The State of Hawai‘i finds itself at a Crossroads on February 17, 2024

In a letter that was emailed to Major General Hara yesterday by Dr. David Keanu Sai, as Head of the Royal Commission of Inquiry, he opened with:

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.

The Duty to Protect the Population in Hawai‘i from War Crimes Committed by the State of Hawai‘i

The legal basis for the Council of Regency’s establishment under Hawaiian constitutional law and the legal doctrine of necessity was based on the continued existence of the country called the Hawaiian State. What was unlawfully overthrown on January 17, 1893, was the government of the Hawaiian Kingdom and not the Hawaiian Kingdom as a State under international law. In fact, international law protects the State and its continuity from the continuous violations of its sovereignty by another State. What international law cannot protect, however, is the population of the Hawaiian Islands from denationalization through Americanization that began as a formal policy in 1906.

Under international criminal law, denationalization is the process of replacing the national consciousness of the Hawaiian Kingdom, to include its language, in the minds of school children with the national consciousness of the United States and its English language. Within three generations since 1906, the national consciousness of the Hawaiian Kingdom was wiped clean in the minds of the population in the Hawaiian Islands. Denationalization is a policy carried out in the school systems of the occupied States that attempts to change the national consciousness in the minds of school children. The United States and the Allied Powers in the First World War determined denationalization to be a war crime committed by Germany, Austria, and Bulgaria against the population of the Kingdom of Serbia when Serbia was occupied.

From the Allied Powers 1919 Commission on Responsibilities for the First World War, under the heading “attempts to denationalize the inhabitants of occupied territory,” the Commission charged several crimes committed in Serbia by the Bulgarian authorities: “Efforts to impose their national characteristics on the population;” “Serbian language forbidden in private as well as in official relations. People beaten for saying “Good morning” in Serbian;” Inhabitants forced to give their names a Bulgarian form;” “Serbian books banned—were systematically destroyed;” “Archives of churches and law-courts destroyed;” “Schools and churches closed, sometimes destroyed;” “Bulgarian schools and churches substituted—attendance at school compulsory;” “Population forced to be present at Bulgarian national solemnities.” The Commission also stated that in Serbia the Austrian and German authorities “interfered with religious worship, by deportation of priests and requisition of churches for military purposes. Interfered with the Serbian language.” In United States v. Greifelt et al., in 1948, the war crimes tribunal specifically referred to the war crime of denationalization by German authorities in occupied territories during the Second World War. The tribunal observed:

Attempts of this nature were recognized as a war crime in view of the German policy in territories annexed by Germany in 1914, such as in Alsace and Lorraine. At that time, as during the war of 1939-1945, inhabitants of an occupied terri­tory were subjected to measures intended to deprive them of their national char­acteristics and to make the land and population affected a German province. The methods applied by the Nazis in Poland and other occupied territories, including once more Alsace and Lorraine, were of a similar nature with the sole difference that they were more ruthless and wider in scope than in 1914-1918. In this con­nection the policy of ‘Germanizing’ the populations concerned, as shown by the evidence in the trial under review, consisted partly in forcibly denationalizing given classes or groups of the local population, such as Poles, Alsace-Lorrainers, Slovenes and others eligible for Germanization under the German People’s List. As a result in these cases the programme of genocide was being achieved through acts which, in themselves, constitute war crimes.

The operative word used when describing the policy and acts of denationalization committed against the population of occupied States in both World Wars was “attempts.” The reason for the choice of this word was because the First World War only lasted for four years, and the Second World War only lasted six years. The American occupation is now at 131 years where the lies to conceal the occupation have become institutionalized and perceived to be the truth. As British novelist Dresden James wrote, “When a well-packaged web of lies has been sold gradually to the masses over generations, the truth will seem utterly preposterous and its speaker a raving lunatic.”

Another war crime committed by German, Austrian and Bulgarian authorities in occupied territories during the First World War was usurpation of sovereignty during military occupation. Usurpation of sovereignty is the imposition of the laws of the occupying State over the territory and its population of the occupied State. During the military occupation of a State, the occupying State is obligated to temporarily administer the laws of the occupied State until there is a treaty of peace. To impose the occupying State’s laws is a crime.

The Commission on Responsibility for the First World War charged that in Poland the German and Austrian forces had “prevented the populations from organising themselves to maintain order and public security” and that they had “[a]ided the Bolshevist hordes that invaded the territories.” It said that in Romania the German author­ities had “instituted German civil courts to try disputes between subjects of the Central Powers or between a subject of these powers and a Romanian, a neutral, or subjects of Germany’s en­emies.” In Serbia, the Bulgarian authorities had “[p]roclaimed that the Serbian State no longer existed, and that Serbian territory had become Bulgarian.” It listed several other war crimes of Bulgaria committed in occupied Serbia: “Serbian law, courts and administration ousted;” “Taxes collected under Bulgarian fiscal regime;” “Serbian currency suppressed;” “Public property removed or destroyed, including books, archives and MSS (e.g., from the National Library, the University Library, Serbian Legation at Sofia, French Consulate at Uskub);” “Prohibited sending Serbian Red Cross to occupied Serbia.” It also charged that in Serbia the German and Austrian authorities had committed several war crimes: “The Austrians suspended many Serbian laws and substituted their own, especially in penal matters, in procedure, judicial or­ganisation, etc.;” and “Museums belonging to the State (e.g., Belgrade, Detchani) were emptied and the contents taken to Vienna.”

The crime of “usurpation of sovereignty” was referred to by Judge Blair of the American Military Commission in a separate opinion in United States v. Alstötter et al. of 1951, “This rule is incident to military occupation and was clearly intended to protect the inhabitants of any occupied territory against the unnecessary exercise of sovereignty by a military occupant.”

When the Hawaiian government was restored by a Council of Regency in 1997, it also held vicarious liability for its actions. As a constitutional monarchy, the primary duty of the Hawaiian government is to protect the rights of its population. In Larsen v. Hawaiian Kingdom at the Permanent Court of Arbitration, Larsen was alleging that he was not being protected by the Regency because the Regency, he argued, was allowing the unlawful imposition of American laws over him which led to his unfair trial and incarceration. The Regency denied this allegation but used the Permanent Court of Arbitration to recognize the continued existence of the Hawaiian Kingdom as a State and the Regency as its government.

This duty for governments to protect its population from war crimes reached the international level in 2005. At the United Nations World Summit in 2005, the Responsibility to Protect was unanimously adopted. The principle of the Responsibility to Protect has three pillars: (1) every State has the Responsibility to Protect its populations from four mass atrocity crimes—genocide, war crimes, crimes against humanity and ethnic cleansing; (2) the wider international community has the responsibility to encourage and assist individual States in meeting that responsibility; and (3) if a state is manifestly failing to protect its populations, the international community must be prepared to take appropriate collective action, in a timely and decisive manner and in accordance with the UN Charter. In 2009, the General Assembly reaffirmed the three pillars of a State’s responsibility to protect their populations from war crimes and crimes against humanity. And in 2021, the General Assembly passed a resolution on “[t]he responsibility to protect and the prevention of genocide, war crimes, ethnic cleansing and crimes against humanity.” The third pillar, which may call into action State intervention, can become controversial.

Rule 158 of the International Committee of the Red Cross Study on Customary International Humanitarian Law specifies that “States must investigate war crimes allegedly committed by their nationals or armed forces, or on their territory, and, if appropriate, prosecute the suspects. They must also investigate other war crimes over which they have jurisdiction and, if appropriate, prosecute the suspects.” This “rule that States must investigate war crimes and prosecute the suspects is set forth in numerous military manuals, with respect to grave breaches, but also more broadly with respect to war crimes in general.”

What faced the Regency was how to protect a population from the commission of war crimes when that population itself had been completely denationalized into believing that the State of Hawai‘i exists as a lawful government under United States laws. The Regency’s strategy after returning from the PCA in the Netherlands was to effectively engage the devastating effects of denationalization through academic research at the university level. Since 2000, this research made public through published peer review articles, master’s theses, doctoral dissertations, books, and classroom instruction have managed to tear down the facade that the State of Hawai‘i is lawful and that the United States is an occupying Power.

During the occupation of the territory by an occupying State, there are two legal systems that exist at the same time, that of the occupied State and that of the occupying State. As Professor Krystina Marek explains, in “the first place: of these two legal orders, that of the occupied State is regular and ‘normal,’ while that of the occupying power is exceptional and limited. At the same time, the legal order of the occupant is…strictly subject to the principle of effectiveness, while the legal order of the occupied State continues to exist notwithstanding the absence of effectiveness.” The Regency knew that while the State of Hawai‘i exercised effective, but unlawful, control of Hawaiian territory there are rules that apply called international humanitarian law and the law of occupation. To knowingly violate these international laws created criminal culpability. While the Regency has no effective control as a result of the American occupation, it does have effective control of factual and legal information that it will use to compel compliance where the prolonged occupation will eventually come to an end by a treaty of peace.

Determined to hold to account individuals who have committed war crimes and human rights violations throughout the Hawaiian Islands, being the territory of the Hawaiian Kingdom, the Council of Regency, by proclamation on April 17, 2019, established a Royal Commission of Inquiry (“RCI”) in similar fashion to the United States proposal of establishing a Commission of Inquiry after the First World War “to consider generally the relative culpability of the authors of the war and also the question of their culpability as to the violations of the laws and customs of war committed during its course.” Dr. David Keanu Sai serves as Head of the RCI and Professor Federico Lenzerini from the University of Siena, Italy, as its Deputy Head.

On February 7, 2024, the RCI sent a letter of communication to all members of the State of Hawai‘i legislature and the County Councils regarding the war crime of usurpation of sovereignty during military occupation. In the letter, Dr. Sai apprised them of his communication he’s had since April 17, 2023, with Major General Kenneth Hara, State of Hawai‘i Adjutant General, regarding his duty to transform the State of Hawai‘i into a Military Government and to begin to administer the laws of the Hawaiian Kingdom as the occupied State. Dr. Sai directed Major General Hara that, in accordance with international laws and Army regulations, he will issue a proclamation transforming the State of Hawai‘i into a Military Government. Should he fail to do so would be a dereliction in the performance of his duty and the war crime of omission.

Major General Hara would also be made the subject of an RCI war criminal report for the purpose of prosecution. There are no statutes of limitation for war crimes, which means a person can be prosecuted regardless of his age. In 2022, a German court convicted a 97-year-old women for war crimes she committed during the Second World War.

Major General Hara also has the duty to protect officials and employees of the State of Hawai‘i and the Counties who, like the Legislature and County Councils, are committing the war crime of usurpation of sovereignty during military occupation. The RCI has given more than enough time for Major General Hara to have completed his due diligence done by his Staff Judge Advocate Lieutenant Colonel Lloyd Phelps as to the continued existence of the Hawaiian Kingdom as an occupied State. On July 27, 2023, he acknowledged that the Hawaiian Kingdom continues to exist, which consequently triggered his duty.

A Brief History of International Law and its Application to the Hawaiian Kingdom Today

There are two laws that distinguish themselves from each other. There are “national” laws that are established within countries called States, and there are “international” laws that are established by the States themselves. Sources of national laws include the constitution, whether written or unwritten, statutes enacted by the legislature, and decisions by the highest court if the country is a common law system, e.g. United States and the Hawaiian Kingdom. Civil law countries like Italy and Germany do not have judge made laws. An indicator of whether the country is common law is if they have jury trials.

Every State is geo-political, which means that each State has their own geographical location and unique political experience that contribute to the function of their government, whether autocratic or democratic. And foreign influences and interests is what drives government reform and survival. In this regard, no two countries are alike.

Current international law has its roots in the Middle Ages of Europe. At the time, the Holy Roman Empire had great influence over the kings and dukes called Cannon Law. However, commercial, and maritime law was developing as well. In England the Law Merchant was established that covered rules governing foreign trade, which England, because of its naval power, declared was universal. This resulted in mercantile courts being established in trading ports throughout Europe to resolve disputes between traders of goods. According to Professor Malcolm Shaw,

Such rules, growing out of the Middle Ages, constituted the seeds of international law, but before they could flourish, European thought had first to be developed by that intellectual explosion known as the Renaissance. This complex of ideas changed the face of European society and ushered in the modern era of scientific, humanistic and individualistic thought.

The eventual fall of the supremacy of the Holy Roman Empire in 1648 gave rise to the States headed by kings and dukes. With a history of interaction between themselves that grew into custom prior to the fall, the interactions escalated with the introduction of the concept of sovereignty and centralized control of government of the State by another concept called the Leviathan, especially in the States of England, France and Spain. The concept of Leviathan was espoused by Thomas Hobbs in 1651 that advocated for a centralized monarchical form of government. With the printing press invented in the fifteenth century, this Hobbsian theory reached the ruling classes across Europe, who at the time were the only ones that could read.

With the rise of States and their interaction with each other, custom became the foundation of international law, which was supplemented with treaties. Eventually, principles of law that prevailed in the different States became norms or rules of international law that was universally accepted. When the Kingdom of Hawai‘i became a British Protectorate in 1794, the Hawaiian Kingdom in the nineteenth century was very much influenced by British forms of governance and the development of international law.

As a result of the positivist movement within States, which was a movement based on a scientific approach in thought rather than on faith, the movement eventually moved into the political and legal realms of governance called legal positivism. This movement eventually created the basis for a departure from the natural law of kings and dukes that relied on cannon law and moral thought, to a legal system that is based on existing and verifiable laws established by the legislature or the judges in a common law system. It establishes logic, consistency, and measurability like the methods of science and mathematics. Most importantly, legal positivism promotes predictability. In the courts of a common law country, this is called stare decisis, which is decision making by precedent set in previous court decisions.

Legal positivism eventually advocated the rule of law and not the politics of power, which drove many countries in Europe in the mid-nineteenth century into constitutional forms of governance and the recognition of civil and political rights. The French Revolution was an extension of this movement against absolute rule by a King. The Hawaiian Kingdom was riding this wave of government reform as it spread throughout Europe, and it successfully evolved from absolute rule to a constitutional form of governance with democratic principles without suffering the pains of revolution by the people like the case of France.

Positivism eventually would reach the international realm and be the driving force in reforming international law. Since constitutionalism separated government from the person of the king, which means the king was no longer the supreme absolute ruler but now a constitutional head of government, there would now be a separation of the government from the State.

In the sixteenth century, French jurist and political philosopher Jean Bodin stressed the importance that “a clear distinction be made between the form of the state, and the form of the government, which is merely the machinery of policing the state.” Nineteenth century political philosopher Frank Hoffman also emphasizes that a government “is not a State any more than a man’s words are the man himself,” but “is simply an expression of the State, an agent for putting into execution the will of the State.” Professor Quincy Wright, a twentieth century American political scientist, also concludes that, “international law distinguishes between a government and the state it governs.” Therefore, a State would continue to exist despite its government being overthrown by military force by another State’s armed forces.

As a result, customary international law would begin to be codified into treaty law. One particular aspect of customary international law was to bring order into the chaos of war, which was recognized as a means of enforcement of international law. Codification of the international laws of war began at the Brussels Conference in 1874 where the representatives of powerful and weak States advocated the formulation of the laws of war through multilateral treaties. While the first multilateral treaties that codified the laws of war were not done until 1899 called the Hague Conventions, rules of war eventually became accepted by States as customary international law, and they were recognized by States when they were at war since the mid-nineteenth century.

When a State’s territory is “effectively” occupied, customary international law obligates the occupying State to ad­minister the laws of the occupied State. This is reflected in Articles 2 and 3 of the 1874 Brussels Declaration where, “[the occupying State] shall take all the measures in his power to restore and ensure, as far as possible, public order and safety [and] shall maintain the laws which were in force in the country in peacetime, and shall not modify, suspend or replace them unless necessary.” Although the Declaration failed to be signed off by the European States and become codified, it did have scholarly approval. The Institut de droit international (IDI) in 1875 declared:

[A]lthough there was room for improvement, the new rules on occupation as suggested by the 1874 Brussels Declaration were essentially more favorable to peaceful citizens and public and private ownership in occupied territories than what had been provided by practice thus far and by the teaching of most scholars. The IDI subsequently adopted the same rules in its Oxford Manual on Land Warfare (1880).

Eventually codification occurred in 1899. Article 43 of the 1899 Hague Regulations states, “The authority of the legitimate power having actually passed into the hands of the occupant, the latter shall take all steps in his power to re-establish and insure, as far as possible, public order and safety, while respecting, unless absolutely prevented, the laws in force in the country.” According to Professor Eyal Benvenisti:

The law of occupation as ultimately expressed in the 1899 Hague Regulations imposes two types of obligations on an army that seizes control of enemy land during war: the obligation to protect the life and property of the inhabitants and the obligation to respect the sovereign rights of the ousted government.

The “text of Article 43, according to Professor Benvenisti, “was accepted by scholars as mere reiteration of the older law.” Professor Doris Graber states that “nothing distinguishes the writing of the period following the 1899 Hague code from the writing prior to that code. And according to Professor Georg Schwarzenberger, “the Hague Regulations…was declaratory of international customary law.” The United States government also recognizes that Article 43 is customary international law that predates the Hague Regulations. In a 1943 legal opinion, the United States stated:

The Hague Convention clearly enunciated the principle that the laws applicable in an occupied territory remain in effect during the occupation, subject to change by the military authorities within the limits of the Convention. Article 43: … This declaration of the Hague Convention amounts only to a reaffirmation of the recognized international law prior to that time.

The administration of occupied territory is set forth in the Hague Regulations, being Section III of the Hague Regulations. The 1899 Hague Regulations was superseded by the 1907 Hague Regulations. Also, consistent with what was generally consid­ered the international law of occupation, in force at the time of the Spanish-American War that predates the codification, the “military governments established in the territories occupied by the armies of the United States were instructed to apply, as far as possible, the local laws and to utilize, as far as seemed wise, the services of the local Spanish officials.”

Commenting on the occupation of the Hawaiian Kingdom, Professor Patrick Dumberry states:

[T]he 1907 Hague Convention protects the international personality of the oc­cupied State, even in the absence of effectiveness. Furthermore, the legal order of the occupied State remains intact, although its effectiveness is greatly diminished by the fact of occupation. As such, Article 43 of the 1907 Hague Convention IV provides for the co-existence of two distinct legal orders, that of the occupier and the occupied.

Stark parallels can be drawn between what the United States did to the Hawaiian Kingdom and what Iraq did to Kuwait in 1990, commonly referred to as the First Gulf War. Just as Iraq, without justification, invaded Kuwait and overthrew the Kuwaiti government August 2, 1990, the United States did the same to the Hawaiian Kingdom and its territory. Where Kuwait was under a belligerent occupation by Iraq for 7.5 months, the Hawaiian Kingdom has been under a belligerent occupation by the United States for 131 years.

Hiding the occupation does not legalize it under international law. The international law of occupation has and continues to apply in the prolonged American occupation of the Hawaiian Kingdom. Hawaiian national consciousness is regained through education and knowing its legal and political history.

National Holiday (November 28) – 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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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.”

Repealing Hawaiian Citizenship Acquired by Birthright—Jus Soli

Today, October 2, 2023, the Council of Regency announced by proclamation that the acquisition of Hawaiian citizenship by being native or natural born within the territory of the Hawaiian Kingdom—jus soli, also called citizenship by birthright, has been repealed. From the date of the proclamation, the only way to acquire Hawaiian citizenship is being born in the Hawaiian Islands or abroad—jus sanguinis where at least one of the parents is a Hawaiian subject, or through naturalization by application to the Minister of the Interior. Citizenship by naturalization will not be considered until the United States occupation has come to an end. International law prohibits the acquisition of citizenship of the occupied State by birthright during the occupation because the law of occupation protects the status quo ante of the occupied State.

The proclamation’s intent is to protect the status quo ante of the population as it existed prior to the United States invasion on January 16, 1893, and its subsequent occupation that occurred the following day that is now at 130 years. According to the 1890 Government census, American citizens residing in the Hawaiian Kingdom numbered a mere 1,928, which was less than 2% of the entire population at the time, but exploded to 918,639 in 2009. Other populations of foreigners were also allowed by the United States to unlawfully migrate to the Hawaiian Islands that contributed to the radical disruption of the status quo ante of the population in 1893. The law of occupation is supposed to maintain and protect the status quo ante of the Hawaiian Kingdom, its institutions, population, and its economy but the United States did not adhere to the law of occupation for 130 years, which led to the commission of war crimes.

There are currently over thirty countries that have restricted citizenship by birthright—jus soli. In the case of India, it was in response to unlawful migration from Bangladesh.

Hawaiian Nationality: Who Comprises the Hawaiian citizenry

The European Convention on Nationality defines nationality as the legal bond between a person and a State and does not indicate the person’s ethnic origin. It is a person owing loyalty to and entitled by birth or naturalization to the protection of a given State. The terms nationality and citizenship are synonymous, and affords a person the political right to participate in government. Without it, a person is prevented from electing governmental officials or serving as a government official themselves. A political right is distinctly different from a civil right, which are basic human rights protected by the constitution and laws of the State, irregardless of a person’s citizenship. Non-citizens residing in the State are categorized as Aliens or Foreigners.

There are three ways a person could acquire citizenship within an established State depending on its national laws: (1) jus sanguinis, where a person being born outside the territory of the State acquires the citizenship of his or her parents; (2) jus soli, where the nationality is conferred upon a person by birth within the territory of the State; and (3) naturalization, where the government grants citizenship upon the application of a foreigner.

On January 21, 1868, the Minister of the Interior for the Hawaiian Kingdom, Ferdinand Hutchison, stated the criteria for Hawaiian nationality: “In the judgment of His Majesty’s Government, no one acquires citizenship in this Kingdom unless he is born here, or born abroad of Hawaiian parents, (either native or naturalized) during their temporary absence from the kingdom, or unless having been the subject of another power, he becomes a subject of this kingdom by taking the oath of allegiance.”

The position of the Hawaiian Government was founded upon Hawaiian statute. Section III, Art. I, Chap. V of an Act to Organize the Executive Departments, 1845 and 1846, provided: “All persons born within the jurisdiction of this kingdom, whether of alien foreigners, of naturalized or of native parents, and all persons born abroad of a parent native of this kingdom, and afterwards coming to reside in this, shall be deemed to owe native allegiance to His Majesty. All such persons shall be amenable to the laws of this kingdom as native subjects. All persons born abroad of foreign parents, shall unless duly naturalized, as in this article prescribed, be deemed aliens, and treated as such, pursuant to the laws.”

There are two exceptions where birth within the territory does not result in citizenship. First, where a child is born within the territory, but the child’s parents are foreign ambassadors or diplomats, that child is not a citizen of the territory of birth; and second, where a child is born of Alien enemies in an area of the territory under hostile occupation, that child will not be a citizen.

Regarding children of foreign diplomats, Frederick Turrill was an American citizen born in the Hawaiian Islands, but later got naturalized on May 21, 1888; and E.H. Wodehouse was a British subject born in the islands and later naturalized on May 7, 1892. The second exception applies to belligerent occupations.

There are numerous references to “children born of alien enemies in hostile occupation,” and one such reference is a U.S. Supreme Court decision. In 1898 during the Spanish-American War, the U.S. Supreme Court rendered a decision concerning the United States citizenship of Wong Kim Ark, a person of Chinese descent. In that decision it also expounded upon the two exceptions to the acquisition of citizenship by birth as determined by the common law of England and made reference to an English case, Calvin’s case, which was decided by the English Court in the year 1608. Although the Hawaiian Kingdom courts have stated that the common law is not in force in this Kingdom, it did state that “…in construing our law the Court must be guided by those enactments and the decisions of American and English Courts.” In re Apuna, 6 Haw. 732 (1869).

In United States vs. Wong Kim Ark (1898), the U.S. Supreme Court ruled:

“The fundamental principle of the common law with regard to English nationality was birth within the allegiance, also called ‘ligealty,’ ‘obedience,’ ‘faith’ or ‘power,’ of the King. The principle embraced all persons born within the King’s allegiance and subject to his protection. Such allegiance and protection were mutual—as expressed in the maxim, protectio trahit subjectionem, et subjectio protectionem—and were not restricted to natural-born subjects and naturalized subjects, or to those who had taken an oath of allegiance; but were predicable of aliens in amity, so long as they were within the kingdom. Children, born in England, of such aliens, were therefore naturalborn subjects. but the children, born within the realm, of foreign ambassadors, or the children of alien enemies, born during and within their hostile occupation of part of the King’s dominions, were not natural born subjects, because not born within the allegiance, the obedience, or the power, or, as would be said at this day, within the jurisdiction of the King.”

In the Calvin’s case (1608), the English Court stated: “…for if enemies should come into the realm, and possess town or fort, and have issue there, that issue is no subject of the King of England though he be born upon his soil;” and “if any of the King’s ambassadors in foreign nations have children…they are natural born subjects [of England], yet they are born out of the King’s dominion.”

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—jus sanguinis. To preserve the status quo, Article 49 of the Fourth Geneva Convention mandates that the “Occupying Power shall not…transfer parts of its own civilian population into the territory it occupies.” For individuals, who were born within Hawaiian territory, to be a Hawaiian subjects they must be a direct descendant of a person or persons who were Hawaiian subjects prior to the American occupation that began on January 17, 1893, which is when Queen Lili‘uokalani conditionally surrendered to the United States. All individuals born after the surrender to the present are Aliens who can only acquire the nationality of their parents. According to Professor von Glahn, “children born in territory under enemy occupation possess the nationality of their parents.”

According to the 1890 government census, Hawaiian subjects numbered 48,107, with the aboriginal Hawaiian, 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 and illegal migrations of foreigners to the Hawaiian Islands since 1898, which, according to the State of Hawai‘i numbered 1,302,939 in 2009, the status quo of the national population of the Hawaiian Kingdom is maintained.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. The 16% of non-aboriginal Hawaiian subjects will need to be determined by a census report.

Similar to the Hawaiian Kingdom, the Baltic States of Estonia, Latvia and Lithuania were occupied by the Russians for over half a century. In 1940, Russian intervention provided for the forced incorporation of these Baltic States into the U.S.S.R. In 1991, with the breakup of the Soviet Union, these Baltic States once again regained their independence and immediately had to deal with the pressing issue of citizenship in the aftermath of prolonged Russian occupation.

Roger Brubaker, author of the article Citizenship struggles in Soviet Successor States (1992), stated that Estonia adopted a model for defining the initial body of citizens as the restored State model. States who regained their former independence are called restored States, and as these States are not new there would be no need to redefine a new body of citizens, but rather utilize the laws that existed before the occupation to determine the citizenry.

Under this model, persons born in Estonia before the 1940 annexation and their descendants were recognized as having Estonian citizenship. This also included United States citizens who were the offspring of Estonians. Regarding the citizenry of the occupier, the Estonian government also applied the same view the 1898 U.S. Supreme Court had made in U.S. vs. Wong Kim Ark. It viewed all Russians who entered the country after the occupation in 1940, and their descendants, as illegal and could not claim Estonian citizenship. But if a Russian was born in Estonia before the occupation that person acquired citizenship. Latvia also adopted the restored State model. Therefore, it can be stated as a matter of law and based on contemporary examples, that the Hawaiian citizenry of today is comprised of descendants of Hawaiian subjects and those foreigners who were born in the Hawaiian Islands prior to January 17, 1893.

This exclusion of the Hawaiian citizenry is based upon precedence and law, but a restored Hawaiian government does have the authority to widen the scope of its citizenry and adopt a more inclusive model in the aftermath of prolonged American occupation. Brubaker stated that Lithuania adopted such a model. Under the inclusive model, the original citizenry of Lithuania was confirmed under the restored State model, but the foreigners, which included the Russians, were divided into two groups. The first group comprised of permanent residents who would be granted optional inclusion in the Lithuanian citizenry, while the second would be classified as aliens. The optional inclusion of the first group depended upon these residents meeting certain minimum requirements established by the Lithuanian government. (i.e. years of residency and/or language).

Despite over a century of illegal migration that exploded the Alien population from 41,873 in 1890, of which U.S. citizens merely number 1,928, to 918,639 in 2009, the population of Hawaiian subjects has remained intact with its ratio of 84% aboriginal Hawaiians, who can readily be determined, and 16% non-aboriginal Hawaiians yet to be determined. This should alleviate the concern of aboriginal Hawaiian subjects who previously thought they were the minority, when in fact and law they remain the majority of the Hawaiian citizenry. Only Hawaiian subjects, whether aboriginal or non-aboriginal, have political rights, which means they alone can participate in government. §784 of the Hawaiian Civil Code states, “No alien shall be allowed to vote for representatives of the people.”

Hawaiian Journal of Law and Politics publishes Volume no. 5

From the Editor of the Hawaiian Journal of Law and Politics, Professor Kalawai‘a Moore:

Since the attempted coup of 1887, history written on Hawaiʻi has been a highly political endeavor of a specific nature. The insurgents from the time of 1887 through the time of the United States coup de main of 1893 and beyond began writing a defensive justification narrative for their illegal actions as historical narratives. One among many of the distortions of historical truth has included a re-describing of the role of American missionary advisors in the earlier part of the 19th century as the driving force and main actors behind the development and running of a constitutional government of a nation-state. The motivations for the crafting of a history against which  enormous primary evidence exists to the contrary was the aim at winning public and material support from the United States, and elsewhere to secure and maintain control over Hawaiʻi. Losing control over Hawaiʻi for the insurgents could have led to prosecution for treason under the law an offense that was punishable by death. Exemplifying this false narrative, Lorrin Thurston, one of these insurgents, wrote:

Hawaiian Christianization, civilization, commerce, education, and development are the direct product of American effort. Hawaii is in every element and quality which enters into the composition of a modern civilized community, a child of America.

As Hawaiians began to enter the battle of historical narratives in the 1970s, 80s, and 90s, certain facts of history put forward in American hegemonic writings were latently taken up as foundational truths in the writings and teachings by Hawaiians themselves. One example of a false truth from the insurgents that was carried forward in Hawaiian written work was the false fact of the annexation of Hawaiʻi as a fait acompli. As a fact, the “annexation” of Hawaiʻi has been proven wrong in newer scholarship of the past 25 years. The so called annexation of Hawaiʻi is no longer an accepted fact by most Hawaiian scholars. Another example of a historical fallacy that still circulates today and still has several Hawaiian proponents, is the idea above that the early missionaries were the driving force behind the development and running of the Hawaiian Kingdom’s constitutional government. Professor Jon Osorio provides an example of a Hawaiian indigenist thesis based on this idea. He wrote:

Accordingly, the very formation of a national entity in 1840 under the rudiments of Euro-American constitutions victimized the Native Hawaiians, consigning them to unfamiliar and inferior roles as wage laborers. Caucasian newcomers proceeded to transform the economic and social systems, marginalizing the Native both demographically and symbolically.

Hawaiian indigenist writings about missionary primacy were a part of many theses that argued that the nation-state, law, and governance were western impositions and detrimental to ethnic Hawaiians in line with a thinking that these Hawaiians acquired through theoretical learning with other indigenous peoples. More recent Hawaiian written histories have unearthed primary source materials that show another vantage point that posits missionary involvement came in the middle of an already ongoing process of Hawaiian governmental and nation-state development.

The newer findings show that Hawaiʻi became a unified, centralized state under Kamehameha I with its own organized state structure, adopting features of British styled government long before missionary arrival. Under Kaʻahumanu’s rule, a set of Christian modelled laws were adopted through a dialectical process with missionary advisors, but the Prime Minister was clearly in charge. At the request of King Kamehameha III, Kauikeaouli, the government adopted a secular character. Former missionaries were taken in as advisors and played different roles in the development of Hawaiian governance and were eventually replaced during the reigns of King Kamehameha IV, Alexander Liholiho, and King Kamehameha V, Lota Kapuaiwa, by “Hawaiian chiefs and nonmissionary westerners.” The missionaries were taken on as advisors under Kaʻahumanu and Kauikeaouli, but were not the decision makers, and Hawaiian government was fashioned in a hybrid manner. The Hawaiian Kingdom government was aboriginal Hawaiian controlled and fashioned in a dialectical process based on traditional Hawaiian customs and relationships.

The first set of missionaries while trying to carry out their mission, served at the will of the chiefs. Their ability to stay on the islands was dependent on chiefly permission. The chiefs found the missionaries useful as teachers of new technologies and information. Some of these missionaries like William Richards, and Gerrit Judd left the mission and served the high chiefs full time as advisors on foreign relations and government. This first generation of missionaries spoke of themselves and were spoken of by others as  loyal servants to the chiefs and the Hawaiian Kingdom. Sai notes this distinction between this first generation of missionaries and their descendants in his article “Synergy Through Convergence: The Hawaiian State and Congregationalism,” quoting the famous author Nordhoff, who was working as a correspondent for the newspaper Hawaii Holomua,

They, the fathers, stood by the natives against all foreign aggression. The elder Judd, a very able man, gave time, ability and his own means to the restoration of Hawaiian independence when it was attacked by an English admiral; his degenerate son, the present chief justice [Albert F. Judd] was part of the conspiracy which upset the government he had sworn to support and, himself a native of Hawaii, is active in the movement to destroy the State which his father gave a long life to establish defend and maintained.

This fifth volume of the Hawaiian Journal of Law and Politics contains a number of articles that engage further the agency and independence of aboriginal Hawaiian chiefly rulers, and their abilities to both stay ahead of any political intrigue, and to employ missionary knowledge of literacy and teaching to their advantage. We also see further the distinction that can be made between the first generation of missionaries and their loyalty to the Crown and government, versus some of their descendants, who formed an ideological position of white cultural supremacy, undertaking a treasonous course of action. This later generation showed a completely different attitude and approach to the Hawaiian Crown. Sai’s work further shows how aboriginal Hawaiian leadership from the Hawaiian Patriotic League clearly saw this distinction between the generations referring in testimony to many of the insurgent second and third generationers as the “faithless sons of missionaries and local politicians angered by continous political defeat.”

In the first article by Dr. Susan Corley “Liholiho’s Kauaʻi Coup,” we get an opportunity to understand better the character of King Kamehameha II, Liholiho, as ruler. Corley details an attempt by Hiram Bingham, a missionary of the first mission, to strengthen his position in the islands by enlisting the aid of Kaumualiʻi, King of the Island of Kaua‘i, suggesting the chief fund a mission to Tahiti. Liholiho intercedes using the occassion to outmaneuver both Bingham and Kaumualiʻi, taking full personal control of the island of Kauaʻi, and making it clear to the missionaries that he “held power and control over their ability to continue” their mission. Corley describes Liholihoʻs maneuvering and leadership as a matter of “guile where his father would have used force.”

In “‘He Kaula Uila’: Hawaiian Educational Policy in the 19th Century ‘Ke Aʻo Palapala ma Nā Aloaliʻi a me Nā Kuaʻāina,’” Brandi Jean Nalani Balutski starts with a more well-known excerpt from a speech made by Kauikeaouli upon ascension to the throne “he aupuni palapala koʻu” (mine is a kingdom of learning). Balutski details the chiefly adoption of the technology of literacy and education as formal policy of the early Hawaiian Kingdom and an ethos that education be taken up by all class levels. Balutski details the life journeys and roles of five aboriginal Hawaiian men who returned to Hawai‘i with these first missionaries acting as intermediaries between them and the ruling chiefs. Balutski shows how Thomas Hopu  became the personal teachers for the high chiefs and their children. Others like George Humehume, son of Kaumuali‘i, became advisors for his father and their inner circle of chiefs who saw possible advantages in adopting literacy as a political tool. Despite initial concerns about the missionaries from the United States, their value in teaching literacy and the chiefs understanding of the value of literacy as a technology in dealing with various outsiders, paved the way for the acceptance of the American missionaries because of the benefit that literacy could hold “to control the encounter with foreigners, to favor their interests and those of their lineages, to express their understanding of the world, and to shape that world to their ends.”

In “Synergy Through Convergence: The Hawaiian State and Congregationalism,” Dr. Keanu Sai details further the distinction between the role of early American missionaries in support of the Hawaiian Kingdom government, and the later generations of “faithless sons of missionaries.” He starts by examining the rhetoric in history and political writings that has built a “myth of missionary control,” and contrasts these fabrications through use of the writings by aboriginal Hawaiians and supporters from the late 19th century, including a direct response by Kauikeaouli himself refuting a question of missionary control, and affirming his use of missionaries as teachers of literacy and translators between the government and foreign representatives. Sai shows a link between the congregationalism of the American missionaries and the influence of governmental reform in the Hawaiian Kingdom calling it a synergy whereby the “forces of both coalesced and each saw the other as beneficial to their own goals.” Sai illustrates the benefits to both sides during this time period to show further the false narratives that have been put forth stating that the “continuation of Americanism [was] initiated by the missionaries since 1820.”

In “Apartheid Hawai’i: California Colony at Wahiawā,” Dr. Ronald Williams Jr. continues his work showing the rise of white supremacist thought and action in Hawaiʻi starting with the break in local protestantism from congregationalism to a philosophy of “minority, White rule over both church and state” in the 1860s and 70s. Proponents of this change fomented an outright opposition to King Kalākaua during his reign, and supported the complete seizure of the government through U.S. facilitation in 1893, and then the full establishment of white oligarchic rule into the Territorial era in the 1900’s. Williams documents the efforts to establish a California Colony of white families in Wahiawā starting in 1899. This effort was made possible through earlier legislation called the 1895 Land Act introduced by Sanford Dole utilizing the newly confiscated Crown Lands for the express purpose of promoting “the immigration of permanent settlers of a character suitable for the building up of our population.” Williams documents the push by the government of the illegal Republic to settle white families on 1,350 acres of land before the “annexation” of the islands was completed. He further details the ideological drive behind the Dole government’s push to establish and support this community, which unashamedly sought to build a community of social and educational institutions based on the idea of racial segregation expressed as an “American way” as exemplified by the American South. The Wahiawā colony ultimately fails because of the greed of some of its backers and the success of pineapple farms like the one run by James Dole, which priced other small farmers out of the market.

In “The Decline of Hawaiian Language Common Schools During the Hawaiian Kingdom From 1864 to 1893: A Statistical Analysis,” Dr. Larson Ng walks through a quantitative data study of Hawaiian Kingdom government records on Hawaiian language common schools, English language schools, and independent schools looking at funding, attendance, and population statistics. Ng walks us through a brief history of the school system in the Hawaiian Kingdom and some of the theories in circulation that have tried to link causation of the decrease in aborginal attendence at Hawaiian language common schools to ideologies of “settler colonialism.” Ng’s regression analysis shows that the most important statistical factor in the decline of Hawaiian language common school attendance was the decline in the aboriginal Hawaiian population. He noted that funding disparities were a matter of aboriginal Hawaiian governmental prioritization, rather than an ideological imposition by outsiders.

In my article I provide an analysis of Dr. Kehaulani Kauanui’s book Paradoxes of Hawaiian Sovereignty: Land, Sex, and the Colonial Politics of State Nationalism, in which I call Kauanui’s work a remonstrance against Hawaiians turning toward the Hawaiian Kingdom, and a lament over the waning of Hawaiian indigeneity. I provide a critical analysis that Kauanui lacks any “deep evidentiary work on the matters” she covers, “leaving key source perspectives and facts out in some arguments.” I provide critical comment on her continued misuse and mentoring of the term “colonization” and her focus on the “state” instead of “government” as showing a lack of political and legal disciplinary awareness, and when taken with her attempt to reinvent the term “indigenous” for use in the Hawaiian context shows a kind of paradigm paralysis. I provide additional comment that Kauanui adds no insight of value in her examination of the Mahele in her book. She simply represents old, debunked theories and facts, adding only a new form of rhetorical approach which in my words, states that, “Almost every page in this chapter by Kauanui is inaccurate, and all of her imported theories irrelevant.” On matters of gender and sexuality, Kauanui starts from that earlier mentioned perspective that the missionaries controlled and were in charge of the lives, government, and state creation of the chiefs in Hawai’i, which I disprove. I agree that there were changes that were made in laws on marriage, coverture, and sex that need to be examined and cautioned against. I add that Kauanui is really engaged in a fight over the gender and sexual politics of today seeking to head off losses or maintain rights through closing off the Hawaiian Kingdom as political possibility. Toward building her case, I show that Kauanui left out key information and misarranged key source quotes that would otherwise show subversion, and ambivalence toward conservative laws on gender and coverture. Kauanui does not reveal that coverture was fought, slowly dismantled, and then repealed. And does not reveal that her own sources show women as “jural subjects” and in one case did not show how her source stated that they could not agree that women’s status diminished with government reform. I also caution against obscuring source material to argue politics, and I point out that, “It can be said that there were heteropatriarchal forces at work in the Hawaiian Kingdom, but one cannot say that the Hawaiian Kingdom is a heteropatriarchal government, [society], nor state.”

The last two sections of this volume of the Hawaiian Journal of Law and Politics include two documents recently published by the Council of Regency as the Occupied Government of the Hawaiian Kingdom. One entitled “Operational Plan for Transitioning the State of Hawai’i into a Military Government,” and the second, “Operational Plan for Transitioning the Military Government into the Hawaiian Kingdom Government.” Both documents were written by the acting Government, whose officers consist of Dr. David Keanu Sai, Kauʻi P. Sai-Dudoit, and Dexter Keʻeaumoku Kaʻiama, Esq.

In the “Operational Plan for Transitioning the State of Hawai’i into a Military Government,” the acting Government lays out in detail the historical and legal justifications for the actions needed to move from an illegal State of Hawaiʻi government to military government under international humanitarian law and the law of occupation.

A detailed history is provided from state recognition of the Hawaiian Kingdom in 1843 through the U.S. invasion and overthrow of the Hawaiian Kingdom government, to the U.S. military occupation of the Hawaiian Kingdom. The Plan lays out “essential” and “implied” tasks including the setting up of a temporary administrator of the laws of the occupied state, the establishment of a military government, the proclamation of provisional laws, the disbanding of the State of Hawaiʻi Legislature and County Councils, setting up a temporary administrator of public buildings, real estate, forests, and agricultural estates that belong to the occupied state, and tasks that protect the institutions of the occupied state.

In the “Operational Plan for Transitioning the Military Government into the Hawaiian Kingdom Government,” the acting Government lays out plans for the withdrawal of U.S. armed forces, dealing with the Hawaiian state territory, reparations, and the seizing of property. The plan lays out details on the transition from a military government to the government of the Hawaiian Kingdom; the creation and ratification of a Treaty of Peace, the conducting of a national census, the convening of a Legisltive Assembly, who will then, based on the Hawaiian Kingdom constitution, begin to put together the rest of the Hawaiian Kingdom government. These two plans are the only plans of action for the restoration of the Hawaiian Kingdom government. The historical importance of including these documents as part of the Hawaiian Journal of Law and Politics can not be understated and it was the work of the Council of Regency that was able to get the Permanent Court of Arbitration to acknowledge the continued existence of the Hawaiian Kingdom as an independent State that generated the impetus in the formation of the Hawaiian Society of Law and Politics at the University of Hawai‘i at Mānoa and the establishment of the Hawaiian Journal of Law and Politics.

We close these Editor’s notes with a mahalo (gratitude) to the authors for their work examining topics of interest and importance, and we look forward to more academic work and discussion that persists toward that Kuleana of Scholarship we endeavor to uphold.

The Significance and the Importance of the Two Operational Plans of the Council of Regency

When dealing with a 130-year crisis of a prolonged and illegal American occupation of the Hawaiian Kingdom, planning is a crucial component that informs where we are today and where we want to be tomorrow. An operational plan is informed by due diligence of the situation, which is a gathering of information relevant to the situation at hand and how it got to the current situation. In the military, this is colloquially known as gathering intel before you come up with a battle plan.

Due diligence is “depending on the relative facts of the special case.” It is the assessment of a situation before a decision should be made. When due diligence is done, the person doing it must be mindful of their own biases and assumptions. To gather information through one’s own bias is what is called “confirmation bias” where the gatherer of information only selects information that would confirm his/her own biases. This is also called cherry picking.

In the Hawaiian situation, there is an abundance of assumptions that are false such as the Hawaiian Islands were colonized by the United States in the nineteenth century, and, as a colonized people, Native Hawaiians are an Indigenous People by definition of the United Nations. United Nations defines Indigenous Peoples as tribal nations that exist with an independent State not of their own making. Arriving at this conclusion was done through confirmation bias.

The Council of Regency sought to gather information through the lens of both the laws of the Hawaiian Kingdom and international law that includes international humanitarian law and the law of occupation. It was through this process that revealed that the Hawaiian Kingdom, which existed as an internationally recognized sovereign and independent State continued to exist since November 28, 1843, despite the illegal overthrow of its government by the United States on January 17, 1893. This continued existence stemmed from the international principle of inalienability of sovereignty of a State, and the only way a State can alienate its sovereignty is by its consent through a treaty of cession with the acquiring State. There exists no such treaty, therefore, the Hawaiian State continues to exist.

It was based on this premise that the government was restored as a Council of Regency in 1997 to provisionally represent the Hawaiian State both domestically and abroad. The actions to be taken by the Council of Regency would be in line with its strategic plan that entailed three phases. Phase I—verification of the Hawaiian Kingdom as an independent State and a subject of international law. Phase II—exposure of Hawaiian Statehood within the framework of international law and the laws of occupation as it affects the realm of politics and economics at both the international and domestic levels. Phase III—restoration of the Hawaiian Kingdom as an independent State and a subject of international law. Phase III is when the American occupation comes to an end.

Phase I was achieved when the Permanent Court of Arbitration (PCA), before establishing the arbitration tribunal in Larsen v. Hawaiian Kingdom on June 9, 2000, acknowledged the continued existence of the Hawaiian State, and the Council of Regency as its government. Phase II, exposure of the Hawaiian State, was initiated during oral hearings on December 7, 8 and 11, 2000, at the PCA in The Hague. Phase II continued at the University of Hawai‘i at Mānoa when the Chairman of the Council of Regency, David Keanu Sai, entered the political science graduate program, where he received a master’s degree specializing in international relations and public law in 2004 and a Ph.D. degree in 2008 on the subject of the continuity of Hawaiian Statehood while under an American prolonged belligerent occupation since 1893.

The exposure through academic research also motivated historian Tom Coffman to change the title of his 1998 book from Nation Within: The Story of America’s Annexation of the Nation of Hawai‘i, to Nation Within—The History of the American Occupation of Hawai‘i. Coffman explained the change in his note on the second edition and took a quote from Dr. Sai’s law article A Slippery Path Towards Hawaiian Indigeneity. Coffman wrote:

I am compelled to add that the continued relevance of this book reflects a far-reaching political, moral and intellectual failure of the United States to recognize and deal with the takeover of Hawai‘i. In the book’s subtitle, the word Annexation has been replaced by the word Occupation, referring to America’s occupation of Hawai‘i. Where annexation connotes legality by mutual agreement, the act was not mutual and therefore not legal. Since by definition of international law there was no annexation, we are left then with the word occupation.

In making this change, I have embraced the logical conclusion of my research into the events of 1893 to 1898 in Honolulu and Washington, D.C. I am prompted to take this step by a growing body of historical work by a new generation of Native Hawaiian scholars. Dr. Keanu Sai writes, “The challenge for … the fields of political science, history, and law is to distinguish between the rule of law and the politics of power.” In the history of the Hawai‘i, the might of the United States does not make it right.

It took the Council of Regency just over 20 years to change the conversation from colonization and indigenous peoples rights to military occupation and the rights of Hawaiian subjects under the law of occupation. With the shifting of the historical lens, legal consequences began to emerge especially with the involvement of Professor Matthew Craven from the University of London, SOAS, School of Law, who authored a legal opinion on the Continuity of the Hawaiian Kingdom as a State under international law; Professor William Schabas from Middlesex University London, School of Law, and a renowned expert in international criminal law, who authored a Legal Opinion on War Crimes related to the United States belligerent occupation of the Hawaiian Kingdom; and Professor Federico Lenzerini from the University of Siena, Italy, Department of Political and International Science, who authored Legal Opinion on the authority of the Council of Regency of the Hawaiian Kingdom.

Both the Operational Plans for Transitioning the State of Hawai‘i into a Military Government and Transitioning the Military Government to the Hawaiian Kingdom Government, which will bring the prolonged American occupation to an end, is a culmination of years of research and exposure and is a subset of plans under phase II of the strategic plan. As such we are moving toward the end of phase II and preparing for phase III that will bring the 130-year crisis to an end.

The two operational plans are clear as to where we are, where we need to get to, and the path to get there. The essential tasks and the implied tasks in each of the plans are measurable, and, most importantly, flexible when achieving the tasks. They allow flexibility to adjust to issues unforeseen such as time and allocation of resources. The Council of Regency established a 3-year window for the occupation to come to an end, but it doesn’t prevent unforeseen and extenuating circumstances to adjust the timeline. When the American occupation of Japan began in 1945, it was thought that it would last 3 years. But circumstances extended the occupation an additional 4 years. The same could happen in the Hawaiian situation, but the Council of Regency needed to set an initial timeline of 3 years.

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

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

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.

Why the State of Hawai‘i Adjutant General has the Authority and Duty to Establish a Military Government for Hawai‘i

After securing Phase I of the of the Council of Regency’s strategic plan where in 1999 the Permanent Court of Arbitration, in Larsen v. Hawaiian Kingdom, “verified the Hawaiian Kingdom as independent State and subject of international law,” Phase II was initiated in order to expose “Hawaiian Statehood within the framework of international law and the laws of occupation as it affects the realm of politics and economics at both the international and domestic levels.” This exposure has brought out many aspects of international law and the law of occupation that many have only heard for the first time.

There are terms such as international humanitarian law, which the military throughout the world refers to as the law of armed conflict. The rule that distinguishes between a State and its government. The difference between military occupation of a State and the colonization of territory that is not a State. Adding to this list of new terms and principles include Army doctrine and regulations that apply to military occupation of foreign territory.

In the case of Hawai‘i, we are dealing with role of the Adjutant General of the Army and Air National Guard. Under federal and State law, the National Guard can serve two commanders in chief but not at the same time. According to Article II, section 2 of the U.S. Constitution, the President becomes the commander in chief of the National Guard “when called into the actual Service of the United States.” Until that time, the commander in chief of the National Guard is the Governor of the State.

When the National Guard is called to State active duty, not federal active duty, the Governor is the commander and chief and has command and control. Under him is the Adjutant General that has command and control of the forces that have been activated. This is what occurred when certain units of the Army and Air National Guard were activated in 1992 when Hurricane Iniki devastated the island of Kaua‘i. Governor John Waihe‘e was the commander in chief and Brigadier General Edward Richardson was the Adjutant General.

When units of the Hawai‘i Army and Air National Guard were called to federal active duty for deployment to Iraq during Second Gulf War in 2003, the commander in chief changed from State of Hawai‘i Governor Linda Lingle to President George W. Bush.

As an occupied State, these American laws do not apply in the Hawai‘i situation. The unlawful imposition of these laws constitutes the war crime of usurpation of sovereignty during military occupation. Unlike the other 49 Governors of States in the federal Union, their authorities derive from these American laws that include both federal and State laws.

Because the State of Hawai‘i is outside of the borders of the United States, and as such is foreign territory, the authority of the State of Hawai‘i to include its Governor is stripped. What allows the State of Hawai‘i to exist, however, is international humanitarian law and the law of occupation. Under these laws, the State of Hawai‘i is a civilian armed force acting for the United States as an occupying State, which has effective control of 94% of the territory of the Hawaiian Kingdom. The federal government only has effective control of less that 6% of the territory.

The decision to establish a military government in foreign territory is not with the U.S. President as commander in chief but rather with the most senior commander of the armed forces in foreign territory that has come under effective control by the occupying force. According to section 3 of FM 27-5, Civil Affairs Military Government, the theater commander over the territory to come under military occupation bears full responsibility for establishing a military government.

That person is a general officer and designated as military governor and 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.” So under Army doctrine, it is never the President of the United States to establish a military government but rather the most senior military commander in the occupied territory.

Section 4 of FM 27-5 also states that the reasons for establishing a military government “are either military necessity as a right, or as an obligation under international law.” And since military occupation “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 the restoration of maintenance of public order.”

In this situation, it is the State of Hawai‘i Adjutant General that has the responsibility and duty to establish a military government for Hawai‘i under international law. This is a command decision to be made by the Adjutant General who is the most senior Army commander in the occupied territory of Hawai‘i.

United States’ Export of White Supremacy After Seizing Control of the Hawaiian Islands in 1898

To mention white supremacy in the Hawaiian Islands for some is a bit strange because it does not appear that white people are in control. Their control, however, was cemented after the United States illegally overthrew the government of the Hawaiian Kingdom on January 17, 1893. This control lasted until 1959, where former laborers in the sugar and pineapple plantations, after returning from the Second World War, seized political control and pushed for the Hawaiian Islands to be the 50th State of the American Union where the governor would now be an elected position.

The leadership of the insurgency, calling themselves the provisional government, were white, which included Sanford Dole, William O. Smith and Lorrin Thurston. These insurgents, while white by ethnicity, were Hawaiian subjects by nationality and not American citizens. From 1900 to 1959, the leadership of the so-called Territory of Hawai‘i was appointed by the President of the United States. There were only white governors during this period. As a State of Hawai‘i, the former plantation workers would control the voting bloc under American law.

As a minority of the population, the insurgents of 1893 aligned themselves with Americans to entice the United States to annex the Hawaiian Islands after the government was overthrown. By aligning themselves with American politics, they also aligned themselves with American culture—white supremacy. According to Tom Coffman in his book Nation Within—The History of the American Occupation of the Hawai‘i, the insurgents attended higher education in the United States and it is there that they learned what was not experienced in the Hawaiian Kingdom, which is the so-called supremacy of the white race.

Despite the insurgents’ propaganda of lies, their rhetoric, however, was fueled, at the time, by American politics of race relations and the superiority of the Aryan (Teutonic) race over all others. Coffman addresses this by asking what “had Lorrin Thurston learned at Columbia, and what had Sanford Dole learned from his journey up the Kennebec River?” He answered, “the missionary descendants—already so prepared to believe in the superiority of their knowledge and position—were being influenced by American culture and American public life to take over direct control of Hawai‘i.” Between 1840 and 1887, Coffman explains “a systemic theory of white supremacy had been developed that came to be described in the intellectual history of America as Social Darwinism. The keystone of Social Darwinism was the teaching of white supremacy.”

While their physical strength was miniscule in the Hawaiian Kingdom, their arrogance could not be underestimated. The officers of the Hawaiian Patriotic League, in a memorial to President Grover Cleveland dated December 27, 1893, succinctly explained:

Last January, a political crime was committed, not only against the legitimate Sovereign of the Hawaiian Kingdom, but also against the whole 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 a revenge for being a hopeless minority in the country, resolved to “rule or ruin” through foreign help.

After Cleveland failed to restore Queen Lili‘uokalani under an executive agreement of December 18, 1893, the insurgents became emboldened. Prior to changing the name of the insurgency from the provisional government to the Republic of Hawai‘i in 1894, this minority of people needed to stay in control until a new president entered office after President Cleveland. That President was William McKinley who was open to annexing the Hawaiian Islands.

Professor John Burgess, a political scientist at Columbia University in 1893, was an academic who openly subscribed to white superiority through “Teutonic supremacy in the art of government.” According to Burgess, Teutonic governance was exemplified by “northern Europe and the United States,” but the Hawaiian Kingdom government, led by aboriginal Hawaiians, was not included in this theory because the Polynesian race was not Teutonic. The insurgents, although being Hawaiian subjects and resident aliens, were representative of the so-called Teutonic race. According to Castle, Burgess firmly believed that the “exercise of political right was contingent upon innate political intelligence, and of this intelligence the Teutons were the only qualified judges.”

To the Hawaiian, Burgess’ belief of Teutonic political intelligence would be absurd because Hawai‘i’s constitutional monarchy predated that of Teutonic Prussia. As German political scientist Marquardt pointed out in 2009, “Hawai‘i as early as 1839, preceding even Prussia, transferred European constitutionalism, in the pattern of the constitutional monarchy, into the Austronesian-speaking world of Oceania.” Nevertheless, as facts were not the driving force, the situation was being driven by American racist rhetoric.

Knowing of Burgess’ agenda of promoting white, in particular, Teutonic—Aryan superiority in governance, Dole was in communication with Burgess a year after the overthrow of the Hawaiian government. He wanted to draft a constitution for the insurgency that would change its name from the provisional government to the so-called Republic of Hawai‘i on July 3, 1894. Concerned of the political power wielded by the aboriginal Hawaiian, which was the majority of the Hawaiian national population, the insurgents entertained Jim Crow laws from the American State of Mississippi. In a letter sent from Washington, D.C., on November 4, 1893, by W.D. Alexander, former Surveyor-General of the Hawaiian Kingdom, to Sanford Dole, he wrote, “I enclose extracts from the present Constitution of Mississippi, which is said to have the effect of disfranchising a majority of the negroes of that state.” The Republic of Hawai‘i was in name only. It was not, by definition, a true Republic where the affairs of government were open and transparent.

In his first letter, Dole was merely asking for clarity on a section of Burgess’ book Political Science and Comparative Constitutional Law. Before Burgess responded, Dole was able to send a follow up letter that reveals his intent. In his second letter, Dole requests information from Burgess on his constitutional plan whereby “government can be kept out of the control of the irresponsible element.” He stated that there “are many natives and Portuguese who had had the vote hitherto, who are comparatively ignorant of the principles of government, and whose vote from its numerical strength as well as from the ignorance referred to will be a menace to good government.” Burgess, in his response to Dole, was aware that the so-called Teutonic population in Hawai‘i was a very small minority at 5,000, which he said comprised of “Americans, English, Germans and Scandinavians” out of “a population of nearly 100,000.” After offering suggestions in the organizing of government, he ends his letter by recommending that “only Teutons [be appointed] to military office.”

When Coffman mentions the Dole-Burgess letters, he implies that the Hawaiian Kingdom did not have the same race relations as the United States. According to Dominguez, there was “very little overlap with Anglo-American” race relations. She found that there were no “institutional practices [that] promoted social, reproductive, or civic exclusivity on anything resembling racial terms before the American period.” In comparing the two countries she stated that unlike “the extensive differentiating and disempowering laws put in place throughout the nineteenth century in numerous parts of the U.S. mainland, no parallels—customary or legislated—seem to have existed in the [Hawaiian Kingdom].” Dominguez admits that with “all the recent, welcomed publishing flurry on the social construction of whiteness and blackness and the sociohistorical shaping of racial categories…, there are usually at best only hints of the possible—but very real—unthinkability of ‘race.’”

That very real “unthinkability of race” was the Hawaiian Kingdom. Kauai explains that the “multi-ethnic dimensions of the Hawaiian citizenry coupled by the strong voice and participation of the aboriginal population in government played a prominent role in constraining racial hierarchy and the emergence of a legal system that promoted white supremacy.”

After unilaterally annexing the Hawaiian Islands by enacting an American law in the Congress called a joint resolution in 1898, and not by a treaty of cession, the denationalization through Americanization was firmly planted in the educational system throughout the Hawaiian Islands. To do this, the educational system established by the Hawaiian Kingdom would be weaponized. Thus began the brainwashing of the school children that obliterated the national consciousness of their country, the Hawaiian Kingdom, and imposed the English language over the Hawaiian language.

In 1919, the Allied Powers of the First World War concluded that “attempts to denationalize the inhabitants of occupied territory” is a war crime. In their report, the Allied Powers charged that Bulgaria imposed their national characteristics on the Serbian population; banned the Serbian language; people were beaten for saying “Good morning” in Serbian; and the Serbian population forced to be present at Bulgarian national ceremonies.

The United Nations War Crimes Commission established after the Second World War to prosecute war criminals stated:

Attempts of this nature were recognized as a war crime in view of the German policy in territories annexed by Germany in 1914”

At that time, as during the war of 1939-1945, inhabitants of an occupied territory were subjected to measures intended to deprive them of their national characteristics and to make the land and population affected a German province

Since 1898, the United States did exactly what Bulgaria and Germany did during the First and Second World Wars. Where the military occupations of the First and Second World Wars would only last 4 to 6 years, the policy of denationalization through Americanizatoin would last over a century unfettered. Within three generations, the national consciousness of the Hawaiian Kingdom was obliterated.

Under the ownership of the infamous insurgent Lorrin Thurston, the Pacific Commercial Advertiser newspaper served as the insurgents’ propaganda machine. In 1904, Walter G. Smith, an American from San Francisco, became its editor in chief. In the September 8, 1905, edition, he summed up the effect and purpose of weaponizing the educational system under the heading “The American Way.”

It would have been proper yesterday in the Advertiser’s discussion of schools to admit the success which the High School has had in making itself acceptable to white parents. By gradually raising the standard of knowledge of English the High School has so far changed its color that, during the past year seventy-three per cent. were Caucasians. It is not so many years ago that more than seventy-three per cent. were non-Caucasians. At the present rate of progress it will not be long before the High School will have its student body as thoroughly Americanized in blood as it long has been in instruction.

The idea of having mixed schools were the mixture is of various social and political conditions is wholly American; but not so mixed schools where the American youth is submerged by the youth of alien races. On the mainland the Polacks, the Russian Jews, the Huns and the negroes are, as far as practicable, kept in schools of their own, with the teaching in English; and only where the alien breeds are few, as in the country, are they permitted to mingle with white pupils. In the South, where Americans of the purest descent live, there are no mixed schools for whites and negroes; and wherever color or race is an issue of moment, the American way is defined through segregation. Only a few fanatics or vote-hunters care to lower the standard of the white child for the sake of raising that of the black or yellow child.

One great and potent duty of our higher schools, public and private, is to conserve the domination here of Anglo-Saxon ideas and institutions; and this means control by white men. We have no faith in any attempt to make Americans of Asiatics. There are too many obstacles of temperament and even of patriotism in the way. The main thing is to see that our white children when they grow up, are not to be differentiated from the typical Americans of the mainland, having the same standards, the same ideals and the same objects, none of them tempered by the creeds or customs of decaying or undeveloped or pagan races.

From a country, whose literacy rate was second to Scotland and New England, aboriginal Hawaiian school children were forced to enter the labor force after receiving an eighth grade education. If you were white, you were allowed to attend High School. In an article published by New York’s Harper’s Weekly magazine in 1907, the reporter, William Inglis, visited three schools that were established during the Kingdom – Ka‘iulani and Ka‘ahumanu public schools that went to the eighth grade, and Honolulu High School. At Kai‘iulani, he reported:

Out upon the lawn marched the children, two by two, just as precise and orderly as you can find them at home. With the ease that comes of long practice the classes marched and counter -marched until all were drawn up in a compact array facing a large American flag that was dancing in the northeast trade-wind forty feet above their heads. Surely this was the most curious, most diverse regiment ever drawn up under that banner – tiny Hawaiians, Americans, Britons, Germans, Portuguese, Scandinavians, Japanese, Chinese, Porto-Ricans, and Heaven knows what else.

“Attention!” Mrs. Fraser commanded.

The little regiment stood fast, arms at sides, shoulders back, chests out, heads up, and every eye fixed upon the red, white, and blue emblem that waved protectingly over them.

“Salute!” was the principal’s next command.

Every right hand was raised, forefinger extended, and the six hundred and fourteen fresh, childish voices chanted as one voice:

“We give our head and our hearts to God and our Country! One Country! One Language! One Flag!”

Harper’s Weekly, “Hawaii’s Lesson to Headstrong California: How the Island territory has resolved the problem of dealing with its four thousand Japanese Public-School children,” Feb. 16, 1907.

At Honolulu High School, before the name was changed to President William McKinley High School in 1907 after the story was published, the reporter stated:

Professor M.M. Scott, the principal of the high school, was kind enough to call all the pupils, who were not taking examinations, out on the front steps of the building, where the visitor could inspect them in the sunshine. The change in the color scheme from that of the schools below was astounding. Below were all the hues of the human spectrum, with brown and yellow predominating; here the tone was clearly white.

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

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

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.”

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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.

Americans are Protected Persons in the Hawaiian Kingdom

Originally posted on August 31, 2018. According to the International Committee of the Red Cross, “The Geneva Conventions and their Additional Protocols form the core of international humanitarian law, which regulates the conduct of armed conflict and seeks to limit its effects. They protect people not taking part in hostilities and those who are no longer doing so.” Coverage of the Geneva Conventions also apply to occupied territories where there is no actual fighting. Amnesty International defines war crimes as “crimes that violate the laws or customs of war defined by the Geneva and Hague Conventions.”

Internationally, “protected persons” is a legal term under international humanitarian law that refers to specific protections afforded to civilians in occupied territory whose rights are protected under the 1949 Geneva Convention, IV, and its Additional Protocol. According to Article 4 of the Geneva Convention:

“Persons protected by the Convention are those who, at a given moment and in any manner whatsoever, find themselves, in case of a conflict or occupation, in the hands of a Party to the conflict or Occupying Power of which they are not nationals.”

Under this definition, civilians who possess the nationality of the occupying State while they reside in the territory of the occupied State are not protected under the Geneva Convention. Article 147 of the Geneva Convention provides a list of grave breaches, called war crimes, which would apply to protected persons as defined under Article 4.

“Grave breaches to which the preceding Article relates shall be those involving any of the following acts, if committed against persons or property protected by the present Convention: wilful killing, torture or inhuman treatment, including biological experiments, wilfully causing great suffering or serious injury to body or health, unlawful deportation or transfer or unlawful confinement of a protected person, compelling a protected person to serve in the forces of a [occupying] Power, or wilfully depriving a protected person of the rights of fair and regular trial prescribed in the present Convention, taking of hostages and extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly.”

The relevant grave breaches and explanations that would apply to the American occupation of the Hawaiian Kingdom can be found in paragraphs 190 through 205 of the Emergency Petition for Writ of Mandamus filed in federal court in Washington, D.C. If you are a protected person whose situation would fall under one of the explanatory paragraphs in the mandamus, a grave breach or war crime may have been committed against you.

Fifty years later, however, this definition of a protected persons was expanded to include the citizenry of the occupying State. This was an evolution of international criminal law ushered in by the Appeals Chamber of the International Criminal Tribunal for the Former Yugoslavia (ICTY). The case was the prosecution and conviction of Duško Tadić who was a Bosnian Serb. After being arrested in Germany in 1994, he faced among other counts, twelve counts of grave breaches of the 1949 Geneva Convention, IV. On May 7, 1997, he was convicted by the trial court on 11 counts but did not include the counts of grave breaches of the Geneva Convention.

In paragraph 608 of its judgment, the trial court found that Tadic was not guilty of 11 counts of grave breaches because the civilian victims possessed the same Yugoslavian citizenship as Tadic who represented the occupying Power in the war. The prosecutors appealed this decision and it was not only reversed by the Appeal Chamber of the ICTY, but it also expanded the definition of protected persons in occupied territory under international humanitarian law.

In its judgment in 1999, the Appeals Chamber concluded:

“[The] primary purpose [of Article 4] is to ensure the safeguards afforded by the [Geneva] Convention to those civilians who do not enjoy the diplomatic protection, and correlatively are not subject to the allegiance and control, of the State in whose hands they may find themselves. In granting its protection, Article 4 intends to look to the substance of relations, not their legal characterisation as such. … Hence, even if in the circumstances of the case the perpetrators and the victim were to be regarded as possessing the same nationality, Article 4 [Geneva Convention] would still be applicable.” Tadic, ICTY Appeals Chamber, Judgment (1999), para. 168 and 169.

This is an important evolution in international criminal law and has a profound impact on the occupation of the Hawaiian Kingdom. Up until 1999, protected persons in the Hawaiian Islands excluded American citizens. But since 1999, the Tadic case has expanded protection to citizens of the occupying State who reside in the territory of an occupied State. The operative word is no longer nationality or citizenship, but rather allegiance that would apply to all persons in an occupied State. This is not to be confused with an oath of allegiance, but rather the law of allegiance that applies over everyone whether they signed an oath or not. Hawaiian law only requires an oath of allegiance for government employees.

Under Hawaiian Kingdom law there is specific wording that covers allegiance. It is found in the Hawaiian Penal Code under sections 2 and 3 of  Chapter VI for the crime of treason.

“Allegiance is the obedience and fidelity due to the kingdom from those under its protection. … An alien, whether his native country be at war or at peace with this kingdom, owes allegiance to this kingdom during his residence therein, and during such residence, is capable of committing treason against this kingdom.”

By expanding the scope and application of protected persons to American citizens residing in the Hawaiian Kingdom, they, along with all other nationalities of foreign States as well as Hawaiian subjects, are afforded equal protection under the Geneva Convention and can be considered victims of grave breaches or war crimes committed against them by American citizens in violation of the Hague and Geneva Conventions.