HAWAIIAN KINGDOM – After returning from oral hearings held at the Permanent Court of Arbitration, The Hague, Netherlands, where the Council of Regency represented the Hawaiian Kingdom in Larsen v. Hawaiian Kingdom in December of 2000, the Council of Regency focused its attention on the effects of denationalization—Americanization where the national consciousness of the Hawaiian Kingdom was obliterated.
Denationalization was formally initiated in 1906 by the Board of Education and carried into effect within the public and private schools throughout the Hawaiian Islands. Within three generations, Hawaiian Kingdom national consciousness had been effectively replaced with American national consciousness and the national language of Hawaiian replaced with English. As part of this inculcation, young students were led to falsely believe that the Hawaiian Islands had become a part of the United States, and they were now American citizens.
According to Professor William Schabas, recognized expert in international criminal law, who provided a legal opinion for the Royal Commission of Inquiry, denationalization, among other international crimes committed in the Hawaiian Islands, is a war crime under customary international law. War crimes have no statutes of limitations and criminal culpability will last up to 80 years after the war crime was committed.
The Royal Commission was established, by proclamation of the Council of Regency, on April 17, 2019. Its mandate is to investigate war crimes and human rights violations committed within the territorial jurisdiction of the Hawaiian Kingdom since the unlawful overthrow of the Hawaiian government in 1893, and the subsequent belligerent occupation by the United States ever since.
The lawful authority of the Council of Regency has also been the subject of a recent legal opinion by Professor Federico Lenzerini, a professor of international law from the University of Siena, Italy. The American treatise, Restatement (Third) of the Foreign Relations Law of the United States,, §103(2)(c), recognizes that “writings of scholars” are a source of international law in determining, in this case, whether the Council of Regency has been established in conformity with the rules of international humanitarian law. In his opinion, Professor Lenzerini concluded that:
1. the Council of Regency possesses the constitutional authority to temporarily exercise the Royal powers of the Hawaiian Kingdom;
2. the Council of Regency has the authority to represent the Hawaiian Kingdom as a State, which has been under a belligerent occupation by the United States of America since 17 January 1893, both at the domestic and international level; and
3. the Council of Regency is exactly in the same position of a government of a State under military occupation, and is vested with the rights and powers recognized to governments of occupied States pursuant to international humanitarian law.
Professor Lenzerini further concludes:
Under international humanitarian law, the proclamations of the Council of Regency are not divested of effects as regards the civilian population of the Hawaiian Islands. In fact, considering these proclamations as included in the concept of “legislation”…they might even, if the concrete circumstances of the case so allow, apply retroactively at the end of the occupation, on the condition that the legislative acts in point do not “disregard the rights and expectations of the occupied population.” It is therefore necessary that the occupied government refrains “from using the national law as a vehicle to undermine public order and civil life in the occupied area.”
Imposition of United States legislative and administrative measures constitutes the war crime of usurpation of sovereignty under customary international law. This includes the legislative and administrative measures of the State of Hawai‘i and its Counties.
Professor Schabas also identified usurpation of sovereignty as a war crime that has and continues to be committed in the Hawaiian Islands. His legal opinion was also incorporated in a book published by the Royal Commission as chapter 4—War Crimes Related to the United States Belligerent Occupation of the Hawaiian Kingdom. This publication is downloadable as an eBook at no charge.
In 2015, Dr. David “Keanu” Sai met with State of Hawai‘i Governor Ige’s Chief of Staff, Mike McCartney, on three occasions at his office in the Executive Chambers regarding the subject of war crimes and the American occupation. After the meetings, Dr. Sai provided Mr. McCartney a report on July 2, 2015, on the duty and obligation of the State of Hawai‘i to transform itself into a Military government in order to come into compliance with international law. This transformation would take place when the governor declares martial law in accordance with the provisions of the State of Hawai‘i Constitution.
Governor Ige at the time did not take the necessary steps to comply with international law and the law of occupation. Consequently, the State of Hawai‘i and its Counties have continued to commit war crimes and human right violations, as well as violations of international law. As such, the actions and conduct of State of Hawai‘i and County officials have come under the purview of the Royal Commission of Inquiry.
The Royal Commission, however, sees as its priority the establishment of the Military government in order to administer the laws of the occupied State, and, thereby, bringing the State of Hawai‘i and its Counties into compliance with international law of occupation. This is the only way for war crimes and human rights violations to cease.
Members of the State of Hawai‘i and its Counties are not the insurgents of 1893, but rather individuals that found themselves in a tenuous situation without any fault of their own. Their actions viewed through the lens of international humanitarian law, however, have led to the commission of war crimes against the civilian population who have been made aware of the prolonged occupation, and when they were asserting their rights, they were maliciously attacked. Awareness of the American occupation satisfies the mental element necessary for the prosecution of a war crime.
The awareness of the prolonged occupation has reached the National Education Association (NEA) by a resolution introduced in 2017 by the Hawai‘i State Teachers Association at the NEA’s annual convention in Boston. This resulted in three articles that were published by the NEA on its website in 2018.
Also, the National Lawyers Guild, “the oldest and largest progressive bar association in the United States, calls upon the United States to immediately begin to comply with international humanitarian law in its prolonged and illegal occupation of the Hawaiian Kingdom since 1893.”
The Royal Commission recognizes that war crimes and human rights violations cannot continue to be committed with impunity and the perpetrators must be held accountable, but it does recognize that the Council of Regency must have, as Professor Lenzerini stated in his opinion, a “cooperative relationship aimed at guaranteeing the realization of the rights and interests of the civilian population and the correct administration of the occupied territory.”
To this end, a letter of correspondence was sent by Dr. Sai, as Head of the Royal Commission of Inquiry, to State of Hawai‘i Attorney General Clare Connors on June 2, 2020. In his letter, Dr. Sai ends with:
These are not normal times but you are the legal advisor to the Governor, and due to the severity of the situation under international criminal law and the material elements of mens rea and actus reus, I respectfully implore you to carefully review the information I have provided you and to advise the office of the Governor accordingly. Under international humanitarian law, decisions on this matter are not with the federal government nor is it with its military here in the islands, but solely on the shoulders of the State of Hawai‘i as it is the entity in effective control of Hawaiian territory thereby triggering the law of occupation. I should also note that the governmental infrastructure of the State of Hawai‘i is that of the Hawaiian Kingdom. The only change was in name, e.g. the Department of Land and Natural Resources is the Ministry of the Interior. All that was changed in 1893 was the Queen and her cabinet, and the top law enforcement of the kingdom, being forcibly replaced by insurgents calling themselves the Executive and Advisory Councils.
Notwithstanding the warrantless attacks against myself and other officers of the Council of Regency by the State of Hawai‘i, I am hopeful that its current leadership, as the administration of the occupying State, will begin to meet with the Council of Regency in order to establish a “cooperative relationship” provided by international humanitarian law. In the meantime, the Royal Commission will continue to fulfill its mandate of investigating war crimes and human rights violations and providing periodic reports with the purpose of holding perpetrators accountable under international humanitarian law and human rights law.
Far too long the State of Hawai‘i and its Counties, whether by mistake or design, mischaracterized the Council of Regency as a self-declared sovereignty group. Rather, it is assured to be the interim government of the Hawaiian Kingdom established by proclamation on February 28, 1997, and is vested with the rights and powers afforded to a government of an occupied State in accordance with international humanitarian law. A recent documentary, which won several awards at independent film festivals, covers the Council of Regency and its strategy to engage the prolonged occupation of the Hawaiian Kingdom.
IMPORTANT NOTE: The Royal Commission of Inquiry’s mandate is to investigate war crimes and human rights violations and report its findings to countries or international venues for prosecution, which is evidence based. Because war crimes have no statutes of limitations, investigations can occur within 80 years after the commission of the crime because of human longevity. In other words, the Royal Commission can investigate crimes that have been committed 80 years ago. Because war crimes are considered a peremptory norm, which is a serious violation of international law, all countries are obligated to prosecute the alleged perpetrators through their national institutions and may invoke universal jurisdiction. For those countries that a parties to the Rome Statute of the International Criminal Court, they are obligated to prosecute alleged perpetrators who enter their territories for war crimes committed outside of their territory after 2002. According to Article 1 of the Rome Statute, the signatory countries must first investigate and prosecute war crimes, leaving the International Criminal Court the court of last resort. This is called complementary.
In light of the severity of the mandate of the Royal Commission of Inquiry, established by the Hawaiian Council of Regency on April 17 2019, to investigate war crimes and human rights violations committed within the territorial jurisdiction of the Hawaiian Kingdom, the “authority” of the Council of Regency to appoint the Royal Commission is fundamental and, therefore, necessary to address within the rules of international humanitarian law, which is a component of international law. As the United States Supreme Court in The Paquete Habana, 175 U.S. 677, 700 (1900), explained:
International law is part of our law, and must be ascertained and administered by the courts of justice of appropriate jurisdiction as often as questions of right depending upon it are duly presented for their determination. For this purpose, where there is no treaty and no controlling executive or legislative act or judicial decision, resort must be had to the customs and usages of civilized nations, and, as evidence of these, to the works of jurists and commentators who by years of labor, research, and experience have made themselves peculiarly well acquainted with the subjects of which they treat. Such works are resorted to by judicial tribunals not for the speculations of their authors concerning what the law ought to be, but for trustworthy evidence of what the law really is.
According to Article 38(1) of the Statute of the International Court of Justice, “the teachings of the most highly qualified publicists of the various nations, [are] subsidiary means for the determination of rules of law.” Furthermore, §103(2)(c), Restatement Third—Foreign Relations Law of the United States, recognizes that “writings of scholars” are a source of international law in determining, in this case, whether the Council of Regency has been established in conformity with the rules of international humanitarian law. The writing of scholars, “whether a rule has become international law,” are not prescriptive but rather descriptive “of what the law really is.”
As head of the Royal Commission, Dr. Keanu Sai provided a narrative of the authority of the Council of Regency in its recent publication Royal Commission of Inquiry: Investigating War Crimes and Human Rights Violations Committed in the Hawaiian Kingdom (p. 18-23), a process that was unprecedented, for purposes of explanation and understanding, but it may not be considered authoritative as to whether it meets the rules of international law. Therefore, in order to satisfy this requirement and to remove any questions as to the authority of the Council of Regency, Federico Lenzerini, Ph.D., a professor of international law from the University of Siena, Italy, was requested, by letter dated May 11, 2020, to provide a legal opinion on the following:
First, does the Regency have the authority to represent the Hawaiian Kingdom as a State that has been under a belligerent occupation by the United States of America since 17 January 1893?
Second, assuming the Regency does have the authority, what effect would its proclamations have on the civilian population of the Hawaiian Islands under international humanitarian law, to include its proclamation recognizing the State of Hawai‘i and its Counties as the administration of the occupying State on 3 June 2019?
Third, can you provide comment on the working relationship between the Regency and the administration of the occupying State under international humanitarian law?
On May 24, 2020, Professor Lenzerini completed his legal opinion. His opinion begins by stating:
In order to ascertain whether the Regency has the authority to represent the Hawaiian Kingdom as a State, it is preliminarily necessary to ascertain whether the Hawaiian Kingdom can actually be considered a State under international law. To this purpose, two issues need to be investigated, i.e.: a) whether the Hawaiian Kingdom was a State at the time when it was militarily occupied by the United States of America, on 17 January 1893; b) in the event that the solution to the first issue would be positive, whether the continuous occupation of Hawai’i by the United States, from 1893 to present times, has led the Hawaiian Kingdom to be extinguished as an independent State and, consequently, as a subject of international law.
After addressing the historical record and citing the Permanent Court of Arbitration, he concluded, “[i]t is therefore unquestionable that in the 1890s the Hawaiian Kingdom was an independent State and, consequently, a subject of international law. This presupposed that its territorial sovereignty and internal affairs could not be legitimately violated by other States.”
After concluding the Hawaiian Kingdom did exist as a subject of international law, Professor Lenzerini stated, “it is now necessary to determine whether the continuous occupation of Hawai‘i by the United States from 1893 to present times has led the Hawaiian Kingdom to be extinguished as an independent State and, consequently, as a subject of international law.” He addressed this issue “by means of a careful assessment carried out through ‘having regard inter alia to the lapse of time since the annexation [by the United States], subsequent political, constitutional and international developments, and relevant changes in international law since the 1890s.’”
Aside from all speculative arguments, Professor Lenzerini concludes, “the argument which appears to overcome all the others is that a long-lasting and well-established rule of international law exists establishing that military occupation, irrespective of the length of its duration, cannot produce the effect of extinguishing the sovereignty and statehood of the occupied State.” On this subject, he provides an English translation of a statement made by the Swiss arbitrator Eugène Borel in the 1925 Ottoman Public Debt case:
Whatever are the effects of the occupation of a territory by the enemy before the re-establishment of peace, it is certain that such an occupation alone cannot legally determine the transfer of sovereignty […] The occupation, by one of the belligerents, of […] the territory of the other belligerent is nothing but a pure fact. It is a state of things essentially provisional, which does not legally substitute the authority of the invading belligerent to that of the invaded belligerent.
Professor Lenzerini also cites renowned jurist Oppenheim who stated that “[t]he only form in which a cession [of sovereignty] can be effected is an agreement embodied in a treaty between the ceding and the acquiring State. Such treaty may be the outcome of peaceable negotiations or of war.” Without a treaty with the Hawaiian Kingdom ceding its territory to the United States, he concludes that, “according to a plain and correct interpretation of the relevant legal rules, the Hawaiian Kingdom cannot be considered, by virtue of the prolonged US occupation, as extinguished as an independent State and a subject of international law, despite the long and effective exercise of the attributes of government by the United States over Hawaiian territory.” Therefore, the Hawaiian Kingdom “has been under uninterrupted belligerent occupation by the United States of America, from 17 January 1893 up to the moment of this writing.”
After confirming the continuity of the Hawaiian Kingdom, Professor Lenzerini reviewed the process by which the Council of Regency was formed, he further concludes “on the basis of the doctrine of necessity,…the Council of Regency possesses the constitutional authority to temporarily exercise the Royal powers of the Hawaiian Kingdom.” He further concludes “that the Regency actually has the authority to represent the Hawaiian Kingdom as a State, which has been under a belligerent occupation by the United States of America since 17 January 1893, both at the domestic and international level.” In international proceedings at the Permanent Court of Arbitration from 1999-2001, the Council of Regency did represent the Hawaiian Kingdom in Larsen v. Hawaiian Kingdom, and the Dr. Sai served as the Hawaiian Kingdom’s agent and head of its legal team.
In its capacity as representing the Hawaiian Kingdom, Professor Lenzerini concludes that “the Council of Regency is exactly in the same position of a government of a State under military occupation, and is vested with the rights and powers recognized to governments of occupied States pursuant to international humanitarian law.” Therefore, “the ousted government being the entity which represents the ‘legitimate government’ of the occupied territory…may ‘attempt to influence life in the occupied area out of concern for its nationals, to undermine the occupant’s authority, or both. One way to accomplish such goals is to legislate for the occupied population.’”
Regarding legislation by governments of occupied States, Professor Lenzerini cites the Swiss Federal Tribunal which held that “[e]nactments by the [exiled government] are constitutionally laws of the [country] and applied [from the beginning] to the territory occupied […] even though they could not be effectively implemented until the liberation.” He explains that “[a]though this position was taken with specific regard to exiled governments, and the Council of Regency was not established in exile but in situ, the conclusion, to the extent that it is considered valid, would not substantially change as regards the Council of Regency itself.” Hence,
under international humanitarian law, the proclamations of the Council of Regency are not divested of effects as regards the civilian population of the Hawaiian Islands. In fact, considering these proclamations as included in the concept of “legislation”…they might even, if the concrete circumstances of the case so allow, apply retroactively at the end of the occupation, on the condition that the legislative acts in point do not “disregard the rights and expectations of the occupied population.” It is therefore necessary that the occupied government refrains “from using the national law as a vehicle to undermine public order and civil life in the occupied area.”
When the legislative function is exercised by the Council of Regency, through its proclamations, it “is subjected to the condition of not undermining the rights and interests of the civilian population,” and therefore “may be considered applicable to local people, unless such applicability is explicitly refuted by the occupying authority.” “In this regard,” states Professor Lenzerini, “it is reasonable to assume that the occupying power should not deny the applicability of the…proclamations when they do not undermine, or significantly interfere with the exercise of, its authority.”
Addressing the June 3, 2019 proclamation of the Council of Regency recognizing the State of Hawai‘i and the Counties as the administration of the Occupying State, Professor Lenzerini states, “this Proclamation pursues the clear purpose of ensuring the protection of the Hawaiian territory and the people residing therein against the prejudicial effects which may arise from the occupation.” He explains that “it represents a legislative act aimed at furthering the interests of the civilian population through ensuring the correct administration of their rights and of the land. As a consequence, it has the nature of an act that is equivalent, in its rationale and purpose (although not in its precise subject), to a piece of legislation concerning matters of personal status of the local population, requiring the occupant to give effect to it.” He, therefore, concludes that “the proclamations of the Council of Regency—including the Proclamation recognizing the State of Hawai‘i and its Counties as the administration of the occupying State on 3 June 2019—have on the civilian population the effect of acts of domestic legislation aimed at protecting their rights and prerogatives, which should be, to the extent possible, respected and implemented by the occupying power.”
In his commentary on the working relationship between the Regency and the administration of the occupying State, Professor Lenzerini establishes that the law of occupation “allows for authority to be shared by the Occupying Power and the occupied government, provided the former continues to bear the ultimate and overall responsibility for the occupied territory.” By implementing the legislation of the Council of Regency, “the occupying power would better comply with its obligation, existing under international humanitarian law and human rights law, to guarantee and protect the human rights of the local population. It follows that the occupying power has a duty—if not a proper legal obligation—to cooperate with the [Council of Regency] to better realize the rights and interest of the civilian population, and, more in general, to guarantee the correct administration of the occupied territory.” Professor Lenzerini concludes:
[T]he working relationship between the Regency and the administration of the occupying State should have the form of a cooperative relationship aimed at guaranteeing the realization of the rights and interests of the civilian population and the correct administration of the occupied territory, provided that there are no objective obstacles for the occupying power to cooperate and that, in any event, the “supreme” decision-making power belongs to the occupying power itself. This conclusion is consistent with the position of the latter as “administrator” of the Hawaiian territory, as stated in the Council of Regency’s Proclamation recognizing the State of Hawai‘i and its Counties as the administration of the occupying State of June 3, 2019 and presupposed by the pertinent rules of international humanitarian law.
This cooperative relationship, however, is “premised on both the Council of Regency and the State of Hawai‘i and its Counties [to] ensure [their] compliance with international humanitarian law.” Compliance with the law of occupation requires the State of Hawai‘i to transform itself into a government recognized under international humanitarian law. United States practice during occupations requires the establishment of a Military government, which “is the form of administration by which an occupying power exercises governmental authority over occupied territory. The necessity for such government arises from the failure or inability of the legitimate government to exercise its functions on account of the military occupation (U.S. Army Field Manual 27-10, para. 362).” The establishment of Military government is not limited to the United States military, but also applies to a proxy of the occupying power that is in effective control of Hawaiian territory such as the State of Hawai‘i and its Counties. United States practice recognizes that an occupying power “has the duty of establishing [a Military government] when the government of such territory is absent or unable to function properly (U.S. Army and Navy Manual of Civil Affairs Military Government, Field Manual 27-5, p. 4).”
Furthermore, “[i]t is immaterial whether the government over an [occupied State’s] territory consists in a military or civil or mixed administration. Its character is the same and the source of its authority is the same. It is a government imposed by force, and the legality of its acts is determined by the law of war (FM 27-10, para. 368).” And “restrictions placed upon the authority of a belligerent government cannot be avoided by a system of using a puppet government, central or local, to carry out acts which would be unlawful if performed by the occupant. Acts induced or compelled by the occupant are nonetheless its acts (FM 27-10, para. 366).”
In the current state of things, the State of Hawai‘i is not a Military government but rather a “puppet government” or proxy of the United States that continues to commit the war crime of usurpation of sovereignty by unlawfully imposing or applying “legislative or administrative measures of the occupying power going beyond those required by what is necessary for military purposes of the occupation (Royal Commission of Inquiry, p. 155-57, 167).” The volitional element, or criminal intent, of usurpation of sovereignty, according to Professor William Schabas, is that the “perpetrator was aware of factual circumstances that established the existence of the armed conflict and subsequent occupation (RCI, p. 167).” There is no statute of limitation for war crimes but it is customary for individuals to be prosecuted for the commission of war crimes up to 80 years after the alleged war crime was committed given the life expectancy of individuals (RCI, p. 155).
In 2012, member States of the United Nations committed themselves to “ensuring that impunity is not tolerated for genocide, war crimes, crimes against humanity and for violations of international humanitarian law and gross violations of human rights law, and that such violations are properly investigated and appropriately sanctioned, including by bringing the perpetrators of any crimes to justice, through national mechanisms or, where appropriate, regional or international mechanisms, in accordance with international law.”
According to the applicable rules of international law, as provided in the legal opinion of Professor Lenzerini, the Council of Regency, first, does have the lawful authority to represent the Hawaiian Kingdom as a State that has been under a belligerent occupation by the United States since January 17, 1893; second, its proclamations do have legal effects on the civilian population of the Hawaiian Islands, to include its proclamation recognizing the State of Hawai‘i and its Counties as the administration of the occupying State on June 3, 2019; and, third, international humanitarian law does provide for a cooperative relationship between the Regency and the administration of the occupying State—the State of Hawai‘i and its Counties. Furthermore, the mandate of the Royal Commission, which was established by “legislation” of the Council of Regency, is also confirmed by the legal opinion and the applicable rules of international law.
On MSNBC’s Meet the Press, Dr. Michael Osterholm, Director of the Center for Infectious Disease Research and Policy at the University of Minnesota, said in an interview with host Chuck Todd, “What we have to do is figure out how not just to die with the virus, but also how to live with it. And we’re not having that discussion.”
Instead, the discussion around the world has been focused on a vaccine, which some have said could be done within 12 to 18 months from now. But Dr. Rick Bright, former director of the U.S. government’s Biomedical Advanced Research and Development Authority, told members of Congress, “It’s critical to note that when we say 12 to 18 months, that doesn’t mean for an FDA-approved vaccine, it means to have sufficient data and information on the safety and immunogenicity, if not efficacy, to be able to use on an emergency basis, and that is the consideration we have in mind when we talk about an accelerated timeline.”
World Health Organization’s emergencies expert, Dr. Mike Ryan, said on an online briefing, “It is important to put this on the table: this virus may become just another endemic virus in our communities, and this virus may never go away.”
Even after flattening the curve of infections throughout the islands, health experts are expecting a second wave. Unless preventive measures are taken to effectively control the entry of the virus from foreign countries, which includes the United States, a second wave could be devastating on the health and well-being of Hawai‘i’s people and the economy.
A New Legal Reality for Hawai‘i Has Emerged
Before the pandemic crisis reached the islands, undeniable facts had begun to reveal that Hawai‘i has been under a prolonged American occupation since January 17, 1893 after United States troops invaded the Hawaiian Kingdom and overthrew its government.
People have been under the false impression that since Queen Lili‘uokalani was overthrown so was the country. International law distinguishes between the government of the country and the country itself. It was the Queen as head of the government that was illegally overthrown by the United States and not the country the Hawaiian Kingdom.
This would be analogous to the United States military defeat of Saddam Hussein’s Iraqi government in Baghdad on April 9, 2003. The overthrow of the government did not affect the status of Iraq as a country, but it did bring the United States, as an occupying power, under the international law of occupation.
For over a century, the United States violated the international law of occupation in the Hawaiian Kingdom which led to the commission of war crimes and human rights violations committed with impunity.
International awareness of Hawai‘i’s occupation was accelerated due to the Larsen v. Hawaiian Kingdom arbitral proceedings held at the Permanent Court of Arbitration in The Hague from 1999-2001 that was based on the American occupation and the unlawful imposition of American laws within Hawaiian territory. Of significance, the Permanent Court acknowledged the continued existence of the Hawaiian Kingdom as a State, which is another word for country, and the Hawaiian Council of Regency as its interim government.
On the subject of Hawai‘i’s occupation and the commission of war crimes, Professor William Schabas, recognized expert in international criminal law, wrote: “In addition to crimes listed in applicable treaties, war crimes are also recognized under customary international law. Customary international law applies generally to States regardless of whether they have ratified relevant treaties. The customary law of war crimes is thus applicable to the situation of Hawai‘i.” Schabas also stated, “Statutory limitation of war crimes is prohibited by customary law.”
Also commenting on the prolonged occupation, international human rights expert, Professor Federico Lenzerini, stated, “among the rights which may be supposed of having been violated by the United States as a result of the occupation of the territory of the Hawaiian Kingdom particular attention should be devoted to those inherently connected to the violations of international humanitarian law determined by the occupation. These violations…would first of all need to be treated as war crimes, which are primarily to be considered under the lens of international criminal law.”
To read Professors Schabas’ and Lenzerini’s full opinions on war crimes and human rights violations and the role of the Hawaiian Royal Commission of Inquiry download the free eBook The Royal Commission of Inquiry: Investigating War Crimes and Human Rights Violations Committed in the Hawaiian Kingdom.
What effect does this new legal reality have in dealing with COVID-19? The simple answer is that international law broadens the scope as to how to deal with the virus that did not exist before. In particular, it provides for legal authority to close the borders.
Here is a relevant Hawaiian proverb. “I ke au i hala ka lamaku o ke ala i ke kupukupu.” (The past is the beacon that will guide us into the future)
Why the International Law of Occupation Applies to Hawai‘i
The silver lining in the international law of occupation takes the position that Hawai‘i, which is known internationally as the Hawaiian Kingdom, remains its own separate country despite over a century of an illegal occupation by the United States. As an occupied country, decisions are not made by inept leadership at the United States federal level but rather by the rules of international humanitarian law, which includes the law of occupation, by those who are in effective control of Hawaiian territory.
There are two important tenets of the law of occupation. First, is the duty of the occupying power or its proxy to administer the laws of the Hawaiian Kingdom, and, second, the protection of the health and well-being of the Hawaiian Kingdom’s inhabitants that are both Hawaiian subjects and resident aliens. Occupations by foreign countries are regulated by the 1907 Hague Regulations and the 1949 Fourth Geneva Convention.
However, before the Hague Regulations and the Geneva Convention can be applied over the Hawaiian Islands, the occupying power or its proxy has to be in effective control of the territory. For without effective control, there would be no enforcement mechanism for ensuring effective governance. Article 42 of the Hague Regulations states that “Territory is considered occupied when it is actually placed under the authority of the hostile army.”
Article 42 has three requisite elements before the duty to administer the laws of the occupied country becomes obligatory upon the occupying power or its proxy. First, there must be the presence of a foreign country’s forces; second, the exercise of authority over the occupied territory by the foreign country or its proxy; and, third, the non-consent by the occupied country’s government.
In March of 1893, President Grover Cleveland initiated a presidential investigation into the overthrow of the government of the Hawaiian Kingdom on January 17, 1893 and the creation of the provisional government. After completing the investigation, he notified the Congress of his findings on December 18.
In his message to the Congress, he stated, that a protest “signed by the Queen and her ministers at the time she made way for the provisional government, which explicitly stated that she yielded to the superior force of the United States, whose Minister had caused United States troops to be landed at Honolulu and declared that he would support such provisional government.”
As to the status of the provisional government, the President stated, “I believe that a candid and thorough examination of the facts will force the conviction that the provisional government owes its existence to an armed invasion by the United States. Fair-minded people with the evidence before them will hardly claim that the Hawaiian Government was overthrown by the people of the islands or that the provisional government had ever existed with their consent.”
The President also concluded, “In this state of things if the Queen could have dealt with the insurgents alone her course would have been plain and the result unmistakable. But the United States had allied itself with her enemies.”
The President entered into an agreement of restoration with the Queen as head of the Hawaiian government but political wrangling in the Congress prevented the restoration because proponents in the Congress wanted Hawai‘i as a military outpost.
The only change in the Hawaiian governmental infrastructure was the Queen and her Cabinet that was replaced by 18 insurgents calling themselves the Executive and Advisory Councils. Everyone else in the governing body remained but were coerced into signing oaths of allegiance to the regime while United States military forces were present.
A colloquial term for the illegal overthrow would be a “car-jacking.” All that was changed was the driver and not the car.
Five years later on July 7, 1898, during the Spanish-American War, the Congress passed a law purporting to have annexed the Hawaiian Islands. The United States took control of their insurgents, who were then calling themselves the Republic of Hawai‘i, in 1900 when Congress renamed them as the Territory of Hawai‘i. In 1959, the Congress renamed the Territory to the State of Hawai‘i. What changed was merely the names of purported governments and not the legality of the situation.
A basic principle of United States law is that legislation has no legal effect outside of its territory. In other words, the Congress could no more annex the Hawaiian Islands in 1898 by enacting a law than it could no more annex Canada today by enacting a law. Acquisition of foreign territory is a matter of international law and is done by a treaty. There is no treaty of cession between the Hawaiian Kingdom and the United States.
In 1936, the United States Supreme Court, in United States v. Curtiss Wright Export Corp, made clear, “Neither the Constitution nor the laws passed in pursuance of it have any force in foreign territory unless in respect of our own citizens, and operation of the nation in such territory must be governed by treaties, international understandings and compacts, and the principles of international law.”
Mindful of the territorial limits of American legislation, the Office of Legal Counsel for the U.S. Department of Justice, in 1988, concluded “it is therefore unclear which constitutional power Congress exercised when it acquired Hawaii by joint resolution.” If it was unclear how the Congress could annex a foreign country, it would be equally unclear how the Congress could have created the Territory of Hawai‘i in 1900 or the State of Hawai‘i in 1959 in a foreign country.
Instead of a treaty, the United States embarked on an effective policy of denationalization through Americanization in the schools throughout the kingdom. It was here that young school children were brainwashed into believing that the Hawaiian Islands had become a part of the United States and that English was the new language. Within three generations, Hawaiian national consciousness was replaced with American national consciousness and the greatest travesty of international law would go unnoticed for over a century.
For a comprehensive explanation of the overthrow and the subsequent American occupation visit the National Education Association’s website neaToday that published three articles on the subject. The “NEA’s 3 million members work at every level of education—from pre-school to university graduate programs. NEA has affiliate organizations in every state and in more than 14,000 communities across the United States.”
How Does the Law of Occupation Apply to COVID-19 in Hawai‘i
The United States presence in the Islands is illegal and its current form of governance has been unlawfully imposed for over a century. But to apply international laws, there needs to be an understanding of the current system, albeit unlawful, in order to understand how to transform the State of Hawai‘i into something recognizable under international law in order begin to comply with the laws of occupation so that administration of the laws of the Hawaiian Kingdom can begin.
The United States is a multitiered governing system called a federation. At the top is the national or federal government, headed by a president, and below it are the various States that are headed by governors. In the case of the State of Hawai‘i, there are the four County governments below the State who are headed by mayors.
As a proxy of the United States, only the State of Hawai‘i and its Counties, and not the federal government, are in effective control of Hawaiian territory. By being in effective control, the State of Hawai‘i and the Counties meets the requirement of effectiveness under Article 42 of the Hague Regulations.
Under Article 43 of the Hague Regulations and Article 64 of the Geneva Convention, the State of Hawai‘i and its Counties are obligated to administer the “laws in force in the country,” which in this case would be the laws of the Hawaiian Kingdom as it stood before the illegal overthrow of the Hawaiian Government on January 17, 1893.
With particular focus on infectious diseases, Article 54 of the Geneva Convention states that the occupying power or its proxy has the obligation to ensure and maintain, “public health and hygiene in the occupied territory, with particular reference to the adoption and application of the prophylactic and preventative measures necessary to combat the spread of contagious diseases and epidemics.”
Professor Marco Sassòli, an expert on the law of occupation, explains, “The expression ‘laws in force in the country’ in Article 43 refers not only to laws in the strict sense of the word, but also to the constitution, decrees, ordinances, court precedents (especially in territories of common law tradition), as well as administrative regulations and executive orders.” Administrative regulations that would specifically apply to the pandemic would include those of the Hawaiian Kingdom’s Board of Health and the Board of Immigration.
As smallpox and COVID-19 are both viruses, there is much to learn from the Hawaiian Kingdom’s past. Like COVID-19, the smallpox virus would spread from person to person by inhaling respiratory droplets or contact with infected persons or material. Smallpox was not eradicated until 1977.
In the nineteenth century, inoculation was the form of a vaccine, but this was a preventive measure. Also, inoculation was not full proof but it was all the nineteenth century had at the time. Once a person became infected there was no medical treatment and all that could be done was to provide hospital care until the virus ran its course. Once an outbreak occurred, quarantine was the only effective response in order to contain the virus. According to the World Health Organization, smallpox had “an incubation period of between 7 and 17 days after exposure and only becomes infectious once the fever develops,” and had a 30% death rate.
Living with Infectious Viruses in the Hawaiian Kingdom
The 1853 smallpox epidemic in the Hawaiian Kingdom was the most devastating health disaster in Hawai‘i’s history with over 5,000 deaths, which meant roughly 16,500 people were infected. The infections and death were predominantly in the city of Honolulu.
Hawaiian historian, Samuel Kamakau, who witnessed the ravage, wrote, “From the last week in June until September the disease raged in Honolulu. The dead fell like dried kukui twigs tossed down by the wind. Day by day from morning till night horse-drawn carts went about from street to street of the town, and the dead were stacked up like a load of wood, some in coffins, but most of them just piled in, wrapped in cloth with heads and legs sticking out.”
The government reported, “No new cases of smallpox has been reported. Those already existing are doing well. The health of the city is otherwise generally good.” After two-months the epidemic passed and Honolulu was virus free.
This was a test for the newly created Smallpox Commission that was established by statute on May 16, 1853. The statute’s preamble stated, “Whereas, the Small-Pox is believed to exist in this Kingdom, and humanity and a just regard to life require that all who are affected with that disease should receive strict care and attention, and whereas it is desirable that the disease shall not extend through the Islands.” Following the outbreak, an Act was passed by the legislature on August 10, 1854 making “compulsory the practice of vaccination throughout the Hawaiian Islands.” The Board of Health eventually assumed complete control in response to future smallpox outbreaks.
After the King, in Privy Council, in 1869 concluded that smallpox was endemic to the west coast of the United States and posed a direct threat to the health and well-being of Hawai‘i’s people, Mokuakulikuli—known today as Sand Island, was designated as the Quarantine Ground. The Hawaiian Gazette reported, “Altogether, about ninety persons can be comfortably accommodated at the quarantine buildings.”
Vaccinations in the nineteenth century were not full proof and another outbreak of smallpox hit Honolulu in 1881 that lasted just over five months. 282 people lost their lives.
There were hard lessons learned from the second outbreak that eventually culminated in the Board of Health’s adoption of a more comprehensive and authoritative quarantine regulations in 1891. The regulations focused on incoming passenger and merchant ships arriving from foreign ports.
Under these quarantine regulations, full authority and centralized control was vested in the Board of Health to make on the spot decisions that had the backing of the Hawaiian government through enforcement. The regulations were driven by medical experts and not politicians.
The regulations also provided who was responsible for the costs of the quarantine, which would not be incurred by the Hawaiian government. If payment was refused, the ship and/or assets were seized and liquidated to pay for the costs the government incurred.
1891 Quarantine Regulations
- The Board of Health may, from time to time, establish the quarantine to be performed by all vessels arriving at any port of the Kingdom, and may make such quarantine regulations as may be deemed necessary for the public health and safety. (Civil Code, Section 292).
- The quarantine regulations so established shall extend to all persons, goods and effects, arriving in such vessels, and to all persons who may visit or go on board of the same. (Civil Code, Section 293).
- Notice shall be given of such quarantine regulations by publication in the manner provided in Section 284 of the Civil Code; after which notice, any person violating such quarantine regulations shall be fined a sum of not less than five dollars (equivalent to $144.04 today) nor more than five hundred dollars (equivalent to $14,403.78). (Civil Code, Section 294).
- Any vessel which shall refuse to submit to quarantine or which shall leave the quarantine ground before the expiration of the quarantine imposed upon her, or which shall be the means of clandestinely introducing into this Kingdom any contagious disease, or any disease dangerous to the public health, shall be liable to seizure, confiscation and sale for the benefit of the public treasury. (Civil Code, Section 295).
- The Board of Health or its agents may at any time cause a vessel arriving at any port in this Kingdom, when they deem such vessel, or any part of its cargo, to be foul, infected, or in any way dangerous to the public health, to be removed to the nearest quarantine ground, and to be thoroughly purified at the expense of the owners, consignees or persons in possession of the same; and they may also cause all persons arriving in or going on board of such vessel, or handling such infected cargo, to be removed to some place of safety, there to remain under their orders. (Civil Code, Section 296).
- If any master, seaman, or passenger, belonging to a vessel on board of which there may be at the time, or may have lately been, or suspected to have been any infectious or contagious disease, or that which may become the source of such disease, or which may have been at or have come from a port where any infectious or contagious disease prevailed that may endanger the public health, shall refuse to make answer on oath to such questions as may be asked him, relating to said disease, or possible source of disease, by the Board of Health or its agents, such master, seaman, or passenger, so refusing, shall be punished by fine not exceeding five hundred dollars (equivalent to $14,403.78), or be imprisoned with hard labor for not more than twelve months, or both, at the discretion of the Court. (Civil Code, Section 297).
- Upon arrival of any vessel making the usual marine signal for a pilot, it shall be the duty of pilot or pilots at the port, to immediately put off such vessel, taking with him a white and yellow flag, to inquire into the sanitary condition of the ship and the health of those on board; and upon being assured to satisfaction that there is no danger to be apprehended from any contagious disease, he shall board the vessel, but not otherwise. (Civil Code, Section 594).
- Upon boarding the vessel, the pilot shall present to the commanding office a heal certificate to be signed by him, and in case the same shall be signed, the white flag shall be immediately hoisted at the main, and the pilot shall be at liberty to bring the vessel into port; but in case the commanding officer shall decline to sign the certificate of health, the pilot shall deliver to him a yellow flag, which the master shall hoist at the main, and the vessel shall be placed in quarantine outside of the harbor, and anchored where the pilot may direct. Any pilot who shall conduct a vessel into any port in this Kingdom, in violation of provisions of this section, or any of the regulations of the Board of Health, or knowing that there is just ground to suspect the existence of contagion on board, shall be liable to fine not exceeding five hundred dollars (equivalent to $14,403.78); and every vessel, the master of which shall have declined to sign a certificate of health, as above prescribed, shall upon entering port, be liable to seizure, confiscation and sale. (Civil Code, Section 595).
- If the Pilot, after boarding any vessel, shall discover the existence of any infectious or contagious disease, be shall not return on shore without the permission of the Board of Health; neither shall it be lawful for any of the ship’s company or passengers to land, or communicate with the shore, or to board any other vessel without the permission of the Board of Health, or the Collector, under penalty of a fine not exceeding five hundred dollars (equivalent to $14,403.78). (Civil Code, Section 596).
- The Board of Health and its agents may from time to time, at their discretion, appoint certain places within or near any harbor or anchorage in the Hawaiian Islands, for the performance of quarantine, where all or any vessel or vessels, crews, passengers and other person on board thereof, shall perform the same; and also may appoint stations apart from such vessels, where any persons or things shall be detained for the performance of quarantine.
- Every vessel arriving off any port of these Islands, may be boarded by the Port Physician, who shall examine personally the crews and passengers, and if satisfied that no contagious or infectious disease, that is dangerous to the public health, exists, or has recently existed on board, he shall give the Captain a certificate to that effect; but if not so satisfied, he shall give the Captain a certificate to that effect; but if not satisfied, he shall order the Pilot to anchor the vessel outside of the harbor and notify the Board of Health of the facts. No vessel may enter the harbor or any port of this Kingdom, when forbidden to do so by the Port Physician of said port.
- All expenses incurred on account of any person, vessel, or goods, shall be paid by such person, vessel or owner, or consignee of such vessel or goods, the vessel causing them not receiving a permit to quit the port until said expenses are paid.
- In every case where a vessel is boarded by the Port Physician, his fees and expenses shall be paid by the vessel or its representatives; and if said vessel or its representatives decline to pay these fees, the Collector of Customs shall collect them and shall not grant a clearance to said vessel until such fees and expenses shall have been paid.
- The resident physicians who are, or shall be appointed by the Government to take charge of the various districts of these Islands, except Honolulu, are hereby appointed by the Board of Health to act as Port Physicians for all ports in their several districts.
- If a vessel, passing on to another port or country, wish to land persons or goods in any port of these islands, the said vessel being obliged to undergo quarantine under the provisions of the previous Sections and these regulations, the person or goods entering said ports of these Islands may be landed and shall undergo such quarantine or other treatment as the Board of Health shall order, after which the vessel shall be free to depart, when her quarantine is raised.
- On the arrival of a vessel at any port of this Kingdom, coming from a port known to be infected with cholera, yellow fever, smallpox, scarlet fever, plague or any other contagious or infectious disease deemed by the Board of Health to be dangerous to public health, although no case of such disease may have broken out on board during the voyage, the officers, crew and passengers of such vessel may be kept in quarantine until a period of eighteen days shall have elapsed from the time of her leaving said infected port; and the vessel herself and her cargo shall undergo such process of cleansing and disinfection as the Board of Health shall judge necessary.
- On the arrival of a vessel at any port of this Kingdom which has or has had on board during the voyage, any person sick with smallpox or scarlet fever, (1,) the sick persons, if passengers for that port, shall be sent to the quarantine hospital for such a period as may be deemed necessary; (2,) the officers, crew, well passengers and other persons on board shall be placed in quarantine apart from the aforesaid, for such period as may be deemed necessary by the Board of Health; (3,) and the whole or part of the ship and its cargo shall undergo such fumigation and disinfection as the Board may deem necessary. But with regard to all sick passengers other than passengers for that port, and with regard to all persons sick with cholera, yellow fever or plague, and with regard to all persons sick with cholera, yellow fever or plague, the Board will not consider itself bound to receive them or to take care of them in quarantine.
- No person shall leave or visit any quarantined vessel, or any house, enclosure or place set apart for quarantine purposes; unless by written permission of the President of the Board of Health, or some agent authorized by said Board.
- Under no circumstances provided for by the last preceding regulation, shall clothing, personal baggage, or any goods be allowed to be landed from any vessel or removed from any place, before having undergone such disinfecting process as may be ordered by the Board of Health; nor shall letters or mails be landed in Honolulu except by written permission of the President of the Board of Health, or in any other district of the Kingdom except by permission of the District Port Physician.
- Vessels arriving from an Asiatic port, or from any port reported to be infected with cholera, yellow fever, or smallpox shall not enter any port of this Kingdom, though such vessels may show a clean bill of health, until special permission is granted by the Board of Health for entry into the port of Honolulu, or by a duly accredited agent of the Board for entry at any other port in the Hawaiian Islands. Such vessels shall be anchored on quarantine ground, at such places as may be chosen by the Pilot under direction of the Port Physician, and remain at such anchorage until changed or admitted into port by the Board of Health.
- The Board of Health may order the fumigation and disinfection of all personal effects from Asiatic ports.
- Any vessel placed in quarantine shall fly a yellow flag at the main by night and shall keep such signals hoisted until released from quarantine.
- It shall be the duty of the Pilot to deliver to the commanding officer of any vessel he may board a copy of the aforesaid quarantine regulations, with which he shall be provided by the Board of Health for that purpose.
Although these regulations were applied to arriving ships throughout the kingdom, they are applicable today to airplanes arriving throughout the various airports as well.
If the United States or its proxy the State of Hawai‘i was complying with the international law of occupation by administering the laws of the Hawaiian Kingdom, COVID-19 would have been detected much sooner and quarantine measures would have taken effect followed by a lockdown of the borders to prevent foreign travelers from re-introducing the virus.
Hawaiian Bureau of Immigration and the Authority to Deny Entry
The legislature in 1864 established a Bureau of Immigration within the Ministry of the Interior. Its purpose was “superintending the importation of foreign laborers, and the introduction of immigrants.” The Bureau came under the control of the Minister of the Interior who was “assisted by a committee of five members of the Privy Council of State, to be appointed by His Majesty the King for that purpose.”
On January 14, 1880, the Bureau enacted an ordinance regulating immigration. In particular, Section 7 of the ordinance provided, “Immigrants not desiring to make engagements for labor shall, before leaving the depot, furnish to the President of the Board of Immigration satisfactory evidence that they will not become vagrants or a charge on the community for their support.”
Section 7 was the basis for the denial of a petition for writ of habeas corpus to the Hawaiian Kingdom Supreme Court by two passengers that completed quarantine for smallpox but were still detained by the Minister of the Interior because they did not satisfy section 7 of the regulations of the Board of Immigration.
Before the second outbreak of smallpox in Honolulu, the steamship Septima arrived in Honolulu from China on February 13, 1880. It was determined by the Board of Health that the virus existed amongst the passengers and they were removed to Sand Island for quarantine.
After they were cleared of smallpox by the Board of Health, authority was then passed over to the Board of Immigration. They were further detained by the Minister of the Interior until each of the passengers provided evidence that “they will not become vagrants or a charge on the community for their support.”
Two of the passengers from China refused to agree with section 7 of the regulations and claimed that the ordinance, itself, was unlawful because it was not a law passed by the legislature. In the Matter of Chow Bick Git and Wong Kuen Leong, the Hawaiian Kingdom Supreme Court, in 1881, not only denied the petition by upholding the Board of Immigration’s ordinance as constitutional, it also addressed the authority of the Hawaiian government to deny entry of foreigners.
After the Court cited Vattel’s Law of Nations and the passenger cases before the United States Supreme Court on a State’s authority to deny entry into its territory by foreigners, Associate Justice Albert F. Judd provided a separate opinion in agreement with the Chief Justice. He further stated:
“the State has a right to impose such terms and conditions precedent to the entry of foreigners within its borders as in its opinion are essential to its welfare, peace and good government. I see no reason why a sovereign State may not prescribe these terms, even in the absence of municipal law declaring what they shall be. The State may say to those who seek to become residents within its territory, ‘We will admit you, providing you accede to these terms which we deem to be reasonable and necessary.’”
Living with COVID-19 in the Hawaiian Islands
The American response of “flattening the curve” is an American policy to prevent its hospitals from being overwhelmed until a vaccine can be found. A full proof smallpox vaccine did not exist until the twentieth century where the last natural outbreak of smallpox in the United States occurred in 1949. In the meantime, the Hawaiian Kingdom had to live with the virus and its defense was hospital care and quarantine measures.
Instead of “flattening the curve,” Hawai‘i, like in the nineteenth century, should focus on “eliminating the virus” throughout the Islands by closing the borders until the virus completes its infectious incubation period. During this time, test, tracing and quarantine continues.
In an interview on KITV Island News, Dr. Bruce Anderson from the State of Hawai‘i Board of Health acknowledged that countries that have good quarantine programs and who have the ability to control their borders are relying largely on quarantine and not testing.
New Zealand, like Hawai‘i, is an island country that can control their borders much more effectively than landlocked States of the United States. The ocean now becomes a moat for the defense of a castle.
Advised by epidemiologists, Prime Minister Jacinda Ardern announced on March 14 that almost everyone coming into New Zealand would have to self-quarantine for 14 days. It was one of the earliest moves to isolate a country in the world. A total lockdown for the country followed on March 26 with a moratorium on domestic travel.
The government eventually closed its borders except for “New Zealand citizens, permanent residents and residents with valid travel conditions.” It later allowed transiting travelers to certain countries but they were required to remain in the airport and if the transit flight would be more than 24 hours they cannot enter New Zealand.
The Prime Minister explained, “We’re going hard and we’re going early. We only have 102 cases, but so did Italy once.” The goal of the New Zealand government, with the closing of the borders, was to not have any more community transmissions.
By late April, infections dropped to seven, which motivated the government to ease on its domestic lockdown. On April 21, the Prime Minister told Radio New Zealand, “We can say with confidence that we do not have community transmission in New Zealand. The trick now is to maintain that.”
The Prime Minister, being advised by epidemiologists, said she was not seeking to eradicate the virus from the country but rather have “zero tolerance for cases.” Her advisors stated their approach would be similar to a response to measles with swift response of medical treatment for those infected, contact tracing and isolation. This is how the Hawaiian Kingdom lived with infectious viruses in the nineteenth century that arrived into the country, swiftly moving to identify infected persons, provide care and quarantine.
According to New Zealand’s Ministry of Health, “effective border control becomes even more important than before. As people within New Zealand are able to travel and mix more freely, the ability of COVID-19 to spread potentially increases. So we must keep it out at the border. We already know the border is one of the main sources of new cases of COVID-19.”
Hawai‘i should follow New Zealand’s lead but it first needs to comply with the law occupation as a governing body recognizable under international law. Once COVID-19 is eliminated in the islands and the borders remain closed under the regulations of the Hawaiian Board of Immigration, interisland flights can resume and Hawai‘i can get back to pre-pandemic life with some adjustments just as the country did after the 1881 breakout of smallpox.
No Choice for the State of Hawai‘i to Comply with the Law of Occupation
Since 1898, the United States, through its proxy the Territory of Hawai‘i since 1900 and now the State of Hawai‘i since 1959, has been illegally imposing its municipal laws throughout the Hawaiian Islands. Customary international law refers to this unlawful imposition of one country’s laws into the territory of an occupied country as “usurpation of sovereignty,” which is a war crime.
“In the situation of Hawai‘i, the usurpation of sovereignty would appear to have been total since the beginning of the twentieth century,” says Professor Schabas. He argues “that usurpation of sovereignty is a continuous offense, committed as long as the usurpation of sovereignty persists.”
Professor Schabas states that the criminal act, or actus reus, of usurpation of sovereignty “would consist of the imposition of legislation or administrative measures by the occupying power that go beyond those required by what is necessary for military purposes of the occupation.” In other words, if a person or persons imposed American legislative or administrative measures in Hawai‘i you committed the war crime.
The volitional element, or criminal intent, of usurpation of sovereignty,” according to Professor Schabas, is that the “perpetrator was aware of factual circumstances that established the existence of the armed conflict and subsequent occupation.” What is important is not just the criminal act but was there criminal intent to commit the criminal act.
If there was no awareness of the American occupation, there was no intent for prosecution purposes. In other words, was Governor David Ige aware of Hawai‘i’s occupation?
On three separate occasions in June of 2015, Governor Ige’s Chief of Staff Mike McCartney met with Dr. Keanu Sai who was at the time the attorney-in-fact for two war crime victims who were in communication with the Swiss Attorney General’s office for war crimes. Dr. Sai conveyed to McCartney that his clients were willing to forgo filing war crime complaints if the Governor would take corrective measures to address the circumstances of the two victims.
The following month on July 2, Dr. Sai provided McCartney a Report that covered what was discussed in the three meetings and a proposed remedy in line with international law and the relevant rules of the States of Hawai‘i. The opening statement in Dr. Sai’s cover letter stated:
“Enclosed please find a report I authored, titled Military Government: Transformation of the State of Hawai‘i, for your consideration. As you know after we met on three previous occasions, this is a serious matter with profound political and economic consequences. After our last meeting I scoured through the laws and customs of war and international humanitarian law, and I discovered that the State of Hawai‘i is fully authorized to declare itself as a Military Government in accordance with provisions in the State Constitution and the laws and customs of war during occupation.”
McCartney, for whatever reason, did not follow up with Dr. Sai. What is not clear is why there was no follow up. What is unquestionably clear, for the purpose of criminal culpability under international law, is that Governor Ige’s administration was “aware of factual circumstances that established the existence of the armed conflict and subsequent occupation” for the past five years.
Governor Ige was also made aware of Hawai‘i’s occupation by Maui County Council member Tamara Paltin who was communicating with University of Hawai‘i President David Lassner regarding the proposed building of the thirty-meter telescope on the summit of Mauna Kea. Governor Ige and the Attorney General were carbon copied in the communications.
How the State of Hawai‘i Will Comply with the Law of Occupation
In decision theory, a negative-sum game is where everyone loses. Any decision from a loss can only have the effect of a loss—a lose-lose situation. The State of Hawai‘i is presently operating from a position of no lawful authority, and everything that it has done or that it will do is unlawful. There can be no fruit from a poisonous tree. The rapidly growing knowledge and awareness of the prolonged occupation of Hawai‘i has the effect of causing the State of Hawai‘i to speedily descend and crash.
The State of Hawai‘i has found itself in a mammoth negative-sum game. In order to stave off the inevitable, the Council of Regency and the State of Hawai‘i must cooperate so that positive-sums are realized. The law of occupation provides the legal basis for the State of Hawai‘i to realize positive-sums.
Critical to the administration of Hawaiian law is the establishment of a Military government recognizable under international law, which is “defined as the supreme authority exercised by an armed occupying force over the lands, properties, and inhabitants of an enemy, allied, or domestic territory.”
The establishment of a Military government is not limited to the U.S. military, but to a proxy of the Occupying power that is in effective control of occupied territory. Section 4(b), U.S. Army Field Manual FM 27-5, provides that an occupying Power “has the duty of establishing [Military government] when the government of such territory is absent or unable to function properly.”
What distinguishes the U.S. military stationed in the Hawaiian Islands from the State of Hawai‘i is that the State of Hawai‘i, as a proxy of the United States, is in effective control of the majority of Hawaiian territory. U.S. military sites number 118 that span 230,929 acres of the Hawaiian Islands, which is only 20% of the total acreage of Hawaiian territory. The balance of Hawaiian territory is controlled by the State of Hawai‘i and its Counties.
As a proxy for the Occupying power, the State of Hawai‘i has no choice but to establish itself as a Military government, which is allowable under the laws of occupation, to provisionally serve as the administrator of the “laws in force in the country.”
According U.S. Army FM 27-10, “Military government is exercised when an armed force has occupied such territory, whether by force or agreement, and has substituted its authority for that of the sovereign or previous government. The right of control passes to the occupying force limited only by the rules of international law and established customs of war.”
The proclamation for the establishment of a Military government would be done in like fashion to the declaration of martial law for the Hawaiian Islands from December 7, 1941 to April 4, 1943. Governor Joseph Poindexter and Lieutenant General Walter Short relied on section 67 of the 1900 Territorial Act as the basis to establish a Military government. The Governor appointed General Short as the Military Governor in charge of the Military government.
The 1941 proclamation, however, required the prior approval of President Franklin D. Roosevelt, since the Governor of the Territory of Hawai‘i was a Presidential appointee.
When the Territory was transformed to the State of Hawai‘i in 1959, section 67 was replaced by Article V, section 5 of the State of Hawai’i Constitution, which gives the Governor full and complete authorization to declare the establishment of a Military government without the prior approval of the President.
In order to transform the State of Hawai‘i into a Military government, the Governor will need to decree, by proclamation, the establishment of a Military government in accordance with Article V, section 5 of the State of Hawai’i Constitution, which will bring it in conformity with section 5(3) of FM 27-5 that states the purpose of a Military government is to “fulfill the obligation of the occupying force under international law.”
Additionally, the proclamation should also decree that all State of Hawai‘i judicial and executive officers and employees remain in operation with the exception of the legislative bodies to include the Legislature and County Councils. This reasoning is because “since supreme legislative power is vested in the military governor, existing legislative bodies will usually be suspended.”
Although the Council of Regency recognized “the State of Hawai‘i and its Counties, for international law purposes, as the administration of the Occupying Power whose duties and obligations are enumerated in the 1907 Hague Convention, IV, the 1949 Geneva Convention, IV, and international humanitarian law,” by proclamation on June 3, 2019, it failed to transform itself into a Military government.
A condition of the recognition, as stated in the proclamation, was “that the State of Hawai‘i and its Counties shall preserve the sovereign rights of the Hawaiian Kingdom government, and to protect the local population from exploitation of their persons and property, both real and personal, as well as their civil and political rights under Hawaiian Kingdom law.”
The State of Hawai‘i and its Counties have not preserved the sovereign rights of the Hawaiian Kingdom and has continued to exploit the local population by imposing the legislative and administrative measures of the United States. Once the State of Hawai‘i transforms itself into a Military government, the recognition takes effect.
Until such time, members of the State of Hawai‘i and its Counties could find themselves under investigation for war crimes by the Royal Commission of Inquiry that was established by the Council of Regency on April 17, 2019.
The mandate of the Royal Commission is “to investigate the consequences of the United States’ belligerent occupation, including with regard to international law, humanitarian law and human rights, and the allegations of war crimes committed in that context. The geographical scope and time span of the investigation will be sufficiently broad and be determined by the head of the Royal Commission.”
The Royal Commission recently published an eBook Investigating War Crimes and Human Rights Violations Committed in the Hawaiian Kingdom, as well as its first preliminary report The Material Elements of War Crimes and Ascertaining the Mens Rea.
Bringing Hawaiian Kingdom Law Up To Date
Because United States laws, to include the current federal laws and laws of the State of Hawai‘i and its Counties, are unlawful, the only valid laws in Hawai‘i are the laws of the Hawaiian Kingdom, which include “the constitution, decrees, ordinances, court precedents, as well as administrative regulations and executive orders.”
In order to bring these laws up to date, the Council of Regency proclaimed on October 10, 2014, that “all laws that have emanated from an unlawful legislature since the insurrection began on July 6, 1887 to the present, to include United States legislation, shall be the provisional laws of the Realm subject to ratification by the Legislative Assembly of the Hawaiian Kingdom once assembled, with the express proviso that these provisional laws do not run contrary to the express, reason and spirit of the laws of the Hawaiian Kingdom prior to July 6, 1887, the international laws of occupation and international humanitarian law, and if it be the case they shall be regarded as invalid and void.”
Once the Military government has been proclaimed, the Governor should follow up with a supplemental proclamation announcing the Council of Regency’s proclamation of provisional laws.
These are serious times in Hawai‘i for those in power. Since 1893, this power has been unchecked and unbridled but now under the international law of occupation and international criminal law the rule of law has now taken its place front and center.
The decision to transform the State of Hawai‘i into a Military government is not a political decision. It is a decision made in light of indisputable facts, international law, and awareness of the American occupation of a sovereign State.
As Professor Schabas stated, which is also acknowledged by the International Criminal Court, there “is no requirement for a legal evaluation by the perpetrator” of Hawai‘i’s occupation. Rather, there “is only a requirement for the awareness of the factual circumstances that established the existence” of Hawai‘i’s occupation.
Without evidence that denies the continued existence of the Hawaiian Kingdom, international criminal law is a vice grip on individuals where the potential for the prosecution of war crimes can last up to a person’s elderly years. As Professor Schabas stated, “human longevity means that the inquiry into the perpetration of war crimes becomes abstract after about 80 years, bearing in mind the age of criminal responsibility.”
In response to the prolonged occupation of the Hawaiian Kingdom by the United States since 1893, and the commission of war crimes and human rights violations that continue to take place with impunity, the Royal Commission of Inquiry was established by the Council of Regency on April 17, 2019. The Council of Regency represented the Hawaiian Kingdom at the Permanent Court of Arbitration in Larsen v. Hawaiian Kingdom, PCA case no. 1999-01, from 1999-2001. The Royal Commission’s mandate is to “ensure a full and thorough investigation into the violations of international humanitarian law and human rights within the territorial jurisdiction of the Hawaiian Kingdom.”
Dr. David Keanu Sai was appointed as Head of the Royal Commission and he has commissioned recognized experts in various fields of international law who are the authors of chapters 3, 4 and 5 of this publication. These experts include Professor Matthew Craven, University of London, SOAS; Professor William Schabas, Middlesex University London; and Professor Federico Lenzerini, University of Siena.
Its first 378 page publication, Royal Commission of Inquiry: Investigating War Crimes and Human Rights Violations in the Hawaiian Kingdom, provides information on the Royal Commission of Inquiry, Hawaiian Constitutional Governance, the United States Belligerent Occupation of the Hawaiian Kingdom, the Continuity of the Hawaiian Kingdom as a State, Elements of War Crimes committed in the Hawaiian Kingdom, and Human Rights violations and Self-determination. The Royal Commission will provide periodic reports of its investigation of war crimes committed by individual(s) that meet the constituent elements of mens rea and actus reus, and human rights violations.
There is no statute of limitation for war crimes but it is customary for individual(s) to be prosecuted for the commission of war crimes up to 80 years after the alleged war crime was committed given the life expectancy of individuals. As a matter of customary international law, States are under an obligation to prosecute individuals for the commission of war crimes committed outside of its territory or to extradite them for prosecution by other States or international courts should they enter their territory.
**The book is free of charge and authorization is given, in accordance with its copyright under Hawaiian law, to print in soft-cover or hard-cover so long as the content of the book is not altered or edited.
In response to over a century of the United States’ violations of international humanitarian law and the commission of war crimes with impunity that have occurred within the territory of the Hawaiian Kingdom, the acting Council of Regency established the Royal Commission of Inquiry (Commission), by proclamation, on April 17, 2019. The Commission was established by “virtue of the prerogative of the Crown provisionally vested in [the Council of Regency] in accordance with Article 33 of the 1864 Constitution, and to ensure a full and thorough investigation into the violations of international humanitarian law and human rights within the territorial jurisdiction of the Hawaiian Kingdom.”
The Commission’s mandate “shall be to investigate the consequences of the United States’ belligerent occupation, including with regard to international law, humanitarian law and human rights, and the allegations of war crimes committed in that context”—Article 1(2). To accomplish this mandate, Dr. David Keanu Sai”—Article 1(1), who currently serves as Minister of the Interior and Minister of Foreign Affairs ad interim, shall head the Commission and has been authorized to seek “recognized experts in various fields”—Article 3, whose opinions shall form the basis of the Commission’s reports.
The Commission shall first come out with a preliminary report that will provide the “geographical scope and time span of the investigation”—Article 1(2), and the identification of the specific war crimes to be investigated as well as a list of human rights recognized during belligerent occupations. The preliminary report will be followed by periodic reports that will identify the perpetrators of these war crimes and human rights violations. These periodic reports will have the evidential basis of mens rea and actus reus that have a direct nexus to the elements that constitute a particular war crime(s) as provided in the legal opinion of Professor William Schabas. War crimes have no statute of limitations, and, for those war crimes that are recognized under customary international law, States are obligated to prosecute perpetrators of war crimes under its universal jurisdiction.
These reports “will be presented to the Council of Regency, the Contracting Powers of the 1907 Hague Convention, IV, respecting the Laws and Customs of War on Land, the Contracting Powers of the 1949 Geneva Convention, IV, relative to the Protection of Civilian Persons in Time of War, the Contracting Powers of the 2002 Rome Statute, the United Nations, the International Committee of the Red Cross, and the National Lawyers Guild”—Article 1(3).
The Commission has been convened with experts in international law in the fields of State continuity, humanitarian law, human rights law and self-determination of a people of an existing State under belligerent occupation. These experts authored legal opinions for the Commission, which include: Professor Matthew Craven, University of London SOAS, School of Law; Professor William Schabas, Middlesex University London, School of Law; and Professor Federico Lenzerini, University of Siena (Italy), Department of Political and International Sciences. Dr. Sai, who is also from the University of Hawai‘i, will also provide his expertise in the legal and political history of Hawai‘i.
Dr. David Keanu Sai, Memorandum—Hawaiian Constitutional Governance (2019).
Dr. David Keanu Sai, Memorandum—United States Belligerent Occupation of the Hawaiian Kingdom (2019).
Professor Matthew Craven, Legal Opinion—Continuity of the Hawaiian Kingdom under international law (2002).
Professor William Schabas, Legal Opinion—War crimes related to the United States occupation of the Hawaiian Kingdom since 17 January 1893 (2019).
Professor Federico Lenzerini, Legal Opinion—International Human Rights Law and Self-Determination of Peoples Related to the United States Occupation of the Hawaiian Kingdom since 17 January 1893 (2019)
WAILUKU, Hawaii – In her second letter to University of Hawaii President David Lassner, Maui County Councilmember Tamara Paltin has reiterated her concern over what appears to be the invalidity of General Lease S-4191, originally granted to University of Hawaii by the Board of Land and Natural Resources in 1968 and now subleased to TMT.
President Lassner assured Paltin in his July 18th response to her July 12th letter that “the project has all approvals required by law.” However, his brief correspondence did not address the concerns for native tenant rights and the war crime of destruction of property presented in Paltin’s original letter.
Councilmember Paltin reminded President Lassner that the general public’s understanding of Hawaii’s legal and political history has evolved significantly since the lease was originally granted to the University of Hawaii. In her latest letter, Paltin has suggested that the information that has come to light since 1968, including that found in the Apology Resolution of 1993, sets the general lease in a new context.
Referencing this new understanding of Hawaii’s legal history, Paltin wrote, “The United States Congress, in its Apology Resolution in 1993 (107 Stat. 1512), admitted…the so-called transfer of Hawaiian government and crown lands, which included the ahupua‘a of Ka‘ohe, to the United States in 1898, was done ‘without the consent of or compensation to the Native Hawaiian people of Hawai‘i or their sovereign [Hawaiian Kingdom] government.’” Therefore, because the transfer of property occurred without consent, Paltin continued, the sublease to TMT is invalid.
Councilmember Paltin once again requested that President Lassner have the University’s legal counsel review the assessment of the situation presented in her original letter and defend the validity of the general and sublease.
A full copy of Councilmember Tamara Paltin’s 07/26/19 letter to UH President Lassner can be located at mauicounty.us/paltin/.
Today is July 31st which is a national holiday in the Hawaiian Kingdom called “Restoration day,” (La Ho‘iho‘i) and it is directly linked to another holiday observed on November 28th called “Independence day” (La Kuoko‘a). 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.