Category Archives: International Law

International Commission of Inquiry Proceedings Initiated at The Hague

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On January 19, 2017, the Hawaiian Kingdom Government and Lance Paul Larsen entered into a Special Agreement to form a Fact-finding Commission of Inquiry under the auspices of the Permanent Court of Arbitration (PCA), The Hague, Netherlands. The International Bureau of the PCA was notified by joint letter, from the Hawaiian Government and Mr. Larsen, on January 24, 2017 to initiate the proceedings.

This move toward fact-finding is in direct response to the recommendation of the Tribunal in paragraphs 13.1-13.3 of the Award (2001) in Larsen v. Hawaiian Kingdom, 119 Int’l L. Rep. 566, 597 (2001). The Tribunal stated, “In addition to its role as a facilitator of international arbitration and conciliation, the Permanent Court of Arbitration has various procedures for fact-finding, both as between States and otherwise.” The Tribunal further stated it could “reconstitute itself as a fact-finding commission, [but a] new compromis or agreement would…have been required.”

As pointed out by the Tribunal, “Part III of each of the Hague Conventions of 1899 and 1907 provide for International Commissions of Inquiry,” and that the “PCA has also adopted Optional Rules for Fact-finding Commissions of Inquiry.” In other words, the Tribunal provided two options to form a fact-finding commission, the first under the 1907 Hague Convention, and, second, the Optional Rules. Both the Hawaiian Kingdom and Larsen agreed to the rules provided under Part III—International Commissions of Inquiry (Articles 9-36), 1907 Hague Convention, I. The International Bureau facilitates both options.

After the issuance of the Award, the parties did request for the Tribunal to be reconstituted as a Fact-finding Commission of Inquiry but due to the projected costs at the time it was later withdrawn. During the arbitration, the parties had to contend with the prospect of who would bear the burden of the costs for fact-finding since Mr. Larsen, as claimant in the arbitration, bore the costs, which amounted in excess of $150,000.00. This move, however, did not preclude the parties from entering into an agreement at a later date. Under Article VI of the Special Agreement (January 19, 2017) it was agreed that the Hawaiian Kingdom would bear the burden of costs for the fact-finding.

Prior to facilitating the establishment of the Tribunal in Larsen v. Hawaiian Kingdom, the PCA had to assure that it possessed institutional jurisdiction, which requires one of the parties to be a State. From the record of the arbitral proceedings there are two instances where the PCA acknowledged the Hawaiian Kingdom as a State for administrative purposes. The first instance is in the PCA Case Repository containing Larsen v. Hawaiian Kingdom, wherein the Respondent—Hawaiian Kingdom is identified as a “State” and the Claimant—Lance Paul Larsen as a “Private entity.” The second instance is in Annex 2—Cases conducted under the auspices of the PCA or with the cooperation of the International Bureau, PCA Annual Report 2011. In the PCA’s 2011 Annual Report, the Larsen v. Hawaiian Kingdom arbitration was listed as the thirty-third case that came under the auspices of the PCA pursuant to “article 47 of the 1907 Convention.” Article 47 provides, “The jurisdiction of the Permanent Court may, within the conditions laid down in the regulations, be extended to…non-Contracting Powers.”

According to Article III of the Special Agreement, “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 norm and framework of international humanitarian law; and, 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 norm and framework of international humanitarian law.”

The formation of the Fact-finding Commission of Inquiry is not a new proceeding for the PCA to determine its institutional jurisdiction, but rather, a continuation of the proceedings already held under the jurisdiction of the PCA that moves from a dispute under arbitration to a situation under fact-finding.

The Smoking Gun! No Question on Illegality of the U.S. Overthrow of the Hawaiian Government in 1893

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In 2016, Duke University Press published Tom Coffman’s Nation Within: The History of the American Occupation of Hawai‘i. While this book has been in circulation since 1998, it is the first time that an academic publisher has put its name to the book. The goal of Duke University Press is “to contribute boldly to the international community of scholarship.” “By insisting on thorough peer review procedures in combination with careful editorial judgment, the Press performs an intellectual gatekeeping function, ensuring that only scholarship of the highest quality receives the imprimatur of the University.”

Dr. Keanu Sai, a political scientist, whose doctoral research covered the American occupation of the Hawaiian Kingdom and its continued existence today as an independent State, was asked by the Hawaiian Journal of History to write a book review of Coffman’s Nation Within for its first publication in 2017. In his review, Dr. Sai reveals the “smoking gun” that was brought to his attention by Dr. Ron Williams of the University of Hawai‘i at Manoa.

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In Nation Within: The History of the American Occupation of Hawai‘i, Tom Coffman exhibits a radical shift by historians in interpreting political events post-1893. When Coffman first published his book in 1998, his title reflected a common misunderstanding of annexation. But in 2009, he revised the title by replacing the word Annexation with the word Occupation. Coffman admitted he made this change because of international law (p. xvi). By shifting the interpretive lens to international law, Coffman not only changed the view to occupation, but would also change the view of the government’s overthrow in 1893. While the book lacks any explanation of applicable international laws, he does an excellent job of providing an easy reading of facts for international law to interpret.


In international law, there is a fundamental rule that diplomats have a duty to not intervene in the internal affairs of the sovereign State they are accredited to. Every sovereign State has a right “to establish, alter, or abolish, its own municipal constitution [and] no foreign State can interfere with the exercise of this right” (Halleck’s International Law, 3rd ed., p. 94). For an ambassador, a violation of this rule would have grave consequences. An offended State could proceed “against an ambassador as a public enemy…if justice should be refused by his own sovereign” (Wheaton’s International Law, 8th ed., p. 301).

John Stevens, the American ambassador to the Hawaiian Kingdom arrived in the islands in the summer of 1889. As Coffman notes, Stevens was already fixated with annexation when he “wrote that the ‘golden hour’ for resolving the future status of Hawai‘i was at hand,” (p. 114) and began to collude with Lorrin Thurston (p. 116). Thurston was not an American citizen but rather a third-generation Hawaiian subject. Stevens’ opportunity to intervene and seek annexation would occur after Lili‘uokalani “attempted to promulgate a new constitution, [which] was the event Thurston and Stevens had been waiting for” (p. 120).

On January 16, Stevens orders the landing of U.S. troops and “tells Thurston that if the annexationists control three buildings—‘Iolani Palace, Ali‘iolani Hale, and the Archives—he will announce American recognition of the new government” (p. 121). The following day, “Stevens tells the queen’s cabinet that he will protect the annexationists if they are attacked or arrested by government police” (Ibid.). However, unbeknownst to Stevens, the insurgents only took over Ali‘iolani Hale, which housed “clerks of the Kingdom” (p. 125). One of the insurgents, Samuel Damon, knowing Stevens’ recognition was premature, sought to convince Lili‘uokalani that her resistance was futile because the United States had already recognized the new government, and that she should order Marshal Charles Wilson, head of the government police, to give up the police station. Wilson was planning an assault on the government building to apprehend the insurgents for treason in spite of the presence of U.S. troops.

International law clearly interprets these events as intervention and Stevens to be a “public enemy” of the Hawaiian Kingdom. This was the same conclusion reached by President Grover Cleveland, whose investigation was an indictment of Stevens and the commander of the USS Boston, Captain Gilbert Wiltse. “The lawful Government of Hawai‘i was overthrown without the drawing of a sword or the firing of a shot,” Cleveland said, “by a process every step of which, it may be safely asserted, is directly traceable to and dependent for its success upon the agency of the United States acting through its diplomatic and naval representatives” (p. 144). Because of diplomatic immunity, the United States, as the sending State, would be obliged to prosecute Stevens and Wiltse for treason under American law.

On December 20, 1893, a resolution of the U.S. Senate called for a separate investigation to be conducted by the Senate Committee on Foreign Relations. Chaired by Senator John Morgan, a vocal annexationist, the purpose of the Senate investigation was to repudiate Cleveland’s investigation and to vindicate Stevens and Wiltse of criminal liability. One week later, the Committee held its first day of hearings in Washington, DC. Stevens appeared before the Committee and fielded questions under oath on January 20, 1894. When asked by the Chairman if his recognition of the provisional government was for the “purpose of dethroning the Queen,” he responded, “Not the slightest—absolute noninterference was my purpose” (Report from the Committee on Foreign Relations— Appendix, p. 550).

After the hearings, two reports were submitted on February 26, 1894—a Committee Report and a Minority Report. The committee of eight senators was split down the middle, with Morgan giving the majority vote for the Committee Report. Half of the committee members did not believe Stevens’ testimony of his non-intervention. The Minority Report stated, “We can not concur…in so much of the foregoing report as exonerates the minister of the United States, Mr. Stevens, from active officious and unbecoming participation in the events which led to the revolution” (Ibid., p. xxxv).

The Senate Committee’s investigation could find no direct evidence that would disprove Stevens’ sworn testimony, but in 2016, the “smoking gun” was found that would prove Stevens was a public enemy of the Hawaiian Kingdom, committed perjury before the Committee, and would no doubt have been prosecuted under the 1790 federal statute of treason. The Hawaiian Mission Houses Archives is processing a collection of documents given to them by a descendent of William O. Smith. Smith was an insurgent that served as the attorney general for Sanford Dole, so-called president of the provisional government.

The “smoking gun” is a note to Dole signed by Stevens marked “private” and written under the letterhead of the “United States Legation” in Honolulu and dated January 17, 1893. Stevens writes, “Judge Dole: I would advise not to make known of my recognition of the de facto Provisional Government until said Government is in possession of the police station.”

As a political scientist, Coffman’s book is a welcomed addition to arresting revisionist history.

Japan’s Center for Glocal Studies Publishes Article on the Acting Government of the Hawaiian Kingdom

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Japan’s Seijo University’s Center for Glocal Studies has published, in its latest journal for 2016, an article authored by Dennis Riches titled “This is not America: The Acting Government of the Hawaiian Kingdom Goes Global with Legal Challenges to End Occupation [this is a hot link to download the article].” The word Glocal Studies is a combination of the words Global and Local Studies.

The study focused on the American occupation of Hawai‘i and its global impact, which includes war crimes. It also included an interview of Dr. Keanu Sai by the author who is a faculty member of Seijo University, Japan. Seijo’s Glocal Research Center is also supported by the Japanese Ministry of Education, Culture, Sports, Science and Technology.

In his concluding remarks of the study, the author wrote:

I became interested in Hawai‘i’s status as an occupied country through an earlier interest in the struggle of Okinawans to have US military bases removed from their territory. I naively thought, like many in Japan, that the US should move these military operations back to Hawai‘i because they rightly belong on American territory. Yet as I compared the two places, I learned that under international law Hawai‘i actually had a stronger claim than Okinawa on the right to reject an American military presence. Unfortunately, Okinawa never had foreign treaties and recognition as an independent state before it was absorbed by Japan. This leaves Okinawa to fight for self-determination through a political negotiation with the Japanese government, and the Japanese government is very committed to its alliance with America. Although Prime Minister Shinzo Abe stated in his speech of August 15, 2015, “We shall abandon colonial rule forever and respect the right of self-determination of all peoples throughout the world,” it is unlikely that he had Okinawans in mind, or anyone specifically, as a people he would assist in becoming independent.

During the interview, as a spokesperson for the provisional government, Professor Sai was careful not to discuss the policy or ideology that a future legitimate government would follow. Those are to be decided by democratic choices that Hawaiians make after the occupation ends. However, it was encouraging to hear Professor Sai, a former US Army captain, express a strong personal view that Hawai‘i’s record as a neutral country is not something that should be up for future debate. It’s a fundamental value that makes the work to restore the nation worthwhile, and it is something that can inspire the global community as well.

There is an increasing global desire for America to scale back its interventionism and close its global network of military bases. The day has come when the world doesn’t want it, and America can no longer afford it. It is ironic that a place that everyone thinks is American is the place that has the strongest chance of using international law to expel the American military presence. Other nations are bound by their treaties and Status of Forces Agreements. It is also inspiring too to think that this will happen in the place that was the last place on the globe to be inhabited by humans, and the last to be contacted by the European explorers who launched the age of Western Empire.

Today, Western science turns its back on earthly problems as it tries to build telescopes and train astronauts to Mars-walk on Hawaiian mountains, but for those who prefer to deal with the home we have, Hawai‘i can be a symbol of our last hope to avoid the catastrophes of environmental destruction and war, just as it was a last hope for the Polynesian explorers who first came in the years of the early Christian calendar—an interesting coincidence considering the peaceful aspirations of Christianity that preceded the meeting of two cultures in Hawai‘i in the 18th century. Now that Japan has reinterpreted its “peace” constitution to allow for overseas deployments in assistance of allies, the world should support Hawai‘i not only for the sake of self-interested realism but more importantly for the role Hawai‘i can play as a new standard bearer of the idea that nations can renounce war, choose neutrality and gain security from a system of international law that protects their sovereignty.

Settling the Confusion of Sovereignty and Independence

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There is still much confusion regarding the terms sovereignty and independence in the Hawaiian community, which is the result of denationalization through Americanization. First there are two sovereignties – “internal” and “external.” By definition, sovereignty is the supreme governmental authority over the territory of a State. Where a particular State may have “internal” sovereignty over its territory, it may not have “external sovereignty” regarding its place as a State in international law. An example of this is the State of New York, which has “internal” sovereignty over its territory, but its “external” sovereignty is in the United States of America. It is the United States, and not New York, that is the independent State.

Because international law distinguishes between “internal” and “external” sovereignties, a State would remain independent and sovereign, despite its government, which exercises its internal sovereignty, having been overthrown by another State and subsequently occupied. This is why the law of occupation mandates the occupier to administer the laws of the occupied State under Article 43 of the 1907 Hague Convention, IV.

Section 358 of the United States Army Field Manual 27-10 clearly articulates this point, where “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.”

Below is an article that was originally posted December 10, 2013

In Hawai‘i there is a political trend called the sovereignty or independence movement that began in the 1970s. This political wing, which grew out of the Hawaiian cultural renaissance movement, is comprised of diverse groups of aboriginal Hawaiians working toward the goal or aspiration of achieving sovereignty or independence. These groups vary in ideologies and organization, but all of them have been operating on the false assumption that the United States has independence and sovereignty over Hawai‘i and therefore the goal is separation or secession through a process commonly referred to as self-determination. According to the United Nations, self-determination is the right of the people of a non-sovereign nation to choose their own form of governance separate from the foreign State that has the sovereignty and independence under international law.

Actions taken by these groups are centered on political activism that have taken many forms at both the national and international levels. This political trend has led to confusion regarding Hawai‘i’s true status and basic terminology and the application of the terms “sovereignty” and “independence.” Also adding to the confusion is the psychological effects of “presentism” and “confirmation bias.” Presentism is “an attitude toward the past dominated by present-day attitudes and experience,” and confirmation bias is “a tendency to search for or interpret information in a way that confirms one’s preconceptions, leading to statistical errors.”

Sovereignty by definition is absolute authority exercised by a State over its territory, territorial seas, and its nationals abroad, which is independent of other States and their authority over their territory, territorial seas, and its nationals abroad.  Authority over a State’s nationals abroad is called personal supremacy, and authority over territory is territorial sovereignty. Therefore, sovereignty is associated with political independence and the terms are often interchangeable.

The term State, under international law, means a political unit that has a centralized government, a resident population, a defined territory and the ability to enter and maintain international relations with other States. A State is a legal person in international law that possesses rights and obligations. A nation, however, is a group of people bound together by a common history, language and culture. Every State is a nation or a combination of nations, but not every nation or nations comprise a State. Since the nineteenth century, a State comes into existence only if other States have recognized it, which represents the entirety of the international order. In other words, a few States may have given explicit recognition, but the majority hasn’t. Until the majority of States have provided recognition to the nation or group of nations, international law does not recognize the new State because its independence over its territory, territorial seas, and its nationals abroad has not been acknowledged by the international community of States.

The most recent example of a sovereignty movement by a nation seeking State sovereignty and independence and ultimately achieving it was Palestine. On November 29, 2012, the member States of the United Nations voted overwhelmingly to recognize Palestinian Statehood. Up to this date, Palestine was a nation seeking sovereignty and independence, which is called self-determination. Once a State has been recognized the recognizing States cannot deny it later, and there exists a rule of international law that preserves the independence of an already recognized State, unless that State has relinquished its independence and sovereignty by way of a treaty or customary practice recognized by international law.

According to the Permanent Court of International Justice (PCIJ), in the 1927 seminal case S.S. Lotus between France and Turkey, “International law governs relations between independent States. The rules of law binding upon States therefore emanate from their own free will as expressed in conventions (treaties) or by usages generally accepted as expressing principles of law and established in order to regulate the relations between these co-existing independent communities or with a view to the achievement of common aims. Restrictions upon the independence of States cannot therefore be presumed.” In other words, once a State is acknowledged as being independent it will continue to be independent unless proven otherwise. Therefore, the State will still have sovereignty and independence over its territory, territorial seas, and its nationals, even when its government has been overthrown and is militarily occupied by a foreign State. During occupations the sovereignty remains vested in the occupied State, but the authority to exercise that sovereignty is temporarily vested in the occupying State, which is regulated by the Hague and Geneva Conventions, and international humanitarian law.

When the PCIJ stated that restrictions upon the independence of States could not be presumed, it did not mean that international law could not restrict States in its relations with other States that are also independent. In the Lotus case, the PCIJ 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 convention (treaty).” The PCIJ continued, “In these circumstances, all that can be required of a State is that it should not overstep the limits which international law places upon its jurisdiction; within these limits, its title to exercise jurisdiction rests in its sovereignty.”

The United States Supreme Court in 1936 recognized this restriction and limitation of a State’s authority in international law in U.S. v. Curtiss-Wright Corp. The U.S. Supreme Court stated, “Neither the Constitution nor the laws passed in pursuance of it have any force in foreign territory unless in respect of our own citizens…, and operations of the nation in such territory must be governed by treaties, international understandings and compacts, and the principles of international law. As a member of the family of nations, the right and power of the United States in that field are equal to the right and power of the other members of the international family. Otherwise, the United States is not completely sovereign.”

In 2001, the Permanent Court of Arbitration (PCA), in its dictum in Larsen v. Hawaiian Kingdom, verified Hawai‘i to be an independent State. In its arbitral award, the PCA stated, “in the nineteenth century the Hawaiian Kingdom existed as an independent State recognized as such by the United States of America, the United Kingdom and various other States, including by exchanges of diplomatic or consular representatives and the conclusion of treaties.” As an independent State, international law provided a fundamental restriction on all States, to include the United States of America, that it may “not exercise its power in any form in the territory of another State.”

Since 1898, the United States has unlawfully exercised its power within the territory of the Hawaiian Kingdom militarily, legislatively and economically. On July 7, 1898, the United States Congress enacted a joint resolution unilaterally annexing the Hawaiian Kingdom over the protests of Hawai‘i’s Queen and people. Two years later, Congress enacted another law by creating a territorial government that took over the governmental infrastructure of the Hawaiian Kingdom that was previously high jacked by insurgents since 1893 with the support of the United States military. In 1959, the Congress again passed legislation transforming the territorial government into the 50th state of the American Union. Under both international law and United States constitutional law, these Congressional actions have no force and effect in Hawai‘i. Despite the propaganda and lies that have been perpetuated since the beginning of the occupation that Hawai‘i was annexed by a treaty, the Hawaiian Kingdom continues to be an independent State that still retains its personal supremacy over its nationals abroad, and territorial sovereignty over its territory and territorial seas. The exercising of this authority, however, is limited only by the Hague and Geneva Conventions and the fact of an illegal and prolonged occupation.

A common statement made by sovereignty advocates is that the people have to collectively decide on the question of sovereignty and that it should be put to a vote. This is incorrect if Hawai‘i is already a sovereign and independent State. This prospect is valid only if Hawai‘i is a nation seeking sovereignty and independence, which is commonly referred to as “nation-building” under a people’s right to self-determination, but Hawai‘i is not. Self-determination and nation-building is the United Nations process by which sovereignty and independence is sought, but it is not guaranteed. This process provides to the people of a non-sovereign nation who have been colonized by a foreign State to choose whether or not they want independence from the foreign State, free association as an independent State with the foreign State, or total incorporation into the foreign State.

Recently, Maohi Nui (French Polynesia) has been reaffirmed by the United Nations as having a right to choose independence from France, free association with France, or total incorporation into France. Maohi Nui is by definition a sovereignty movement and education is key to ensuring that the people decide Maohi Nui’s status through decolonization with full knowledge, and not be influenced or coerced by political activism that is French driven. It won’t be easy for Maohi Nui, but the process of exercising self-determination should be fair under United Nations supervision and in line with General Assembly resolutions.

If other independent States cannot affect or change the independence of an established State and its sovereignty under international law, how can Hawai‘i’s people believe they can do what States can’t? Because the Hawaiian Kingdom continues to exist under international law as an independent State, not only is the sovereignty movement rendered irrelevant, but also the status of Hawai‘i as an occupied State renders the State of Hawai‘i government and other federal agencies in the Hawaiian Islands self-proclaimed. It is within this international legal framework that actions taken by Federal government officials, State of Hawai‘i government officials, and County government officials are being reported to international authorities for war crimes under the Hague and Geneva Conventions, and the Rome Statute that established the International Criminal Court.

Re-education is crucial for Hawai‘i’s people and the world on the reality that Hawai‘i is an already independent and sovereign State that has been under an illegal and prolonged occupation. Before restoration of the de jure Hawaiian government takes place in accordance with the 1893 executive agreements, international law mandates that the occupying Power must establish a military government in order to administer Hawaiian Kingdom law (Article 43, Hague Convention, IV) and to also begin the withdrawal of all military installations from Hawaiian territory (Article 2, Hague Convention, V). This is the first and primary step toward transition.

The following terms and definitions are from the Hawaiian history textbook “Ua Mau Ke Ea-Sovereignty Endures.”

Independent State—A state that has absolute and independent legal and political authority over its territory to the exclusion of other states. Once recognized as independent, the state becomes a subject of international law. According to United States common law, an independent State is a people permanently occupying a fixed territory bound together by common law habits and custom into one body politic exercising, through the medium of an organized government, independent sovereignty and control over all persons and things within its boundaries, capable of making war and peace and of entering into international relations with other communities around the globe.

Sovereignty—Supreme authority exercised over a particular territory. In international law, it is the supreme and absolute authority exercised through a government, being independent of any other sovereignty. Sovereignty, being authority, is distinct from government, which is the physical body that exercises the authority. Therefore, a government can be overthrown, but the sovereignty remains.

Colonization—Colonization is the building and maintaining of colonies in one territory by people from another country or state. It is the process, by which sovereignty over the territory of a colony is claimed by the mother country or state, and is exercised and controlled by the nationals of the colonizing country or state. Though colonization there is an unequal relationship between the colonizer and the native populations that reside within its colonial territory. These native populations are referred to as indigenous peoples and form the basis of the 2007 United Nations Declaration on the Rights of Indigenous Peoples.

De-colonization—De-colonization is the political process by which a non-self-governing territory under the sovereignty of the colonizing state or country becomes self-governing. According to the United Nations Resolution 1541 (XV), Principles which should guide Members in determining whether or not an obligation exists to transmit the information called for under Article 73 e of the Charter, “A Non-Self-Governing Territory can be said to have reached a full measure of self government by: (a) Emergence as a sovereign independent State; (b) Free association with an independent State; or (c) Integration with an independent State.”

Self-determination—A principle in international law that nations have the right to freely determine their political status and pursue their economic, social and cultural development. The international community first used the term after World War I where the former territorial possessions of the Ottoman Empire and Germany were assigned to individual member countries or states of the League of Nations for administration as Mandate territories. The function of the administration of these territories was to facilitate the process of self-determination whereby these territories would achieve full recognition as an independent and sovereign state. After World War II, territories of Japan and Italy were added and assigned to be administered individual member countries or states of the United Nations, being the successor of the League of Nations, and were called Trust territories. Also added to these territories were territories held by all other members of the United Nations and called Non-self-governing territories. Unlike the Mandate and Trust territories, they were not assigned to other member countries or states for administration, but remained under the original colonial authority who reported yearly to the United Nations on the status of these territories. Self-determination for Non-self-governing territories had three options: total incorporation into the colonial country or state, free association with the colonial country or state, or complete independence from the colonial country or state. Self-determination for indigenous peoples does not include independence and is often referred to as self-determination within the country or state they reside in.

Sovereignty movement—A political movement of a wide range of groups in the Hawaiian Islands that seek to exercise self-determination under international law as a Non-self-governing unit, or to exercise internal self-determination under the 2007 United Nations Declaration on the Rights of Indigenous Peoples. The commonality of these various groups is that their political platforms are based on aboriginal Hawaiian identity and culture and use of the United Nations term indigenous people. The movement presumes that the Hawaiian Kingdom and its sovereignty were overthrown by the United States January 17th 1893, and therefore the movement is seeking to reclaim that sovereignty through de-colonization. The movement does not operate on the presumption of continuity of the Hawaiian Kingdom as an independent state and the law of occupation, but rather on the aspiration of becoming an independent state or some form of internal self-determination within the laws of the United States.

Issues that Matter: Italian Universities invite Dr. Sai to present on Hawai‘i’s Occupation

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https://vimeo.com/192878178

Dr. Lynette Cruz, host of “Issues that Matter,” interviews Dr. Keanu Sai on recent trip to Italy. Dr. Sai was invited to participate in an academic conference in Ravenna, Italy, as well as guest lectures as the University of Siena Law School and at the University of Torino.

From the Agent of the Hawaiian Kingdom: Setting the Record Straight on the Larsen Case

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Hague 4_1_1My name is Dr. David Keanu Sai and from 1999-2001, I served as Agent for the Hawaiian Kingdom in international arbitration proceedings under the auspices of the Permanent Court of Arbitration, The Hague, Netherlands. The case was Lance Paul Larsen v. Hawaiian Kingdom (Larsen case). I was responsible for the drafting of the pleadings as well as communication with the Permanent Court of Arbitration’s (PCA) International Bureau-Secretariat, headed by a Secretary General, regarding the case. So I am very well acquainted with the case as well as what was going on behind the formalities of the case and the confines of the published Award in the International Law Reports, vol. 119, p. 566.

I am also a lecturer at the University of Hawai‘i with a M.A. and a Ph.D. in political science specializing in international relations and public law. My doctoral research and published law articles centers on the continuity of the Hawaiian Kingdom as an independent State under a prolonged occupation by the United States of America (United States) since the Spanish-American War.

After reviewing the two Awards by the Tribunal in the South China Sea case, I perused the Philippines’ Memorial and transcripts of the proceedings to find any reference to the Larsen case that was cited in Tribunal’s Award on Jurisdiction and Admissibility (paragraph 181) as well as the Award on the Merits (paragraph 157, footnote 98). In the Memorial, which is called a pleading in international proceedings, the Philippines brought up the Larsen case in paragraphs 5.125 and 5.126. It was also mentioned by Professor Philippe Sands, QC, in his expert testimony to the Tribunal during a hearing on jurisdiction on July 8, 2015, and found on page 123 of the transcripts. On the Larsen case, the Philippine Memorial stated:

5.125 The Monetary Gold principle has also been followed once in arbitral proceedings. An arbitral tribunal applied it propio motu in Larsen v. the Hawaiian Kingdom. In that case, a resident of Hawaii sought redress from “the Hawaiian Kingdom” for its failure to protect him from the United States and the State of Hawaii. The parties, who had agreed to submit their dispute to arbitration by the PCA, hoped that the tribunal would address the question of the international legal status of Hawaii. Both parties initially argued that the Monetary Gold principle should be confined to ICJ proceedings. The tribunal rejected that argument, stating that international arbitral tribunals “operate[ ]within the general confines of public international law and, like the International Court, cannot exercise jurisdiction over a State which is not a party to its proceedings”.

5.126 The tribunal ultimately decided that it was precluded from addressing the merits because the United States, which was absent, was an indispensable party. Relying on Monetary Gold, the tribunal explained that the legal interests of the United States would form “the very subject-matter” of a decision on the merits because it could not rule on the lawfulness of the conduct of the respondent, the Kingdom of Hawaii, without necessarily evaluating the lawfulness of the conduct of the United States. It emphasized that “[t]he principle of consent in international law would be violated if this Tribunal were to make a decision at the core of which was a determination of the legality or illegality of the conduct of a non-party”.

There is much said in these two paragraphs that may escape the layman who may not be familiar with Hawai‘i’s legal history and its place in international law. By the Philippines own admission it recognized the existence of the Hawaiian Kingdom as a party to the arbitration, and without the participation of the United States, as an indispensable third party, the Philippines stated the Larsen Tribunal “could not rule on the lawfulness of the conduct of the respondent, the Kingdom of Hawaii.”

Here at the University of Hawai‘i William S. Richardson School of Law, a few faculty members, namely Dr. Diane Desierto, Dr. David Cohen, and Carol Peterson, have gone so far as to call the Larsen case mere puffery. But can the Larsen case be an exaggeration of the Hawaiian Kingdom’s continued existence under international law and the role of the principle of indispensable third parties when it comes to the United States, as claimed by these faculty members who admitted, at a closed forum, they don’t know the legal history of Hawai‘i?

Maoli_Thursday_Nov13

Obviously, the Philippine Government did not think so, and nor did the Tribunal in the South China Sea arbitration. As a landmark case in international arbitration, the South China Sea arbitration has drawn attention to the Larsen case again, which gives me an opportunity to set the record straight in light of the detractors, but also for those who are just curious.

In the Larsen case, the Hawaiian Kingdom, which I served as Agent along with others on my legal team, was a “Defendant,” which in international proceedings is also called a “Respondent.” This means that the Hawaiian Kingdom was defending itself from the allegations made by Larsen, as the “Plaintiff,” which is also called a “Claimant,” that the Council of Regency was allowing the unlawful imposition of American municipal laws in the territory of the Hawaiian Kingdom, which led to his unfair trial and subsequent incarceration.

Hawaiian Government PCA

By going to Larsen v. Hawaiian Kingdom at the PCA’s case repository, it identifies me as the Agent for the Hawaiian Kingdom, identifies the Hawaiian Kingdom as a “State,” and under the heading of “case description,” it provides the dispute as follows:

“Dispute between Lance Paul Larsen (Claimant) and The Hawaiian Kingdom (Respondent) whereby

  • a) Lance Paul Larsen, a Hawaiian subject, alleges that the Government of the Hawaiian Kingdom is in continual violation of its 1849 Treaty of Friendship, Commerce and Navigation with the United States of America, and in violation of the principles of international law laid [down] in the Vienna Convention on the Law of Treaties, 1969, by allowing the unlawful imposition of American municipal laws over claimant’s person within the territorial jurisdiction of the Hawaiian Kingdom.
  • b) Lance Paul Larsen, a Hawaiian subject, alleges that the Government of the Hawaiian Kingdom is also in continual violation of the principles of international comity by allowing the unlawful imposition of American municipal laws over the claimant’s person within the territorial jurisdiction of the Hawaiian Kingdom.”

The Philippines’ Memorial also cites an article by Bederman and Hilbert on the Larsen case that was originally published in the American Journal of International (vol. 95, p. 928), and republished the article in the Hawaiian Journal of Law and Politics (vol. 1, p. 82) that the Philippines cited. According to Bederman and Hilbert, who succinctly stated the dispute, “At the center of the PCA proceeding was…that the Hawaiian Kingdom continues to exist and that the Hawaiian Council of Regency (representing the Hawaiian Kingdom) is legally responsible under international law for the protection of Hawaiian subjects, including the claimant. In other words, the Hawaiian Kingdom was legally obligated to protect Larsen from the United States’ ‘unlawful imposition [over him] of [its] municipal laws’ through its political subdivision, the State of Hawaii. As a result of this responsibility, Larsen submitted, the Hawaiian Council of Regency should be liable for any international law violations that the United States committed against him.”

Clearly, the Larsen case was not about whether the Hawaiian Kingdom continues to exist, but was based on the presumption that it does exist, and, as such, a dispute arose between a Hawaiian national and the Hawaiian Government that stemmed from an illegal and prolonged occupation by the United States. My responsibility, as the Agent, was to defend the Hawaiian Government from Larsen’s allegation of allowing the imposition of American municipal laws in the Hawaiian Islands.

I was also keenly aware that before the PCA could establish the Arbitral Tribunal to preside over the dispute between Larsen and the Hawaiian Kingdom, it had to first confirm that the Hawaiian Kingdom as a “State” continues to exist in order for the PCA to exercise its “institutional jurisdiction” (United Nations Dispute Settlement, Permanent Court of Arbitration, p. 15) so that it could facilitate the creation of an ad hoc tribunal. By extension, the PCA also had to confirm that Larsen’s nationality was a Hawaiian subject, and the Council of Regency was the Hawaiian Government.

As an intergovernmental organization established under the 1899 Hague Convention, I, and the 1907 Hague Convention, I, the PCA facilitates the creation of ad hoc arbitral tribunals to settle disputes between two or more States, i.e., the Philippines v. China, or between a State and a private entity, i.e., Romak, S.A. v. Uzbekistan. Romak, S.A. is a Swiss company that specializes in the sale of grain and cereal products. In both cases, the States have to exist in fact and not in theory in order for the PCA to have institutional jurisdiction. Disputes must be “international” and not “municipal,” which are disputes that go before national courts of States and not international courts or tribunals.

Since the arbitration agreement between Larsen and the Hawaiian Government was submitted to the PCA on November 8, 1999, the PCA was doing their due diligence as to whether the Hawaiian Kingdom currently exists as a State under international law. If the Hawaiian Kingdom does not exist then this fact would negate the existence of the nationality of Larsen as a Hawaiian subject and the existence of the Council of Regency as the Hawaiian government, and, therefore, the dispute.

After its due diligence, however, the PCA could not deny that the Hawaiian Kingdom did exist as an independent State, and, along with other treaties, the Hawaiian Kingdom had a treaty with the Netherlands, which houses the PCA itself. However, what faced the PCA is that it could not find any evidence that the Hawaiian Kingdom had ceased to exist under international law. Only by way of a “treaty of cession,” whereby the Hawaiian Kingdom agreed to merge itself into the territory of the United States, could the Hawaiian Kingdom have been extinguished under international law.

There was never a treaty, except for American municipal laws, enacted by the United States Congress, that treat Hawai‘i as if it were annexed. Municipal laws are not international laws, as between States, but are laws that are limited in scope and authority to the territory of the State that enacted them. In other words, an American municipal law could no more annex the Hawaiian Kingdom, than it could annex the Netherlands.

My legal team and Larsen’s attorney knew this and operated on the “presumption” that the Hawaiian Kingdom continues to exist until evidence shows otherwise. This was the van den Houtsame conclusion that the PCA came to, which prompted a telephone conversation I had with the PCA’s Secretary General, Tjaco T. van den Hout, in February 2000. In that telephone conversation, he recommended that the Hawaiian Government along with Larsen’s Counsel, Ms. Ninia Parks, provide a formal invitation to the United States Government to join in the arbitration. I recall his specific words to me on this matter. He said that in order to maintain the integrity of this case, he recommended that the Hawaiian Government, with the consent of Larsen’s legal representative, provide a formal invitation to the United States to join in the current arbitration. He then requested that I provide evidence that the invitation was made so that it can be made a part of the record for the case.

This invitation would elicit one of the three possible responses: first, the United States accepts the invitation, which recognizes the existence of the Hawaiian Kingdom and its government and will have to answer to its unlawful imposition of American municipal laws that led to Larsen’s unfair trial and incarceration; second, the United States denies the existence of the Hawaiian Kingdom because Hawai‘i is the so-called 50th State of the Federal Union and demands that the PCA cease and desist in entertaining the dispute; or, third, the United States denies the invitation to join in the arbitration but does not deny the existence of the Hawaiian Kingdom and the dispute between a Hawaiian national and the government representing the Hawaiian Kingdom.

On March 3, 2000, a conference call meeting was held with John Crook from the United States State Department in Washington, D.C., together with myself representing the Hawaiian Government and Ms. Parks representing Larsen. After the meeting, I drafted a letter to Crook that covered what was discussed in the meeting regarding the invitation and a carbon copy was sent to Secretary General van den Hout, as he requested, so that it could be placed on the record that an invitation was made. A few days later the United States Embassy in The Hague notified the PCA that they denied the invitation to join in the Phyllis_Hamiltonarbitration, but requested permission from the Hawaiian Government and Ms. Parks, on behalf of Larsen, to have access to all pleadings and transcripts of the case. Both Ms. Parks and I were individually contacted by telephone from the PCA’s Deputy Secretary General, Phyllis Hamilton, of the request made by the US Embassy, which we both consented to. It was also agreed that the records of the proceedings would be open to the public.

The United States took the third option and did not deny the existence of the Hawaiian Kingdom. Thereafter, the PCA began to form the Arbitral Tribunal the following month in April of 2000. Memorials were filed with the Tribunal by Larsen on May 22, 2000, and the Hawaiian Government on May 25, 2000. The Hawaiian Government then filed its Counter-Memorial on June 22, 2000, and Larsen its Counter-Memorial on June 23, 2000.

After the pleadings were submitted, the Tribunal issued Procedural Order no. 3 on July 17, 2000. In the Procedural Order, the Tribunal articulated the dispute from the pleadings in the following statement.

“As further defined in the pleadings of the parties, especially the Counter-Memorials, the plaintiff has requested the Tribunal to adjudge and declare (1) that his rights as a Hawaiian subject are being violated under international law as a result of the prolonged occupation of the Hawaiian Islands by the United States of America”, and (2) that the plaintiff “does have redress against the Respondent Government” in relation to these violations (Plaintiff’s Counter-Memorial, para. 3). The defendant “agrees that it was the actions of the United States that violated Claimant’s rights, however denies that it failed to intervene” (Defendant’s Counter-Memorial, para. 2). Accordingly the parties agree on the first of the two issues identified by the Claimant as in dispute, but disagree on the second. The second issue only arises once it is established, or validly agreed, that the first issue is to be decided in the affirmative.”

 

The Tribunal further stated in the Procedural Order that it “is concerned whether the first issue does in fact raise a dispute between the parties, or, rather, a dispute between each of the parties and the United States over the treatment of the plaintiff by the United States. If it is the latter, that would appear to be a dispute which the Tribunal cannot determine, inter alia because the United States is not a party to the agreement to arbitrate.” The Tribunal, therefore, stated that it could not get to the merits of the case regarding “redress against the Respondent Government” as the second issue, until it address the first issue that Larsen’s “rights as a Hawaiian subject are being violated…by the United States of America.” This first issue that the Tribunal was asked to determine is what caused the Tribunal to raise the principle of an “indispensable third party” that stemmed from the Monetary Gold case. In other words, could the Tribunal proceed to rule on the lawfulness of the conduct of the Hawaiian Government when its judgment would imply an evaluation of the lawfulness of the conduct of the United States, which is not a party to the case.

The Tribunal scheduled oral hearings to be held at the PCA on December 7, 8 and 11, 2000.

https://vimeo.com/17007826

A day before the oral hearings were to begin on December 7, the three arbitrators met with myself and legal team and Ms. Parks in the PCA to go over the schedule and what we can expect. What they also provided to us were booklets of the decisions by the International Court of Justice, namely the Monetary Gold Removed from Rome in 1943 (Italy v. the United Kingdom, France and the United States), Case Concerning Certain Phosphate Land in Nauru (Nauru v. Australia), and Case Concerning East Timor (Portugal v. Australia).

All three cases centered on the indispensable third party principle and that we should be prepared to respond as to how this case can proceed without the participation of the United States. In the Monetary Gold case it was on the non-participation of Albania; the Nauru Case was the non-participation of New Zealand and the United Kingdom; and the East Timor case was the non-participation of Indonesia. Of the three cases, only the Nauru case could proceed because the ICJ concluded that New Zealand and the United Kingdom were not indispensable third parties.

After two days of hearings, it was evident that the Tribunal would not be able to adjudge and declare, according to Procedural Order no. 3, that Larsen’s “rights as a Hawaiian subject are being violated…by the United States of America,” because the United States was not a party to the proceedings. Without a decision by the Tribunal that finds Larsen’s rights are being violated, he would be unable to get to the second issue of having the Tribunal declare and adjudge that he “does have ‘redress against the Respondent Government’ in relation to these violations.” In light of this, I knew that Larsen would not prevail in these proceedings without the participation of the United States. On the final day of the hearings, December 11, I decided to ask the Tribunal to make a determination on a topic that I felt would not violate the indispensable third party principle that was at the center of these proceedings.

The Hawaiian Government needed a pronouncement by the Tribunal as to the legal status of the Hawaiian Kingdom under international law that would deny the lawfulness of American municipal laws within Hawaiian territory. In other words, the Hawaiian Government needed a pronouncement of international law that could be cited as a bar to American municipal laws from being applied in Hawaiian territory. This fundamental bar of one State’s municipal laws to be applied within the territory of another State centers on the legal meaning of “independence.”

In international arbitration between the Netherlands and the United States at the PCA (Island of Palmas case), the arbitrator explained what the term independence means in Max_Huberinternational law. In the Award (p. 8), Judge Max Huber stated, “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. The development of the national organization of State during the last few centuries and, as a corollary, the development of international law, have established this principle of the exclusive competence of the State in regard to its own territory.”

Oppenheim, International Law, Vol. 1, p. 177-8 (2nd ed. 1912), explains: “Sovereignty as supreme authority, which is independent of any other earthly authority, may be said to have different aspects. As excluding dependence from any other authority, and in especial from the authority of the another State, sovereignty is independence. It is external independence with regard to the liberty of action outside its borders in the intercourse with other States which a State enjoys. It is internal independence with regard to the liberty of action of a State inside its borders. As comprising the power of a State to exercise supreme authority over all persons and things within its territory, sovereignty is territorial supremacy. As comprising the power of a State to exercise supreme authority over its citizens at home and abroad, sovereignty is personal supremacy. For these reasons a State as an International Person possesses independence and territorial and personal supremacy.”

With this in mind, I made the following statement and request to the Tribunal that is provided in the transcripts of the final day of the hearings on December 11.

“Really what needs to be addressed is what came before the occupation, whether the statehood or whether the legality or illegality of the Hawaiian Kingdom, not the illegality or legality of the United States as an occupier, but rather the Hawaiian Kingdom, has it met those particulars of international law that would warrant its continued existence, irrespective of any action taken by a third party upon that sovereignty. I believe that the principle of international law is really the equality of states and that, as the equality of states comes into being, I believe that the United States cannot be construed to have an equal right within another state’s territory, but rather they are equal within their own territorial jurisdictions which affords the international relations that come either through trade agreements or actually war – but at least the war is somehow regulated.”

 

The issue before the Tribunal was whether Larsen could hold to account the Hawaiian Government for allowing the unlawful imposition of American municipal laws within Hawaiian territory that led to his unfair trial and subsequent incarceration. My request of the Tribunal on the last day of the oral hearings was to have the Tribunal acknowledge and pronounce the legal status of Hawai‘i under international law as an “independent State,” which, as a co-equal, the United States could not impose its municipal laws within Hawaiian territory without violating international law.

My intent, was to move beyond the dispute with Larsen and address the unlawful imposition of American municipal laws across the entire territory of Hawai‘i and everyone affected by it, not just Larsen. I understood that my request of the Tribunal would not violate the indispensable third party principle, because for the Tribunal to make this pronouncement there would be no need to address the lawfulness or unlawfulness of the conduct of the United States, but merely to acknowledge historical facts.

My request of the Tribunal was similar to the Philippines request of the South China Sea Tribunal to determine whether or not the landmasses in the South China Sea are islands or rocks. The Philippines argued that since it is merely a determination of facts, the Tribunal would not be getting into the lawfulness or unlawfulness of the conduct of States regarding the sovereignty over these islands. The sovereign claims over these land masses would be whether the land masses are islands as defined under the United Nations Convention on the Law of the Sea that establish a maritime zone, or are they rocks that would not establish the maritime zones. According to Article 121(3) of the Convention, an island must “sustain human habitation or economic life of [its] own” in order to generate maritime zones, i.e., the exclusive economic zone (EEZ) of 200 miles from its coast. This is how the Philippines successfully argued why the principle of indispensable third parties would not apply.

On February 5, 2001, the Tribunal issued the Award on Jurisdiction, and concluded that the United States was an indispensable third party. In paragraph 12.5, the Tribunal explained, “It follows that the Tribunal cannot determine whether the [Hawaiian Kingdom] has failed to discharge its obligation towards [Lance Larsen] without ruling on the legality of the acts of the United States of America. Yet that is precisely what the Monetary Gold principle precludes the Tribunal from doing. As the International Court of Justice explained in the East Timor case, ‘the Court could not rule on the lawfulness of the conduct of a State when its judgment would imply an evaluation of the lawfulness of the conduct of another State which is not a party to the case.’”

The Tribunal, however, did answer my request, which is provided in paragraph 7.4 of the Award. The Tribunal stated, “A perusal of the material discloses that in the nineteenth century the Hawaiian Kingdom existed as an independent State recognised 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.” By using the phrase, “a perusal of the material,” the Tribunal made it clear that its conclusion that the United States recognized the Hawaiian Kingdom as an independent State was drawn from the facts of the case.

By declaring that the United States recognized “the Hawaiian Kingdom as an independent State,” is another way of stating that the United States recognized that only Hawaiian laws could be applied in Hawaiian territory and not the municipal laws of the United States. Through these international proceedings, the Hawaiian Government was able to broaden the impact of an unlawful occupation beyond the Larsen case to now include all persons that have been victimized by the unlawful imposition of American municipal laws within the territory of the Hawaiian Kingdom.

The Award of the South China Sea arbitration’s reference of the Larsen v. Hawaiian Kingdom is recognition of the integrity of the Larsen case itself and why it is now a precedent case regarding the principle of indispensable third parties along with the Monetary Gold case and the East Timor case. It is also an acknowledgment of the caliber of those individuals who served as arbitrators, two of which are now serving as Judges on the International Court of Justice, namely Judge Christopher Greenwood and Judge James Crawford, who served as President of the Tribunal.

When I entered the University of Hawai‘i Political Science Department to get my M.A. and Ph.D. I also planned to address the misinformation regarding Hawai‘i as the 50th State of the American Union and the categorization of native Hawaiians as indigenous people as defined under United Nations documents. This is a false narrative that has already been rebuked by the mere fact of the Larsen case, which has now become a precedent case in international law. This information about the Hawaiian Kingdom has made people very uncomfortable, but that’s what happens when you’re faced with the truth.

South China Sea Tribunal References Larsen v. Hawaiian Kingdom

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Permanent Court of Arbitration

The recent South China Sea arbitration, being a landmark case, has cited the Larsen v. Hawaiian Kingdom case as one of the international precedents on “indispensable third parties” along with the Monetary Gold Removed from Rome in 1943 case and East Timor case in its Arbitral Award on Jurisdiction and Admissibility (paragraph 181). This is a significant achievement for the Hawaiian Kingdom in international law.

On July 12, 2016, the Arbitral Tribunal in the South China Sea Arbitration (The Republic of the Philippines v. the People’s Republic of China), established under the auspices of the Permanent Court of Arbitration (PCA), issued its decision in The Hague, Netherlands. The decision found that China’s claims over manmade islands in the South China Sea have no legal basis. Its decision was based on the definition of an “island” under the United Nations Convention on the Law of the Sea (1982) (Convention).

According to Article 121(3) of the Convention, an island must “sustain human habitation or economic life of [its] own” in order to generate maritime zones, i.e., the exclusive economic zone (EEZ) of 200 miles from its coast. Therefore, China’s creation of islands were never islands to begin with but rather reefs or rocks, which precluded China from claiming any maritime zones. For background of the dispute visit the New York Times “Philippines v. China, Q. and A. on South China Sea.”

At first glance, it would appear that China contested the jurisdiction of the Arbitral Tribunal in a Position Paper it drafted on December 7, 2014, and on this basis refused to participate in the proceedings held at the PCA in The Hague, Netherlands. So how is it possible that the Arbitral Tribunal pronounces a ruling against China when it hasn’t participated in the arbitration?

The simple answer is that the Arbitral Tribunal could issue a ruling because China “did” participate in the proceedings and has consented to PCA’s authority to establish the Tribunal by virtue of the UN Convention on the Law of the Sea (1982). As noted in the PCA’s press release, the PCA currently has 12 other cases established under Annex VII of the Law of the Sea Convention. China is a State party to the UN Convention on the Law of the Sea, and arbitration is recognized as a means to settle disputes under Annex VII.

As a State party to the Convention, China consented to arbitration even if it chose not to participate, but it did signify its participation when it made its position public regarding the arbitration proceedings. According to the Arbitral Tribunal in its Arbitral Award on Jurisdiction and Admissibility, it stated in paragraph 11, “the non-participation of China does not bar this Tribunal from proceeding with the arbitration. China is still a party to the arbitration, and pursuant to the terms of Article 296(1) of the Convention and Article 11 of the Annex VII, it shall be bound by any award the Tribunal issues.”

What is not commonly understood is that there are two matters of jurisdiction in cases that come before the PCA. The first is “institutional jurisdiction” of the PCA, and the second is “subject matter jurisdiction” of the Arbitral Tribunal over the particular dispute.

As an intergovernmental organization established under the 1899 Hague Convention, I, and the 1907 Hague Convention, I, the PCA facilitates the creation of ad hoc Arbitral Tribunals to settle disputes between two or more States (interstate), between a State and an international organization, between two or more international organizations, between a State and a private entity, or between an international organization and a private entity (United Nations Dispute Settlement, Permanent Court of Arbitration, p. 15). Disputes must be “international” and not “municipal,” which are disputes that go before national courts of States and not international courts or tribunals.

An explanation of the PCA’s institutional jurisdiction is also provided in the South China Sea case press release. On page 3 the press release the PCA states, “The Permanent Court of Arbitration is an intergovernmental organization established by the 1899 Hague Convention on the Pacific Settlement of International Disputes. The PCA has 121 Members States. Headquartered at the Peace Palace in The Hague, the Netherlands, the PCA facilitates arbitration, conciliation, fact-finding, and other dispute resolution proceedings among various combinations of States, State entities, intergovernmental organizations, and private parties.” China became a member State of the PCA on Nov. 21, 1904, and the Philippines on Sep. 12, 2010.

The “institutional jurisdiction” was satisfied by the PCA because both the Philippines and China are States, which makes it an interstate arbitration, and both are parties to the UN Convention on the Law of the Sea, which under Annex VII provides for arbitration of disputes under the Convention. It was under this provision that the PCA could establish the Arbitral Tribunal.

The first matter that the Tribunal had to address was whether it had “subject matter jurisdiction” over the dispute, which it found that it did. In paragraph 146 of the Arbitral Award, the Tribunal stated, “China’s Position Paper was said by the Chinese Ambassador to have “comprehensively explain[ed] why the Arbitral Tribunal…manifestly has no jurisdiction over the case.” In its Procedural Order No. 4, para. 1.1 (21 April 2015), the Tribunal explained, “the communications by China, including notably its Position Paper of 7 December 2015 and the Letter of 6 February 2015 from the Ambassador of the People’s Republic of China to the Netherlands, effectively constitute a plea concerning this Arbitral Tribunal’s jurisdiction for the purposes of Article 20 of the Rules of Procedure and will be treated as such for the purposes of this arbitration.”

South China Seas Arbitral Proceedings

In this initial phase of jurisdiction, the Tribunal, however, also had to deal with the rule of “indispensable third parties” which applied to States that are not participating in the arbitration and whose rights could be affected by the Tribunal’s decision. These States were Viet Nam, Malaysia, Indonesia and Brunei. This rule would not apply to China since the Tribunal recognized China’s participation. Paragraph 157 of the Arbitral Award addressed the indispensable third-party rule, i.e. Viet Nam, which states, “The Tribunal noted that this arbitration differs from past cases in which a court or tribunal has found the involvement of a third party to be indispensable. The Tribunal recalled that ‘the determination of the nature of and entitlements generated by the maritime features in the South China Sea does not require a decision on issues of territorial sovereignty’ and held accordingly that ‘[t]he legal rights and obligation of Viet Nam therefore do not need to be determined as a prerequisite to the determination of the merits of the case.'”

In other words, the Tribunal was going to determine in accordance with the UN Convention on the Law of the Sea, whether or not the reefs and rocks in the South China Sea constitute the definition of islands as defined under the Convention, which would determine whether or not it had a territorial sea of 12 miles and an EEZ (Exclusive Economic Zone) of 200 miles. It would not be determining matters of sovereignty over the islands. If they weren’t islands, but rather reefs or rocks, then China’s claims to a territorial sea and an EEZ would become irrelevant. The Arbitral Award determined that they were not islands as defined under the UN Convention on the Law of the Sea.

Of importance in these proceedings is that the Larsen v. Hawaiian Kingdom was specifically referenced in the Award on Jurisdiction in paragraph 181, which was also referenced in the Arbitral Award, paragraph 157, footnote 98. In the Award on Jurisdiction, the Tribunal stated, “The present situation is different from the few cases in which an international court or tribunal has declined to proceed due to the absence of an indispensable third-party, namely in Monetary Gold Removed from Rome in 1943 and East Timor before the International Court of Justice and in the Larsen v. Hawaiian Kingdom arbitration. In all of those cases, the rights of the third States (respectively Albania, Indonesia, and the United States of America) would not have been affected by a decision in the case, but would have ‘form[ed] the very subject matter of the decision.’ Additionally, in those cases the lawfulness of activities by third States was in question, whereas here none of the Philippines’ claims entail allegations of unlawful conduct by Viet Nam or other third States.”

In the Larsen case, the PCA exercised its “institutional jurisdiction” when it convened the Arbitral Tribunal, because it recognized that the Hawaiian Kingdom is a “State” in a dispute with a Hawaiian subject who was a “private entity.” Like the South China Sea case, once the Tribunal was convened, it had to address whether or not it had subject matter jurisdiction over the dispute between Larsen and the Hawaiian Kingdom, because of the fact that the United States was not a party.

This dispute was specifically stated in the arbitration agreement that the PCA based its institutional jurisdiction. Paragraph 2.1 of the Arbitral Award states, “(a) Lance Paul Larsen, Hawaiian subject, alleges that the Government of the Hawaiian Kingdom is in continual violation of its 1849 Treaty of Friendship, Commerce and Navigation with the United States of America, and in violation of the principles of international law laid [down] in the Vienna Convention on the Law of Treaties, 1969, by allowing the unlawful imposition of American municipal laws over claimant’s person within the territorial jurisdiction of the Hawaiian Kingdom; (b) Lance Paul Larsen, a Hawaiian subject, alleges that the Government of the Hawaiian Kingdom is also in violation of the principles of international comity by allowing the unlawful imposition of American municipal laws over the claimant’s person within the territorial jurisdiction of the Hawaiian Kingdom.”

What was at the center of the dispute was the unlawful imposition of American municipal laws within the territory of the Hawaiian Kingdom. The Tribunal was not established to determine whether or not the Hawaiian Kingdom exists as a “State,” which was already recognized by the PCA prior to establishing the Tribunal under its mandate of ensuring it had “institutional jurisdiction” in the first place.

According to the American Journal of International Law (vol. 95, p. 928), “At the center of the PCA proceeding was…that the Hawaiian Kingdom continues to exist and that the Hawaiian Council of Regency (representing the Hawaiian Kingdom) is legally responsible under international law for the protection of Hawaiian subjects, including the claimant. In other words, the Hawaiian Kingdom was legally obligated to protect Larsen from the United States’ ‘unlawful imposition [over him] of [its] municipal laws’ through its political subdivision, the State of Hawaii. As a result of this responsibility, Larsen submitted, the Hawaiian Council of Regency should be liable for any international law violations that the United States committed against him.” If the Hawaiian Kingdom did not exist as a State, the PCA would not have established the Arbitral Tribunal to address the dispute.

In these proceedings, however, the Council of Regency was attempting to get the Tribunal to pronounce the existence of the Hawaiian Kingdom and even try to see if the Tribunal could issue some interim measures of protection. This was deliberately done to show that the Hawaiian Kingdom was taking affirmative steps, even during the proceedings, to do what it could in addressing the unlawful imposition of American municipal laws within Hawaiian territory, which led to Larsen’s unfair criminal trial and subsequent incarceration.

In the Arbitral Award, the Tribunal concluded that the United States was an indispensable third party. In paragraph 12.5, the Tribunal explained, “It follows that the Tribunal cannot determine whether the [Hawaiian Kingdom] has failed to discharge its obligation towards [Lance Larsen] without ruling on the legality of the acts of the United States of America. Yet that is precisely what the Monetary Gold principle precludes the Tribunal from doing. As the International Court of Justice explained in the East Timor case, ‘the Court could not rule on the lawfulness of the conduct of a State when its judgment would imply an evaluation of the lawfulness of the conduct of another State which is not a party to the case.'” It is clear that the Tribunal recognized the Hawaiian Kingdom as a “State” and the lawfulness of its conduct, and the United States as a “third State” and the lawfulness of its conduct.

Hawai‘i: A Humanitarian Crisis of Unimaginable Proportions

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UN_Human_Rights_Council_LogoIn a move to bring international attention to the humanitarian crisis in the Hawaiian Islands as a result of the United States prolonged and illegal occupation since the Spanish-American War, a Complaint was submitted to the United Nations Human Rights Council (Council) on May 23, 2016. Dr. Keanu Sai represents the complainant, Kale Kepekaio Gumapac, as his attorney-in-fact. Dr. Sai also represents Gumapac before Swiss authorities regarding war crimes. Additional documents that accompanied the Complaint, included: War Crimes Report: Humanitarian Crisis in the Hawaiian Islands by Dr. Sai, his Declaration and Curriculum Vitae.

Dr. Keanu Sai“The lodging of the complaint was two-fold,” explains Dr. Sai. “First, the complaint will draw attention to the prolonged occupation of the Hawaiian Kingdom, which has created a humanitarian crisis of unimaginable proportions never before seen. Second, the purpose of the complaint is to report the war crimes committed against Kale Gumpac by Deutsche Bank, officials of the State of Hawai‘i, and others, which is now before the Swiss Federal Criminal Court. As a victim of war crimes, Mr. Gumapac is one of thousands, if not millions of victims who reside in Hawai‘i under an illegal foreign occupation.”

The Council was established in 2006 by the United Nations General Assembly and was formerly known as the United Nations Commission on Human Rights. The General Assembly gave the Council two main responsibilities: (a) promote universal respect for the protection of human rights and fundamental freedoms for all, without distinction of any kind and in a fair and equal manner; and (b) address situations of violations of human rights, including gross and systematic violations, and make recommendations to resolve them. The Council is comprised of 47 member States of the United Nations who are elected by the United Nations General Assembly for a term of three years.

The Council has a human rights mandate, but has also included as part of its mandate international humanitarian law. International human rights law are rights inherent in all human beings, whatever their nationality, place of residence, sex, national or ethnic origin, color, religion, language, or any other status. These rights are expressed in treaties such as the International Covenant on Civil and Political Rights and the International Convention on the Elimination of All Forms of Racial Discrimination. International humanitarian law is a set of rules to protect civilians and non-combatants during an armed conflict, which includes military occupation. Humanitarian law is expressed in treaties such as the 1907 Hague Convention, IV, and the 1949 Geneva Convention, IV.

In the past, it was thought that human rights law applied only during peace time and humanitarian law applied only during armed conflict, but current international law recognizes that both bodies of law are considered as complementary sources of obligations in situations of armed conflict. In its 2008 Resolution 9/9—Protection of the human rights of civilians in armed conflict, the Council emphasized “that conduct that violates international humanitarian law, including grave breaches of the Geneva Conventions of 12 August 1949, or of the Protocol Additional there of 8 June 1977 relating to the Protection of Victims of International Armed Conflicts (Protocol I), may also constitute a gross violation of human rights.”

The Council then reiterated “that effective measures to guarantee and monitor the implementation of human rights should be taken in respect of civilian populations in situations of armed conflict, including people under foreign occupation, and that effective protection against violations of their human rights should be provided, in accordance with international human rights law and applicable international humanitarian law, particularly Geneva Convention IV relative to the Protection of Civilian Persons in Time of War, of 12 August 1949, and other international instruments.”

Accompanying the Complaint is a War Crime Report that provides a comprehensive narrative of Hawai‘i’s legal and political history since the nineteenth century to the present. In the Report, Dr. Sai explains, “The Report will answer, in the affirmative, three fundamental questions that are quintessential to the current situation in the Hawaiian Islands:

  1. Did the Hawaiian Kingdom exist as an independent State and a subject of international law?
  2. Does the Hawaiian Kingdom continue to exist as an independent State and a subject of International Law, despite the illegal overthrow of its government by the United States?
  3. Have war crimes been committed in violation of international humanitarian law?”

After answering these questions in the affirmative, Dr. Sai would then conclude that the UNHRC has the authority to investigate the complaint “under the complaint procedure provided for in paragraph 87 of the annex to Human Rights Council resolution 5/1.”

Before providing the facts of Gumapac’s case, the Complaint gives a short summary of the Hawaiian Kingdom’s continued existence as a State under international law, and that this status was explicitly recognized by the Secretariat of the Permanent Court of Arbitration (PCA) in Lance Larsen v. Hawaiian Kingdom (1999-2001).

In the Complaint, Dr. Sai states, “Since the occupation began, the United States engaged in the criminal conduct of genocide under humanitarian law through denationalization. After local institutions of Hawaiian self-government were destroyed by the United States through its installed insurgency, a United States pattern of administration was imposed in 1900, whereby the former Hawaiian national character was obliterated.”

Dr. Sai went on to provide a pattern of criminal conduct in violation of international humanitarian law: “The United States interfered with the methods of education; compelled education in the English language; banned the use of Hawaiian, being the national language, in the schools; compulsory or automatic granting of United States citizenship upon Hawaiian nationals; imposed conscription of Hawaiian nationals into the armed forces of the United States; imposed the duty of swearing the oath of allegiance; confiscated and destroyed property of Hawaiian nationals for militarization; pillaged the property and estates of Hawaiian nationals; imposed American administrative and judicial systems; imposed American financial and economic administration; colonized Hawaiian territory with nationals of the United States; permeated the economic life through individuals whose nationality and/or allegiance was American; and denied Hawaiian nationals of aboriginal blood their vested right to health care at no charge at Queen’s Hospital, which was established by the Hawaiian government for that purpose.”

The Complaint calls upon the Council to take action without haste and recommends the Council to:

  • Strongly call upon the Government of the United States of America and its armed force, the State of Hawai‘i, to take urgent measures to comply fully with their obligations under international law, including international humanitarian law and human rights law;
  • Underline that the Government of the United States of America has the primary responsibility to make every effort to strengthen the protection of the civilian population in the Hawaiian Islands and to investigate and bring to justice perpetrators of violations of human rights and international humanitarian law; and
  • Appoint a Special Rapporteur on the humanitarian crisis in the Hawaiian Islands given the gravity and severity of an illegal and prolonged occupation of an independent State that has been allowed to continue unfettered without precedent in the history of international relations.

Additionally, the Council oversees a process called Universal Periodic Review (UPR), which involves a review of the human rights records of all member States of the United Nations, which includes its record of complying with international humanitarian law. In UPRs, the Council decided in its Resolution 5/1 that “given the complementary and mutually interrelated nature of international human rights law and international humanitarian law, the review shall taken into account applicable international humanitarian law.”

In the Complaint, Dr. Sai also draws attention to the UPR done on the United States in 2015. “The February 6, 2015 Report of the United States submitted to the United Nations High Commissioner for Human Rights in Conjunction with the Universal Periodic Review deliberately withheld information of the Hawaiian Kingdom despite the United States’ full and complete knowledge of arbitration proceedings held under the auspices of the PCA, and where the Secretariat of the PCA explicitly recognized the continuity of the Hawaiian Kingdom.”

Dr. Sai further states that “the draft report of the Working Group on the Universal Periodic Review of the United States dated May 21, 2015, and the final report of the United Nations Human Rights Council adopted on September 24, 2015, omits any mention of the Hawaiian Kingdom as well.” Instead, the 2015 UPR of the United States treats native Hawaiians as an indigenous people, which, under United Nations instruments, are nations of people that are non-States and reside within the territory of a State, such as Native American tribes. Common words that are associated with indigenous people include terms such as self-determination, colonization, and decolonization.

The 2015 UPR reflects the deception that has been perpetuated by the United States in order to conceal its prolonged occupation of the Hawaiian Kingdom that has now lasted for over a century, and the genocide of the Hawaiian citizenry who have been led to believe that aboriginal Hawaiians are an indigenous people that have been colonized by the United States. In the Complaint, Dr. Sai states, “Hawaiian nationals of aboriginal blood are not indigenous people as defined under United Nations instruments, but are defined under Hawaiian Kingdom law as Hawaiian subjects who comprise the majority of the national population.”

The American occupation of Hawai‘i is the longest occupation in the history of international relations, and it will be a shock for the international community to find out that the United States seized an internationally recognized neutral country in order to bolster its military, and carried out a policy of genocide through denationalization in violation of international humanitarian law. This policy that was carried out in 1900 resulted in the obliteration of Hawaiian national consciousness among the citizenry of the Hawaiian Kingdom in less then two generations.

https://vimeo.com/168241369

Dr. Lynette Cruz interviews Dr. Sai on the topic of genocide through denationalization on her television show, Issues that Matter. Dr. Sai explains the difference between international humanitarian law and human rights law, and how genocide has and continues to occur through denationalization of Hawaiian subjects.

Pretext of War: 1894 Protest of Queen Lili‘uokalani

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Lili‘uokalani_3The following protest by Queen Lili‘uokalani dated June 20, 1894 was lodged with the United States Secretary of State Walter G. Gresham. The protest was delivered by H.A. Widemann on June 22, 1894 to United States diplomat Albert S. Willis, assigned to the American Legation in Honolulu. Queen Lili‘uokalani’s protest centers on the events that transpired in January 1893 on the pretext of war and the creation of a pretended government.

January 17, 1893, was the first armed conflict between the Hawaiian Kingdom and the United States of America. The second armed conflict would occur on August 12, 1898 when the Hawaiian Kingdom would be unlawfully occupied by the United States during the Spanish-American War.

The pretended government installed by the United States on January 17, 1893, calling itself the provisional government, would change its name to the Republic of Hawai‘i in 1894, to the Territory of Hawai‘i in 1900, and finally to the State of Hawai‘i in 1959.

US troops 1893

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His Excellency
W.G. Gresham
Secretary of State
Washington, D.C.

To His Excellency
Albert S. Willis
U.S. Envoy Extraordinary Minister Plenipotentiary.

Sir,

Having in mind the amicable relations hitherto existing between the government which you here represent and the government of Hawaii, as evidenced by many years of friendly intercourse, and being desirous of bringing to the attention of your government the facts here following, I, Liliuokalani, by the grace of God, and under the Constitution of the Hawaiian Kingdom, Queen, do hereby solemnly protest that I am now and have continuously been since the 20th day of January A.D. 1891, the Constitutional Sovereign of the Hawaiian Kingdom; that on the 17th day of January A.D. 1893 – (in the words of the President of the United States himself) – “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. A substantial wrong has thus been done which a due regard for our national character as well as the rights of the injured peoples requires we should endeavor to repair;” that on said date I and my government prepared a written 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 said protest was forwarded to the President of the United States, also to Sanford B. Dole, Vice Chairman of the Executive Council of the said Provisional government, and was by the latter duly acknowledged; that in response to said protest the President of the United States sent a special commissioner in the person of Honorable James H. Blount to Honolulu to make an accurate, full, and impartial investigation of the facts attending the subversion of the Constitutional Government of Hawaii and the installment in its place of the Provisional Government; that said Commissioner arrived in Honolulu on the 29th day of March, A.D. 1893 and fulfilled his duties with untiring diligence and with care, tact and fairness; that said Commissioner found 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, also that but for the lawless occupation of Honolulu under false pretexts by the United States forces and but for the United States Minister’s recognition of the provisional government when the United States forces were its sole support, and constituted its only military strength, I, and my government would never have yielded to the provisional government, even for a time, and for the sole purpose of submitting my case to the enlightened justice of the United States, or for any purpose; also that the great wrong done to this feeble but independent state by an abuse of the authority of the United States should be undone by restoring the legitimate government.

That since the happening of said events, the executive and the Congress of the United States have formally declined the overtures of the said Provisional Government for the annexation of the Hawaiian Islands to the United States. That notwithstanding said facts, said provisional government has continued to exercise the functions of government in this Kingdom to the present date, and that its course, from the time of its inception to the present, has been marked by a succession of arbitrary, illiberal and despotic acts, and by the enactment and enforcement of pretended “laws” subversive of the first principles of free government and utterly at variance with the traditions, history, habits, and wishes of the Hawaiian people.

That said Provisional Government has now recently convened and is now holding what it is pleased to term a constitutional convention, composed of nineteen (19) self-appointed members being the President and Executive and Advisory Councils of said provisional government, and eighteen (18) delegates elected by less than ten percent (10%) of the legal voters of the Kingdom, consisting almost entirely of aliens, and chiefly of such aliens as have no permanent home or interest in Hawaii, and which said convention is now considering a draft of a constitution (copy of which is hereto attached) submitted for its approval by the Executive Council of said provisional government consisting of the President and Ministers thereof.

That it is the expressed purpose of the said provisional government to promulgate such Constitution as shall be approved by said convention without submitting it to a vote of the people, or of any of the people, and to thereupon proclaim a government under such constitution, and under the name of the Republic of Hawaii.

That the said provisional government has not assumed a republican or other Constitutional form, but has remained a mere executive council or oligarchy, set up without the consent of the people; that it has not sought to find a permanent basis of popular support, and has given no evidence of an intention to do so; that its representatives assert that the people of Hawaii are unfit for popular government and frankly avow that they can be best ruled by arbitrary or despotic power, and that the proposed constitution so submitted by said executive council of the provisional government for the approval of said convention does not provide for or contemplate a free, popular or republican form of government but does contemplate and provide for a form of government of arbitrary and oligarchical powers, concentrated in the hands of a few individuals irresponsible to the people, or to the representatives of the people, and which is opposed to all modern ideas of free government.

Wherefore, I, the constitutional sovereign of the Hawaiian Kingdom on behalf of myself and the people of my said Kingdom do hereby again most solemnly protest against the acts aforesaid and against any and all other acts done against myself, my people, and the Constitutional government of the Hawaiian Kingdom, and I do hereby most earnestly request that the government represented by you will not extend its recognition to any pretended government of the Hawaiian Islands under whatever name it may apply for such recognition, other than the constitutional government so deposed as aforesaid, – except such government shall show its title to exist by the will of the people of Hawaii, expressed at an election wherein the whole people shall have had an opportunity, unembarrassed by force, and undeterred by fear or fraud to register their preferences as to the form of government under which they will live.

With assurances of my esteem, I am, Sir,

Liliuokalani

The Martens Clause and War Crimes in Hawai‘i

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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.

An agreement was made, but it wasn’t ratified by the fifteen 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.

1899_Peace_Conference_the_Hague

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.

The contracting States to the 1899 Hague Convention, II, also recognized that they were codifying 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 17, 1893 and occupied until April 1, 1893; and invaded again and occupied since August 12, 1898 during the Spanish-American War. The criminal conduct committed by German, Austrian and Bulgarian officials against Serbia and its people are very similar to the criminal conduct by the United States after 1898 against the Hawaiian Kingdom and its people.

Under International Law Native Hawaiians are Victims of Genocide

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Under international humanitarian law, which includes the law of occupation and the protection afforded civilians who are not engaged in war, denationalization is not only a war crime but is synonymous with the term genocide. Since the occupation of the Hawaiian Kingdom began during the Spanish-American War, the United States embarked on a deliberate campaign of forced denationalization in order to conceal the occupation and militarization of a neutral State. Denationalization, in its totality, is genocide.

Children_Salute_1907

Prior to World War I, violations of international law did not include war crimes, or, in other words, crimes where individuals, as separate and distinct from the State or country, could be prosecuted and where found guilty be punished, which included the death penalty. The Commission on the Responsibility of the Authors of the War and on Enforcement of Penalties (Commission on Responsibility) of the Paris Peace Conference of 1919 took up the matter of war crimes after World War I (1914-1918). The Commission identified 32 war crimes, one of which was “attempts to denationalize the inhabitants of occupied territory.”

Although the 1907 Hague Convention, IV, did not specify the term “denationalization” as a war crime, the Commission on Responsibility relied on the preamble of the 1899 Hague Convention, II, which 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 preamble has been called the Martens clause, which was based on a declaration read by the Russian delegate, Professor von Martens, at the Hague Peace Conference in 1899.

In October of 1943, the United States, the United Kingdom and the Soviet Union established the United Nations War Crimes Commission (UNWCC). World War II had been waging since 1939, and atrocities committed by Germany, Italy and Japan drew the attention of the Allies to hold individuals responsible for the commission of war crimes. On December 2, 1943, the UNWCC adopted by resolution the list of war crimes that were drawn up by the Commission on Responsibility in 1919 with the addition of another war crime—indiscriminate mass arrests. The UNWCC was organized into three Committees: Committee I (facts and evidence), Committee II (enforcement), and Committee III (legal matters).

Committee III was asked to draft a report expanding on the war crime of “denationalization” and its criminalization under international law. Committee III did not rely solely on the Martens clause as the Commission on Responsibility did in 1919, but rather used it as an aid to interpret the articles of the 1907 Hague Convention, IV. It, therefore, concluded that “attempts to denationalize the inhabitants of occupied territory” violated Article 43, where the occupying State must respect the laws of the occupied State; Article 46, where family honor and rights and individual life must be respected; and Article 56, where the property of institutions dedicated to education is protected.

In 1944, Professor Raphael Lemkin first coined the term “genocide” in his publication Axis Rule in Occupied Europe (p. 79-95). The term is a combination of the Greek word genos (race or tribe) and the Latin word cide (killing). The 1919 Commission on Responsibility did list “murders and massacres; systematic terrorism” as war crimes, but Professor Lemkin’s definition of genocide was much broader and more encompassing.

Raphael LemkinAccording to Professor Lemkin, “Generally speaking, genocide does not necessarily mean the immediate destruction of a nation, except when accomplished by mass killings of all members of a nation. It is intended rather to signify a coordinated plan of different actions aiming at the destruction of essential foundations of the life of national groups, with the aim of annihilating the groups themselves. The objectives of such a plan would be disintegration of the political and social institutions, of culture, language, national feelings, religion, and the economic existence of national groups, and the destruction of the personal security, liberty, health, dignity, and even the lives of the individuals belonging to such groups.”

“Genocide has two phases,” argued Professor Lemkin, “one, destruction of the national pattern of the oppressed group; the other, the imposition of the national pattern of the oppressor. This imposition, in turn, may be made upon the oppressed population which is allowed to remain, or upon the territory alone, after removal of the population and the colonization of the area by the oppressor’s own nationals. Denationalization was the word used in the past to describe the destruction of a national pattern.” Professor Lemkin believed that denationalization was inadequate and should be replaced with genocide.

The term genocide, however, was not a war crime under international humanitarian law at the time, but it appears that Committee III was in agreement with Professor Lenkin that it should be a war crime. The problem that faced Committee III was how to categorize genocide as a war crime under the Hague Convention, IV. On September 27, 1945, Committee III argued that denationalization was not a single act of “depriving the inhabitants of the occupied territory of their national characteristics,” but rather a program that attempted to achieve this result through: “interference with the methods of education; compulsory education in the language of the occupant; … the ban on the using of the national language in schools, streets and public places; the ban on the national press and on the printing and distributing of books in the language of the occupied region; the removal of national symbols and names, both personal and geographical; [and] interference with religious services as far as they have a national peculiarity.”

Committee III also argued that denationalization included other activities such as: “compulsory or automatic granting of the citizenship of the occupying Power; imposing the duty to swearing the oath of allegiance to the occupant; the introduction of the administrative and judicial system of the occupying Power, the imposition of its financial, economic and labour administration, the occupation of administrative offices by nationals of the occupying Power; compulsion to join organizations and associations of the occupying Power; colonization of the occupied territory by nationals of the occupant, exploitation and pillage of economic resources, confiscation of economic enterprises, permeation of the economic life through the occupying State or individuals of the nationality of the occupant.”

Committee III also stated that these activities by the occupying State or its nationals would also “fall under other headings of the list of war crimes.”

There were apparent similarities between Professor Lemkin’s definition of genocide and the Committee III’s definition of denationalization. Professor Lemkin argued that genocide was more than just mass murder of a particular group of people, but “the specific losses of civilization in the form of the cultural contributions which can only be made by groups of people united through national, racial or cultural characteristics (Lemkin, Genocide as a Crime under International Law, 41 AJIL (1947) 145, at 147).” Similarly, Committee III argued that denationalization “kill[s] the soul of the nation,” and was “the counterpoint to the physical act of killing the body, which was ordinary murder (Preliminary Report of the Chairman of Committee III, C.148, 28 Sept. 1945, 6/34/PAG-3/1.1.0, at 2).”

In its October 4, 1945 report “Criminality of Attempts to Denationalise the Inhabitants of Occupied Territory,” Committee III renamed denationalization to be genocide.

On December 11, 1946, the General Assembly of the United Nations adopted a resolution that declared genocide a crime under the existing international law and recommended member States to sign a convention. After two years of study, the General Assembly adopted the Convention on the Prevention and Punishment of the Crime of Genocide on December 9, 1948. By the Convention, genocide has been recognized as a crime even when there is no war or the occupation of a State. Genocide became an international crime along with piracy, drug trafficking, arms trafficking, human trafficking, money laundering and smuggling of cultural artifacts. During war or the occupation of a State, genocide is synonymous with the war crime of denationalization.

In the Trial of Ulrich Greifelt and Others (October 10, 1947-March 10, 1948) at Nuremberg, the United States Military Tribunal asserted Committee III’s interpretation that genocide can be committed through the war crime of denationalization. In its decision, the Tribunal concluded that, “genocide…may be perpetuated through acts representing war crimes. Among these cases are those coming within the concept of forced denationalisation (p. 42).”

The Tribunal explained, “In the list of war crimes drawn up by the 1919 Commission on the Responsibility of the Authors of the War and on Enforcement of Penalties, there were included as constituting war crimes ‘attempts to denationalize the inhabitants of occupied territory.’ Attempts of this nature were recognized as a war crime in view of the German policy in territories annexed by Germany in 1914, such as in Alsace and Lorraine. At that time, as during the war of 1939-1945, inhabitants of an occupied territory were subjected to measures intended to deprive them of their national characteristics and to make the land and population affected a German province (p. 42).”

When the Hawaiian Kingdom was occupied during the Spanish-American War, the United States operated in complete disregard to the recognized principles of the law of occupation at the time. Instead of administering the laws of the Hawaiian Kingdom, being the occupied State, the United States imposed its own laws, administration, judiciary and economic life throughout the Hawaiian Islands in violation of Hawaiian independence and sovereignty. According to Professor Limken, this action taken by the United States would be considered as “the imposition of the national pattern of the oppressor,” which is the second phase of genocide after the national pattern of the occupied State had been destroyed under the first phase.

In other words, the actions taken by the United States was precisely what the Axis Powers did in occupied territories during World War I and II, which, according to Committee III, included “interference with the methods of education; compulsory education in the language of the occupant; … the ban on the using of the national language in schools, streets and public places; the ban on the national press and on the printing and distributing of books in the language of the occupied region; the removal of national symbols and names, both personal and geographical; [and] interference with religious services as far as they have a national peculiarity. [As well as] compulsory or automatic granting of the citizenship of the occupying Power; imposing the duty to swearing the oath of allegiance to the occupant; the introduction of the administrative and judicial system of the occupying Power, the imposition of its financial, economic and labour administration, the occupation of administrative offices by nationals of the occupying Power; compulsion to join organizations and associations of the occupying Power; colonization of the occupied territory by nationals of the occupant, exploitation and pillage of economic resources, confiscation of economic enterprises, permeation of the economic life through the occupying State or individuals of the nationality of the occupant.”

Under Hawaiian law, native (aboriginal ) Hawaiians had universal health care at no charge through the Queen’s Hospital, which received funding from the Hawaiian Kingdom legislature. Early into the occupation, however, American authorities stopped the funding in 1904, because they asserted that the collection of taxes used to benefit a particular ethnic group violated American law. In a legal opinion by the Territorial Government’s Deputy Attorney General E.C. Peters on January 7, 1904, to the President of the Board of Health, Peters stated, “I am consequently of the opinion that the appropriation of the sum of $30,000.00 for the Queen’s Hospital is not within the legitimate scope of legislative authority.”

Since 1904, aboriginal Hawaiians had to pay for their healthcare from an institution that was established specifically for them at no charge. According to the International Criminal Court’s (ICC) Elements of Crimes, one of the elements of the international crime of “Genocide by deliberately inflicting condition of life calculated to bring about physical destruction,” is that the “conditions of life were calculated to bring about the physical destruction of that group, in whole or in part.” The ICC recognizes the term “conditions of life” includes, “but is not necessarily restricted to, deliberate deprivation of resources indispensable for survival, such as food or medical services, or systematic expulsion from homes.”

As a result of the “deliberate deprivation of…medical services,” many aboriginal Hawaiians could not afford medical care in their own country, which has led to the following dire health statistics today.

  • 13.4% of aboriginal Hawaiians who were surveyed in 2013 reported that they do not have any kind of health care coverage, which is the highest rate across all ethnic groups surveyed (Nguyen & Salvail, Hawaii Behavioral Risk Factor Surveillance System, State of Hawai‘i Department of Health).
  • Aboriginal Hawaiians have the highest rate of diabetes in the Hawaiian Islands (Crabbe, Eshima, Fox, & Chan (2011), Native Hawaiian Health Fact Sheet 2011, Office of Hawaiian Affairs, Demography Section, Research Division).
  • 5% of aboriginal Hawaiians are overweight, which is higher than any other ethnic group in the Hawaiian Islands (Nguyen & Salvail, 2013).
  • 7% of aboriginal Hawaiians have high blood pressure, being second only to Japanese at 39.7% (Nguyen & Salvail, 2013).
  • Aboriginal Hawaiians are more likely to have chronic diseases than non-aboriginal Hawaiians (Nguyen & Salvail, 2013).
  • 48% of the deaths of aboriginal Hawaiian children occur during the perinatal period (Crabbe et al., 2011).
  • 7% of aboriginal Hawaiian adults report being diagnosed with a depressive disorder (Nguyen & Salvail, 2013).

Professor Lemkin would view these statistics as connoting “the destruction of the biological structure” of aboriginal Hawaiians, which is the outcome of the second phase of genocide where the imposition of the national pattern of the oppressor has been established. In addition to these statistics are added the deaths of aboriginal Hawaiians who died in the wars of the United States after forced conscription into the Armed Forces and their compulsion to swear allegiance. These wars included World War I, World War II, the Korean War and the Vietnam War.

US Recruiting Poster

Under Hawaiian Law Native Hawaiians Receive Health Care at No Charge

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Kam IIIIn 1839, King Kamehameha III proclaimed, by Declaration, the protection for both person and property in the kingdom by stating, “Protection is hereby secured to the persons of all the people; together with their lands, their building lots, and all their property, while they conform to the laws of the kingdom, and nothing whatever shall be taken from any individual except by express provision of the laws.” The Hawaiian Legislature, by resolution passed on October 26, 1846, acknowledged that the 1839 Declaration of Rights recognized “three classes of persons having vested rights in the lands,—1st, the government, 2nd, the landlord [Chiefs and Konohikis], and 3d, the tenant [natives] (Principles adopted by the Board of Commissioners to Quiet Land Titles, in their Adjudication of Claims Presented to Them, Resolution of the Legislative Council, Oct. 26, 1846).” Furthermore, the Legislature also recognized that the Declaration of 1839 “particularly recognizes [these] three classes of persons as having rights in the sale,” or revenue derived from the land as well.

These three classes of vested rights, being mixed or undivided in the land, is also reflected in the kingdom’s first constitution in 1840, which states, “Kamehameha I was the founder of the kingdom, and to him belonged all the land from one end of the Islands to the other, though it was not his own private property. It belonged to the chiefs and people in common, of whom Kamehameha was the head, and had the management of the landed property.” The Chiefs and Konohikis carried out the management of the land under the direction of the King for the benefit of the Native Tenants. There is no other country in the world that can boast what a King did for his people in securing their rights in the lands of the kingdom.

Chief Justice William LeeBy definition, a vested right is “a right belonging so absolutely, completely, and unconditionally to a person that it cannot be defeated by the act of any private person and that is entitled to governmental protection usually under a constitutional guarantee.” In 1846, the Hawaiian Legislature recognized that government lands acquired by conveyance remained “subject to the previous vested rights of tenants and others, which shall not have been divested by their own acts, or by operation of law (Statute Laws of Kamehameha III (1846), vol. 1, p. 99).” The Hawaiian Supreme Court in 1851 best articulated the mastery of these vested rights under Hawaiian law in Kekiekie v. Edward Dennis, 1 Haw. 42 (1851). Chief Justice William L. Lee stated, “the people’s lands were secured to them by the Constitution and laws of the Kingdom, and no power can convey them away, not even that of royalty itself.”

On November 7, 1846, the Hawaiian Legislature enacted Joint resolutions on the subject of rights in lands and the leasing, purchasing and dividing of the same that sought to begin the process of dividing out the undivided rights of these three classes in the lands, but it was unsuccessful. The following year in December 1847, executive action was taken by the King in Privy Council to carry into effect a division of the vested rights that has come to be known as the Great Mahele [division]. A common misunderstanding is that the Great Mahele endeavored to divide all the rights of the three classes in the lands. The Great Mahele only divided the vested rights of the Chiefly class from the Government class in the lands. These divided rights over specific lands called ahupua‘a and ili‘aina remained subject to the rights of Native Tenants, who by application to the Minister of the Interior, who managed government lands, or to a particular Chief or Konohiki who managed lands that were separated from the government, could acquire a fee-simple title to their house lot and cultivating lands.

On December 18, 1847, the Privy Council unanimously passed a resolution accepting 7 rules prepared by Chief Justice William Lee that would guide the division of lands between the Government class, the Chiefly class and the Native Tenant class. According to Rule 2, “One third of the remaining lands of the Kingdom shall be set aside as the property of the Hawaiian Government, subject to the direction and control of His Majesty, as pointed out by the Constitution and laws. One third to the Chiefs and Konohikis in proportion to their possessions, to have and to hold to them, their heirs and Successors forever—and the remaining third to the Tenants, the actual possessors and cultivators of the soil, to have and to hold to them their heirs and successors forever (Privy Council Minutes, vol. 10, p. 129).” Rule 3 would apply to the Native Tenants and their division, which states, “The division between the Chiefs or the Konohikis and their Tenants, prescribed by rule second, shall take place, whenever any Chief, Konohiki or Tenant shall desire such a division, subject only to confirmation by the King in Privy Council.” The Rules of the Great Mahele is a living document and a condition of the management of the lands for the Government class and the Chief and Konohiki class. As a living document it remains a condition of land titles throughout the Hawaiian Islands.

After accepting the division of lands between Kamehameha III, in his private capacity as the highest of the Chiefly class, and the Government, the Legislature under An Act Relating to the Lands of His Majesty The King and the of the Government on June 7, 1848, recognized Kamehameha III’s private lands, which came to be known as Crown lands, as “subject only to the rights of tenants (Supplement to the Statute Laws of His Majesty, Kamehameha III (1848), p. 25),” and the Government lands “as subject always to the rights of tenants (p. 41).” The Board of Commissioners to Quiet Land Titles (Land Commission) was tasked with the additional duty to issue Land Commission Awards (LCAs) to Chiefs and Konohikis that received lands in the Great Mahele as well as to native tenants who submitted their claims with the Land Commission. The Land Commission, however, could only grant LCAs to those that filed their claims before February 14, 1848.

Chief Justice William Lee, who also served as President of the Land Commission, wrote an illuminating letter to Reverend Emerson from Wailua, O‘ahu, on the subject of native tenant rights and the lands of Chiefs and Konohikis. Emerson was concerned that not all of the native tenants have filed their claims with the Land Commission before the deadline of February 14, 1848, and was asking if they had therefore lost their rights in the land. Lee responded, “Should the tenants neglect to send in their claims, they will not lose their rights if their Konohiki present claims; for no title will be granted to the Konohiki without a clause reserving the rights of tenants (Letter to Reverend Emerson dated Jan. 12, 1848, Supreme Court Letter Book of Chief Justice Lee, June 3, 1847-April 18, 1854, Judiciary Dept., series 240, box 1, Hawai’i Archives).”

Lee was speaking to the vested rights of the Native Tenant class that was already secured under the constitution and laws of the Kingdom. In LCAs issued to the Chiefs and Konohikis who were assigned lands in the Great Mahele, there is the clause, “Aka, koe nae na kuleana on na Kanaka ma loko (Land Commission Award 8559-B, parcel 31, to W.C. Lunalilo for the iliaina of Kaluakou, Waikiki),” which is translated as “However, reserving the rights of Native Tenants within.” In Royal Patents that were in the English language, the clause “Reserving the rights of Native Tenants (Royal Patent Grant 950 to Robert Robinson)” was expressly written as a condition of the title.

Royal Patent

Under Hawaiian law, all revenues derived from the lands of the Hawaiian Islands; whether by the Government through taxation, rent or sale, or from the Chiefs or Konohikis, through rent or sale, continue to have the vested rights of native tenants. This is what formed the basis as to why the Queen’s Hospital provided health care without charge to native Hawaiians in the nineteenth century because Queen’s Hospital acquired monies from the Government and from Queen Emma as a Chiefess who acquired lands from Mahele grantees, and after her death through the Queen Emma Trust. This is not to be confused with socialism, but rather management of the vested rights of Native Tenants that have and continue to remain in all the lands of the Hawaiian Islands.

As reported by the Pacific Commercial Advertiser in 1901, “The Queen’s Hospital was founded in 1859 by their Majesties Kamehameha IV and his consort Emma Kaleleonalani. The hospital is organized as a corporation and by the terms of its charter the board of trustees is composed of ten members elected by the society and ten members nominated by the Government… The charter also provides for the ‘establishment and putting into operation a permanent hospital at Honolulu, with a dispensary and all necessary furniture and appurtenances for the reception, accommodation and treatment of indigent sick and disabled Hawaiians, as well as such foreigners and others who may choose to avail themselves of the same.’ Under this construction all native Hawaiians have been cared for without charge, while for others a charge has been made of from $1 to $3 per day (Pacific Commercial Advertiser, July 31, 1901, p. 14).”

When the United States seized and occupied the Hawaiian Islands during the Spanish-American War, American laws were illegally imposed in the Hawaiian Kingdom that did not allow health care, at no cost, for Natives. The Hawaiian Kingdom Government annually appropriated $10,000.00 to Queen’s Hospital. Since the occupation began, the American authorities were considering the termination of this annual funding.

In 1901, Queen’s Hospital’s Chairman of the Board of Trustees, George W. Smith, explained, “There is a possibility that the legislative appropriation will be cut off after the first of the year, but even so we shall have funds enough to get along, although the hospital will be somewhat crippled. You see there is a provision in the United States Constitution that public property shall not be taken for private use, or that the people shall not be taxed to support private institutions. The Queen’s Hospital is, from the nature of its charter, a quasi-private institution. When it was chartered it was provided that all Hawaiians, of native birth, should be treated free of charge. Foreigners were to be treated by payment of fees (Pacific Commercial Advertiser, July 30, 1900, p. 2).”

In other words, American law would view Queen’s Hospital’s providing health care at no charge to Natives as race based. The following year, Smith argued, “Under our charter we are compelled to treat native Hawaiians free of charge and I do not see how it can be changed (Pacific Commercial Advertiser, July 31, 1901, p. 14).”

Although there is no express provision in the Charter or By-laws of Queen’s Hospital to provide health care at no cost to Natives, it was universally understood and recognized by the Kingdom’s Constitution and laws that Natives benefit from the revenues derived from the Government and the lands of Queen Emma because of their vested rights. Queen’s Hospital would eventually only receive landed revenues from the Queen Emma Trust, and in 1950, these lands were transferred from the trust to the Hospital. As the occupation progressed, Natives would eventually be denied healthcare at Queen’s Hospital without payment, and if they were unable to pay some could see relief if they were “indigent.”

All the actions taken with regard to Queen’s Hospital and the Queen Emma Trust can be summed up as not only a violation of the laws of the Hawaiian Kingdom, but also a violation of international humanitarian law and human rights law. According to Vincent Bernard, Editorial: Occupation, 94 (885) International Review of the Red Cross 5 (Spring 2012):

“The notion that the occupier’s conduct towards the population of an occupied territory must be regulated underpins the current rules of humanitarian law governing occupation. Another pillar of this body of law is the duty to preserve the institutions of the occupied state. Occupation is not annexation; it is viewed as a temporary situation, and the Occupying Power does not acquire sovereignty over the territory concerned. Not only does the law endeavour to prevent the occupier from wrongfully exploiting the resources of the conquered territory; it also requires the occupier to provide for the basic needs of the population and to ‘restore, and ensure, as far as possible, public order and safety, while respecting, unless absolutely prevented, the laws in force in the country [Article 43, 1907 Hague Convention, IV]’. The measures taken by the occupier must therefore preserve the status quo ante (this is known as the conservationist principle).”

Swiss Criminal Court Accepts Case on War Crimes Committed in Hawai‘i

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Swiss AG Office

Where the following linked documents are in the original German language, an English translation follows.

In 2011, Switzerland passed a statute authorizing the Swiss Attorney General the authority to prosecute war crimes committed abroad. Under Swiss law, all criminal complaints are required to be investigated, and should it be the opinion of the investigator that there are no crimes being committed he is required to draft a report that explains why. This report is subject to review, however, by the Swiss Federal Criminal Court if the report is contested. The review is initiated when a formal Objection is filed with the Court within 10 days in accordance with Article 396(1) of the Swiss Criminal Procedure Code (SCPC). If the Court upholds the Objection, “it may issue instructions to the public prosecutor…on the continuation of the proceedings (Art. 397(3), SCPC).”

This criminal investigation process is very different from criminal investigations that occur within the United States, where the prosecutor has full and complete discretion to investigate a crime or not to investigate, and the decision not to investigate is not subject to review by a higher authority.

In a 2012 decision, the Swiss Federal Criminal Court rejected immunity claims made by a former Algerian Defense Minister Khaled Nezzar that he was immune from prosecution because the alleged war crimes occurred during his time in government office. The Court stated immunity is not available for international crimes such as war crimes, crimes against humanity, torture or genocide.

Dr. Keanu SaiIn December 2014, Dr. Keanu Sai, who represented two victims of war crimes from Hawai‘i through limited powers of attorney, filed a war crime complaint with the Swiss Attorney General (AG) in Bern, Switzerland. Dr. Sai filed additional complaints in January 2015. This initiated an investigation by Prosecutor Andreas Müller from the Swiss AG’s War Crimes Unit that eventually came before the Swiss Federal Criminal Court Objections Chamber in April 2015. The Court decreed that it could not accept Dr. Sai’s Objection due to a procedural technicality.

The Hawaiian Kingdom blog has redacted the name of one of the complainants for security and safety concerns.

After the Court’s decision, Dr. Sai was given information from a reliable source in Switzerland that a former Prosecutor of the Attorney General’s War Crime Unit (Center of Competence for International Crimes) admitted that after receiving the war crime complaints, the War Crime Unit could not refute the evidence of war crimes, and stated, anecdotally, it was as if a bomb went off in the office. He also admitted that the Swiss AG Office deliberately used a procedural technicality to prevent the Court from reviewing the investigation.

In his Report dated February 3, 2015, Prosecutor Müller took the position that war crimes are not being committed because Hawai‘i was annexed in 1898 by a Congressional joint resolution and in 1959 Congress created the State of Hawai‘i as the 50th State. Because of this, according to the Prosecutor, Hawai‘i is not occupied and therefore war crimes have not been committed. The problem with this reasoning, which the Prosecutor knows is wrong, is that he is relying on United States (US) laws enacted by the US Congress, which has no force and effect beyond US borders. According to this logic, Congress could pass a law today annexing Switzerland and then pass another law calling Switzerland its 50th State of the American Federal Union.

US laws are domestic or national laws that apply over the territory of a particular Nation or State. It has no effect beyond the borders of the country whose legislature enacted it. International laws, however, which are laws between nations, can annex foreign territory, which is a treaty or an agreement between the two States. There is no treaty between the Hawaiian Kingdom and the United States. Instead, Hawai‘i was occupied during the Spanish-American War on August 12, 1898, and that occupation has since continued under a cloak of deception and lies.

Responding to Prosecutor Müller’s error of relying on US laws and not international laws, Dr. Sai sent an Objection dated March 31 to the Federal Criminal Court, via FedEx, on April 1, 2015, which was one day prior to the expiration of the ten-day period. The Objection reached the Court in Bellinzona on April 8, 2015. The following day, the Court issued an Order to the Prosecutor to turn over all evidence of his investigation for consideration by the Court.

In just twenty days, the Court issued their Decision on April 28, 2015. After the Court named the former CEO of Deutsche Bank Josef Ackermann, State of Hawai‘i Governor Neal Abercrombie, Lt. Governor Shan Tsutsui, Director of Taxation Frederik Pablo, and Deputy Director Joshua Wisch as alleged war criminals of pillaging, and stating that the 1864 Hawaiian-Swiss Treaty was not cancelled, the Court concluded it was unable to accept the Objection because it was not filed timely within the required 10-day period.

In its judgment, the Court cited a 2012 Federal Criminal Court decision that concluded if a party uses FedEx, being a private courier, and not the Swiss Postal Service or diplomatic representative, the Court can only accept the filings on the day received and not sent. This was the procedural technicality that the former prosecutor spoke of, which is what they used in an attempt to slow down the process. Having been made aware of the actions taken by the Swiss AG’s office, Dr. Sai was preparing to re-file the complaints.

“At the center of these proceedings,” said Dr. Sai, “is whether a domestic law of the United States could have annexed another independent State, being the Hawaiian Kingdom. From a law standpoint it is clear that it cannot because domestic laws are limited to the territory of that particular country.” Dr. Sai also stated, “since the Permanent Court of Arbitration recognized the continued existence of the Hawaiian Kingdom as a “State” during arbitration proceedings from 1999-2001, the Swiss Prosecutor cannot claim otherwise unless he has evidence under international law that the Permanent Court of Arbitration didn’t have that Hawai‘i was annexed by a treaty. If there is a treaty then there are no war crimes, but if there is no treaty then you have war crimes. It’s that simple. ”

Mike McCartneyBefore the re-filing, Dr. Sai met with Governor David Ige’s Chief of Staff Mike McCartney on three occasions in June of 2015. In these meetings that lasted over two hours each, Dr. Sai conveyed to McCartney that his clients were willing to forgo re-filing the complaint with the Swiss AG’s office if the Governor’s office would take corrective measures to address this matter. Dr. Sai also explained the remedy to the situation, which stems from his doctoral research in political science. On July 2, 2015, Dr. Sai provided McCartney a Report that covered what was discussed in the three meetings and a proposed remedy in line with international law and relevant rules of the State of Hawai‘i. After numerous failed attempts to reach McCartney, it left Dr. Sai with no alternative but to re-file the complaint, which would include Lt. Governor Shan Tsutsui who is a carry over from the previous administration under Governor Abercrombie.

On August 18, 2015, the War Crimes Report and Complaint was re-filed.  The investigation commenced in August and lasted for nearly six months. Prosecutor Müller issued a Report on January 28, 2016, again relying on the 1898 joint resolution of annexation and the 1959 Statehood Act.

Dr. Sai received Prosecutor Müller’s Report on February 13, 2016, which made the ten-day window expire on February 23. Dr. Sai sent his Objection to the Federal Criminal Court Objections Chamber on February 20, through the Swiss Postal Service in Geneva, and the Court received it on February 22. According to Article 91(2), SCPC, filings “must be delivered on the day of expiry of the time limit at the latest…handed for delivery to SwissPost, a Swiss diplomatic or consular representations.” In other words, delivery by the Swiss Postal Service or to a diplomatic or consular post is recognized by its post date and not by its date received.

On that same day the Court received Dr. Sai’s Objection, it issued an Order to Prosecutor Müller to furnish the Court right away all records of his investigation. Dr. Sai was copied on the Order.

The following month, Dr. Sai received a Letter from the Court dated March 2, 2016, whereby the Court notified him that the case has been accepted for review and that he will need to provide a security for court costs in the amount of 2,000 Swiss Francs to be deposited in the Court’s bank account by March 14, 2016. Additionally, Dr. Sai was also directed by the Court to resubmit the Objection with his original signature. Dr. Sai’s original Objection pleading that was sent on February 20 had a scanned signature and not his original.

On March 9, 2016, while Dr. Sai was visiting with a friend in San Francisco, he went to the Swiss Consulate to have his letter and package sent to the Court through diplomatic courier. The Consulate acknowledged its receipt of the package on the same day. Swiss law recognizes the “post-date” if sent through the Swiss Consulate, which means the package would be recognized by the Court as being filed on March 9, which is before the March 14 deadline.

Here follows the list of individuals who have been under a criminal investigation for war crimes since August 2015, and which is now under review by the Swiss Federal Criminal Court in Bellinzona, Switzerland.

  1. Greg K. Nakamura—Judge, Circuit Court of the Third Circuit, State of Hawai‘i, whose address is Hale Kaulike, 777 Kilauea Avenue, Hilo, HI 96720-4212, Alleged War crime—Principal perpetrator of denial of a fair and regular trial;
  1. Josef Ackermann, former Chief Executive Officer, Deutsch Bank Management Board, parent company of Deutsche Bank National Trust Company and Deutsche Bank Trust Company Americas, whose address is Gottfried Keller-Strasse 7, 8001 Zurich, Switzerland, Alleged War Crimes—Principal perpetrator of pillaging and accomplice to denial of a fair and regular trial and unlawful arrest and detention;
  1. Jürgen Fitschen, Co-Chief Executive Officer, Deutsche Bank Management Board, parent company of Deutsche Bank National Trust Company and Deutsche Bank Trust Company Americas, whose address is Taunusanlage 12, 60325 Frankfurt, Germany, Alleged War Crimes—Principal perpetrator of pillaging and accomplice to denial of a fair and regular trial and unlawful arrest and detention;
  1. Anshu Jain, Co-Chief Executive Officer, Deutsche Bank Management Board, parent company of Deutsche Bank National Trust Company and Deutsche Bank Trust Company Americas, whose address is Taunusanlage 12, 60325 Frankfurt, Germany, Alleged War Crimes—Principal perpetrator of pillaging and accomplice to denial of a fair and regular trial and unlawful arrest and detention;
  1. Stefan Krause, Chief Financial Officer, Deutsche Bank Management Board, parent company of Deutsche Bank National Trust Company and Deutsche Bank Trust Company Americas, whose address is Taunusanlage 12, 60325 Frankfurt, Germany, Alleged War Crimes—Principal perpetrator of pillaging and accomplice to denial of a fair and regular trial and unlawful arrest and detention;
  1. Stephan Leithner, Chief Executive Officer Europe (except Germany and UK), Human Resources, Legal & Compliance, Government and Regulatory Affairs, Deutsche Bank Management Board, parent company of Deutsche Bank National Trust Company and Deutsche Bank Trust Company Americas, whose address is Taunusanlage 12, 60325 Frankfurt, Germany, Alleged War Crimes—Principal perpetrator of pillaging and accomplice to denial of a fair and regular trial and unlawful arrest and detention;
  1. Stuart Lewis, Chief Risk Officer, Deutsche Bank Management Board, parent company of Deutsche Bank National Trust Company and Deutsche Bank Trust Company Americas, whose address is Taunusanlage 12, 60325 Frankfurt, Germany, Alleged War Crimes—Principal perpetrator of pillaging and accomplice to denial of a fair and regular trial and unlawful arrest and detention;
  1. Rainer Neske, Head of Private and Business Clients, Deutsche Bank Management Board, parent company of Deutsche Bank National Trust Company and Deutsche Bank Trust Company Americas, whose address is Taunusanlage 12, 60325 Frankfurt, Germany, Alleged War Crimes—Principal perpetrator of pillaging and accomplice to denial of a fair and regular trial and unlawful arrest and detention;
  1. Henry Ritchotte, Chief Operating Officer, Deutsche Bank Management Board, parent company of Deutsche Bank National Trust Company and Deutsche Bank Trust Company Americas, whose address is Taunusanlage 12, 60325 Frankfurt, Germany, Alleged War Crimes—Principal perpetrator of pillaging and accomplice to denial of a fair and regular trial and unlawful arrest and detention;
  1. Charles R. Prather, attorney for Deutsche Bank National Trust Company and Deutsche Bank Trust Company Americas, belonging to the law firm RCO Hawaii, LLLC, whose address is 900 Fort Street Mall, Suite 800, Honolulu, HI 96813, Alleged War Crimes—Principal perpetrator of pillaging and accomplice to denial of a fair and regular trial and unlawful arrest and detention;
  1. Sofia M. Hirosone, attorney for Deutsche Bank National Trust Company and Deutsche Bank Trust Company Americas, belonging to the law firm RCO Hawaii, LLLC, whose address is 900 Fort Street Mall, Suite 800, Honolulu, HI 96813, Alleged War Crimes—Principal perpetrator of pillaging and accomplice to denial of a fair and regular trial and unlawful arrest and detention;
  1. Michael G.K. Wong, attorney for Deutsche Bank National Trust Company and Deutsche Bank Trust Company Americas, belonging to the law firm RCO Hawaii, LLLC, whose address is 900 Fort Street Mall, Suite 800, Honolulu, HI 96813, Alleged War Crimes—Principal perpetrator of pillaging and accomplice to denial of a fair and regular trial and unlawful arrest and detention; and
  1. Glenn Swanson, realtor belonging to the real estate firm Savio Realty, whose address is 15-2911 Pahoa Village Rd, Pahoa, HI 96778, Alleged War Crimes—Principal perpetrator of pillaging and accomplice unlawful arrest and detention; and
  1. Sandra Hegerfeldt, realtor belonging to the real estate firm Savio Realty, whose address is 15-2911 Pahoa Village Rd, Pahoa, HI 96778, Alleged War Crimes—Accomplice to pillaging and unlawful arrest and detention; and
  1. Jessica Hall, realtor belonging to the real estate firm Savio Realty, whose address is 15-2911 Pahoa Village Rd, Pahoa, HI 96778, Alleged War Crimes—Accomplice to pillaging and unlawful arrest and detention; and
  1. Dana Kenny, realtor belonging to the real estate firm Savio Realty, whose address is 15-2911 Pahoa Village Rd, Pahoa, HI 96778, Alleged War Crimes—Accomplice to pillaging and unlawful arrest and detention; and
  1. Shawn H. Tsuha, at the time of the pillaging, unfair trial and unlawful arrest, Sheriff, State of Hawai‘i Department of Public Safety Sheriff’s Department, whose address is 919 Ala Moana Boulevard, 4th Floor, Honolulu, HI 96814, Alleged War Crimes—Principal perpetrator of pillaging and accomplice to denial of a fair and regular trial and unlawful arrest and detention; and
  1. Patrick Kawai, Lieutenant, State of Hawai‘i Department of Public Safety Sheriff’s Department, whose address is Hale Kaulike, 777 Kilauea Avenue, Hilo, HI 96720-4212, Alleged War Crimes—Principal perpetrator of pillaging and accomplice to denial of a fair and regular trial and unlawful arrest and detention.
  1. Samuel Jelsma, Captain, County of Hawai‘i Police Department, State of Hawai‘i, whose address is 15-2615 Kea‘au-Pahoa Road, Hilo, HI 96778, Alleged War Crimes—Principal perpetrator of unlawful arrest and detention;
  1. Reed Mahuna, Lieutenant, County of Hawai‘i Police Department, State of Hawai‘i, whose address is 15-2615 Kea‘au-Pahoa Road, Hilo, HI 96778, Alleged War Crimes—Principal perpetrator of unlawful arrest and detention;
  1. Brian Hunt, Patrolman, County of Hawai‘i Police Department, State of Hawai‘i, whose address is 15-2615 Kea‘au-Pahoa Road, Hilo, HI 96778, Alleged War Crimes—Principal perpetrator of unlawful arrest and detention;
  1. Glenn Hara, Judge, Circuit Court of the Third Circuit, State of Hawai‘i, whose address is Hale Kaulike, 777 Kilauea Avenue, Hilo, HI 96720-4212, Alleged War Crimes—Principal perpetrator of denial of a fair and regular trial; and
  1. Mitch Roth, Prosecuting Attorney, County of Hawai‘i, whose address is Aupuni Center, 655 Kilauea Avenue, Hilo, HI 96820, Alleged War Crimes—Principal perpetrator of unlawful arrest and accomplice to denial of a fair and regular trial.
  1. Barack Obama, President of the United States, whose address is 1600 Pennsylvania Avenue NW, Washington, DC 20500, Alleged War Crime—Principal perpetrator of unlawful appropriation of property;
  1. Jack Lew, Secretary, United States Treasury, since February 28, 2013, whose address 1500 Pennsylvania Avenue, NW, Washington, D.C. 20220, Alleged War Crime—Principal perpetrator of unlawful appropriation of property;
  1. Neal Wolin, former Secretary, United States Treasury, from January 25, 2013 to February 28, 2013, whose address 1500 Pennsylvania Avenue, NW, Washington, D.C. 20220, Alleged War Crime—Principal perpetrator of unlawful appropriation of property;
  1. Timothy F. Geithner, former Secretary, United States Treasury, from January 26, 2009 to January 25, 2013, whose address 1500 Pennsylvania Avenue, NW, Washington, D.C. 20220, Alleged War Crime—Principal perpetrator of unlawful appropriation of property;
  1. Stuart A. Levey, former Secretary, United States Treasury, from January 20, 2009 to January 26, 2009, whose address 1500 Pennsylvania Avenue, NW, Washington, D.C. 20220, Alleged War Crime—Principal perpetrator of unlawful appropriation of property;
  1. Henry M. Paulson, former Secretary, United States Treasury, from July 10, 2006 to January 20, 2009, whose address 1500 Pennsylvania Avenue, NW, Washington, D.C. 20220, Alleged War Crime—Principal perpetrator of unlawful appropriation of property;
  1. Robert M. Kimmit, former Secretary, United States Treasury, from June 30, 2006 to July 10, 2006, whose address 1500 Pennsylvania Avenue, NW, Washington, D.C. 20220, Alleged War Crime—Principal perpetrator of unlawful appropriation of property;
  1. John W. Snow, former Secretary, United States Treasury, from February 3, 2003 to June 30, 2006, whose address 1500 Pennsylvania Avenue, NW, Washington, D.C. 20220, Alleged War Crime—Principal perpetrator of unlawful appropriation of property;
  1. Neal Abercrombie, former Governor, State of Hawai‘i, from December 6, 2010 to December 1, 2014, whose address is State of Hawai‘i Executive Chambers, State Capital, Honolulu, HI 96813, Alleged War Crime—Principal perpetrator of pillaging;
  1. Linda Lingle, former Governor, State of Hawai‘i, from December 2, 2002 to December 6, 2010, whose address is State of Hawai‘i Executive Chambers, State Capital, Honolulu, HI 96813, Alleged War Crime—Principal perpetrator of pillaging;
  1. Ben Cayetano, former Governor, State of Hawai‘i, from December 2, 1994 to December 2, 2002, whose address is State of Hawai‘i Executive Chambers, State Capital, Honolulu, HI 96813, Alleged War Crime—Principal perpetrator of pillaging;
  1. Shan Tsutsui, Lieutenant Governor, State of Hawai‘i, since December 27, 2012, whose address is State of Hawai‘i Executive Chambers, State Capital, Honolulu, HI 96813, Alleged War Crime—Principal perpetrator of pillaging;
  1. Brian Schatz, former Lieutenant Governor, State of Hawai‘i, from December 6, 2010 to December 26, 2012, whose address is State of Hawai‘i Executive Chambers, State Capital, Honolulu, HI 96813, Alleged War Crime—Principal perpetrator of pillaging;
  1. Duke Aiona, former Lieutenant Governor, State of Hawai‘i, from December 4, 2002 to December 6, 2010, whose address is State of Hawai‘i Executive Chambers, State Capital, Honolulu, HI 96813, Alleged War Crime—Principal perpetrator of pillaging;
  1. Mazie Hirono, former Lieutenant Governor, State of Hawai‘i, from December 2, 1994 to December 2, 2002, whose address is State of Hawai‘i Executive Chambers, State Capital, Honolulu, HI 96813, Alleged War Crime—Principal perpetrator of pillaging;
  1. Frederik Pablo, former Director of Taxation, State of Hawai‘i, from 2010 to 2014, whose address is State of Hawai‘i Executive Chambers, State Capital, Honolulu, HI 96813, Alleged War Crime—Principal perpetrator of pillaging;
  1. Stanley Shiraki, former Director of Taxation, State of Hawai‘i, from 2009 to 2010, whose address is State of Hawai‘i Executive Chambers, State Capital, Honolulu, HI 96813, Alleged War Crime—Principal perpetrator of pillaging;
  1. Kurt Kawafuchi, former Director of Taxation, State of Hawai‘i, from 2006 to 2009, whose address is State of Hawai‘i Executive Chambers, State Capital, Honolulu, HI 96813, Alleged War Crime—Principal perpetrator of pillaging;
  1. Joshua Wisch, former Deputy Director of Taxation, State of Hawai‘i, from 2012 to 2013, and currently serving as Spokesman for the Attorney General’s Office of the State of Hawai‘i, whose address is State of Hawai‘i Executive Chambers, State Capital, Honolulu, HI 96813, Alleged War Crime—Principal perpetrator of pillaging;
  1. Randolf L.M. Baldemor, former Deputy Director of Taxation, State of Hawai‘i, from 2010 to 2012, whose address is State of Hawai‘i Executive Chambers, State Capital, Honolulu, HI 96813, Alleged War Crime—Principal perpetrator of pillaging;
  1. Ronald B. Randall, former Deputy Director of Taxation, State of Hawai‘i, from 2009 to 2010, whose address is State of Hawai‘i Executive Chambers, State Capital, Honolulu, HI 96813, Alleged War Crime—Principal perpetrator of pillaging;
  1. Sandra Yahiro, former Deputy Director of Taxation, State of Hawai‘i, from 2006 to 2009, whose address is State of Hawai‘i Executive Chambers, State Capital, Honolulu, HI 96813, Alleged War Crime—Principal perpetrator of pillaging;
  1. Bernard Carvalho, Mayor for Kaua‘i County, State of Hawai‘i, since December 1, 2008, whose address is 4444 Rice St., Suite 235, Lihue, HI 96766, Alleged War Crime—Principal perpetrator of pillaging;
  1. Kaipo Asing, former Mayor for Kaua‘i County, State of Hawai‘i, from July 17, 2008 to December 1, 2008, whose address is 4444 Rice St., Suite 235, Lihue, HI 96766, Alleged War Crime—Principal perpetrator of pillaging; and
  1. Bryan Baptiste, former Mayor for Kaua‘i County, State of Hawai‘i, from 2002 to July 17, 2008, who is deceased, Alleged War Crime—Principal perpetrator of pillaging.

These individuals are named as alleged war criminals for pillaging, unlawful appropriation of property, unfair trial and unlawful confinement, which are all war crimes under the Fourth Geneva Convention (1949) and international humanitarian law.

To understand the background of the alleged war crimes committed against Kale Kepekaio Gumapac by Deutsche Bank and State of Hawai‘i officials, Big Island Video News uploaded a 5-part news series in 2013.