In this edition of “Kanaka Express,” the host, Kale Gumapac, asks Dexter K. Kaiama, Esq. to elaborate on the points he brought up when he was on a panel hosted by Dan Boylan on PBS television called “Insights.” With Kaiama is another guest of the show Dr. Keanu Sai who is a political scientist specializing in international relations and public law.
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For more information on Sai’s presentations and the seminar, contact Cunefare. For lecture schedules, visit http://kohalacenter.org/puanakaike/about.html. Webcasts of previous lecture are available at http://www.keauhouresort.com/learn-puanakaike.html.
The first war crime complaint was filed on February 14, 2012, with the Prosecutor of the International Criminal Court (ICC) and copied to the United Nations Human Rights Commission by Dexter Kaiama, attorney, on behalf of his client Kenneth K.K. Kawa‘auhau. Kawa‘auhau is a Hawaiian subject and a protected person under the 1949 Fourth Geneva Convention. The specific war crime is denying a protected person a fair and regular trial. According to the ICC, elements of the war crime of denying a fair trial include:
The ICC also clarifies that with respect to the last two elements listed for the war crime of denying a fair trial:
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In 2012, ejectment proceedings were instituted by the State of Hawai‘i Attorney General against Kawa‘auhau seeking a court order from the District Court of the First Circuit, Waianae Division, to remove him from his home in Waianae. Kawa‘auhau held a 99-year lease from the Department of Hawaiian Home Lands. On January 24, 2012, Kawa‘auhau filed a Motion to Dismiss on the grounds that the District Court was not lawfully constituted because the United States has been illegally occupying the Hawaiian Kingdom in violation of the 1893 Lili`uokalani assignment and the Restoration Agreement, being international compacts, the 1907 Hague Convention, IV, and international law. Kaiama provided special appearance for Kawa‘auhau at the hearing on the motion that was held on February 7, 2012.
According to Kawa‘auhau’s pleadings in the case, his argument and supporting evidence centered on the fact that there is no treaty between Hawai‘i and the United States, and without a treaty United States laws enacted by the Congress have no force and effect beyond U.S. territory. As a result, the District Court, which derives its authority from An Act To provide for the admission of the State of Hawai‘i into the Union (March 18, 1959), cannot claim to have jurisdiction in territory that does not belong to the United States. Kawa‘auhau argues that the Hawaiian Kingdom continues to exist and that international laws, not U.S. laws, apply in his situation.
Despite Kaiama getting District Court Judge Maura Okamoto to take judicial notice of the evidence, she denied the motion to dismiss without cause and the court eventually granted the order for eviction. Kawa‘auhau’s appeal with the Intermediate Court of Appeals was also denied by Presiding Judge Daniel Foley, Associate Judge Katherine Leonard and Associate Judge Lawrence Reifurth without any counter-evidence as well. (United States) State of Hawai‘i Government is a War Crime under International Law.
The War Crime Complaint alleges:
“State of Hawai‘i Judges OKAMOTO, FOLEY, LEONARD, and REIFURTH committed a war crime by willfully depriving my client, a protected person, of a fair and regular trial prescribed by the fourth Geneva Convention. The Plaintiff, State of Hawai‘i Department of Hawaiian Home Lands Chair JOBIE MASAGATANI and State of Hawai‘i Governor NEAL ABERCROMBIE, represented by the State of Hawai‘i Attorney General DAVID M. LOUIE and Deputy Attorney Generals MATTHEW S. DVONCH, DIANE K. TAIRA and S. KALANI BUSH were complicit in these proceedings and therefore committed a war crime as accessories.”
The War Crime Complaint concludes:
“Accordingly, pursuant to Article 17(3) of the Rome Statute, I respectfully request the office of the Prosecutor, with all due speed, investigate the situation in order to determine if the alleged perpetrators should be charged with the war crime specified above.”
The ICC jurisdiction over the Hawaiian Islands will begin March 4, 2013.
On January 17, 1893, Foreign Legations accredited to the Court of the Hawaiian Kingdom in the city of Honolulu included the United States of America, Portugal, Great Britain, France and Japan. A Legation is a diplomatic mission in a foreign country headed by an Envoy Extraordinary and Minister Plenipotentiary. After the Second World War legations were considered embassies. Foreign Consulates in the Hawaiian Kingdom included the United States of America, Italy, Chile, Germany, Sweden-Norway, Denmark, Peru, Belgium, Netherlands, Spain, Austria-Hungary, Russia, Great Britain, Mexico and China.
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Hawaiian Legations accredited abroad to foreign States included:
Hawaiian Consulates abroad in foreign States included:
On December 20, 1849, the Treaty between the United States of America and the Hawaiian Kingdom was concluded and signed in Washington, D.C. Ratifications by both countries were exchanged in Honolulu on the Island of O‘ahu, on August 24, 1850. Article VIII of the treaty provides:
“…each of the two contracting parties engages that the citizens or subjects of the other residing in their respective States shall enjoy their property and personal security in as full and ample manner as their own citizens or subjects, or the subjects or citizens of the most favored nation, but subject always to the laws and statutes of the two countries, respectively.”
In addition, Article XVI of the said treaty provides that any:
“…citizen or subject of either party infringing the articles of this treaty shall be held responsible for the same, and the harmony and good correspondence between the two governments shall not be interrupted thereby, each party engaging in no way to protect the offender, or sanction such violation.”
Neither the United States nor the Hawaiian Kingdom gave notice to the other of its intention to terminate this treaty in accordance with the terms of Article XVI of the 1849 Treaty. Therefore, this treaty is still in full force and continues to have legal effect to date. Former United States territories, which acquired their independence from the United States, are successor States to, at the very least, Article VIII of the Hawaiian-American Treaty with regard to the citizenry of the successor State that effectively replaced the citizenry of the predecessor State in the treaty. These successor States are:
On July 1, 1852, a Treaty was signed between Sweden and Norway and the Hawaiian Kingdom in Honolulu and thereafter ratified by both governments. Article II of the treaty provides:
“there shall be between all the dominions of His Swedish and Norwegian Majesty, and the Hawaiian Islands, a reciprocal freedom of commerce. The subjects of each of the two contracting parties, respectively, shall have liberty freely and securely to come with their ships and cargoes to all places, ports and rivers in the territories of the other, where trade with other nations in permitted. They may remain and reside in any part of the said territories, respectively, and hire and occupy houses and warehouses and my trade, by wholesale or retail, in all kinds of produce, manufactures or merchandise of lawful commerce, enjoying the same exemptions and privileges as native subjects, and subject always to the same laws and established customs as native subjects.”
Following the separation of Austria-Hungary into two separate States, both States remained parties to the 1852 Treaty with the Hawaiian Kingdom. Neither Norway nor Sweden nor the Hawaiian Kingdom gave notice to the other of their intentions to terminate this treaty in accordance with the terms of Article XVII of the 1852 Treaty. Therefore, the treaty is still in full force and continues to have legal effect to date.
On July 20, 1864, a Treaty was signed between the Swiss Confederation and the Hawaiian Kingdom in Berne and thereafter ratified by both governments. Article III of the treaty provides:
“the citizens of each of the contracting parties shall enjoy on the territory of the other the most perfect and complete protection for their persons and their property. They shall in consequence have free and easy access to the tribunals of justice for their claims and the defense of their rights, in all cases and in every degree of jurisdiction established by the law.”
Neither the Swiss Confederation nor the Hawaiian Kingdom gave notice to the other of its intention to terminate this treaty in accordance with the terms of Article XIII of the 1864 Treaty with regard to the citizenry of the successor State that effectively replaced the citizenry of the predecessor State in the treaty. Therefore, this treaty is still in full force and continues to have legal effect to date.
On October 29, 1863, a Treaty was signed between Spain and the Hawaiian Kingdom in London and thereafter ratified by both governments. Article IV of this treaty provides:
“the respective citizens of the two countries shall enjoy the most constant and complete protection for their persons and property. Consequently, they shall have free and easy access to the courts of justice in the pursuit and defense of their rights, in every instance and degree of jurisdiction established by the laws.”
Neither Spain nor the Hawaiian Kingdom gave notice to the other of its intention to terminate this treaty in accordance with the terms of Article XXVII of the 1863 Treaty. Therefore, this treaty is still in full force and continues to have legal effect to date day. Former Spanish territories, which acquired their independence from Spain, are successor States to, at the very least, Article IV of the Hawaiian-Spanish Treaty with regard to the citizenry of the successor State that effectively replaced the citizenry of the predecessor State in the treaty. These successor States are:
On June 19, 1869, a Treaty was signed between Russia and the Hawaiian Kingdom in Paris and thereafter ratified by both governments. Article II of this treaty provides:
“the subjects of His Majesty the Emperor of all the Russias, and the subjects of His Majesty the King of the Hawaiian Islands, shall be treated reciprocally on the footing of the most favored nation.”
Neither Russia nor the Hawaiian Kingdom gave notice to the other of its intention to terminate this treaty in accordance with the principles of customary international law. Therefore, this treaty is still in full force and continues to have legal effect to date. Former Russian territories, which acquired their independence from Russia, are successor States to, at the very least, Article II of the Hawaiian-Russian Treaty with regard to the citizenry of the successor State that effectively replaced the citizenry of the predecessor State in the treaty. These successor States are:
On May 5, 1882, a Provisional Convention was signed between Portugal and the Hawaiian Kingdom in Lisbon and thereafter ratified by both governments. Article I of this convention provides:
“the Consular Agents, the subjects, the ships and products of the soil, or of the industry of one of the two countries, will enjoy on the territory of the other the same exemptions, privileges, and immunities which other Consular Agents, subjects, ships and products of the soil, or of the industry of the most favored nation, enjoy.”
Neither Portugal nor the Hawaiian Kingdom gave notice to the other of its intention to terminate this Provisional Convention in accordance with the principles of customary international law. Therefore, this Portuguese Provisional Convention is still in full force and continues to have legal effect to date. Former Portuguese territories, which acquired their independence from Portugal, are successor States to, at the very least, Article I of the Hawaiian-Portuguese Treaty with regard to the citizenry of the successor State that effectively replaced the citizenry of the predecessor State in the treaty. These successor States are:
On October 16, 1862, a Treaty was signed between the Netherlands and the Hawaiian Kingdom in The Hague and thereafter ratified by both governments. The King of the Netherlands, William III, was also Grand Duke of Luxembourg. Article II of this treaty provides:
“the respective subjects of the two high contracting parties shall be perfectly and in all respects assimilated on their establishment and settlement, whether for a longer or shorter time in the States and Colonies of the other party on the terms granted to the subjects of the most favored nation in all which concerns the permission of sojourning, the exercise of legal professions, imposts, taxes, in a word, all the conditions relative to sojourn and establishment.”
Neither the Netherlands nor the Hawaiian Kingdom gave notice to the other of its intention to terminate this treaty in accordance with the terms of Article VI of the 1862 Treaty. Therefore, this treaty is still in full force and continues to have legal effect to date. Former Dutch territories, which acquired their independence from the Netherlands, are successor States to, at the very least, Article II of the Hawaiian-Dutch Treaty with regard to the citizenry of the successor State that effectively replaced the citizenry of the predecessor State in the treaty. These successor States are:
On August 19, 1871, a Treaty was signed between Japan and the Hawaiian Kingdom in the city of Yedo and thereafter ratified by both governments. Article II of this treaty provides:
“the subjects of each of the two high contracting parties, respectively, shall have the liberty freely and securely to come with their ships and cargoes to all places, ports and rivers in the territories of the other, where trade with other nations is permitted; they may remain and reside in any such ports, and places respectively, and hire and occupy houses and warehouses, and may trade in all kinds of produce, manufactures and merchandise of lawful commerce, enjoying at all times the same privileges as may have been, or may hereafter be granted to the citizens or subjects of any other nation, paying at all times such duties and taxes as may be exacted from the citizens or subjects of other nations doing business or residing within the territories of each of the high contracting parties.”
Neither Japan nor the Hawaiian Kingdom gave notice to the other of its intention to terminate this treaty in accordance with the terms of Article VI of the 1871 Treaty. Therefore, this treaty is still in full force and continues to have legal effect to date. Former Japanese territories, which acquired their independence from Japan, are successor States to, at the very least, Article II of the Hawaiian-Japanese Treaty with regard to the citizenry of the successor State that effectively replaced the citizenry of the predecessor State in the treaty. The successor States are:
On July 22, 1863, a Treaty was signed between Italy and the Hawaiian Kingdom in Paris and thereafter ratified by both governments. Article IV of this treaty provides:
“the respective citizens of the two countries shall enjoy the most constant and complete protection for their persons and property. Consequently, they shall have free and easy access to the courts of justice in the pursuit and defense of their rights, in every instance and degree of jurisdiction established by the laws.”
Neither Italy nor the Hawaiian Kingdom gave notice to the other of its intention to terminate this treaty in accordance with the terms of Article XXVII of the 1863 Treaty. Therefore, this treaty is still in full force and continues to have legal effect to date. Former Italian territories, which acquired their independence from Italy, are successor States to, at the very least, Article IV of the Hawaiian-Italian Treaty with regard to the citizenry of the successor State that effectively replaced the citizenry of the predecessor State in the treaty. The successor State is:
On July 10, 1851, a Treaty was signed between the United Kingdom and the Hawaiian Kingdom in Honolulu and thereafter ratified by both governments. Article VIII of this treaty provides:
“the subjects of either of the contracting parties, in the territories of the other, shall receive and enjoy full and perfect protection for their persons and property, and shall have free and open access to the courts of justice in the said countries, respectively, for the prosecution and defense of their just rights…”
Neither Great Britain nor the Hawaiian Kingdom gave notice to the other of its intention to terminate this treaty in accordance with the principles of customary international law. Therefore, this treaty is still in full force and continues to have legal effect to date. Former British territories, which acquired their independence from Great Britain, are successor States to, at the very least, Article VIII of the Hawaiian-British Treaty with regard to the citizenry of the successor State that effectively replaced the citizenry of the predecessor State in the treaty. These successor States, which includes mandate territories, are:
On March 25, 1879, a Treaty was signed between Germany and the Hawaiian Kingdom in Berlin and thereafter ratified by both governments and exchanged. Article II of this treaty provides:
“the subjects and citizens of the two High Contracting Parties may remain and reside in any part of said territories respectively and shall receive and enjoy full and perfect protection for their persons and property. They shall have free and easy access to the courts of justice, provided by law, in pursuit and defense of their rights, and they shall be at liberty to choose and employ lawyers, advocates or agents to pursue or defend their rights before such courts of justice; and they shall enjoy in this respect all the rights and privileges as native subjects or citizens.”
Neither Germany nor the Hawaiian Kingdom gave notice to the other of its intention to terminate this treaty in accordance with the terms of Article XXVI of the 1879 Treaty. Therefore, this treaty is still in full force and continues to have legal effect to date.