Talk story with Dr. David Keanu Sai and attorney Dexter Kaiama in Hilo concerning the international ramifications of the proposed Thirty Meter Telescope on Mauna Kea, and the growing awareness of the continued existence of the occupied Hawaiian Kingdom.
by David Corrigan
HILO – Inspired by the kapu aloha on display during the blockade of the Thirty Meter Telescope, Hawaii residents are flocking to Mauna Kea. Last Thursday, 31 people were arrested in connection with the blockade of the $1.4 billion observatory. However, the incident only strengthened the support for the protectors of the sacred mountain. On Monday, two figures active on the international front lines of the Hawaiian Kingdom joined the gathering.
Big Island Video News interviewed Dr. David Keanu Sai and attorney Dexter Kaiama about the latest developments on Mauna Kea and the international response.
What many people may not know is that it was the State of Hawai‘i Intermediate Court of Appeals (ICA) in 1994 that established a landmark and precedent case where defendants have the burden to provide a factual or legal basis that would conclude the Hawaiian Kingdom continues to exist as a state when they are challenging the jurisdiction of the trial courts. This case is State of Hawai‘i v. Lorenzo. This has been an open legal question and not a political question that has been before the courts in Hawai‘i for the past twenty-one years. It was conclusively answered “yes” in another landmark case State of Hawai‘i v. English during an evidentiary hearing on March 5, 2015.
The Lorenzo case was in response to the United States Congressional apology for the illegal overthrow of the Hawaiian Kingdom government on January 17, 1893—U.S. Public Law 103-150. In 1993, the Congress admitted to the United States’ illegal overthrow of the Hawaiian government, but it did not admit to the overthrow of the Hawaiian Kingdom as a state. A government is not a state in international law. A state is a sovereign country that is a member of the family of nations, while a government is the physical body that exercises the sovereign authority of the country. State and country are synonymous, and history shows that while governments were overthrown, it doesn’t mean that countries were overthrown. Examples include the overthrow of the Japanese government by the Allied countries in 1945 during World War II, the overthrow of the Kuwaiti government by Iraq in 1990 during the Gulf War, and the overthrow of the Iraqi government in 2003 by the United States during the Iraq War.
The Lorenzo case addressed this very issue of whether or not the Hawaiian state still exists despite the admitted illegal overthrow of its government in 1893. There has been a common misunderstanding that treats the overthrow of the Hawaiian government synonymous with the overthrow of the Hawaiian state. The Lorenzo case distinguishes the two and concluded that this is an open legal question. If the Hawaiian state continues to exist, then the State of Hawai‘i (USA) cannot legally exist in the Hawaiian Islands.
In 1991, Anthony Lorenzo was tried in the First Circuit Court after being indicted on criminal charges of failing to render assistance after being involved in an automobile accident, driving without a license, and negligent injury. A pre-trial motion to dismiss the indictment was filed claiming that the State of Hawai‘i had no jurisdiction over him because the Hawaiian Kingdom still existed as a sovereign nation. The trial judge denied the motion to dismiss, which became the basis for the appeal to the ICA in 1994.
Judge Walter Heen, who authored the Lorenzo judgment, wrote, “The essence of the lower court’s decision is that even if, as Lorenzo contends, the 1893 overthrow of the Kingdom was illegal, that would not affect the court’s jurisdiction in this case. Although the court’s rationale is open to question in light of international law, the record indicates that the decision was correct because Lorenzo did not meet his burden of proving his defense of lack of jurisdiction. Therefore, we must affirm the judgment.” Judge Heen concluded, “it was incumbent on Defendant to present evidence supporting his claim. Lorenzo has presented no factual (or legal) basis for concluding that the Kingdom exists as a state in accordance with recognized attributes of a state’s sovereign nature. Consequently, his argument that he is subject solely to the Kingdom’s jurisdiction is without merit, and the lower court correctly exercised jurisdiction over him.”
In the ICA decision, Judge Heen provided the definition of a state as “an entity that has a defined territory and a permanent population, under the control of its own government, and that engages in, or has the capacity to engage in, formal relations with other such entities.” A careful reading of this definition clearly distinguishes the state from its government, where the “state” is “under the control of its own government.” The government is not the state.
Judge Heen also stated, “The illegal overthrow leaves open the question whether the present governance system should be recognized, even though the illegal overthrow predated the United Nations Charter.” The Lorenzo case put forth a legal question in both State of Hawai‘i and Federal Courts in the Hawaiian Islands, as well as bringing in international law. This legal question has profound consequences that centers on whether the Hawaiian Kingdom as a state exists or not. It is international law that will determine the existence of the Hawaiian state, and not the laws of the United States.
In the Nishitani v.Baker (1996), Judge Corrine Watanabe of the ICA stated, “In retrospect, our statement in Lorenzo that a criminal defendant has the burden of proving his or her defense of lack of jurisdiction may have generated some confusion. [Hawai‘i Revised Statutes] specifically provides that in a criminal case, a defendant may not be convicted unless the State proves beyond a reasonable doubt ‘facts establishing jurisdiction.’ The burden of proving jurisdiction thus clearly rests with the prosecution. However, where immunity claims are raised as a defense to jurisdiction, the burden is on the defendant to establish his or her immunity status.”
For the past twenty-one years, judges at the trial court level have consistently denied requests by defendants to dismiss either criminal or civil complaints filed in the State of Hawai‘i and Federal courts on the grounds that the Hawaiian Kingdom continues to exist. These judges have relied on the Lorenzo case to deny the requests. When these decisions are taken on appeal, the ICA has routinely upheld the judgments by citing the Lorenzo case, “Because the defendant had ‘presented no factual (or legal) basis for concluding that the Kingdom exists as a state in accordance with recognized attributes of a state’s sovereign nature,’ we determined that the defendant had failed to meet his burden of proving his defense of lack of jurisdiction.”
The ICA cited the burden of the Lorenzo case was not met by the defendants in a total of forty-one appeals between 1994 and 2014, and the Hawai‘i Supreme Court during this same period cited the same failure of defendants to provide a “factual (or legal) basis for concluding that the Kingdom exists as a state” in six appeals. In total there have been forty-seven appeals that cited the landmark Lorenzo case that was decided on October 20, 1994. What isn’t accounted for, however, is how many trial courts denied defendants motions to dismiss that did not make it to an appeal.
In all of these cases that came before the State of Hawai‘i appellate courts, the defendants provided evidence of some sort, but the Lorenzo case required the defendants to provide evidence that is “conclusive,” and not just evidence. Conclusive is evidence that is “indisputable” between the prosecution or plaintiff and the defense. In order to overcome this hurdle of “indisputability,” which is a very high standard, the defendants need to have an evidentiary hearing where the rules of evidence are applied. It is in the evidentiary hearing that the defendants can introduce evidence that the Hawaiian Kingdom continues to exist as a state according to the Lorenzo case. The prosecution or the plaintiff, however, cannot object to the evidence for the sake of objecting. They have to provide counter-evidence. If they object by providing counter-evidence then the evidence is considered “disputable,” and therefore would not meet the burden of the Lorenzo case where it has to be “indisputable” making the evidence “conclusive” that the Kingdom exists as a state.
One way to get the evidence to be recognized as “indisputable” and “conclusive” would be to have the court take “judicial notice” of the defendant’s evidence under Rules 201 and 202 of the Hawai‘i Rules of Evidence. Black’s Law Dictionary (p. 848, 6th ed. 1990) defines judicial notice as the “act by which a court recognizes the existence and truth of certain facts.” Under Rule 201 is judicial notice of “adjudicative facts,” and Rule 202 is judicial notice of laws. When Judge Cardoza took judicial notice of Dr. Keanu Sai’s legal brief titled, “The Continuity of the Hawaiian State and the Legitimacy of the acting Government of the Hawaiian Kingdom,” at the request of the defense during the evidentiary hearing on March 5, 2015 in State v. English at the Second Circuit Court on the Island of Maui, it included both “adjudicative facts” and “laws.”
Throughout the evidentiary hearing, the prosecution did not object to Dr. Sai’s expert testimony that the Hawaiian Kingdom continues to exist as a state under international law, and it didn’t object to the Judge taking judicial notice of Dr. Sai’s brief that concludes the existence of the Hawaiian state. By not objecting during an evidentiary hearing, the prosecution was in agreement with the evidence being presented. What is extremely important during a criminal proceeding is the appearance of fairness and due process because the defendants are facing a judgment that could lead to imprisonment. In other words, the only way for the prosecution to object to the evidence presented by the defendants is that it must show counter evidence. Without counter evidence, the prosecution cannot object for the sake of objecting. To do so would be to violate the defendants’ right to a fair trial and due process.
State v. English is a landmark case, because the judge took judicial notice of adjudicative facts and laws that concludes the Hawaiian Kingdom continues to exist as a state under international law. The evidentiary ruling made by Judge Cardoza during a fair evidentiary proceeding has “conclusively” determined that there is a “factual (or legal) basis for concluding that the Kingdom exists as a state.” In 21 years of case law (common law), the English case has finally and conclusively answered the legal question presented by Judge Heen in the Lorenzo case in 1994.
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The forty-one cases heard by the ICA using the Lorenzo case are: State v. French, 77 Haw. 222, 228, 883 P.2d 644, 650 (1994); Nishitani v. Baker, 82 Hawai‘i 281, 289, 921 P.2d 1182, 1190 (1996); Chalon Int’l of Haw. v. Makuaole, 95 Haw. 243, 20 P.3d 676 (2000); State v. Sherman, 95 Haw. 243, 20 P.3d 676 (2000); State v. Joshua, Haw. App. LEXIS 247 (2001); State v. Moore, Haw. App. LEXIS 242 (2001); State v. Lindsey, 98 Haw. 142, 44 P.3d 293 (2002); State v. Miyahira, 98 Haw. 287, P.3d 754 (2002); State v. Keawemauhili, 101 Haw. 330, 76 P.3d 829 (2003); Makapono Partners, LLC v. Simeona, Haw. App. LEXIS 120 (2003); State v. Araujo, 103 Haw. 508, 83 P.3d 771 (2004); Betsill Bros. Constr., Inc. v. Akahi, Haw. App. LEXIS 218 (2004); State v. Keli‘ikoa, 105 Haw. 92, 93 P.3d 1199 (2004); State v. Fergerstrom, 106 Haw. 41, 101 P.3d 225 (2004); State v. Tanaka, 106 Haw. 246, 103 P.3d 406 (2004); State v. Spinney, 106 Haw. 389, 105 P.3d 266 (2005); State v. Ball, 113 Haw. 507, 155 P.3d 690 (2007); State v. Steffey, Haw. App. LEXIS (2008); State v. Nakatsu, Haw. App. LEXIS (2008); State v. Ampong, 120 Haw. 255, 203 P.3d 675 (2009); State v. Makekau, 121 Haw. 202, 216 P.3d 128 (2009); State v. Rodenhurst, Haw. App. LEXIS 588 (2010); State v. Craig-Rodenhurst, Haw. App. LEXIS 664 (2011); State v. Kaluau, 125 Haw. 251, 258 P.3d 948 (2011); RMS Residential Properties, LLC v. Valdez, 125 Haw. 475, 264 P.3d 53 (2011); Burgo v. State, 127 Haw. 240, 277 P.3d 334 (2012); State v. Au, 128 Haw. 476, 290 P.3d 546 (2012); State v. Kawa‘auhau, 128 Haw. 477, 290 P.3d 547 (2012); Federal National Mortgage Association v. Bise, 129 Haw. 268, 297 P.3d 1124 (2013); Wells Fargo Bank N.A. v. Armitage, 129 Haw. 295, 298 P.3d 1059 (2013); Federal Home Loan Mortgage Corporation v. Griep, 129 Haw. 425, 301 P.3d 1266 (2013); Deutsche Bank National Trust Company v. Pa‘a, 130 Haw. 302, 309 P.3d 970 (2013); State v. Armitage, 129 Haw. 425, 301 P.3d 1266 (2013); Federal National Mortgage Association v. Duarte, 129 Haw. 452, 303 P.3d 1229 (2013); First Hawaiian Bank v. Kamakea, 129 Haw. 452, 303 P.3d 1229 (2013); The Bank of New York Mellon v. Velez, 129 Haw. 426, 301 P.3d 1267 (2013); U.S. Bank National Association v. Shim-Palama, 129 Haw. 427, 301 P.3d 1268 (2013); State v. Palama, 129 Haw. 428, 301 P.3d 1269 (2013); Federal National Mortgage Association v. Barros, 129 Haw. 449, 302 P.3d 717 (2013); State v. Kana‘ele, 132 Haw. 518, 323 P.3d 162 (2014); State v. Kanaka‘ole, 132 Haw. 518, 323 P.3d 162 (2014).
The six cases heard by the Supreme Court using the Lorenzo case are: State v. Lee, 90 Haw. 130, 976 P.2d 444 (1999); State v. Sinagoga, Haw. LEXIS 135 (2002); State v. Fergerstrom, Haw. LEXIS 254 (2004); State v. Rodenhurst, Haw. LEXIS 280 (2010); State v. Kaulia, 128 Haw. 479, 291 P.3d 377 (2013); State v. Armitage, 132 Haw. 36, 319 P.3d 1044 (2014).
PRESS RELEASE FOR IMMEDIATE RELEASE March 27, 2015
Maui Circuit Court Judge takes Judicial Notice that the Hawaiian Kingdom still Exists and State of Hawai‘i Courts lack Subject Matter Jurisdiction
HONOLULU, HAWAI‘I—Today, Dexter K. Kaiama, attorney for Kaiula Kalawe English and Robin Wainuhea Dudoit, filed a petition for a writ of mandamus with the Hawai’i Supreme Court in Honolulu seeking an order to compel Judge Joseph E. Cardoza to dismiss the criminal cases against his clients because Judge Cardoza took judicial notice that the Hawaiian Kingdom continues to exist, which admits that the State of Hawai‘i did not have subject matter jurisdiction over the arrests and criminal proceedings. Judge Cardoza refused to dismiss the criminal complaints despite taking judicial notice that the court does not have subject matter jurisdiction.
English and Dudoit were two of four Molokai fishermen alleged to have boarded another fishing boat from the island of O‘ahu off the coast of Molokai and threatening those on board. The Associated Press reported, “Some Molokai residents are hailing four arrested fishermen as heroes for protecting their island’s resources from outsiders.” Hanohano Na‘ehu said after the arraignment where all four fishermen pleaded not guilty, “This happening is a great way to highlight that people have been coming from different islands to Molokai to rape, pillage and raid our resources for the longest time.” He also stated, “For us on Molokai, these four individuals are heroes. All they were doing was protecting the resources for our families, for our communities, for our island.”
Kaiama filed a motion to dismiss the criminal cases against his clients on February 6, 2015, and an evidentiary hearing was held in the Second Circuit Court in Wailuku, Island of Maui before Judge Cardoza on March 5. Kaiama’s motion to dismiss relied on the research and expertise of David Keanu Sai, Ph.D., a Hawai‘i political scientist, whose research is focused on the continued existence of the Hawaiian Kingdom as an independent state. Included in Kaiama’s motion to dismiss was an extensive legal brief authored by Dr. Sai.
Kaiama’s motion to dismiss centered on two precedent cases from the Hawai‘i Intermediate Court of Appeals (ICA), State of Hawai‘i v. Lorenzo in 1994 and Nishitani v. Baker in 1996. These cases stated that if defendants are challenging the jurisdiction of the court by claiming the Hawaiian Kingdom continues to exist today as an independent state, they have a burden to provide “a factual (or legal) basis for concluding that the Kingdom exists as a state.” If defendants are successful in providing conclusive evidence, the trial court must dismiss the case.
The Lorenzo case came on the heels of the United States Congress passing a law in 1993 apologizing for the illegal overthrow of the government of the Hawaiian Kingdom by the United States on January 17, 1893. In light of the admitted illegality by the United States, the ICA stated in the Lorenzo case, that the “illegal overthrow leaves open the question whether the present governance system should be recognized.”
Since 1994, this has been an open legal question and the Hawai‘i courts have repeatedly denied motions to dismiss because the defendants have failed to provide conclusive evidence of the Hawaiian Kingdom’s existence as a state under international law. These decisions have been routinely confirmed on appeal.
At the March 5 hearing on the island of Maui, Dr. Sai was acknowledged as an expert witness for the defense by Judge Cardoza without objection from the Deputy Prosecuting Attorney Lloyd Phelps.
Click here to download the transcript of the Evidentiary hearing, which is Exhibit “4” of the Petition for Mandamus.
After being qualified as an expert witness, Kaiama asked, “Dr. Sai, based on all of your research, based on your background and your education and this specialty, you understand that on behalf of my clients I am bringing a motion to dismiss for lack of subject matter jurisdiction?” Dr. Sai responded, “Yes.”
Kaiama then asked, “Based on all of your research and your expertise in this area, Dr. Sai, have you reached any conclusions about this, and can you tell us what your conclusions are?” In response, Dr. Sai stated, “the Court would not have subject matter jurisdiction as a result of international law.”
Kaiama then followed up with, “And if you can explain or perhaps expand on that explanation and tell us why the Court does not have subject matter jurisdiction in this case?” For the next thirty-five minutes Dr. Sai provided a historical and legal narrative that began when Great Britain and France jointly recognized the Hawaiian Kingdom as an independent state on November 28, 1843, to the current situation of the Hawaiian Kingdom being occupied by the United States today since the Spanish-American War in 1898. Dr. Sai presented facts, law and other evidence that the Hawaiian Kingdom as a state was never extinguished by the United States, and, therefore, by a principle known in international law as the presumption of continuity, the Kingdom still exists.
At no time did Deputy Prosecutor Phelps object to Dr. Sai’s expert testimony and when Judge Cardoza asked if the prosecution had any questions for Dr. Sai after Kaiama concluded his questions, Phelps stated, “Your Honor, the State has no questions of Dr. Sai. Thank you for his testimony. One Army officer to another, I appreciate your testimony.” Dr. Sai did state that he was a retired captain from the Army. Prosecutor Phelps served as a former Army Staff Judge Advocate officer.
After Dr. Sai’s testimony, Kaiama requested Judge Cardoza to take judicial notice of all the evidence of the Hawaiian Kingdom’s existence, which included Dr. Sai’s written brief. When Judge Cardoza asked, “What’s the prosecution’s position?” The prosecution responded, “No objection, your Honor.” Judge Cardoza then stated, “there being no objection, the Court will take judicial notice as requested.”
Click here to download the Dr. Sai’s legal brief titled “The Continuity of the Hawaiian State and the Legitimacy of the acting Government of the Hawaiian Kingdom,” which is a part of Exhibit “1” of the Petition for Mandamus.
“Once judicial notice was taken of the evidence that the Hawaiian Kingdom continues to exist as a state, it is considered indisputable and true,” according to Kaiama. “Judicial notice is a very significant ruling on evidence and when the court took judicial notice, it said that it is conclusive that the Hawaiian Kingdom exists,” said Kaiama. “And according to the precedent cases of State of Hawai‘i v. Lorenzo and Nishitani v. Baker, the trial court was compelled to dismiss the criminal cases against my clients.”
“This is the first time that a judge has taken judicial notice—meaning he has accepted under the Rules of Evidence, without protest, the whole set of findings that lead to the conclusion that the Hawaiian Kingdom exists,” said Williamson Chang, a senior law professor at the University of Hawai‘i Richardson School of Law. “This is groundbreaking.”
“The point is that judicial notice is a finding that acknowledges ‘the sun rises in the East,’—a judge cannot therefore, in his decision deny this fact he took notice of and say, ‘I find that the sun rises in the West,’” explained Professor Chang. “The Court’s acceptance of the offered facts under the doctrine of judicial notice and the Court’s decision to not grant the motions to dismiss are clearly at odds. As such, attorney Dexter Kaiama was required to file a petition for mandamus to compel the judge to correct his ruling.”
In the petition for mandamus, Kaiama called the decision by Judge Cardoza a violation of common law and Hawai‘i’s plain error doctrine. In the petition plain error is defined as seriously affecting “the fairness, integrity, or public reputation of judicial proceedings, to serve the ends of justice, and to prevent the denial of fundamental rights.” The petition is seeking an order from the Hawai‘i Supreme Court directing Judge Cardoza to immediately dismiss the criminal complaints against his clients.
“The trial court cannot disregard twenty-one years of Hawai‘i case law,” said Kaiama. “In 1994, the Intermediate Court of Appeals provided keys to the door as to whether the Hawaiian Kingdom continues to exist, and in 2015, with keys in hand, we unlocked and pushed wide open that door by conclusively proving the Hawaiian Kingdom does exist.”
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CONTACT: Dexter K. Kaiama, Esquire
Phone: (808) 284-5675
Email: cdexk@hotmail.com
A joint resolution of Congress doesn’t empower the United States to acquire another country. Only a treaty can do that.
Professor Williamson Chang of the University of Hawai’i Williams S. Richardson School of Law as a contributor previously published this article in Civil Beat. Professor Chang has allowed this piece to be posted on this blog. Williamson Chang is a professor of Law and member of the faculty senate at the University of Hawai‘i at Manoa. Professor Chang has been teaching at the University of Hawai‘i School of Law for 37 years. He specializes in water rights, Native Hawaiian rights, the legal history of Hawai‘i and conflict of laws.
In Civil Beat recently, Justice Antonin Scalia, associate justice of the U.S. Supreme Court, made two critical points on the annexation of Hawaii: First, he stated that a joint resolution of the United States could acquire the territory of Hawai‘i — a foreign, sovereign and independent nation state. Second, he stated that the Constitution permitted the use of a joint resolution instead of a treaty.
He was wrong on both points.
First, a joint resolution is merely a law, an act of Congress. It has no power to acquire the territory of a foreign, sovereign state. If such a thing were possible, Hawai‘i itself could have, by an act of its Legislature, acquired the United States. Second, the only mode by which the United States could acquire Hawai‘i, an independent and sovereign nation like the United States, would be by treaty.
Second, the acquisition of Hawai‘i by a joint resolution of Congress would undermine the Constitution. The use of a joint resolution in place of a treaty would be an “end run” around an enumerated power — the power over foreign affairs that is delegated solely to the president and the Senate. The House has no power as to foreign affairs and does not vote on or ratify treaties.
Moreover, the use of joint resolution to accomplish a treaty with a foreign sovereign undermines the super-majority required of the Senate as to the ratification of treaties. The Senate must ratify such measures by a two-thirds majority of those Senators present.
This is made clear in the U.S. Constitution, Article II, Clause 2: “[The President] shall have the Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur …”
The inability of President William McKinley to garner the necessary two-thirds vote in the Senate to ratify the Treaty of Annexation of 1897 led the administration to seek annexation by a mere act of Congress — a joint resolution. The administration could pass a joint resolution but not a treaty. This is precisely why McKinley attempted to annex by joint resolution.
Many are ignorant of or deceived about the joint resolution and the acquisition of Hawai‘i. Many do not know the specifics of the U.S. Constitution or the history of Hawai‘i. Yet, we expect more from Justice Scalia, for he has great power over the future of Native Hawaiians. His exchange with Jacob Bryan Aki, as published in Civil Beat, showed a surprising lack of constitutional knowledge. Aki, a Hawaiian student at George Washington University, asked Justice Scalia the following question during a class visit to the Supreme Court on Feb. 11:
“Does the Constitution provide Congress the power to annex a foreign nation through a joint resolution rather than a treaty?”
Scalia answered by first turning the question back at Aki. “Why would a treaty be needed,” he asked. “There is nothing in the Constitution that prohibits Congress from annexing a foreign state through the means of a joint resolution. If the joint resolution is passed through both the U.S. House and Senate, then signed by the president, it went through a ‘process.’ ”
Let us pretend that Scalia was on the floor of the U.S. Senate in the summer of 1898. Sen. William V. Allen of Nebraska and others would have reminded him that a joint resolution is only an act of Congress. It has no power to reach out and acquire foreign territory or a foreign country.
“A joint resolution if passed becomes a statute law. It has no other or greater force. It is the same as if it were entitled ‘an act.’ That is its legal classification,” said Allen. “It is therefore impossible for the government of the United States to reach across its boundaries into the dominion of another government and annex that government or the persons or property therein.
“But the United States may do so under the treaty making power, which I shall hereafter consider.”
In addition, Allen said, “Mr. President, how can a joint resolution such as this be operative? What is the legislative jurisdiction of Congress? Does it extend over Hawai‘i? May we in this anticipatory manner reach out beyond the sea and assert our authority under a resolution of Congress within the confines of that independent nation? Where is our right, our grant of power, to do this? Where do we find it?
“The joint resolution itself, it is admitted, amounts to nothing so far as carrying any effective force is concerned. It does not bring that country within our boundaries. It does not consummate itself.”
Moreover, Sen. Thomas Turley of Tennessee stated:
“It is admitted that if the Joint Resolution is adopted, the Republic of Hawai‘i can determine whether or not it will accept the provisions contained in the joint resolution. In other words, the adoption of the resolution does not consummate the transaction.
“The Republic of Hawai‘i does not become a part or the territory of the United States by the adoption of the joint resolution …”
Sen. John Coit Spooner of Wisconsin added his view: “Of course, our power would not be extraterritorial.”
Sen. A.O. Bacon of Georgia made the same point: “Under the law of the equal sovereignty of states, one independent and sovereign nation such as the United States cannot take another nation, such as Hawai‘i, by means or its own legislative act.”
Bacon noted that if the United States could take Hawai‘i by joint resolution, it could so take Jamaica. If that were true, any nation could acquire any other. Hawai‘i could annex the United States. “If the President of the United States can do it in the case of Hawai‘i, he can with equal propriety and legality do it in the case of Jamaica …”
Sen. Stephen White of California noted annexation by joint resolution was unprecedented: in American history: “… there is no instance where by a joint resolution it has been attempted not only to annex a foreign land far remote from our shores, but also to annihilate a nation, to withdraw it from the sovereign societies of the world as a government.”
On the issue of the constitutionality of the use of a joint resolution, Bacon made it clear: Hawai‘i could only be acquired by a Treaty. “If Hawai‘i is to be annexed, it ought certainly to be annexed by a constitutional method; and if by a constitutional method, it cannot be annexed, no Senator ought to desire its annexation.”
Finally, Bacon — one of the most senior members of the Senate — predicted that the annexation of Hawai‘i by joint resolution would do great damage to the Constitution and the Union.
“If we pass the joint resolution, we enter upon a revolution which shall convert this country from a peaceful country into a warlike country. If we pass the resolution, we transform this country from one engaged in its own concerns into one which shall immediately proceed to intermeddle with the concerns of all the world.
“If we pass the joint resolution, we inaugurate a revolution which shall convert this country from one designed for the advancement and the prosperity and the happiness of our citizens into one which shall seek its gratification in dominion and domination and foreign acquisition.”
Native Hawaiians have forgotten that many Americans stood with them in 1898. After all, the Treaty of 1897, the only legal means for taking Hawai‘i, failed not because the Senate of the Republic of Hawai‘i failed to ratify the Treaty. It was the United States Senate that did not ratify the Treaty.
In conclusion, the joint resolution could not acquire Hawai‘i. Moreover, it was unconstitutional. Justice Scalia’s comments are evidence of the pervasive and widespread falsehoods as to annexation that have spread to the highest political and judicial offices in the United States. The myth of annexation is a deliberate deception that has oppressed the people of Hawai‘i for 122 years.
Historic quotes above are from Volume 31 of the Congressional Record pages 6142 to 6712, the verbatim record of the Senate debate in 1898.
Host Simon Baker of Canada’s television series Native Planet travels to Hawai‘i and uncovers the legal history of Hawai‘i as an independent and sovereign State under an illegal and prolonged occupation and the impact on Hawai‘i’s people. This is a reposting of the video that was posted on this blog in October 2014 due to requests to repost. If you are having trouble viewing this video you can view the video on Youtube by clicking here.
Kale Gumapac and Nanci Munroe are interviewed by Dr. Lynette Cruz regarding the pillaging of his home and the commission of war crimes. Kale speaks to the issues first hand and shares his journey of knowledge and awareness of the history of his country to a victim of war crimes. Kale’s case was reported by his attorney Dexter Kaiama to the United States Pacific Command, the International Criminal Court, the Hawai‘i Police Department, and the Swiss Attorney General for prosecution.
On December 12, 2005, Kale and his former wife took out a loan with Argent Mortgage Company, LLC, in the amount of $290,000.00. As security for the loan, the Gumapacs mortgaged their home property, which was recorded in the Bureau of Conveyances. The Gumapacs, as the mortgagor, assumed their title was free and clear as did Argent Mortgage Company, LLC, being the mortgagee of the title since it cleared escrow. As the mortgagee, Argent Mortgage Company, LLC, did not have title to the property, but only a lien. Title being vested in the Gumapacs as the mortgagor.
When the Gumapacs mortgaged their property in order to secure the repayment of the loan, they were required by Argent Mortgage Company, LLC, as a condition of the loan, to go to escrow, being Security Title Guaranty Corporation, to purchase a loan title insurance policy in the amount of $290,000.00 for the benefit of Argent Mortgage Company, LLC, should there be a defect in title, which would render the mortgage invalid. Many people confuse the terms mortgage and a promissory note, which is a loan, as if they are synonymous. In fact, a mortgage is a security instrument or collateral that secures the the promissory note, it is not a loan. So if a mortgage is invalid due to a defect in title, it does not release the borrower from the debt owed to the bank, which is, however, covered by the lender’s insurance policy the borrower purchased.
According to the loan policy the Gumapacs purchased at escrow on December 19, 2005, they paid a premium $1,050.00 for the policy with Argent Mortgage Company, LLC, as the named insured. The Gumapacs previously paid a premium of $660.00 for an owner’s title insurance policy for their protection against title defects on February 24, 2003 for a coverage of $178,000.00 from Title Guaranty Company. Deutsche Bank purchased the Gumapac’s mortgage and loan, which was included with other mortgages and loans in a mortgage-backed security. Along with the mortgage and loan, Deutsche Bank replaced Argent Mortgage Company, LLC, as the beneficiary of the loan title insurance policy.
According to Black’s Law Dictionary, 6th ed., title insurance is a “policy issued by a title company after searching the title, representing the state of that title and insuring the accuracy of its search against claims of title defects.” It is an indemnity contract that does not guarantee the state of the title but covers loss incurred from a defect in land titles that would arise from an inaccurate title report.
Below is a copy of the lender’s policy they purchased at escrow from Stewart Title Guaranty Company, being a Texas corporation. Both lender’s and owner’s title insurance policies provide the same coverage of risks to the title.
On January 21, 2011, Kale’s company Laulima Title Search and Claims, LLC, (LTSC) investigated the status of his fee-simple title that was acquired from the Linda Vivian Little and Alice Evelyn Little on April 17, 2002, and recorded in the Bureau of Conveyances. Kale is the owner of LTSC, which provides claims packages to be filed with title insurance companies under a lender’s and owner’s policy.
LTSC’s investigation identified defects in Kale’s fee-simple title that should have been disclosed in the title report done by Security Title Corporation, which they paid $468.75 at escrow and reflected in section 1100—Title Charges of the HUD Final Settlement Statement. The title report was the basis of the lender’s title insurance policy the Gumapacs purchased. Security Title Corporation and Title Guaranty Company, Inc., are fully aware that all land titles in the Hawaiian Islands originate in the year 1845 through Land Commission Awards and Royal Patents. It was also in 1845 that the Hawaiian legislature established notaries public and the Bureau of Conveyances. LTSC’s processor’s report was based on an expert memorandum Dr. Keanu Sai authored as a consultant to LTSC. The report summarized the defect by stating:
“This claim involves a defect of title by virtue of an executive agreement entered into between President Grover Cleveland of the United States and Queen Lili‘uokalani of the Hawaiian Kingdom, whereby the President and his successors in office were and continue to be bound to faithfully execute Hawaiian Kingdom law by assignment of the Queen under threat of war on January 17th 1893. The notaries public in the Hawaiian Islands and the registrar of the Bureau of Conveyances were not lawful since January 17th 1893, and therefore title to the estate in fee-simple described as Lot 2787, area 1.00 acre, more or less, Block 7, as shown on Map 58 filed in the Office of the Assistant Registrar of the Land Court of the State of Hawai`i with Land Court Application no. 1053 (amended) of W.H. Shipman, Limited, under document no. 2895104 & certificate no. 505052, filed with the Registrar of the Bureau of Conveyances on February 24th 2003, is vested other than Kale Kepekaio Gumapac and Dianne Dee Gumapac, now divorced, because the aforementioned deed of conveyance was not lawfully executed in compliance with Hawaiian Kingdom law.”
According to a United States presidential investigation into the illegal overthrow of the Hawaiian government, President Cleveland concluded in his message to Congress on December 18, 1893, that the so-called provisional government “was neither a government de facto nor de jure,” but self-declared (see page 453, Exhibit A of the memorandum). Additionally, the United States Congress in its 1993 joint resolution of apology for the illegal overthrow (Public Law 103-150) admitted that the provisional government’s successor was also self-declared. The resolution stated “Whereas, through the Newlands Resolution, the self-declared Republic of Hawaii ceded sovereignty over the Hawaiian Islands to the United States.” This preamble in the apology resolution is problematic because it conflates two problems—the first is that Congress by legislation has no effect beyond the borders of the United States, and, second, the so-called Republic was self-declared and therefore not a government, since by definition self-declared is defined as proclaimed or announced by oneself.
Since all titles in the Hawaiian Islands originated in 1845, the defective notaries and registrars of the Bureau of Conveyances after January 17, 1893, which were members of the self-declared provisional government and the Republic of Hawai‘i, are covered risks under section 2(a)(iii) and 2(a)(vi) of the lender’s title insurance the Gumapacs purchased to protect the lender. By letter to Deutsche Bank dated November 22, 2011, Kale demanded Deutsche Bank to file a loss of title claim with Stewart Title Insurance Company under the lender’s title insurance policy he purchased to protect the bank should their be a defect in title and consequently an invalid mortgage. Because Deutsche Bank was the beneficiary of the title insurance policy purchased by the Gumapacs, Deutsche Bank is supposed to file the insurance claim and not the Gumapacs.
Section 3 of the lender’s title insurance policy stated: “The Insured shall notify the Company promptly in writing…in case Knowledge shall come to an insured of any claim of title or interest that is adverse to the Title or the lien of the insured Mortgage, as insured, and that might cause loss or damage for which the Company may be liable by virtue of this policy… If the Company is prejudiced by the failure of the Insured Claimant to provide prompt notice, the Company’s liability to the Insured Claimant under the policy shall be reduced to the extent of the prejudice.”
Deutsche Bank who was represented by attorneys Charles Prather, Sofia Hirosone and Michael G.K. Wong of the law firm RCO Hawai‘i, LLLC, refused to file the claim and continued to proceed against Kale. These proceedings in the Third Circuit Court i in the city of Hilo, Island of Hawai‘i, constituted the war crime of denying Kale a fair trial as well as pillaging his home.
What many people may not know is that a title insurance policy does not insure the validity of the title, but only the accuracy of the title search that the title insurance underwrites. Only the grantor of the title, who in the case of the Gumapacs is Linda Vivian Little and Alice Evelyn Little, ensures that the title is valid under a warranty, not Deutsche Bank as the mortgagee or Stewart Title Guaranty Corporation who issued the policy. Again, the definition of title insurance, it is a “policy issued by a title company after searching the title, representing the state of that title and insuring the accuracy of its search against claims of title defects.”
The foreclosure process is a collection of a debt, and Kale has been consistent with his obligations in the repayment of that debt to Deutsche Bank. It is Deutsche Bank that did not comply with the contractual obligations. If Deutsche Bank filed an insurance claim, and the insurance company in their response provided clear evidence that the provisional government and the Republic of Hawai‘i were not self-declared, but lawful governments of Hawai‘i, then Deutsche Bank would be legally authorized, by virtue of the mortgage agreement, to carry out the eviction as a means by which a debt is being collected.
There was no lawful basis for Deutsche Bank to carry out the foreclosure and eviction if they were given due notice of the defect in the mortgagor’s title by Kale as the mortgagor, himself. As a mortgagee, Deutsche Bank can claim no better interest in the property than Kale, which is precisely why a lender’s title insurance policy was made a condition of the loan in the first place. What is for sure is that war crimes were committed against an innocent person by the following individuals who were reported to the U.S. Pacific Command, the International Criminal Court, the Hawai‘i Police Department, and the Swiss Attorney General:
Judge Greg K. Nakamura, Circuit Court of the Third Circuit, State of Hawai‘i, whose address is Hale Kaulike, 777 Kilauea Avenue, Hilo, HI 96720-4212;
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;
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;
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;
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;
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;
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;
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;
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;
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;
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;
Lieutenant Patrick Kawai, State of Hawai‘i Department of Public Safety Sheriff’s Department, to include his superiors and deputies, whose address is Hale Kaulike, 777 Kilauea Avenue, Hilo, HI 96720-4212;
Police Chief Harry S. Kubojiri, County of Hawai‘i Police Department, whose address is 349 Kapiʻolani Street, Hilo, HI 96720;
Detective Brian D. Prudencio, Office of Professional Standards, County of Hawai‘i Police Department, whose address is 349 Kapiʻolani Street, Hilo, HI 96720;
Captain Samuel Kawamoto, County of Hawai‘i Police Department, whose address is 349 Kapiʻolani Street, Hilo, HI 96720; and
Detective Derek Morimoto, County of Hawai‘i Police Department, whose address is 349 Kapiʻolani Street, Hilo, HI 96720.
Everyone who claims to own property in the Hawaiian Islands all have a defective title and consequently mortgages that are invalid. But everyone also purchased title insurance at escrow to protect the bank in case of a defective title, which pays off the debt the borrowers owe. The irony of this whole situation is that the above named perpetrators of war crimes assuredly have the same insurance policies Kale has if they currently have a mortgaged loan. These individuals have quickly moved from victims themselves to alleged war criminals who mistakenly thought that Kale was a sovereignty activist. Everyone should begin to read their escrow papers and they will find the very same documents that were at the center of the war crimes.
A former diplomat reported war crimes being committed in the Hawaiian Islands to Swiss Attorney General in Bern
ZURICH, SWITZERLAND – On December 22, 2014, it was reported by a former diplomat to Swiss Attorney General Michael Lauber that war crimes are being committed in the Hawaiian Islands. The case has been assigned to a Prosecuting Attorney of the Center of Competence of International Crimes, an agency of the Office of the Attorney General that is empowered to prosecute war crimes.
A month later on January 22, 2015, the Prosecuting Attorney received a formal criminal complaint in Bern by a Swiss citizen residing in the Hawaiian Islands alleging war crimes have been committed against him and his family by the State of Hawai‘i and the government of the United States. The Swiss citizen traveled to Bern for this very reason. His name is kept confidential for safety reasons and he has invoked his right to protective measures under Article 152 of the Swiss Criminal Procedure Code.
Click here to download complaint by Swiss citizen.
“Through rigorous academic research, especially in the department of political science at our university, a revised view of the status of Hawai‘i in international law has emerged,” explained the diplomat. “In several dissertations that came out in the last few years it was proven that the Hawaiian Kingdom continues to exist as an independent State, yet under a prolonged occupation by the United States of America since the Spanish-American War (1898).”
“In this context,” the diplomat stated, “it should also be mentioned that the Hawaiian Kingdom entered into a treaty of friendship, establishment and commerce with the Swiss Confederation in 1864, which has never been terminated by any of the two contracting parties.”
“Spearheading this research concerning the legal status of Hawai‘i is Dr. David Keanu Sai who graduated from the University of Hawai‘i at Manoa with a Ph.D. dissertation on that topic a few years ago, and who has subsequently inspired a series of other academic researchers,” said the diplomat.
On September 19, 2014, Professor Williamson Chang, a senior law professor at the William S. Richardson School of Law, University of Hawai‘i at Manoa, wrote a letter to U.S. Attorney-General Eric Holder, in which he reported war crimes being committed by the United States on Hawaiian territory. ABC News Australia covered the story and Attorney General Holder has been silent on the reporting.
The diplomat explained to Swiss Attorney General Lauber, “It is Professor Chang’s letter to Attorney General Holder concerning the committing of war crimes in Hawai‘i that prompted me to turn to the Swiss authorities, because it directly affects the estimated 600 Swiss citizens residing here in the Islands, as well as all foreign citizens residing or doing business in the Islands. Because of his expertise, I have therefore asked Dr. Sai to put together an exhaustive report for the attention of Swiss citizens, which I have the honor to forward to you.”
Dr. Sai’s report answers three initial questions in order to provide context for the reporting of war crimes: first, whether the Hawaiian Kingdom existed as an independent State and a subject of international law; second, whether the Hawaiian Kingdom continues to exist as an independent State and a subject of international law, despite the illegal overthrow of its government by the United States; and, third, whether war crimes have been committed in violation of international humanitarian law.
After the three questions have been answered in the affirmative, Dr. Sai addressed whether the Swiss Federal Government is capable of investigating and prosecuting war crimes that occur outside of its territory. According to the report, Dr. Sai states that the Swiss authorities are authorized under Swiss law to prosecute war crimes committed outside of its territory under passive personality jurisdiction where the victim is a Swiss citizen, under active personality jurisdiction where the perpetrator is a Swiss citizen, and also under universal jurisdiction where the victim and/or perpetrator of the war crime are not Swiss citizens.
A complainant who is identified in Dr. Sai’s report is Mr. Kale Kepekaio Gumapac, a Hawaiian subject, who resides on the island of Hawai‘i and has alleged war crimes have been committed against himself by Deutsche Bank for the pillaging of his home, whose Chief Executive Officer at the time was Josef Ackermann, a Swiss citizen and resident of Zurich. Deutsche Bank’s pillaging of his home was carried out by State of Hawai‘i Deputy Sheriff Lieutenant Patrick Kawai.
On January 22, 2015, Gumapac amended his complaint to include active personality jurisdiction due to the fact that Josef Ackermann is a Swiss citizen and resides within the territory of the Swiss Confederation. Swiss law mandates an investigation of crimes committed abroad where the perpetrator or victim are Swiss citizens. Gumapac also invoked his rights as a Hawaiian subject under the 1864 Hawaiian-Swiss Treaty that states, “Hawaiians shall be received and treated in every canton of the Swiss Confederation, as regards their persons and their properties, on the same footing and in the same manner as now or may hereafter be treated, the citizens of other cantons.”
Click here to download Gumapac’s amended complaint.
The pillaging stemmed from an unfair trial, which is a war crime under the 1949 Geneva Convention, IV, because since the State of Hawai‘i is self-declared, its courts cannot claim that they are properly constituted under the law. Gumapac also named the trial judge, Greg Nakamura, had committed the war crime of depriving Gumapac of a fair trial after Gumapac’s attorney, Dexter Kaiama, provided clear evidence that the court was unlawful. Nakamura disregarded the evidence and allowed Deutsche Bank to pillage Gumapac’s home despite the fact that Gumapac had title insurance to cover the debt owed to Deutsche Bank.
Dr. Sai also serves as the attorney for both claimants by virtue of specific powers of attorney entered into in Geneva, Switzerland, by the unnamed Swiss citizen, and by Gumapac in the State of Washington, United States of America.
In his report, Dr. Sai drew a comparison of Hawai‘i’s occupation by the United States to the German occupation of Luxembourg during the First World War from 1914-1918. Like Luxembourg, the Hawaiian Kingdom was a recognized neutral State, and both occupations took place without armed resistance.
According to Dr. Sai, “The Germans invaded Luxembourg in order to use it as a military base to launch attacks against France, and the United States invaded the Hawaiian Kingdom and used it as a military base to launch attacks against Spain in its Pacific colonies of Guam and the Philippines. Where the German occupation ended in four years, only to be reoccupied again by Germany from 1940-1945, the Hawaiian Kingdom has since been under a prolonged occupation and its territory has and continues to be used as a military base of operations in all the wars the United States has participated in since 1898.”
On March 30, 2013, the Peoples Republic of North Korea formally declared war on South Korea and the United States. In its declaration North Korea specifically stated they have targeted Hawai‘i because of the presence of the United States military. Hawai‘i serves as the headquarters for the Pacific Command, which is the largest combatant command for the Department of Defense.
“What people don’t realize,” said Dr. Sai, “is that the Hawaiian Islands was never a part of the United States. It is the territory of the Hawaiian Kingdom that has been an independent and sovereign State since November 28, 1843 and a recognized neutral State since the Crimean War in 1854. The Hawaiian Islands were never acquired by the United States under international law and it is international law that maintains and protects its independence and continued existence.”
In his report, Dr. Sai identifies two armed conflicts. The first was an armed invasion by United States troops on January 16, 1893 and lasted until April 1, 1893. A subsequent Presidential investigation concluded the United States to be in the wrong and negotiated settlement by executive agreement with the Hawaiian government. The second armed conflict occurred during the Spanish-American War when the Hawaiian Kingdom was occupied on August 12, 1898 after the Congress passed a law unilaterally seizing the Hawaiian Islands on July 7, 1898. The President and the Congress knowingly violated Hawaiian neutrality after the Spanish consul in the Hawaiian Islands made a formal protest. Hawai‘i’s neutral status was explicitly stated in Article 26 of the 1863 Spanish-Hawaiian Treaty. Hawai‘i was used as a base of operations against the Spanish in the Pacific. The war came to an end on December 10, 1898, but the United States remained as an occupier and fortified the Hawaiian Islands as a military outpost.
According to Dr. Sai, “What you have here is deception and fraud on a grand scale where the United States government deliberately mislead the international community that Hawai‘i was made a part of the United States in order to conceal the military occupation of a neutral and independent State.”
According to the report, Dr. Sai states that a formal policy of Americanization through denationalization was instituted in the public schools throughout the Hawaiian Islands in 1906 called Program for Patriotic Exercises in the Public Schools. The Hawaiian language was banned and replaced by the English language. The children were also taught American history, patriotic songs, figureheads, and holidays. The purpose, according to Dr. Sai, was to obliterate the national character of the Hawaiian Kingdom through institutionalized indoctrination.
Dr. Sai states that the Americanization is reminiscent of Germanization and Italianization in occupied territories during World War II that took place in Norway, France, Luxembourg, the Soviet Union, Denmark, Belgium, the Netherlands, and Yugoslavia. In only three generations, this indoctrination nearly succeeded in erasing any memory of the national character of the Hawaiian Kingdom, but through academic research at the University of Hawai‘i the true status of Hawai‘i is being exposed.
This revelation not only has legal and political consequences, but also economic consequences as well. As a direct result of the United States deliberate failure to abide by international law, titles to real estate in the Hawaiian Islands could not be conveyed since 1893 because there were no functioning notaries under Hawaiian law to acknowledge the deeds of conveyances. Without valid titles, mortgages can’t exist. And because there are no valid mortgages, this has a direct and dire impact on mortgage-backed securities that include mortgages from the Hawaiian Islands, which are now realized to be defective. The recent banking crisis that centered on mortgage-backed securities and foreclosures pales in comparison to the Hawaiian situation.
“My reporting of war crimes is a very serious issue and it should not be taken lightly by anyone, including myself,” said the diplomat. “According to Swiss law, a person must report a crime to the proper authorities if there is corroborating evidence. And that is what I did.”
CONTACT: Dr. David Keanu Sai
Email: keanu.sai@gmail.com
It has been a common misunderstanding by individuals who are not familiar with international law that the laws of occupation did not become a part of international law until the year 1899, which is when the Hague Conventions were signed. The 1907 Hague Conventions later superseded these Conventions. Because of the chronology, as the argument goes, the United States was not bound by the Hague Conventions because the occupation of the Hawaiian Kingdom occurred one year before in 1898. And since laws do not have a retroactive effect—unless explicitly stated, the United States was not bound to follow a law that wasn’t in effect at the time the occupation occurred. This would be inaccurate.
First, there are two primary sources of international law—customary and treaties. Customary international law is defined by the International Court of Justice as “evidence of a general practice accepted as law.” Since there is no law making body at the international level, such as legislative bodies within countries, international law is created by the consent and actions of independent and sovereign States, since international law is literally law “between” nations (States). As a result, States themselves create international law through practice and if all States are doing the same “general practice” it is considered customary international law that all States are bound by. An example of customary international law is diplomatic immunity. Customary international law can also be codified into a treaty, which is the other primary source of international law.
When States met in the city The Hague in the Netherlands in 1899 to codify the laws of war and occupation, they did not create new law but merely codified what was already regarded as customary international law. According to Professor Graber, The Development of the Law of Belligerent Occupation: 1863-1914 (1949), “nothing distinguishes the writing of the period following the 1899 Hague code from the writing prior to that code (p. 143).” With regard to the occupation of a State’s territory during war, the laws of the occupied State must be administered by the occupant State since occupation does not transfer sovereignty to the occupier.
This requirement was codified under Article 43 of the 1899 Hague Convention, II, which 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.” Although the United States signed and ratified both Hague Regulations, which post-date the occupation of the Hawaiian Islands, the “text of Article 43,” according to Professor Benvenisti, The International Law of Occupation (1993), “was accepted by scholars as mere reiteration of the older law, and subsequently the article was generally recognized as expressing customary international law (p. 8).”
When the Spanish-American War broke out, President McKinley proclaimed that the Spanish-American war would “be conducted upon principles in harmony with the present views of nations and sanctioned by their recent practice,” and acknowledged the constraints and protection international laws provide to all sovereign states, whether belligerent or neutral. As noted by Senator Henry Cabot Lodge during the Senate’s secret session, Hawai`i, as a sovereign and neutral state, was no exception when it was occupied by the United States during its war with Spain.Article 43 of the 1899 Hague Convention, II, which remained the same under the 1907 amended Hague Convention, IV, delimits the power of the occupant and serves as a fundamental bar on its free agency within an occupied State, whether belligerent or neutral.
On April 25, 1898, the U.S. Congress declared war against Spain and battles were fought in the Spanish colonies of the Philippines and Guam in the Pacific, and the Spanish colonies of Cuba and Puerto Rico in the Caribbean. Although fighting ceased in Puerto Rico and Cuba on July 25 under an armistice agreement signed in Washington, D.C., fighting continued in the Philippines until August 13 when a second armistice was signed. Both armistices suspended hostilities pending the negotiation of a treaty of peace that was eventually signed in Paris on December 10, 1898.
Before the first armistice was signed, President McKinley sent directives to the Secretary of War on July 13, 1898 regarding occupations by U.S. troops during the war. This prompted the Secretary of War to publish General Orders No. 101 and was provided to all commanders of U.S. troops, to include the commander of troops that occupied the Hawaiian Kingdom, which took place on August 12, 1898, one year before the armistice was signed suspending hostilities in the Philippines. General Orders No. 101 clearly reflects the United States recognition of customary international law regarding the law of occupation, which are the same provisions codified in the 1899 Hague Convention, II.
The commanders of U.S. troops occupying the Hawaiian Kingdom since August 12, 1898 disregarded General Orders No. 101. The failure of the commanders of U.S. troops in the Hawaiian Kingdom to comply with General Orders No. 101 and international humanitarian law, to include its current commander of the U.S. Pacific Command, Admiral Locklear, is why war crimes have and continue to be committed on a monumental scale.
In 2012, Admiral Locklear was notified by attorney Dexter Kaiama that war crimes are being committed in the courts of the State of Hawai‘i. Kaiama’s protest and demand stated:
“As the Commander of the U.S. Pacific Command, your office is the direct extension of the United States President in the Hawaiian Islands through the Secretary of Defense. As the Hawaiian Kingdom continues to remain an independent and sovereign State, the Lili‘uokalani assignment and Article 43 of the 1907 Hague Convention IV mandates your office to administer Hawaiian Kingdom law in accordance with international law and the laws of occupation. The violations of my client’s right to a fair and regular trial are directly attributable to the President’s failure, and by extension your office’s failure, to comply with the Lili‘uokalani assignment and Article 43 of the 1907 Hague Convention, IV, which makes this an international matter.”
Although Admiral Locklear disregarded the protest and demand, he cannot claim he wasn’t aware. In order for a person to have committed a war crime, the perpetrator must be aware of the alleged war crimes and possesses the criminal element of intent—mens rea (criminal intent), in the commission of the war crime—actus reus (the guilty act). Defenses to criminal liability include mistake of fact and mistake of law.
According to Article 30(1) of the Rome Statute of the International Criminal Court, the defendant is “criminally responsible and liable for punishment…only if the material elements [of the war crime] are committed with intent and knowledge.” Therefore, the Prosecutor of the International Criminal Court will prosecute if there is a mental element that includes a volitional component (intent) as well as a cognitive component (knowledge). Article 30(2) further clarifies that “a person has intent where: (a) In relation to conduct, that person means to engage in the conduct; [and] (b) In relation to a consequence, that person means to cause that consequence or is aware that it will occur in the ordinary course of events.”
With regard to knowledge, Article 30(3) of the Rome Statute provides that “‘knowledge’ means awareness that a circumstance exists or a consequence will occur in the ordinary course of events.” “A mistake of fact,” according Article 32(1), “shall be a ground for excluding criminal responsibility only if it negates the mental element required by the crime,” and a “mistake of law,” according to Article 32(2), “shall not be a ground for excluding criminal responsibility [unless] …it negates the mental element required by such a crime, or as provided for in article 33.” Article 33 provides that a crime that “has been committed by a person pursuant to an order of a Government or of a superior, whether military or civilian, shall not relieve that person of criminal responsibility unless: (a) the person was under a legal obligation to obey orders of the Government or the superior in question; (b) the person did not know that the order was unlawful; and (c) the order was not manifestly unlawful.”
General Orders No. 101 is a lawful order that has not been complied with for over a century and the excuse that the Order is not relevant because the U.S. Congress annexed the Hawaiian Islands by a joint resolution of annexation on July 7, 1898 is also a violation of customary international law previously recognized by the United States. Not only are municipal laws incapable of annexing foreign territory because municipal laws are confined to the territory of the country that enacted them, U.S. Attorney General Thomas Bayard in 1887 famously stated, “If a government could set up its own municipal law as the final test of its international rights and obligations, then the rules of international law would be but the shadow of a name, and would afford not protection either to states or to individuals. It has been constantly maintained and also admitted by the Government of the United States that a Government can not appeal to its municipal regulations as an answer to demands for the fulfillment of international duties.”
Attorney General Bayard’s statement was the United States’ recognition of what was considered customary international law, at least in 1887. This customary international law was codified in the 1980 Vienna Convention on the Law of Treaties. Article 27 provides, “A party may not invoke the provisions of its internal law as justification for its failure to perform a treaty.” These treaties include the 1907 Hague Convention, IV, and the 1949 Geneva Convention, IV, which the United States ratified and recognized as customary international laws. Although the United States has not ratified the Vienna Convention, it does consider it to be customary international law. According to the U.S. State Department website, “The United States considers many of the provisions of the Vienna Convention on the Law of Treaties to constitute customary international law on the law of treaties.”
