date of this proclamation all laws that have emanated from an unlawful legislature since the insurrection began on July 6, 1887 to the present, to include United States legislation, shall be the provisional laws of the Realm subject to ratification by the Legislative Assembly of the Hawaiian Kingdom once assembled, with the express proviso that these provisional laws do not run contrary to the express, reason and spirit of the laws of the Hawaiian Kingdom prior to July 6, 1887, the international laws of occupation and international humanitarian law, and if it be the case they shall be regarded as invalid and void.

The amicus concludes with:

Under the concept of void ab initio, there are structures that have no legal effect from inception. The United States occupation of Hawai‘i began with unclean hands, and this can only be remedied by a clean slate and a new beginning. Recognition of the prolonged occupation of the Hawaiian Kingdom by the United States through Declaratory Judgment is not only a redressable claim, it is long overdue and would only be consistent with what is already known to the international community and clear under international law. Additionally, granting the Hawaiian Kingdom injunctive relief would acknowledge the Kingdom’s continuous sovereignty, mitigate the United States’ liability for its war crimes against the Hawaiian people, and apply local law as required of an occupying power by the international law of war. Acknowledging extraterritoriality and occupation would have the practical effect of applying the laws of the Hawaiian Kingdom but as was the case with prior occupation courts, this would not nullify any prior decisions of any of the courts currently operating in Hawai‘i, so long as they are not inconsistent with local law.

Czech Republic Closes Its Hawai‘i Consulate As a Result of the Hawaiian Kingdom’s Complaint Alleging an Internationally Wrongful Act

In a letter dated July 14, 2021, to Magistrate Judge Rom A. Trader who is presiding over the federal case of Hawaiian Kingdom v. Biden, et al., the Czech Republic’s Deputy Consul General in Los Angeles, Josef Smycek, wrote:

In Case #CV 21-00243LEK-RT (Civil Action No. 1-21-cv-00243), the Honorary Consul of the Czech Republic in Honolulu, Ms. Ann Suzuki Ching, received “Notice of a lawsuit and request to waive service of a summons,” and “Waiver of the service of summons,” both issued by the United States District Court for the District of Hawaii [in Hawaiian Kingdom v. Biden, et al.].

Ms. Ching referred the Notice/Waiver to the Consulate General of the Czech Republic in Los Angeles, her overseeing (career) consulate.

Our Consulate General consulted the Notice/Waiver with the Ministry of Foreign Affairs of the Czech Republic in Prague.

As a formal response to the Notice/Waiver, the Embassy of the Czech Republic in Washington, DC, issued a Note Verbale to the US Department of State (Note no. 2101-1/2021-Wash of June 30, 2021.

While it is expected that the US Department of State will notify the Court about the contents of said Note Verbale, for the sake of good order, informally, I am attaching a scan of the Note Verbale to this e-email for your reference, in particular ahead of the telephonic hearing of the Case, scheduled for July 19, 2021.

I also wish to inform you that all consular functions of Ms. Ching terminated on June 30, 2021, and the Honorary Consulate of the Czech Republic in Honolulu is temporarily closed.

Thank you in advance for confirming the receipt of this e-mail and of the scan of the Note Verbale in enclosure.

The Czech Republic is a member of the Consular Corps Hawai‘i along with 37 other foreign consulates in Hawai‘i. The closure of the Czech Republic’s Consulate in Hawai‘i was in direct response to paragraphs 99-101 of the Hawaiian Kingdom’s Complaint filed with the U.S. District Court of Hawai‘i on May 20, 2021. In its Complaint, which included the Czech Republic’s Honorary Consulate as a defendant, the Hawaiian Kingdom stated:

“99. The Consular Corps Hawai‘i is comprised of 38 countries, 32 of which are also members of the PCA Administrative Council in The Hague, Netherlands. These countries include, Australia, Austria, Bangladesh, Belgium, Brazil, Chile, Czech Republic, Denmark, Finland, France, Germany, Hungary, India, Italy, Japan, Luxembourg, Mexico, Morocco, Netherlands, New Zealand, Norway, Philippines, Poland, Portugal, Slovenia, South Korea, Spain, Sri Lanka, Sweden, Switzerland, Thailand and the United Kingdom via the Australian Consulate.

100. §458 of the Hawaiian Civil Code states, ‘[n]o foreign consul, or consular or commercial agent shall be authorized to act as such, or entitled to recover his fees and perquisites in the courts of this Kingdom, until he shall have received his exequatur.’ These consulates have not presented their credentials to the HAWAIIAN KINGDOM in order to receive exequaturs but rather received their exequaturs from the Defendant UNITED STATES OF AMERICA under the municipal laws of the United States.

101. In diplomatic packages sent to the foreign embassies in Washington, D.C., that maintain consulates in the territory of the HAWAIIAN KINGDOM by DAVID KEANU SAI, as Minister of Foreign Affairs ad interim, on April 15th and 20th of 2021, the Ambassadors were notified that their Consulates ‘within the territory of the Hawaiian Kingdom is by virtue of ‘American municipal laws,’ which stand in violation of Hawaiian sovereignty and independence, and, therefore constitutes an internationally wrongful act.’ The diplomatic note further stated that the ‘Council of Regency acknowledges that [foreign] nationals should be afforded remedial prescriptions regarding defects in their real estate holdings that have resulted from the illegal occupation in accordance with ‘laws and established customs’ of the Hawaiian Kingdom.’ This subject is covered in the Royal Commission of Inquiry’s Preliminary Report re Legal Status of Land Titles throughout the Realm and its Supplemental Report re Title Insurance.’”

The diplomatic packages referred to in paragraph 101 of the Complaint included a letter to the Czech Republic’s Ambassador His Excellency Hynek Kmoníček dated April 20 2021. In its recent filing with the U.S. District Court this past Friday (July 23, 2021), the Hawaiian Kingdom addressed the closing of the Czech Republic’s Consulate by stating:

“The maintenance of Defendant foreign Consulates in the territory of the Hawaiian Kingdom also constitutes acts of belligerency. Regarding the Czech Republic’s recent letter to this Court announcing the temporary closure of its Honorary Consulate in the Hawaiian Kingdom on June 30, 2021, the Hawaiian Kingdom acknowledges this act to be in conformity with Article 30(a) and (b) of Responsibility of States for Internationally Wrongful Acts (2001), whereby ‘[t]he State responsible for the internationally wrongful act is under an obligation (a) to cease that act, if it is continuing [and] (b) to offer appropriate assurances and guarantees of non-repetition, if circumstances so require.’”

UPDATE: UCC Synod Changes Decision, Passes Resolution on Occupied Hawai‘i

Synod changes decision, passes resolution on occupied Hawaii

by Hans Holznagel | published on Jul 18, 2021

Here is the link to the amended resolution “Encouraging to End 128 years of of War between the United States of America and the Hawaiian Kingdom” that was passed.

The governing body of the United Church of Christ doesn’t usually change its mind about a vote it has taken. On July 18, it did.

General Synod delegates voted to reconsider a resolution about Hawaii that they had narrowly defeated the day before. This time the resolution got 72.9 percent approval — comfortably more than the two-thirds required to pass. The vote was 328-122, with 34 abstentions.

The resolution calls on church leaders to ask that the U.S. recognize its own presence in Hawaii as an “illegal occupation” according to international law. On July 17, a majority — but not the needed super-majority — had voted for it.

The resolution had come to Synod from the UCC’s Association of Hawaiian Evangelical Churches, made up of 31 historically Native Hawaiian congregations from across Hawaii. Some 80 percent of them were founded before 1893, the year the United States took Hawaii by military overthrow.

What it calls for

Now that it has passed, the resolution charges the UCC’s general counsel with communicating the church’s position to government agencies. First, the counsel is to “listen to and consider recommendations” from AHEC, “other Native Hawaiian organizations, and Native Hawaiian voices.” Then it is to draft “communications to local, national and international leaders and organizations calling for compliance with international humanitarian law and an end to the illegal occupation of the Hawaiian islands.”

AHEC spelled out the case for that position in submitting its resolution months ago.

As amended by delegates in a two-day process at Synod, the resolution also:

  • Calls on “all settings of the church … to live into the 1993 apology of the United Church of Christ delivered to the Native Hawaiian people”
  • Reaffirms the Synod’s commitment “to stand alongside and in support of the efforts of Native Hawaiians to seek redress and restitution for the war crimes of the U.S. against the Hawaiian Kingdom including, but not limited to, the crime of denationalization”
  • Asks for “a written and oral update on the progress on the implementation of this resolution” at the 2023 Synod.
Synod delegates reconsider the resolution during their July 18 plenary session.

The Rethink

The Synod’s rethink followed numerous points of order and points of personal privilege raised by delegates. Several said they felt the July 17 floor debate had been unfairly cut short — though Moderator Penny Lowes pointed out that the delegates themselves had defeated a motion to extend debate in that Saturday session. What succeeded on Jan. 18 — after much parliamentary analysis — was a formal motion to reconsider.

Gloria-Ann Muraki, an AHEC member and a Synod delegate from the UCC Board who spoke to the resolution in committee and on the floor, saw a higher power at work in the process.

She said the AHEC committee that originally wrote the resolution had been meeting since its July 17 defeat. “We have been reminding ourselves that we have to keep our faith in Ke Akua (God),” she said. “And that is what happened on the floor of the General Synod. We thank everyone, and it’s given us renewed faith in the UCC and its process.”

AHEC Holds Workshop on Resolution of State of War between the Hawaiian Kingdom and the U.S.

On June 14, 2021, the Association of Hawaiian Evangelical Churches (AHEC) held a workshop on 128 Years of White Supremacy in Hawai‘i. AHEC is an association of 30 native churches and 6 partnerships that include, as partnership ministries, the State Sunday School Association, Pacific Justice and Reconciliation, Kamehameha Schools, State Council of Hawaiian Congregational Churches, Christian Endeavor and the Pacific American Ministries.

AHEC is a successor of the ‘Ahahui ‘Euanelio o Hawai‘i, also known as the Hawaiian Evangelical Association, that was established in 1854 in the Hawaiian Kingdom. Well known churches such as Kawaiaha‘o and Kaumakapili are members of AHEC.

The workshop was intended to explain AHEC’s Resolution Encouraging to End 128 Years of War Between the United States of America and the Hawaiian Kingdom. The resolution was submitted by AHEC of the Hawai‘i Conference United Church of Christ to be considered at the 33rd General Synod of the United Church of Christ in July 2021.

Presenters included Wendell Davis (AHEC Papa Makua), Ron Fujiyoshi, Pualani Muraki, Kalaniakea Wilson, and special guests Joyclynn Costa, Rev. Dr. David Popham, Dr. Ron Williams, Dr. Keanu Sai.

Hawaiian Kingdom files Complaint against the United States and the State of Hawai‘i in U.S. Federal Court

Since the United States Congress enacted a joint resolution purporting to annex the Hawaiian Islands, which was signed by President McKinley into U.S. law on July 7, 1898, American municipal laws have been illegally imposed within the territorial jurisdiction of the Hawaiian Kingdom. U.S. constitutional scholar, Westel Willoughby, wrote at the time of the purported annexation by legislative act:

The constitutionality of the annexation of Hawaii, by a simple legislative act, was strenuously contested at the time both in the 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.

westel woodbury willoughby, the constitutional law of the United states §239 (1929).

Along the same lines, the Hawaiian Kingdom Supreme Court, in In re Francis de Flanchet in 1858, stated that the “laws of a nation cannot have force to control the sovereignty or rights of any other nation within its own jurisdiction. And however general and comprehensive the phrases used in the municipal laws may be, they must always be restricted in construction, to places and persons upon whom the Legislature have authority and jurisdiction.” There is no treaty transferring Hawaiian territory to the United States. As such, the Hawaiian Kingdom continued to exist as an independent State that was acknowledged by the United States in arbitral proceedings before the Permanent Court of Arbitration in Larsen v. Hawaiian Kingdom despite the unlawful overthrow of its government by the United States on January 17, 1893.

On the subject of the 1898 joint resolution of annexation of the Hawaiian Islands, the U.S. Department of Justice’s Office of Legal Counsel, after covering the territorial limits of legislative acts, concluded in a 1988 legal opinion, “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.” The complaint states:

If it was unclear how Hawai‘i was annexed by legislation, it would be equally unclear how the Congress could create a territorial government, under an An Act to provide a government for the Territory of Hawaii in 1900, within the territory of a foreign State by legislation. It would also be unclear how the Congress could rename the Territory of Hawai‘i to the State of Hawai‘i in 1959, under an Act To provide for the admission of the State of Hawai‘i into the Union by legislation.

International law at the time obligated the United States to administer Hawaiian Kingdom law after it unlawfully overthrew the Hawaiian Kingdom Government. The law of occupation was triggered after the United States, as the occupying State, secured effective control over Hawaiian territory. This effective control began when Queen Lili‘uokalani conditionally surrendered to the United States President on January 17, 1893. The Queen stated:

Now, to avoid any collision of armed forces and perhaps the loss of life, I do, under this protest, and impelled by said force, yield my authority until such time as the Government of the United States shall, upon the facts being presented to it, undo the action of its representatives and reinstate me in the authority which I claim as the constitutional sovereign of the Hawaiian Islands.

UNITED STATES HOUSE OF REPRESENTATIVES, 53RD CONGRESS, EXECUTIVE DOCUMENTS ON AFFAIRS IN HAWAII: 1894-95 (1895), 586.

President Cleveland initiated a presidential investigation on March 11, 1893 by appointing Special Commissioner James Blount to travel to the Hawaiian Islands and to provide periodic reports to the U.S. Secretary of State Walter Gresham. Commissioner Blount arrived in the Islands on March 29th, where he “directed the removal of the flag of the United States from the government building and the return of the American troops to their vessels.” His first report was dated April 6, 1893, and his final report was dated July 17, 1893. On October 18, 1893, Secretary of State Gresham notified the President:

The Provisional Government was established by the action of the American minister and the presence of the troops landed from the Boston, and its continued existence is due to the belief of the Hawaiians that if they made an effort to overthrow it, they would encounter the armed forces of the United States.

The earnest appeals to the American minister for military protection by the officers of that Government, after it had been recognized, show the utter absurdity of the claim that it was established by a successful revolution of the people of the Islands. Those appeals were a confession by the men who made them of their weakness and timidity. Courageous men, conscious of their strength and the justice of their cause, do not thus act. …

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…

Should not the great wrong done to a feeble but independent State by an abuse of the authority of the United States be undone by restoring the legitimate government? Anything short of that will not, I respectfully submit, satisfy the demands of justice.

UNITED STATES HOUSE OF REPRESENTATIVES, 53RD CONGRESS, EXECUTIVE DOCUMENTS ON AFFAIRS IN HAWAII: 1894-95 (1895), 462-463.

When negotiations began at the U.S. Legation in Honolulu on November 13, 1893, U.S. Minister Albert Willis stated to the Queen the position taken by the President after a full investigation. Willis expressed “the President’s sincere regret that, through the unauthorized intervention of the United States, she had been obliged to surrender her sovereignty, and his hope that, with her consent and cooperation, the wrong done to her and to her people might be redressed.” “To this,” Willis noted, “she bowed her acknowledgements.” Negotiations continued for another month. The illegality of the overthrow was due to the international principle of non-intervention in the internal affairs of another State.

President Cleveland delivered a manifesto to the Congress on his investigation into the overthrow of the Hawaiian Government on December 18, 1893.  The President concluded that the “military occupation of Honolulu by the United States…was wholly without justification, either as an occupation by consent or as an occupation necessitated by dangers threatening American life and property.” He also determined “that the provisional government owes its existence to an armed invasion by the United States.” Finally, the President admitted that by “an act of war…the Government of a feeble but friendly and confiding people has been overthrown.” Referring to the annexation plot of the insurgents, Cleveland concluded “that the United States could not, under the circumstances disclosed, annex the islands without justly incurring the imputation of acquiring them by unjustifiable methods.”

Unbeknownst to the President, an agreement of peace was reached on the very same day Cleveland gave his manifesto to the Congress. Gresham acknowledged receipt of Willis’ dispatch of the agreement dated December 20, 1893, in a telegram of January 12, 1894, in which he stated, “Your reports show that on further reflection the Queen gave her unqualified assent in writing to the conditions suggested.” According to the executive agreement, by exchange of notes, the President committed to restoring the Queen as the constitutional sovereign, and the Queen agreed, after being restored, to grant a full pardon to the insurgents. As a constitutional monarch, however, the agreement required an additional signature of a cabinet minister to make it binding under Hawaiian constitutional law. Article 42 of the 1864 Constitution provides, “No act of the [Monarch] shall have any effect unless it be countersigned by a Minister, who by that signature makes himself responsible.”

The United States neither complied with international humanitarian law and the law occupation nor did it carry out the international agreement of restoring Queen Lili‘uokalani as the Executive Monarch. Instead, the United States concealed this history and the unlawful seizure of Hawaiian territory by embarking on a sinister plan of denationalization through Americanization across the Hawaiian Islands in 1906. This plan was implemented throughout the schools, both public and private, in a deliberate effort to brainwash school children into believing they are American citizens and that Hawai‘i sought to be incorporated as a U.S. territory.

Within three generations since its implementation, the national consciousness of the Hawaiian Kingdom had become erased. This was the ultimate aim of the insurgency, which was evidenced in the record of a Council of State meeting of the so-called Republic of Hawai‘i in 1895. Samuel Damon, who served as the group’s Vice-President, stated, “If we are ever to have peace and annexation the first thing to do is to obliterate the past.” According to political scientist Lorenz Gonschor,

American indoctrination of the people of Hawai‘i had profound negative consequences not only on Hawaiian culture and identity, but also on the islands’ historiography. As soon as the Missionary Party—or, as loyalist newspaper editor Edmund Norrie called them, the American Mafia—had taken the reins of power, they began to systemically rewrite the country’s history and obscure and discredit the achievements of the Hawaiian Kingdom.

Lorenz Gonschor, a Power in the world: the Hawaiian Kingdom in Oceania (2019), 158.

This obliteration of Hawaiian national consciousness had effectively erased, in the minds of generations to date, the United States invasion of the Hawaiian Kingdom on January 16, 1893, and the unlawful overthrow of Hawaiian government the day after. In order to better understand the effects of denationalization download Dr. Keanu Sai’s article published by the University of Hawai‘i at Mānoa’s Hawaiian Journal of Law and Politics titled “Setting the Record Straight on Hawaiian Indigeneity.”

International humanitarian law views denationalization within the occupied territory as a war crime. According to Professor William Schabas, denationalization is one of the war crimes currently being committed in Hawai‘i, which are “actions directed at the destruction of the national identity and national consciousness of the population” of the Hawaiian Kingdom. The unlawful imposition of American municipal laws for over a century since 1898 is also the war crime of usurpation of sovereignty. Professor Schabas also stated, “the Occupying Power must not change the demographic, social and political situation in the territory it has occupied to the social and economic detriment of the population living in the occupied territory.” The unlawful imposition of American municipal laws did radically change the “demographic, social and political situation” of the Hawaiian Kingdom.

To fully understand the scope and magnitude of the prolonged American occupation of the Hawaiian Kingdom download the free eBook titled “The Royal Commission of Inquiry: Investigating War Crimes and Human Rights Violations Committed in the Hawaiian Kingdom (2000). Activities and reports by the Royal Commission of Inquiry can be accessed here.

On May 20, 2021, Dexter Ka‘iama, Attorney General for the Hawaiian Kingdom, filed a complaint for declaratory and injunctive relief (Hawaiian Kingdom v. Biden et al.). Defendants named in the complaint include President Joseph Biden and other officers of the United States Federal government, the State of Hawai‘i and Counties and its officers, as well as 32 foreign consulates unlawfully established in the Hawaiian Kingdom, which include Australia, Austria, Bangladesh, Belgium, Brazil, Chile, Czech Republic, Denmark, Finland, France, Germany, Hungary, India, Italy, Japan, Luxembourg, Mexico, Morocco, Netherlands, New Zealand, Norway, Philippines, Poland, Portugal, Slovenia, South Korea, Spain, Sri Lanka, Sweden, Switzerland, and Thailand.

What is significant about this action taken by the Council of Regency, as the government of the Hawaiian Kingdom, is that the United States Federal Court cannot invoke the political question doctrine that would be the basis for dismissal. The political question doctrine is where there is a question as to the sovereignty of a country, the federal courts will defer the answer to this question by the President as head of the executive branch. Once the President, through its Department of State, explicitly recognizes the sovereignty of a country the courts are bound by that recognition.

In other words, since the United States, by its embassy in the Netherlands which is a member of the Permanent Court of Arbitration (PCA) Administrative Council, explicitly recognized the Hawaiian Kingdom as a non-Contracting State in accordance with article 47 of the 1907 PCA Convention in the Administrative Council’s annual reports from 2000 to 2011, it answered the political question in the affirmative that the Hawaiian Kingdom continues to exist as an independent State and the Council of Regency is its government. The complaint explains:

102. The explicit recognition by the United States of the continued existence of the HAWAIIAN KINGDOM as a State and the Council of Regency as its government prevents the denial of this civil action in the courts of the United States under the political question doctrine. In Williams v. Suffolk Insurance Co., the Supreme Court rhetorically asked whether there could be “any doubt, that when the executive branch of the government, which is charged with our foreign relations…assumes a fact in regard to the sovereignty of any island or country, it is conclusive on the judicial department. In Sai v. Clinton and in Sai v. Trump the court erred when it invoked the political question doctrine. In both cases the plaintiff provided evidence of the Hawaiian Kingdom’s continuity by virtue of the proceedings at the Permanent Court of Arbitration in Larsen v. Hawaiian Kingdom.

103. In Jones v. United States, the Supreme Court concluded that “[w]ho is the sovereign, de jure or de facto, of a territory is not a judicial, but is a political, question, the determination of which by the legislative and executive departments of any government conclusively binds the judges, as well as all other officers, citizens, and subjects of that government. This principle has always been upheld by this Court, and has been affirmed under a great variety of circumstances.” As a leading constitutional scholar, Professor Corwin, concluded, “[t]here is no more securely established principle of constitutional practice than the exclusive right of the President to be the nation’s intermediary in its dealing with other nations.” The ‘executive’ did determine ‘[w]ho is the sovereign’ of the HAWAIIAN KINGDOM, and, therefore, since there is no political question, it ‘binds the judges, as well as all other officers, citizens, and subjects of that government.’

Not only did the United States explicitly recognized the continuity of the Hawaiian Kingdom as a member of the PCA Administrative Council but also the other 32 countries that have unlawfully established foreign consulates in Hawaiian territory. These 32 countries along with the United States are members of the PCA Administrative Council. As a result, the named defendants and the U.S. Federal Court are prevented from raising the political question doctrine. To understand how the United States explicitly recognized the continuity of the Hawaiian Kingdom see the Preliminary Report of the Royal Commission of Inquiry.

Under the first Count (Supremacy Clause) of the cause of action in the complaint, the Defendant State of Hawai‘i is prohibited from “any curtailment or interference” of the Defendant United States of America’s explicit recognition of the Council of Regency as the government of the Hawaiian Kingdom.

Under the second Count (Usurpation of Sovereignty) of the cause of action in the complaint, in enacting and implementing the laws of the United States, to include the laws of the State of Hawai‘i and its Counties, i.e., the United States constitution, State of Hawai‘i constitution, Federal and State of Hawai‘i statutes, County ordinances, common law, case law, administrative law, and the maintenance of United States military installations, Defendants who are officers of the Federal, State and County governments have exceeded their statutory authority, engaged in violating the 1849 Hawaiian-American Treaty of Friendship, Commerce and Navigation, the 197 Hague Regulations, the 1907 Hague Convention, V, and the 1949 Fourth Geneva Convention, and has failed to comply with international humanitarian law by administering the laws of the Hawaiian Kingdom, which include the 1864 constitution, statutes, common law, case law, and administrative law.

Under the third Count (Pillaging and Destruction of Property) of the cause of action in the complaint, international humanitarian law prohibits pillaging and destruction of property through the collection of taxes that are exacted from the residents of the Hawaiian Kingdom by the Internal Revenue Service of the Defendant United States of America and the Department of Taxation of the Defendant State of Hawai‘i in violation of Article 8 of the 1849 Hawaiian-American Treaty of Friendship, Commerce and Navigation, Article 43 of the 1907 Hague Regulations, and Article 64 of the 1949 Fourth Geneva Convention.

Under the final Count (Exequaturs) of the cause of action in the complaint, international humanitarian law prohibits usurpation of sovereignty by granting exequaturs to foreign consulates under American municipal law within the territory of the Hawaiian Kingdom in violation of the Article 8 of the 1849 Hawaiian-America Treaty of Friendship, Commerce and Navigation, Article 43 of the 1907 Hague Regulations, and Article 64 of the 1949 Fourth Geneva Convention.

The Hawaiian Kingdom is asking the Court to:

Declare that all laws of the Defendants United States of America and the State of Hawai‘i and its Counties, to include the United States constitution, State of Hawai‘i constitution, Federal and State of Hawai‘i statute, County ordinances, common law, case law, administrative law, and the maintenance of Defendant United States of America’s military installations are unauthorized by, and contrary, to the Constitution and Treaties of the United States;

Enjoin Defendants from implementing or enforcing all laws of the Defendant United States of America and the State of Hawai‘i and its Counties, to include the United States constitution, State of Hawai‘i constitution, Federal and State of Hawai‘i statute, County ordinances, common law, case law, administrative law, and the maintenance of Defendant United States of America’s military installations across the territory of the Hawaiian Kingdom, to include its territorial sea;

Enjoin Defendants who are or agents of foreign diplomats from serving as foreign consulates within the territorial jurisdiction of the Hawaiian Kingdom until they have presented their credentials to the Hawaiian Kingdom Government and received exequaturs; and

Award such additional relief as the interests of justice may require.

On May 21, 2021, an Order was signed by Chief Judge J. Michael Seabright setting a scheduling conference over the telephone at 9:00am on July 19, 2021 before Magistrate Judge Rom Trader.

United Church of Christ: Native Hawaiians seek Synod support for sovereignty steps

Native Hawaiians seek Synod support for sovereignty steps

by Hans Holznagel | published on May 17, 2021

The 2021 General Synod of the United Church of Christ, meeting July 11-18, will consider 11 resolutions and several bylaw changes. This is one in a series of articles about them. Readers can view an initial summary here and find full texts at the Synod website.

Aside from the 1941 attack on Pearl Harbor, war may not be the first thing that comes to mind when people think of Hawaii.

Some Native Hawaiians in the United Church of Christ are asking people to think again.

They are calling attention to an earlier military action, from 1893. They say it created what amounts to a state of war that never ended — and needs to end now.

They argue that, because the United States took Hawaii by military overthrow, the U.S. and the state government of Hawaii should be seen as occupying forces.

They make their case in a proposed resolution that calls for an end to “128 years of war” between the U.S. and the Hawaiian Kingdom. It will require a two-thirds vote of Synod delegates to pass.

Its sponsor is the Association of Hawaiian Evangelical Churches of the UCC. The AHEC consists of 31 historically Native Hawaiian congregations from across the Hawaii Conference. Some 80 percent of them were founded before 1893.

Hawaiian Kingdom still exists

The resolution’s key points are that the Hawaiian Kingdom never ceased to exist, even after its overthrow — and that there’s unfinished business.

It says the U.S., under President Grover Cleveland, negotiated with the Hawaiian Queen Lili‘uokalani — soon after deposing her — to restore her government to power. Cleveland himself, in an 1893 address to Congress, called the overthrow:

an act of war, committed with the participation of a diplomatic representative of the United States and without authority of Congress. ... A substantial wrong has thus been done which a due regard for our national character as well as the rights of the injured people requires we should endeavor to repair.

But the Native Hawaiian government has never returned to power — even though Cleveland, by a still-valid executive order, called for it to be restored, the resolution says.

Peace treaty sought

“Under international law, the action needed is a signed treaty of peace between the United States of America and the Hawaiian Kingdom government,” said Kalaniakea Wilson. He belongs to Kalapana Maunakea First Hawaiian Congregational Church in Nanawale, founded in 1823. He will speak to the resolution for AHEC when a committee of Synod delegates reviews it in July. Such a treaty, Wilson said, would be “similar to the agreement of restoration” between Cleveland and Queen Lili’uokalani that was “not implemented.”

The resolution also notes that the UCC and the U.S. Congress apologized in 1993 for their predecessors’ roles in the overthrow. National and Conference bodies in the UCC followed up by paying millions of dollars in reparations, in money and property, to Native Hawaiians.https://www.youtube.com/embed/CF6CaLAMh98?feature=oembed“Exposing the American Occupation” is part of the subtitle of this 2019 documentary featuring today’s leaders of the Hawaiian Kingdom.

But Wilson said these have not ended the decades of human costs paid by Native Hawaiians ever since the hostile takeover of their home.

“Thirty years have passed and there has been no solution to resolve 128 years of war crimes and human rights violations targeting Hawaiian Christians,” he said. “The Hawaiian people have been struggling to survive in Hawaii, leading in all negative health statistics, homelessness and much more. False apologies and broken promises exacerbate our situation.”

Wilson said recent struggles “have built a strong movement for self-governance that has grown stronger.” An example, he said, are Native-led efforts to protect a sacred mountain, Mauna Kea, “from continued desecration” by construction work on a large telescope.

Case for war crimes

One immediate step forward, Wilson said, would be for the U.S. government and the State of Hawaii “to cooperate with the Royal Commission of Inquiry.” Formed in 2019, it’s an official body of the Hawaiian Kingdom.

The UCC resolution refers to “war crimes” that impose “humanitarian and human rights violations daily” on Native Hawaiian people. The Commission of Inquiry is amassing historical and legal evidence to back those charges.

For example, the Commission argues that actions such as these — committed against Native Hawaiians by the U.S., as an occupying power — are war crimes according to international law:

  • “Usurpation of sovereignty during occupation”
  • “Denationalizing the inhabitants of occupied territory,” by, for example, outlawing aspects of Native language and culture
  • “Confiscation of property”

International law “flagrantly violated”

The AHEC is not alone in the current movement to re-recognize the Hawaiian Kingdom.

One example is the United Nations Office of the Commissioner for Human Rights. Its appointed expert, Alfred M. deZayas, said in 2018 that the islands are “under a strange form of occupation by the United States, resulting from an illegal military occupation and a fraudulent annexation.” In a letter to Hawaii’s state judiciary, he described Hawaii as “a sovereign nation-state in continuity.”

Another is the National Lawyers Guild. “International humanitarian law continues to be flagrantly violated with apparent impunity by the State of Hawai‘i and its county governments,” it said in a November 2020 letter to Hawaii’s governor. “This has led to the commission of war crimes and human rights violations of a colossal scale throughout the Hawaiian Islands.”

“Stop imposing American law”

The AHEC resolution summarizes this history and these arguments in “whereas” paragraphs and footnotes. But if the Synod were to pass the resolution as written, it would simply and “strongly” urge:

  • Hawaii’s state and county leaders and the U.S. Congress and president to “begin to comply with international humanitarian law in its prolonged and illegal occupation of the Hawaiian Islands.”
  • “All United Nation member states and non-member states to cooperate to ensure the United States complies with international humanitarian law and bring an end to the unlawful occupation of the Hawaiian Islands.”

The law of the land — of the Hawaiian Islands, that is — is what’s at stake, Wilson said. “The first step is to stop imposing American municipal laws within Hawaiian territory,” he said, “and, second, begin to administer Hawaiian Kingdom law.”

The Hawaiian Journal of Law and Politics at the University of Hawai‘i at Mānoa

The Hawaiian Journal of Law and Politics (HJLP) at the University of Hawaiʻi at Mānoa just published its third volume. Itʻs last edition, volume 2, was published back in the summer of 2006. The journal is published by the Hawaiian Society of Law and Politics (HSLP) which is a student organization at the university comprised of students, faculty and staff at the University of Hawai‘i at Mānoa.

HSLP was founded as a registered independent organization under Co-curricular Activities, Programs, and Services at the University of Hawaiʻi at Mānoa in October 30, 2003. In 2014, the organization had disbanded, only to be revived in the Spring of 2021 with an all-new membership.

Volume 3 of the HJLP has three original articles and reprints of articles and chapters that were authored by alumni of HSLP. These alumni all have Ph.D. degrees. Of the original articles, Dr. Kalawai‘a Moore is the Editor of HJLP and is the author of the “Editorʻs Notes,” and the article “American Hegemonic Discourse in Hawai‘i: Rhetorical Strategies in Support of American Control Over Hawai‘i.” Dr. Keanu Sai is the author of “Setting the Record Straight on Hawaiian Indigeneity.” And Dr. Umi Perkins is the author of “Negotiating Native Tenant Rights.”

Authors of the reprint of articles and chapters include Dr. Keao NeSmith who is the author of “Tūtūtʻs Hawaiian and the Emergence of a Neo Hawaiian Language.” Dr. Sydney Iaukea is the author of “The Queen and I: a Story of Dispossessions and Reconnections in Hawai‘i.” And Dr. Lorenz Gonschor is the author of “The Subtleties of a Map and a Painting.”

Professor Niklaus Schweizer is the author of a book review of the “Royal Commission of Inquiry: Investigating War Crimes and Human Rights Violations Committed in the Hawaiian Kingdom.”

Dr. Keanu Sai is the author of “The Royal Commission of Inquiry.” Professor William Schabas is the author of the “Legal Opinion on War Crimes Related to the United States Occupation of the Hawaiian Kingdom since 17 January 1893.” And Professor Federico Lenzerini is the author of the “Legal Opinion on the Authority of the Council of Regency of the Hawaiian Kingdom.”

It is recommended to first read Dr. Kalawaiʻa’s “Editor’s Note” where he explains the hiatus of the HJLP since 2006 and why this volume is dedicated to the late Professor Kanalu Young who served as the faculty advisor for HSLP. Followed by Dr. Sai’s article “Setting the Record Straight on Hawaiian Indigeneity,” Dr. Kalawai’s article “American Hegemonic Discourse,” and Dr. Perkins’ article “Negotiating Native Tenant Rights.”

Dr. Keanu Sai to Present on the Hawaiian Kingdom, United States and International Law on April 8

Dr. Keanu Sai will be covering in his presentation some of the subjects in his latest article “Setting the Record Straight on Hawaiian Indigeneity” that was recently published in volume 3 of the Hawaiian Journal of Law and Politics at the University of Hawai‘i at Manoa. Dr. Sai asked that everyone read the article before his presentation on April 8, 2021.

7:30pm Indian Standard Time (IST) is:

10:00am Eastern Time

7:00am Pacific Time

4:00am Hawai‘i Time

Dr. Sai’s presentation will be via Zoom:

Zoom Linkhttps://zoom.us/j/93879471109
Password: JGU

U.S. Explicitly Recognizes the Continued Existence of the Hawaiian Kingdom and its restored government

Explicit Recognition by the United States of America of the Continued Existence of the Hawaiian Kingdom and its government—the Council of Regency

HONOLULU, 5 April 2021 — On 15 March 2021, Dr. David Keanu Sai, Chairman of the Council of Regency, and Mrs. Kau‘i Sai-Dudoit, Minister of Finance, was notified that the “Securities Commission of the State of Hawaii is about to commence an enforcement action against [them] based upon the sale of unregistered Kingdom of Hawaii Exchequer Bonds, in violation of HRS § 485A-301.” In § 485A-201(2) of the statute it states that bonds issued “by a foreign government with which the United States maintains diplomatic relations” are exempt.

The State of Hawai‘i has taken the dubious position that the Council of Regency is not a government and that the Hawaiian Kingdom does not exist. This position, however, runs counter to the United States explicit recognition of the continuity of the Hawaiian Kingdom, as a State, and its government—the Council of Regency, when arbitral proceedings were instituted at the Permanent Court of Arbitration (PCA) on 8 November 1999 in Larsen v. Hawaiian Kingdom. This explicit recognition by the United States has serious consequences for the State of Hawai‘i because it triggered the Supremacy Clause under federal law, where “all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.”

The United States Supreme Court, in United States v. Curtiss-Wright Export Corp., stated that the rule of the Supremacy Clause holds “in the case of international compacts and agreements [when it forms] the very fact that complete power over international affairs is in the National Government and is not and cannot be subject to any curtailment or interference on the part of the several States.”

Attached to this press release is a Preliminary Report of the Royal Commission of Inquiry that explains not only the United States explicit recognition of the Council of Regency and the continued existence of the Hawaiian Kingdom, but also by the explicit recognition by the other treaty partners of the Hawaiian Kingdom, which includes Austria, Belgium, Denmark, France, Germany, Great Britain, Hungary, Italy, Japan, Luxembourg, Netherlands, Norway, Portugal, Russia, Spain, Sweden, and Switzerland.

The Supremacy Clause has rendered the State of Hawai‘i incapacitated because under international law, congressional acts, which includes the 1959 Statehood Act, have no effect in the territory of a foreign State unless it has the consent by the government of that State. There is no consent from the Hawaiian government since 1893 that would allow American municipal laws to have any effect within the territory of the Hawaiian Kingdom. This was precisely the dispute between Larsen and the Council of Regency. As the PCA stated:

Lance Paul Larsen, a resident of Hawaii, brought a claim against the Hawaiian Kingdom by its Council of Regency (“Hawaiian Kingdom”) on the grounds that the Government of the Hawaiian Kingdom is in continual violation of: (a) its 1849 Treaty of Friendship, Commerce and Navigation with the United States of America, as well as the principles of international law laid down in the Vienna Convention on the Law of Treaties, 1969 and (b) the principles of international comity, for allowing the unlawful imposition of American municipal laws over the claimant’s person within the territorial jurisdiction of the Hawaiian Kingdom.

American municipal laws include the constitution and laws of the State of Hawai‘i. Under international criminal law, the unlawful imposition of American municipal laws within the territory of the Hawaiian Kingdom constitutes the war crime of usurpation of sovereignty. War crimes have no statute of limitation and a person who commits a war crime can be prosecuted even after 50 years from the time the war crime was committed. Under international law, war criminals are subjected to be prosecuted by all States when they enter the State’s territory even though the crimes were committed outside of their territories. Finland and Switzerland are currently prosecuting war criminals for crimes committed in Liberia.

The only way for the State of Hawai‘i and its Counties to continue to govern is in accordance with international humanitarian law and the law of occupation. From a domestic standpoint, the Supremacy Clause renders the existence of the State of Hawai‘i unconstitutional and void because its existence is in conflict with treaties that the United States has ratified, which includes the 1849 Hawaiian-American Treaty of Friendship, Commerce and Navigation. To continue to govern would be to transform themselves into an occupying government within the limits and what is allowed under international law.

In a letter of correspondence from Dr. Sai, as Head of the Royal Commission of Inquiry (RCI), to State of Hawai‘i Attorney General Clare E. Connors, dated 2 June 2020, the Attorney General was notified that:

I am not aware whether you were informed of three meetings I had in 2015 with Mike McCartney, former chief of staff for Governor David Ige, at his office in the Executive Chambers regarding the subject of war crimes and the American occupation. This prompted a report I submitted to him that summarized what we discussed in those three meetings and how the State of Hawai‘i has a duty, under international humanitarian law, to transform itself into a Military government by virtue of Article V, section 5 of the Constitution of the State of Hawai‘i. United States practice for Military government is covered in United States Army and Navy FM 27-5, and occupation of an occupied State is covered in FM 27-10. The Adjutant General, MG Kenneth Hara, should be aware of these regulations and the function of a Military government.

These are not normal times but you are the legal advisor to the Governor, and due to the severity of the situation under international criminal law and the material elements of mens rea and actus reus, I respectfully implore you to carefully review the information I have provided you and to advise the office of the Governor accordingly. Under international humanitarian law, decisions on this matter are not with the federal government nor is it with its military here in the islands, but solely on the shoulders of the State of Hawai‘i as it is the entity in effective control of Hawaiian territory thereby triggering the law of occupation. I should also note that the governmental infrastructure of the State of Hawai‘i is that of the Hawaiian Kingdom. The only change was in name, e.g. the Department of Land and Natural Resources is the Ministry of the Interior. All that was changed in 1893 was the Queen and her cabinet, and the top law enforcement of the kingdom, being forcibly replaced by insurgents calling themselves the Executive and Advisory Councils.

Both the National Lawyers Guild (NLG) and the International Association of Democratic Lawyers (IADL) have called upon the State of Hawai‘i to transform itself into an occupying government. In its letter to Governor David Ige of 10 November 2020, the NLG stated:

We urge you, Governor Ige, to proclaim the transformation of the State of Hawai‘i and its Counties into an occupying government pursuant to the Council of Regency’s proclamation of June 3, 2019, in order to administer the laws of the Hawaiian Kingdom. This would include carrying into effect the Council of Regency’s proclamation of October 10, 2014 that bring the laws of the Hawaiian Kingdom in the nineteenth century up to date. We further urge you and other officials of the State of Hawai‘i and its Counties to familiarize yourselves with the contents of the recent eBook published by the RCI and its reports that comprehensively explains the current situation of the Hawaiian Islands and the impact that international humanitarian law and human rights law have on the State of Hawai‘i and its inhabitants.”

In its resolution of 7 February 2021, the “IADL fully supports the NLG’s November 10, 2020 letter to State of Hawai‘i Governor David Ige urging him to ‘proclaim the transformation of the State of Hawai‘i and its Counties into an occupying government pursuant to the Council of Regency’s proclamation of June 3, 2019, in order to administer the laws of the Hawaiian Kingdom. This would include carrying into effect the Council of Regency’s proclamation of October 10, 2104 that bring the laws of the Hawaiian Kingdom in the nineteenth century up to date.”

The NLG letter and the IADL resolution are attached to this press release.

The actions taken by the State of Hawai‘i against government officials of the Hawaiian Kingdom also constitutes a violation of Article 54 of the Fourth Geneva Convention, which states, “The Occupying Power may not alter the status of public officials…in the occupied territories, or in any way apply sanctions to or take any measures of coercion or discrimination against the them.” The Fourth Geneva Convention was ratified by the United States Senate on 6 July 1955 and came into force on 2 February 1956. As such, the Fourth Geneva Convention comes under the Supremacy Clause.

In light of the awareness of the occupation by the leadership of the State of Hawai‘i, these allegations against the Hawaiian government officials constitute malicious intent. As pointed out by Professor Lenzerini, under the rules of international law, “the working relationship between the Regency and the administration of the occupying State would have the form of a cooperative relationship aimed at guaranteeing the realization of the rights and interests of the civilian population and the correct administration of the occupied territory.” This unwarranted attack is a violation of the law of occupation, and as a proxy for the United States, it also constitutes an international wrongful act.

###

IADL Resolution on the US Occupation of the Hawaiian Kingdom

The following resolution was adopted by the IADL Council, in virtual session, on 7 February 2021:

IADL RESOLUTION CALLING UPON THE UNITED STATES TO IMMEDIATELY COMPLY WITH INTERNATIONAL HUMANITARIAN LAW IN ITS PROLONGED OCCUPATION OF THE HAWAIIAN ISLANDS—THE HAWAIIAN KINGDOM

The International Association of Democratic Lawyers (IADL) is a non-governmental organization of human rights lawyers founded in 1946, with member associations throughout the world and with consultative status in ECOSOC. IADL is dedicated to upholding international law and promoting the tenets of the UN Charter in furtherance of peace and justice.

The IADL strongly condemns the January 1893 invasion of the Hawaiian Kingdom by the United States and its subsequent unlawful and prolonged occupation to date, a clear violation of customary international law at the time, which is currently set out in Article 2(4) of the Charter of the United Nations prohibiting the use of force. The IADL has always been a proponent of the rule of law and a State’s obligation to comply with international humanitarian law, which includes the law of occupation.

In 2001, the Permanent Court of Arbitration, in Larsen v. Hawaiian Kingdom, stated “in the nineteenth century the Hawaiian Kingdom existed as an independent State recognized as such by the United States of America, the United Kingdom and various other States, including by exchanges of diplomatic or consular representatives and the conclusion of treaties.” [1] The Hawaiian Kingdom currently has treaties with Austria, Belgium, Bremen, Denmark, France, Germany, Great Britain, Hamburg, Hungary, Italy, Japan, Luxembourg, Netherlands, Norway, Portugal, Russia, Spain, Sweden, Switzerland and the United States. [2] The Hawaiian Kingdom also became a member of the Universal Postal Union on January 1, 1882.

After completing an investigation into the United States role in the overthrow of the Hawaiian Kingdom government on January 17, 1893, President Cleveland apprised the Congress of his findings and conclusions. In his message to the Congress, he stated, “And so it happened that on the 16th day of January, 1893, between four and five o’clock in the afternoon, a detachment of marines from the United States steamer Boston, with two pieces of artillery, landed at Honolulu. The men, upwards of 160 in all, were supplied with haversacks and canteens, and were accompanied by a hospital corps with stretchers and medical supplies. This military demonstration upon the soil of Honolulu was of itself an act of war.” [3] The President concluded, that “the military occupation of Honolulu by the United States on the day mentioned was wholly without justification, either as an occupation by consent or as an occupation necessitated by dangers threatening American life and property.” [4]

This invasion coerced Queen Lili‘uokalani, executive monarch of the Hawaiian Kingdom, to conditionally surrender to the superior power of the United States military, where she stated, “Now, to avoid any collision of armed forces and perhaps the loss of life, I do, under this protest, and impelled by said force, yield my authority until such time as the Government of the United States shall, upon the facts being presented to it, undo the action of its representatives and reinstate me in the authority which I claim as the constitutional sovereign of the Hawaiian Islands.” The President acknowledged that by “an act of war…the Government of a…friendly and confiding people has been overthrown.” [5]

Through executive mediation between the Queen and the new U.S. Minister to the Hawaiian Islands, Albert Willis, that lasted from November 13, 1893 through December 18, 1893, an agreement of peace was reached. [6] According to the executive agreement, by exchange of notes, the President committed to restoring the Queen as the constitutional sovereign, and the Queen agreed, after being restored, to grant a full pardon to the insurgents. Political wrangling in the Congress, however, blocked President Cleveland from carrying out his obligation of restoration of the Queen.

Five years later, at the height of the Spanish-American War, President Cleveland’s successor, William McKinley, signed a congressional joint resolution of annexation on July 7, 1898, unilaterally seizing the Hawaiian Islands for military purposes. In the Lotus case, the Permanent Court of International Justice stated that “the first and foremost restriction imposed by international law upon a State is that…it may not exercise its power in any form in the territory of another State.” [7]

This rule of international law was acknowledged by the Supreme Court in United States v. Curtiss-Wright, Corp. (1936), when the court stated, “Neither the Constitution nor the laws passed in pursuance of it have any force in foreign territory unless in respect of our own citizens, and operations of the nation in such territory must be governed by treaties, international understandings and compacts, and the principles of international law.” [8] In 1988, the U.S. Department of Justice’s Office of Legal Counsel concluded, it is “unclear which constitutional power Congress exercised when it acquired Hawaii by joint resolution.” [9]

Under international law, “a disguised annexation aimed at destroying the independence of the occupied State, represents a clear violation of the rule preserving the continuity of the occupied State.” [10]

Despite the limitations of United States legislation, the Congress went ahead and enacted the Territorial Act (1900) changing the name of the governmental infrastructure to the Territory of Hawai‘i. [11] Fifty-nine years later, the Congress changed the name of the Territory of Hawai‘i to the State of Hawai‘i in 1959 under the Statehood Act. [12] The governmental infrastructure of the Hawaiian Kingdom continued as the governmental infrastructure of the State of Hawai‘i.

On February 25, 2018, United Nations Independent Expert, Dr. Alfred M. deZayas, in his communication with members of the State of Hawai‘i Judiciary wrote, “I have come to understand that the lawful political status of the Hawaiian Islands is that of a sovereign nation-state in continuity; but a nation-state that is under a strange form of occupation by the United States resulting from an illegal military occupation and a fraudulent annexation. As such, international laws (the Hague and Geneva Conventions) require that governance and legal matters within the occupied territory of the Hawaiian Islands must be administered by the application of the laws of the occupied state (in this case, the Hawaiian Kingdom), not the laws of the occupier (the United States).” [13]

The IADL fully supports the National Lawyers Guild’s 2019 resolution that “calls upon the United States of America immediately to begin to comply with international humanitarian law in its prolonged and illegal occupation of the Hawaiian Islands.” [14] Together with the National Lawyers Guild (NLG):

  • IADL strongly condemns the prolonged and illegal occupation of the Hawaiian Islands.
  • IADL also condemns the unlawful presence and maintenance of the United States Indo-Pacific Command with its 118 military sites throughout the Hawaiian Islands.
  • IADL calls for the United States to immediately comply with international humanitarian law and begin to administer the laws of the Hawaiian Kingdom as the occupied State.
  • IADL calls on the legal and human rights community to view the United States presence in the Hawaiian Islands through the prism of international law and to roundly condemn it as an illegal occupation under international law.
  • IADL supports the Hawaiian Council of Regency, who represented the Hawaiian Kingdom at the Permanent Court of Arbitration, in its efforts to seek resolution in accordance with international law as well as its strategy to have the State of Hawai‘i and its Counties comply with international humanitarian law as the administration of the Occupying State.
  • IADL calls on all United Nations member States and non-member States to not recognize as lawful a situation created by a serious violation of international law, and to not render aid or assistance in maintaining the unlawful situation. As an internationally wrongful act, all States shall cooperate to ensure the United States complies with international humanitarian law and consequently bring to an end the unlawful occupation of the Hawaiian Islands.

The IADL recognizes that the United States’ violations of international humanitarian law have led to the commission of war crimes and human rights violations in the Hawaiian Islands. The IADL also recognizes that the civilian population in the Hawaiian Islands are “protected persons” and their rights during a belligerent occupation are vested in the 1949 Fourth Geneva Convention and the 1977 Additional Protocol.

For the restoration of international law and the tenets of the UN Charter, the IADL calls upon the United States to immediately comply with international humanitarian law and the law of occupation in its prolonged and illegal occupation of the Hawaiian Islands.

The IADL fully supports the NLG’s November 10, 2020 letter to State of Hawai‘i Governor David Ige urging him to “proclaim the transformation of the State of Hawai‘i and its Counties into an occupying government pursuant to the Council of Regency’s proclamation of June 3, 2019, in order to administer the laws of the Hawaiian Kingdom. This would include carrying into effect the Council of Regency’s proclamation of October 10, 2014 that bring the laws of the Hawaiian Kingdom in the nineteenth century up to date.” [15]

IADL reiterates that supporting the tenets of the UN Charter also means that member States must comply with the Articles of State Responsibility for Internationally Wrongful Acts (2001). [16] The U.S. violation of the Hawaiian Kingdom’s sovereignty and its failure to comply with international humanitarian law for over a century is an internationally wrongful act. As such, member States have an obligation to not “recognize as lawful a situation created by a serious breach…nor render aid or assistance in maintaining that situation,” [17] and member States “shall cooperate to bring to an end through lawful means any serious breach [by a member State of an obligation arising under a peremptory norm of general international law].” [18]

To download a copy of the IADL resolution go to this link.

[1] Larsen v. Hawaiian Kingdom, 119 Int’l L. Reports 566, 581 (2001). Case description for the Larsen case online at https://pca-cpa.org/en/cases/35/.

[2] International Treaties between the Hawaiian Kingdom and other Powers (online at https://hawaiiankingdom.org/treaties.shtml).

[3] President Cleveland’s Message to the Congress 451 (December 18, 1893) (online at https://hawaiiankingdom.org/pdf/Cleveland’s_Message_(12.18.1893).pdf).

[4] Id., 452.

[5] Id., 456.

[6] Executive Agreement, by exchange of notes, between President Cleveland and Queen Lili‘uokalani (December 18, 1893) (online at https://hawaiiankingdom.org/pdf/EA_2(HI%20Claim).pdf).

[7] Lotus, PCIJ Series A, No. 10, 18 (1927).

[8] United States v. Curtiss-Wright, Corp., 299 U.S. 304, 318 (1936)

[9] Douglas W. Kmiec, “Legal Issues Raised by Proposed Presidential Proclamation To Extend the Territorial Sea,” 12 Op. O.L.C. 238, 252 (1988) (online at https://hawaiiankingdom.org/pdf/1988_Opinion_OLC.pdf).

[10] Krystyna Marek, Identity and Continuity of State in Public International Law 110 (2nd ed., 1968).

[11] An Act To provide a government for the Territory of Hawaii, 31 Stat. 141 (1900).

[12] An Act To provide for the admission of the State of Hawaii into the Union, 73 Stat. 4 (1959).

[13] Letter from U.N. Independent Expert Dr. deZayas to Members of the Judiciary of the State of Hawai‘i (25 Feb. 2018) (online at https://hawaiiankingdom.org/pdf/Dr_deZayas_Memo_2_25_2018.pdf).

[14] NLG Calls Upon US to Immediately Comply with International Humanitarian Law in its Illegal Occupation of the Hawaiian Islands (January 13, 2020) (online at https://www.nlg.org/nlg-calls-upon-us-to-immediately-comply-with-international-humanitarian-law-in-its-illegal-occupation-of-the-hawaiian-islands/).

[15] NLG letter urges implementation on international law in U.S.-occupied Hawaiian Kingdom (2020) (online at https://nlginternational.org/2020/11/nlg-letter-urges-implementation-of-international-law-in-u-s-occupied-hawaiian-kingdom/).

[16] United Nations, Responsibility of States for Internationally Wrongful Acts (2001) (online at https://legal.un.org/ilc/texts/instruments/english/draft_articles/9_6_2001.pdf).

[17] Id., Article 41(2).

[18] Id., Article 41(1).

Dr. Keanu Sai to Present on the American Occupation of the Hawaiian Kingdom in India and Ethiopia by Webinar April 8, 2021

About the Centre for International Legal Studies

Jindal Global Law School’s Centre for International Legal Studies is committed to the study of emerging areas of interest in public international law. Its mandate is to undertake collaborative research within JGU and also with other national and international entities in various areas of international law. The Centre designs training courses, lectures, seminars, conferences, and symposia for students and professionals working in the field and advises national and international public bodies on matters of interpretation and application of international law.

About Jindal Global Law School

Jindal Global Law School (JGLS), the flagship faculty for O.P. Jindal Global (Institution of Eminence Deemed To Be University), is an ambitious entrant into the Indian, and indeed the global—academic scene. The model is simple. Faculty with outstanding academic qualifications have been assembled, given world class facilities, extensive academic freedom, and embedded—in many cases re-embedded—into the Indian academic fabric. The result is an institution for research and scholarship that exists at a unique set of crossroads for almost any research issue. JGLS combines perspectives unique to the Global North as well as to the Global South, applies the potential for global collaboration towards local application, has the ability to disseminate Indian legal and policy research to a global audience, enjoys the in-house expertise to engage in seamless comparative law review, to bridge jurisdictional divides, and to draw upon a global set of faculty contacts to coordinate scholars and scholarship.

About Addis Ababa University International Humanitarian Law Clinic

The Addis Ababa University International Humanitarian Law Clinic offers a venue for the learning, research, debate and awareness raising of International Humanitarian Law. Only a few months after its establishment, the AAU IHL Clinic has become an important emerging voice in International Humanitarian Law, posting articles by Students, Scholars and IHL practitioners. Our blog is attracting readers from all over the world. Our articles range from theoretical issues of IHL to practical situations of armed conflicts. The AAU IHL Clinic encourages learners to pursue and develop legal research, analytical thinking, legal analysis and problem-solving skills through practical applications of legal rules and principles to real-world situations. It is a platform where students develop their skills in writing, publishing, presentation and correspondence. It is also a venue for scholars and practitioners to write about and present on issues they deem relevant to the proper enforcement of IHL rules. Through projects chosen by the Clinic and our partners, students will get a unique experience in IHL, within the classroom and beyond.

Dr. Keanu Sai will present on “The Hawaiian Kingdom, United States and International Law” on April 8 at 7:30pm (India Time), which is 9am (US Eastern Time) and 4am (Hawai‘i Time). To register here for the event.

Lessons for Hawai‘i: Historic War Crimes Trial Opens in Switzerland and Finland

GENEVA (Reuters)—The trial of a former Liberian commander accused of rape, pillage, assassinations, and an act of cannibalism opens in Switzerland this week.

The trial of Alieu Kosiah, who denies the charges, is one of just a handful of cases brought before international courts in relation to the West African country’s 1989-2003 conflict, which killed nearly a quarter of a million people, often at the hands of child soldiers.

He is accused of war crimes listed as “recruitment and use of a child soldier, forced transportation, looting, cruel treatment of civilians, attempted murder, murder (directly or by order), desecration of a corpse and rape”.

It is Switzerland’s first war crimes trial to be heard outside a military court.

“This is historic for Switzerland and Liberia,” said Alain Werner, a Swiss lawyer at Geneva-based NGO Civitas Maxima which filed the complaint on behalf of victims.

The NGO was researching war crimes with a Liberian partner when they discovered a rebel commander was living near Lake Geneva. Kosiah was arrested in 2014 and Switzerland filed an indictment against him in 2019.

The case involves dozens of witnesses, thousands of pages of testimony and has been complicated, according to the Swiss Attorney general’s office, by a lack of official Liberian cooperation. The trial is set to open on Thursday at the Federal Criminal Court in Bellinzona.

Kosiah, 45, says he wants to clear his name. Some of the charges are attributed to troops under his command.

“According to Mr. Alieu Kosiah, one of the big problems with this case is he had not yet arrived in Lofa (county) at the time of the crimes he supposedly committed there,” his lawyer Dimitri Gianoli told Reuters.

“What counts for (him) is to be able to officially re-establish his honour by making himself heard openly and clearly,” he said. “(He) has always been very clear on his whereabouts in Liberia and the court filings include testimonies collected in Switzerland that confirm it.”

Unlike neighbour Sierra Leone which had its own civil war in the 1990s, Liberian perpetrators have never faced prosecution at home despite a recommendation by the Truth and Reconciliation Commission to create a war crimes court.

Liberia’s former President Charles Taylor was sentenced in 2012 for war crimes in Sierra Leone, but was never convicted for Liberian acts.

Others arrested in Europe have yet to appear in court.

Former warlords retain positions of power in Liberia and witnesses have been reluctant to come forward amid threats.

“This trial gives hope to victims, to the survivors, and gives voice to the dead,” said Hassan Bility who collected evidence for the case and was himself tortured in the conflict.

Human Rights Watch’s Elise Keppler said she hoped the trial would serve as a “wake-up call” for Liberia.

The court will hear Kosiah next week.

Liberian plaintiffs cannot attend due to COVID restrictions and will instead testify in 2021. Kosiah faces a maximum possible sentence of 20 years.

HELSINKI (AP) — A trial has started in Finland for a Sierra Leone man charged with committing serious war crimes, including several murders, and crimes against humanity during Liberia’s bloody second civil war from 1999 through 2003.

Gibril Massaquoi, who has been living in Finland for more than 10 years, is alleged by Finnish prosecutors to have held a leading position in the Revolutionary United Front, a rebel army in Sierra Leone that was involved in the Liberian civil war in West Africa.

The mask-wearing Massaquoi, known to have used the alias “Angel Gabriel,” was present at the Pirkanmaa District Court in the southern Finnish city of Tampere where the main handling of the case started Wednesday. Finnish media reported the 51-year-old defendant didn’t say anything at the court.

Prosecutors are seeking a life sentence — which is usually around 14 years in Finland — for Massaquoi, who has denied all charges. Those charges include his alleged direct or indirect participation in rapes, murders, cannibalism and using child soldiers during the conflict in Liberia.

Massaquoi was arrested in March last year by Finland’s National Bureau of Investigation in Tampere, a main industrial and university city, where according to Finnish media reports he held a job and had a family with children.

Massaquoi is allegedly the first non-Liberian to be held accountable in connection with Liberia’s brutal first and second civil wars, which are estimated to have killed at least 500,000 people. He ended up in Finland under a witness relocation scheme.

Later this month, the Finnish court, in a rare move, will temporarily relocate to Liberia and neighboring Sierra Leone to hear testimony from dozens of witnesses on the alleged atrocities carried out by Massaquoi himself or by others on his orders.

A verdict in the case is expected next fall.

PROSECUTING WAR CRIMINALS UNDER UNIVERSAL JURISDICTION

Both Switzerland and Finland are State parties to the International Criminal Court Rome Statute. 123 countries are States Parties to the Rome Statute. 33 are African States, 19 are Asia-Pacific States, 18 are from Eastern Europe, 28 are from Latin American and Caribbean States, and 25 are from Western European and other States.

In the preamble of the Rome State, it states “that the most serious crimes of concern to the international community as a whole must not go unpunished and that their effective prosecution must be ensured by taking measures at the national level and by enhancing international cooperation.” This provision is called complementarity jurisdiction, where the State parties are obligated to first use their institutions and courts to prosecute war crimes instead of the International Criminal Court.

If the alleged war criminal is not a citizen of a State party and that the war crime occurred outside of its territory, the State party can exercise universal jurisdiction to prosecute. All of the State parties to the Rome Statute have the ability to exercise universal jurisdiction, which Switzerland and Finland are doing.

This is significant regarding the war crimes that have been and are currently be committed in the Hawaiian Islands that the Royal Commission of Inquiry is investigating. If Hawai‘i’s alleged war criminals find themselves, whether as a resident or in transit, in the territory of one of the 123 countries who are State parties to the Rome Statute, they may find themselves in a similar situation as Kosiah in Switzerland or Massaquoi in Findland.