Category Archives: International Relations

Hawai‘i and the U.S. Army Doctrine of Command Responsibility for War Crimes

Posted on by
7

Normally when a crime is committed at the national level, a person not only has to commit the criminal act but also must have the criminal intent to commit the crime. In other words, for a person to be held criminally liable, he/she would also have known that the act was unlawful. Criminal culpability, under U.S. federal law, could also apply to a person who did not commit the crime themselves, but knew that a federal crime had been committed and did not report it. This is misprision of a felony that criminalizes the active concealment of a known felony without reporting it to the proper authorities. A felony is where the punishment of a crime is a year or more in prison. Less than a year in prison is a misdemeanor.

At the international level, a war crime can be committed by an individual as well as someone in authority who knew of the commission of the war crime and did nothing to prevent it or stop it. So, under international criminal law, there is the war crime committed by a perpetrator and there is the war crime by omission, which is the failure of a person in authority to act. The failure to act does not require criminal intent.

General Tomoyuki Yamashita was not only the most senior officer of the Japanese military in the Philippines, but he was also the military governor of the occupied territory of the Philippines. Under the law of occupation, the civilian population of the occupied State owe temporary obedience to the occupier, who in turn will protect their rights under the laws of the occupied State. The Philippines, at the time, were a part of the territory of the United States. So, when Japanese soldiers were killing American prisoners of war, they were also raping and killing civilians. It was argued that General Yamashita, as a person of authority, could have put a stop to these war crimes. He was found guilty and sentenced to death.

In 1945, General Yamashita was tried and convicted for the commission of war crimes, but he was not the perpetrator of the war crimes. In fact, he was not charged with war crimes. He was charged under the theory that he knew or should have known that war crimes were being committed against American prisoners of war and Filipino citizens and he did not put a stop to it or punish the perpetrators. This theory became a legal doctrine called command responsibility for war crimes.

Under this legal doctrine of command responsibility, there are the following three elements establishing criminal liability for war crimes by omission:

(1) there must be a superior-subordinate relationship;
(2) the superior must have known or had reason to know that the subordinate was about to commit a crime or had committed a crime; and
(3) the superior failed to take the necessary and reasonable measures to prevent the crime or to punish the perpetrator.

According to the U.S. Department of Defense draft instructions for guidance to military commissions states: “A person is criminally liable for a completed substantive offense if that person commits the offense, aids or abets the commission of the offense, solicits commission of the offense, or is otherwise responsible due to command responsibility,” and provides the following elements:

(1) The accused had command and control, or effective authority and control, over one or more subordinates;
(2) One or more of the accused’s subordinates committed, attempted to commit, conspired to commit, solicited to commit, or aided or abetted the commission of one or more substantive offenses triable by military commission;
(3) The accused either knew or should have known that the subordinate or subordinates were committing, attempting to commit, conspiring to commit, soliciting, or aiding and abetting such offense or offenses; and
(4) The accused failed to take all necessary and reasonable measures within his or her power to prevent or repress the commission of the offense or offenses.

These four elements are the same under customary international law. According to an authoritative study of customary international law by the International Committee of the Red Cross:

Commanders and other superiors are criminally responsible for war crimes committed by their subordinates if they knew, or had reason to know, that the subordinates were about to commit or were committing such crimes and did not take all necessary and reasonable measures in their power to prevent their commission, or if such crimes had been committed, to punish the persons responsible.

The U.S. Army updated Army Regulation 600-20, Army Command Policy, which states under the heading of Command responsibility under the law of war:

4-24. Commanders are legally responsible for war crimes they personally commit, order committed, or know or should have known about and take no action to prevent, stop, or punish.

Consequently, if commanders ‘know or should have known’ that war crimes are being committed and ‘take no action to prevent, stop, or punish,’ they could be held criminally liable for the war crime by omission.

It is uncontested by the United States, the State of Hawai‘i, and the Counties that war crimes, under customary international law, are occurring throughout the Hawaiian Islands. It is also uncontested that the Hawaiian Kingdom continues to exist as an occupied State and that the Council of Regency is its acting government. Legal opinions by Professor William Schabas, Professor Matthew Craven, and Professor Federico Lenzerini who are international law scholars, explain this under the rules of customary international law.

Article 38 of the Statute of the International Court of Justice identifies five sources of international law: (a) treaties between States; (b) customary international law derived from the practice of States; (c) general principles of law recognized by civilized nations; and, as subsidiary means for the determination of rules of international law; (d) judicial decisions; and (e) the writings of “the most highly qualified publicists.” These writings by these scholars are from “the most highly qualified publicists,” and are, therefore, a source of customary international law.

According to Professor Malcolm Shaw, “Because of the lack of supreme authorities and institutions in the international legal order, the responsibility is all the greater upon publicists of the various nations to inject an element of coherence and order into the subject as well as to question the direction and purposes of the rules.” Thus, Professor Shaw states, “academic writings are regarded as law-determining agencies, dealing with the verification of alleged rules.” This is consistent with how the U.S. Supreme Court views the writing of international scholars. In the Paquette Habana case, Supreme Court explained:

International law is part of our law, and must be ascertained and administered by the courts of justice of appropriate jurisdiction, as often as questions of right depending upon it are duly presented for their determination. For this purpose, where there is no treaty, and no controlling executive or legislative act or judicial decision, resort must be had to the customs and usages of civilized nations; and, as evidence of these, to the works of jurists and commentators, who by years of labor, research and experience, have made themselves peculiarly well acquainted with the subjects of which they treat. Such works are resorted to by judicial tribunals, not for the speculations of their authors concerning what the law ought to be, but for trustworthy evidence of what the law really is (emphasis added).

As a source of international law, the legal opinions establish a shift in the burden of proof. The presumption of State continuity shifts the burden of proof as to what is to be proven and by whom to rebut this presumption. Like the presumption of innocence, the accused does not prove their innocence, but rather the prosecution must prove, beyond a reasonable doubt, that person’s guilt. Likewise, the Hawaiian Kingdom need not prove its continued existence, but rather, the United States must prove, beyond a reasonable doubt, that it extinguished the Hawaiian Kingdom as a State under international law.

Without such proof the State of Hawai‘i is illegitimate. It would stand to reason that the United States would have rebutted these legal opinions but it cannot because there are no rules of customary international law that can substantiate the lawfulness of the American presence in the Hawaiian Islands, to include the State of Hawai‘i. The only rules of international law that would temporarily allow the presence of the United States is through its military under the law of occupation and the duty to establish a military government. This is explained by the Permanent Court of International Justice in the Lotus case, which was a dispute between France and Turkey. The Court stated::

Now the first and foremost restriction imposed by international law upon a State is that—failing the existence of a permissive rule to the contrary—it may not exercise its power in any form in the territory of another State. In this sense jurisdiction is certainly territorial; it cannot be exercised by a State outside its territory except by virtue of a permissive rule derived from international custom or from a convention [treaty].

Since returning from the international arbitration proceedings in Larsen v. Hawaiian Kingdom in the Netherlands in December of 2000, where the Permanent Court of Arbitration recognized the continued existence of the Hawaiian Kingdom as a State under international law, the Council of Regency focused its attention on exposing the continued existence of the Hawaiian Kingdom as an occupied State since January 17, 1893. The Regency also framed the exposure through international humanitarian law, the law of occupation, and the consequential war crimes that have and continue to be committed.

Under the law of occupation, the occupant of the occupying State, being the State of Hawai‘i, is obligated to protect the private rights of the Hawaiian citizenry. The occupant protects these rights by establishing a military government in order to administer the laws of the Hawaiian Kingdom. After unlawfully overthrowing the government of the Hawaiian Kingdom on January 17, 1893, the U.S. military did not follow this international rule.

Instead, the United States allowed their puppet, calling itself the provisional government, to unlawfully maintain control of the machinery of the Hawaiian Kingdom government. President Grover Cleveland told the Congress that the “provisional government owes its existence to an armed invasion by the United States.”

These insurgents changed their name, in 1894, to the so-called Republic of Hawai‘i. In 1898, at the height of the Spanish-American War, the United States merely enacted a federal law purporting to have annexed the Hawaiian Islands. This was all in violation of international law and the law of occupation. According to U.S. Army Field Manual 6-27 under the heading Limitations of Occupation:

6-24. Military occupation of enemy territory involves a complex, trilateral set of legal relations between the Occupying Power, the temporarily ousted sovereign authority, and the inhabitants of the occupied territory. Military occupation does not transfer sovereignty to the Occupying Power, but simply gives the Occupying Power the right to govern the enemy territory temporarily.

6-25. The fact of a military occupation does not authorize the Occupying Power to take certain actions. For example, the Occupying Power is not authorized by the fact of a military occupation to annex occupied territory or create a new State. Nor may the Occupying Power compel the inhabitants of occupied territory to become its nationals or otherwise swear allegiance to it.

Despite the United States own Army Field Manual that states, ‘the Occupying Power is not authorized by the fact of military occupation to annex occupied territory or create a new State,’ it is, in fact, what the United States did when it unilaterally annexed the Hawaiian Islands in 1898 and created the State of Hawai‘i and its Counties in 1959. While these acts are clearly violations of international humanitarian law and the law of occupation, it did not affect, nor did it alter the sovereignty of the Hawaiian Kingdom. These acts also did not change the legal status of the Hawaiian Kingdom as an occupied State, which the Permanent Court of Arbitration recognized on November 8, 1999, when international arbitration proceedings were initiated.

Instead, these unlawful acts set in motion for the commission of the war crime of usurpation of sovereignty during military occupation, which is the unlawful imposition of American laws and administrative measures of the occupying State over the territory of the occupied State. This war crime triggered secondary war crimes that include the war crime of compulsory enlistment; the war crime of denationalization; the war crime of confiscation or destruction of property; the war crime of deprivation of fair and regular trial; the war crime of deporting civilians of the occupied territory; and the war crime of transferring populations into an occupied territory.

Lieutenant Colonel Michael Rosner became the most senior officer in the Hawai‘i Army National Guard because of war crimes by omission committed by Major General Kenneth Hara-War Criminal Report no. 24-0001, Brigadier General Stephen Logan-War Criminal Report no. 24-0002, Colonel Wesley Kawakami-War Criminal Report no. 24-0003, Lieutenant Colonel Fredrick Werner-War Criminal Report no. 24-0004, Lieutenant Colonel Bingham Tuisamatatele, Jr.-War Criminal Report no. 24-0005, Lieutenant Colonel Joshua Jacobs-War Criminal Report no. 24-0006, and Lieutenant Colonel Dale Balsis-War Criminal Report no. 24-0007.

After they were made aware of war crimes being committed throughout the Hawaiian Islands, each of these Army commanders failed to put a stop to these war crimes. Although, each of these commanders did not commit the war of usurpation of sovereignty during military occupation themselves, they have criminal liability under the legal doctrine of command responsibility for war crimes because they did not establish a military government that would have brought these war crimes to an end. Under the law of occupation, as stated in U.S. Army Field Manual 27-5:

(1) Civil affairs/military government (CA/MG). CA/MG encompasses all powers exercised and responsibilities assumed by the military commander in an occupied or liberated area with respect to the lands, properties, and inhabitants thereof, whether such administration be in enemy, allied, or domestic territory. The type of occupation, whether CA or MG, is determined by the highest policy making authority. Normally, the type of occupation is dependent upon the degree of control exercised by the responsible military commander.

(2) Military government. The term “military government” as used in this manual is limited to and defined as the supreme authority exercised by an armed occupying force over the lands, properties, and inhabitants of an enemy, allied, or domestic territory. Military government is exercised when an armed force has occupied such territory, whether by force or agreement, and has substituted its authority for that of the sovereign or previous government. The right of control passes to the occupying force limited only by the rules of international law and established customs of war.

(3) Civil affairs. The term “civil affairs” as used in this manual is defined as the assumption by the responsible commander of an armed occupying force of a degree of authority less than the supreme authority assumed under military government, over enemy, allied, or domestic territory. The indigenous governments would be recognized by treaty, agreement, or otherwise as having certain authority independent of the military commander.

(4) Occupied territory. The term “occupied territory” as used in this manual means any area in which CA/MGis exercised by an armed occupying force. It does not include territory in which an armed force is located but has not assumed authority.

3. COMMAND RESPONSIBILITY. The theater commander bears full responsibility for CA/MG; therefore, he is usually designated as military governor or civil affairs administrator, but is authorized to delegate his authority and title, in whole or in part, to a subordinate commander. In occupied territory the commander, by virtue of his position, has supreme legislative, executive, and judicial authority, limited only by the laws and customs of war and by directives from higher authority.

4. REASON FOR ESTABLISHMENT. a. Reasons for the establishment of CA/MG are either military necessity as a right, or as an obligation under international law. b. Since the military occupation of enemy territory suspends the operation of the government of the occupied territory, the obligation arises under international law for the occupying force to exercise the functions of civil government looking toward restoration and maintenance of public order. These functions are exercised by CA/MG. An armed force in territory other than that of an enemy similarly has the duty of establishing CA/MG when the government of such territory is absent or unable to function properly.

LTC Rosner has found himself in a position not of his own making, but rather because of war crimes by omission committed by previous commanders under the Army doctrine of command responsibility for war crimes. As an Executive Officer for the 29th Infantry Brigade, he does not have the legal background to understand international law except what is in Army doctrine and regulations. He does, however, have a judge advocate (JAG) named Lieutenant Colonel Lloyd Phelps whose duty is to give legal advice to commanders, which LTC Rosner finds himself in.

As Major Michael Winn, a JAG, stated in his article 2022 article Command Responsibility for Subordinates’ War Crimes: A Twenty-First Century Primer that was published in vol. 2 of Army Lawyer, “In this era of increased focus on command responsibility for war crimes, legal advisors have an important role to play in helping their commanders prevent, stop, and punish such offenses. Accordingly, legal advisors keep their commanders on the high road of command responsibility.”

LTC Rosner has until November 28, 2024, to transform the State of Hawai‘i into a military government in accordance with U.S. Department of Defense Directive 5100.1, U.S. Army Field Manual 6-27—chapter 6, and the law of occupation. For LTC Rosner not to so, after being made aware of the commission of war crimes, he, like the commanders before him will be the subject of a war criminal report by the Royal Commission of Inquiry for the war crime by omission.

For LTC Rosner to not have criminal liability under the command responsibility for war crimes, LTC Phelps will need to show a legal basis, under customary international law, that the United States extinguished the Hawaiian Kingdom as a State. To do so, LTC Phelps will need to provide LTC Rosner an international treaty where the Hawaiian Kingdom ceded its sovereignty and territory to the United States. This he cannot do because there is no such treaty.

CHANGE IN SCHEDULE: Dr. Keanu Sai to Present at FestPAC Tomorrow at 10:30am to 12:00 noon in the Kaua‘i Room 311

Posted on by
4

There’s been a change in schedule for Dr. Keanu Sai’s presentation at the Festival of the Pacific Culture and Arts held at the Hawai‘i Convention Center. Dr. Sai was previously scheduled to present on the American Occupation at 11:00am to 12:30pm in the Kaua‘i Room 311. It is now changed to 10:30am to 12 noon in the same Kaua‘i Room 311.

CLARIFICATION: There is no Showdown between the U.S. Congress and Major General Hara’s Duty to Transform the State of Hawai‘i into a Military Government

Posted on by
21

The purpose of this blog of the Council of Regency is to provide accurate information to inform the people of Hawai‘i about the prolonged occupation of the Hawaiian Kingdom and the steps the Council of Regency are taking to eventually bring the American occupation to an end. Misinformation will not be tolerated, especially on matters that have severe consequences for the population that resides within the occupied State of the Hawaiian Kingdom.

It has been asserted, as a comment on the recent blog article “It’s About Law—Native Hawaiian Rights are at a Critical Point for the State of Hawai‘i to Comply with the Law of Occupation,” that there is now a showdown between U.S. Army Major General Kenneth Hara’s duty to transform the State of Hawai‘i into a Military Government and the plenary power of the U.S. Congress. There exists no such thing.

The Congress is the legislative branch of the Government of the United States whose authority includes the enactment of laws and providing oversight of the executive branch. The term plenary power refers to the complete or absolute authority, which is frequently used to describe the commerce power of the Congress. Complete or absolute authority means that only the Congress has this power of enacting commercial laws.

Of the three branches of the U.S. Government—the legislative, the executive, and the judicial, only the executive branch can exercise its authority outside of U.S. territory through the Department of State and the Department of Defense. In United States v. Curtiss-Wright Corporation (1936), U.S. Supreme Court explained:

Not only, as we have shown, is the federal power over external affairs in origin and essential character different from that over internal affairs, but participation in the exercise of the power is significantly limited. In this vast external realm, with its important, complicated, delicate and manifold problems, the President alone has the power to speak or listen as a representative of the nation. He makes treaties with the advice and consent of the Senate; but he alone negotiates. Into the field of negotiation the Senate cannot intrude, and Congress itself is powerless to invade it. 

On the subject of the limits of the Congress to enact laws, whether commercial laws or not, the U.S. Supreme Court, in the Curtiss-Wright case, also 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 (see American Banana Co. v. United Fruit Co., 213 U. S. 347, 213 U. S. 356), and operations of the nation in such territory must be governed by treaties, international understandings and compacts, and the principles of international law.

Because the Hawaiian Kingdom is foreign territory and cannot exist within the territory of the United States, Major General Hara’s duty to transform the State of Hawai‘i into a Military Government stem from him being a part of the executive branch, the U.S. Department of Defense. The presence of the United States can only be allowed under the strict guidelines and rules of the 1907 Hague Regulations and the 1949 Fourth Geneva Convention, and not the plenary power of the Congress. The transformation into a military government will bring the United States into compliance with “treaties, international understandings and compacts, and the principles of international law.”

Accessing Two Books on the Political and Legal History of the Hawaiian Islands

Posted on by
6

In 2011, Dr. Keanu Sai wrote a book titled Ua Mau Ke Ea – Sovereignty Endures: An Overview of the Political and Legal History of the Hawaiian Islands. Pū‘ā Foundation is the publisher of this book that can be purchased online at their website. This book draws from Dr. Sai’s doctoral dissertation in political science titled The American Occupation of the Hawaiian Kingdom: Beginning the Transition from Occupied to Restored State. Ua Mau is currently being used to teach Hawaiian history in the Middle Schools, High Schools, and entry level collage classes.

In 2020, Dr. Sai is an editor and author of a free eBook titled Royal Commission of Inquiry: Investigating War Crimes and Human Rights Violations Committed in the Hawaiian Kingdom. Contributing authors include Professor Matthew Craven from the University of London, SOAS, Law Department, on the subject of the Hawaiian Kingdom’s continued existence as a State under international law; Professor William Schabas from Middlesex University London, Law Department, on the subject of war crimes being committed in the Hawaiian Kingdom; and Professor Federico Lenzerini from the University of Siena, Italy, Department of Political and International Science, on the subject of human rights violations committed in the Hawaiian Kingdom and the right of self-determination of a population under military occupation. In 2022, a book review of the Royal Commission of Inquiry’s eBook was done by Dr. Anita Budziszewska from the University of Warsaw, which was published in the Polish Journal of Political Science. This book is currently being used in undergraduate and graduate courses at universities.

To access Dr. Sai’s other publications you can visit his University of Hawai‘i website. Dr. Sai firmly believes in the power of education. He often states, “The practical value of history, is that it is a film of the past, run through the projector of today, on to the screen of tomorrow.” It is through education and awareness that the national consciousness of the Hawaiian Kingdom will be restored to its rightful place.

Polish Journal of Political Science Publishes Book Review of the Royal Commission of Inquiry’s eBook on Investigating War Crimes and Human Rights Violations Committed in the Hawaiian Kingdom

Posted on by
13

Awareness of the American occupation of the Hawaiian Kingdom is spreading in academic circles throughout Europe. In 2022, the Polish Journal of Political Science published a book review by Dr. Anita Budziszewska of the Royal Commission on Inquiry: Investigating War Crimes and Human Rights Violations Committed in the Hawaiian Kingdom.

Dr. Budziszewska is a faculty member of Political Science and International Studies at the University of Warsaw. In the years 2011-2020 she served as the coordinator for mobility, exchange and international cooperation at the IIR UW and at the WNPiSM UW. During the years 2016-2020 served as the Plenipotentiary of the Dean of the Faculty of Political Science and International Studies for international cooperation under the Erasmus+ program (European Union).

Dr. Budziszewska was member of the Polish mission to the United Nations during the 43rd session of the United Nations Human Rights Council in Geneva (43rd session of UN HRC). In 2020-2021 external expert of the project Polska360 organized/financed by the Kresy RP. Foundation and the Chancellery of the Prime Minister of Poland. She conducts classes on Elements of Diplomatic Protocol as part of the training organized by the Polish Olympic Committee and the Polish Corporation of Sports Managers. Member of the Organizing Committee of 8th Pan-European Congress of International Relations in Warsaw (2013) co-organized with the European International Studies Association.

Dr. Budziszewska completed scientific and professional internship, e.g. at the Polish Representation to the United Nations Office in Geneva. Study and training stays, among others, at the European Court of Human Rights in Strasbourg, the University of Zurich and the University of Oxford. International speeches, lectures and papers abroad, e.g. in Spain, Italy, Portugal, Greece, Finland, Croatia, Hungary and the UK. Member of the European Research Network on Philanthropy, International Studies Association and European International Studies Association.

Here follows her book review that was published in volume 8, issue 2 of the Polish Journal of Political Science.

The subject of review here is the multi-author publication Investigating War Crimes and Human Rights Violations Committed in the Hawaiian Kingdom, edited by Dr. David Keanu Sai, Head of the Hawaiian Royal Commission of Inquiry, published in 2020. The book is divided into three parts, i.e. Part 1 Investigating war crimes and human rights violations committed in the Hawaiian Kingdom; Part 2 The prolonged occupation of the Hawaiian Kingdom; and Part 3 Hawaiian law, treaties with foreign states and international humanitarian law. This final part represents a collection of source documents in such fields as Hawaiian law, but also international-law treaties with foreign states (in fact 18 including the USA)—dating back to the 19th century. A selection of treaties from the sphere of international humanitarian law has also been made and included.

The essence of the publication nevertheless resides in its two first parts, in which the authors offer an in-depth treatment of the complicated long-time relationship between Hawaii and the United States. Nevertheless, the thesis pursued here overall is the straightforward one that Hawaii has been occupied illegally and incorporated into the United States unlawfully, with that occupation continu­ing to the present day and needing to be understood in such terms. The authors also pursue the dif­ficult thread of the story relating to war crimes.

The above main assumption of the book is emphasised from the very beginning of Part 1, which is preceded by the text of the Proclamation Establishing the Royal Commission of Inquiry, recalling that that Commission was established to “ensure a full and thorough investigation into the violations of international humanitarian law and human rights within the territorial jurisdiction of the Hawai­ian Kingdom.”

In fact, the main aim of the above institution as called into being has been to pursue any and all of­fences and violations in the spheres of humanitarian law, human rights and war crimes committed by the Americans in the course of their occupation of Hawaii—which is given to have begun on 17 January 1893.

Presented next is the genesis and history of the Commission’s activity described by its aforementioned Head—Dr. David Keanu Sai. He presents the Commission’s activity in detail, by reference to concrete examples; with this part going on to recreate the entire history of the Hawaiian-US relations, beginning with the first attempt at territorial annexation. This thread of the story is sup­plemented with examples and source texts relating to the recognition of the Hawaiian Kingdom by certain countries (e.g. the UK and France, and taken as evidence of international regard for the in­tegrity of statehood). Particularly noteworthy here is the author’s exceptionally scrupulous analysis of the history of Hawaii and its state sovereignty. No obvious flaws are to be found in the analysis presented.

It is then in the same tone that the author proceeds with an analysis relating to international law, so as to point to the aspects of Hawaii’s illegal occupation by the United States—including an un­precedentedly detailed analysis of the contents of documents, resolutions, mutual agreements and official political speeches, but also reference to other scientific research projects. This very interest­ing strand of the story is followed by Matthew Craven in Chapter 3 on the Continuity of the Hawaiian Kingdom as a State under International Law. Notwithstanding the standpoint on the legality of the occupation or annexation of Hawaii by the United States, the matter of the right to self-determination keeps springing up now and again.

Considerable attention is also paid to the multi-dimensional nature of the plebiscite organised in 1959 (with regard to Hawaii’s incorporation as a state into the United States of America), with the relative lack of transparency of organisation pointed out, along with various breaches and transgres­sions that may have taken place.

In turn, in Chapter 4—on War Crimes Related to the United States’ Belligerent Occupation of the Ha­waiian Kingdom—William Schabas makes attempts to verify the assertion, explaining the term war crimes and referring to the wording of the relevant definition that international law is seen to have generated. The main problem emerging from this concerns lack of up-to-date international provi­sions as regards the above definition. The reader’s attention is also drawn to the incomplete nature of the catalogue of actions or crimes that could have constituted war crimes (in line with the observa­tions of Lemkin).

While offering narration and background, this Chapter’s author actually eschews Hawaiian-US examples. Instead, he brings the discussion around to cases beyond Hawaii, and in so doing also invokes examples from case-law (e.g. of Criminal Courts and Tribunals). While this is a very interesting choice of approach, it would still have been interesting for the valuable introduction to the subject matter to be supplemented by concrete examples relating to Hawaii, and to the events occur­ring there during the period under study.

Chapter 5—on International Human Rights Law and Self-Determination of Peoples Related to the United States’ Occupation of the Hawaiian Kingdom—allows its author Federico Lenzerini to contribute hugely to the analysis of the subject matter, given his consideration of the human rights protection system and its development with a focus on the right to self-determination. The author separates those dimensions of the law in question that do not relate to the Hawaiian Kingdom, as well as those that may have application to the Hawaiian society. Indeed, the process ends with Ap­plicability of the Right to Self-Determination During the American Occupation—a chapter written with exceptional thoroughness, objectivity and synthesis. The author first tells the story on how the human rights protection system came to be formulated (by the 1948 Universal Declaration of Human Rights and the Covenants of 1996, but also by reference to other Conventions). Rightly signalled is the institutional dimension to the protection of human rights, notably the Human Rights Committee founded to protect the rights outlined in the Covenant on Civil and Political Rights. It is of course re­called that the US is not a party to the relevant Protocols, which is preventing US citizens from assert­ing the rights singled out in the 1966 Covenants. Again rightly, attention is also paid to the regional human rights mechanism provided for by the 1969 American Convention on Human Rights, which also lacks the United States as a party.

The focus here is naturally on the right to self-determination, which the author correctly terms the only officially recognised right of a collective nature (if one excludes the rights of tribal peoples). The further part of the chapter looks at the obligations of states when it comes to safeguarding their citizens’ fundamental human rights. The philosophical context underpinning the right to self-determination is considered next (with attention rightly paid first to liberty related aspects and the philosophical standpoints of Locke and Rousseau, along with the story of the formulation of this right’s ideological basis and reference to what is at times a lack of clarity regarding its shape and scope (not least in Hawaii’s case). What is therefore welcome is the wide-ranging commentary of­fered on the dimensions to the above rights that do relate to Hawaiian society as well as those that do not.

In summing up the substantive and conceptual content, it is worth pointing to the somewhat inter­disciplinary nature of the research encompassed. Somewhat simplifying things, this book can first be seen as an in-depth analysis of matters historical (with much space devoted to the roots of the relations between Hawaii and the United States, to the issue of this region’s occupation and the gen­esis of Hawaii’s incorporation into the USA). These aspects have all been discussed with exceptional thoroughness and striking scrupulousness, in line with quotations from many official documents and source texts. This is all pursued deliberately, given the authors’ presumed intention to illustrate the genesis of the whole context underpinning the Hawaiian-US relations, as well as the further context through which Hawaii’s loss of state sovereignty came about. This strand to the story gains excellent illustration thanks to Dr. Keanu Sai.

The second part is obviously international law related and it also has much space devoted to it by the authors. The publication’s core theses gain support in the analysis of many and varied international documents, be these either mutual agreements between Hawaii and the United States or international Conventions, bilateral agreements of other profiles, resolutions, instruments de­veloped under the aegis of the UN or those of a regional nature (though not only concerned with the Americas, as much space is devoted to European solutions, and European law on the protection of human rights in particular). There is also much reference to international case-law and juris­prudence in a broader sense, the aim being to indicate the precedents already arrived at, and to set these against the international situation in which Hawaii finds itself.

However, notwithstanding this publication’s title, the authors here do not seek to “force-feed” readers with their theses regarding Hawaii’s legal status. Rather, by reaching out to a wide range of sources in international law as well as from history, they provide sufficient space for independ­ent reflection and drawing of conclusions. In this regard, it would be interesting if few remarks were devoted to present-day relations between Hawaii and the rest of the USA, with a view to achieving a more-profound illustration of the state of this relationship. However, it might seem from the book’s overall context that this was done deliberately so that the foundations of this unique dispute gain proper presentation. All is then augmented further by Part 3—the collection of agreements and docu­ments considered to sustain the main assumptions of the publication under review. Were I to force myself to point out any failure of the book to meet expectations, I would choose the cultural dimen­sion. There is no way of avoiding an impression—only enhanced by cover-to-cover reading—that this publication is deeply rooted in the Hawaiians’ sense of cultural and historical identity. So it would have been interesting to see the cultural dimension addressed, including through a more in-depth analysis of social awareness. At the very least, I have in mind here Article 27 UDHR, traditionally regarded as the source of the right to culture and the right to participate in cultural life. To be added to that might be Article 15 of the International Covenant on Economic, Social and Cultural Rights, as well as Article 27 of the International Covenant on Civil and Political Rights. While (as Boutros Boutros-Ghali noted in 1970) the right in question initially meant access to high culture, there has since been a long process of change that has seen an anthropological dimension conferred upon both culture and the right thereto. A component under that right is the right to a cultural identity—which would seem to be the key space in the Hawaiian context. The UN and UNESCO have in fact been paying a great deal of attention to this matter, with the key relevant documents being the 2005 Conven­tion on the Protection and Promotion of the Diversity of Cultural Expressions that in general links these issues with the human rights dimension as well as the Recommendation on Participation by the People at Large in Cultural Life and their Contribution to It (1976).

So a deeply-rooted cultural-identity dimension would have offered an interesting complement to the publication’s research material, all the more so as it would presumably reveal the attempts to annihilate that culture (thus striking not merely at statehood, but at national integrity of iden­tity). An interesting approach would then have been to show in details whether and to what extent this is resisted by the USA (e.g. in regard to the upholding of symbols of material and non-material cultural heritage).

However, given the assumption the book is based on—i.e. the focus on state sovereignty (not the right of cultural minorities, but the right of a nation to self-determination), the above “omission” actually takes nothing away from the value of the research presented. However, the aspect of national identity—of which cultural and historical identity is a key component—may represent an impulse for further, more in-depth research.

I regard this publication as an exceptionally valuable one that systematises matters of the legal sta­tus of the Hawaiian Kingdom, taking up the key issues surrounding the often ignored topic of a dif­ficult historical context occurring between Hawaii and the United States. The issue at stake here has been regenerated synthetically, on multiple levels, with a penetrating analysis of the regulations and norms in international law applying to Hawaii – starting from potential occupied-territory status, and moving through to multi-dimensional issues relating to both war crimes and human rights. This is one of the few books – if not the only one – to describe its subject matter so comprehensively and completely. I therefore see this work as being of exceptional value and considerable scientific impor­tance. It may serve not only as an academic source, but also a professional source of knowledge for both practicing lawyers and historians dealing with the matter on hand. The ambition of those who sought to take up this difficult topic can only be commended.

National Holiday (November 28) – Independence Day

Posted on by
4

November 28th is the most important national holiday in the Hawaiian Kingdom. It is the day Great Britain and France formally recognized the Hawaiian Islands as an “independent state” in 1843, and has since been celebrated as “Independence Day,” which in the Hawaiian language is “La Ku‘oko‘a.” Here follows the story of this momentous event from the Hawaiian Kingdom Board of Education history textbook titled “A Brief History of the Hawaiian People” published in 1891.

**************************************

Haalilio

The First Embassy to Foreign Powers—In February, 1842, Sir George Simpson and Dr. McLaughlin, governors in the service of the Hudson Bay Company, arrived at Honolulu on business, and became interested in the native people and their government. After a candid examination of the controversies existing between their own countrymen and the Hawaiian Government, they became convinced that the latter had been unjustly accused. Sir George offered to loan the government ten thousand pounds in cash, and advised the king to send commissioners to the United States and Europe with full power to negotiate new treaties, and to obtain a guarantee of the independence of the kingdom.

George Simpson

Accordingly Sir George Simpson, Haalilio, the king’s secretary, and Mr. Richards were appointed joint ministers-plenipotentiary to the three powers on the 8th of April, 1842.

William Richards

Mr. Richards also received full power of attorney for the king. Sir George left for Alaska, whence he traveled through Siberia, arriving in England in November. Messrs. Richards and Haalilio sailed July 8th, 1842, in a chartered schooner for Mazatlan, on their way to the United States*

*Their business was kept a profound secret at the time.

Proceedings of the British Consul—As soon as these facts became known, Mr. Charlton followed the embassy in order to defeat its object. He left suddenly on September 26th, 1842, for London via Mexico, sending back a threatening letter to the king, in which he informed him that he had appointed Mr. Alexander Simpson as acting-consul of Great Britain. As this individual, who was a relative of Sir George, was an avowed advocate of the annexation of the islands to Great Britain, and had insulted and threatened the governor of Oahu, the king declined to recognize him as British consul. Meanwhile Mr. Charlton laid his grievances before Lord George Paulet commanding the British frigate “Carysfort,” at Mazatlan, Mexico. Mr. Simpson also sent dispatches to the coast in November, representing that the property and persons of his countrymen were in danger, which introduced Rear-Admiral Thomas to order the “Carysfort” to Honolulu to inquire into the matter.

Daniel Webster

Recognition by the United States—Messres. Richards and Haalilio arrived in Washington early in December, and had several interviews with Daniel Webster, the Secretary of State, from whom they received an official letter December 19th, 1842, which recognized the independence of the Hawaiian Kingdom, and declared, “as the sense of the government of the United States, that the government of the Sandwich Islands ought to be respected; that no power ought to take possession of the islands, either as a conquest or for the purpose of the colonization; and that no power ought to seek for any undue control over the existing government, or any exclusive privileges or preferences in matters of commerce.” *

*The same sentiments were expressed in President Tyler’s message to Congress of December 30th, and in the Report of the Committee on Foreign Relations, written by John Quincy Adams.

Aberdeen

Success of the Embassy in Europe—The king’s envoys proceeded to London, where they had been preceded by the Sir George Simpson, and had an interview with the Earl of Aberdeen, Secretary of State for Foreign Affairs, on the 22d of February, 1843.

Lord Aberdeen at first declined to receive them as ministers from an independent state, or to negotiate a treaty, alleging that the king did not govern, but that he was “exclusively under the influence of Americans to the detriment of British interests,” and would not admit that the government of the United States had yet fully recognized the independence of the islands.

Sir George and Mr. Richards did not, however, lose heart, but went on to Brussels March 8th, by a previous arrangement made with Mr. Brinsmade. While there, they had an interview with Leopold I., king of the Belgians, who received them with great courtesy, and promised to use his influence to obtain the recognition of Hawaiian independence. This influence was great, both from his eminent personal qualities and from his close relationship to the royal families of England and France.

Encouraged by this pledge, the envoys proceeded to Paris, where, on the 17th, M. Guizot, the Minister of Foreign Affairs, received them in the kindest manner, and at once engaged, in behalf of France, to recognize the independence of the islands. He made the same statement to Lord Cowley, the British ambassador, on the 19th, and thus cleared the way for the embassy in England.

They immediately returned to London, where Sir George had a long interview with Lord Aberdeen on the 25th, in which he explained the actual state of affairs at the islands, and received an assurance that Mr. Charlton would be removed. On the 1st of April, 1843, the Earl of Aberdeen formally replied to the king’s commissioners, declaring that “Her Majesty’s Government are willing and have determined to recognize the independence of the Sandwich Islands under their present sovereign,” but insisting on the perfect equality of all foreigners in the islands before the law, and adding that grave complaints had been received from British subjects of undue rigor exercised toward them, and improper partiality toward others in the administration of justice. Sir George Simpson left for Canada April 3d, 1843.

Recognition of the Independence of the Islands—Lord Aberdeen, on the 13th of June, assured the Hawaiian envoys that “Her Majesty’s government had no intention to retain possession of the Sandwich Islands,” and a similar declaration was made to the governments of France and the United States.

At length, on the 28th of November, 1843, the two governments of France and England united in a joint declaration to the effect that “Her Majesty, the queen of the United Kingdom of Great Britain and Ireland, and His Majesty, the king of the French, taking into consideration the existence in the Sandwich Islands of a government capable of providing for the regularity of its relations with foreign nations have thought it right to engage reciprocally to consider the Sandwich Islands as an independent state, and never to take possession, either directly or under the title of a protectorate, or under any other form, of any part of the territory of which they are composed…”

John C Calhoun

This was the final act by which the Hawaiian Kingdom was admitted within the pale of civilized nations. Finding that nothing more could be accomplished for the present in Paris, Messrs. Richards and Haalilio returned to the United States in the spring of 1844. On the 6th of July they received a dispatch from Mr. J.C. Calhoun, the Secretary of State, informing them that the President regarded the statement of Mr. Webster and the appointment of a commissioner “as a full recognition on the part of the United States of the independence of the Hawaiian Government.”

BREAKING NEWS: Operational Plan for Transitioning the State of Hawai‘i into a Military Government according to International Law made Public

Posted on by
56

Despite the prolonged nature of the occupation and 130 years of non-compliance to the law of occupation, there are two fundamental rules that prevail: (1) to protect the sovereign rights of the legitimate government of the Occupied State; and (2) to protect the inhabitants of the Occupied State from being exploited. From these two rules, the 1907 Hague Regulations and the 1949 Fourth Geneva Convention circumscribe the conduct and actions of a military government, notwithstanding the failure  by the occupant to protect the rights of the occupied government and the inhabitants since 1893. These rights remain vested despite over a century of violating these rights. The failure to establish a military government facilitated the violations.

The law of occupation does not give the occupant unlimited power over the inhabitants of the Occupied State. As President McKinley interpreted this customary law of occupation under General Orders No. 101 (July 18, 1898), that predates the 1899 and 1907 Hague Regulations during the Spanish-American War, the inhabitants of occupied territory “are entitled to security in their persons and property and in all their private rights and relations,” and it is the duty of the commander of the occupant “to protect them in their homes, in their employments, and in their personal and religious beliefs.” The Order also stated that “the municipal laws of the conquered territory, such as affect private rights of person and property and provide for the punishment of crime, are considered as continuing in force” and are “to be administered by the ordinary tribunals, substantially as they were before the occupation.”

United States practice under the law of occupation acknowledges that sovereignty remains in the Occupied State, because according to the U.S. Army Field Manual 27-10, “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” through effective control of the territory of the Occupied State.

The prolonged occupation did not diminish Hawaiian State sovereignty and the continued existence of the Hawaiian State was acknowledged by the Permanent Court of Arbitration in 1999 in Larsen v. Hawaiian Kingdom. On March 22, 2023, the United Nations Human Council, at its 49th session in Geneva, was made aware of the Hawaiian Kingdom as an Occupied State and the commission of war crimes and human rights violations within its territory by the United States and the State of Hawai‘i and its Counties.

International humanitarian law is silent on a “prolonged occupation” because the authors of 1907 Hague Regulations viewed occupations to be provisional and not long term. According to Professor Scobbie, “The fundamental postulate of the regime of belligerent occupation is that it is a temporary state of affairs during which the occupant is prohibited from annexing the occupied territory. The occupant is vested only with temporary powers of administration and does not possess sovereignty over the territory.”

The effective control by the United States since Queen Lili‘uokalani’s conditional surrender on January 17, 1893, did not transfer Hawaiian sovereignty. As Professor Benvenisti explains, “Effective control by foreign military force can never bring about by itself a valid transfer of sovereignty. Because occupation does not transfer sovereignty over the territory to the occupying power, international law must regulate the inter-relationships between the occupying force, the ousted government, and the local inhabitants for the duration of the occupation. From the principle of inalienable sovereignty over a territory springs the basic structural constraints that international law imposes upon the occupant.”

Despite the prolonged nature of the American occupation, the law of occupation continues to apply because sovereignty was never ceded or transferred to the United States by the Hawaiian Kingdom. At a meeting of experts on the law occupation, that was convened by the International Committee of the Red Cross, the experts “pointed out that the norms of occupation law, in particular Article 43 of the Hague Regulations and Article 64 of the Fourth Geneva Convention, had originally been designed to regulate short-term occupations. However, the [experts] agreed that [international humanitarian law] did not set any limits to the time span of an occupation. It was therefore recognized that nothing under [international humanitarian law] would prevent occupying powers from embarking on a long-term occupation and that occupation law would continue to provide the legal framework applicable in such circumstances.” They also concluded that since a prolonged occupation “could lead to transformations and changes in the occupied territory that would normally not be necessary during short-term occupation,” they “emphasized the need to interpret occupation law flexibly when an occupation persisted.” The prolonged occupation of the Hawaiian Kingdom is, in fact, that case, where drastic unlawful “transformations and changes in the occupied territory” occurred.

As the occupant in effective control of 10,931 square miles of Hawaiian territory, the State of Hawai‘i, being the civilian government of the Hawaiian Kingdom that was unlawfully seized in 1893, is obligated to transform itself into a military government in order “to protect the sovereign rights of the legitimate government of the Occupied State, and…to protect the inhabitants of the Occupied State from being exploited.” The military government has centralized control, headed military governor, and by virtue of this position, according U.S. Army Field Manual 27-5, the military governor has “supreme legislative, executive, and judicial authority, limited only the laws and customs of war and by directives from higher authority.”

The reasoning for the centralized control of authority is so that the military government can effectively respond to situations that are fluid in nature. Under the law of occupation, this authority by the occupant is to be shared with the Council of Regency, being the government of the Occupied State. As the last word concerning any acts relating to the administration of the occupied territory is with the occupying power, “occupation law would allow for a vertical, but not a horizontal, sharing of authority [in the sense that] this power sharing should not affect the ultimate authority of the occupier over the occupied territory.”

By virtue of this shared authority, the Council of Regency, in its meeting on August 14, 2023, approved an “Operational Plan for Transitioning the State of Hawai‘i into a Military Government.” International humanitarian law distinguishes between the “Occupying State” and the “occupant.” The law of occupation falls upon the latter and not the former, because the former’s seat of government exists outside of Hawaiian territory, while the latter’s military government exists within Hawaiian territory.

This operational plan lays out the process of transition from the State of Hawai‘i government to a Military Government in accordance with international humanitarian law, the law of occupation, and U.S. Army regulations in Field Manuals 27-5 and 27-10. The 1907 Hague Regulations and the 1949 Fourth Geneva Convention shows there are four essential tasks of the Military Government. This operational plan addresses these essential tasks with their implied tasks for successful execution despite the prolonged nature of the occupation where the basic rules of occupation have been violated for over a century. The operational plan lays out governing rules of maintaining a Military Government until a peace treaty has been negotiated and agreed upon between the Hawaiian Kingdom and the United States of America.

The insurgents, who were not held to account for their treasonous actions in 1893, were allowed by the United States to control and exploit the resources of the Hawaiian Kingdom and its inhabitants after the Hawaiian government was unlawfully overthrown by United States troops. Some of these insurgents came to be known as the Big Five, a collection of five self-serving large businesses, that wielded considerable political and economic power after 1893. The Big Five were Castle & Cooke, Alexander & Baldwin, C. Brewer & Company, American Factors (now Amfac), and Theo H. Davies & Company. One of the Big Five, Amfac, acquired an interest in Pioneer Mill Company in 1918, and in 1960 became a wholly owned subsidiary of Amfac.

Pioneer Mill Company operated in West Maui with its headquarters in Lahaina. In 1885, Pioneer Mill Company was cultivating 600 of the 900 acres owned by the company and by 1910, 8,000 acres were devoted to growing sugar cane. In 1931, the Olowalu Company was purchased by Pioneer Mill Company, adding 1,200 acres of sugar cane land to the plantation. By 1935, over 10,000 acres, half-owned and half leased, were producing sugar cane for Pioneer Mill. To maintain its plantations, water was diverted, and certain lands of west Maui became dry.

The Lahaina wildfire’s tragic outcome also draws attention to the exploitation of the resources of west Maui and its inhabitants—water and land. West Maui Land Company, Inc., became the successor to Pioneer Mill and its subsidiary the Launiupoko Irrigation Company. When the sugar plantation closed in 1999, it was replaced with real estate development and water management. Instead of diverting water to the sugar plantation, it began to divert water to big corporations, hotels, golf courses, and luxury subdivisions. As reported by Hawai‘i Public Radio, “Lahaina was formerly the ‘Venice of the Pacific,’ an area famed for its lush environment, natural and cultural resources, and its abundant water resources in particular.” Lahaina became a deadly victim of water diversion and exploitation. It should be noted that Lahaina is but a microcosm of the exploitation of the resources of the Hawaiian Kingdom and its inhabitants throughout the Hawaiian Islands for the past century to benefit the American economy in violation of the law of occupation.

Considering the devastation and tragedy of the Lahaina wildfire, transforming the State of Hawai‘i into a military government is only amplified and made much more urgent. It has been reported that the west Maui community, to their detriment, are frustrated with the lack of centralized control by departments and agencies of the federal government, the State of Hawai‘i, and the County of Maui. The law of occupation will not change the support of these departments and agencies, but rather only change the dynamics of leadership under the centralized control by the military governor. The operational plan provides a comprehensive process of transition with essential tasks and implied tasks to be carried out. The establishment of a military government would also put an end to land developers approaching victims of the fire who lost their homes to purchase their property. While land titles were incapable of being conveyed after January 17, 1893, for want of a lawful government and its notaries public, titles are capable of being remedied under Hawaiian Kingdom law and economic relief by title insurance policies. It is unfortunate that the tragedy of Lahaina has become an urgency for the State of Hawai‘i to begin to comply with the law of occupation and establish a military government. To not do so is a war crime of omission.

National Holiday – Restoration Day

Posted on by
3

Today is July 31st which is a national holiday in the Hawaiian Kingdom called “Restoration day,” and it is directly linked to another holiday observed on November 28th called “Independence day.” Here is a brief history of these two celebrated holidays.

In the summer of 1842, Kamehameha III moved forward to secure the position of the Hawaiian Kingdom as a recognized independent state under international law. He sought the formal recognition of Hawaiian independence from the three naval powers of the world at the time—Great Britain, France, and the United States. To accomplish this, Kamehameha III commissioned three envoys, Timoteo Ha‘alilio, William Richards, who at the time was still an American Citizen, and Sir George Simpson, a British subject. Of all three powers, it was the British that had a legal claim over the Hawaiian Islands through cession by Kamehameha I, but for political reasons the British could not openly exert its claim over the other two naval powers. Due to the islands prime economic and strategic location in the middle of the north Pacific, the political interest of all three powers was to ensure that none would have a greater interest than the other. This caused Kamehameha III “considerable embarrassment in managing his foreign relations, and…awakened the very strong desire that his Kingdom shall be formally acknowledged by the civilized nations of the world as a sovereign and independent State.”

While the envoys were on their diplomatic mission, a British Naval ship, HBMS Carysfort, under the command of Lord Paulet, entered Honolulu harbor on February 10, 1843, making outrageous demands on the Hawaiian government. Basing his actions on complaints made to him in letters from the British Consul, Richard Charlton, who was absent from the kingdom at the time, Paulet eventually seized control of the Hawaiian government on February 25, 1843, after threatening to level Honolulu with cannon fire. Kamehameha III was forced to surrender the kingdom, but did so under written protest and pending the outcome of the mission of his diplomats in Europe.

News of Paulet’s action reached Admiral Richard Thomas of the British Admiralty, and he sailed from the Chilean port of Valparaiso and arrived in the islands on July 25, 1843. After a meeting with Kamehameha III, Admiral Thomas determined that Charlton’s complaints did not warrant a British takeover and ordered the restoration of the Hawaiian government, which took place in a grand ceremony on July 31, 1843. At a thanksgiving service after the ceremony, Kamehameha III proclaimed before a large crowd, ua mau ke ea o ka ‘aina i ka pono (the life of the land is perpetuated in righteousness). The King’s statement became the national motto.

The envoys eventually succeeded in getting formal international recognition of the Hawaiian Islands “as a sovereign and independent State.” Great Britain and France formally recognized Hawaiian sovereignty on November 28, 1843 by joint proclamation at the Court of London, and the United States followed on July 6, 1844 by a letter of Secretary of State John C. Calhoun. The Hawaiian Islands became the first Polynesian nation to be recognized as an independent and sovereign State.

The ceremony that took place on July 31 occurred at a place we know today as “Thomas Square” park, which honors Admiral Thomas, and the roads that run along Thomas Square today are “Beretania,” which is Hawaiian for “Britain,” and “Victoria,” in honor of Queen Victoria who was the reigning British Monarch at the time the restoration of the government and recognition of Hawaiian independence took place.

Chinese Foreign Ministry in its Report of February 20, 2023, Acknowledges the Illegal Annexation of Hawai‘i

Posted on by
10

In a blistering report by the Chinese Foreign Ministry on American imperialism, China acknowledges the United States unlawful annexation of Hawai‘i in 1898. The Foreign Ministry reported:

Since it gained independence in 1776, the United States has constantly sought expansion by force: it slaughtered Indians, invaded Canada, waged a war against Mexico, instigated the American-Spanish War, and annexed Hawai‘i.

After World War II, the wars either provoked or launched by the United State included the Korean War, the Vietnam War, the Gulf War, the Kosovo War, the War in Afghanistan, the Iraq War, the Libyan War and the Syrian War, abusing its military hegemony to page the way for expansionist objectives.

In recent years, the U.S. average annual military budget has exceeded 700 billion U.S. dollars, accounting for 40 percent of the world’s total, more than the 15 countries behind it combined.

The United States has about 800 overseas military bases, with 173,000 troops deployed in 159 countries.

The Foreign Ministry also cited a Tufts University report that found the United States carried out almost 400 military interventions from 1776 to 2019.

When the attempt to acquire the Hawaiian Islands by a treaty of cession failed in 1898 because of protests by Queen Lili‘uokalani, Head of State of the Hawaiian Kingdom, and Hawaiian subjects and supporters, the breakout of the Spanish-American War prompted the United States to unilaterally annex Hawai‘i by enacting a congressional statute called a joint resolution of annexation. On May 31, 1898, the U.S. Senate went into secret session on the subject of unilaterally annexing the Hawaiian Islands as a military necessity. The senators knew that a joint resolution, as American municipal law, has no effect beyond the borders of the United States, but the President could exercise his war powers by signing the joint resolution into law. Senator Henry Cabot Lodge stated:

If I had been permitted to continue I could have been permitted to continue I could have finished in ten minutes. I have really made the argument which I desire to make. If it had not been that it would have precipitated a protracted debate, I should have argued then what has been argued ably since we came into secret legislative session, that at this moment the Administration was compelled to violate the neutrality of those [Hawaiian] islands, that protests from foreign representatives had already been received, and complications with other powers were threatened, that the annexation or some action in regard to those islands had become a military necessity.

The word “necessity” was used 21 times in the secret session, but no one would know what was discussed because secrecy prevented the public from seeing it until 1969.

1969_Article

Honolulu Star-Bulletin, Saturday, February 1, 1969 reported:

WASHINGTON (AP) – Now it can be told—what happened during the longest of three Senate sessions during the Spanish-American War, a debate over whether to take over Hawaii.

The debate of nearly three hours on that day—May 31, 1898—and in two secret sessions the previous month had remained locked up until last week. Then at the request of a historian who noted gaps in the Congressional Record, the Senate passed a resolution authorizing the National Archives to take the wraps off the debate transcript.

The government’s only explanation for the long suppression of the debate records is that they had been long forgotten.

THE SECRECY WAS clamped on during a debate over whether to seize the Hawaiian Islands—called the Sandwich Islands then—or merely developing leased areas of Pearl Harbor to reinforce the U.S. fleet at Manila Bay.

Sen. Henry Cabot Lodge, grandfather and namesake of the current chief U.S. peace negotiator in Paris, had the floor. He was pleading for all war measures and particularly for the dispatch of reinforcements to Adm. George Dewey who already had destroyed the Spanish fleet in Manila Bay.

But before Lodge could press his case for the need of Hawaii as a rear base, Sen. David Turpie of Indiana demanded and got the Senate chamber cleared. Even the official reporter of debate was expelled for five minutes.

Study of the transcripts is unlikely to add more than a minor footnote to history, for as Lodge contended during the debate:

“I do not know anything that would give them (the enemy) any information,” because “there is nothing, nothing not already in the newspapers.”

LODGE COMPLAINED BITTERLY at the time about the secrecy, but his peers went along with Turpie and Sen. Georg Gray of Delaware, who questioned the “propriety” of public utterances “addressed to the ears of the enemy.”

Going further, Sen. Eugene Hale of Maine declared that the Senate is “the last place in which to discuss what shall be done about war,” for its word “goes on the wing of the lightning to every part of the globe.”

Lodge said Dewey’s need for reinforcement was urgent because “great and powerful interests in Europe (Paris bankers holding Spanish loan bonds) are directly interested in having Manila wrested from him and his fleet destroyed.”

Sen. William Stewart of Nevada saw “no possible secrets involved in the discussion of the annexation of the Sandwich Islands.” He contended the Navy required a coaling station for its ships and a “residing place” for the men enroute to the Philippines.

PEARL HARBOR, ALREADY UNDER LEASE, Stewart argued, wouldn’t be much use until costly dredging operations opened the entrance channel. “Either we must have the Sandwich Islands,” he declared, “or the administration must recall Dewey.”

The senate was unimpressed by the argument of Sen. Richard F. Pettigrew of South Dakota that the great circle route to Manila, skirting the Aleutian Islands, was 500 miles shorter than the route through Honolulu.

He argued that many warships and fortifications could be built with $10 million proposed to be “thrown away in the interest of a few sugar planters and adventures in Hawaii,” and asked: “Why embarrass that feeble republic, or monarchy, or oligarchy or whatever it is, with our presence?”

Sen. John T. Morgan of Alabama was concerned about the bubonic plague, cholera, yellow fever, small pox and “all the horrible diseases to which humanity is incident” prevailing in the Philippines. Therefore, “we cannot refuse to men going there a stopping place on the salubrious islands of Hawaii.”

Sen. Benjamin Tillman of South Carolina had the last word about the islands, saying “is not Hawaii lying there praying to the United States: ‘Please come and swallow me and pay the $4 million you promised.’”

THE UNITED STATES ANNEXED the Hawaiian Islands five weeks after the debate. But before the Senate reopened its doors that day, Morgan steered the discussion back to Cuba, the original cause of the war with Spain.

The first secret session, April 25, 1898, involved technical and emotional debate over wording of the declaration of war and why it or some accompanying resolution did not formally recognize the independence of Cuba or at least declare the Cubans to have the rights of belligerents in the conflict.

THE SENATE ENDED UP BY ACCEPTING the House passed version reading that “war and the same is hereby declared to exist and that war has existed since the 21st of April”—four days earlier.

Dropped from the final declaration was a Senate proposed tagline requiring the administration to “prosecute said war to a successful conclusion.”

Sen. Stephen White of California joined the unanimous vote for war “even with that mild prevarication” about when the war started.

Secretary of State Gresham’s Report to President Cleveland Regarding the Illegal Overthrow of the Hawaiian Kingdom Government on January 17, 1893

Posted on by
2

To ensure clarity as to what actually happened on January 17, 1893, below is the report by Secretary of State Walter Gresham to President Grover Cleveland dated October 18, 1893. The report stems from the periodic reports to the Secretary of State from James Blount as Special Commissioner. From April 1, 1893, when he began the investigation, to his final report dated July 17, 1893. Gresham’s report led to President Cleveland’s message to the Congress on December 18, 1893, concluding that the “military demonstration on the soil of Honolulu was of itself an act of war,” and that “the provisional government owes its existence to an armed invasion by the United States.”

******************************************

DEPARTMENT OF STATE
Washington, October 18, 1893

THE PRESIDENT:

The full and impartial reports submitted by the Hon. James H. Blount, your special commissioner to the Hawaiian Islands, established the following facts:

Queen Liliuokalani announced her intention on Saturday, January 14, 1893, to proclaim a new constitution, but the opposition of her ministers and others induced her to speedily changer her purpose and make a public announcement of that fact.

At a meeting in Honolulu, late on the afternoon of that day, a so-called committee of public safety, consisting of thirteen men, being all or nearly all who were present, was appointed “to consider the situation and devise ways and means for the maintenance of the public peace and the protection of life and property,” and at a meeting of this committee on the 15th, or the forenoon of the 16th of January, it was resolved amongst other things that a provisional government be created “to exist until terms of union with the United States of America have been negotiated and agreed upon.” At a mass meeting which assembled at 2 p.m. on the last-named day, the Queen and her supporters were condemned and denounced, and the committee was continued and all its acts approved.

Later the same afternoon the committee addressed a letter to John L. Stevens, the American minister at Honolulu, stating that the lives and property of the people were in peril and appealing to him and the United States forces at his command for assistance. This communication concluded “we are unable to protect ourselves without aid, and therefore hope for the protection of the United States forces.” On receipt of this letter Mr. Stevens requested Capt. Wiltse, commander of the U.S.S. Boston, to land a force “for the protection of the United States legation, United States consulate, and to secure the safety of American life and property.” The well armed troops, accompanied by two gatling guns, were promptly landed and marched through the quiet streets of Honolulu to a public hall, previously secured by Mr. Stevens for their accommodation. This hall was just across the street from the Government building, and in plain view of the Queen’s palace. The reason for thus locating the military will presently appear. The governor of the Island immediately addressed to Mr. Stevens a communication protesting against the act as an unwarranted invasion of Hawaiian soil and reminding him that the proper authorities had never denied permission to the naval forces of the United States to land for drill or any other proper purpose.

About the same time the Queen’s minister of foreign affairs sent a note to Mr. Stevens asking why the troops had been landed and informing him that the proper authorities were able and willing to afford full protection to the American legation and all American interests in Honolulu. Only evasive replies were sent to these communications.

While there were no manifestations of excitement or alarm in the city, and the people were ignorant of the contemplated movement, the committee entered the Government building, after first ascertaining that it was unguarded, and read a proclamation declaring that the existing Government was overthrown and a Provisional Government established in its place, “to exist until terms of union with the United States of America have been negotiated and agreed upon.” No audience was present when the proclamation was read, but during the reading 40 or 50 men, some of them indifferently armed, entered the room. The executive and advisory councils mentioned in the proclamation at once addressed a communication to Mr. Stevens, informing him that the monarchy had been abrogated and a provisional government established. This communication concluded:

Such Provisional Government has been proclaimed, is now in possession of the Governmental departmental buildings, the archives, and the treasury, and is in control of the city. We hereby request that you will, on behalf of the United States, recognize it as the existing de facto Government of the Hawaiian Islands and afford to it the moral support of your Government, and, if necessary, the support of American troops to assist in preserving the public peace.

On receipt of this communication, Mr. Stevens immediately recognized the new Government, and, in a letter addressed to Sanford B. Dole, its President, informed him that he had done so. Mr. Dole replied:

GOVERNMENT BUILDING
Honolulu, January 17, 1893

SIR: I acknowledge receipt of your valued communication of this day, recognizing the Hawaiian Provisional Government, and express deep appreciation of the same.

We have conferred with the ministers of the late Government, and have made demand upon the marshal to surrender the station house. We are not actually yet in possession of the station house, but as night is approaching and our forces may be insufficient to maintain order, we request the immediate support of the United States forces, and would request that the commander of the United States forces take command of our military forces, so that they may act together for the protection of the city.

Respectfully, yours,

SANFORD B. DOLE
Chairman Executive Council.

His Excellency JOHN L. STEVENS,
United States Minister Resident.

Note of Mr. Stevens at the end of the above communication.

The above request not complied with.

STEVENS.

The station house was occupied by a well-armed force, under the command of a resolute capable, officer. The same afternoon the Queen, her ministers, representatives of the Provisional Government, and others held a conference at the palace. Refusing to recognize the new authority or surrender to it, she was informed that the Provisional Government had the support of the American minister, and, if necessary, would be maintained by the military force of the United States present; that any demonstration on her part would precipitate a conflict with that force; that she could not, with hope of success, engage in war with the United States, and that resistance would result in a useless sacrifice of life. Mr. Damon, one of the chief leaders of the movement, and afterwards vice-president of the Provisional Government, informed the Queen that she could surrender under protest and her case would be considered later at Washington. Believing that, under the circumstances, submission was a duty, and that her case would be fairly considered by the President of the United States, the Queen finally yielded and sent to the Provisional Government the paper, which reads:

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

That I yield to the superior force of the United States of America, whose minister plenipotentiary, his excellency John L. Stevens, has caused United States troops to be lauded at Honolulu and declared that he would support the Provisional Government.

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

When this paper was prepared at the conclusion of the conference, and signed by the Queen and her ministers, a number of persons, including one or more representatives of the Provisional Government, who were still present and understood its contents, by their silence, at least, acquiesced in its statements, and, when it was carried to President Dole, he indorsed upon it, “Received from the hands of the late cabinet this 17th day of January, 1893,” without challenging the truth of any of its assertions. Indeed, it was not claimed on the 17th day of January, or for some time thereafter, by any of the designated officers of the Provisional Government or any annexationist that the Queen surrendered otherwise than as stated in her protest.

In his dispatch to Mr. Foster of January 18, describing the so-called revolution, Mr. Stevens says:

The committee of public safety forthwith took possession of the Government building, archives, and treasury, and installed the Provisional Government at the head of the respective departments. This being an accomplished fact, I promptly recognized the Provisional Government as the de facto government of the Hawaiian Islands.

In Secretary Foster’s communication of February 15 to the President, laying before him the treaty of annexation, with the view to obtaining the advice and consent of the Senate thereto, he says:

At the time the Provisional Government took possession of the Government building no troops or officers of the United States were present or took any part whatever in the proceedings. No public recognition was accorded to the Provisional Government by the United States minister until after the Queen’s abdication, and when they were in effective possession of the Government building, the archives, the treasury, the barracks, the police station, and all the potential machinery of the Government.

Similar language is found in an official letter addressed to Secretary Foster on February 3 by the special commissioners sent to Washington by the Provisional Government to negotiate a treaty of annexation.

These statements are utterly at variance with the evidence, documentary and oral, contained in Mr. Blount’s reports. They are contradicted by declarations and letters of President Dole and other annexationists and by Mr. Stevens’s own verbal admissions to Mr. Blount. The Provisional Government was recognized when it had little other than a paper existence, and when the legitimate government was in full possession and control of the palace, the barracks, and the police station. Mr. Stevens’s well-known hostility and the threatening presence of the force landed from the Boston was all that could then have excited serious apprehension in the minds of the Queen, her officers, and loyal supporters.

It is fair to say that Secretary Foster’s statements were based upon information which he had received from Mr. Stevens and the special commissioners, but I am unable to see that they were deceived. The troops were landed, not to protect American life and property, but to aid in overthrowing the existing government. Their very presence implied coercive measures against it.

In a statement given to Mr. Blount, by Admiral Skerrett, the ranking naval officer at Honolulu, he says:

If the troops were landed simply to protect American citizens and interests, they were badly stationed in Arion Hall, but if the intention was to aid the Provisional Government they were wisely stationed.

This hall was so situated that the troops in it easily commanded the Government building, and the proclamation was read under the protection of American guns. At an early stage of the movement, if not at the beginning, Mr. Stevens promised the annexationists that as soon as they obtained possession of the Government building and there read a proclamation of the character above referred to, ho would at once recognize them as a de facto government, and support them by landing a force from our war ship then in the harbor, and he kept that promise. This assurance was the inspiration of the movement, and without it the annexationists would not have exposed themselves to the consequences of failure. They relied upon no military force of their own, for they had none worthy of the name. The Provisional Government was established by the action of the American minister and the presence of the troops landed from the Boston, and its continued existence is due to the belief of the Hawaiians that if they made an effort to overthrow it, they would encounter the armed forces of the United States.

The earnest appeals to the American minister for military protection by the officers of that Government, after it had been recognized, show the utter absurdity of the claim that it was established by a successful revolution of the people of the Islands. Those appeals were a confession by the men who made them of their weakness and timidity. Courageous men, conscious of their strength and the justice of their cause, do not thus act. It is not now claimed that a majority of the people, having the right to vote under the constitution of 1887, ever favored the existing authority or annexation to this or any other country. They earnestly desire that the government of their choice shall be restored and its independence respected.

Mr. Blount states that while at Honolulu he did not meet a single annexationist who expressed willingness to submit the question to a vote of the people, nor did he talk with one on that subject who did not insist that if the Islands were annexed suffrage should be so restricted as to give complete control to foreigners or whites. Representative annexationists have repeatedly made similar statements to the undersigned.

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.”   A careful consideration of the facts will, I think, convince you that the treaty which was withdrawn from the Senate for further consideration should not be resubmitted for its action thereon.

Should not the great wrong done to a feeble but independent State by an abuse of the authority of the United States be undone by restoring the legitimate government?   Anything short of that will not, I respectfully submit, satisfy the demands of justice.

Can the United States consistently insist that other nations shall respect the independence of Hawaii while not respecting it themselves? Our Government was the first to recognize the independence of the Islands and it should be the last to acquire sovereignty over them by force and fraud.

Respectfully submitted.
W.Q. GRESHAM.

Swiss General Secretariat Receives the Hawaiian Kingdom’s Accession to the Fourth Geneva Convention

Posted on by
11
Ambassador Battig

Originally posted on January 29, 2013. On January 14, 2013, Ambassador Benno Bättig, General Secretariat of the Swiss Federal Department of Foreign Affairs (FDFA), received at his office in Berne, Switzerland, the Hawaiian Kingdom’s Instrument of Accession to the 1949 Fourth Geneva Convention for the Protection of Civilian Persons in Time of War. Along with the Instrument of Accession, Ambassador Bättig also received a copy of the Hawaiian Protest and Demand deposited with the President of the United Nations General Assembly, August 10, 2012; and a DVD package of the Larsen v. Hawaiian Kingdom arbitration case at the Permanent Court of Arbitration, The Hague, Netherlands, 2001.

Swiss_Receipt_GCIV

The FDFA is responsible for maintaining the foreign relations of Switzerland and serves as the Swiss Ministry of Foreign Affairs. The department is headed by Federal Councillor Didier Burkhalter. The FDFA is composed of a General Secretariat and the State Secretariat, to which the department’s directorates and agencies are subordinate. Ambassador Bättig was appointed General Secretariat January 11, 2012.

CLARIFICATION: Article 156  of the Fourth Geneva Convention provides that accessions shall be notified in writing to the Swiss Federal Council and the Swiss Federal Council shall communicate the accessions to all the Powers in whose name the Convention has been signed, or whose accession has been notified. The Swiss Federal Council receives accessions through the FDFA. And according to Article 159, the Swiss Federal Council also informs the Secretary-General of the United Nations of all ratifications, accessions and denunciations received by them.

National Holiday – Independence Day (November 28)

Posted on by
3

November 28th is the most important national holiday in the Hawaiian Kingdom. It is the day Great Britain and France formally recognized the Hawaiian Islands as an “independent state” in 1843, and has since been celebrated as “Independence Day,” which in the Hawaiian language is “La Ku‘oko‘a.” Here follows the story of this momentous event from the Hawaiian Kingdom Board of Education history textbook titled “A Brief History of the Hawaiian People” published in 1891.

**************************************

George Simpson
Haalilio

The First Embassy to Foreign Powers—In February, 1842, Sir George Simpson and Dr. McLaughlin, governors in the service of the Hudson Bay Company, arrived at Honolulu on business, and became interested in the native people and their government. After a candid examination of the controversies existing between their own countrymen and the Hawaiian Government, they became convinced that the latter had been unjustly accused. Sir George offered to loan the government ten thousand pounds in cash, and advised the king to send commissioners to the United States and Europe with full power to negotiate new treaties, and to obtain a guarantee of the independence of the kingdom.

Accordingly Sir George Simpson, Haalilio, the king’s secretary, and Mr. Richards were appointed joint ministers-plenipotentiary to the three powers on the 8th of April, 1842.

William Richards

Mr. Richards also received full power of attorney for the king. Sir George left for Alaska, whence he traveled through Siberia, arriving in England in November. Messrs. Richards and Haalilio sailed July 8th, 1842, in a chartered schooner for Mazatlan, on their way to the United States*

*Their business was kept a profound secret at the time.

Proceedings of the British Consul—As soon as these facts became known, Mr. Charlton followed the embassy in order to defeat its object. He left suddenly on September 26th, 1842, for London via Mexico, sending back a threatening letter to the king, in which he informed him that he had appointed Mr. Alexander Simpson as acting-consul of Great Britain. As this individual, who was a relative of Sir George, was an avowed advocate of the annexation of the islands to Great Britain, and had insulted and threatened the governor of Oahu, the king declined to recognize him as British consul. Meanwhile Mr. Charlton laid his grievances before Lord George Paulet commanding the British frigate “Carysfort,” at Mazatlan, Mexico. Mr. Simpson also sent dispatches to the coast in November, representing that the property and persons of his countrymen were in danger, which introduced Rear-Admiral Thomas to order the “Carysfort” to Honolulu to inquire into the matter.

Daniel Webster

Recognition by the United States—Messres. Richards and Haalilio arrived in Washington early in December, and had several interviews with Daniel Webster, the Secretary of State, from whom they received an official letter December 19th, 1842, which recognized the independence of the Hawaiian Kingdom, and declared, “as the sense of the government of the United States, that the government of the Sandwich Islands ought to be respected; that no power ought to take possession of the islands, either as a conquest or for the purpose of the colonization; and that no power ought to seek for any undue control over the existing government, or any exclusive privileges or preferences in matters of commerce.” *

*The same sentiments were expressed in President Tyler’s message to Congress of December 30th, and in the Report of the Committee on Foreign Relations, written by John Quincy Adams.

Aberdeen

Success of the Embassy in Europe—The king’s envoys proceeded to London, where they had been preceded by the Sir George Simpson, and had an interview with the Earl of Aberdeen, Secretary of State for Foreign Affairs, on the 22d of February, 1843.

Lord Aberdeen at first declined to receive them as ministers from an independent state, or to negotiate a treaty, alleging that the king did not govern, but that he was “exclusively under the influence of Americans to the detriment of British interests,” and would not admit that the government of the United States had yet fully recognized the independence of the islands.

Sir George and Mr. Richards did not, however, lose heart, but went on to Brussels March 8th, by a previous arrangement made with Mr. Brinsmade. While there, they had an interview with Leopold I., king of the Belgians, who received them with great courtesy, and promised to use his influence to obtain the recognition of Hawaiian independence. This influence was great, both from his eminent personal qualities and from his close relationship to the royal families of England and France.

Encouraged by this pledge, the envoys proceeded to Paris, where, on the 17th, M. Guizot, the Minister of Foreign Affairs, received them in the kindest manner, and at once engaged, in behalf of France, to recognize the independence of the islands. He made the same statement to Lord Cowley, the British ambassador, on the 19th, and thus cleared the way for the embassy in England.

They immediately returned to London, where Sir George had a long interview with Lord Aberdeen on the 25th, in which he explained the actual state of affairs at the islands, and received an assurance that Mr. Charlton would be removed. On the 1st of April, 1843, the Earl of Aberdeen formally replied to the king’s commissioners, declaring that “Her Majesty’s Government are willing and have determined to recognize the independence of the Sandwich Islands under their present sovereign,” but insisting on the perfect equality of all foreigners in the islands before the law, and adding that grave complaints had been received from British subjects of undue rigor exercised toward them, and improper partiality toward others in the administration of justice. Sir George Simpson left for Canada April 3d, 1843.

Recognition of the Independence of the Islands—Lord Aberdeen, on the 13th of June, assured the Hawaiian envoys that “Her Majesty’s government had no intention to retain possession of the Sandwich Islands,” and a similar declaration was made to the governments of France and the United States.

At length, on the 28th of November, 1843, the two governments of France and England united in a joint declaration to the effect that “Her Majesty, the queen of the United Kingdom of Great Britain and Ireland, and His Majesty, the king of the French, taking into consideration the existence in the Sandwich Islands of a government capable of providing for the regularity of its relations with foreign nations have thought it right to engage reciprocally to consider the Sandwich Islands as an independent state, and never to take possession, either directly or under the title of a protectorate, or under any other form, of any part of the territory of which they are composed…”

John C Calhoun

This was the final act by which the Hawaiian Kingdom was admitted within the pale of civilized nations. Finding that nothing more could be accomplished for the present in Paris, Messrs. Richards and Haalilio returned to the United States in the spring of 1844. On the 6th of July they received a dispatch from Mr. J.C. Calhoun, the Secretary of State, informing them that the President regarded the statement of Mr. Webster and the appointment of a commissioner “as a full recognition on the part of the United States of the independence of the Hawaiian Government.”