In response to the prolonged occupation of the Hawaiian Kingdom by the United States since 1893, and the commission of war crimes and human rights violations that continue to take place with impunity, the Royal Commission of Inquiry was established by the Council of Regency on April 17, 2019. The Council of Regency represented the Hawaiian Kingdom at the Permanent Court of Arbitration in Larsen v. Hawaiian Kingdom, PCA case no. 1999-01, from 1999-2001. The Royal Commission’s mandate is to “ensure a full and thorough investigation into the violations of international humanitarian law and human rights within the territorial jurisdiction of the Hawaiian Kingdom.”
Dr. David Keanu Sai was appointed as Head of the Royal Commission and he has commissioned recognized experts in various fields of international law who are the authors of chapters 3, 4 and 5 of this publication. These experts include Professor Matthew Craven, University of London, SOAS; Professor William Schabas, Middlesex University London; and Professor Federico Lenzerini, University of Siena.
Its first 378 page publication, Royal Commission of Inquiry: Investigating War Crimes and Human Rights Violations in the Hawaiian Kingdom, provides information on the Royal Commission of Inquiry, Hawaiian Constitutional Governance, the United States Belligerent Occupation of the Hawaiian Kingdom, the Continuity of the Hawaiian Kingdom as a State, Elements of War Crimes committed in the Hawaiian Kingdom, and Human Rights violations and Self-determination. The Royal Commission will provide periodic reports of its investigation of war crimes committed by individual(s) that meet the constituent elements of mens rea and actus reus, and human rights violations.
There is no statute of limitation for war crimes but it is customary for individual(s) to be prosecuted for the commission of war crimes up to 80 years after the alleged war crime was committed given the life expectancy of individuals. As a matter of customary international law, States are under an obligation to prosecute individuals for the commission of war crimes committed outside of its territory or to extradite them for prosecution by other States or international courts should they enter their territory.
**The book is free of charge and authorization is given, in accordance with its copyright under Hawaiian law, to print in soft-cover or hard-cover so long as the content of the book is not altered or edited.
The United States’ Prolonged Occupation of Hawai‘i: War
Crimes and Human Rights Violations
Date and Time: Tuesday, 15 October 2019 17:30-19:00 BST
Location: Middlesex University The College Building, 2nd Floor, C219-220 The Burroughs London NW4 4BT United Kingdom
Registration: The event is free and open to the public as well as faculty, staff and students of Middlesex University London. Click here to Register
About this Event: From a British Protectorate in 1794 to an Independent State in 1843, the Hawaiian Kingdom’s government was illegally overthrown by U.S. forces in 1893. U.S. President Cleveland, after conducting a presidential investigation into the overthrow, notified the Congress that the Hawaiian government was overthrown by an “act of war” and that the U.S. was responsible. Annexationists in the Congress thwarted Cleveland’s commitment, by exchange of notes with Queen Lili‘uokalani, to restore the Hawaiian government and Hawai‘i was unilaterally annexed in 1898 during the Spanish-American War after Cleveland left office in order to secure the islands as a military outpost. Today there are 118 U.S. military sites in the islands, headquarters for the U.S. Indo-Pacific Unified Military Command, and is currently targeted for nuclear strike by North Korea, China, and Russia.
This legal and political history of Hawai‘i has been kept from the international community until the Larsen v. Hawaiian Kingdom arbitral proceedings were initiated in 1999 at the Permanent Court of Arbitration, The Hague, Netherlands. At the core of the dispute were the unlawful imposition of U.S. laws, which led to grave breaches of the Fourth Geneva Convention by the U.S. against Lance Larsen, a Hawaiian subject, and whether the Hawaiian Kingdom, by its Council of Regency, was liable for the unlawful imposition of U.S. laws in the territory of an occupied State.
This talk by Dr. Keanu Sai, who served as Agent for the Hawaiian Kingdom in the Larsen case, will provide a historical and legal context of the current situation in Hawai‘i and the mandate of the Royal Commission of Inquiry to investigate war crimes and human rights violations taking place in Hawai‘i. Dr. Sai encourages attendees to view beforehand “The acting Council of Regency: Exposing the American Occupation of the Hawaiian Kingdom” at:
Today is July 31st which is a national holiday in the Hawaiian Kingdom called “Restoration day,” (La Ho‘iho‘i) and it is directly linked to another holiday observed on November 28th called “Independence day” (La Kuoko‘a). Here is a brief history of these two celebrated holidays.
In the summer of 1842, Kamehameha III moved forward to secure the position of the Hawaiian Kingdom as a recognized independent state under international law. He sought the formal recognition of Hawaiian independence from the three naval powers of the world at the time—Great Britain, France, and the United States. To accomplish this, Kamehameha III commissioned three envoys, Timoteo Ha‘alilio, William Richards, who at the time was still an American Citizen, and Sir George Simpson, a British subject. Of all three powers, it was the British that had a legal claim over the Hawaiian Islands through cession by Kamehameha I, but for political reasons the British could not openly exert its claim over the other two naval powers. Due to the islands prime economic and strategic location in the middle of the north Pacific, the political interest of all three powers was to ensure that none would have a greater interest than the other. This caused Kamehameha III “considerable embarrassment in managing his foreign relations, and…awakened the very strong desire that his Kingdom shall be formally acknowledged by the civilized nations of the world as a sovereign and independent State.”
While the envoys were on their diplomatic mission, a British Naval ship, HBMS Carysfort, under the command of Lord Paulet, entered Honolulu harbor on February 10, 1843, making outrageous demands on the Hawaiian government. Basing his actions on complaints made to him in letters from the British Consul, Richard Charlton, who was absent from the kingdom at the time, Paulet eventually seized control of the Hawaiian government on February 25, 1843, after threatening to level Honolulu with cannon fire. Kamehameha III was forced to surrender the kingdom, but did so under written protest and pending the outcome of the mission of his diplomats in Europe. News of Paulet’s action reached Admiral Richard Thomas of the British Admiralty, and he sailed from the Chilean port of Valparaiso and arrived in the islands on July 25, 1843. After a meeting with Kamehameha III, Admiral Thomas determined that Charlton’s complaints did not warrant a British takeover and ordered the restoration of the Hawaiian government, which took place in a grand ceremony on July 31, 1843. At a thanksgiving service after the ceremony, Kamehameha III proclaimed before a large crowd, ua mau ke ea o ka ‘aina i ka pono (the life of the land is perpetuated in righteousness). The King’s statement became the national motto.
The envoys eventually succeeded in getting formal international recognition of the Hawaiian Islands “as a sovereign and independent State.” Great Britain and France formally recognized Hawaiian sovereignty on November 28, 1843 by joint proclamation at the Court of London, and the United States followed on July 6, 1844 by a letter of Secretary of State John C. Calhoun. The Hawaiian Islands became the first Polynesian nation to be recognized as an independent and sovereign State.
The ceremony that took place on July 31 occurred at a place we know today as “Thomas Square” park, which honors Admiral Thomas, and the roads that run along Thomas Square today are “Beretania,” which is Hawaiian for “Britain,” and “Victoria,” in honor of Queen Victoria who was the reigning British Monarch at the time the restoration of the government and recognition of Hawaiian independence took place.
The following is one of the topics covered by Dr. Sai in his letter of July 9, 2019. Maui County Council member Tamara Paltin requested of Dr. Sai his insights into the proposed construction of the Thirty-Meter Telescope. Dr. Sai’s letter is an attachment to Council member Paltin’s letter to University of Hawai‘i President David Lassner on July 12, 2019.
Invalidity of General Lease No. S-4191
Under General Lease No.
S-4191 dated June 21, 1968, the Board of Land and Natural Resources of the
State of Hawai‘i, as lessor, issued a 65-year lease to the University of
Hawai‘i with a commencement date of January 1, 1968 and a termination date of
December 31, 2033. The lease is comprised of 11,215.554 acres, more or less,
being a portion of Government lands of the ahupua‘a of Ka‘ohe situated at
Hamakua, Island of Hawai‘i identified under Tax May Key: 3rd/4.4.15:09.
The State of Hawai‘i claims
to have acquired title under Section 5(b) of the 1959 Hawai‘i Admissions Act,
Public Law 86-3 (73 Stat. 4), whereby “the United States grants to the State of
Hawaii, effective upon its admission into the Union, the United States’ title
to all public lands and other public property within the boundaries of the
State of Hawaii, title to which is held by the United States immediately prior
to its admission into the Union.” The United States derives its title from the
1898 Joint Resolution of Annexation (30 Stat. 750), which states
“Whereas the Government of the Republic of Hawaii having, in due form,
signified its consent, in the manner provided by its constitution…to cede and
transfer to the United States the absolute fee and ownership of all public,
Government, or Crown lands.”
The Republic of Hawai‘i proclaimed
itself on July 3, 1894, by a convention comprised of appointed members of the
Provisional Government and eighteen “elected” delegates. The Provisional
Government proclaimed itself on January 17, 1893 and claimed to be the
successor of the Hawaiian Kingdom. The Hawaiian Kingdom’s title derives from
the 1848 Act Relating to the Lands of His Majesty The King and of the
Government, whereby the ahupua‘a of Ka‘ohe is “Made over to the Chiefs and
People, by our Sovereign Lord the King, and we do hereby declare those lands to
be set apart as the lands of the Hawaiian Government, subject always to the
rights of tenants.”
According to President Grover
Cleveland, in his message to the Congress after investigating the illegal
overthrow of the Hawaiian Kingdom government that took place on January 17,
1893, the Provisional Government “was neither a government de facto nor de
jure.” He did
not consider it a government. The President also concluded that “the
provisional government owes its existence to an armed invasion by the United
States.” Being a
creature, or creation, of the US, it could not claim to be the lawful successor
of the Hawaiian Kingdom government with vested title to the ahupua‘a of Ka‘ohe.
As the successor to the Provisional Government, the Republic of Hawai‘i, as it
self-declared successor, could not take any better title than the Provisional
Government and hence did not have title to Ka‘ohe. The U.S. Congress in the
1993 Apology Resolution noted that the Republic of Hawai‘i was “self-declared.”
The United States claims to
have acquired title to Ka‘ohe, by cession, from the Republic of Hawai‘i under
the 1898 Joint Resolution of Annexation. International law recognizes that the
“only form in which a cession can be effected is an agreement embodied in a
treaty between the ceding and the acquiring State.” The Joint Resolution of
Annexation is not “an agreement embodied in a treaty.” It is a U.S. municipal
law from the Congress merely asserting that cession took place. The situation
is not unlike a neighbor holding a family meeting and claiming that they have
agreed that your house is now their house.
In a debate on the Senate
floor on July 4, 1898, Senator William Allen stated:
The Constitution and the statutes are territorial in their operation; that is, they can not have any binding force or operation beyond the territorial limits of the government in which they are promulgated. In other words, the Constitution and statutes can not reach across the territorial boundaries of the United States into the territorial domain of another government and affect that government or persons or property therein.
The joint resolution is ipso facto null and void.
In 1988, the U.S. Department
of Justice, Office of Legal Counsel (“OLC”) issued a legal opinion on the
lawfulness of the annexation of Hawai‘i by a joint resolution. In its
opinion, it cited constitutional scholar Westel Willoughby:
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 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.
The OLC 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.” The United States cannot produce
any evidence of a conveyance of the ahupua‘a of Ka‘ohe from a grantor, vested
with the title. All it can produce is a joint resolution of Congress. This is
not a conveyance from a foreign State ceding territory.
Instead of providing evidence
of a conveyance of territory, i.e. treaty of cession, the State of Hawai‘i
Supreme Court in its October 30, 2018 majority decision In Re Conservation District Use Application for TMT,
SCOT-17-0000777, quoted from a book titled Who Owns the Crown Lands of
Hawai‘i written by Professor Jon Van Dyke.
The U.S. Supreme Court gave tacit recognition to the legitimacy of the annexations of Texas and Hawaiʻi by joint resolution, when it said in De Lima v. Bidwell, 182 U.S. 1, 196 (1901), that “territory thus acquired [by conquest or treaty] is acquired as absolutely as if the annexation were made, as in the case of Texas and Hawaii, by an act of Congress.” See also Texas v. White, 74 U.S. (7 Wall.) 700 (1868), stating that Texas had been properly admitted as a state in the United States.
It is unclear what Professor
Van Dyke meant when he stated that the U.S. Supreme Court “gave tacit
recognition to the legitimacy of the annexation of Texas and Hawai‘i by joint
resolution,” because tacit, by definition, is to be “understood without being
openly expressed or stated.”
Furthermore, this statement is twice irrelevant: first, the Court as a third
party to any cession of foreign territory has no standing to make such a
conclusion as to what occurred between the ceding and receiving States; and,
second, its opinion is a fabrication or what American jurisprudence calls a
legal fiction. Legal fictions treat “as true a factual assertion that plainly
was false, generally as a means to avoid changing a legal rule that required a
particular factual predicate for its application.”
According to Professor Smith,
a “judge deploys a new legal fiction when he relies in crafting a legal rule on
a factual premise that is false or inaccurate.” These “new legal fictions
often serve a legitimating function, and judges may preserve them—even in the
face of evidence that they are false—if their abandonment would have
The proposition that Texas
and Hawai‘i were both annexed by joint resolutions of Congress is clearly
false. In the case of Texas, Congress consented to the admission of Texas as a
State by joint resolution on March 1, 1845 with the following proviso, “Said
State to be formed, subject to the adjustment by this government of all
questions of boundary that may arise with other governments.” This condition
was referring to Mexico because as Texas was comprised of insurgents who were
fighting for their independence, Mexico still retained sovereignty and title to
the land. In its follow up joint resolution on December 29, 1845 that admitted
Texas as a State of the Union, it did state that the Congress consented “that
the territory properly included within, and rightfully belonging to, the
Republic of Texas.” These actions taken by the Congress is what sparked the
Mexican-American War in 1846.
Congress’ statement of
“rightfully belonging” is an opinion and the resolution mentions no boundaries.
The transfer of title to the territory, which included the territory comprising
Texas, came three years later on February 2, 1848 in a treaty of peace that
ended the Mexican-American War.
Under Article V of the treaty, the new boundary line between the United States and Mexico was to be drawn. “The boundary line between the two republics shall commence in the Gulf of Mexico, three leagues from land, opposite the mouth of the Rio Grande, otherwise called Rio Bravo del Norte.” Rio Brava del Norte is the southern tip of Texas. If Texas was indeed annexed in 1845 by a joint resolution with its territory intact, there was no reason for the treaty to specifically include the territory of Texas. If it were true that Texas territory was ceded in 1845, Article V of the treaty would have started the boundary line just west of the Texas city of El Paso, which is its western border, and not from the Gulf of Mexico at its southern border. The truth is that the territory of Texas was not annexed by Congress in 1845 but was ceded by Mexico in 1848. The Rio Grande river is the southern border for the State of Texas.
With regard to the so-called
annexation of Hawai‘i in 1898 by Congress, there is no treaty ceding Hawaiian
territory as in the case of Texas. Like the Texas resolution, Congress stated,
Whereas the Government of the Republic of Hawaii having, in due form, signified its consent, in the manner provided by its constitution to ceded absolutely and without reserve to the United States of America all rights of sovereignty of whatsoever kind in and over the Hawaiian Islands and their dependencies, and also to cede and transfer to the United States the absolute fee and ownership of all public, Government, or Crown lands, public buildings or edifices, ports, harbors, military equipment, and all other public property of every kind and description belonging to the Government of the Hawaiian Islands, together with every right and appurtenance thereunto appertaining…
The reference to consent by
its constitution is specifically referring to Article 32, which states, the
“President, with the approval of the Cabinet, is hereby expressly authorized
and empowered to make a Treaty of Political or Commercial Union between the
Republic of Hawaii and the United States of America, subject to the
ratification of the Senate.” There
is no treaty between the so-called Republic of Hawai‘i and the United States.
Furthermore, a constitutional provision is not an instrument of conveyance as a
treaty would be. So without a treaty from the Hawaiian Kingdom government as
the ceding State vested with the sovereignty and title to government lands,
which includes the ahupua‘a of Ka‘ohe, there was no change in the ownership of
the government lands.
Furthermore, Hawaiians of the
day knew there was no treaty as evidenced in the Maui News newspaper published
October 20, 1900. The Editor wrote,
Thomas Clark, a candidate for Territorial senator from Maui holds that it was an unconstitutional proceeding on the part of the United States to annex the Islands without a treaty, and that as a matter of fact, the Island[s] are not annexed, and cannot be, and that if the democrats come into power they will show the thing up in its true light and demonstrate that that the Islands are de facto independent at the present time.
The legal fiction that Texas
and Hawai‘i were annexed by a joint resolution of the Congress is just a patently
false when measured “against the results of existing empirical research.” For
the State of Hawai‘i Supreme Court to restate, and embrace, this falsifiable
legal fiction is simply a trick that allows it to fabricate its own false and falsifiable
fiction regarding the State of Hawai‘i. In its TMT decision the Court, in conflict
with overwhelming evidence, stated, “[W]e reaffirm that ‘[w]hatever may be said
regarding the lawfulness’ of its origins, ‘the State of Hawai‘i…is now a lawful
the State of Hawai‘i to be a “lawful government” it must be vested with lawful
authority absent of which it is not lawful. The State of Hawai‘i Supreme Court,
being a branch of the State of Hawai‘i itself, cannot declare it “is now a
lawful government” without making reference to some intervening factor that
vested the State of Hawai‘i with lawful authority.
When addressing the lawful
authority and sovereignty of the United States of America, the United States
Supreme Court specifically referred to a particular and significant intervening
factor. It stated that as “a result of the separation from Great Britain by the
Colonies, acting as a unit, the powers of external sovereignty passed from the
Crown not to the Colonies severally, but to the Colonies in their collective
and corporate capacity as the United States of America.” The Court was
referring to “the Treaty of Paris of September 3, 1783, by which Great Britain
recognized the independence of the United States.”
It has been erroneously assumed
that the US Congress vested the State of Hawai‘i with lawful authority in the
1959 Statehood Act in an
exercise of the constitutional authority of Congress to admit new States into
the Federal union under Article IV, section 3, clause 1. There is no provision
in the US constitution for the admission of a state to the union that is on
territory not owned by the US. So before the US Congress can admit a new State
to the US the US must “own” the territory. According to the United States
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.
Since the Hawaiian Islands
were never annexed by the United States via treaty, Congressional acts, which are
municipal laws, may only operate on the territory of the United States. The
United States Supreme Court is relatively clear on this point and has stated
that the “municipal laws of one nation do not extend in their operation beyond
its own territory except as regards its own citizens.” In another decision, the
United States Supreme Court reiterated, that “our Constitution, laws and
policies have no extraterritorial operation unless in respect of our own
Under international law, the United
States is an occupying power in the Hawaiian Islands and as such the occupying
Power is obligated, under Article 43 of the 1907 Hague Convention, IV, and
Article 64 of the 1949 Geneva Convention, IV, to administer Hawaiian Kingdom
laws. In his communication to the members of the Judiciary of the State of
Hawai‘i of February 25, 2018, the United Nations Independent Expert, Dr. Alfred
deZayas, reiterated this obligation under international law.
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 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 domestic laws of the occupier (the United States) (Enclosure “6”).
The United States never
acquired any kind of title to Ka‘ohe and, since one can only convey what one
has, it could not convey what it did not have to the State of Hawai‘i under
Section 5(b) of the 1959 Admissions Act. Thus the State of Hawai‘i was never
lawfully vested with any title to the ahupua‘a of Ka‘ohe, and therefore its so-called
general lease no. S-4191 to the University of Hawai‘i dated June 21, 1968 is
defective. Under Hawaiian Kingdom law, the ahupua‘a of Ka‘ohe is government
land under the management of the Ministry of
the Interior and not the State of Hawai‘i Board of Land and Natural
Resources. Consequently, all 10 subleases from the University of Hawai‘i that
extend to December 31, 2033 are defective as well, which include:
National Aeronautics and Space
Administration dated November 29, 1974;
Corporation dated December 18, 1975;
Science Research Council dated
January 21, 1976;
California Institute of Technology
dated December 20, 1983;
Science and Engineering Research
Council dated February 10, 1984;
California Institute of Technology
dated December 30, 1985;
Associated Universities, Inc., dated
September 28, 1990;
National Astronomical Observatory of
Japan dated June 5, 1992;
National Science Foundation dated
September 26, 1994; and
Smithsonian Institution dated
September 28, 1995.
As such, the University of Hawai‘i’s sublease to TMT International Observatory, LLC, is also defective. Therefore, the University of Hawai‘i cannot sublease what it does not have to TMT International Observatory LLC.
Investigating the Illegal U.S. Military Occupation of the Hawaiian Islands
From Integrative Media Co-operative (IMC):
IMC would like to continue documenting up and coming events and actions regarding the U.S. military occupation of the Hawaiian Kingdom. IMC relies on public donations. To donate visit IMC’s Indiegogo crowdfunding campaign: Speaking Truth to Power – Documentary. Or contact IMC directly at firstname.lastname@example.org.
Please subscribe to IMC’s YouTube channel, Integrative Media Co-operative, to stay updated on future projects. There are many short videos coming soon regarding this topic.
Most importantly, sharing this video with friends and family brings a greater awareness to this ongoing and evolving situation.