On KITV Island Life Live yesterday, Dr. Keanu Sai talks about his recent chapter titled “Hawai‘i’s Sovereignty and Survival in the Age of Empire” in a book Unconquered States: Non-European Powers in the Imperial Age. The book was published by Oxford University Press in December of 2024. Be sure to download Dr. Sai’s chapter by clicking the link above.
On KITV Island Life Live yesterday, Dr. Keanu Sai explains the American invasion of the Hawaiian Kingdom and its unlawful overthrow of the government on January 17, 1893. This began a prolonged occupation that is now at 132 years.
Today, January 6, 2025, Dr. Keanu Sai, as Head of the Royal Commission of Inquiry, sent a letter to Lieutenant Colonel Michael Rosner regarding the Army doctrine of command responsibility and his military duty to transform the State of Hawai‘i into a Military Government. Here is a link to the letter.
On January 1, 2025, the Royal Commission of Inquiry (“RCI”) published its War Criminal Report no. 25-0001 finding Brigadier General Tyson Y. Tahara, Commander Hawai‘i Army National Guard, guilty of the war crime by omission. BG Tahara willfully disobeyed an Army regulation, was willfully derelict in his duty to establish a military government, and failed to stop or prevent war crimes under the doctrine of command responsibility for war crimes committed against the civilian population by the imposition of American municipal laws and administrative measures. Therefore, his conduct, by omission, constitutes a war crime.
The term “guilty,” as used in the RCI war criminal reports, is defined as “[h]aving committed a crime or other breach of conduct; justly chargeable offense; responsible for a crime or tort or other offense or fault.” However, in a criminal prosecution, “guilty” is used by “an accused in pleading or otherwise answering to an indictment when he confesses to have committed the crime of which he is charged, and by the jury in convicting a person on trial for a particular crime.”
Since returning from the Permanent Court of Arbitration in December of 2000, the Council of Regency continued to expose the continuity of the Hawaiian Kingdom as an occupied State according to the rules of international humanitarian law. In that sense, the Council of Regency was guided by paragraph 495—Remedies of Injured Belligerent, U.S. Army Field Manual 27-10, which states, “[i]n the event of violation of the law of war, the injured party may legally resort to remedial action of […]: a. Publication of the facts, with a view to influencing public opinion against the offending belligerent.”
The implementation of publishing these facts was initiated when I entered the political science graduate program at the University of Hawai‘i at Mānoa. There, I earned a master’s degree specializing in international relations and public law, in 2004, and in 2008, a Ph.D. degree on the subject of the continuity of Hawaiian Statehood while under an American prolonged belligerent occupation since January 17, 1893. These efforts prompted other master’s theses, doctoral dissertations, peer review articles and publications about the American occupation.
Moreover, this exposure, through academic research, also inspired historian Tom Coffman to change the title of his 1998 book from Nation Within: The Story of America’s Annexation of the Nation of Hawai‘i, to Nation Within—The History of the American Occupation of Hawai‘i. Coffman explained the change in his note on the second edition:
I am compelled to add that the continued relevance of this book reflects a far-reaching political, moral and intellectual failure of the United States to recognize and deal with the takeover of Hawai‘i. In the book’s subtitle, the word Annexation has been replaced by the word Occupation, referring to America’s occupation of Hawai‘i. Where annexation connotes legality by mutual agreement, the act was not mutual and therefore not legal. Since by definition of international law there was no annexation, we are left then with the word occupation.
In making this change, I have embraced the logical conclusion of my research into the events of 1893 to 1898 in Honolulu and Washington, D.C. I am prompted to take this step by a growing body of historical work by a new generation of Native Hawaiian scholars. Dr. Keanu Sai writes, “The challenge for … the fields of political science, history, and law is to distinguish between the rule of law and the politics of power.” In the history of the Hawai‘i, the might of the United States does not make it right.
As a result of the publication of facts, United Nations Independent Expert, Dr. Alfred deZayas sent a communication, from Geneva, Switzerland, to Judge Gary W.B. Chang, Judge Jeannette H. Castagnetti, and members of the judiciary of the State of Hawai‘i dated February 25, 2018. It his letter, Dr. deZayas stated:
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 domestic laws of the occupier (the United States).
The publication of facts also prompted the U.S. National Lawyers Guild (“NLG”) to adopt, in 2019, a resolution calling upon the United States of America to begin to comply immediately with international humanitarian law in its long and illegal occupation of the Hawaiian Islands. Among its positions statement, it declared the “NLG 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.”
Furthermore, in a letter to Governor David Ige of the State of Hawai‘i, dated November 10, 2020, the NLG called upon the governor to comply with international humanitarian by administering the laws of the occupied State. The NLG letter concluded:
As an organization committed to the mission that human rights and the rights of ecosystems are more sacred than property interests, the NLG is deeply concerned that international humanitarian law continues to be flagrantly violated with apparent impunity by the State of Hawai‘i and its County governments. This has led to the commission of war crimes and human rights violations of a colossal scale throughout the Hawaiian Islands. International criminal law recognizes that the civilian inhabitants of the Hawaiian Islands are “protected persons” who are afforded protection under international humanitarian law and their rights are vested in international treaties. There are no statutes of limitation for war crimes, as you must be aware.
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.
Similarly, on February 7, 2021, the International Association of Democratic Lawyers (“IADL”), a non-governmental organization (NGO) of human rights lawyers, which has special consultative status with the United Nations Economic and Social Council (“ECOSOC”) and accredited to participate in the Human Rights Council’s sessions as Observers, passed a resolution calling upon the United States to immediately comply with international humanitarian law in its prolonged occupation of the Hawaiian Islands—the Hawaiian Kingdom. In its resolution, the IADL also stated it “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.”
Together with the IADL, the American Association of Jurists—Asociación Americana de Juristas (“AAJ”), also an NGO with consultative status with the United Nations ECOSOC and an accredited observer in the Human Rights Council’s sessions, sent a joint letter, dated March 3, 2022, to member States of the United Nations, on the status of the Hawaiian Kingdom and its prolonged occupation by the United States. In its joint letter, the IADL and the AAJ also “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.”
On March 22, 2022, I delivered an oral statement, on behalf of the IADL and AAJ, to the United Nations Human Rights Council (“HRC”) at its 49th session in Geneva. The oral statement read:
The International Association of Democratic Lawyers and the American Association of Jurists call the attention of the Council to human rights violations in the Hawaiian Islands. My name is Dr. David Keanu Sai, and I am the Minister of Foreign Affairs ad interim for the Hawaiian Kingdom. I also served as lead agent for the Hawaiian Kingdom at the Permanent Court of Arbitration from 1999-2001 where the Court acknowledged the continued existence of my country as a sovereign and independent State.
The Hawaiian Kingdom was invaded by the United States on 16 January 1893, which began its century long occupation to serve its military interests. Currently, there are 118 military sites throughout the islands and the city of Honolulu serves as the headquarters for the Indo-Pacific Combatant Command.
For the past century, the United States has and continues to commit the war crime of usurpation of sovereignty, under customary international law, by imposing its municipal laws over Hawaiian territory, which has denied Hawaiian subjects their right of internal self-determination by prohibiting them to freely access their own laws and administrative policies, which has led to the violations of their human rights, starting with the right to health, education and to choose their political leadership.
None of the 47 HRC member States, which includes the United States, protested, or objected to the oral statement of war crimes being committed in the Hawaiian Kingdom by the United States. Under international law, acquiescence “concerns a consent tacitly conveyed by a State, unilaterally, through silence or inaction, in circumstances such that a response expressing disagreement or objection in relation to the conduct of another State would be called for.” Silence conveys consent. Since they “did not do so [they] thereby must be held to have acquiesced. Qui tacet consentire videtur si loqui debuisset ac potuisset.”
More importantly, on December 30, 2024, Oxford University Press (“OUP”) published Unconquered States—Non-European Powers in the Imperial Age, with a chapter I authored titled “Hawai‘i’s Sovereignty and Survival in the Age of Empire,” which I am enclosing. OUP is a highly reputable academic publisher that acknowledges the Hawaiian Kingdom as an occupied State. The editors of the book, Professor H.E. Chehabi from Boston University and Professor David Motadel from the London School of Economics and Political Science, invited 23 scholars from around the world to contribute a chapter on an unconquered State, being a non-European Power. OUP is regarded as the gold standard for publishing academic research worldwide.
If the Hawaiian Kingdom was not an occupied State but rather the 50th State of the American union, OUP would not have allowed my chapter to be published. The cornerstone of academic research is where a scholar does not argue a position taken in their research but rather provides historical and legal evidence that cannot be refuted. In this sense, the scholar is subject to a scientific approach where a scholar’s findings and conclusions are open to rebuttal by other scholars who serve as reviewers. This is called peer review in the academic world where opinions have no place. Notably, OUP states in the book, “Oxford University Press is a department of the University of Oxford. It furthers the University’s objective of excellence in research, scholarship, and education by publishing worldwide.” Thus, by OUP’s publication of my chapter, the Council of Regency has reached the pinnacle of academic publishing regarding the continuity of the Hawaiian Kingdom under international law on the world stage.
OUP’s release also establishes that the American occupation of the Hawaiian Kingdom is now the longest occupation of a State in modern history. Previously, it was thought that Israel’s occupation of the West Bank and East Jerusalem, that began in 1967, was the longest occupation in modern history. As such, the Council of Regency has effectively “influen[ed] public opinion against the offending belligerent.” I conclude my chapter with:
Despite over a century of revisionist history, “the continuity of the Hawaiian Kingdom as a sovereign State is grounded in the very same principles that the United States and every other State have relied on for their own legal existence.” The Hawaiian Kingdom is a magnificent story of perseverance and continuity.
LTC Rosner, you are now the most senior Hawai‘i Army National Guard officer in the occupied Hawaiian Kingdom. Those officers above you are the subjects of war criminal reports by the RCI, and are therefore, war criminals subject to prosecution because “[c]ommanders are legally responsible for war crimes they personally commit (para. 4-24—Command responsibility under the law of war, Army Regulation 600-20).”
As such, you should assume emergency command, and as the theater commander of the occupied Hawaiian Kingdom, you must perform your duty of establishing a military government. As the theater commander, you do not standby for orders to establish a military government from any superior officer outside of the occupied Hawaiian Kingdom. Paragraph 3—Command Responsibility, FM 27-5, clearly states, the “theater commander bears full responsibility for [military government]; therefore, he is usually designated as military governor.”
Furthermore, it is the Hawai‘i Army National Guard, not the U.S. Army Pacific Command, that has the duty to establish a military government because the former is in effective control of 10,931 square miles of Hawaiian territory, while the latter is in effective control of less than 500 square miles of Hawaiian territory. Paragraph 6-12—Prerequisites and Scope of Military Occupation, FM 6-27, states:
Whether a situation qualifies as an occupation is a question of fact under LOAC. Under Article 42 of the 1907 Hague Regulations, “Territory is considered occupied when it is actually placed under the authority of a hostile army. The occupation extends only to the territory where such authority has been established and can be exercised.” Military occupation:
• Must be actual and effective; that is, the organized resistance must have been overcome, and the Occupying Power must have taken measures to establish its authority
• Requires the suspension of the territorial State’s authority and the substitution of the Occupying Power’s authority; and
• Occurs when there is a hostile relationship between the State of the invading force and the State of the occupied territory
In light of the above, as a U.S. Army officer, you have the opportunity to stand on the right side of history. As you are well aware, to not perform your duty will have dire consequences under international humanitarian law and the law of occupation.
Oxford University Press (OUP) has made it official that the American occupation of the Hawaiian Kingdom is the longest occupation in modern history that began in 1893. It was previously thought that the longest occupation in modern history was the Israeli occupation of the West Bank and East Jerusalem that began in 1967.
The significance of OUP’s publication of Unconquered States: Non-European Powers in the Imperial Age, with a chapter written by Dr. Keanu Sai titled “Hawai‘i’s Sovereignty and Survival in the Age of Empire” is that Hawai‘i was never the 50th State of the American Union but rather an occupied State under international law with its rights and obligations intact despite the prolonged nature of the occupation. What was defeated or overthrown, albeit illegally, was the government of the Hawaiian Kingdom in 1893, and not the Hawaiian Kingdom as a State, which is also referred to as the country.
Dr. Sai’s chapter reconnects the Hawaiian Kingdom to Great Britain, not the United States, when it became a British Protectorate in 1794 under the reign of King Kamehameha I. In 1843, Great Britain recognized the Hawaiian Kingdom as a sovereign and independent State, which ushered in the Hawaiian Kingdom into the Family of Nations. Dr. Sai then explains the connection to the United States by an invasion of U.S. Marines on January 16, 1893, which led to the unlawful overthrow of the Hawaiian government and its unlawful seizure of the Hawaiian Islands during the Spanish-American War in 1898. To be conquered is for the Hawaiian Kingdom to have transferred its sovereignty and territory to the United States by a treaty of cession.
There is no such treaty that exists except for the unlawful imposition of American laws, which is the war crime of usurpation of sovereignty during military occupation. Dr. Sai explains under international law why the Hawaiian Kingdom continues to exist as an occupied State under international law, which the Permanent Court of Arbitration acknowledged in 1999, in Larsen v. Hawaiian Kingdom. The PCA not only acknowledged the Hawaiian Kingdom’s continuity as a State, but also recognized the Council of Regency as its provisional government during the occupation.
Dr. Sai was one of 23 academic scholars from around the world that was invited to write a chapter on a non-European State that was not conquered under international law. If Dr. Sai’s chapter had no historical or legal basis, OUP would not have allowed the chapter to be published. This is a cornerstone of academic research where a scholar does not argue a position in their research, but rather provides historical and legal evidence that cannot be refuted. In this sense, the scholar is subject to a scientific approach where a scholar’s findings and conclusions are open for rebuttal by other scholars who serve as reviewers. This is called peer review in the academic world where opinions have no place. OUP states in the book, “Oxford University Press is a department of the University of Oxford. It furthers the University’s objective of excellence in research, scholarship, and education by publishing worldwide.”
Only when the American occupation is recognized worldwide can the occupation come to an end by a treaty of peace. OUP is added leverage to bring compliance to the law of occupation or the criminal culpability that ensues if the State of Hawai‘i is not transformed into a Military Government to administer the laws of the occupied Hawaiian Kingdom.
Dr. Keanu Sai was invited to do a podcast interview by Professor Pascal Lottaz on the subject of the American occupation of the Hawaiian Kingdom, a Neutral State. Professor Lottaz is an Assistant Professor for Neutrality Studies at the Waseda Institute for Advanced Study in Tokyo. He is a also a researcher at Neutrality Studies, where its YouTube channel, which airs their podcasts, has 153,000 subscribers worldwide.
With Oxford University Press (OUP) upcoming release, on December 30, 2024, of Unconquered States: Non-European Powers in the Imperial Age with a chapter by Dr. Keanu Sai on the Hawaiian Kingdom and its continued existence as a State despite having been under a prolonged American occupation since 1893, it will make it official that Hawai‘i is the longest occupation in modern history. Previously, it was thought that the longest occupation was Israel’s occupation of the West Bank and East Jerusalem that began in 1967.
The reach of OUP is worldwide. In all its publications it states “Oxford University Press is a department of the University of Oxford. It furthers the University’s objective of excellence in research, scholarship, and education by publishing worldwide in Oxford, Auckland, Cape Town, Dar es Salaam, Hong Kong, Karachi, Kuala Lumpur, Madrid, Melbourne, Mexico City, Nairobi, New Delhi, Shanghai, Taipei, and Toronto. With offices in Argentina, Austria, Brazil, Chile, Czech Republic, France, Greece, Guatemala, Hungary, Italy, Japan, Poland, Portugal, Singapore, South Korea, Switzerland, Thailand, Turkey, Ukraine, and Vietnam.”
Dr. Sai’s chapter has effectively pierced the false narrative that has plagued Hawai‘i’s population and the world that Hawai‘i is an American state, rather than an occupied State. The Hawaiian Kingdom’s continued existence as an occupied State is not a legal argument but rather a legal fact with consequences under international law. Dr. Sai concludes his chapter with:
Despite over a century of revisionist history, “the continuity of the Hawaiian Kingdom as a sovereign State is grounded in the very same principles that the United States and every other State have relied on for their own legal existence.” The Hawaiian Kingdom is a magnificent story of perseverance and continuity.
With the world knowing about the American occupation of the Hawaiian Kingdom it will assist in facilitating compliance by the Hawai‘i Army National Guard with the law of occupation so that the American occupation will eventually come to an end by a treaty of peace.
The duty to transform the State of Hawai‘i into a Military Government of Hawai‘i was thought to be Lieutenant Colonel Michael Rosner who was the most senior officer in the Hawai‘i Army National Guard as a consequence of the war crime by omission committed by Major General Kenneth Hara—War Criminal Report no. 24-0001, and down the chain of command, by Brigadier General Stephen Logan—War Criminal Report no. 24-0002, Colonel Wesley Kawakami—War Criminal Report no. 24-0003, Lieutenant Colonel Fredrick Werner—War Criminal Report no. 24-0004, Lieutenant Colonel Bingham Tuisamatatele, Jr.—War Criminal Report no. 24-0005, Lieutenant Colonel Joshua Jacobs—War Criminal Report no. 24-0006, and Lieutenant Colonel Dale Balsis—War Criminal Report no. 24-0007.
The Royal Commission of Inquiry was recently made aware that there was a change of command ceremony on September 7, 2024, with Brigadier General Tyson Tahara becoming commander of the Hawai‘i Army National Guard. The previous commander was Brigadier General Stephen Logan who was serving as both the Deputy Adjutant General under MG Hara as well as commander of the Hawai‘i Army National Guard. The change of command occurred because BG Logan took command as the Adjutant General after MG Hara retired in October.
Today, the Royal Commission of Inquiry (RCI) notified, by letter, BG Tahara of his duty to establish a Military Government of Hawai‘i by November 28, 2024, or become the subject of a war criminal report for the war crime by omission under the Army doctrine of command responsibility for war crimes. Because BG Logan committed the war crime by omission, the RCI stated to BG Tahara that he needs to immediately request of Lieutenant Colonel Phelps, who is the Staff Judge Advocate for the Hawai‘i Army National Guard, answers to the following two questions.
First question: Do I have a duty to assume command as Adjutant General under Army Regulation 600-20, paragraph 2-11? If yes, then go to the second question. If no, give me a legal reason why I do not have this duty.
Second question: Do I have a duty to establish a military government Under DOD Directive 5100.1, U.S. Army Field Manual 6-27—chapter 6, and the law of occupation? If yes, then begin the mission of transforming the State of Hawai‘i into a military government by November 28, 2024. If no, give me a legal reason why I do not have this duty.
The civilian population of the Hawaiian Islands was not consulted by the United States when its troops invaded the Hawaiian Kingdom on January 17, 1893. Nor were they consulted when U.S. troops illegally overthrew the government of the Hawaiian Kingdom the following day. And they were not consulted when the United States disregarded the law on the administration of occupied territories, which would create a legal vacuum under the law of occupation.
Now that we are at 131 years of an illegal occupation, the law of occupation still requires the United States, through its State of Hawai‘i Army National Guard, to transform the State of Hawai‘i into a military government to administer the laws of the Hawaiian Kingdom. To do so, would not require the civilian population to be consulted because it is a consequential military duty when territory is occupied. To not do so would be, for the most senior officer in the Army National Guard, to commit the war crime by omission.
Despite not being consulted, under customary international law, there are rules, however, that establish a working relationship between U.S. military governance, the government of the occupied State, and the civilian population. According to U.S. Army doctrine and regulations, governance in occupied territory is by military government, which is the civilian government of the occupied State headed by a military governor. The highest ranking commander of the Hawai‘i Army National Guard would be the military governor that replaces the civilian governor. Paragraph 6-24, U.S. Army Field Manual 6-27 under the heading Limitations of Occupation, states:
Military occupation of enemy territory involves a complex, trilateral set of legal relations between the Occupying Power, the temporarily ousted sovereign authority, and the inhabitants of the occupied territory. Military occupation does not transfer sovereignty to the Occupying Power, but simply gives the Occupying Power the right to govern the enemy territory temporarily.
Article 50 of the 1949 Fourth Geneva Convention states, the “Occupying Power shall, with the cooperation of the national and local authorities, facilitate the proper working of all institutions devoted to the care and education of children,” and Article 56 states, to “the fullest extent of the means available to it, the Occupying Power has the duty of ensuring and maintaining, with the cooperation of national and local authorities, the medical and hospital establishments and services, public health and hygiene in the occupied territory.”
Article 43 of the 1907 Hague Regulations triggers the obligation of the occupant of the occupying State the functions of governance:
The authority of the legitimate power having in fact passed into the hands of the occupant, the latter shall take all the measures in his power to restore and ensure, as far as possible, public order and safety, while respecting, unless absolutely prevented, the laws in force in the country.
The law on the administration of occupied territories recognizes a dual managerial obligation under Article 43’s “restore and ensure,” with each having two distinct goals. On this, Professor Benvenisti, in his book The International Law of Occupation, explains:
The need to “restore” public order and civil life arises in the wake of hostilities that disrupt the previous order. The restoration process includes immediate acts needed to bring daily life as far as possible back to the previous state of affairs. The occupant’s discretion in this process is limited. It is the other term, the command “to ensure,” that poses some difficulties. At issue is the extent to which the occupant must adhere to the status quo ante bellum [the situation as it existed before the war]. This question becomes more pressing when the occupation is protracted.
Professor Benvenisti problematizes this second command “to ensure,” because when many occupants who implement this duty “often created a whole cycle of events: new policies brought about new outcomes, which in their turn necessitated multiple other social decisions, and so forth.” This concern is an outcome of a normal situation of occupation when the occupant governs after securing effective control of occupied territory. There is no disregard by the occupant of the legal order of the occupied State, and the occupant is treated more as a temporary trustee of the legal order until a treaty of peace comes into effect.
In the Hawaiian situation, however, these two commands for the occupant to perform its duties is upended by the fact that the United States disregarded the law on the administration of occupied territories by unlawfully imposing its own laws over Hawaiian territory that ruptured the status quo ante bellum of the Hawaiian Kingdom. These American laws in Hawaiian territory constitute the war crime of usurpation of sovereignty during military occupation, which the United States recognizes as a war crime since the First World War.
Consequently, the command “to restore public order and safety” becomes a significant problem for the occupant because the laws of the Hawaiian Kingdom remain as they were on January 17, 1893. For the occupant to strictly adhere to this rule and administer Hawaiian Kingdom law, it would be impossible to “restore public and order and safety,” as intended by Article 43. In fact, it would create chaos. Further cementing this problem for the occupant, which is recognized by its own regulations, “Military occupation does not transfer sovereignty to the Occupying Power, but simply gives the Occupying Power the right to govern the enemy territory temporarily.”
For that reason, the occupant, without Hawaiian sovereignty, cannot create law for the Hawaiian Kingdom as the occupied State, but it could create policies stemming from the existing laws of the occupied State that existed prior to the occupation. However, the Council of Regency, as the acting government of the Hawaiian Kingdom, does have the authority to provisionally legislate. As concluded by Professor Lenzerini, in his legal opinion:
Under international humanitarian law, the proclamations of the Council of Regency—including the Proclamation recognizing the State of Hawai‘i and its Counties as the administration of the occupying State on 3 June 2019—have on the civilian population the effect of domestic legislation aimed at protecting their rights and prerogatives, which should be, to the extent possible, respected and implemented by the occupying power.
“During the occupation,” according to Professor Benvenisti, “the ousted government would often attempt to influence life in the occupied area out of concern for its nationals, to undermine the occupant’s authority or both. One way to accomplish such goals is to legislate for the occupied population.” Furthermore, he states the “occupant should give effect to the sovereign’s new legislation as long as it addresses those issues in which the occupant has no power to amend the local laws, most notably in matters of personal status.”
On October 10, 2014, the Council of Regency, in order to fill the vacuum or empty space of Hawaiian law since 1893, proclaimed:
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.
Therefore, in order for the occupant to fully comply with Article 43—to restore and ensure public order and safety of the civilian population, it must have a working relationship with the Council of Regency that international humanitarian law provides for. On this working relationship, Professor Lenzerini concluded:
The working relationship between the Regency and the administration of the occupying State should 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, provided that there are no objective obstacles for the occupying power to cooperate and that, in any event, the “supreme” decision-making power belongs to the occupying power itself. This conclusion is consistent with the position of the latter as “administrator” of the Hawaiian territory, as stated in the Council of Regency’s Proclamation recognizing the State of Hawai‘i and its Counties as the administration of the occupying State of 3 June 2019 and presupposed by the pertinent rules of international humanitarian law.
The Council of Regency’s Operational Plan for Transitioning the State of Hawai‘i into a Military Government takes all of this into consideration that will align the provisional laws to the status quo ante bellum of the Hawaiian Kingdom so that the occupant can “restore and ensure public order and safety” of the civilian population.
Today, November 18, 2024, Dr. Keanu Sai, as Head of the Royal Commission of Inquiry, sent a letter to Lieutenant Colonel Lloyd Phelps regarding his duty as the Hawai‘i Army National Guard’s Staff Judge Advocate to advise Lieutenant Colonel Michael Rosner of his duty to establish a military government no later than November 28, 2024, in order to put a stop to the war crime of usurpation of sovereignty and the secondary war crimes that are consequently triggered upon the population of the Hawaiian Islands. If LTC Phelps fails to advise and LTC Rosner fails to establish a military government, the Royal Commission of Inquiry will consider his conduct as an accessory to LTC Rosner’s war crime by omission under the Army doctrine of command responsibility for war crimes. Here is a link to the letter.
In my last communication to you, by letter dated June 22, 2024, I recommended you advise senior military leadership not to take my communications with them lightly. These communications concerned the interference of State of Hawai‘i Attorney General Anne Lopez with Major General Hara’s military duty to establish a military government in accordance with U.S. Department of Defense Directive 5100.1, U.S. Army Field Manual 6-27—chapter 6, and the law of occupation. It appears senior military leadership did not take my communications with them seriously. This misguided attitude led them to commit the war crime by omission under the Army doctrine of command responsibility for war crimes.
Senior military leadership’s war crimes by omission include Major General Kenneth Hara—War Criminal Report no. 24-0001, Brigadier General Stephen Logan—War Criminal Report no. 24-0002, Colonel Wesley Kawakami—War Criminal Report no. 24-0003, Lieutenant Colonel Fredrick Werner—War Criminal Report no. 24-0004, Lieutenant Colonel Bingham Tuisamatatele, Jr.—War Criminal Report no. 24-0005, Lieutenant Colonel Joshua Jacobs—War Criminal Report no. 24-0006, and Lieutenant Colonel Dale Balsis—War Criminal Report no. 24-0007.
As a result, Lieutenant Colonel Michael Rosner, Executive Officer of the 29th Infantry Brigade, became the most senior officer in the Hawai‘i Army National Guard. In my letter dated November 11, 2024, the Royal Commission of Inquiry notified LTC Rosner that he has until November 28, 2024, to transform the State of Hawai‘i into a Military Government. Failure to do so will render him a war criminal by omission under the Army doctrine of command responsibility for war crimes.
Customary international law is the determining factor that the Hawaiian Kingdom continues to exist as a sovereign and independent State. As a source of international law, academic scholars explain the applicable rules of customary international law on a particular subject. Therefore, the continuity of Hawaiian Statehood under customary international law was explained in two legal opinions, one by Professor Matthew Craven and the other by Professor Federico Lenzerini. In addition, war crimes that are being committed, by the imposition of American municipal laws over the territory of the Hawaiian Kingdom, is also a matter of customary international law. This fact is explained by the legal opinion of Professor William Schabas. The continuity of Hawaiian Statehood and the commission of war crimes throughout the Hawaiian Islands is uncontested by the United States and the State of Hawai‘i.
As the most senior legal advisor in the Army National Guard, unless you discover a rule of customary international law that concludes the Hawaiian Kingdom was extinguished as a State under international law by the United States, you are duty bound to advise commanders of their duties and responsibilities under U.S. Department of Defense Directive 5100.1, U.S. Army Field Manual 6-27—chapter 6, and the law of occupation. As such, I am enclosing an article written by JAG officer Major Michael Winn titled “Command Responsibility for Subordinates’ War Crimes: A Twenty-First Century Primer” published in Army Lawyer.
Moreover, in my latest letter to LTC Rosner I recommended that he immediately request of you an answer to the following two questions.
First question: Do I have a duty to assume command of the Hawai‘i Army National Guard under Army Regulation 600-20, paragraph 2-11? If yes, then go to the second question. If no, give me a legal reason why I do not have this duty.
Second question: Do I have a duty to establish a military government Under DOD Directive 5100.1, U.S. Army Field Manual 6-27—chapter 6, and the law of occupation? If yes, then begin the mission of transforming the State of Hawai‘i into a military government by November 28, 2024. If no, give me a legal reason why I do not have this duty.
If LTC Rosner has not requested of you answers to these questions, then I am recommending you provide answers to him, as a matter of command responsibility, since the November 28, 2024, deadline is fast approaching. Should you fail to do so and LTC Rosner neglects to establish a military government, thereby, committing the war crime by omission, then the Royal Commission of Inquiry will view your conduct as an accessory by aiding in the commission of this war crime.
Since 2015, you were made aware of the continuity of Hawaiian Statehood and the commission of war crimes when you were the Deputy Prosecuting Attorney for the County of Maui in State of Hawai‘i v. English et al., criminal no. 14-1-0819. This case was brought before Judge Joseph P. Cardoza of the Second Circuit Court and I served as an expert witness, for the defense, at an evidentiary hearing on March 5, 2015. The purpose for the evidentiary hearing was to meet the burden of proof, established by the Intermediate Court of Appeals in State of Hawai‘i v. Lorenzo for defendants who are contesting the subject matter jurisdiction of the court because of the unlawful overthrow of the government of the Hawaiian Kingdom, must provide a “factual (or legal) basis for concluding that the Kingdom exists as a state in accordance with recognized attributes of a state’s sovereign nature.” My expert testimony served to answer this in the affirmative.
In my testimony, I provided the factual circumstances of the United States military occupation of the Hawaiian Kingdom and the unlawful imposition of American municipal laws as to the reason why the Court did not have subject matter jurisdiction. The court’s authority extends from the 1959 Statehood Act passed by the Congress, which has no extra-territorial effect. I stated that for the Court to proceed it would violate “Article 147 [1949 Fourth Geneva Convention], unfair trial [as] a grave breach, which is considered a war crime.” When asked by Judge Cordoza, “Any cross-examination?” You responded, “Your Honor, the State has no questions of Dr. Sai. Thank you for his testimony. One Army officer to another, I appreciate your testimony.” I am enclosing the transcript of my testimony so that LTC Rosner is aware of the severity of this situation.
As you know, I have ten years of service in the Hawai‘i Army National Guard as a field artillery officer so I am well aware of Army regulations and the role of a JAG. The State of Hawai‘i is at a critical juncture as it comes face to face with customary international law and its only recourse to transform itself into a military government. Your role as a legal advisor to LTC Rosner is critical. I am hopeful that you and LTC Rosner perform your affirmative duties and responsibilities to carry out the Army mission of military government without further delay.
In closing, I am also enclosing my recent law article “The Sweeping Effect of Hawaiian Sovereignty and the Necessity of Military Government to Curb the Chaos” that was published by the Hawaiian Journal of Law & Politics.
A country’s economy, according to Investopedia, “is the total of all activities related to the production, sale, distribution, exchange, and consumption of limited resources by a group of people living and operating within it.” The economy of the Hawaiian Kingdom is a mixed economy based on Francis Wayland’s theory of economics and not Adam Smith’s version that promoted the theory of laisse faire, which is letting the market take its own course.
At the center of Wayland’s theory was the introduction of morality into capitalism. Wayland was a Baptist minister and taught political economy at Brown University. In 1839, he published Elements of Political Economy that was an alternative to Adam Smith’s Wealth of Nations. According to Professor Mykkänen, Wayland was interested in “defining the limits of government by developing a theory of contractual enactment of political society, which would be morally and logically binding and acceptable to all its members.” William Richards, a former missionary and advisor to King Kamehameha III, taught courses at Lahainaluna to the high chiefs of the kingdom on government reform and economics.
In stages of the classes, Richards translated into the Hawaiian language sections of Wayland’s Elements of Political Economy in 1838. By 1839, he completed the sections, and it was published into a book titled No Ke Kalaiaina, which means carving of the land. From the premise that governance could be formed and established to acknowledge and protect the rights of all the people and their property, it was said to follow that laws should be enacted to maintain a society for the benefit of all and not the few. Richards asserted, “God did not establish man as servants for the government leaders and as a means for government leaders to become rich. God provided for the occupation of government leaders in order to bless the people and so that the nation benefits.”
Hawaiian currency was backed by silver at par with the United States currency backed by silver. Hawaiian coinage that was circulated since 1883 included umi keneta—one dime, hapaha—one-quarter dollar, hapalua—half dollar, and akahi dala—one dollar.
In 1876, the Hawaiian Legislative Assembly enacted a statute that from 1877 “gold coins of the United States of America shall be the standard and a legal tender in this Kingdom in all payments of debts, at their nominal value,” as well as “silver coins of the United States shall be a legal tender at their nominal value in payment for all debts within this Kingdom.”
This statute also provided that gold and silver coinage “bearing the legalized impress of any Sovereign State, shall also be receivable in payment of Government dues, duties and taxes, at the exchequer, and in tender or payment of debts contracted by private individuals and payable in this Kingdom, at their value as fixed by the King in Privy Council and published by the Minister of Finance.” In other words, their value will be according to the exchange rate for the Hawaiian dollar and the American dollar.
According to Professor Feilchenfeld, in his 1942 book titled The International Economic Law of Belligerent Occupation, he states:
The law of occupation affects many phases of life. Among them are numerous aspects such as the treatment of educational institutions, the occupant’s attitude towards criminal and administrative laws, and the treatment of the law courts of the occupied state.
The comparative importance of economic aspects and, consequently, the comparative relevance of international economic within the law of belligerent occupation, are indicated by the fact that eleven of the fifteen articles of the Hague Regulations on occupation are exclusively concerned with economic questions. Purely economic provisions are contained in Articles 46-56. Article 42 and 43 of the Regulations deal with general problems affecting both economic and non-economic interests. Only Articles 44, 45 and part of the first paragraph of Article 46, are devoted to interests which are clearly non-economic.
As an independent State, the Hawaiian Kingdom entered into extensive treaty relations with a variety of States establishing diplomatic relations and trade agreements. Its treaty partners include Austria-Hungary, Belgium, Bremen, Denmark, France, Germany, Great Britain, Hamburg, Italy, Japan, the Netherlands, Portugal, Russia, Spain, Sweden-Norway, Switzerland and the United States. None of these treaties were terminated. On the subject of international treaties during an illegal occupation, Professor Benvenisti states:
The UN Security Council often reminds states of their obligation to regard such acts as legally invalid. States must therefore, for example, refrain from signing new treaties with such regimes. But this caveat contains its own caveat: the illegality of the occupant’s measures should not adversely affect the population subject to its rule. States must therefore confine their reactions to the illegality to their direct relations with the occupant, while at the same continue to maintain existing treaty-based relations that benefit the local population.
On the subject of public and private interests under the law of occupation, Professor Feilchenfeld explains that under “the doctrine Rousseau-Portales, war is directed against sovereigns and armies, not against subjects and civilians. This doctrine, which was recognized during the nineteenth century, governs the Hague Regulations.” He goes on to state that under “another legal dogma of the nineteenth century, the Doctrine of Vested Rights, private property of inhabitants is protected against confiscation.”
Black’s Law dictionary defines vested rights as “a right complete and consummated, and of such character that it cannot be divested without the consent of the person to whom it belongs, and fixed or established, and no longer open to controversy.” Since land reform was initiated in 1845, the Hawaiian Kingdom recognized the legal doctrine of vested rights. Specifically, §825 of the Hawaiian Civil Code states, “The several courts, in the decisions, shall have due regard to vested rights.”
The law of occupation provides for the maintenance of the status quo ante of the occupied State’s institutions, legal order and territorial integrity, but also protects the rights of the population of the occupied State. What makes the American occupation of the Hawaiian Kingdom unique or sui generis is not an occupying State’s compliance with international humanitarian law that maintains the status quo ante, but rather its defiance of the law in pursuit of American military interests. Since 1893, the United States denied the application of the law of occupation by acting through puppet regimes it installed and illegally annexed the territory of the Hawaiian Kingdom in 1898 during the Spanish-American War.
At the time of South Africa’s occupation of Namibia, the latter was not at the time a sovereign and independent State. It was a mandate territory assigned to the administration of South Africa in 1920 after the First World War. The League of Nations determined that colonial territories of Germany and Turkey would be assigned to member States so that they can foster the mandate of these territories to eventually become a sovereign and independent State. Instead of adhering to the mandate, South Africa treated Namibia as one of its provinces.
Since it was a mandate territory it came under the authority of the United Nations who became the successor to the League of Nations. This prompted actions to be taken by the United Nations, on behalf of Namibia. In 1969, the United Nations Security Council called on South Africa to withdraw and called its actions in Namibia legally invalid. In 1971, the International Court of Justice, in its Namibia Advisory Opinion, affirmed the United Nations’ authority over Namibia and demanded the withdrawal of South Africa.
The Court also “found that States Members of the United Nations were under an obligation to recognize the illegality of South Africa’s presence in Namibia and the invalidity of its acts on behalf of or concerning Namibia, and to refrain from any acts implying recognition of the legality of, or lending support or assistance to, such presence and administration.” South Africa withdrew its forces from Namibia in 1989. The following year in 1990, Namibia became an independent State.
Since the Hawaiian Kingdom achieved its independence in the nineteenth century, there is no requirement, like in the case of Namibia, for the United Nations to intercede on its behalf. Its continued existence as a State and its sweeping effect of sovereignty is a matter of customary international law. As the International Court of Justice, in the Lotus case, explained:
Now the first and foremost restriction imposed by international law upon a State is that—failing the existence of a permissive rule to the contrary—it may not exercise its power in any form in the territory of another State. In this sense jurisdiction is certainly territorial; it cannot be exercised by a State outside its territory except by virtue of a permissive rule derived from international custom or from a convention [treaty].
The permissive rule the Court referred to is Article 43 of the 1907 Hague Regulations and Article 64 of the Fourth Geneva Convention, that mandates the occupant to establish a military government to provisionally administer the laws of the occupied State until there is a treaty of peace. For the past 131 years, there has been no permissive rule of international law that allows the United States to exercise any authority in the Hawaiian Kingdom, which makes every act stemming directly from its authority unlawful and void.
This places the Council of Regency at the center because it alone, as the government of the occupied State, can legally change what is unlawful and void to become lawful under Hawaiian Kingdom law and the doctrine of necessity. The transformation of the State of Hawai‘i into a Military Government of Hawai‘i will need the cooperation of the Council of Regency to transition from an American economy that international law renders unlawful and void, to a Hawaiian economy based on Wayland’s theory of cooperative capitalism and regulated under Hawaiian Kingdom laws and administrative measures.
Under the law of occupation, the Military Government of Hawai‘i would not incur the debt of the State of Hawai‘i and the Counties. In 2022, the State of Hawai‘i debt was $8.52 billion, and its County debt was $7.87 billion. This debt is based on American law and administrative measures, which is the war crime of usurpation of sovereignty during military occupation. What the Military Government of Hawai‘i would incur is the debt of the Hawaiian Kingdom, which would be the loans of money to the Hawaiian Kingdom government by the issuance of Hawaiian Kingdom bonds since 2013.
In other words, the Military Government of Hawai‘i will be operating on the current budget of the State of Hawai‘i and Counties without having incurred any debt, except for the Hawaiian Kingdom’s debt. The revenues for the budget would have to be realigned under Hawaiian Kingdom laws and administrative measures. For those lenders that loaned money to the State of Hawai‘i or those who purchased State of Hawai‘i bonds, retrieval of their investments would be a matter for the United States federal government and not the Hawaiian Kingdom.
A particular rule of international humanitarian law addresses what an occupied State can do if the occupying State is violating international law by committing war crimes. U.S. Army Field Manual 27-10 (FM 27-10), under the heading Remedies for Violation of International Law; War Crimes, paragraph 495 states:
In the event of violation of the law of war, the injured party may legally resort to remedial action of the following types:
a. Publication of the facts, with a view to influencing public opinion against the offending belligerent.
b. Protest and demand for compensation and/or punishment of the individual offenders. Such communications may be sent through the protecting power, a humanitarian organization performing the duties of a protecting power, or a neutral state, or by parlementaire direct to the commander of the offending forces. Article 3, H. IV, provides in this respect:
A belligerent party which violates the provisions of the said Regulations shall, if the case demands, be liable to pay compensation. It shall be responsible for all acts committed by persons forming part of its armed forces.
c. Solicitation of the good offices, mediation, or intervention of neutral States for the purpose of making the enemy observe the law of war. See Articles 11, GWS; 11, GWS Sea; 11, GPW; 12, GC (par. 19), concerning conciliation procedure through the protecting powers.
d. Punishment of captured offenders as war criminals.
e. Reprisals.
After returning from international arbitration proceedings in Larsen v. Hawaiian Kingdom at the Permanent Court of Arbitration (PCA) in December of 2000, the Council of Regency chose ‘Publication of the facts, with a view to influencing public opinion against the offending belligerent.’ Dr. Keanu Sai is Chairman of the Regency and his publications focus on the continuity of the Hawaiian Kingdom as a State under customary international law and the ramifications of war crimes and human rights violations that have occurred by the war crime of usurpation of sovereignty during military occupation, which is the unlawful imposition of American laws and administrative measures over the territory of the Hawaiian Kingdom as an occupied State.
In volume 6 of the Hawaiian Journal of Law & Politics, Dr. Keanu Sai authored his most recent article titled “The Sweeping Effect of Hawaiian State Sovereignty and the Necessity of Military Government to Curb the Chaos,” in line with the international rule ‘Publication of the facts, with a view to influencing public opinion against the offending belligerent.’ Dr. Sai has ten years of service as a field artillery officer in the Hawai‘i Army National Guard and is very familiar with U.S. Army regulations such as FM 27-10.
Here is a link to download Dr. Sai’s latest article. In the article’s introduction, Dr. Sai states:
We are now at 131 years of an American occupation of the Hawaiian Kingdom. There are two periods since the occupation began on 17 January 1893. The first period was when the national consciousness of the Hawaiian Kingdom was effectively obliterated in the minds of the population. The second period was when the government was restored as a Regency in 1997 up until the present where the national consciousness had begun to be restored. Underlying the first and second periods, however, was the non-compliance with the law of occupation under international humanitarian law, which the military calls the law of armed conflict. So, while the national consciousness in the minds of the population has begun to change, the United States and its proxy, the State of Hawai‘i, has not changed in its unlawful authority.
If the American military in Hawai‘i complied with the international law of occupation when Queen Lili‘uokalani conditionally surrendered to the United States in 1893, the occupation would not have lasted 131 years. Consequently, everything since 1893 that derives from American authority, that would otherwise be valid within the territory of the United States, is invalid and void in Hawaiian territory because the United States has not been vested with Hawaiian sovereignty by a treaty. The only way to bring order to this calamity is by establishing a military government of Hawai‘i where the American military governor has centralized command and control allowable under the law of occupation.
This article will explain the role and function of a military government that presides over occupied territory of a State under international law. And that it is only by a military government that remedial steps can be taken, considering 131 years of illegality, that has consequently placed the entire population of the occupied State in a dire situation where their possessions and rights have evaporated because of the United States unlawful conduct and actions under the law of occupation. Despite the deliberate failure to establish a military government, international law and American military law still obliges the occupant to do so that will eventually bring the American occupation to an end by a treaty of peace between the Hawaiian Kingdom and the United States.
In this situation, the establishment of a Military Government of Hawai‘i will have to deal the headwinds of chaos that began when the American occupation was initiated on January 17, 1893, after Queen Lili‘uokalani conditionally surrendered to U.S. troops. Why did the chaos begin on this day is because everything that was done by the United States within the territory of the Hawaiian Kingdom since then was illegal under international law. This is not a political statement, but rather according to the rules of customary international law, which the United States and every other State is bound by. Under his heading The Sweeping Effect of State Sovereignty During a Prolonged Occupation in his article, Dr. Sai writes:
The bedrock of international law is the sovereignty of an independent State. Sovereignty is defined as the “supreme, absolute, and uncontrollable power by which any independent state is governed.” For the purposes of international law, Wheaton explains:
Sovereignty is the supreme power by which any State is governed. This supreme power may be exercised either internally or externally. Internal sovereignty is that which is inherent in the people or any State, or vested in its ruler, by its municipal constitution or fundamental laws. This is the object of what has been called internal public law […], but which may be more properly be termed constitutional law. External sovereignty consists in the independence of one political society, in respect to all other political societies. It is by the exercise of this branch of sovereignty that the international relations of one political society are maintained, in peace and in war, with all other political societies. The law by which it is regulated has, therefore, been called external public law […], but may more properly be termed international law.
In the Island of Palmas arbitration, which was a dispute between the United States and the Netherlands, the arbitrator explained that “Sovereignty in the relations between States signifies independence. Independence in regard to a portion of the globe is the right to exercise therein, to the exclusion of any other State, the functions of a State.” And in the S.S. Lotus case, which was a dispute between France and Turkey, the Permanent Court of International Justice stated:
Now the first and foremost restriction imposed by international law upon a State is that—failing the existence of a permissive rule to the contrary—it may not exercise its power in any form in the territory of another State. In this sense jurisdiction is certainly territorial; it cannot be exercised by a State outside its territory except by virtue of a permissive rule derived from international custom or from a convention [treaty].
The permissive rule under international law that allows one State to exercise authority over the territory of another State is Article 43 of the 1907 Hague Regulations and Article 64 of the Fourth Geneva Convention, that mandates the occupant to establish a military government to provisionally administer the laws of the occupied State until there is a treaty of peace. For the past 131 years, there has been no permissive rule of international law that allows the United States to exercise any authority in the Hawaiian Kingdom, which makes the prolonged occupation illegal under international law.
As the arbitral tribunal, in Larsen v. Hawaiian Kingdom, noted in its award, “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.” The scope of Hawaiian sovereignty can be gleaned from the Civil Code. §6 states:
The laws are obligatory upon all persons, whether subjects of this kingdom, or citizens or subjects of any foreign State, while within the limits of this kingdom, except so far as exception is made by the laws of nations in respect to Ambassadors or others. The property of all such persons, while such property is within the territorial jurisdiction of this kingdom, is also subject to the laws.
Property within the territorial jurisdiction of the Hawaiian Kingdom includes both real and personal. Hawaiian sovereignty over the population, whether Hawaiian subjects or citizens or subjects of any foreign State, is expressed in the Penal Code. Under Chapter VI—Treason, the statute, which is in line with international law, states:
1. Treason is hereby defined to be any plotting or attempt to dethrone or destroy the King, or the levying of war against the King’s government, or the adhering to the enemies thereof, giving them aid and comfort, the same being done by a person owing allegiance to this kingdom.
2. Allegiance is the obedience and fidelity due to the kingdom from those under its protection.
3. An alien, whether his native country be at war or at peace with this kingdom, owes allegiance to this kingdom during his residence therein, and during such residence, is capable of committing treason against this kingdom.
4. Ambassadors and other ministers of foreign states, and their alien secretaries, servants and members of their families, do not owe allegiance to this kingdom, though resident therein, and are not capable of committing treason against this kingdom.
When the Hawaiian Kingdom Government conditionally surrendered to the United States forces on January 17, 1893, the action taken did not transfer Hawaiian sovereignty but merely relinquished control of Hawaiian sovereignty because of the American invasion and occupation. According to Benvenisti:
The foundation upon which the entire law of occupation is based is the principle of inalienability of sovereignty through unilateral action of a foreign power, whether through the actual or the threatened use of force, or in any way unauthorized by the sovereign. Effective control by foreign military force can never bring about by itself a valid transfer of sovereignty. Because occupation does not transfer sovereignty over the territory to the occupying power, international law must regulate the inter-relationships between the occupying force, the ousted government, and the local inhabitants for the duration of the occupation. […] Because occupation does not amount to sovereignty, the occupation is also limited in time and the occupant has only temporary managerial powers, for the period until a peaceful solution is reached. During that limited period, the occupant administers the territory on behalf of the sovereign. Thus the occupant’s status is conceived to be that of a trustee (emphasis added).
The occupant’s ‘managerial powers’ is exercised by a military government over the territory of the occupied State that the occupant is in effective control. The military government would need to be in effective control of the territory to effectively enforce the laws of the occupied State. Without effective control there can be no enforcement of the laws. The Hawaiian government’s surrender on January 17, 1893, that transferred effective control over the territory of the Hawaiian Kingdom to the American military did not transfer Hawaiian sovereignty. U.S. Army regulations on this subject state, being “an incident of war, military occupation confers upon the invading force the means of exercising control for the period of occupation. It does not transfer the sovereignty to the occupant, but simply the authority or power to exercise some of the rights of sovereignty (emphasis added).”
When the Queen surrendered, it transferred temporary authority to the American military, the government apparatus also came under the control of the American military where the office of the Monarch would be replaced by the theater commander of U.S. forces who would be referred to as the military governor. All members of the executive and judicial branches of government would remain in place except for the legislative branch because the military governor “has supreme legislative, executive, and judicial authority, limited only by the laws and customs of war and by directives from higher authority.”
Through the publications and awareness at the academic level and in the communities of the current legal status of the Hawaiian Kingdom as an occupied State, the Council of Regency has managed to shift its position. From an outlier when it began its exposure campaign through academic research and presentations, to shifting the center of gravity in its direction by leveraging Hawaiian sovereignty in order to bring compliance with the law of occupation. The Council of Regency’s methodical and deliberate law-based and fact-based approach has pierced through the veil of a false narrative that the Hawaiian Islands are a part of the United States. This approach has also positioned the Council of Regency to remedy the sweeping effects of Hawaiian State sovereignty in accordance with Hawaiian Kingdom laws making them indispensable.
By employing lawfare, which according U.S. General Dunlap is “the strategy of using laws as a substitute for traditional military means to achieve an operational objective,” the Council of Regency has made tremendous strides toward American military compliance with the law of occupation since it began Phase II of its Strategic Plan. Phase I, “Verification of the Hawaiian Kingdom as an independent State and a subject of International Law,” was satisfied after the PCA recognized the continued existence of the Hawaiian Kingdom as a State under international law. This act by the PCA initiated Phase II, which is “Exposure of Hawaiian Statehood within the framework of international law and the law of occupation as it affects the realm of politics and economic at the both the international and domestic levels.”
On July 27, 2023, Major General Kenneth Hara admitted that Hawai‘i is occupied, after his judge advocate Lieutenant Colonel Lloyd Phelps could not refute the information provided to MG Hara by Dr. Keanu Sai, Head of the Royal Commission of Inquiry, at their meeting on April 13, 2023, at the Grand Naniloa Hotel in Hilo. Anticipating a second meeting with MG Hara to discuss the transition into a military government, the Council of Regency drafted an Operational Plan for the transformation of the State of Hawai‘i into a Military Government on August 14, 2023.
That meeting never occurred and it was later revealed that Attorney General Anne Lopez interceded and instructed MG Hara to ignore Dr. Sai. It was later revealed to Dr. Sai that she also instructed MG Hara to not request a legal opinion that would qualify her baseless instruction to ignore. This placed MG Hara in a position of dereliction of duty and criminal culpability for the Army’s doctrine of command responsibility for war crimes. This command responsibility comes under paragraph 4-24 of U.S. Army Regulation 600-20, which states under the heading of Command responsibility under the law of war:
Commanders are legally responsible for war crimes they personally commit, order committed, or know or should have known about and take no action to prevent, stop, or punish.
When MG Hara tasked LTC Phelps to refute the information provided by Dr. Sai, he was not only made aware of the continued existence of the Hawaiian Kingdom under international law, but he was also made aware that war crimes have and continue to be committed by the federal government, the State of Hawai‘i and the Counties through the unlawful imposition of American laws and administrative measures throughout the territory of the Hawaiian Kingdom.
According to Professor William Schabas, in his legal opinion on war crimes being committed in the Hawaiian Kingdom, the unlawful imposition of American laws and administrative measures is the war crime of usurpation of sovereignty during military occupation. This war crime consequently triggered secondary war crimes that include the war crime of compulsory enlistment; the war crime of denationalization; the war crime of confiscation or destruction of property; the war crime of deprivation of fair and regular trial; the war crime of deporting civilians of the occupied territory; and the war crime of transferring populations into an occupied territory.
Dereliction of duty and failure to obey Army regulations that require the establishment of a military government in occupied territory are two court martial offenses under Article 92 of the Uniform Code of Military Justice. If this duty has the effect of putting a stop to war crimes, it is a war crime by omission under the doctrine of command responsibility for war crimes.
Lieutenant Colonel Michael Rosner, Executive Officer of the 29th Infantry Brigade, became the most senior officer in the Hawai‘i Army National Guard because of war crimes by omission committed by Major General Kenneth Hara—War Criminal Report no. 24-0001, Brigadier General Stephen Logan—War Criminal Report no. 24-0002, Colonel Wesley Kawakami—War Criminal Report no. 24-0003, Lieutenant Colonel Fredrick Werner—War Criminal Report no. 24-0004, Lieutenant Colonel Bingham Tuisamatatele, Jr.—War Criminal Report no. 24-0005, Lieutenant Colonel Joshua Jacobs—War Criminal Report no. 24-0006, and Lieutenant Colonel Dale Balsis—War Criminal Report no. 24-0007.
In a letter by Dr. Sai, as Head of the Royal Commission of Inquiry, dated November 11, 2024, LTC Rosner was notified that he has until November 28, 2024, to transform the State of Hawai‘i into a military government in accordance with U.S. Department of Defense Directive 5100.1, U.S. Army Field Manual 6-27—chapter 6, and the law of occupation.
To guide LTC Rosner in the transformation is the Council of Regency’s Operational Plan, which has four essential tasks, with each having corresponding implied tasks. The Operational Plan provides a comprehensive approach for the implementation of these essential and implied tasks in line with the law of occupation and Hawaiian Kingdom laws.
First essential task is for the Military Government to become temporary administrator of the laws of the occupied State—the Hawaiian Kingdom
a. First implied task is for the theater commander of the Hawai‘i Army National Guard to proclaim the establishment of the Military Government of Hawai‘i
b. Second implied task is for the Military Governor to proclaim provisional laws in order to bring the laws of the Hawaiian Kingdom up to date
c. Third implied task is to disband the State of Hawai’i Legislature and the County CouncilsThe second essential task is to be the temporary administrator of public buildings, real estate, forests, and agricultural estates that belong to the occupied State
a. First implied task is to remove the United States flag from all public buildings of the Hawaiian Kingdom
Third essential task is to protect the institutions of the occupied state
a. First implied task is to realign Departments and Agencies to the status quo ante as they were prior to the American occupation that started on January 17, 1893
b. Second implied task is for those in the Military Government sign oaths of allegiance to the Hawaiian Kingdom, which is required under Hawaiian law
c. Third implied task is to reinstate universal healthcare for aboriginal Hawaiians at Queen’s Hospital
d. Fourth implied task is to take affirmative steps to end denationalization through Americanization in the public and private schoolsFourth essential task is to protect the rights of the population of the occupied State
The State of Hawai‘i is the governing apparatus of the Hawaiian Kingdom with its three branches of government. On January 17, 1893, the insurgents, with the protection U.S. Marines, proclaimed the establishment of the provisional government. Their proclamation stated:
All officers under the existing Government are hereby requested to continue to exercise their functions and perform the duties of their respective offices, with the exception of the following named persons: Queen Liliuokalani, Charles B. Wilson, Marshal, Samuel Parker, Minister of Foreign Affairs, W.H. Cornwell, Minister of Finance, John F. Colburn, Minister of the Interior, Arthur P. Peterson, Attorney General who are hereby removed from office.
After their proclamation, the insurgents forced those remaining in government positions to sign oaths of allegiance to the new regime. On July 4, 1894, the insurgents renamed themselves the Republic of Hawai‘i. After illegally annexing the Hawaiian Islands in 1898, the Congress renamed the government apparatus to be the Territory of Hawai‘i in 1900. And in 1959, the Congress renamed the Territory of Hawai‘i to be the State of Hawai‘i.
Much of the departments and agencies of the Hawaiian Kingdom were renamed and reorganized in violation of the law of occupation. The cornerstone of the law of occupation is that the occupier cannot alter, change or replace the occupied State’s governing apparatus, its legal order, its territory, and its population. According to Professor Federico Lenzerini, in his recent international law article, published in the International Review of Contemporary Law, he states:
Intertemporal-law-based perspective confirms the illegality— under international law—of the annexation of the Hawaiian Islands by the US. In fact, as regards in particular the topic of military occupation, the affirmation of the ex injuria jus non oritur rule predated the Stimson doctrine, because it was already consolidated as a principle of general international law since the XVIII Century. In fact, “in the course of the nineteenth century, the concept of occupation as conquest was gradually abandoned in favour of a model of occupation based on the temporary control and administration of the occupied territory, the fate of which could be determined only by a peace treaty”; in other words, “the fundamental principle of occupation law accepted by mid-to-late 19th-century publicists was that an occupant could not alter the political order of territory.”
Under the law of occupation, a military government is the civilian government of the occupied State. The State of Hawai‘i is not the civilian government of the United States but rather the civilian government of the Hawaiian Kingdom that was hijacked by insurgents installed by the United States. As President Cleveland told the Congress on December 1893, “the provisional government owes its existence to an armed invasion by the United States,” and that it “was neither a government de facto nor de jure.” In other words, the insurgents were pretending to be a government. According to Professor Krystyna Marek:
Puppet governments are organs of the occupant and, as such form part of his legal order. The agreements concluded by them with the occupant are not genuine international agreements because such agreements are merely decrees of the occupant disguised as agreements which the occupant in fact concludes with himself. Their measures and laws are those of the occupant.
Military governments operate on the budget of the occupied State and not the budget of the occupying State. Under the third essential task, federal agencies will cease to exist and be replaced by the corresponding department or agency of the Hawaiian Kingdom. According to the U.S. Office of Personnel Management, there are 23,453 federal employees in the Hawaiian Kingdom, with 18,135 from the U.S. Department of Defense. These employees of the Department of Defense, to include U.S. troops of the Indo-Pacific Command, will begin to withdraw from Hawaiian territory because the 1884 Pear Harbor Convention, which the Indo-Pacific Command based its presence on, was terminated on October 26, 2024, by the Council of Regency.
This leaves 5,318 non-Department of Defense employees. Some of these employees may remain employed if what they do under American law is not inconsistent with Hawaiian Kingdom law. To determine whether the function of these agencies is a provisional law under the second implied task corresponding to the first essential task would be to apply the formula, in the Operational Plan, to be used for determining what American municipal laws may be considered a provisional law of the Hawaiian Kingdom. An example of an agency that would appear to continue to exist is the function of TSA at the airports. Their salaries will have to be provided for by the budget of the Military Government of Hawai‘i and not from the U.S. Department of Homeland Security.
The budget for the Military Government of Hawai‘i will be the collective budgets of the State of Hawai‘i and the Counties. If additional revenues are required, the collection of these revenues must be in accordance with the law of occupation.
Normally when a crime is committed at the national level, a person not only has to commit the criminal act but also must have the criminal intent to commit the crime. In other words, for a person to be held criminally liable, he/she would also have known that the act was unlawful. Criminal culpability, under U.S. federal law, could also apply to a person who did not commit the crime themselves, but knew that a federal crime had been committed and did not report it. This is misprision of a felony that criminalizes the active concealment of a known felony without reporting it to the proper authorities. A felony is where the punishment of a crime is a year or more in prison. Less than a year in prison is a misdemeanor.
At the international level, a war crime can be committed by an individual as well as someone in authority who knew of the commission of the war crime and did nothing to prevent it or stop it. So, under international criminal law, there is the war crime committed by a perpetrator and there is the war crime by omission, which is the failure of a person in authority to act. The failure to act does not require criminal intent.
General Tomoyuki Yamashita was not only the most senior officer of the Japanese military in the Philippines, but he was also the military governor of the occupied territory of the Philippines. Under the law of occupation, the civilian population of the occupied State owe temporary obedience to the occupier, who in turn will protect their rights under the laws of the occupied State. The Philippines, at the time, were a part of the territory of the United States. So, when Japanese soldiers were killing American prisoners of war, they were also raping and killing civilians. It was argued that General Yamashita, as a person of authority, could have put a stop to these war crimes. He was found guilty and sentenced to death.
In 1945, General Yamashita was tried and convicted for the commission of war crimes, but he was not the perpetrator of the war crimes. In fact, he was not charged with war crimes. He was charged under the theory that he knew or should have known that war crimes were being committed against American prisoners of war and Filipino citizens and he did not put a stop to it or punish the perpetrators. This theory became a legal doctrine called command responsibility for war crimes.
Under this legal doctrine of command responsibility, there are the following three elements establishing criminal liability for war crimes by omission:
(1) there must be a superior-subordinate relationship;
(2) the superior must have known or had reason to know that the subordinate was about to commit a crime or had committed a crime; and
(3) the superior failed to take the necessary and reasonable measures to prevent the crime or to punish the perpetrator.
According to the U.S. Department of Defense draft instructions for guidance to military commissions states: “A person is criminally liable for a completed substantive offense if that person commits the offense, aids or abets the commission of the offense, solicits commission of the offense, or is otherwise responsible due to command responsibility,” and provides the following elements:
(1) The accused had command and control, or effective authority and control, over one or more subordinates;
(2) One or more of the accused’s subordinates committed, attempted to commit, conspired to commit, solicited to commit, or aided or abetted the commission of one or more substantive offenses triable by military commission;
(3) The accused either knew or should have known that the subordinate or subordinates were committing, attempting to commit, conspiring to commit, soliciting, or aiding and abetting such offense or offenses; and
(4) The accused failed to take all necessary and reasonable measures within his or her power to prevent or repress the commission of the offense or offenses.
These four elements are the same under customary international law. According to an authoritative study of customary international law by the International Committee of the Red Cross:
Commanders and other superiors are criminally responsible for war crimes committed by their subordinates if they knew, or had reason to know, that the subordinates were about to commit or were committing such crimes and did not take all necessary and reasonable measures in their power to prevent their commission, or if such crimes had been committed, to punish the persons responsible.
The U.S. Army updated Army Regulation 600-20, Army Command Policy, which states under the heading of Command responsibility under the law of war:
4-24. Commanders are legally responsible for war crimes they personally commit, order committed, or know or should have known about and take no action to prevent, stop, or punish.
Consequently, if commanders ‘know or should have known’ that war crimes are being committed and ‘take no action to prevent, stop, or punish,’ they could be held criminally liable for the war crime by omission.
It is uncontested by the United States, the State of Hawai‘i, and the Counties that war crimes, under customary international law, are occurring throughout the Hawaiian Islands. It is also uncontested that the Hawaiian Kingdom continues to exist as an occupied State and that the Council of Regency is its acting government. Legal opinions by Professor William Schabas, Professor Matthew Craven, and Professor Federico Lenzerini who are international law scholars, explain this under the rules of customary international law.
Article 38 of the Statute of the International Court of Justice identifies five sources of international law: (a) treaties between States; (b) customary international law derived from the practice of States; (c) general principles of law recognized by civilized nations; and, as subsidiary means for the determination of rules of international law; (d) judicial decisions; and (e) the writings of “the most highly qualified publicists.” These writings by these scholars are from “the most highly qualified publicists,” and are, therefore, a source of customary international law.
According to Professor Malcolm Shaw, “Because of the lack of supreme authorities and institutions in the international legal order, the responsibility is all the greater upon publicists of the various nations to inject an element of coherence and order into the subject as well as to question the direction and purposes of the rules.” Thus, Professor Shaw states, “academic writings are regarded as law-determining agencies, dealing with the verification of alleged rules.” This is consistent with how the U.S. Supreme Court views the writing of international scholars. In the Paquette Habana case, Supreme Court explained:
International law is part of our law, and must be ascertained and administered by the courts of justice of appropriate jurisdiction, as often as questions of right depending upon it are duly presented for their determination. For this purpose, where there is no treaty, and no controlling executive or legislative act or judicial decision, resort must be had to the customs and usages of civilized nations; and, as evidence of these, to the works of jurists and commentators, who by years of labor, research and experience, have made themselves peculiarly well acquainted with the subjects of which they treat. Such works are resorted to by judicial tribunals, not for the speculations of their authors concerning what the law ought to be, but for trustworthy evidence of what the law really is (emphasis added).
As a source of international law, the legal opinions establish a shift in the burden of proof. The presumption of State continuity shifts the burden of proof as to what is to be proven and by whom to rebut this presumption. Like the presumption of innocence, the accused does not prove their innocence, but rather the prosecution must prove, beyond a reasonable doubt, that person’s guilt. Likewise, the Hawaiian Kingdom need not prove its continued existence, but rather, the United States must prove, beyond a reasonable doubt, that it extinguished the Hawaiian Kingdom as a State under international law.
Without such proof the State of Hawai‘i is illegitimate. It would stand to reason that the United States would have rebutted these legal opinions but it cannot because there are no rules of customary international law that can substantiate the lawfulness of the American presence in the Hawaiian Islands, to include the State of Hawai‘i. The only rules of international law that would temporarily allow the presence of the United States is through its military under the law of occupation and the duty to establish a military government. This is explained by the Permanent Court of International Justice in the Lotus case, which was a dispute between France and Turkey. The Court stated::
Now the first and foremost restriction imposed by international law upon a State is that—failing the existence of a permissive rule to the contrary—it may not exercise its power in any form in the territory of another State. In this sense jurisdiction is certainly territorial; it cannot be exercised by a State outside its territory except by virtue of a permissive rule derived from international custom or from a convention [treaty].
Since returning from the international arbitration proceedings in Larsen v. Hawaiian Kingdom in the Netherlands in December of 2000, where the Permanent Court of Arbitration recognized the continued existence of the Hawaiian Kingdom as a State under international law, the Council of Regency focused its attention on exposing the continued existence of the Hawaiian Kingdom as an occupied State since January 17, 1893. The Regency also framed the exposure through international humanitarian law, the law of occupation, and the consequential war crimes that have and continue to be committed.
Under the law of occupation, the occupant of the occupying State, being the State of Hawai‘i, is obligated to protect the private rights of the Hawaiian citizenry. The occupant protects these rights by establishing a military government in order to administer the laws of the Hawaiian Kingdom. After unlawfully overthrowing the government of the Hawaiian Kingdom on January 17, 1893, the U.S. military did not follow this international rule.
Instead, the United States allowed their puppet, calling itself the provisional government, to unlawfully maintain control of the machinery of the Hawaiian Kingdom government. President Grover Cleveland told the Congress that the “provisional government owes its existence to an armed invasion by the United States.”
These insurgents changed their name, in 1894, to the so-called Republic of Hawai‘i. In 1898, at the height of the Spanish-American War, the United States merely enacted a federal law purporting to have annexed the Hawaiian Islands. This was all in violation of international law and the law of occupation. According to U.S. Army Field Manual 6-27 under the heading Limitations of Occupation:
6-24. Military occupation of enemy territory involves a complex, trilateral set of legal relations between the Occupying Power, the temporarily ousted sovereign authority, and the inhabitants of the occupied territory. Military occupation does not transfer sovereignty to the Occupying Power, but simply gives the Occupying Power the right to govern the enemy territory temporarily.
6-25. The fact of a military occupation does not authorize the Occupying Power to take certain actions. For example, the Occupying Power is not authorized by the fact of a military occupation to annex occupied territory or create a new State. Nor may the Occupying Power compel the inhabitants of occupied territory to become its nationals or otherwise swear allegiance to it.
Despite the United States own Army Field Manual that states, ‘the Occupying Power is not authorized by the fact of military occupation to annex occupied territory or create a new State,’ it is, in fact, what the United States did when it unilaterally annexed the Hawaiian Islands in 1898 and created the State of Hawai‘i and its Counties in 1959. While these acts are clearly violations of international humanitarian law and the law of occupation, it did not affect, nor did it alter the sovereignty of the Hawaiian Kingdom. These acts also did not change the legal status of the Hawaiian Kingdom as an occupied State, which the Permanent Court of Arbitration recognized on November 8, 1999, when international arbitration proceedings were initiated.
Instead, these unlawful acts set in motion for the commission of the war crime of usurpation of sovereignty during military occupation, which is the unlawful imposition of American laws and administrative measures of the occupying State over the territory of the occupied State. This war crime triggered secondary war crimes that include the war crime of compulsory enlistment; the war crime of denationalization; the war crime of confiscation or destruction of property; the war crime of deprivation of fair and regular trial; the war crime of deporting civilians of the occupied territory; and the war crime of transferring populations into an occupied territory.
Lieutenant Colonel Michael Rosner became the most senior officer in the Hawai‘i Army National Guard because of war crimes by omission committed by Major General Kenneth Hara-War Criminal Report no. 24-0001, Brigadier General Stephen Logan-War Criminal Report no. 24-0002, Colonel Wesley Kawakami-War Criminal Report no. 24-0003, Lieutenant Colonel Fredrick Werner-War Criminal Report no. 24-0004, Lieutenant Colonel Bingham Tuisamatatele, Jr.-War Criminal Report no. 24-0005, Lieutenant Colonel Joshua Jacobs-War Criminal Report no. 24-0006, and Lieutenant Colonel Dale Balsis-War Criminal Report no. 24-0007.
After they were made aware of war crimes being committed throughout the Hawaiian Islands, each of these Army commanders failed to put a stop to these war crimes. Although, each of these commanders did not commit the war of usurpation of sovereignty during military occupation themselves, they have criminal liability under the legal doctrine of command responsibility for war crimes because they did not establish a military government that would have brought these war crimes to an end. Under the law of occupation, as stated in U.S. Army Field Manual 27-5:
(1) Civil affairs/military government (CA/MG). CA/MG encompasses all powers exercised and responsibilities assumed by the military commander in an occupied or liberated area with respect to the lands, properties, and inhabitants thereof, whether such administration be in enemy, allied, or domestic territory. The type of occupation, whether CA or MG, is determined by the highest policy making authority. Normally, the type of occupation is dependent upon the degree of control exercised by the responsible military commander.
(2) Military government. The term “military government” as used in this manual is limited to and defined as the supreme authority exercised by an armed occupying force over the lands, properties, and inhabitants of an enemy, allied, or domestic territory. Military government is exercised when an armed force has occupied such territory, whether by force or agreement, and has substituted its authority for that of the sovereign or previous government. The right of control passes to the occupying force limited only by the rules of international law and established customs of war.
(3) Civil affairs. The term “civil affairs” as used in this manual is defined as the assumption by the responsible commander of an armed occupying force of a degree of authority less than the supreme authority assumed under military government, over enemy, allied, or domestic territory. The indigenous governments would be recognized by treaty, agreement, or otherwise as having certain authority independent of the military commander.
(4) Occupied territory. The term “occupied territory” as used in this manual means any area in which CA/MGis exercised by an armed occupying force. It does not include territory in which an armed force is located but has not assumed authority.
3. COMMAND RESPONSIBILITY. The theater commander bears full responsibility for CA/MG; therefore, he is usually designated as military governor or civil affairs administrator, but is authorized to delegate his authority and title, in whole or in part, to a subordinate commander. In occupied territory the commander, by virtue of his position, has supreme legislative, executive, and judicial authority, limited only by the laws and customs of war and by directives from higher authority.
4. REASON FOR ESTABLISHMENT. a. Reasons for the establishment of CA/MG are either military necessity as a right, or as an obligation under international law. b. Since the military occupation of enemy territory suspends the operation of the government of the occupied territory, the obligation arises under international law for the occupying force to exercise the functions of civil government looking toward restoration and maintenance of public order. These functions are exercised by CA/MG. An armed force in territory other than that of an enemy similarly has the duty of establishing CA/MG when the government of such territory is absent or unable to function properly.
LTC Rosner has found himself in a position not of his own making, but rather because of war crimes by omission committed by previous commanders under the Army doctrine of command responsibility for war crimes. As an Executive Officer for the 29th Infantry Brigade, he does not have the legal background to understand international law except what is in Army doctrine and regulations. He does, however, have a judge advocate (JAG) named Lieutenant Colonel Lloyd Phelps whose duty is to give legal advice to commanders, which LTC Rosner finds himself in.
As Major Michael Winn, a JAG, stated in his article 2022 article Command Responsibility for Subordinates’ War Crimes: A Twenty-First Century Primer that was published in vol. 2 of Army Lawyer, “In this era of increased focus on command responsibility for war crimes, legal advisors have an important role to play in helping their commanders prevent, stop, and punish such offenses. Accordingly, legal advisors keep their commanders on the high road of command responsibility.”
LTC Rosner has until November 28, 2024, to transform the State of Hawai‘i into a military government in accordance with U.S. Department of Defense Directive 5100.1, U.S. Army Field Manual 6-27—chapter 6, and the law of occupation. For LTC Rosner not to so, after being made aware of the commission of war crimes, he, like the commanders before him will be the subject of a war criminal report by the Royal Commission of Inquiry for the war crime by omission.
For LTC Rosner to not have criminal liability under the command responsibility for war crimes, LTC Phelps will need to show a legal basis, under customary international law, that the United States extinguished the Hawaiian Kingdom as a State. To do so, LTC Phelps will need to provide LTC Rosner an international treaty where the Hawaiian Kingdom ceded its sovereignty and territory to the United States. This he cannot do because there is no such treaty.
Today, November 11, 2024, Dr. Keanu Sai, as Head of the Royal Commission of Inquiry, sent a letter to Lieutenant Colonel Michael Rosner regarding the Army doctrine of command responsibility and his military duty to transform the State of Hawai‘i into a Military Government no later than November 28, 2024. Here is a link to the letter.
The Army doctrine of command responsibility for war crimes has its roots in World War II’s war criminal trials which came before U.S. military tribunals. In Japan, U.S. judges convicted General Tomoyuki Yamashita, and in Germany, convicted Field Marshal Wihelm List, and other German generals, under the theory of command responsibility, for their subordinates’ war crimes. In the Yamashita case, the U.S. Supreme Court affirmed the conviction, because as a commander of Japanese forces in the Philippines, General Yamashita was under an “affirmative duty to take such measures as were within his power and appropriate in the circumstances to protect prisoners of war and the civilian population.” In the occupied territory, General Yamashita was not only the theater commander but also its military governor. According to Major Parks in his 1973 law article Command Responsibility for War Crimes:
The value of the study of the Yamashita trial lies not in its often misstated facts nor in the legal doctrine of strict liability it purportedly espoused (but did not) , but in the legal conclusions it actually reached, Yamashita recognized the existence of an affirmative duty on the part of a commander to take such measures as are within his power and appropriate in the circumstances to wage war within the limitations of the laws of war, in particular exercising control over his subordinates; it established that the commander who disregards this duty has committed a violation of the law of war; and it affirmed the summum jus of subjecting an offending commander to trial by a properly constituted tribunal of a state other than his own. In the latter it became the foundation for all subsequent trials arising from World War II. In the former its value lies primarily in the general rather than the specific sense-while recognizing the duty of the commander and the violation of the law of war for failure to exercise that duty, the duty was all the more absolute in Yamashita because of General Yamashita’s additional responsibilities as military governor of the Philippines. As military governor, all trust, care, and confidence of the population were reposed in him. This was in addition to his duties and responsibilities as a military commander, a point refined in the High Command and Hostages cases which follow [in Germany].
In July 2020, the U.S. Army updated Army Regulation 600-20, Army Command Policy. In this new version, paragraph 4-24—Command responsibility under the law of war was added, which states:
Commanders are legally responsible for war crimes they personally commit, order committed, or know or should have known about and take no action to prevent, stop, or punish. In order to prevent law of war violations, commanders are required to take all feasible measures within their power to prevent or repress breaches of the law of war from being committed by subordinates or other persons subject to their control. These measures include requirements to train their Soldiers on the law of land warfare, investigate suspected or alleged violations, report violations of the law of war, and take appropriate corrective actions when violations are substantiated.
The doctrine of command responsibility has three elements: (1) there must be a superior-subordinate relationship; (2) the superior must have known or had reason to know that the subordinate was about to commit a crime or had committed a crime; and (3) the superior failed to take the necessary and reasonable measures to prevent the crime or to punish the perpetrator. Section 501 of U.S. Army Field Manual 27-10 states, the “commander is also responsible if he has actual knowledge, or should have knowledge, through reports received by him or through other means, that troops or other persons subject to his control are about to commit or have committed a war crime and he fails to take the necessary and reasonable steps to insure compliance with the law of war or to punish violators thereof.”
For Hawai‘i’s situation, the significance of the Yamashita case was the role and function of a military governor and the failure or omission of General Yamashita to stop war crimes being committed against the civilian population. Because as ‘military governor, all trust, care, and confidence of the population were reposed in him,’ he would also have had the duty to protect the civilian population from war crimes being committed by other civilians who were not in the Japanese military. In the same vein, the theater commander, of the occupied State of the Hawaiian Kingdom, would have the same duty to protect the civilian population from war crimes being committed by American civilians that are pretending to be the lawful government here.
You, and the commanders before you, were provided information that war crimes have and continue to be committed by the federal government, State of Hawai‘i, and the Counties. These war crimes are being committed by the imposition of American municipal laws and administrative measures within the territory of the Hawaiian Kingdom. This imposition of American laws constitutes the war crime of usurpation of sovereignty during military occupation under customary international law. This triggers secondary war crimes that include the war crime of compulsory enlistment; the war crime of denationalization; the war crime of confiscation or destruction of property; the war crime of deprivation of fair and regular trial; the war crime of deporting civilians of the occupied territory; and the war crime of transferring populations into an occupied territory.
You, and the commanders before you, were also provided legal opinions from scholars of international law in Europe, which are considered sources of customary international law, on the continuity of the Hawaiian Kingdom as a State under international law by Professor Matthew Craven from the University of London, SOAS, on the legitimacy of the Council of Regency by Professor Federico Lenzerini from the University of Siena, Italy, and on war crimes being committed in the Hawaiian Kingdom by Professor William Schabas from Middlesex University London. In his legal opinion, Professor Schabas directly cites Professor Craven’s legal opinion where he states:
This legal opinion is made at the request of the head of the Hawaiian Royal Commission of Inquiry, Dr. David Keanu Sai, in his letter of 28 May 2019, requesting of me “a legal opinion addressing the applicable international law, main facts and their related assessment, allegations of war crimes, and defining the material elements of the war crimes in order to identify mens rea and actus reus”. It is premised on the assumption that the Hawaiian Kingdom was occupied by the United States in 1893 and that it remained so since that time. Reference has been made to the expert report produced by Prof. Matthew Craven dealing with the legal status of Hawai‘i and the view that it has been and remains in a situation of belligerent occupation resulting in application of the relevant rules of international law, particularly those set out in the Hague Conventions of 1899 and 1907 and the fourth Geneva Convention of 1949. This legal opinion is confined to the definitions and application of international criminal law to a situation of occupation. The terms “Hawaiian Kingdom” and “Hawai‘i” are synonymous in this legal opinion.
Despite, the willful failure of the U.S. military, since January 17, 1893, to establish a military government in Hawai‘i, the occupant that is in effective control of the territory of the Hawaiian Kingdom, which is the State of Hawai‘i, not the federal government, still has the affirmative duty and obligation, under the law of occupation, to transform the State of Hawai‘i into a military government. By doing so, this will put a stop to the war crimes being committed with impunity under the Army doctrine of command responsibility. Failure to do so, places the criminal culpability, for the war crime by omission under the doctrine of command responsibility, on you just as it did upon General Yamashita.
As the U.S. Supreme Court held with General Yamashita, as a military governor, he had the ‘affirmative duty to take such measures as were within his power and appropriate in the circumstances to protect…the civilian population.’ Likewise, you as the theater commander, must become the military governor of Hawai‘i in order to put a stop to the war crimes being committed upon the civilian population whether they are aware that they are victims or not.
Thus, you have until November 28, 2024, to establish a military government or you will be the subject of a war criminal report for the war crime by omission. Lieutenant Colonel Phelps is your legal advisor, and, as such, should advise you on the veracity of this information that I have provided you and the commanders before you.