First Publication of the Royal Commission of Inquiry

In response to the prolonged occupation of the Hawaiian Kingdom by the United States since 1893, and the commission of war crimes and human rights violations that continue to take place with impunity, the Royal Commission of Inquiry was established by the Council of Regency on April 17, 2019. The Council of Regency represented the Hawaiian Kingdom at the Permanent Court of Arbitration in Larsen v. Hawaiian Kingdom, PCA case no. 1999-01, from 1999-2001. The Royal Commission’s mandate is 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.”

Dr. David Keanu Sai was appointed as Head of the Royal Commission and he has commissioned recognized experts in various fields of international law who are the authors of chapters 3, 4 and 5 of this publication. These experts include Professor Matthew Craven, University of London, SOAS; Professor William Schabas, Middlesex University London; and Professor Federico Lenzerini, University of Siena.

Its first 378 page publication, Royal Commission of Inquiry: Investigating War Crimes and Human Rights Violations in the Hawaiian Kingdom, provides information on the Royal Commission of Inquiry, Hawaiian Constitutional Governance, the United States Belligerent Occupation of the Hawaiian Kingdom, the Continuity of the Hawaiian Kingdom as a State, Elements of War Crimes committed in the Hawaiian Kingdom, and Human Rights violations and Self-determination. The Royal Commission will provide periodic reports of its investigation of war crimes committed by individual(s) that meet the constituent elements of mens rea and actus reus, and human rights violations.

There is no statute of limitation for war crimes but it is customary for individual(s) to be prosecuted for the commission of war crimes up to 80 years after the alleged war crime was committed given the life expectancy of individuals. As a matter of customary international law, States are under an obligation to prosecute individuals for the commission of war crimes committed outside of its territory or to extradite them for prosecution by other States or international courts should they enter their territory.

**The book is free of charge and authorization is given, in accordance with its copyright under Hawaiian law, to print in soft-cover or hard-cover so long as the content of the book is not altered or edited.

British Newspaper The Guardian: Hawai‘i Politician Stops Voting, Claiming Islands are ‘Occupied Sovereign Country’

Two days after celebrations of Hawaiian Independence Day took place throughout the Hawaiian Islands, the British Newspaper “The Guardian” published an article on Hawai‘i County Council Member Jennifer Ruggles titled Hawaii politician stops voting, claiming islands are ‘occupied.’

Important take aways from a good article.

  • After the Guardian reporter reached out to the U.S. Department of State and State of Hawai‘i Governor for comment on Jennifer Ruggles’ position that war crimes are being committed throughout the Hawaiian Islands and on the memorandum of the United Nations Independent Expert to State of Hawai‘i Judges stating that the Hague and Geneva Conventions obligate the United States to administer Hawaiian Kingdom laws and not the domestic laws of the United States, both offices gave no comment. If Hawai‘i was not an occupied State, but rather legally a part of the United States, and that the Hague and Geneva Conventions don’t apply to Hawai‘i, the State Department and the Governor’s office would have surely stated that. Instead they gave no comment. When a government agency gives no comment it would imply that they cannot deny the facts of the story.
  • Dr. deZayas statement that Hawai‘i is “formally” a part of the United States. Careful statement made because the word formally is defined as “pertaining to the outward aspect of something as distinguished from its substance or material.” Formally is not the same as legally.
  • Spokesman from the United Nations Office of the Commissioner for Human Rights stated “They are [Dr. deZayas’] own views.” This is true because it was his view as United Nations Independent Expert before his term expired in April 2018.
  • In his February 25, 2018 memorandum to the State of Hawai‘i, Dr. deZayas clearly stated, “currently serving as the UN Independent Expert on the promotion of a democratic and equitable international order, I have come to understand that the lawful political status of the Hawaiian Islands is that of a sovereign nation-state in continuity; but a nation-state that is under a strange form of occupation by the United States resulting from an illegal military occupation and a fraudulent annexation.”
  • The Guardian reported, “Keanu Sai, a political science lecturer at the University of Hawaii and member of the Hawaiian Kingdom provisional government, says the unilateral annexation of Hawaii by passing a law was tantamount to the US passing a law annexing the UK or any other country. Sai said: ‘You can’t pass a law annexing a foreign country.'”

#ProtectedPersonsHawaii
#WarCrimesHawaii

Hawaiian Nationality and the Law of Occupation

The Hawaiian nationality is termed Hawaiian subject and not Hawaiian citizen. The distinction between subject and citizen is that the former is the political status of an individual in a monarchical form of government, whether absolute or constitutional, and the latter is the political status of an individual in a republic or non-monarchical government.

Under Hawaiian law, nationality can be acquired four ways:

  1. Born within Hawaiian territory—jus soli, also called native-born or natural-born;
  2. Born outside of Hawaiian territory from parents with Hawaiian nationality—jus sanguinis;
  3. Naturalize. The Minister of the Interior, with the approval of the Monarch, shall have the power in person upon the application of any alien foreigner who shall have resided within the Kingdom five years or more, stating his intention to become a permanent resident of the Kingdom, to administer the oath of allegiance to such foreigner, if satisfied that it will be for the good of the Kingdom. (§429, Article VIII, Hawaiian Civil Code);
  4. Denizen. The Monarch can confer upon any alien resident abroad, or temporarily resident in this Kingdom, letters patent of denization, conferring upon such alien, without abjuration of allegiance, all the rights, privileges and immunities of a native. The letters patent shall render the denizen in all respects accountable to the laws of the Hawaiian Kingdom, and impose upon him the like fealty to the King, as if he had been naturalized. (§433, Article VIII, Hawaiian Civil Code).

Once a State is occupied, international law preserves the status quo of the occupied State as it was before the occupation began. To preserve the nationality of the occupied State from being manipulated by the occupying State to its advantage, international law only allows individuals born within the territory of the occupied State to acquire the nationality of their parents. In order to preserve the status quo, Article 49 of the 1949 Fourth Geneva Convention mandates that the “Occupying Power shall not…transfer parts of its own civilian population into the territory it occupies.” To do so is a war crime.

For individuals, who were born within Hawaiian territory, to be a Hawaiian subjects they must be a direct descendant of an individual who was a Hawaiian subject prior to the illegal overthrow of the Hawaiian Kingdom government on January 17, 1893. All other individuals born after this date to the present are aliens who can only acquire the nationality of their parents.

According to the 1890 government census, Hawaiian subjects numbered 48,107, with the aboriginal Hawaiians, both pure and part, numbering 40,622, being 84% of the national population, and the non-aboriginal Hawaiians numbering 7,485, being 16%. Despite the massive migrations of foreigners to the Hawaiian Islands since 1893, which, according to the State of Hawai‘i Office of Hawaiian Affairs, numbers 1,302,939 in 2009, with the aboriginal Hawaiian population at 322,812 (25.3%), the status quo of the national population of the Hawaiian Kingdom is maintained.

In other words, with the increase in numbers of Hawaiian subjects, both aboriginal and non-aboriginal, since 1898, the status quo of the Hawaiian national population has been maintained to date. Therefore, under the international laws of occupation, the aboriginal Hawaiian population of 322,812 in 2009 would continue to be 84% of the Hawaiian national population, and the non-aboriginal Hawaiian population of 61,488 would continue to be 16%. The balance of the population in 2009, being 918,639, are aliens.

RT Documentary: Coups R U.S.

RT Documentary: Coups R US
American regime changes and their aftermaths, from Hawaii to Libya

RT Moscow film producer Vyacheslav Guz and his film crew were recently in the Hawaiian Kingdom in August 2017 filming a documentary that includes the American occupation of Hawai‘i. The film covers three countries whose governments were overthrown by the United States: Guatemala, Libya and Hawai‘i.

Illegal State of War Brief

When the South China Sea Tribunal cited in its award on jurisdiction the Larsen v. Hawaiian Kingdom case held at the Permanent Court of Arbitration, it should have garnered international attention, especially after the Court acknowledged the Hawaiian Kingdom as a state and Larsen a private entity. The Larsen case was a dispute between a Hawaiian national and his government, who he alleged was negligent for allowing the unlawful imposition of American laws over Hawaiian territory that led to the alleged war crimes of unfair trial, unlawful confinement and pillaging. Larsen sought to have the Tribunal adjudge that the United States of America violated his rights, after which he sought the Tribunal to adjudge that the Hawaiian government was liable for those violations. Although the United States was formally invited it chose not to join in the arbitration thus raising the indispensable third party rule for Larsen to overcome. What is almost completely unknown today is Hawai‘i’s international status as an independent and sovereign state, called the Hawaiian Kingdom, that has been in an illegal state of war with the United States of America since 16 January 1893. The purpose of this article will be to make manifest, in the light of international law, the current illegal state of war that has gone on for well over a century and its profound impact on the international community today.

National Holiday – Independence Day

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.

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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 George Simpsonon 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 aHaalilio 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 RichardsMr. 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.

Recognition by the United States—Messres. Richards and Haalilio arrived in Washington early in December, and had several interviews with Daniel Webster, theDaniel Webster 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.

Success of the Embassy in Europe—The king’s envoys proceeded to London, whereAberdeen 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.”

Distinguishing Indigenous Sovereignty from State Sovereignty

There are certain standards that need to be met with regard to the terms “indigenous sovereignty” and “state sovereignty” and it begins with definitions. The former applies to indigenous peoples, while the latter applies to independent States. Current usage in Hawaiian discourse tends to conflate the two terms as if they are synonymous. This is a grave mistake that only adds to the already confusing discourse of sovereignty talk amongst Hawai‘i’s population. Instead of beginning with the definition of the terms and their difference, there is a tendency to argue native Hawaiians are an indigenous people as if it is a forgone conclusion.

Indigenous studies make a clear distinction between the terms. Corntassel and Primeau’s article “Indigenous ‘Sovereignty’ and International Law: Revised Strategies for Pursuing ‘Self-Determination,” Human Rights Quarterly 17.2 (1995) 343-365), refers to indigenous people as a “stateless group in the international system.” Defining a stateless group, Corntassel and Primeau cite Milton J. Esman’s article, “Ethnic Pluralism and International Relations,” Canadian Review of Studies in Nationalism 27 (1990): 88, where he defines non-state nations as ethnic groups that do not have a patron State of their own.

While the State has its origins that date back to 1648—Treaty of Westphalia, it wasn’t until 1982 that the United Nations officially recognized indigenous groups when it formed the UN Working Group on Indigenous Populations. That year the Working Group came up with its definition of indigenous populations. “Indigenous populations are composed of the existing descendants of the peoples who inhabited the present territory of a country wholly or partially at the time when persons of a different culture or ethnic origin arrived there from other parts of the world, overcame them, and, by conquest, settlement or other means reduced them to a non-dominant or colonial condition; who today live more in conformity with the particular social, economic and cultural customs and traditions that with the institutions of the country of which they now form part, under a State structure which incorporates mainly the national, social and cultural characteristics of other segments of the population which are predominant.”

According to Corntassel and Primeau the Working Group’s definition was so broad that “any non-state nation … could fit under the term ‘indigenous population (p. 347),’” which would go outside the Working Group’s focus on tribal populations. They argue that under such a broad definition any people that are non-States such as Basques, Kurds, Abkazians, Bretons, Chechens, Tibetans, Timorese, Puerto Ricans, Northern Irish, Welsh, Tamils, Madan Arabs, or Palestinians could identify themselves as “indigenous people (p. 348).”

Seven years later, in a move to limit the definition to tribes, the term “tribal peoples” was inserted in Article 1 of the 1989 Convention concerning Indigenous and Tribal Peoples in Independent Countries, No. 169, adopted by the International Labor Organization. Article 1, provides: “(a) tribal peoples in independent countries [States] whose social, cultural and economic conditions distinguish them from other sections of the national community, and whose status is regulated wholly or partially by their own customs or traditions or by special laws or regulations; (b) peoples in independent countries [States] who are regarded as indigenous on account of their descent from the populations which inhabited the country, or a geographical region to which the country belongs, at the time of conquest or colonisation or the establishment of present state boundaries and who, irrespective of their legal status, retain some or all of their own social, economic, cultural and political institutions.”

An “independent country” is an independent State that is a self-governing entity possessing absolute and independent legal and political authority over its territory to the exclusion of other States. All members of the United Nations are independent States. The ILO was clearly distinguishing between indigenous tribal peoples and the States they reside in. The 2007 United Nations Declaration on the Rights of Indigenous Peoples also makes that distinction in Articles 5, 8(2), 11(2), 12(2), 13(2), 14(2) (3), 15(2), 16(2), 17(2), 19, 21(2), 22(2), 24(2), 26(3), 27, 29, 30(1) (2), 32(2) (3), 33(1), 36(2), 37(1), 38, 39, 40, 42, and 46(1).

The ILO Convention covered the “what” are indigenous populations, being “tribal peoples in independent countries [States],” but it did not satisfactorily determine the “who.” This was somewhat addressed by Jose R. Martinez Cobo, Special Rapporteur of the Sub-Commission on Prevention of Discrimination and Protection of Minorities, in his 1986 Report on the Study on the Problem of Discrimination against Indigenous Populations, which stated:

“Indigenous communities, peoples and nations are those which, having a historical continuity with pre-invasion and pre-colonial societies that developed on their territories, consider themselves distinct from other sectors of the societies now prevailing on those territories, or parts of them. They form at present non-dominant sectors of society and are determined to preserve, develop and transmit to future generations their ancestral territories, and their ethnic identity, as the basis of their continued existence as peoples, in accordance with their own cultural patterns, social institutions and legal system (paragraph 379).”

“This historical continuity may consist of the continuation, for an extended period reaching into the present of one or more of the following factors: (a) Occupation of ancestral lands, or at least of part of them; (b) Common ancestry with the original occupants of these lands; (c) Culture in general, or in specific manifestations (such as religion, living under a tribal system, membership of an indigenous community, dress, means of livelihood, lifestyle, etc.); (e) Language (whether used as the only language, as mother-tongue, as the habitual means of communication at home or in the family, or as the main, preferred, habitual, general or normal language); (f) Residence on certain parts of the country, or in certain regions of the world; (g) Other relevant factors (paragraph 380).”

“On an individual basis, an indigenous person is one who belongs to these indigenous populations through self-identification as indigenous (group consciousness) and is recognized and accepted by these populations as one of its members (acceptance by the group) (paragraph 381).”

Throughout his report, Cobo also distinguishes between indigenous populations and the States they reside. On this note, Cobo recommends:

“States should seek to gear their policies to the wish of indigenous populations to be considered different, as well as to the ethnic identity explicitly defined by such populations. In the view of the Special Rapporteur, this should be done within a context of socio-cultural and political pluralism which affords such populations the necessary degree of autonomy, self-determination and self-management commensurate with the concepts of ethnic development (paragraph 400).”

“Countries with indigenous populations should review periodically their administrative measures for the formulation and implementation of indigenous population policy, taking particular account of the changing needs of such communities, their points of view and the administrative approaches which have met with success in countries where similar situations obtain (paragraph 404).”

In the 1996 Report of the Working Group (paragraph 31), representatives of the indigenous populations stated, “We, the Indigenous Peoples present at the Indigenous Peoples Preparatory Meeting on Saturday, 27 July 1996, at the World Council of Churches, have reached a consensus on the issue of defining Indigenous Peoples and have unanimously endorsed Sub-Commission resolution 1995/32. We categorically reject any attempts that Governments define Indigenous Peoples. We further endorse the Martinez Cobo report (E/CN.4/Sub.2/1986/Add.4) in regard to the concept of “indigenous.” The 2007 Declaration on the Rights of Indigenous Peoples does not provide for a different definition of indigenous peoples, but rather declares their rights within the States they reside.

In 2001, the Permanent Court of Arbitration, in Larsen v. Hawaiian Kingdom, concluded, that “in the nineteenth century the Hawaiian Kingdom existed as an independent State recognized as such by the United States of America, the United Kingdom and various other States, including by exchanges of diplomatic or consular representatives and the conclusion of treaties.” There are no indigenous people in the Hawaiian Islands because the aboriginal Hawaiians formed the State themselves, comparable to other Polynesians who formed their own States such as Samoa in 1962, and Tonga in 1970. Both States are members of the United Nations. The only difference, however, was that Hawai‘i was the first of the Polynesians to be recognized as an independent State. Furthermore, Samoans and Tongans do not refer to themselves as an “indigenous people,” but rather the citizenry of two independent States.

This is why it is paradoxical to say that natives of Hawai‘i (kanaka) are an indigenous people because it would imply they do not have a State of their own. This labeling of Hawaiian natives as indigenous people is an American narrative that has no basis in historical facts or law other than people just saying it. Rather, natives are the majority of Hawaiian subjects, being the citizenry of the Hawaiian Kingdom that has been in an unjust war by the United States since 1893.

Who Determines a State of War Exists in International Law?

There has been some confusion as to who, in particular, determines whether a state of war exists for international law purposes. Is it a decision made by army commanders, international courts, or the heads of state? To answer this question we first need to understand the term war. By definition, war is a violent contention between two or more countries, called States, which is allowable under international law.

War as it is understood today is different from what it was understood in the nineteenth century when the Hawaiian Kingdom government was unlawfully overthrown by United States armed forces on January 17, 1893. According to Professor Brownlie, “The right of war, as an aspect of sovereignty, which existed in the period before 1914, subject to the doctrine that war was a means of last resort in the enforcement of legal rights, was very rarely asserted either by statesmen or works of authority without some stereotyped plea to a right of self-preservation, and of self-defence, or to necessity or protection of vital interests, or merely alleged injury to rights or national honour and dignity.” (Ian Brownlie, International Law and the Use of Force by States (1963) 41).

In the absence of a system of dispute resolution, such as today’s Permanent Court of Arbitration (est. 1899) or the International Court of Justice (est. 1945), war was seen as a form of judicial procedure, a litigation of sorts between nations that involved lethal punishment. It was a means by which one State could obtain redress for wrongs committed against it. War, however, was considered a course of last resort.

“It was generally thought that a state of war came into existence between two countries if, and only if, one of these countries made it clear that it regarded itself as being in a state of war,” says Judge Greenwood. (Christopher Greenwood, “Scope of Application of Humanitarian Law,” in Dieter Fleck (ed), The Handbook of the International Law of Military Operations (2nd ed., 2008) 45). Representatives of countries in international law are Heads of Governments, whether they are Presidents, Monarchs or Prime Ministers. Any political determination made by these Heads of States that their countries are in a state of war is conclusive. In the case of the United States it would be the President, and in the case of the Hawaiian Kingdom it would be the Monarch.

International law differentiates a “declaration of war” from a “state of war.” According to McNair and Watts, “the absence of a declaration…will not of itself render the ensuing conflict any less a war.” In other words, since a state of war is based upon concrete facts of military action there is no requirement for a formal declaration of war to be made. In 1946, a United States Federal Court had to determine whether a United States naval captain’s life insurance policy, which excluded coverage if death came about as a result of war, covered his death during the Japanese attack of Pearl Harbor on December 7, 1945. The family of the captain was arguing that the United States was not a war at the time of his death because the Congress did not declare war against Japan until the following day. The Court denied the family’s claim and determined, “that the formal declaration by the Congress on December 8th was not an essential prerequisite to a political determination of the existence of a state of war commencing with the attack on Pearl Harbor.” (New York Life Ins. Co. v. Bennion, 158 F.2d 260 (C.C.A. 10th, 1946), 41 American Journal of International Law (1947), 682).

On the 100th anniversary of the United States unlawful overthrow of the Hawaiian Kingdom government in 1893, the United States Congress enacted a joint resolution offering an apology. Of significance in the resolution was a particular “whereas” clause, which stated “Whereas, in a message to Congress on December 18, 1893, President Grover Cleveland reportedly fully and accurately on the illegal acts of the conspirators, described such acts as an ‘act of war, committed with the participation of a diplomatic representative of the United States and without authority of Congress, and acknowledged that by such acts the government of a peaceful and friendly people was overthrown.” (Annexure 2Larsen v. Hawaiian Kingdom, 119 International Law Reports (2001) 612).

At first read, it would appear that the “conspirators” were the subjects that committed the “act of war,” but this is misleading. First, under international law, only a country can commit an “act of war”, whether through its military and/or its diplomats; and, second, under municipal laws, which are the laws applicable to a particular country, conspirators within a country could only commit treason not “acts of war.” These two concepts are reflected in the terms coup de main and coup d’état. The former is a successful invasion by an outside military force, while the former is a successful internal revolt, which was also referred to in the nineteenth century as a revolution. According to the United States Department of Defense, a coup de main is an “offensive operation that capitalizes on surprise and simultaneous execution of supporting operations to achieve success in one swift stroke.” (U.S. Department of Defense, The Dictionary of Military Terms (2009)).

In a petition to President Cleveland on December 27, 1893, from the Hawaiian Patriotic League, its leadership, comprised of Hawaiian statesmen and lawyers, clearly articulated the difference between a “revolution” and a “coup de main,” and, as such, an international crime was committed. The petition read:

“Last January, a political crime was committed, not only against the legitimate Sovereign of the Hawaiian Kingdom, but also against the whole of the Hawaiian nation, a nation who, for the past sixty years, had enjoyed free and happy constitutional self-government. This was done by a coup de main of U.S. Minister Stevens, in collusion with a cabal of conspirators, mainly faithless sons of missionaries and local politicians angered by continuous political defeat, who, as revenge for being a hopeless minority in the country, resolved to ‘rule or ruin’ through foreign help. The facts of this ‘revolution,’ as it is improperly called, are now a matter of history.” (Petition of the Hawaiian Patriotic League to President Cleveland (Dec. 27, 1893), The Executive Documents of the House of Representatives (1895), 1295).

Whether by chance or design, the 1993 Congressional Apology Resolution did not accurately reflect what President Cleveland stated in his message to Congress on December 18, 1893. When Cleveland stated that the “military demonstration upon the soil of Honolulu was of itself an act of war,” he was referring to United States armed forces and not to any of the conspirators. Cleveland noted, “that on the 16th day of January, 1893, between four and five o’clock in the afternoon, a detachment of marines from the United States steamer Boston, with two pieces of artillery, landed at Honolulu. The men, upwards of 160 in all, were supplied with double cartridge belts filled with ammunition and with haversacks and canteens, and were accompanied by a hospital corps with stretchers and medical supplies.” Clearly the act of war was committed by the armed forces of the United States. The landing, however, was just the beginning stage of a coup de main with the ultimate goal of seizing control of the Hawaiian government.

As part of the plan, the U.S. diplomat, John Stevens, would prematurely recognize the small group of insurgents on January 17th as if they were a successful revolution thereby giving it de facto status. International law, however, provides the parameters by which a revolution is deemed to have been successful. Foreign States would acknowledge success when an insurgency has secured complete control of all governmental machinery, no opposition by the lawful government, and has the acquiescence of the national population. According to Professor Lauterpacht, “So long as the revolution has not been successful, and so long as the lawful government…remains within national territory and asserts its authority, it is presumed to represent the State as a whole.” (E. Lauterpacht, Recognition in International Law (1947) 93). With full knowledge of what constitutes a successful revolution, Cleveland provided a blistering indictment:

“When our Minister recognized the provisional government the only basis upon which it rested was the fact that the Committee of Safety…declared it to exist. It was neither a government de facto nor de jure. That it was not in such possession of the Government property and agencies as entitled it to recognition is conclusively proved by a note found in the files of the Legation at Honolulu, addressed by the declared head of the provisional government to Minister Stevens, dated January 17, 1893, in which he acknowledges with expressions of appreciation the Minister’s recognition of the provisional government, and states that it is not yet in the possession of the station house (the place where a large number of the Queen’s troops were quartered), though the same had been demanded of the Queen’s officers in charge.” (Annexure 1—President Cleveland’s message to the Senate and House of Representatives dated 18 December 1893, Larsen v. Hawaiian Kingdom, 119 International Law Reports (2001) 605).

“Premature recognition is a tortious act against the lawful government,” explains Professor Lauterpacht, which “is a breach of international law.” (Ibid, 95). And according to Stowell, a “foreign state which intervenes in support of [insurgents] commits an act of war against the state to which it belongs, and steps outside the law of nations in time of peace.” (Ellery C. Stowell, Intervention in International Law (1921) 349, n. 75). Furthermore Stapleton states, “Of all the principles in the code of international law, the most important—the one which the independent existence of all weaker States must depend—is this: no State has a right FORCIBLY to interfere in the internal concerns of another State.” (Augustus Granville Stapleton, Intervention and Non-Intervention (1866) 6).

Cleveland then explained to the Congress the egregious effects these acts of war had upon the Hawaiian government and its apprehension of a “cabal of conspirators” who committed high treason.

“Nevertheless, this wrongful recognition by our Minister placed the Government of the Queen in a position of most perilous perplexity. On the one hand she had possession of the palace, of the barracks, and of the police station, and had at her command at least five hundred fully armed men and several pieces of artillery. Indeed, the whole military force of her kingdom was on her side and at her disposal, while the Committee of Safety, by actual search, had discovered that there were but very few arms in Honolulu that were not in the service of the Government. In this state of things if the Queen could have dealt with the insurgents alone her course would have been plain and the result unmistakable. But the United States had allied itself with her enemies, had recognized them as the true Government of Hawaii, and had put her and her adherents in the position of opposition against lawful authority. She knew that she could not withstand the power of the United States, but she believed that she might safely trust to its justice. Accordingly, some hours after the recognition of the provisional government by the United States Minister, the palace, the barracks, and the police station, with all the military resources of the country, were delivered up by the Queen upon the representation made to her that her cause would thereafter be reviewed at Washington, and while protesting that she surrendered to the superior force of the United States, whose Minister had caused United States troops to be landed at Honolulu and declared that he would support the provisional government, and that she yielded her authority to prevent collision of armed forces and loss of life and only until such time as the United States, upon the facts being presented to it, should undo the action of its representative and reinstate her in the authority she claimed as the constitutional sovereign of the Hawaiian Islands.” (Annexure 1—President Cleveland’s message to the Senate and House of Representatives dated 18 December 1893, Larsen v. Hawaiian Kingdom, 119 International Law Reports (2001) 606).

According to Professor Wright, “War begins when any state of the world manifests its intention to make war by some overt act, which may take the form of an act of war.” Quincy Wright, “Changes in the Concept of War,” 18 American Journal of International Law (1924) 758). In his review of customary international law in the nineteenth century, Professor Brownlie concluded, “that in so far a ‘state of war’ had any generally accepted meaning it was a situation regarded by one or both parties to a conflict as constituting a ‘state of war.’” (Brownlie, 38).

Cleveland concluded by an “act of war…the Government of a feeble but friendly and confiding people has been overthrown.”(Annexure 1—President Cleveland’s message to the Senate and House of Representatives dated 18 December 1893, Larsen v. Hawaiian Kingdom, 119 International Law Reports (2001) 608). More importantly, Cleveland referred to the Hawaiian people as “friendly and confiding,” not “hostile.” This is a classic case of where the United States President admits an unjust war, but a state of war nevertheless. In the absence of a treaty or agreement to end the state of war that has ensued for over a century, international humanitarian law regulates the Hawaiian situation.

These are the very matters that will come before the International Commission of Inquiry: Incidents of War Crimes in the Hawaiian Islands—The Larsen Case.