COUNCIL MEMBER JEN RUGGLES SAYS CORPORATION COUNSEL OPINION INADEQUATE ON CRIMINAL LIABILITY FOR WAR CRIMES

Says Opinion Does not Conform to the Rules of Professional Conduct and Legal Standards

Hilo, HI- Council member Jen Ruggles released a letter today in response to Corporation Counsel Joe Kamelamela’s opinion regarding possible criminal liability for war crimes. In a letter on Corporation Counsel letterhead dated August 22, 2018, Kamelamela’s answer consisted of two sentences stating, “we opine that you will not incur criminal liability under state, federal and international law. See Article VI, Constitution of the United States of America (international law cannot violate federal law).”

Council member Ruggles, stated that she had been advised by her attorney that Kamelamela’s answer was inconsistent with Rule 1.1 of the Hawai‘i Rules of Professional Conduct that applies to all licensed attorneys including government lawyers such as Corporation Counsel. The rule requires, “Competent handling of a particular matter [which] includes inquiry into and analysis of the factual and legal elements of the problem, and use of methods and procedures meeting the standards of competent practitioners.”

Last week Ruggles had sent a letter to Mr. Kamelamela requesting he assure her that she was not incurring criminal liability under international humanitarian law and United States Federal law as a Council member for legislating and being complicit in the collection of taxes, foreclosures, and criminal prosecutions that appeared to be in violation of the U.S. Constitution and international humanitarian law.

Ruggles said she had retained legal counsel, Stephen Laudig, to be sure that her concerns received proper consideration. She said her attorney had advised her to refrain from legislating until Mr. Kamelamela has assured her she was not incurring criminal liability for the alleged war crime of enacting American law within the occupied territory of the Hawaiian Kingdom. According to Black’s Law Dictionary, the legal definition of “assure” is to “make certain and put beyond all doubt.”

Ruggles said Laudig advised her that Kamelamela’s answer was a conclusory statement unsupported by any facts and analysis and not a legal opinion. Therefore, Laudig stated that Kamelamela’s “letter provides no analysis, or argument making it something other than a legal opinion in the sense that it marshals no facts or law to reach a reasoned position.”

Laudig also pointed out to Kamelamela that his statement that “international law cannot violate federal law”, was not a true statement. He went on to further state that Kamelamela’s statement was a similar conclusion made by U.S. Department of Justice Deputy Assistant Attorney General John Yoo in his now infamous legal opinion regarding Application of Treaties and Laws to al Qaeda and Taliban Detainees dated January 9, 2002. Like Council member Ruggles who is concerned of incurring criminal liability, the General Counsel for the U.S. Department of Defense was also concerned about the incurring of criminal liability under international treaties and federal laws on the treatment of individuals detained by the U.S. Armed Forces during the conflict in Afghanistan. Yoo’s conclusion in his legal opinion stated “that neither the federal War Crimes Act [18 U.S.C. §2441] nor the Geneva Conventions would apply.”

Laudig states to Kamelamela that “Yoo’s legal opinion was found to be flawed and allegations of war crimes against Yoo and those relying on his opinion, arose in Germany in 2006, Spain in 2009, and Russia in 2013. After the United States Senate Intelligence Committee Report on CIA torture was released in December 2014, Erwin Chemerinsky, who at the time was Dean of the University of California, Irvine School of Law, called for the prosecution of Yoo for his role in authoring, as well as co-authoring, what came to be known as the Torture Memos.”

Laudig cautioned Kamelamela as to how he should “answer Council member Ruggles’ inquiries, because she is not the only member of the County Council that could be affected by your legal opinion.”

Council member Ruggles’ attorney reminded Kamelamela that the Office of the Corporation Counsel is tasked with giving legal counsel on matters related to the official powers and duties of Council members. He reminded Kamelamela that her request was made in her official capacity seeking legal advice in order to assure her that she was not incurring criminal liability under international humanitarian law and United States Federal law as a Council member for:

1. Participating in legislation of the Hawai‘i County Council that would appear to be in violation of Article 43 of the Hague Regulations and Article 64 of the Geneva Convention where the laws of the Hawaiian Kingdom must be administered and not the laws of the United States;
2. Being complicit in the collection of taxes from protected persons that stem from legislation enacted by the Hawai‘i County Council, which would appear to be in violation of Article 28 and 47 of the Hague Regulations and Article 33 of the Geneva Convention where pillaging is prohibited;
3. Being complicit in the foreclosures of properties of protected persons for delinquent property taxes that stem from legislation enacted by the Hawai‘i County Council, which would appear to be in violation of Article 28 and 47 of the Hague Regulations and Article 33 of the Geneva Convention where pillaging is prohibited, as well as in violation of Article 46 of the Hague Regulations and Articles 50 and 53 of the Geneva Convention where private property cannot be confiscated; and
4. Being complicit in the criminal prosecution of protected persons for committing misdemeanors or felonies that stem from legislation enacted by the Hawai‘i County Council, which would appear to be in violation of 147 of the Geneva Convention where protected persons are prohibited from being unlawfully confined, and cannot be denied a fair and regular trial by a tribunal with competent jurisdiction.

Council member Ruggles stated that Corporation Counsel’s letter did not comply with her request for a legal opinion. Her attorney compared the quality of Kamelamela’s letter of the 22^nd  to a previous 5 page much more thorough opinion on a much simpler matter dated November 3, 2017 involving a grant she wanted to provide for a community center titled Orchidland Neighbors CRF Grant Follow-up that included sections on background, facts, analysis, and a conclusion. She says for this grant Kamelamela had provided a legal opinion that appeared to have met the standard of professional conduct and that she was anticipating a response of similar quality. She also referred to a 12-page opinion by Kamelamela’s predecessor, Lincoln Ashida, which also included facts, analysis, and a conclusion to then Council member Bob Jacobson dated May 26, 2004, regarding Article III, Section 3-2, Hawai‘i County Charter WRK. NO. 03-3641

During last week’s Council Committee meetings on August 21, 2018, Kamelamela admitted that he had not yet read her 9-page letter, and Ruggles says that she was taken aback by Kamelamela’s uninformed comments made, which insinuated she was involved with Native Hawaiian sovereignty groups and that is what had motivated her inquiry.

She stated Kamelamela’s comments “struck me as improper and not what I would expect from a professional tasked with the responsibilities of his office nor from an attorney speaking to an elected official in public.”

She went on to state:

“I represent my constituents from District 5, and swore to support and defend the U.S. Constitution. If Kamelamela had read the letter before voicing his opinion on my legitimate request, he would have clearly known that the native Hawaiian sovereignty movement is unrelated to the issue of potential liability for war crimes. The memorandum opinion of Dr. deZayas, was not from a sovereignty group, but from a United Nations Independent Expert. His use of the terms ‘plundering’, ‘enabling’, and ‘colluding’ are precise legal terms associated with criminal activity for violating the Hague and Geneva Conventions. I do not take this memorandum lightly, nor should he.”

In Laudig’s response to Kamelamela, he states, “This letter is in the nature of a follow up reminder and opportunity to provide what could be described as a ‘proper’ legal opinion which would include…meeting the standards of competent practitioners’ as the Hawai‘i Rules of Professional Conduct outlines.”

Ruggles says, “until Corporation Counsel provides her with a proper legal opinion responding to the statement of facts, consistent with the Hawaii Rules of Professional Conduct, and the legal definition of assurance that I am not incurring criminal liability under U.S. law and international law, which includes the 1907 Hague Regulations and the 1949 Geneva Convention, IV, I painfully regret I have been advised by my attorney that I must continue to refrain from legislating.”

Ruggles added, “I will be holding a townhall meeting on this issue shortly, and as always, welcome our constituents’ concerns, questions, and ideas on any issue. I am available to them and will continue to work hard in providing transparency and accountability in government.”

Click to download:

Council member Ruggles’ Letter to Corporation Counsel Joe Kamelamela, August 21, 2018

Corporation Counsel Joe Kamelamela’s Letter to Council Member Ruggles’ Letter, August 22, 2018

Council member Ruggles’ Response Letter to Corporation Counsel Joe Kamelamela, August 28, 2018

When the United States assumed control of its installed puppet regime under the new heading of Territory of Hawai‘i in 1900, and later the State of Hawai‘i in 1959, it surpassed “its limits under international law through extraterritorial prescriptions emanating from its national institutions: the legislature, government, and courts (Eyal Benvenisti, The International Law of Occupation (1993), p. 19).” The legislation of every state, including the United States of America and its Congress, are not sources of international law.

In The Lotus case, (1927 PCIJ Series A, No. 10, p. 18), the Permanent Court of International Justice stated that “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.” According to Judge Crawford, derogation of this principle will not be presumed (James Crawford, The Creation of States in International Law (2^nd ed., 2006), p. 41).

Since Congressional legislation has no extraterritorial effect, it cannot unilaterally establish governments in the territory of a foreign state. According to the U.S. Supreme Court, “[n]either the Constitution nor the laws passed in pursuance of it have any force in foreign territory unless in respect of our own citizens, and operations of the nation in such territory must be governed by treaties, international understandings and compacts, and the principles of international law (United States v. Curtiss Wright Export Corp., 299 U.S. 304, 318 (1936)).”

The U.S. Supreme Court also concluded that “[t]he laws of no nation can justly extend beyond its own territories except so far as regards its own citizens. They can have no force to control the sovereignty or rights of any other nation within its own jurisdiction (The Apollon, 22 U.S. 362, 370 (1824)).” Therefore, the State of Hawai‘i cannot claim to be a government as its only claim to authority derives from Congressional legislation that has no extraterritorial effect. As such, international law defines the State of Hawai‘i as an organized armed group.

According to Henckaerts and Doswald-Beck, Customary International Humanitarian Law, Vol. I (2009), p. 14, “organized armed groups … are under a command responsible to that party for the conduct of its subordinates.” They explain that “this definition of armed forces covers all persons who fight on behalf of a party to a conflict and who subordinate themselves to its command.” Article 1 of the 1907 Hague Convention, IV, states:

“The laws, rights, and duties of war apply not only to armies, but also to militia and volunteer corps fulfilling the following conditions: (1) To be commanded by a person responsible for his subordinates; (2) To have a fixed distinctive emblem recognizable at a distance; (3) To carry arms openly; and (4) To conduct their operations in accordance with the laws and customs of war.”

In 2013, State of Hawai‘i v. Kaulia, 128 Hawai‘i 479, 486 (2013), the State of Hawai‘i Supreme Court responded to a defendant who “contends that the courts of the State of Hawai‘i lacked subject matter jurisdiction over his criminal prosecution because the defense proved the existence of the Hawaiian Kingdom and the illegitimacy of the State of Hawai‘i government, with “whatever may be said regarding the lawfulness” of its origins, “the State of Hawai‘i … is now, a lawful government.” This is a bold statement to be made by the Supreme Court without providing any evidence of its lawfulness other than declaring its lawfulness.

From a standpoint of evidence, the jurisdiction of the State of Hawai‘i court stems from its lawfulness. This lawfulness, however, is allowed to be challenged by a defendant under Rule 12(b)(1) of the Hawai‘i Rules of Civil Procedure, which provides for a defendant to file a motion to dismiss based upon subject matter jurisdiction. In Nishitani v. Baker, 82 Haw. 281, 289 (1996), the State of Hawai‘i Intermediate Court of Appeals (ICA) stated,

“that although the governments of the State of Hawaii and the United States had recently acknowledged the illegality of the overthrow of the Kingdom, neither recognizes that the Kingdom exists at the present time (citations omitted).  Because the defendant had ‘presented no factual (or legal) basis for concluding that the Kingdom exists as a state in accordance recognized attributes of a state’s sovereign nature,’ we determined that the defendant had failed to meet his burden under HRS ß 701-115(2) (1993) of proving his defense of lack of jurisdiction. … [And] where immunity claims are raised as a defense to jurisdiction, the burden is on the defendant to establish his immunity status.”

The citation by the ICA of HRS ß 701-115(2) states, “No defense may be considered by the trier of fact unless evidence of the specified fact or facts has been presented.” In other words, it is incumbent on the defendant to present the evidence if he is challenging the jurisdiction of the court. In Kaulia, there was no evidentiary hearing by the trial court because the trial court denied Kaulia his right to present ‘specified fact or facts” that conclude “the Kingdom exists as a state in accordance recognized attributes of a state’s sovereign nature.”

Kaulia’s attorney sought to have Dr. Keanu Sai serve as an expert witness. Dr. Sai had been admitted in both criminal and civil proceedings as an expert witness on the continued existence of the Hawaiian Kingdom as a State under international law.

“[O]n March 15, 2010, Kaulia filed a Motion to Dismiss Complaint (Motion to Dismiss) challenging the court’s jurisdiction over the case based on the existence of the Kingdom of Hawai‘i (Kingdom). At the hearing on the Motion to Dismiss, the court confirmed that in off-the-record conferences it had denied Kaulia’s request for an evidentiary hearing to call witnesses, including one Dr. Keanu Sai, to establish the existence of the Kingdom. The court then denied Kaulia’s Motion to Dismiss.” State of Hawai‘i v. Kaulia,128 Haw. 479, 482 (2013).

On appeal, the ICA held that “[t]he Circuit Court did not err in precluding Kaulia from calling a witness to present evidence concerning the Kingdom of Hawai‘i in support of his motion to dismiss case for lack of jurisdiction (State of Hawai‘i v. Kaulia, 127 Haw. 414 (2012),” despite the ICA’s previous decision in State of Hawai‘i v. Lorenzo, 77 Haw. 219, 221 (1994), that “it was incumbent on Defendant to present evidence supporting his claim…that the Kingdom exists as a state in accordance with recognized attributes of a state’s sovereign nature.” According to The American Heritage Dictionary (2^nd ed., 1982),  the term ‘incumbent’ is defined as “[i]mposed as an obligation or duty; obligatory.” Legally, the phrase ‘incumbent on’ means “mandatory, obligatory, requisite (William C. Burton, Legal Thesaurus 754 (2^nd ed., 1992)).”

Like the ICA, the Supreme Court in blatant disregard of the ICA cases of Lorenzo and Baker, “rejected Kaulia’s argument that the circuit court erred in precluding Kaulia from calling a witness to present evidence concerning the existence of the Kingdom in support of his Motion to Dismiss (State of Hawai‘i v. Kaulia, 128 Haw. 479, 487 (2013)).”

The irony of this whole matter is that the Supreme Court cited Lorenzo and Baker as its basis to deny Kaulia’s argument, which is that “it was incumbent on Defendant to present evidence supporting his claim…that the Kingdom exists as a state.” The decisions by the Circuit Court, ICA and Supreme Court in Kaulia clearly run counter to HRS ß 701-115(2). According to this flawed logic, so long as the trier of fact (judge) can prevent the defense from presenting “evidence of the specified fact or facts” it does not need to consider it. Prosecutors and plaintiff’s attorneys now cite State of Hawai‘i v. Kaulia as the precedent case to deny defendants’ motions to dismiss. This is a feeble attempt to close the door that they opened in 1994 in State of Hawai‘i v. Lorenzo.

The State of Hawai‘i courts have established an echo chamber to shield themselves from the precedence set by the courts themselves in Lorenzo and Baker. The term echo chamber is “widely used in today’s lexicon, that describes a situation where certain ideas, beliefs or data points are reinforced through repetition of a closed system that does not allow for the free movement of alternative or competing ideas or concepts.” As Mohajer, The Little Book of Stupidity: How We Lie to Ourselves and Don’t Believe Others 20, 7 (2015), wrote:

“The confirmation bias is so fundamental to [our] development and [our] reality that you might not even realize it is happening. We look for evidence that supports our beliefs and opinions about the world but excludes those that run contrary to our own… In an attempt to simplify the world and make it conform to our expectations, we have been blessed with the gift of cognitive biases.”

While this game of hide and seek is being played out by the State of Hawai‘i judiciary, these actions constitute violations of the 1907 Hague and the 1949 Geneva Conventions, which have been codified by the Congress under 18 U.S.C. §2441—War crimes.

The United Nations Independent Expert, Dr. Alfred M. deZayas notified the State of Hawai‘i judiciary to not “plunder…enable or collude.” Plunder is another word for the war crime of pillaging, which is prohibited under Article 28 of the 1907 Hague Convention, IV, 18 U.S.C. §2441(c)(2). To deny a person of a fair and regular trial is also a war crime under Article 147 of the 1949 Geneva Convention, IV, 18 U.S.C. §2441(c)(2). The terms enable and collude are terms associated with conspiring to commit war crimes.

Today marks 125 years of an Unjust War waged against the Hawaiian Kingdom by the United States of America. This profound and fundamental fact has been obscured through a deliberate and relentless barrage of denationalization by the United States.

This process, which is known as Americanization and which is a war crime, has nearly obliterated the national consciousness of the Hawaiian Kingdom in the minds of Hawai‘i’s people, and by extension, the international community. Samuel Damon, an insurrectionist and traitor to Hawai‘i, stated in 1895, “If we are ever to have peace and annexation the first thing to do is to obliterate the past.” Damon also served as Trustee for the Kamehameha Schools from 1884-1909.

The key to understanding the prolonged and unjust war between the Hawaiian Kingdom and the United States is to begin with the legal status of the Hawaiian Kingdom under international law. Since war, whether just or unjust, is regulated by international law, the Hawaiian Kingdom would need to have been an independent State prior to the American invasion on January 16, 1893. As an independent State it would have been a subject of international law, and, therefore, international law would be the lens through which to interpret the invasion as well as determining whether or not an unjust war was triggered.

The Hawaiian Kingdom as an Independent State

In 2001, the Permanent Court of Arbitration’s arbitral tribunal, in Larsen v. Hawaiian Kingdom, declared “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 terms State and Country are synonymous.

As an independent State, the Hawaiian Kingdom entered into extensive treaty relations with a variety of States establishing diplomatic relations and trade agreements. The Hawaiian Kingdom entered into three treaties with the United States: 1849 Treaty of Friendship, Commerce and Navigation; 1875 Commercial Treaty of Reciprocity; and 1883 Convention Concerning the Exchange of Money Orders. In 1893 there were only 44 independent and sovereign States, which included the Hawaiian Kingdom, as compared to 197 today.

On January 1, 1882, it joined the Universal Postal Union. Founded in 1874, the UPU was a forerunner of the United Nations as an organization of member States. Today the UPU is presently a specialized agency of the United Nations.

By 1893, the Hawaiian Kingdom maintained over ninety Legations and Consulates throughout the world. In the United States of America, the Hawaiian Kingdom manned a diplomatic post called a legation in Washington, D.C., which served in the same function as an embassy today, and consulates in the cities of New York, San Francisco, Philadelphia, San Diego, Boston, Portland, Port Townsend and Seattle. The United States manned a legation in Honolulu, and consulates in the cities of Honolulu, Hilo, Kahului and Mahukona.

“Traditional international law was based upon a rigid distinction between the state of peace and the state of war (p. 45),” says Judge Greenwood in his article “Scope of Application of Humanitarian Law” in The Handbook of the International Law of Military Occupations (2nd ed., 2008), “Countries were either in a state of peace or a state of war; there was no intermediate state (Id.).” This is also reflected by the fact that the renowned jurist of international law, Professor Lassa Oppenheim, separated his treatise on International Law into two volumes, Vol. I—Peace, and Vol. II—War and Neutrality.

Presidential Investigation of the Overthrow of the Hawaiian Government

On January 16, 1893, United States troops invaded the Hawaiian Kingdom without just cause, which led to a conditional surrender by the Hawaiian Kingdom’s executive monarch, Her Majesty Queen Lili‘uokalani, the following day. Her conditional surrender read:

“I, Liliuokalani, by the grace of God and under the constitution of the Hawaiian Kingdom, Queen, do hereby solemnly protest against any and all acts done against myself and the constitutional Government of the Hawaiian Kingdom by certain persons claiming to have established a provisional government of and for this Kingdom.

That I yield to the superior force of the United States of America, whose minister plenipotentiary, His Excellency John L. Stevens, has caused United States troops to be landed at Honolulu and declared that he would support the said provisional government.

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

In response to the Queen’s conditional surrender of her authority, President Grover Cleveland initiated an investigation on March 11, 1893, with the appointment of Special Commissioner James Blount whose duty was to “investigate and fully report to the President all the facts [he] can learn respecting the condition of affairs in the Hawaiian Islands, the causes of the revolution by which the Queen’s Government was overthrown, the sentiment of the people toward existing authority, and, in general, all that can fully enlighten the President touching the subjects of [his] mission (p. 1185).” After arriving in the Hawaiian Islands, he began his investigation on April 1, and by July 17, the fact-finding investigation was complete with a final report. Secretary of State Walter Gresham was receiving periodic reports from Special Commissioner Blount and was preparing a final report to the President.

On October 18, 1893, Secretary of State Gresham reported to the President, the “Provisional Government was established by the action of the American minister and the presence of the troops landed from the Boston, and its continued existence is due to the belief of the Hawaiians that if they made an effort to overthrow it, they would encounter the armed forces of the United States.” He further stated that the “Government of Hawaii surrendered its authority under a threat of war, until such time only as the Government of the United States, upon the facts being presented to it, should reinstate the constitutional sovereign, and the Provisional Government was created ‘to exist until terms of union with the United States of America have been negotiated and agreed upon (p. 462).’” Gresham then concluded, “Should not the great wrong done to a feeble but independent State by an abuse of the authority of the United States be undone by restoring the legitimate government? Anything short of that will not, I respectfully submit, satisfy the demands of justice (p. 463).”

Investigation Concludes United States Committed Acts of War against the Hawaiian Kingdom

One month later, on December 18, 1893, the President proclaimed by manifesto, in a message to the United States Congress, the circumstances for committing acts of war against the Hawaiian Kingdom that transformed a state of peace to a state of war on January 16, 1893. Black’s Law Dictionary defines a war manifesto as a “formal declaration, promulgated…by the executive authority of a state or nation, proclaiming its reasons and motives for…war.” And according to Professor Oppenheim in his seminal publication, International Law, vol. 2 (1906), a “war manifesto may…follow…the actual commencement of war through a hostile act of force (p. 104).”

Addressing the unauthorized landing of United States troops in the capital city of the Hawaiian Kingdom, President Cleveland stated, “on the 16th day of January, 1893, between four and five o’clock in the afternoon, a detachment of marines from the United States steamer Boston, with two pieces of artillery, landed at Honolulu. The men, upwards of 160 in all, were supplied with double cartridge belts filled with ammunition and with haversacks and canteens, and were accompanied by a hospital corps with stretchers and medical supplies (p. 451).”

President Cleveland ascertained that this “military demonstration upon the soil of Honolulu was of itself an act of war, unless made either with the consent of the Government of Hawaii or for the bona fide purpose of protecting the imperiled lives and property of citizens of the United States. But there is no pretense of any such consent on the part of the Government of the Queen, which at that time was undisputed and was both the de facto and the de jure government. In point of fact the existing government instead of requesting the presence of an armed force protested against it (p. 451).” He then stated, “a candid and thorough examination of the facts will force the conviction that the provisional government owes its existence to an armed invasion by the United States (p. 454).”

“War begins,” says Professor Wright in his article “Changes in the Conception of War,” American Journal of International Law, vol. 18 (1924), “when any state of the world manifests its intention to make war by some overt act, which may take the form of an act of war (p. 758).” According to Professor Hall in his book International Law (4th ed., 1895), the “date of the commencement of a war can be perfectly defined by the first act of hostility (p. 391).”

The President also determined that when “our Minister recognized the provisional government the only basis upon which it rested was the fact that the Committee of Safety had in the manner above stated declared it to exist. It was neither a government de facto nor de jure (p. 453).” He unequivocally referred to members of the so-called Provisional Government as insurgents, whereby he stated, and “if the Queen could have dealt with the insurgents alone her course would have been plain and the result unmistakable. But the United States had allied itself with her enemies, had recognized them as the true Government of Hawaii, and had put her and her adherents in the position of opposition against lawful authority. She knew that she could not withstand the power of the United States, but she believed that she might safely trust to its justice.” He then concluded that by “an act of war, committed with the participation of a diplomatic representative of the United States and without authority of Congress, the Government of a feeble but friendly and confiding people has been overthrown (p. 456).”

“Act of hostility unless it be done in the urgency of self-preservation or by way of reprisals,” according to Hall, “is in itself a full declaration of intent [to wage war] (p. 391).” According to Professor Wright in his article “When does War Exist,” American Journal of International Law, vol. 26(2) (1932), “the moment legal war begins…statutes of limitation cease to operate (p. 363).” He also states that war “in the legal sense means a period of time during which the extraordinary laws of war and neutrality have superseded the normal law of peace in the relations of states (Id.).”

Unbeknownst to the President at the time he delivered his message to the Congress, a settlement, through executive mediation, was reached between the Queen and United States Minister Albert Willis in Honolulu. The agreement of restoration, however, was never implemented. Nevertheless, President Cleveland’s manifesto was a political determination under international law of the existence of a state of war, of which there is no treaty of peace. More importantly, the President’s manifesto is paramount and serves as actual notice to all States of the conduct and course of action of the United States. These actions led to the unlawful overthrow of the government of an independent and sovereign State. When the United States commits acts of hostilities, the President, says Associate Justice Sutherland in his book Constitutional Power and World Affairs (1919), “possesses sole authority, and is charged with sole responsibility, and Congress is excluded from any direct interference (p. 75).”

According to Representative Marshall, before he became Chief Justice of the U.S. Supreme Court, in his speech in the House of Representatives in 1800, the “president is the sole organ of the nation in its external relations, and its sole representative with foreign nations. Of consequence, the demand of a foreign nation can only be made of him (Annals of Congress, vol. 10, p. 613).” Professor Wright in his book The Control of American Foreign Relations (1922), goes further and explains that foreign States “have accepted the President’s interpretation of the responsibilities [under international law] as the voice of the nation and the United States has acquiesced (p. 25).”

Despite the unprecedented prolonged nature of the illegal occupation of the Hawaiian Kingdom by the United States, the Hawaiian State, as a subject of international law, is afforded all the protection that international law provides. “Belligerent occupation,” concludes Judge Crawford in his book The Creation of States in International Law (2nd ed., 2006), “does not affect the continuity of the State, even where there exists no government claiming to represent the occupied State (p. 34).” Without a treaty of peace, the laws of war and neutrality would continue to apply.

The term “war crimes” was not coined until 1919 after the First World War ended in Europe. A common misunderstanding is that individuals whose criminal conduct constituted a war crime could only be prosecuted if that conduct arose after 1919. This is not the case because under the principles of international law, war crimes could have been committed since, at least, 1874, when delegates of fifteen European States gathered in Brussels, Belgium, at the request of Russia’s Czar Alexander II, in order to draft an international agreement concerning the laws and customs of war.

Among these fifteen States an agreement was made, but it wasn’t ratified by these States. It did, however, lead to the adoption of the Manual of the Laws and Customs of War at Oxford in 1880. Both the Brussels Declaration and the Oxford Manual formed the basis of the two Hague Conventions of 1899 and 1907.

At the Peace Conference held in The Hague, Netherlands in 1899, countries from across the world met in order to codify what was already accepted as customary international law regarding the rules of warfare and occupation, which is known today as international humanitarian law. The cornerstone of international humanitarian law during the occupation of a State is the duty of the occupying State to administer the laws of the occupied State, which is reflected in Article 43 of the 1899 Hague Convention, II.

Article 43 states, “The authority of the legitimate power having actually passed into the hands of the occupant, the latter shall take all steps in his power to re-establish and insure, as far as possible, public order and safety, while respecting, unless absolutely prevented, the laws in force in the country.” This article is a combination of Article 2, “The authority of the legitimate Power being suspended and having in fact passed into the hands of the occupants, the latter shall take all the measures in his power to restore and ensure, as far as possible, public order and safety,” and Article 3, “With this object he shall maintain the laws which were in force in the country in time of peace, and shall not modify, suspend or replace them unless necessary,”  of the 1874 Brussels Declaration. The Brussels Declaration was referenced in the Preamble of the 1899 Hague Convention, II. Article 43 was restated in the 1907 Hague Convention, IV.

Although the United States signed and ratified both the 1899 and the 1907 Hague Regulations, which post-date the occupation of the Hawaiian Islands, the “text of Article 43,” according to Benvenisti, author of The International Law of Occupation (1993), p. 8, “was accepted by scholars as mere reiteration of the older law, and subsequently the article was generally recognized as expressing customary international law.” Graber, author of The Development of the Law of Belligerent Occupation: 1863-1914 (1949), p. 143, also states, that “nothing distinguishes the writing of the period following the 1899 Hague code from the writing prior to that code.”

As an occupying State, the United States was obligated to establish a military government, whose purpose would be to provisionally administer the laws of the occupied State—the Hawaiian Kingdom—until a treaty of peace or agreement to terminate the occupation has been done. According to United States Army Field Manual 27-10 (1956), sec. 362, “Military government is the form of administration by which an occupying power exercises governmental authority over occupied territory.” The administration of occupied territory is set forth in the Hague Regulations, being Section III of the 1907 HC IV. According to Schwarzenberger, author of “The Law of Belligerent Occupation: Basic Issues,” 30 Nordisk Tidsskrift Int’l Ret (1960), p. 11, “Section III of the Hague Regulations … was declaratory of international customary law.”

Also, consistent with what was generally considered the international law of occupation in force at the time of the Spanish-American War, the “military governments established in the territories occupied by the armies of the United States were instructed to apply, as far as possible, the local laws and to utilize, as far as seemed wise, the services of the local Spanish officials (Munroe Smith, “Record of Political Events,” 13(4) Political Science Quarterly (1898), 745, p. 748).”

Many other authorities also viewed the 1907 Hague Regulations as mere codification of customary international law, which was applicable at the time of the overthrow of the Hawaiian government and subsequent occupation. These include: Gerhard von Glahn, The Occupation of Enemy Territory: A Commentary on the Law and Practice of Belligerent Occupation (1957), 95; David Kretzmer, The Occupation of Justice: The Supreme Court of Israel and the Occupied Territories (2002), 57; Ludwig von Kohler, The Administration of the Occupied Territories, vol. I, (1942) 2; United States Judge Advocate General’s School Tex No. 11, Law of Belligerent Occupation (1944), 2 (stating that “Section III of the Hague Regulations is in substance a codification of customary law and its principles are binding signatories and non-signatories alike”).

The contracting States to the 1899 Hague Convention, II, also recognized that they were codifying existing customary international law and not creating new law. In its Preamble, it states, “Until a more complete code of the laws of war is issued, the High Contracting Parties think it right to declare that in cases not included in the Regulations adopted by them, populations and belligerents remain under the protection and empire of the principles of international law, as they result from the usages established between civilized nations, from the laws of humanity, and the requirements of the public conscience.” This particular provision of the Preamble has come to be known as the Martens clause. Professor von Martens was the Russian delegate at the 1899 Hague Peace Conference, that recommended this provision be placed in the Preamble after the delegates were unable to agree on the status of civilians who took up arms against the occupying State.

The Commission on the Responsibility of the Authors of the War and on Enforcement of Penalties was established at the Paris Peace Conference in 1919 after World War I. Its role was to investigate the allegations of war crimes and recommend who should be prosecuted. In its report (Pamphlet No. 32, p. 18), the Commission identified 32 war crimes, two of which were “usurpation of sovereignty during military occupation” and “attempts to denationalise the inhabitants of occupied territory.”

Although these crimes were not specifically identified in 1899 Hague Convention, II, or the 1907 Hague Convention, IV, the Commission relied solely on the Martens clause in the 1899 Hague Convention, II. In other words, the Commission concluded that the war crimes of “usurpation of sovereignty during military occupation” and “attempts to denationalise the inhabitants of occupied territory” were recognized under principles of international law since at least the 1874 Brussels Declaration.

Under the war crime of usurpation of sovereignty during military occupation, the Commission concluded that from 1915-1918, Bulgaria engaged in criminal conduct when it “Proclaimed that the Serbian State no longer existed, and that Serbian territory had become Bulgarian,” and that “official orders show efforts of Bulgarisation (Pamphlet No. 32, p. 38).” The Commission also concluded Bulgaria committed the following acts of usurpation of sovereignty:

• Serbian law, courts, and administration ousted
• Taxes collected under Bulgarian fiscal regime
• Serbian currency suppressed
• Public property removed or destroyed, including books, archives and MSS (g., from the National Library, the University Library, Serbian Legation at Sofia, French Consulate at Uskub)
• Prohibited sending Serbian Red Cross to occupied Serbia

The Commission also concluded that Austrian and German authorities also engaged in the following criminal conduct of usurpation of sovereignty during military occupation from 1915 to 1918 during the occupation of Serbia (Pamphlet No. 32, p. 38).

• The Austrians suspended many Serbian laws and substituted their own, especially in penal matters, in procedure, judicial reorganization, &c.
• Museums belonging to the State (g., Belgrade, Detchani) were emptied and the contents taken to Vienna

Under the war crime of attempts to denationalize the inhabitants of occupied territory, the Commission concluded that from 1915-1918, Bulgaria engaged in the following criminal conduct in occupied Serbia (Pamphlet No. 32, p. 39).

• Efforts to impose their national characteristics on the population
• Serbian language forbidden in private as well as official relations
• People beaten for saying “Good morning” in Serbian
• Inhabitants forced to give their names a Bulgarian form
• Serbian books banned—were systematically destroyed
• Archives of churches and law courts destroyed
• Schools and churches closed, sometimes destroyed
• Bulgarian schools and churches substituted—attendance at school made compulsory
• Population forced to be present at Bulgarian national solemnities

The Commission also concluded that Austrian and German authorities also engaged in the following criminal conduct of attempts to denationalize the inhabitants of occupied territory from 1915 to 1918 during the occupation of Serbia (Pamphlet No. 32, p. 39).

• Austrians and Germans interfered with religious worship, by deportation of priests and requisition of churches for military purposes
• Interfered with use of Serbian language

The prosecution of German officials and their Allies for war crimes committed during World War I, however, was dismal. Of 5,000 individuals reported for war crimes only 12 were tried and 6 were convicted. Despite this failure, it was the beginning of imposing criminal liability on individuals for violations of international law that eventually became firmly grounded after the Second World War, which led to war crimes legislation in countries who were contracting parties to the 1949 Geneva Conventions, and also the establishment of the International Criminal Court.

Under the principles of international law, officials of the United States were capable of committing war crimes when the Hawaiian Kingdom was first invaded on January 16, 1893 and occupied since January 17 when the Hawaiian government was unlawfully seized. The criminal conduct committed by German, Austrian and Bulgarian officials against Serbia and its people during the First World War (1914-1918) are very similar to the criminal conduct by the United States since January 16, 1893 against the Hawaiian Kingdom and its people.

The International Commission of Inquiry in Incidents of War Crimes in the Hawaiian Islands—The Larsen Case that stems from the Larsen v. Hawaiian Kingdom arbitration held at the Permanent Court of Arbitration from 1999-2001, will be holding its first hearing on the grounds of ‘Iolani Palace at the Kana‘ina Building on January 16 and 17, 2018.

The hearing will be closed to the public, but the proceedings will be live streamed on the Internet. At the core of these proceedings will be the unlawful imposition of American laws that led to the unfair trial, unlawful confinement and pillaging of Lance Paul Larsen, a Hawaiian subject and victim of war crimes committed against him by the United States through its armed force—the State of Hawai‘i. These war crimes were committed in 1999.

These two days will mark 125 years of the American invasion of the Hawaiian Kingdom on January 16th and the conditional surrender of the Hawaiian government by Queen Lili‘uokalani on January 17th calling upon the President of the United States to investigate the unlawful actions taken by its diplomat who ordered the landing of U.S. troops. While in the Palace, the Queen drafted the following conditional surrender to the United States:

After investigating the overthrow of the Hawaiian government, President Cleveland notified Congress on December 18, 1893, that the “military demonstration upon the soil of Honolulu was of itself an act of war.” Cleveland noted “that on the 16th day of January, 1893, between four and five o’clock in the afternoon, a detachment of marines from the United States steamer Boston, with two pieces of artillery, landed at Honolulu. The men, upwards of 160 in all, were supplied with double cartridge belts filled with ammunition and with haversacks and canteens, and were accompanied by a hospital corps with stretchers and medical supplies.” He then concluded that by “an act of war, committed with the participation of a diplomatic representative of the United States and without authority of Congress, the Government of a feeble but friendly and confiding people has been overthrown.”

Under international law, when a Head of State concludes that an act of war was committed by its military on foreign soil it changes the state of affairs from a state of peace to a state of war. According to McDougal and Feliciano, authors of “The Initiation of Coercion: A Multi-temporal Analysis,” 52 American Journal of International Law (1958) p. 247, a state of war “automatically brings about the full operation of all the rules of war and neutrality.” And, according to Venturini, author of “The Temporal Scope of Application of the Conventions,” in Andrew Clapham, Paola Gaeta, and Marco Sassòli (eds), The 1949 Geneva Conventions: A Commentary (2015), p. 52, if “an armed conflict occurs, the law of armed conflict must be applied from the beginning until the end, when the law of peace resumes in full effect.”

Koman, author of The Right of Conquest: The Acquisition of Territory by Force in International Law and Practice (1996), p. 224, states that “the laws of war … continue to apply in the occupied territory even after the achievement of military victory, until either the occupant withdraws or a treaty of peace is concluded which transfers sovereignty to the occupant.” In the Tadić case, decision on the Defense Motion for Interlocutory Appeal on Jurisdiction (Appeals Chamber), October 2, 1995, §70, the International Criminal Court for the Former Yugoslavia indicated that the laws of war—international humanitarian law—applies from “the initiation of … armed conflicts and extends beyond the cessation of hostilities until a general conclusion of peace is reached.”

The political determination by President Cleveland, regarding the actions taken by the military forces of the United States since January 16, 1893, was the same as the political determination by President Roosevelt regarding actions taken by the military forces of Japan on December 7, 1945 in its attack of Pearl Harbor. On December 8, 1941, President Roosevelt notified Congress:

“Yesterday, December 7th, 1941—a date which will live in infamy—the United States of America was suddenly and deliberately attacked by naval and air forces of the Empire of Japan. The United States was at peace with that nation… [and] since the unprovoked and dastardly attack by Japan on Sunday, December 7th, 1941, a state of war has existed between the United States and the Japanese Empire.”

Both political determinations by these Presidents created a “state of war” for the United States under international law. Japan entered into a peace treaty in 1951, which came into effect the following year. However, there is no treaty of peace between the Hawaiian Kingdom and the United States. Consequently, the United States was bound by customary international law to administer the laws of the Hawaiian Kingdom until a peace treaty has been negotiated. After Japan signed a treaty of surrender in 1945, the United States occupied Japan until 1952 whereby a military government was formed, with General MacArthur as its military governor, and who administered Japanese law and not American law.

The deliberate failure by the United States to administer Hawaiian Kingdom law has led to the unlawful imposition of American laws in the Hawaiian Kingdom that formed the basis of the dispute between Lance Larsen, a Hawaiian subject, and the Provisional Government of the Hawaiian Kingdom in Larsen v. Hawaiian Kingdom at the Permanent Court of Arbitration, The Hague, Netherlands. The unlawful imposition of American laws within Hawaiian territory is the war crime of “usurpation of sovereignty” of the occupied State. And the failure to comply with the law of occupation in the administration of Hawaiian Law according to Article 43 of the 1907 Hague Convention, IV, is a war crime as well.

Professor William Schabas is the final commissioner to be appointed as a member of the International Commission of Inquiry in Incidents of War Crimes in the Hawaiian Islands—The Larsen Case that stems from the Larsen v. Hawaiian Kingdom arbitration held at the Permanent Court of Arbitration from 1999-2001. Professor Schabas was appointed by the Provisional Government of the Hawaiian Kingdom and Dexter Kaiama, attorney for Lance Larsen, on October 14, 2017.

The Commission of Inquiry has been duly constituted which comprises of Professor Schabas from Middlesex University London and the University of Leiden, Professor Pierre D’Argent from the  University of Louvain and Professor Jean d’Aspremont from the University of Manchester.

In these proceedings, the Provisional Government of the Hawaiian Kingdom is represented by Dr. Keanu Sai, as Agent, Professor Federico Lenzerini, Ph.D., as Deputy-Agent, and Ben Emmerson, QC, from the Matrix Chambers in London, as Counsel.

William Schabas is professor of international law at Middlesex University in London. He is also professor of international criminal law and human rights at the University of Leiden. Professor Schabas is also emeritus professor of human rights law at the National University of Ireland Galway and honorary chairman of the Irish Centre for Human Rights, invited visiting scholar at the Paris School of International Affairs (Sciences Politiques), honorary professor at the Chinese Academy of Social Sciences in Beijing, visiting fellow of Kellogg College of the University of Oxford, visiting fellow of Northumbria University, and professeur associé at the Université du Québec à Montréal. Prof. Schabas is a ‘door tenant’ at the chambers of 9 Bedford Row, in London.

Professor Schabas holds BA and MA degrees in history from the University of Toronto and LLB, LLM and LLD degrees from the University of Montreal, as well as honorary doctorates in law from several universities. He is the author of more than twenty books dealing in whole or in part with international human rights law, including: The Universal Declaration of Human Rights: travaux préparatoires (Cambridge: Cambridge University Press, 2013); Unimaginable Atrocities, Justice, Politics and Rights at the War Crimes Tribunals (Oxford: Oxford University Press, 2012), The International Criminal Court: A Commentary on the Rome Statute (Oxford: Oxford University Press, 2010), Introduction to the International Criminal Court (Cambridge: Cambridge University Press, 2011, 4^th ed.), Genocide in International Law (Cambridge: Cambridge University Press, 2^nd ed., 2009) and The Abolition of the Death Penalty in International Law (Cambridge, Cambridge University Press, 2003, 3^rd ed.). He has also published more than 350 articles in academic journals, principally in the field of international human rights law and international criminal law. His writings have been translated into Russian, German, Spanish, Portuguese, Chinese, Japanese, Arabic, Persian, Turkish, Nepali and Albanian.

Professor Schabas is editor-in-chief of Criminal Law Forum, the quarterly journal of the International Society for the Reform of Criminal Law.He is President of the Irish Branch of the International Law Association and chair of the International Institute for Criminal Investigation. From 2002 to 2004 he served as one of three international members of the Sierra Leone Truth and Reconciliation Commission. Professor Schabas has worked as a consultant on capital punishment for the United Nations Office of Drugs and Crime, and drafted the 2010 and 2015 reports of the Secretary-General on the status of the death penalty.

Professor Schabas was named an Officer of the Order of Canada in 2006. He was elected a member of the Royal Irish Academy in 2007. He has been awarded the Vespasian V. Pella Medal for International Criminal Justice of the Association internationale de droit pénal, and the Gold Medal in the Social Sciences of the Royal Irish Academy.

The Commission of Inquiry will hold its first hearing in Honolulu on January 16 and 17, 2018, which marks the 125th year of the United States’ invasion on the 16th, the illegal overthrow of the Hawaiian government on the 17th, and the ensuing prolonged occupation since. According to Article III of the Special Agreement to form an International Commission of Inquiry:

“The Commission is requested to determine: First, what is the function and role of the Government of the Hawaiian Kingdom in accordance with the basic norms and framework of international humanitarian law; Second, what are the duties and obligations of the Government of the Hawaiian Kingdom toward Lance Paul Larsen, and, by extension, toward all Hawaiian subjects domiciled in Hawaiian territory and abroad in accordance with the basic norms and framework of international humanitarian law; and, Third, what are the duties and obligations of the Government of the Hawaiian Kingdom toward Protected Persons who are domiciled in Hawaiian territory and those Protected Persons who are transient in accordance with the basic norms and framework of international humanitarian law.”