Category Archives: National

Denationalization through Americanization

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John_StevensOn November 20, 1892, U.S. Diplomat John Stevens assigned to Hawai‘i stated in a confidential dispatch to U.S. Secretary of State John Foster, we must “Americanize the islands, assume control of the ‘Crown lands,’ dispose of them in small lots for actual settlers and freeholders for the raising of coffee, oranges, lemons, bananas, pineapples, and grapes, and the result soon will be to give permanent preponderance to a population and a civilization which will make the islands like southern California, and at no distant period convert them into gardens and sanitariums, as well as supply stations for American commerce, thus bringing everything here into harmony with American life and prosperity. To postpone American action many years is only to add to present unfavorable tendencies and to make future possession more difficult.”

After seizing the Hawaiian Islands during the Spanish-American War, the United States initiated a formal policy of denationalization through Americanization throughout the Hawaiian Kingdom’s public schools system. Private schools followed the policy. In 1906, the formal policy was initiated to not only obliterate the national consciousness of the Hawaiian Kingdom in the minds of the children, but to also conceal the blatant violation of Hawai‘i’s sovereignty as a neutral state and the international law of occupation. This program was called “Programme for Patriotic Exercises in the Public Schools.” The purpose of the program was to inculcate American patriotism in the minds of the children and forced them to speak English and not Hawaiian.

Patriotic Exercises_TH

According to the Programme, “The teacher will call one of the pupils to come forward and stand at one side of the desk while the teacher stands at the other. The pupil shall hold an American flag in military style. At second signal all children shall rise, stand erect and salute the flag, concluding with the salutation, ‘We give our heads and our hearts to God and our Country! One Country! One Language! One flag!’”

In 1907, Harper’s Weekly magazine covered the Americanization taking place at Ka‘ahumanu and Ka‘iulani Public Schools, which has students from the first to eighth grade. When the reporter visited Ka‘iulani Public School, he documented the policy being carried out and took a picture of the 614 school children saluting the American flag. He wrote:

“At the suggestion of Mr. Babbitt, the principal, Mrs. Fraser, gave an order, and within ten seconds all of the 614 pupils of the school began to march out upon the great green lawn which surrounds the building. Hawaii differs from all our other tropical neighbors in the fact that grass will grow here. To see beautiful, velvety turf amid groves of palms and banana trees and banks of gorgeous scarlet flowers gives a feeling of sumptuousness one cannot find elsewhere.

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 countermarched 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.

Children_Salute_1907

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

‘We give our heads and our hearts to God and our Country! One Country! One Language! One Flag!’

The last six words were shot out with a force that was explosive. The tone, the gesture, the gaze fixed reverently upon the flag, told their story of loyal fervor. And it was apparent that the salute was given as spontaneously and enthusiastically by the Japanese as by any of the other children. There were hundreds of them in the throng, and their voices rang out as clearly as any others, their hands raised in unison. The coldest clod of a man who sees the children perform this act of reverence must feel a tightening at the throat, and it is even more affecting to see these young atoms from all the world actually being fused in the crucible from which they shall issue presently as good American citizens.”

Under customary international law, Americanization is a war crime of attempting to denationalize the inhabitants of an occupied territory. Germans and Italians were prosecuted for the same war crime after World War II for implementing a systematic plan of Germanization and Italianization in occupied territories.

Indictment_Cover

Count_III

Germanization

Since the program began, Americanization had become so pervasive and institutionalized throughout Hawai‘i, that the national consciousness of the Hawaiian Kingdom was nearly obliterated, but for the institutional recovery of the Hawaiian language and the resurrection of diligent historical research that has begun to uncover the true status of the Hawaiian Kingdom as an independent state under an illegal and prolonged occupation. This revelation is reconnecting Hawai‘i to the international community and its treaty partners regarding the violations of rights and war crimes committed against the citizens and subjects of foreign states who have visited, resided or have done business in the Hawaiian Islands.

Lili‘uokalani_3In 1898, Queen Lili‘uokalani, in her autobiography “Hawai‘i’s Story by Hawai‘i’s Queen,” told what was to come. She wrote,

“Oh, honest Americans, as Christians hear me for my down-trodden people! Their form of government is as dear to them as yours is precious to you. Quite as warmly as you love your country, so they love theirs. With all your goodly possessions, covering a territory so immense that there yet remain parts unexplored, possessing islands that, although near at hand, had to be neutral ground in time of war, do not covet the little vineyard of Naboth’s, so far from your shores, lest the punishment of Ahab fall upon you, if not in your day, in that of your children, for ‘be not deceived, God is not mocked.’ The people to whom your fathers told of the living God, and taught to call ‘Father,’ and whom the sons now seek to despoil and destroy, are crying aloud to Him in their time of trouble; and He will keep His promise, and will listen to the voices of His Hawaiian children lamenting for their homes.”

State of Hawai‘i is an Armed Force Under International Law

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Seal_of_the_State_of_HawaiiThe State of Hawai‘i has evaded a precise definition of standing in international law because it has pretended to be a government within the United States, when in fact it is a private organization outside of the United States. The U.S. Congress created the State of Hawai‘i in 1959 by a Congressional Act, but since Congress is limited to U.S. territory it could not vest the State of Hawai‘i with governmental powers outside of its territory in an occupied state. The State of Hawai‘i is a private organization that pretends to be a government.

While the State of Hawai‘i cannot claim to be a government de jure (lawful government) or de facto (government of a successful revolution), customary international law defines it as an Armed Force for the occupying state. Military manuals define Armed Forces as “organized armed groups which are under a command responsible to that party for the conduct of its subordinates (Jean-Marie Henckaerts and Louise Doswald-Beck, Customary International Humanitarian Law, vol. I, 14 (2009).” According to Henckaerts and Doswald-Beck, “this definition of armed forces covers all persons who fight on behalf of a party to a conflict and who subordinate themselves to its command (Id., p. 15),” and that this “definition of armed forces builds upon earlier definitions contained in the Hague Regulations and the Third Geneva Convention which sought to determine who are combatants entitled to prisoner-of-war status (Id.).” Article 1 of the 1907 Hague Convention, IV, provides that

“The laws, rights, and duties of war apply not only to armies, but also to militia and volunteer corps fulfilling the following conditions: (1) To be commanded by a person responsible for his subordinates; (2) To have a fixed distinctive emblem recognizable at a distance; (3) To carry arms openly; and (4) To conduct their operations in accordance with the laws and customs of war.”

The laws and customs of war during occupation applies only to territories that come under the authority of either the occupier’s military or an occupier’s Armed Force, such as the State of Hawai‘i, and that the “occupation extends only to the territory where such authority has been established and can be exercised (1907 Hague Convention, IV, Article 42).” According to Ferraro, “occupation—as a species of international armed conflict—must be determined solely on the basis of the prevailing facts (Tristan Ferraro, Determining the beginning and end of an occupation under international humanitarian law, 94 (no. 885) Int’l Rev Red Cross 133, 134 (Spring 2012).” Although unlawful, it is a fact that the United States created the State of Hawai‘i through congressional action and signed into law by its President, Dwight D. Eisenhower, in 1959. It is also a fact that the United States approved the constitution of the State of Hawai‘i that provides for its organizational structure.

As an Armed Force, the State of Hawai‘i established its authority over 137 islands (“Hawai‘i Facts and Figures” (December 2014), State of Hawai‘i Department of Business, Economic Development & Tourism), “together with their appurtenant reefs and territorial and archipelagic waters (State of Hawai‘i Constitution, Article XV, section 1.” These islands include the major islands of Hawai‘i, Maui, O‘ahu, Kaua‘i, Molokai, Lana‘i, Ni‘ihau, and Kaho‘olawe. It is the effectiveness of the control exercised by the State of Hawai‘i over this territory, as an Armed Force for the United States, which triggers the application of occupation law.

Allegiance to the United States as the Occupying State

The State of Hawai‘i, as an Armed Force, bears its allegiance to the United States where its officials, to include its Governor, take the following oath of office: “I do solemnly swear (or affirm) that I will support and defend the Constitution of the United States, and the Constitution of the State of Hawaii, and that I will faithfully discharge my duties as […] to best of my ability (Id., Article XVI, sec. 4).”

To be commanded by a person responsible for his subordinates

A Governor who is elected by U.S. citizens in Hawai‘i is head of the State of Hawai‘i. The Governor is responsible for the execution of its laws from its legislature and to carry out the decisions by its courts. The Governor is also the “commander in chief of the armed forces of the State and may call out such forces to execute the laws, suppress or prevent insurrection or lawless violence or repel invasion (Id., Article V, sec. 5).” The Governor’s subordinates include all “executive and administrative offices, departments and instrumentalities of the state government (Id., sec. 6).”

To have a fixed distinctive emblem recognizable at a distance

According to its constitution, “The Hawaiian flag shall be the flag of the State (Id., Article XV, sec. 3).”

To carry arms openly

Law enforcement officers of the State of Hawai‘i, to include the Sheriff’s Division, Department of Land and Natural Resources, and the police of the State’s four Counties (Hawai‘i, Maui, Honolulu, and Kaua‘i), all openly carry arms. Also included are the State of Hawai‘i’s Army National Guard and Air National Guard who openly carry arms while in tactical training.

To conduct their operations in accordance with the laws and customs of war

As the Governor is the commander in chief of the State’s Armed Forces, and is responsible for the suppression or prevention of insurrection or lawless violence, as well as repelling an invasion, the State of Hawai‘i is capable of conducting operations in accordance with the laws and customs of war during occupation. The State of Hawai‘i Army and Air National Guard are trained in the laws and customs of war.

Continuance of Hawaiian Treaties with Foreign States

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Denmark TreatyThe first friendship treaty the Hawaiian Kingdom entered into as a sovereign state was with Denmark on October 19, 1846. Other friendship treaties followed with Hamburg, succeeded by Germany, (January 8, 1848), the United States of America (December 20, 1849), the United Kingdom (July 10, 1851), Bremen, succeeded by Germany, (March 27, 1854), Sweden-Norway, now separate states, (April 5, 1855), France (September 8, 1858), Belgium (October 4, 1862), Netherlands (October 16, 1862), Luxembourg (October 16, 1862), Italy (July 22, 1863), Spain (October 9, 1863), Switzerland (July 20, 1864), Russia (June 19, 1869), Japan (August 19, 1871), Austria-Hungary, now separate states (June 18, 1875), Germany (March 25, 1879), and Portugal (May 5, 1882). Neither the Hawaiian Kingdom nor any of these states expressed any intention to terminate any of the treaties according to the provisions provided in each of the treaties, and therefore remain in full force and effect.

These treaties have the “most favored nation” clause, and secure the equal application of commercial trade in the Hawaiian Islands to all treaty partners. These treaties have all been violated by the United States through the unlawful imposition of the Merchant Marine Act (1920)—also known as the Jones Act—that has secured commercial control over the seas to United States citizens, which has consequently placed the citizens of these foreign states at a commercial disadvantage (46 U.S.C. §883-1). The clause is designed

“to establish the principle of equality of international treatment. The test of whether the principle is violated by the concession of advantages to a particular nation is not the form in which such concession is made, but the condition on which it is granted; whether it is given for a price, or whether this price is in the nature of a substantial equivalent, and not a mere evasion (Black’s Law Dictionary 1013 (6th ed. 1990).”

Treaties “are legally binding, because there exists a customary rule of International Law that treaties are binding. The binding effect of that rule rests in the last resort on the fundamental assumption, which is neither consensual nor necessarily legal, of the objectively binding force of International Law (L. Oppenheim, International Law, vol. 1, 794 (7th ed. 1948),” states Oppenheim. “No distinction should be made between more or less important parts of a treaty as regards its execution. Whatever may be the importance or the insignificance of a part of a treaty, it must be executed in good faith, for the binding force of a treaty covers all its parts and stipulations equally (Id., 829).”

Hawai‘i Never Annexed – Limits of U.S. Congressional Legislation

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Sources of international law are, in rank of precedence: international conventions, international custom, general principles of law recognized by civilized nations, and judicial decisions and the teachings of the most highly qualified publicists of the various nations (Statute of the International Court of Justice, Article 38). The legislation of every state, to include the United States of America and its Congress, is not a source of international law, but rather a source of municipal law of the state whose legislature enacted it. In The Lotus, the International Court stated, “Now the first and foremost restriction imposed by international law upon a State is that—failing the existence of a permissive rule to the contrary—it may not exercise its power in any form in the territory of another State (Lotus, PCIJ, ser. A no. 10, 18 (1927).” According to Crawford, derogation of this principle will not be presumed, which he refers to as the Lotus presumption (James Crawford, The Creation of States in International Law 34 (2d ed. 2006).

Since Congressional legislation, whether by a statute or a joint resolution, has no extraterritorial effect, it is not a source of international law, which “governs relations between independent States (Lotus, at 18).” The U.S. Supreme Court has always adhered to this principle. The U.S. Supreme Court stated,

“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 operations of the nation in such territory must be governed by treaties, international understandings and compacts, and the principles of international law (United States v. Curtiss Wright Export Corp., 299 U.S. 304, 318 (1936).”

1936 U.S. Supreme Court

The Supreme Court also concluded, “The laws of no nation can justly extend beyond its own territories except so far as regards its own citizens. They can have no force to control the sovereignty or rights of any other nation within its own jurisdiction (The Apollon, 22 U.S. 362, 370 (1824).” Adhering to this principle, the U.S. Attorney General’s Office of Douglas_KmiecLegal Counsel was befuddled by Congress’s annexation of the Hawaiian Islands by a joint resolution. In a 1988 legal opinion, the Office of Legal Counsel addressed the annexation of the Hawaiian Islands by joint resolution. Douglas Kmiec, Acting Assistant Attorney General, authored the memorandum for Abraham D. Sofaer, legal advisor to the U.S. State Department. After covering the limitation of Congressional authority and the objections made by members of the Congress, Kmiec concluded,

“Notwithstanding these constitutional objections, Congress approved the joint resolution and President McKinley signed the measure in 1898. Nevertheless, whether this action demonstrates the constitutional power of Congress to acquire territory is certainly questionable. … 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 (Douglas W. Kmiec, Legal Issues Raised by Proposed Presidential Proclamation To Extend the Territorial Sea, 12 Opinions of the Office of Legal Counsel 238, 252 (1988).”

This 1988 opinion clearly undermines the claim of sovereignty over the Hawaiian Islands by the United States. If the Attorney General’s Office of Legal Counsel is “unclear” as to the authority of Congress to annex the Hawaiian Islands, it surely cannot be considered as a valid demonstration of legal title by the United States as the successor to the Hawaiian Kingdom under international law. If the United States is not the successor, then the presumption of the Hawaiian Kingdom’s existence as an independent state is maintained.

Hawai‘i’s First Armed Conflict with the United States

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Peace PalaceIn 2001, the Permanent Court of Arbitration acknowledged that, “in the nineteenth century the Hawaiian Kingdom existed as an independent State recognized as such by the United States of America, the United Kingdom and various other States, including by exchanges of diplomatic or consular representatives and the conclusion of treaties (Larsen v. Hawaiian Kingdom, 119 Int’l L. Rep. 566, 581 (2001).” As an independent state, the Hawaiian Kingdom was a subject of international law, which prohibited intervention in its domestic affairs by other states. According to Brownlie,

“The principal corollaries of the sovereignty and equality of states are: (1) a jurisdiction, prima facie exclusive, over a territory and the permanent population living there; (2) a duty of non-intervention in the area of exclusive jurisdiction of other states; and (3) the dependence of obligations arising from customary law and treaties on the consent of the obligor (Ian Brownlie, Principles of Public International Law 287 (4th ed. 1990).”

Should a state seek to merge into another state, international law only allows it through cession. “Cession of State territory is the transfer of sovereignty over State territory by the owner-State to another State (L. Oppenheim, International Law, vol. 1, 499 (7th ed. 1948),” says Oppenheim. “The only form in which a cession 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 (Id., at 500).” Through peaceful negotiations, the United States acquired by treaty, the former territories of the French in Louisiana in 1803 (8 U.S. Stat. 200), the Spanish in Florida in 1819 (8 U.S. Stat. 252), the British in Oregon in 1846 (9 U.S. Stat. 869), the Russian in Alaska in 1867 (15 U.S. Stat. 539), and the Danish in the Virgin Islands in 1916 (39 U.S. Stat. 1706). The United States acquired, through treaties of conquest, the former territories of the British in the Americas in 1783 (8 U.S. Stat. 80), the Mexicans in territory north of the Rio Grande in 1848, which includes Texas (9 U.S. Stat. 922), and the Spanish in the Philippines, Guam and Puerto Rico in 1898 (30 U.S. Stat. 1754). Hawai‘i is the only territory the United States claims without a treaty.

International law also distinguishes between the state and its government, where the latter is the physical manifestation that exercises the sovereignty of the former. Hoffman emphasizes that a government “is not a State any more than 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 (Frank Sargent Hoffman, The Sphere of the State or the People as a Body-Politic 19 (1894).” Wright also concluded, “international law distinguishes between a government and the state it governs (Quincy Wright, The Status of Germany and the Peace Proclamation, 46(2) Am. J. Int’l L. 299, 307 (Apr. 1952).” Therefore, a sovereign State would continue to exist despite its government being overthrown by military force. “There is a presumption that the State continues to exist, with its rights and obligations…despite a period in which there is no, or no effective, government,” explains Crawford. “Belligerent occupation does not affect the continuity of the State, even where there exists no government claiming to represent the occupied State (James Crawford, The Creation of States in International Law 34 (2d ed. 2006).” Crawford states,

“The occupation of Iraq in 2003 illustrated the difference between ‘government’ and ‘State’; when Members of the Security Council, after adopting SC res. 1511, 16 October 2003, called for the rapid ‘restoration of Iraq’s sovereignty,’ they did not imply that Iraq had ceased to exist as a State but that normal governmental arrangements should be restored (Id.).”

The Hawaiian Kingdom Civil Code provides, “The laws are obligatory upon all persons, whether subjects of this kingdom, or citizens or subjects of any foreign State, while within the limits of this kingdom, except so far as exception is made by the laws of nations in respect to Ambassadors or others. The property of all such persons, while such property is within the territorial jurisdiction of this kingdom, is also subject to the laws (Hawaiian Kingdom Civil Code, §6 (Compiled Laws 1884).” The Hawaiian Kingdom Penal Code defines treason “to be any plotting or attempt to dethrone or destroy the King, or the adhering to the enemies thereof, giving them aid and comfort, the same being done by a person owing allegiance to this kingdom (Hawaiian Kingdom Penal Code, Chapter VI, sec. 1 (1869).” For any person committing the crime of treason “shall suffer the punishment of death; and all his property shall be confiscated to the government (Id., at sec. 9).”

USS_Boston_landing_force,_1893

On January 16, 1893, the United States intervened in the internal affairs of the kingdom when its diplomat—Minister John Stevens, ordered the landing of U.S. troops to actively participate in the treasonous take over of the Hawaiian government. The following day, U.S. troops forcibly removed the executive Monarch—Queen Lili’uokalani, and her Cabinet of four ministers, and replaced them with insurgents led by Hawai‘i Supreme Court Judge Sanford Dole. The insurgents’ proclamation of January 17, 1893 stated:

“All officers under the existing Government are hereby requested to continue to exercise their functions and perform the duties of their respective offices, with the exception of the following named person: Queen Liliuokalani, Charles B. Wilson, Marshal, Samuel Parker, Minister of Foreign Affairs, W.H. Cornwell, Minister of Finance, John F. Colburn, Minister of the Interior, Arthur P. Peterson, Attorney-General, who are hereby removed from office. All Hawaiian Laws and Constitutional principles not inconsistent herewith shall continue in force until further order of the Executive and Advisory Councils (Robert C. Lydecker, Roster Legislatures of Hawaii 188 (1918).”

Oath_Provisional_Gov

Once the regime change was effected, all government officers and employees were forced to sign oaths of allegiance or face termination or arrest. This being done under the oversight of U.S. troops after Minister Stevens declared Hawai‘i to be an American Protectorate on February 1, 1893. The purpose of the regime change was for the provisional government to cede, by treaty, Hawai‘i’s sovereignty and territory to the United States.

One month after the treaty of annexation was signed in Washington, D.C., on February 14, 1893, under President Benjamin Harrison and submitted to the Senate for ratification, President Grover Cleveland, Harrison’s successor, withdrew the treaty and initiated an investigation into the overthrow of the Hawaiian Government. President Cleveland concluded that the provisional government was neither de facto nor de jure, but self-declared (United States House of Representatives, 53d Cong., Executive Documents on Affairs in Hawai‘i: 1894-95, 453 (Government Printing Office 1895), and the U.S. “military demonstration upon the soil of Honolulu was itself an act of war (Id., at 451).” The President then notified the Congress that he began executive mediation with the Queen to reinstate her and her Cabinet of ministers on condition she would grant amnesty to the insurgents. The first of several meetings were held at the U.S. Legation in Honolulu on November 13, 1893 (Id., at 1241-43). An agreement was reached on December 18, 1893 (Id., at 1269-73), but President Cleveland was unable to get Congressional authorization for the use of force in order to redeploy the troops to Hawai‘i. The agreement was not carried out. This executive agreement is recognized under international law as a treaty.

Oath_Republic

On July 4, 1894, the insurgency declared the Provisional Government to be the Republic of Hawai‘i and continued to have government officers and employees sign oaths of allegiance under threat by American mercenaries who were employed by the insurgency. The proclamation of the insurgents stated,

“it is hereby declared, enacted and proclaimed by the Executive and Advisory Councils of the Provisional Government and by the elected Delegates, constituting said Constitutional Convention, that on and after the Fourth day of July, A.D. 1894, the said Constitution shall be the Constitution of the Republic of Hawaii and the Supreme Law of the Hawaiian Islands (Lydecker, at 225).”

Lili‘uokalani_3On June 17, 1897, the day after a second treaty of annexation was signed in Washington, D.C., under President William McKinley, Cleveland’s successor; Queen Lili‘uokalani submitted a formal protest to the U.S. State Department. Her protest stated,

“I declare such a treaty to be an act of wrong toward the native and part-native people of Hawaii, an invasion of the rights of the ruling chiefs, in violation of international rights both toward my people and toward friendly nations with whom they have made treaties, the perpetuation of the fraud whereby the constitutional government was overthrown, and, finally, an act of gross injustice to me.”

President McKinley ignored the protest and submitted the treaty to the Senate for ratification. Additional protests were filed with the Senate from the people, which included a 21,269 signature-petition of members and supporters of the Hawaiian Patriotic League protesting the annexation of Hawai‘i. By March of 1898, the treaty is dead after the Senate was unable to garner enough votes for ratification.

Mauna Kea Protectors Persevere

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Over 700 protectors are victorious in preventing the TMT from resuming construction on the summit of Mauna Kea

Hilo, Hawaii (PRWEB) July 01, 2015. At approximately 12:30pm on Wednesday June 24th shouts of joy could be heard two miles away as Goodfellow Bros., Inc. with their escort of Department of Land and Natural Resources and Hawaiʻi County Police gave up their attempt to reach the summit of Mauna Kea to resume construction of the TMT (30 meter telescope). After spending over five hours to move the convoy of trucks and police officers two miles through dozens of Aloha Checkpoints, or lines of people in pule, oli, and hula, the convoy gave up and turned around after large rocks and boulders were discovered blocking the road above the last line of protectors. Pule, oli, and hula mean prayer, spiritual chant, and religious dance respectively.

Mauna Kea Protectors 1

12 protectors were arrested as the Goodfellow Bros., Inc. pushed through the dozens of Aloha Checkpoints adding to the 31 protectors arrested on April 2nd. The number of arrests Wednesday was relatively low given the number of protectors because according to Kahookahi Kanuha, their strategy was to not get arrested at the Aloha Checkpoints.

Kanuha, a protector of Mauna a Wākea who was one of the 31 arrested on April 2, 2015 and one of the 12 arrested June 24th (State of Hawai‘i v. Chase Kahookahi Kanuha, criminal no. 3DCW-15-0001042, Third Circuit Court, State of Hawai‘i), stated, “We will not allow them to further desecrate our mountain. We are not fazed by TMT’s decision and we are not fazed by the presence of law enforcement. We are also not in this for just one day. We are in this for the long haul and will protect our mountain until its safety is ensured no matter how long it takes. We will forever prevent the building of the TMT upon Mauna a Wākea until the very last aloha ʻāina lives.” Aloha ʻĀina in the Hawaiian language is patriot.

Mauna Kea Protectors 2

“The push to build the TMT telescope has also educated the public of Hawai‘i true history as a neutral country that has been under an illegal and prolonged occupation by the United States since the Spanish-American War,” continues Kanuha. “The closest parallel to Hawai‘i occupation as a neutral country would not take place until 16 years later when the Germans occupied the neutral country of Luxemburg in 1914 when World War I broke out. Hawaiʻi is the longest occupation in the history of international law.”

In 2001, the Permanent Court of Arbitration in The Hague, Netherlands, acknowledged that, “in the nineteenth century the Hawaiian Kingdom existed as an independent State recognized as such by the United States of America, the United Kingdom and various other States, including by exchanges of diplomatic or consular representatives and the conclusion of treaties.” (Larsen/Hawaiian Kingdom http://www.pca-cpa.org/showpage.asp?pag_id=1159). Unable to pass a treaty of annexation because of diplomatic protests by the late Queen Lili‘uokalani and by Hawaiian subjects people who signed a signature petition against annexation that numbered 21,269, (over 95% of the voters) the United States passed a congressional law to seize Hawai‘i during the war with Spain so they could establish a naval base at Pearl Harbor and build up the islands as a military outpost (The Kue Petition and the joint resolution of annexation). The Congress justified this action as a military necessity. Today, the U.S. military controls nearly 20% of the islands.

Mauna Kea Protectors 3

“Since the occupation began, our great-grandparents and grandparents have been brainwashed into believing a false history that we are Americans and that Hawai‘i is a part of the United States, but we now know the truth. Our generation is now learning the correct history that is now being taught in preschools, middle schools, high schools, and in the colleges. We now know that Congress cannot pass a law annexing another country, no more than Congress can pass a law today annexing Canada. We now know that we’ve been under an illegal occupation that has been disguised through lies that Hawai‘i is the 50th State of the United States. And we now know that we are protected by international law and that the destruction of our sacred mountain and the arrests of the protectors are war crimes under the Hague and Geneva Conventions,” also states Kanuha.

After Kanuha reported war crimes have been committed by TMT to Canadian authorities in Ottawa on May 13, 2015, Constable Michael Johnson of the RCMP’s Sensitive and International Investigations unit assured Kanuha that they will initiate a preliminary investigation. More information can be found in this KITV report.

“We are ready for this challenge,” Kanuha said. “The more we struggle the stronger we become. TMT has chosen the wrong country, the wrong time and the wrong people. The TMT will not be built upon Mauna a Wākea because the people and international law will not allow it. We will win. We have no other option.”

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Photos generously provided with permission by Darren Miller Photography

For the latest updates and news directly from the protectors on Mauna a Wākea please visit our blog at https://maunaawakea.com.

Kuʻuipo Freitas
1-808-769-2470
kuuipomana@gmail.com

or

Kahoʻokahi Kanuha
1-808-936-4249
kahookahi@gmail.com

Truthout: Hawai‘i’s Legal Case Against the United States

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By Jon Letman, Truthout

La Kuokoa“You can’t spend what you ain’t got; you can’t lose what you ain’t never had.” – Muddy Waters

“How long do we have to stay in Bosnia, how long do we have to stay in South Korea, how long are we going to stay in Japan, how long are we going to stay in Germany? All of those: 50, 60 year period. No one complains.” – Sen. John McCain

Imagine if you grew up being told that you had been adopted, only to learn that you were, in fact, kidnapped. That might spur you to start searching for the adoption papers. Now imagine that you could find no papers and no one could produce any.

That’s how Dr. David Keanu Sai, a retired Army Captain with a PhD in political science and instructor at Kapiolani Community College in Hawaii, characterizes Hawaii’s international legal status. Since 1993, Sai has been researching the history of the Kingdom of Hawaii and its complicated relationship to the United States.

Over the last 17 years, Sai has lectured and testified publicly in Hawaii, New Zealand, Canada, across the US, at the United Nations and at the Permanent Court of Arbitration at The Hague on Hawaiian land issues on Hawaii’s international status and how Hawaii came to be regarded as a US territory and, eventually, the 50th state.

To explain why he and others insist that Hawaii is not now and never has been lawfully part of the United States, Sai presents an overview of Hawaii’s feudal land system and its history as an independent, sovereign kingdom prior to the overthrow of Queen Liliuokalani on January 16, 1893.

Sai likens his lectures to a scene in the film The Matrix in which the character Morpheus tells Neo, “Remember, all I’m offering is the truth. Nothing more.”

“You guys are going to swallow the little red pill and will find that what you thought you knew may not be what actually was,” Sai warns his audiences. Like The Matrix, which is an assumption of a false reality, Hawaii’s history needs to be reexamined through a legal framework, he says. “What I’ve done is step aside from politics and power and look at Hawaii not through an ethnic or cultural lens, but through the rule of law.”

“A lot of sovereignty groups assume they don’t have it. Sovereignty never left. We just don’t have a government.” – Dr. David Keanu Sai

Sai’s lectures review history from 1842, when the Hawaiian Kingdom under King Kamehameha III sent envoys to France, Great Britain and the United States to secure recognition of Hawaii’s sovereignty. US President John Tyler recognized Hawaiian independence on December 19, 1842, with France and Great Britain following in November of 1843. November 28 became recognized as La Kuokoa (Independence Day).

Over the next 44 years, Hawaiian independence was recognized by more than a dozen countries across Europe, Asia and the Pacific, with each establishing foreign embassies and consulates in Hawaii. By 1893, the Kingdom of Hawaii had opened 90 embassies and consulates around the world, including Washington, DC, with consul generals in San Francisco and New York. The United States opened its own embassy in Hawaii after entering into a treaty of friendship, commerce and navigation on December 20, 1849.

In 1854, in response to concerns about naval battles potentially being fought in the Pacific region during the Crimean war, King Kamehameha III declared Hawaii to be a neutral state, a “Switzerland of the Pacific.”

As recently as 2005, the 9th Circuit Court of Appeals acknowledged that in 1866, “the Hawaiian Islands were still a sovereign kingdom”; prior to that, in 2004, the Court referred to Hawaii as a “co-equal sovereign alongside the United States.” Likewise, in 2001, the Permanent Court of Arbitration at The Hague acknowledged in an arbitration award that “in the 19th century the Hawaiian Kingdom existed as an independent State recognized as such by the United States of America, the United Kingdom and various other States … .”

Hawaii’s fate changed forever on January 16, 1893 when, motivated by influential naval officer Alfred Thayer Mahan and the US Ambassador to Hawaii – with support from an expansionist US Congress wishing to extend its military presence into the Pacific – US troops landed on Oahu in violation of Hawaiian sovereignty and over the protest of both the Governor of Oahu and the Kingdom of Hawaii’s Minister of Foreign Affairs.

One day later, six ethnic European Hawaiian subjects, including Sanford Dole and seven foreign businessmen, under the name the “Citizen’s Committee of Public Safety,” with the protection of the US military, formally declared themselves to be the new provisional government of the Hawaiian Islands – effectively a bloodless coup.

This marriage of convenience between non-ethnic Hawaiian subjects who wished to operate their sugar cane businesses tariff-free in the American market and a US government and military seeking to advance its own position in the Pacific conspired to overthrow the government of a sovereign foreign nation, Sai tells his audiences.

One month later, members of a group claiming to be the new provisional government of Hawaii traveled to Washington, where they signed a “treaty of cession” which went from President Benjamin Harrison to the US Senate. Queen Liliuokalani’s protests to Harrison were ignored.

When the new US president Grover Cleveland assumed power, he was promptly presented with the Queen’s protest demanding an investigation of their diplomat and US troops, as well as of the coup. Cleveland, after withdrawing the treaty before it could be ratified by the Senate, initiated an investigation called the Blount Report. The investigation found that both the US military and the US Ambassador to Hawaii had violated international law and that the US was obliged to restore the government of the Hawaiian Kingdom to its pre-overthrow status.

In November of 1893, President Cleveland negotiated an agreement to fully restore the government of Queen Liliuokalani under the condition she grant amnesty to all involved in her overthrow. A formal declaration accepting Cleveland’s terms of restoration came from the queen in December 1893.

This executive agreement between President Grover Cleveland and Queen Liliuokalani, Sai says, is binding under both international and US federal law and precludes any other legal actions under the doctrine of estoppel. Yet the US Congress obstructed President Cleveland’s efforts to fulfill his agreement with the queen, just as a self-proclaimed provisional government named itself the “Republic of Hawaii.”

By the spring of 1897 Cleveland had left office, succeeded by President William McKinley. Soon after, representatives of the “Republic of Hawaii” attempted to fully cede all public, government and crown lands to the United States, even as Liliuokalani continued protesting to the US State Department.

In support of the queen and fighting attempts to cede Hawaii, some 38,000 Hawaiian subjects signed petitions against annexation, and by March of 1898, a second attempt to annex Hawaii failed.

Here things accelerate, Sai explains. With the outbreak of war with Spain in April 1898, the drive to expand US naval power into the Pacific to counter Spanish influence in the Philippines and Guam reached a new urgency.

Two weeks after declaring war on Spain, US Rep. Francis Newlands (D-Nevada) submitted a resolution calling for the annexation of Hawaii by the United States. Influential military figures like Rear Admiral Alfred T. Mahan and General John Schofield testified that the possession of Hawaii by the United States was of “paramount importance.” It was in this atmosphere that the Newlands Resolution moved from the House to the Senate and became a joint resolution which President McKinley signed, claiming to have successfully annexed the Hawaiian Islands.

On August 12, 1898, the Hawaiian flag was lowered, the American flag raised, and the Territory of Hawaii formally declared.

But Sai points out that a Congressional joint resolution is American legislation restricted to the boundaries of the United States. The key to Hawaii’s legal status, he says, remains with the 1893 executive agreement between two heads of state: President Grover Cleveland and Queen Liliuokalani.

Unlike other land acquisitions made by cession and voluntary treaties with the French, Spanish, British, Russia and the 1848 Guadalupe Hidalgo Treaty that ended the Mexican-American war, Sai notes there is no treaty of cession, and thus no ceded lands, by then-acting head of state Queen Liliuokalani.

Today, one hundred and seventeen years after US Marines landed on Oahu and helped coup leaders overthrow the Hawaiian Kingdom, what Sai calls “the myth of Hawaiian statehood” is perpetuated, indeed celebrated, on the third Friday of each August, as Statehood Day.

“America today can no more annex Iraq through a joint resolution than it could acquire Hawaii by joint resolution in 1898. Saddam Hussein’s government, the Baathist party … was annihilated by the United States. But by overthrowing the government, that did not also mean Iraq was overthrown as a sovereign state. Iraq still existed, but it did not have a government,” says Sai.

In his doctoral dissertation, Sai successfully argued that to date, under international laws, Hawaii is in fact not a legal territory of the Unites States, but instead a sovereign kingdom, albeit one lacking its own acting government.

The entity that overthrows a government, Sai says, bears the responsibility to administer the laws of the occupied state.

Sai says that despite what people have been led to believe, the Congressional joint resolution and US failed attempts to annex Hawaii are American laws limited to American territory. He stresses that the executive agreement of 1893 between President Cleveland and Hawaii’s Queen continues to take precedence over any other subsequent actions.

Sai says this all has the potential to completely alter any claims on public or private land ownership, all State of Hawaii government bodies and the presence and activities of the US military in Hawaii, specifically the US Pacific Command (PACOM), the preeminent military authority overseeing operations in the Pacific, Oceania and East Asia.

Among the potential impacts of Sai’s argument is the possibility that the United States’ oldest and arguably most important strategic power center (PACOM’s headquarters are at Camp Smith, near Pearl Harbor) is now facing a legal challenge and occupies territory of questionable legal status.

Sai has presented this information not only in arbitration proceedings at the Permanent Court of Arbitration at the World Court at the Hague and in a complaint filed with the UN Security Council, but in 2001, at the invitation of Lieutenant General James Dubik, before the officer’s corps of the 25th Infantry Division at Schoefield Barracks on Oahu.

After Sai’s presentation before some one hundred officers and their spouses, he says, “You could hear a pin drop. They knew what I was talking about — I didn’t have to say ‘war crimes.'” Sai cited the regulations on the occupation of neutral countries in Hague Convention No. 6.

University of Hawaii Press, which reviewed and approved Sai’s dissertation for publication, indicates Sai’s arguments have “profound legal ramifications.” Sai himself says the case calls into question the legal authority of Senator Daniel Inouye, President Obama and others. After all, both Daniel Inouye and Barack Obama were born in Hawaii which, Sai points out, is not a legal US territory.

On June 1, 2010, Sai advanced his case and filed a lawsuit with the US District Court for the District of Columbia naming Barack H. Obama, Hillary D. R. Clinton, Robert M. Gates, (now former) Governor Linda Lingle and Admiral Robert F. Willard of the US Pacific Command as defendants.

Sai cites the Liliuokalani assignment of executive power as a binding legal agreement which extends from President Cleveland to all successors, including President Obama and his administration, to administer Hawaiian Kingdom law prior to restoring the government.

In the suit, Sai seeks a judgment by the court to declare the 1898 Joint Resolution to provide for annexing the Hawaiian Islands to the United States to be in violation of Hawaiian sovereignty and unconstitutional under US law.

In November, Sai sought to add to the suit as defendants the ambassadors of 35 countries which he says unlawfully maintain consulates in Hawaii in violation of Hawaiian Kingdom law and treaties. These countries include China, India, Russia, Brazil, Australia, Japan and smaller nations like Kiribati, Palau and the tiny enclave of San Marino.

With such a bold case that challenges the very top tier of the United States government and military, it isn’t surprising that not everyone supports Sai’s approach. Some Hawaiian activists privately say Sai’s efforts have the potential to adversely impact other forms of federal recognition such as the Akaka Bill, while others express concerns that such a lawsuit could be at best ineffective and, at worst, result in bad laws.

“In the creation of a society, it’s not only historical justification upon which we need to build Hawaiian sovereignty. We need to bring about better quality of life after independence returns.” – Poka Laenui

Poka Laenui, chairman of the Native Hawaiian Convention, an international delegation of Hawaiians which examines the issues of Hawaiian sovereignty and self-governance, says he does not dispute Sai’s historical claims, nor does he disagree that the US occupies the Hawaiian Islands in violation of international law. He says Sai has made a “very positive contribution.”

He does, however, suggest that Sai’s efforts toward deoccupation could go further or be more inclusive. “I believe what should also be included is decolonization. Along with [Sai’s] analysis, there are many more approaches that are legitimate.”

“Decolonization is a very viable position as well. I’m saying occupation and colonization are on the same spectrum, but colonization goes far deeper. It affects economics, education and value systems like we have in Hawaii today.”

“Hawaii has been squarely named as a country that needs to be decolonized and the US has not followed the appropriate, very clear procedures already set out.” Laenui points out that the United States listed Hawaii as a territory to be decolonized in 1946 in the UN General Assembly Resolution 66 (1).

“We need not only to look at the historical, legal approach, but beyond that … we need to change the deep culture of Hawaii to build a better quality of life,” Laenui says.

Lynette Hiilani Cruz is president of the Ka Lei Maile Alii Hawaiian Civic Club and an assistant professor of anthropology at Hawaii Pacific University. She supports Sai’s efforts and says he provides a “dependable legal basis” for challenging the legality of US claims on Hawaii.

But she also points out there are native Hawaiians who, in spite of the history, are reluctant to associate themselves with the kind of legal challenge Sai is pursuing.

And while some would rather forget historical events, Cruz says, “It is our history, whether you like it or not.” Cruz suggests people visit Sai’s website <hawaiiankingdom.org> and study the original historical documents in order to better understand the basis for Sai’s legal claims.

Dr. Kawika Liu, an inactive attorney with a PhD in politics and a practicing physician, says, “I support many canoes going to the same destination. I’m just a little leery of potentially ending up in a Supreme Court that is extremely hostile to indigenous claims. From my perspective, having litigated a number of native Hawaiian rights cases, I am not sure Sai will make it past procedural matters.”

Liu believes Sai’s characterization of historical and political events is accurate, but says, “You can be very correct in the way you characterize history and still be shot down because of issues of jurisdiction.”

“We’re operating in the courts of the colonizer … and they have their own agenda, which is, to me, reinforcing US hegemony.”

Liu sees the greatest benefit of Sai’s work as raising awareness of the issue. “I think the more awareness that’s raised – eventually the change is going to come.”

One academic who thinks Sai is on the right track is Dr. Jon Kamakawiwoole Osorio, professor of Hawaiian studies at the University of Hawaii. Osorio specializes in the politics of identity in the Hawaiian Kingdom and the colonization of the Pacific and served on Sai’s dissertation committee.

He says Sai knows international law and the laws of occupation as they pertain to Hawaii as well as any academic in Hawaii today.

Yet he recognizes Sai has detractors – those who feel that any kind of interpretation which exalts Western law does a disservice to native people and institutions which thrived without those laws for millennia. Osorio also says that while arguing that Hawaii has a solid international case sounds really good, it doesn’t go very far if the US government simply refuses to acknowledge that case or respond in any way.

So does Osorio think Sai’s efforts are counterproductive or a waste of time?

“I don’t think that’s the case,” Osorio says. “I think most people believe Keanu Sai has really added a tremendous new perspective of the kingdom, lawmaking and the creation of constitutional law in Hawaii.”

He also believes Sai’s argument that sovereignty, once conferred, doesn’t disappear just because it is occupied by another country.

What Sai may be pursuing, Osorio suggests, is to push for a definitive stance by the US government which may take the form of a denial that Hawaiians can claim sovereignty.

“I think Sai’s attempt to push the US, to corner it and force it to acknowledge that it holds Hawaii only by raw power … is an important revelation that would have really important political ramifications.”

“Sai says our sovereignty is still intact. That has been a tremendous gift for the Hawaiian movement because it keeps many of us pursuing independence from the United States instead of simply settling for some other kind of status (such as the Akaka Bill) because we feel like we aren’t legally entitled to it,” Osorio says.

“The violence done against the Hawaiian kingdom at the end of the [19th] century was no less violent just because not a lot of people were killed,” Osorio says. “It violated our laws, it violated our trust, it violated the relationship between our people and our rulers and it continues to this day to stand between any kind of friendly relations between Hawaiians who know this history and the United States.

“Sai’s analysis helped many of us to understand more completely that we don’t have to think of ourselves as Americans — ever.”

Hawai‘i Island: La Ho‘iho‘i Ea (Restoration Day) Celebration

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Hawai‘i La Ho‘iho‘i Ea 2015

Kam IIIIn 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.”

PauletWhile 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 Admiral Thomasof 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.

Video: Kanaka Express Show on Hawai‘i’s Prolonged Occupation

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https://vimeo.com/129756298

Kanaka Express Host Kale Gumapac interviews Dr. Keanu Sai, Attorney Dexter Ka‘iama and Professor Kaleikoa Ka‘eo. The three being interviewed share their work regarding the prolonged occupation of the Hawaiian Kingdom and the movement to ultimately bring the American occupation to an end. The show was filmed at the Akaku studio in Kahului, Maui on May 20, 2015.

Alleviating the Confusion: Swiss Criminal Procedures In Light of Civil Law Tradition

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What people may not know is that Switzerland’s criminal procedures are very different from the United States. Switzerland operates under a “civil law tradition” while the United States operates under a “common law tradition” that came from the English common law because the original thirteen States of the United States were formerly British colonies. In contrast, the civil law has codes and the common law does not. Civil law countries provide legal codes that explain all matters that can be brought before the courts, the applicable procedure of criminal investigations, the punishment for crimes, and trial. Switzerland’s codes are the Swiss Criminal Code (SCC) and the Swiss Criminal Procedure Code (SCPC). Common law countries do not provide comprehensive codes, but rather rely on numerous statutes and precedence set by decisions of judges, which is called stare decisis.

A very good compare and contrast of the two legal systems can be found in Dr. Vivienne O’Connor’s publication “Common Law and Civil Law Traditions.”

Another contrast is that in common law countries, judicial proceedings are adversarial between the prosecutor and the defendant, with the judge merely serving as the referee. In civil law countries, the proceedings are not adversarial and the judges play an integral role in both the criminal investigation stage as well as the trial stage. Under Swiss law (Article 17, SCPC), as in most civil law countries, judges can conduct criminal investigations, in addition to the police and the prosecutor. In Switzerland, these judges are called investigating magistrates and have more expanded powers than the prosecutor or police. Once an investigating magistrate concludes the criminal investigation he/she can seek indictments, and then the evidence and interviews that were conducted would be turned over to another judge or set of judges who will preside over the criminal trial. Jury trial is a common law tradition and not civil law. There are no jury trials in civil law countries, which includes Switzerland.

According to Dr. O’Connor, “International treaties and conventions also are sources of law in civil law countries. Most civil law countries are ‘monist’ meaning that when the country ratifies a treaty, it automatically becomes part of domestic law. This means that a judge can automatically apply it and a party in court can rely on international law in proceedings. In some countries, the judge can declare a national law or provision to be invalid if it conflicts with an international treaty or convention that the country has ratified.”

The Swiss Criminal Code provides for the Federal Attorney General to conduct criminal investigations for war crimes, but their decisions are subject to review by the “objections authority” of the Swiss Federal Criminal Court if someone is objecting to “the procedural acts and decisions [of an investigating magistrate, prosecutor or police] not subject to appeal (Article 20, SCPC).” This was the role the objection chambers of the Swiss Federal Criminal Court held in the case of Mr. Kale Gumapac and the unnamed Swiss citizen who were alleging that war crimes were committed against them in the Hawaiian Islands.

Swiss Treaty

What is the significance of the Swiss Federal Criminal Court’s reciting of Gumapac’s invoking his rights as a Hawaiian subject under the 1864 Hawaiian-Swiss treaty, “which wasn’t cancelled”? At first, it may appear that the Court was merely reciting Gumapac’s position that the treaty wasn’t cancelled, but did Gumapac state or even imply that it was he who was stating that the treaty wasn’t cancelled, or was it the three-judge panel that made that conclusion. The Court in making specific reference to Gumapac’s amended complaint dated January 22, 2015, stated, “that, in addition, by way of a letter dated January 22, 2015, [Dr. Keanu] Sai, in the name of Kale Kepekaio Gumapac…contacted the office of the Federal Attorney General and requested that criminal proceedings against Josef Ackermann…, the former CEO of Deutsche Bank National Trust Company…be opened and in this connection invoked rights deriving from Art. 1 of the friendship treaty between the Swiss Confederation and the then Hawaiian Kingdom of July 20, 1864, which has not been cancelled.”

In order to determine whether it was Gumapac who made this statement or the Court we need to look at what was stated in the amended complaint.

Gumapac, by his attorney-in-fact Dr. Sai, amended the original complaint dated December 7, 2014. The amended complaint states that Gumapac’s “initial complaint was based on universal jurisdiction, but in light of the fact that Josef Ackermann, who served as the Chief Executive Officer for Deutsche Bank when the war crimes were committed against [Gumapac], is a Swiss citizen, Mr. Gumapac is amending his complaint to include active personality jurisdiction and is invoking his rights as a Hawaiian subject under Article 1 of the 1864 Hawaiian-Swiss Treaty, which provides: “Hawaiians shall be received and treated in every canton of the Swiss Confederation, as regards their persons and their properties, on the same footing and in the same manner as now or may hereafter be treated, the citizens of other cantons.”

Active personality jurisdiction is when the accused is a Swiss citizen, and universal jurisdiction is where the alleged war crime was committed outside of Swiss territory by non-Swiss citizens against non-Swiss citizens.

The amended complaint then follows, “Therefore, according to Articles 118 and 119 of the Swiss Criminal Procedure Code (S-CPC), Mr. Gumapac is expressly declaring that he has suffered grave harm and respectfully demands that your office initiate an immediate investigation into the war crime of pillaging committed by Josef Ackermann being a Swiss citizen residing within the territory of the Swiss Confederation.” Gumapac made no statement that the treaty wasn’t cancelled, but rather was operating on the premise that the treaty remained binding on the Swiss authorities that were obligated to treat Gumapac in the same manner as Swiss citizens are treated in any of the cantons.

The question of whether or not a treaty has or has not been cancelled is a question of fact and not a question of law. The treaty itself will provide the process by which it can be terminated. For the Swiss treaty, Article VIII requires notice of intention to terminate by either of the contracting countries, and once the other country receives the notice of termination the treaty will terminate in 12 months. In the absence of any notice of termination, the “treaty will continue obligatory.”

Another way a treaty can be cancelled is if one of the countries that is a party to the treaty, ceases to exist as a country under international law. Without the existence of one of the parties there can be no treaty, because a treaty, by definition, is an agreement between two or more States. Therefore, if the Hawaiian Kingdom were annexed by the United States under international law, it would have consequently cancelled the Hawaiian-Swiss Treaty and replaced it with the U.S.-Swiss Treaty. This was specifically stated in the 1898 U.S. Congressional joint resolution of annexation, which read, “The existing treaties of the Hawaiian Islands with foreign nations shall forthwith cease and determine, being replaced by such treaties as may exist, or as may be hereafter concluded, between the United States and such foreign nations.”

A joint resolution of Congress has no force and effect beyond U.S. territory and, as such, cannot have the power to cancel the treaty between Switzerland and the Hawaiian Kingdom. In other words, the only way to annex Hawai‘i and to cancel its treaty with Switzerland was for the United States to have a treaty with Hawai‘i that would have the effect of merging Hawai‘i into the United States. Only then would it have the effect of canceling the treaty with Switzerland. However, there is no treaty, but rather only a unilateral Congressional action.

When the Swiss Federal Criminal Court stated that the Hawaiian-Swiss treaty “wasn’t cancelled,” it was not a conclusion of law, but rather a conclusion of fact that supported Gumapac’s invoking of his rights under Article 1 of the treaty. In his report dated February 3, 2015, the Prosecutor, himself, also made the same conclusion regarding the status of the treaty. The report (German) (English translation) stated, “On January 22, 2015, Kale Kepekaio GUMAPAC confirmed in writing the accusations against Joseph ACKERMANN and in addition pointed out his rights stemming from Art. 1 of the friendship treaty between the SWISS CONFEDERATION and the then HAWAIIAN KING of July 20, 1864, which was never cancelled.”

Again this statement that the treaty was never cancelled was the Prosecutor’s conclusion and not Gumapac’s. Both the Prosecutor and the three-judge panel made the statement that the Hawaiian-Swiss Treaty wasn’t cancelled. Therefore, there is no dispute between the Swiss authorities and the war crime victims as to the treaty’s continued existence.

When the Court received the objection to the decision made by the Prosecutor on April 8, 2015, the President of the Objections Chamber ordered, by letter dated April 9, 2015, that the Prosecutor turn over all records of his investigation. The order stated, “In the matter mentioned above, a complaint against your decision not to engage of February 15, 2015 has been received at the Federal Criminal Court. You are requested to furnish the Federal Criminal Court right away with the records established in the abovementioned matter (including documents of receipt) with an index of the records.” This is a clear example of the civil law tradition where judges are involved in a criminal investigation. In common law countries such as the United States, there is no judicial oversight of a prosecutor’s decision to conduct a criminal investigation.

The three-judge panel of the Federal Criminal Court’s Objection Chambers would not have restated the allegations of war crimes in its April 28, 2015 decision unless the alleged war crimes met the statutory definition of war crimes under Swiss law. If not, it would have been deemed frivolous in this preliminary stage of the investigation and the Swiss Criminal Court would have dispensed with the criminal investigation and make no mention of the allegations. Nowhere in the decision did the three-judge panel state or even imply that the Prosecutor’s decision was going to be upheld.

Even more stunning, the decision specifically named Josef Ackermann, former CEO of Deutsche Bank, and officials of the State of Hawai‘i—Governor Neil Abercrombie, Lieutenant Governor Shan Tsutsui, Director of Taxation Frederik Pablo, and Deputy Director of Taxation Joshua Wisch. Under the civil law tradition, the decision by the Objections Chamber of the Federal Criminal Court is a part of the criminal investigation stage of these proceedings.

For the purposes of Swiss law, a war crime is defined as an international armed conflict, as between two or more States, even when occupation of the other State takes place without any armed resistance. The Hawaiian Kingdom was occupied by the United States on August 12, 1898, when the United States was waging war in the Spanish colonies of the Philippines and Guam. This was very similar and analogous to the German occupation of Luxemburg from 1914-1918 as it was waging war against France during World War I. Both the American occupation of Hawai‘i and the German occupation of Luxemburg took place without armed resistance.

From the decision (German) (translation to English), it appeared that the three-judge panel was prevented from reversing the Prosecutor’s decision because of a technicality, which was failure to submit the objection to the Court within the 10-day period allowed by law. In this case, Swiss law (Article 20, SCPC) allows the objections authority of the Swiss Federal Supreme Court’s Criminal Law Section to accept an objection to a decision made by “courts of the first instance,” which, in this case, is the three-judge panel of the Swiss Federal Criminal Court. Again, here is another example under the civil law tradition of having another level of judges overseeing a criminal investigation.

On May 29, 2015, the Clerk’s office of the objections authority of the Swiss Supreme Court’s Criminal Law Section accepted the objection, and assigned it case number 6B_563/2015. The Clerk’s office stated that the proceedings are against the Federal Criminal Court, Objections Chamber, as well as the Office of the Swiss Federal Attorney General. It further stated, “Possible procedural orders, as far as necessary, will follow.”

Big Island News Video: Kanuha Talks About Delivering War Crimes Complaint To Canada

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Big Island Video New Canada War Crimes Kanuha

HILO – On May 14, it was reported that a war crimes complaint was filed in Canada in connection with the planned Thirty Meter Telescope project on Mauna Kea. Since then, Kaho‘okahi Kanuha – one of the two individuals that made the international trip to deliver the complaint – returned to Hawaii. Kanuha is a spokesperson for the group that is blocking TMT from the summit of Mauna Kea. We spoke to him in Hilo on Saturday afternoon, May 16th.

The complaint was drafted by Kanuha’s attorney Dexter Kai’ama. Kanuha was accompanied by Dr. Keanu Sai, who drafted a detailed War Crimes Report at the request of Kai’ama. Shortly after the headline grabbing arrests that took place on the mountain on April 2, Big Island Video News spoke to both men.

One of the 31 arrested on Mauna Kea was Kanuha. Since then, his role in the movement has transformed as he takes on speaking engagements across the islands, although his position in regards to the TMT has not changed.

Since this interview was conducted, TMT announced Canada as a full partner in the project.

KITV 4 News: TMT Opponent Kaho‘okahi Kanuha files Formal War Crimes in Canada

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KITV War Crimes

Click here to view the KITV News clip that aired on Wednesday May 13, 2015.

HONOLULU—And there are no signs of slowing down for TMT opponents. In Canada earlier today, they filed formal war crimes complaints with the Canadian Justice Department.

Activist Kaho‘okahi Kanuha says the charges are for desecration of property, unlawful confinement, and being denied the right to a fair trial. The last two relates to the arrests of 31 protestors who blocked construction of the thirty-meter telescope.

Kaho‘okahi Kanuha in Canada stated: “We’re working off of the fact that Hawai‘i was never legally annexed by the United States of America. This has gotten international attention, world-wide attention, and the ramifications of the actions taking place on the mountain, are very, very, they’re huge.”

Kanuha says that filing initiates a preliminary inquiry into their complaints. He says if the Canadian Justice Department finds “probable cause”—it will launch a criminal investigation.