On behalf of the Council of Regency, I hereby make a final appeal for you to perform your duty of transforming the State of Hawai‘i into a military government on February 17, 2024, in accordance with Article 43 of the 1907 Hague Regulations, Article 64 of the Fourth Geneva Convention, and Army regulations. To not do so, you will have command responsibility for the commission of the war crime of usurpation of sovereignty during military occupation by the legislative, executive, and judicial branches of the State of Hawai‘i.
Copied to the letter included members of the State of Hawai‘i Legislature and the County Councils. In that letter, Dr. Sai then laid out the circumstances that led to establishing the date of February 17, 2024, as the deadline for action. After 24 years of exposure of the Hawaiian Kingdom as an occupied State, the State of Hawai‘i is now at a crossroads. To continue on the path of illegality, or to change course because of legality is the question that faces officials of the State of Hawai‘i. In his letter to the members of the Legislature and County Councils on February 7, 2024, Dr. Sai wrote:
[I]f you shall not cease the enactment of American municipal laws and continue to commit the war crime of usurpation of sovereignty during military occupation with impunity, you will be the subject of a war criminal report, which will provide the factual information, to include this letter of communication, that satisfies the aforementioned four elements of criminal culpability. I urge you not to take this lightly. War crimes have no statute of limitations.
These ultimatums put forth by the Royal Commission of Inquiry stems from its duty and responsibility to investigate and prosecute war crimes committed within Hawaiian territory. This responsibility is not a choice but a duty, under international law, in order to protect the population of an occupied State. On the contrary, there is no responsibility or duty to enact American laws by officials that were elected by the American citizenry in the territory that is occupied by the United States because to do so is the war crime of usurpation of sovereignty during military occupation. However, to commit an international crime the act must be accompanied with mens rea or the guilty mind. In other words, the war crime must be committed with intent and knowledge.
Prior to receiving the letter from the Royal Commission of Inquiry it could be assumed that the members of the Legislature and the County Councils were not aware that their action in enacting American laws in an occupied State was unlawful under international law. But after they received the letter, the circumstances have changed, and their continued action of enacting laws would be committed with intent and knowledge.
Last year, when Germany prosecuted Irmgard Furchner, a 97-year-old woman, of being an accessory to more than 10,000 murders for her role as a secretary to the SS commander of the Nazis’ Stutthof concentration camp during the Second World War, the prosecutors had to prove intent. In the case, the judges were convinced Furchner “knew and, through her work as a stenographer in the commandant’s office of the Stutthof concentration camp from June 1, 1943, to April 1, 1945, deliberately supported the fact that 10,505 prisoners were cruelly killed by gassings, by hostile conditions in the camp,” by transportation to the Auschwitz death camp and by being sent on death marches at the end of the war.
In the Hawaiian situation, the enactment of American laws is the source of secondary war crimes such as denationalization through Americanization, unfair trial by a court that lacks lawful authority, unlawful confinement ordered by a judge without authority, destruction of property as the case of Mauna Kea, etc. Therefore, the enactment of American laws in an occupied State is not an innocent act of legislative responsibility unless there is irrefutable evidence that the Hawaiian Kingdom is not an occupied State. If the Hawaiian Islands constitute a part of the territory of the United States and that the State of Hawai‘i is a lawfully established government under the constitution and laws of the United States, then officials of the State of Hawai‘i have nothing to worry about.
Professor William Schabas, renowned expert on international criminal and war crimes, states that in order to establish criminal intent for war crimes, there is no requirement for a legal evaluation as to the existence of an occupation stemming from an international armed conflict. Instead, there is only a requirement for the awareness of the factual circumstances of an occupation. Conversely, a legal evaluation would be welcomed not for determining whether an act constitutes a war crime, but for providing irrefutable evidence that the Hawaiian Kingdom does not continue to exist as an occupied State.
This is why Major General Hara, after being apprised by Dr. Sai on April 17, 2023, that war crimes are being committed in the Hawaiian Kingdom as an occupied State, he tasked his Staff Judge Advocate, Lieutenant Colonel Lloyd Phelps, to investigate. He could not find any legal basis to conclude Major General Hara has no such duty to establish a military government because the Hawaiian Kingdom is not an occupied State and that the State of Hawai‘i is a lawful entity. There exists no such legal opinion.
In fact, the Department of Justice’s Office of Legal Counsel does have a legal opinion on the annexation of Hawai‘i by a congressional legislation that it published in 1988. The opinion is not what you would expect from the federal government on Hawai‘i. The legal opinion was advising the State Department on the legal issues raised by a proposed Presidential proclamation to extend the territorial sea from three miles off the coast of the United Stats to twelve miles. In that legal opinion, Acting Assistant Attorney General Douglas W. Kmiec concluded,
It is therefore unclear which constitutional power Congress exercised when it acquired Hawaii by joint resolution. Accordingly it is doubtful that the acquisition of Hawaii can serve as an appropriate precedent for a congressional assertion of sovereignty over an extended territorial sea.
In support of this conclusion, Acting Assistant Attorney General Kmiec relied on statements made in 1898 by members of the Congress, and also writings of constitutional scholar Professor Westel Willoughby who stated:
The constitutionality of the annexation of Hawaii, by a simple legislative act, was strenuously contested at the time both in Congress and by the press. The right to annex by treaty was not denied, but it was denied that this might be done by a simple legislative act. … Only by means of treaties, it was asserted, can the relations between States be governed, for a legislative act is necessarily without extraterritorial force—confined in its operation to the territory of the State by whose legislature it is enacted.
If it is unclear how Congress could annex foreign territory by legislative action, it would be equally unclear how Congress could establish the State of Hawai‘i by legislative action in 1959. Without a treaty all American laws imposed in the Hawaiian Kingdom constitutes the war crime of usurpation of sovereignty during military occupation.
In 2014, however, there was an attempt by an official of the State of Hawai‘i to get an answer from the State Department regarding the functions of the State of Hawai‘i in light of the 1988 legal opinion. The Office of Hawaiian Affairs top executive, Dr. Kamana‘opono Crabbe, submitted a formal request with the U.S. Department of State requesting a legal opinion from the U.S. Attorney General’s Office of Legal Counsel addressing the legal status of the Hawaiian Kingdom under international law.
In his letter to Secretary of State John F. Kerry, Crabbe said, “because the Department of State is the United States’ executive department responsible for international relations and who also housed diplomatic papers and agreements with the Hawaiian Kingdom, I am respectfully submitting a formal request to have the Department of State request an opinion from the Office of Legal Counsel, Department of Justice, addressing the following questions:
• First, does the Hawaiian Kingdom, as a sovereign independent State, continue to exist as a subject of international law?
• Second, if the Hawaiian Kingdom continues to exist, do the sole-executive agreements bind the United States today?
• Third, if the Hawaiian Kingdom continues to exist and the sole-executive agreements are binding on the United States, what effect would such a conclusion have on United States domestic legislation, such as the Hawai‘i Statehood Act, 73 Stat. 4, and Act 195?
• Fourth, if the Hawaiian Kingdom continues to exist and the sole-executive agreements are binding on the United States, have the members of the Native Hawaiian Roll Commission, Trustees and staff of the Office of Hawaiian Affairs incurred criminal liability under international law?”
This letter boxed in the Secretary of State by forcing him to answer the first question as to whether the Hawaiian Kingdom continues to exist as a subject of international law. If the Office of Legal Counsel can write a legal opinion that the Hawaiian Kingdom does not continue to exist, they don’t have to answer following three questions. The Secretary of State did not make the request for a legal opinion from the Office of Legal Counsel, which affirms the 1988 legal opinion that Congress could not annex the Hawaiian Islands by legislation.
Major General Hara and members of the Legislature and the County Councils should take heed of this information as February 17, 2024, is fast approaching.