Join the NLG International Committee’s CLE program on Monday, Sept. 21, 2020, as part of the NLG Convention!
The four-hour CLE will take place at 9 am Pacific/12 pm Eastern time. To participate in the CLE, you must register for the NLG Convention. You can attend all Convention events as part of your registration – just follow the directions to create your schedule!
Register online: https://nlg.org/convention/
Please note, the NLG Convention is open to members and non-members! Sliding scale registration is available, with registration for the entire, all-digital convention beginning at $25 for NLG members and $50 for non-members. If you need a fee waiver in order to attend the CLE or the Convention as a whole, please contact email@example.com to request a fee waiver or reduction.
Four CLE credits are available for this program, with presentations on humanitarian and human rights law and the U.S. occupations of Hawai’i, Afghanistan and Iraq, and Israel’s occupation of Palestine. (CLE Credit will be given through the State Bar of CA. After the convention, the NLG will be emailing out attendance verification forms to all attendees.)
On January 17, 1893, the Hawaiian Kingdom was invaded and its government overthrown by the United States empire, beginning a 126-year occupation and unlawful annexation of the Pacific nation. On October 7, 2001, the United States invaded the Islamic Republic of Afghanistan, overthrew its government, and began a 19-year occupation of that Middle Eastern nation. Less than two years later on March 20, 2003, under the pretext that the Republic of Iraq had failed to abandon its weapons of mass destruction, the United States led the invasion, overthrow and continuing occupation of Iraq. The Israeli occupation of Palestine, continuing since 1947 and marked by the Nakba in 1948 when more than 700,000 Palestinians were forceably expelled from their homes and lands, has evolved, with full political and economic support of the U.S., into a belligerent expansion and occupation of territory of Palestine, Jordan, and Syria.
International humanitarian law, also known as the law of war or armed conflict, is the legal framework applicable to situations of armed conflict and occupation. An esteemed panel of international law experts will discuss and examine the application of these rules of law to illegal wars and occupations involving the United States. The panel will discuss the law of occupation which governs the relationship between the occupying power and those subject to belligerent occupation as well as the interplay between humanitarian law and international human rights law. The panel will also cover the legal mechanisms and remedies available to occupied peoples and nations, including Hawaii, Afghanistan, Iraq, and Palestine, to challenge continuing occupation and violations of humanitarian and human rights.
Valentina Azarova, Ph.D. is an international legal academic and practitioner, who teaches and writes on foreign territorial control and the law of third state responsibility. She is Visiting Academic at the University of Manchester International Law Centre (England) and Associate Editor of the Oxford Reports on International Human Rights Law and United Nations Treaty Bodies. Dr. Azarova is legal advisor to the Global Legal Action Network and has over a decade of experience documenting and engaging in legal actions and advocacy to challenge processes of structural violence of armed conflict and occupation with a focus on third party complicity. She has worked with and regularly advises UN bodies and fact-finding missions, states and non-governmental organizations. She is the author of numerous articles on humanitarian law including that law of prolonged belligerent occupations and Israel’s occupation of Palestine. She co-founded the Human Rights and International law program at Al-Quds Bard College (Palestine) and has held positions at Birzeit University (Ramallah), and in Lebanon, Budapest, and Istanbul. She received her Ph.D. from the National University of Ireland’s Irish Centre for Human Rights.
Marjorie Cohn is professor emerita at the Thomas Jefferson School of Law (San Diego) and a former president of the National Lawyers Guild. Professor Cohn has written extensively on war and humanitarian law, particularly on torture and targeted killings. She is the author of numerous law review articles and five books. In 2010, Professor Cohn debated the legality of the war in Afghanistan at the prestigious Oxford Union. A lifelong peace activist, Professor Cohn has provided expert testimony on the law of war and is the recipient of 2008 Peace Scholar of the Year Award from the Peace and Justice Studies Association among other awards for her work. She received her J.D. from the Santa Clara University School of Law.
Federico Lenzerini, Ph.D., is an associate professor of public international law and international human rights law at the University of Siena (Italy), a professor in the intercultural human rights program of the St. Thomas University School of Law (Miami). He is a UNESCO consultant and has served as a Rapporteur on the Rights of Indigenous Peoples. He is the author or editor of over one hundred academic articles and seven books. He received his Doctor of Law degree from the University of Siena and his Ph.D. degree in international law from the University of Bari (Italy).
Keanu Sai, Ph.D. is the Chairman of the Council of Regency and Acting Minister of the Interior of the provisional government of the Hawaiian Kingdom. Dr. Sai served as Agent for the Hawaiian Kingdom at the Permanent Court of Arbitration in Larsen v. Hawaiian Kingdom. He is the editor of the recent book, Investigating War Crimes and Human Rights Violations Committed in the Hawaiian Kingdom. Dr. Sai received his Ph.D. and M.A. degrees in political science specializing in international relations and public law from the University of Hawai’i where he also teaches. Dr. Sai co-chairs the Hawaiian Kingdom Subcommittee of the International Committee of the NLG.
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.
This past Monday defense lawyers Dexter Kaiama and Stephen Laudig filed their response to the State of Hawai‘i Attorney General’s opposition to their clients’ motion to dismiss. They argued that the Attorney General “cannot be allowed to knowingly and with intent benefit from the ‘war crime’ of usurpation of sovereignty that consists in the ‘imposition of legislation or administrative measures by the occupying power,’ which, in effect, leads to the violation of international law by denying a Protected Person of the right to a fair and regular trial by a properly constituted court. The prohibition of ‘war crimes’ is a jus cogens norm under customary international law and neither the [Attorney General] nor this Court can derogate from these peremptory norms.”
Kaiama and Laudig represent Deena Oana-Hurwitz, Loretta and Walter Ritte, Pualani Kanakaole-Kanahele, Kaliko Kanaele, Gene P.K. Burke, Alika Desha and Desmon Haumea. Both attorneys are also members of the National Lawyers Guild that “provides legal support to the movement demanding that the U.S., as the occupier, comply with international humanitarian and human rights law within Hawaiian Kingdom territory, the occupied.”
After state law enforcement officers arrested 39 Kia‘i Mauna (protectors of the mountain) who were opposing the building of the Thirty-Meter Telescope (TMT) on Mauna Kea on July 17, 2019, the Attorney General filed charges of obstruction in the Hilo District Court. On behalf of the 8 defendants, Kaiama and Laudig filed their motions to dismiss on November 13, 2019, which provided clear and unequivocal evidence that because the Hawaiian Kingdom continues to exist under international law the District Court “is not a regularly constituted court” and therefore does not have lawful jurisdiction to preside over the case.
An opposition to the motion to dismiss was filed by the Attorney General on December 6, 2019. In its opposition, the Attorney General provided no counter evidence of the Hawaiian Kingdom’s existence and that the Hawaiian Islands have never been lawfully a part of the United States. Instead, the Attorney General argues three points as to why Judge Kanani Lauback should deny defendants’ motion to dismiss. The first argument is that the political question doctrine prevents courts from adjudicating the legality of the overthrow of the Hawaiian Kingdom and the validity of the State of Hawai‘i. Second, the legal status of the State of Hawai‘i has been adjudicated. And, third, international law does not override acts of Congress.
On December 9, Kaiama and Laudig filed a reply that starts off by stating that the Attorney General’s “statement of relevant facts violates the principle of jus cogens and is not relevant to the Court’s consideration of the instant motion.” Jus cogens is a legal term that federal courts say “enjoy[s] the highest status within international law,” and as such cannot be denigrated. International crimes, which includes war crimes, are jus cogens norms.
In its reply, the defense pointed out that the unlawful imposition of United States laws and administrative policies constitute a war crime under customary international law. For their evidence, the defense cited a legal opinion written by Professor William Schabas, a leading expert in international criminal law and war crimes, titled Legal opinion on war crimes related to the United States occupation of the Hawaiian Kingdom since 17 January 1893. The defense argues that all “three fit squarely within the provisions of United States internal law—being legislation and administrative rules, which customary international law precludes a State from invoking as justification for its failure to comply with Article 43 of the Hague Regulations.” Article 43 of the Hague Regulation is a ratified treaty by the United States that obligates an Occupying State to administer the laws of the Occupied State. In this case the Occupying State is the United States and the Occupied States is the Hawaiian Kingdom.
A hearing on the motion to dismiss is scheduled for 8:30am on Friday, December 13, 2019, at the Hilo District Court.
The following is one of the topics covered by Dr. Sai in his letter of July 9, 2019. Maui County Council member Tamara Paltin requested of Dr. Sai his insights into the proposed construction of the Thirty-Meter Telescope. Dr. Sai’s letter is an attachment to Council member Paltin’s letter to University of Hawai‘i President David Lassner on July 12, 2019.
Invalidity of General Lease No. S-4191
Under General Lease No. S-4191 dated June 21, 1968, the Board of Land and Natural Resources of the State of Hawai‘i, as lessor, issued a 65-year lease to the University of Hawai‘i with a commencement date of January 1, 1968 and a termination date of December 31, 2033. The lease is comprised of 11,215.554 acres, more or less, being a portion of Government lands of the ahupua‘a of Ka‘ohe situated at Hamakua, Island of Hawai‘i identified under Tax May Key: 3rd/4.4.15:09.
The State of Hawai‘i claims to have acquired title under Section 5(b) of the 1959 Hawai‘i Admissions Act, Public Law 86-3 (73 Stat. 4), whereby “the United States grants to the State of Hawaii, effective upon its admission into the Union, the United States’ title to all public lands and other public property within the boundaries of the State of Hawaii, title to which is held by the United States immediately prior to its admission into the Union.” The United States derives its title from the 1898 Joint Resolution of Annexation (30 Stat. 750), which states “Whereas the Government of the Republic of Hawaii having, in due form, signified its consent, in the manner provided by its constitution…to cede and transfer to the United States the absolute fee and ownership of all public, Government, or Crown lands.”
The Republic of Hawai‘i proclaimed itself on July 3, 1894, by a convention comprised of appointed members of the Provisional Government and eighteen “elected” delegates. The Provisional Government proclaimed itself on January 17, 1893 and claimed to be the successor of the Hawaiian Kingdom. The Hawaiian Kingdom’s title derives from the 1848 Act Relating to the Lands of His Majesty The King and of the Government, whereby the ahupua‘a of Ka‘ohe is “Made over to the Chiefs and People, by our Sovereign Lord the King, and we do hereby declare those lands to be set apart as the lands of the Hawaiian Government, subject always to the rights of tenants.”
According to President Grover Cleveland, in his message to the Congress after investigating the illegal overthrow of the Hawaiian Kingdom government that took place on January 17, 1893, the Provisional Government “was neither a government de facto nor de jure.” He did not consider it a government. The President also concluded that “the provisional government owes its existence to an armed invasion by the United States.” Being a creature, or creation, of the US, it could not claim to be the lawful successor of the Hawaiian Kingdom government with vested title to the ahupua‘a of Ka‘ohe. As the successor to the Provisional Government, the Republic of Hawai‘i, as it self-declared successor, could not take any better title than the Provisional Government and hence did not have title to Ka‘ohe. The U.S. Congress in the 1993 Apology Resolution noted that the Republic of Hawai‘i was “self-declared.”
The United States claims to have acquired title to Ka‘ohe, by cession, from the Republic of Hawai‘i under the 1898 Joint Resolution of Annexation. International law recognizes that the “only form in which a cession can be effected is an agreement embodied in a treaty between the ceding and the acquiring State.” The Joint Resolution of Annexation is not “an agreement embodied in a treaty.” It is a U.S. municipal law from the Congress merely asserting that cession took place. The situation is not unlike a neighbor holding a family meeting and claiming that they have agreed that your house is now their house.
In a debate on the Senate floor on July 4, 1898, Senator William Allen stated:
The Constitution and the statutes are territorial in their operation; that is, they can not have any binding force or operation beyond the territorial limits of the government in which they are promulgated. In other words, the Constitution and statutes can not reach across the territorial boundaries of the United States into the territorial domain of another government and affect that government or persons or property therein.
The joint resolution is ipso facto null and void.
In 1988, the U.S. Department of Justice, Office of Legal Counsel (“OLC”) issued a legal opinion on the lawfulness of the annexation of Hawai‘i by a joint resolution. In its opinion, it cited constitutional scholar Westel Willoughby:
The constitutionality of the annexation of Hawaii, by a simple legislative act, was strenuously contested at the time both in Congress and by the press. The right to annex by treaty was denied, but it was denied that this might be done by a simple legislative act … Only by means of treaties, it was asserted, can the relations between States be governed, for a legislative act is necessarily without extraterritorial force—confined in its operation to the territory of the State by whose legislature it is enacted.
The OLC concluded, “It is therefore unclear which constitutional power Congress exercised when it acquired Hawaii by joint resolution. Accordingly, it is doubtful that the acquisition of Hawaii can serve as an appropriate precedent for a congressional assertion of sovereignty over an extended territorial sea.” The United States cannot produce any evidence of a conveyance of the ahupua‘a of Ka‘ohe from a grantor, vested with the title. All it can produce is a joint resolution of Congress. This is not a conveyance from a foreign State ceding territory.
Instead of providing evidence of a conveyance of territory, i.e. treaty of cession, the State of Hawai‘i Supreme Court in its October 30, 2018 majority decision In Re Conservation District Use Application for TMT, SCOT-17-0000777, quoted from a book titled Who Owns the Crown Lands of Hawai‘i written by Professor Jon Van Dyke.
The U.S. Supreme Court gave tacit recognition to the legitimacy of the annexations of Texas and Hawaiʻi by joint resolution, when it said in De Lima v. Bidwell, 182 U.S. 1, 196 (1901), that “territory thus acquired [by conquest or treaty] is acquired as absolutely as if the annexation were made, as in the case of Texas and Hawaii, by an act of Congress.” See also Texas v. White, 74 U.S. (7 Wall.) 700 (1868), stating that Texas had been properly admitted as a state in the United States.
It is unclear what Professor Van Dyke meant when he stated that the U.S. Supreme Court “gave tacit recognition to the legitimacy of the annexation of Texas and Hawai‘i by joint resolution,” because tacit, by definition, is to be “understood without being openly expressed or stated.” Furthermore, this statement is twice irrelevant: first, the Court as a third party to any cession of foreign territory has no standing to make such a conclusion as to what occurred between the ceding and receiving States; and, second, its opinion is a fabrication or what American jurisprudence calls a legal fiction. Legal fictions treat “as true a factual assertion that plainly was false, generally as a means to avoid changing a legal rule that required a particular factual predicate for its application.”
According to Professor Smith, a “judge deploys a new legal fiction when he relies in crafting a legal rule on a factual premise that is false or inaccurate.” These “new legal fictions often serve a legitimating function, and judges may preserve them—even in the face of evidence that they are false—if their abandonment would have delegitimating consequences.”
The proposition that Texas and Hawai‘i were both annexed by joint resolutions of Congress is clearly false. In the case of Texas, Congress consented to the admission of Texas as a State by joint resolution on March 1, 1845 with the following proviso, “Said State to be formed, subject to the adjustment by this government of all questions of boundary that may arise with other governments.” This condition was referring to Mexico because as Texas was comprised of insurgents who were fighting for their independence, Mexico still retained sovereignty and title to the land. In its follow up joint resolution on December 29, 1845 that admitted Texas as a State of the Union, it did state that the Congress consented “that the territory properly included within, and rightfully belonging to, the Republic of Texas.” These actions taken by the Congress is what sparked the Mexican-American War in 1846.
Congress’ statement of “rightfully belonging” is an opinion and the resolution mentions no boundaries. The transfer of title to the territory, which included the territory comprising Texas, came three years later on February 2, 1848 in a treaty of peace that ended the Mexican-American War.
Under Article V of the treaty, the new boundary line between the United States and Mexico was to be drawn. “The boundary line between the two republics shall commence in the Gulf of Mexico, three leagues from land, opposite the mouth of the Rio Grande, otherwise called Rio Bravo del Norte.” Rio Brava del Norte is the southern tip of Texas. If Texas was indeed annexed in 1845 by a joint resolution with its territory intact, there was no reason for the treaty to specifically include the territory of Texas. If it were true that Texas territory was ceded in 1845, Article V of the treaty would have started the boundary line just west of the Texas city of El Paso, which is its western border, and not from the Gulf of Mexico at its southern border. The truth is that the territory of Texas was not annexed by Congress in 1845 but was ceded by Mexico in 1848. The Rio Grande river is the southern border for the State of Texas.
With regard to the so-called annexation of Hawai‘i in 1898 by Congress, there is no treaty ceding Hawaiian territory as in the case of Texas. Like the Texas resolution, Congress stated,
Whereas the Government of the Republic of Hawaii having, in due form, signified its consent, in the manner provided by its constitution to ceded absolutely and without reserve to the United States of America all rights of sovereignty of whatsoever kind in and over the Hawaiian Islands and their dependencies, and also to cede and transfer to the United States the absolute fee and ownership of all public, Government, or Crown lands, public buildings or edifices, ports, harbors, military equipment, and all other public property of every kind and description belonging to the Government of the Hawaiian Islands, together with every right and appurtenance thereunto appertaining…
The reference to consent by its constitution is specifically referring to Article 32, which states, the “President, with the approval of the Cabinet, is hereby expressly authorized and empowered to make a Treaty of Political or Commercial Union between the Republic of Hawaii and the United States of America, subject to the ratification of the Senate.” There is no treaty between the so-called Republic of Hawai‘i and the United States. Furthermore, a constitutional provision is not an instrument of conveyance as a treaty would be. So without a treaty from the Hawaiian Kingdom government as the ceding State vested with the sovereignty and title to government lands, which includes the ahupua‘a of Ka‘ohe, there was no change in the ownership of the government lands.
Furthermore, Hawaiians of the day knew there was no treaty as evidenced in the Maui News newspaper published October 20, 1900. The Editor wrote,
Thomas Clark, a candidate for Territorial senator from Maui holds that it was an unconstitutional proceeding on the part of the United States to annex the Islands without a treaty, and that as a matter of fact, the Island[s] are not annexed, and cannot be, and that if the democrats come into power they will show the thing up in its true light and demonstrate that that the Islands are de facto independent at the present time.
The legal fiction that Texas and Hawai‘i were annexed by a joint resolution of the Congress is just a patently false when measured “against the results of existing empirical research.” For the State of Hawai‘i Supreme Court to restate, and embrace, this falsifiable legal fiction is simply a trick that allows it to fabricate its own false and falsifiable fiction regarding the State of Hawai‘i. In its TMT decision the Court, in conflict with overwhelming evidence, stated, “[W]e reaffirm that ‘[w]hatever may be said regarding the lawfulness’ of its origins, ‘the State of Hawai‘i…is now a lawful government.’” For the State of Hawai‘i to be a “lawful government” it must be vested with lawful authority absent of which it is not lawful. The State of Hawai‘i Supreme Court, being a branch of the State of Hawai‘i itself, cannot declare it “is now a lawful government” without making reference to some intervening factor that vested the State of Hawai‘i with lawful authority.
When addressing the lawful authority and sovereignty of the United States of America, the United States Supreme Court specifically referred to a particular and significant intervening factor. It stated that as “a result of the separation from Great Britain by the Colonies, acting as a unit, the powers of external sovereignty passed from the Crown not to the Colonies severally, but to the Colonies in their collective and corporate capacity as the United States of America.” The Court was referring to “the Treaty of Paris of September 3, 1783, by which Great Britain recognized the independence of the United States.”
It has been erroneously assumed that the US Congress vested the State of Hawai‘i with lawful authority in the 1959 Statehood Act in an exercise of the constitutional authority of Congress to admit new States into the Federal union under Article IV, section 3, clause 1. There is no provision in the US constitution for the admission of a state to the union that is on territory not owned by the US. So before the US Congress can admit a new State to the US the US must “own” the territory. According to the United States Supreme Court:
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.
Since the Hawaiian Islands were never annexed by the United States via treaty, Congressional acts, which are municipal laws, may only operate on the territory of the United States. The United States Supreme Court is relatively clear on this point and has stated that the “municipal laws of one nation do not extend in their operation beyond its own territory except as regards its own citizens.” In another decision, the United States Supreme Court reiterated, that “our Constitution, laws and policies have no extraterritorial operation unless in respect of our own citizens.”
Under international law, the United States is an occupying power in the Hawaiian Islands and as such the occupying Power is obligated, under Article 43 of the 1907 Hague Convention, IV, and Article 64 of the 1949 Geneva Convention, IV, to administer Hawaiian Kingdom laws. In his communication to the members of the Judiciary of the State of Hawai‘i of February 25, 2018, the United Nations Independent Expert, Dr. Alfred deZayas, reiterated this obligation under international law.
I have come to understand that the lawful political status of the Hawaiian Islands is that of a sovereign nation-state in continuity; but a nation-state that is under a strange form of occupation by the United States resulting from an illegal military occupation and fraudulent annexation. As such, international laws (the Hague and Geneva Conventions) require that governance and legal matters within the occupied territory of the Hawaiian Islands must be administered by the application of the laws of the occupied state (in this case, the Hawaiian Kingdom), not the domestic laws of the occupier (the United States) (Enclosure “6”).
The United States never acquired any kind of title to Ka‘ohe and, since one can only convey what one has, it could not convey what it did not have to the State of Hawai‘i under Section 5(b) of the 1959 Admissions Act. Thus the State of Hawai‘i was never lawfully vested with any title to the ahupua‘a of Ka‘ohe, and therefore its so-called general lease no. S-4191 to the University of Hawai‘i dated June 21, 1968 is defective. Under Hawaiian Kingdom law, the ahupua‘a of Ka‘ohe is government land under the management of the Ministry of the Interior and not the State of Hawai‘i Board of Land and Natural Resources. Consequently, all 10 subleases from the University of Hawai‘i that extend to December 31, 2033 are defective as well, which include:
- National Aeronautics and Space Administration dated November 29, 1974;
- Canada-France-Hawai‘i Telescope Corporation dated December 18, 1975;
- Science Research Council dated January 21, 1976;
- California Institute of Technology dated December 20, 1983;
- Science and Engineering Research Council dated February 10, 1984;
- California Institute of Technology dated December 30, 1985;
- Associated Universities, Inc., dated September 28, 1990;
- National Astronomical Observatory of Japan dated June 5, 1992;
- National Science Foundation dated September 26, 1994; and
- Smithsonian Institution dated September 28, 1995.
As such, the University of Hawai‘i’s sublease to TMT International Observatory, LLC, is also defective. Therefore, the University of Hawai‘i cannot sublease what it does not have to TMT International Observatory LLC.
 President Cleveland’s Message to the Congress (Dec. 18, 1893), p. 453, available online at https://hawaiiankingdom.org/pdf/Cleveland’s_Message_(12.18.1893).pdf.
 Id., p. 454.
 107 Stat. 1510.
 L. Oppenheim, International Law, vol. 1, second edition, 286 (1912).
 31 Cong. Rec. 6635 (1898).
 33 Cong. Rec. 2391 (1900).
 Douglas Kmiec, Department of Justice, “Legal Issues Raised by Proposed Presidential Proclamation to Extend the Territorial Sea,” 12 Opinions of the Office of Legal Counsel 238 (1988).
 Id., p. 252.
 In Re Conservation District Use Application for TMT, SCOT-17-0000777, Opinion, State of Hawai‘i Supreme Court (Oct. 30, 2018), p. 46.
 Black’s Law, 6th ed. (1990), p. 1452.
 Peter J. Smith, “New Legal Fictions,” 95 The Georgetown Law Journal 1435, 1437 (2007).
 Id., p. 1440.
 Treaty of Guadalup Hidalgo, 9 Stat. 926 (1848).
 Constitution of the Republic of Hawai‘i, Roster Legislatures of Hawaii, 1841-1918 (1918) p. 198.
 Smith, “New Legal Fictions,” p. 1439.
 In Re Conservation District Use Application for TMT, SCOT-17-0000777, Opinion, State of Hawai‘i Supreme Court (Oct. 30, 2018), p. 46.
 United States v. Louisiana et al., 363 U.S. 1, 68 (1960).
 73 Stat. 4.
 United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 318 (1936).
 The Appollon, 22 U.S. (9 Wheat.) 362 (1824).
 United States v. Belmont, 301 U.S. 324, 332 (1936).
WAILUKU, Hawaii – In an urgent plea, Maui County Council member Tamara Paltin announced that she has asked University of Hawaii President David Lassner to put a hold on moving forward with the construction of the Thirty Meter Telescope (“TMT”) planned for the summit of Mauna Kea.
Paltin issued a letter of inquiry to President Lassner on Friday, July 12th in response to Governor Ige’s news conference last week announcing that construction would begin next week on July 15th. In her letter Paltin expressed “grave concerns for the safety of Maui County’s residents and all individuals mobilizing to access and assemble atop Mauna Kea.”
It is anticipated that kupuna to keiki and all ages in betweenfrom all islands will be present to exercise traditional Native Hawaiian cultural and religious access, as well as protest the construction of the TMT. With emotions high, extreme weather conditions, law enforcement presence and talk of the potential deployment of LRAD (Long-Range Acoustic Hailing Devices) for crowd control, Councilmember Paltin fears for the safety and protection of all who will be present on the summit.
Councilmember Paltin sought out insight from Dr. Keanu Sai who has served as a resource for and provided training presentations to the Council’s Planning and Sustainable Land Use Committee, of which Paltin chairs, concerning the proposed construction of the TMT on the summit of Mauna Kea, in light of the ahupua`a of Ka`ohe being so-called ceded lands.
Paltin’s letter reiterates Dr. Sai’s focus on three topics underlying the proposed TMT construction: the invalidity of General Lease No. S-4191 between the State of Hawai`i Board of Land and Natural Resources, as the lessor, and the University of Hawai`i, as the lessee; the war crime of destruction of property on the summit of Mauna Kea by the previous telescopes; and the third topic of native tenant rights within the ahupua`a of Ka`ohe, and describes Dr. Sai’s response as “quite illuminating to say the least.”
Councilmember Paltin requested that President Lassner have the University’s legal counsel review Dr. Sai’s assessment of the situation, and stated that, “this is not a political issue, but an issue of the rule of law, which is foundational, and for our communities throughout the islands to have confidence that the State of Hawai`i officials, to include the Counties, believe in and abide by.”
A full copy of Councilmember Tamara Paltin’s letter to UH President Lassner can be located at mauicounty.us/paltin/.
For more information, please contact Councilmember Paltin’s office.
(BIVN)– The Hawaiʻi County Council again heard testimony from “protected persons” in support of absent Puna councilmember Jen Ruggles on Wednesday.
Hawaiian Kingdom subjects and advocates, as they have in the past, told the council to “cease and desist from legislating” until the county’s Corporation Counsel can assure the governing body that they are not incurring criminal liability under U.S. and international law. Ruggles’ council seat has sat empty during meetings as she awaits an opinion from Corp Counsel.
On September 24, Ruggles held a community meeting in Keaʻau to explain her ongoing absence from council, and to show her constituents how she came to understand the Hawaiian Kingdom still exists as a state in continuity that is under a “strange form of occupation” by the United States.
During the Keaʻau meeting, and in a subsequent media release, Ruggles announced she was putting Queen’s Health Systems on notice, saying that changes to the hospital’s charter since 1909 “appear to violate article 47 and 50 of the Geneva Convention IV.” Ruggles said she called upon the Chief Executive Office of the Queen’s Health System, Mr. Art Ushijima, and the “Board of Trustees to comply with the 1859 Charter and to admit aboriginal Hawaiians, as that term was understood under Kingdom law, for medical care free of charge. Failure to do so [would] appear to constitute war crimes under Article 47 and 50 of the [Geneva Convention, IV].”
Ruggles said, “as an agent of the the United States as defined under the Hague Convention and whistleblower, it is my duty to hold individuals and other officials of the State of Hawai‘i and the United States government accountable for apparent violations of the Hague and Geneva Conventions and the rights of civilians within the occupied territory under the title of protected persons.”
Ruggles’ fellow Hawaiʻi County Councilmembers weighed-in on the situation in recent news articles. A “perplexed” Hilo councilman Aaron Chung told the Hawaiʻi Tribune-Herald he found it very confusing that Ruggle’s “would use her title in the County Council to advance a particular position.”
The West Hawaiʻi Today reported on October 2 that Council Chair Valerie Poindexter said she was “not going to fund the office if she’s not going to do any more legislative work,” and has refused Ruggles’ request to hire a council aide to fill the position recently vacated by one of Ruggles’ two staffers.
Testifiers took aim at Poindexter on Wednesday. Kale Gumapac told the chair to “please be aware that by impeding Councilwoman Ruggles in anyway only provides more evidence for ‘War Crime’ charges against you with no statute of limitation.”
Council member Jen Ruggles released a letter she sent last week notifying Queen’s Health Systems of the illegal and prolonged occupation of Hawai’i and how it appears it may be violating the rights of protected persons in Hawai’i. She stated that she, as an agent for the United States, which is an occupying Power, and one who took an oath to support the constitution of the United States, is bound to uphold the 1907 Hague Convention, IV, and the 1949 Geneva Convention, IV, and ensure respect for the conventions in all circumstances.
“I have come to understand that the lawful political status of the Hawaiian Islands is that of a sovereign nation-state in continuity; but a nation-state that is under a strange form of occupation by the United States resulting from an illegal military occupation and a fraudulent annexation. As such, international laws (the Hague and Geneva Conventions) require that governance and legal matters within the occupied territory of the Hawaiian Islands must be administered by the application of the laws of the occupied state (in this case, the Hawaiian Kingdom), not the domestic laws of the occupier (the United States).”
The U.S. Senate ratified the Hague and Geneva Conventions making both of these treaties part of federal law under Article VI of the federal constitution and which must be faithfully carried out in territory that the United States is occupying. As a whistle blower, Council member Ruggles sees it as her duty to hold individuals and other officials of the State of Hawai‘i and the United States government accountable for violations of the provisions of the Hague and Geneva Conventions and the rights of civilians within the occupied territory under the title of protected persons.
Council member Ruggles came to learn that the Queen’s Hospital was formed as a corporation on June 20, 1859. Article One of the Hospital’s Charter provides for the establishment of a permanent hospital for the “treatment of indigent sick and disabled Hawaiians, as well as such foreigners and others who may choose to avail themselves of the same.” It was understood, at the time, that the term ‘Hawaiians’ meant aboriginal Hawaiians, both pure and part. Under the Charter, the Hawaiian Monarch served as President of a Board of Trustees comprised of ten persons to be appointed by the government and ten persons to be elected by corporation shareholders.
The government appropriated funding for the maintenance of the hospital.
In 1900, George W. Smith, a Trustee of Queen’s Hospital, stated in an article published by the Pacific Commercial Advertiser that “Queen’s Hospital is, from the nature of its charter, a quasi-private institution. When it was chartered it was provided that all Hawaiians of native birth, should be treated free of charge. Foreigners were to be treated by payment of fees.”
No other country or government in the world at the time is known by her to have had such a system of government subsidized health care for a majority of its national population which was free of charge. The Soviet government followed this practice in 1920, but that was due to the political theory of communism. After the Second World War, in 1948, the British government followed suit, which, like the Hawaiian Kingdom, was not a communist State. The Nordic countries followed with Sweden in 1955, Iceland in 1956, Norway in 1956, Denmark in 1961, and Finland in 1964. The United States has never subsidized health care free of charge.
After pressure to sever the Hawaiian government’s interest in Queen’s Hospital and to no longer admit native Hawaiians free of charge, the Board of Trustees, with the approval of Territorial Governor, Walter F. Frear, amended the Charter. In 1909, the phrase in the original 1859 Charter “for the treatment of indigent sick and disabled Hawaiians” was replaced with “for the treatment of sick and disabled persons.” The change was made secretively. The only news coverage it received at the time was in one newspaper, the Evening Bulletin, which made no mention of the change of servicing aboriginal Hawaiians free of charge. Under the title of “IS APPROVED TRUSTEES REDUCED,” the Bulletin wrote,
“By the new amendment to their character, the application for which was approved by Governor Frear this morning, the number of trustees of Queen’s Hospital will be reduced from twenty to seven members. The responsibility of the government trusteeship will also cease with the new articles of incorporation.”
By 1939, Victor Stewart Kaleoaloha Houston, a former Congressional delegate for the Territory of Hawai‘i, “was presenting lectures at various Hawaiian Civic Clubs castigating Queen’s Hospital for ignoring Native Hawaiians’ medical needs and reneging on the promises of the original charter. In newspapers the main themes of Houston’s one man challenge to Queen’s practices was set out for the public by these questions: What ever happened to free medical care for Hawaiians and what is Queen’s doing with the Queen Emma Trust monies?”
Gradually aboriginal Hawaiians were denied health care unless they paid, and as time went on, this provision of the Queen’s Hospital charter was nearly forgotten. In 1967, the name of Queen’s Hospital was changed to the Queen’s Medical Center. In 1985, the Queen’s Health Systems with a Board of Trustees was established as the parent company of Queen’s Medical Center along with Molokai General Hospital, North Hawai‘i Community Hospital, Queen Emma Land Company, Queen’s Development Corporation, and Queen’s Insurance Exchange. Under Queen’s Health Systems there are four hospitals—The Queen’s Medical Center, The Queen’s Medical Center – West O‘ahu, Molokai General Hospital, and North Hawai‘i Community Hospital—and seven health care centers in Hawai‘i Kai, Hilo, two in Honolulu, Kapolei, Kaua‘i and Kona. I will refer to the corporation by its original name, the Queen’s Hospital.
Hawaiian subjects of aboriginal blood, both pure and part, are protected persons whose rights during the U.S. occupation are protected under the Geneva Convention. Council member Ruggles sees that it is also her duty as a whistle blower and agent for the United States to ensure that their rights are respected and enforced. According to the Office of Hawaiian Affairs, “Today, Native Hawaiians are perhaps the single racial group with the highest health risk in the State of Hawai‘i. This risk stems from high economic and cultural stress, lifestyle and risk behaviors, and late or lack of access to health care.” The ‘lack of access to health care’ is what troubles Council member Ruggles knowing that the Queen’s Hospital was specifically established, under Hawaiian Kingdom law, to provide for their health care, free of charge.
According to the International Committee of the Red Cross Commentaries, Article 47 of the Geneva Convention means that “changes made in the internal organization of the State must not lead to protected persons being deprived of the rights and safeguards provided them. Consequently it must be possible for the Convention to be applied to them in its entirety, even if the Occupying Power has introduced changes in the institutions or government of the occupied territory.” Furthermore, under the provisions of Article 50 of the GCIV regarding preferential measures for children’s medical care, in this case with the Queen’s Hospital, the occupying State “who occupied the whole or part of a territory where such measures are in force, cannot on any pretext abrogate them or place obstacles in the way of their application. This rule applies not only to preferential measures prescribed in the Convention but to any other measures of the same nature taken by the occupied State.”
Council member Ruggles stated that the changes to the charter since 1909 violate the Hague and Geneva Conventions. In light of these violations, she called upon the Chief Executive Office of the Queen’s Health System, Mr. Art Ushijima, and the “Board of Trustees to comply with the 1859 Charter and to admit aboriginal Hawaiians, as that term was understood under Kingdom law, for medical care free of charge. Failure to do so [would] appear to constitute to constitute war crimes under Article 47 and 50 of the [Geneva Convention, IV].”
Council member Ruggles alerted Mr. Ushijima to the fact that there “seems to be a direct nexus of deaths of aboriginal Hawaiians as ‘the single racial group with the highest health risk in the State of Hawai‘i [that] stems from…late or lack of access to health care’ to the crime of genocide as defined by the 1948 Convention on the Prevention and Punishment of the Crime of Genocide. The Genocide Convention was also ratified by the United States Senate, and, like the Hague and Geneva Conventions, are a part of United States federal law.
(BIVN)– A community meeting organized by Puna councilwoman Jen Ruggles to explain her ongoing absence from council drew a standing room-only crowd to the Keaʻau Community Center on Monday night.
Ruggles declared on August 21 “that she had come to understand that she may be in violation of her oath of office to uphold the U.S. Constitution and may be incurring criminal liability under both U.S. federal law and international law,” a media release stated. “Through her attorney, Stephen Laudig, she formally requested the County Office of Corporation Counsel provide her a proper legal opinion.”
Laudig was present at the meeting, as was Dr. David Keanu Sai, a scholar and expert in international law. Sai has also served as the lead agent for the Hawaiian Kingdom in international arbitration proceedings before the Permanent Court of Arbitration at the Hague, Netherlands.
Using a power point presentation projected onto the community center wall, Ruggles walked constituents through her understanding of the Hawaiian Kingdom as a state in continuity that is under a “strange form of occupation” by the United States. Ruggles shared letters she received that prompted her to make her decision, and took questions from the audience.
In an earlier media release, Ruggles said she intended “to educate her constituents on their rights as protected persons under U.S. and international law, and share what work she has started to continue to represent and advocate on behalf of her district.”
(BIVN)– In lengthy public testimony before the Hawaii County Council meeting got underway in Hilo on Wednesday, Hawaiian Kingdom supporters spoke out in support of absent councilwoman Jen Ruggles, and demanded the council “cease and desist” legislative activity.
Ruggles’ seat was empty as the councilmember from Puna announced she would “refrain from legislating” until the county’s corporation counsel can provide a “proper legal opinion” that will assure her that she “is not incurring criminal liability under international humanitarian law and U.S. law.”
Ruggles’ recent decision was not on the Wednesday’s council agenda for discussion, so testifiers seeking to support Ruggles’ position spoke on other matters, such as Bill 160 – a measure that amends the County Code of Ethics by requiring that officials “provide accurate and factual information to the public” to the best of their knowledge.
Public testifiers – both Hawaiian Kingdom subjects as well as American citizens – identified themselves as protected persons as defined under Article 4 of the 1949 Fourth Geneva Convention. Many read from similarly worded written testimony.
“I too have come to learn that the Hawaiian Kingdom continues to exist as an independent and sovereign State that has been under an illegal and prolonged occupation by the United States since January 17, 1893,” stated Kale Gumapac, who testified in Hilo. “I am also aware that the United Nations Independent Expert Dr. Alfred deZayas sent a memorandum to members of the State of Hawai‘i judiciary which stated ‘international laws (the Hague and Geneva Conventions) require that governance and legal matters within the occupied territory of the Hawaiian Islands must be administered by the application of the laws of the occupied state (in this case, the Hawaiian Kingdom), not the domestic laws of the occupier (the United States).’ And according to Amnesty International, war crimes are crimes that violate the laws or customs of war defined by the Hague and Geneva Conventions.”
“Article 43 of the Hague Regulations and Article 64 of the Fourth Geneva Convention obligates the United States to administer Hawaiian Kingdom law, not United States law,” Gumapac continued. “This deliberate in failure by the United States to administer Hawaiian kingdom law has led to grave breaches under Article 147 of the Fourth Geneva Convention and international humanitarian law. which constitutes war crimes committed against me as a protected person.”
Gumapac finished with a statement that was often repeated by others speakers on Wednesday. “This body illegally enacts United States laws in violation of the Hague and Geneva Conventions and as a victim of war crimes that stem from this unlawful legislation, I demand that this body immediately cease and desist,” Gumapac said.
Multiple testifiers spoke for roughly two hours before the Hawaii County Council closed public comment and went ahead with the scheduled agenda.