Americans are Protected Persons in the Hawaiian Kingdom

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

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

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

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

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

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

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

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

In its judgment in 1999, the Appeals Chamber concluded:

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

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

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

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

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

Swiss General Secretariat Receives the Hawaiian Kingdom’s Accession to the Fourth Geneva Convention

Ambassador Battig

Originally posted on January 29, 2013. On January 14, 2013, Ambassador Benno Bättig, General Secretariat of the Swiss Federal Department of Foreign Affairs (FDFA), received at his office in Berne, Switzerland, the Hawaiian Kingdom’s Instrument of Accession to the 1949 Fourth Geneva Convention for the Protection of Civilian Persons in Time of War. Along with the Instrument of Accession, Ambassador Bättig also received a copy of the Hawaiian Protest and Demand deposited with the President of the United Nations General Assembly, August 10, 2012; and a DVD package of the Larsen v. Hawaiian Kingdom arbitration case at the Permanent Court of Arbitration, The Hague, Netherlands, 2001.

Swiss_Receipt_GCIV

The FDFA is responsible for maintaining the foreign relations of Switzerland and serves as the Swiss Ministry of Foreign Affairs. The department is headed by Federal Councillor Didier Burkhalter. The FDFA is composed of a General Secretariat and the State Secretariat, to which the department’s directorates and agencies are subordinate. Ambassador Bättig was appointed General Secretariat January 11, 2012.

CLARIFICATION: Article 156  of the Fourth Geneva Convention provides that accessions shall be notified in writing to the Swiss Federal Council and the Swiss Federal Council shall communicate the accessions to all the Powers in whose name the Convention has been signed, or whose accession has been notified. The Swiss Federal Council receives accessions through the FDFA. And according to Article 159, the Swiss Federal Council also informs the Secretary-General of the United Nations of all ratifications, accessions and denunciations received by them.

The Far Reach of the War Crime of Usurpation of Sovereignty Being Committed in the Hawaiian Islands Since 1898

Usurpation of sovereignty during military occupation was listed as a war crime in a 1919 report by the Commission on Responsibilities of the Paris Peace Conference that was established by the Allied and Associated Powers at war with Germany and its allies in the First World War. The Commission was especially concerned with acts perpetrated in occupied territories against non-combatants and civilians.

Usurpation of sovereignty during military occupation is the imposition of the laws and administrative measures of the Occupying State over the territory of the Occupied State. Usurpation, according to Black’s Law dictionary, is “The unlawful encroachment or assumption of the use of property, power or authority which belongs to another.”

The Commission did not indicate the source of this crime in treaty law but it would appear to be Article 43 of the 1907 Hague Regulations, which states, “The authority of the legitimate power having in fact passed into the hands of the occupant, the latter shall take all the measures in his power to restore, and ensure, as far as possible, public order and safety, while respecting, unless absolutely prevented, the laws in force in the country.” Article 43 is the codification of customary international law that existed on January 17, 1893, when the United States unlawfully overthrew the government of the Hawaiian Kingdom and began its prolonged belligerent occupation.

In the annex of its 1919 report, the Commission charged that in Poland the German and Austrian forces had “prevented the populations from organising themselves to maintain order and public security” and that they had “[a]ided the Bolshevist hordes that invaded the territories.” It said that in Romania the German authorities had instituted German civil courts to try disputes between subjects of the Central Powers or between a subject of these powers and a Romanian, a neutral, or subjects of Germany’s enemies. In Serbia, the Bulgarian authorities had “[p]roclaimed that the Serbian State no longer existed, and that Serbian territory had become Bulgarian.” It listed several other war crimes committed by Bulgaria in occupied Serbia: “Serbian law, courts and administration ousted;” “Taxes collected under Bulgarian fiscal regime;” “Serbian currency suppressed;” “Public property removed or destroyed, including books, archives and MSS (e.g., from the National Library, the University Library, Serbian Legation at Sofia, French Consulate at Uskub);” “Prohibited sending Serbian Red Cross to occupied Serbia.” It also charged that in Serbia the German and Austrian authorities had committed several war crimes: “The Austrians suspended many Serbian laws and substituted their own, especially in penal matters, in procedure, judicial organisation, etc.;” “Museums belonging to the State (e.g., Belgrade, Detchani) were emptied and the contents taken to Vienna.”

The crime of usurpation of sovereignty during military occupation was referred to by Judge Blair of the American Military Commission in a separate opinion in the Justice Case, holding that “This rule is incident to military occupation and was clearly intended to protect the inhabitants of any occupied territory against the unnecessary exercise of sovereignty by a military occupant.” Australia, Netherlands and China enacted laws making usurpation of sovereignty during military occupation a war crime. In the case of Australia, the Parliament enacted the Australian War Crimes Act in 1945 that included the war crime of usurpation of sovereignty during military occupation.

The war crime of usurpation of sovereignty during military occupation has not been included in more recent codifications of war crimes, casting some doubt on its status as a crime under customary international law. And there do not appear to have been any prosecutions for that crime by international criminal tribunals of late. However, the war crime of usurpation of sovereignty during military occupation is a war crime under “particular” customary international law. According to the International Law Commission, “A rule of particular customary international law, whether regional, local or other, is a rule of customary international law that applies only among a limited number of States.” In the 1919 report of the Commission, the United States, as a member of the commission, did not contest the listing of the war crime of usurpation of sovereignty during military occupation, but rather only disagreed, inter alia, with the Commission’s position on the means of prosecuting heads of state for the listed war crimes by conduct of omission.

The Hawaiian Kingdom Royal Commission Inquiry views usurpation of sovereignty during military occupation as a war crime under “particular” customary international law and binding upon the Allied and Associated Powers of the First World War—United States of America, Great Britain, France, Italy and Japan, principal Allied Powers and Associated Powers that include Belgium, Bolivia, Brazil, China, Cuba, Ecuador, Greece, Guatemala, Haiti, Honduras, Liberia, Nicaragua, Panama, Peru, Poland, Portugal, Romania, Thailand, Czech Republic, formerly known as Czechoslovakia, and Uruguay. Great Britain, as an empire at the time, included Canada, Australia, New Zealand, and South Africa who also fought in the First World War. Therefore, as an international crime under particular customary international law, these countries are obligated to prosecute this war crime in their courts.

In the Hawaiian situation, usurpation of sovereignty during military occupation serves as a source for the commission of other war crimes within the territory of the Hawaiian Kingdom, which includes the war crimes of compulsory enlistment, denationalization, pillage, destruction of property, deprivation of fair and regular trial, deporting civilians of the occupied territory, and transferring populations into an occupied territory. The reasoning for the prohibition of imposing extraterritorial prescriptions or measures of the occupying State is addressed by Professor Eyal Benvenisti:

The occupant may not surpass its limits under international law through extra­territorial prescriptions emanating from its national institutions: the legislature, government, and courts. The reason for this rule is, of course, the functional symmetry, with respect to the occupied territory, among the various lawmak­ing authorities of the occupying state. Without this symmetry, Article 43 could become meaningless as a constraint upon the occupant, since the occupation administration would then choose to operate through extraterritorial prescription of its national institutions.

Usurpation of sovereignty during military occupation came before the Permanent Court of Arbitration (“PCA”) in 1999. In Larsen v. Hawaiian Kingdom, the Permanent Court of Arbitration convened an arbitral tribunal to resolve a dispute where Larsen, the claimant, alleged that the Government of the Hawaiian Kingdom, by its Council of Regency, the respondent, was liable “for allowing the unlawful imposition of American municipal laws over the claimant’s person within the territorial jurisdiction of the Hawaiian Kingdom.” The PCA accepted the case as a dispute between a “State” and a “private party” and acknowledged the Hawaiian Kingdom to be a non-Contracting State in accordance with Article 47 of the 1907 Hague Convention. The PCA annual reports of 2000 through 2011 specifically states that the Larsen v. Hawaiian Kingdom proceedings were done “Pursuant to article 47 of the 1907 Convention.” According to Bederman and Hilbert of the American Journal of International Law:

At the center of the PCA proceeding was the argument that … the Hawaiian Kingdom continues to exist and that the Council of Regency (representing the Hawaiian Kingdom) is legally responsible under international law for the protection of Hawaiian subjects, including the claimant. In other words, the Hawaiian Kingdom was legally obligated to protect Larsen from the United States’ “unlawful imposition [over him] of [its] municipal laws” through its political subdivision, the State of Hawai‘i [and its County of Hawai‘i].

In the situation of Hawai‘i, the usurpation of sovereignty during military occupation would appear to have been total since the beginning of the twentieth century. This is an ongoing crime where the criminal act would consist of the imposition of legislation or administrative measures by the occupying power that goes beyond what is required necessary for military purposes of the occupation. Since 1898, when the United States Congress enacted an American municipal law purporting to have annexed the Hawaiian Islands, it began to impose its legislation and administrative measures to the present in violation of the laws of occupation.

Given that this is essentially a crime involving government action or policy or the action or policies of an occupying State’s proxies such as the State of Hawai‘i and its Counties, a perpetrator who participated in the act would be required to do so intentionally and with knowledge that the act went beyond what was required for military purposes or the protection of fundamental human rights.

Usurpation of sovereignty has not only victimized the civilian population in the Hawaiian Islands for over a century, but it has also victimized the civilians of other countries that have visited the islands since 1898 who were unlawfully subjected to American municipal laws and administrative measures. These include State of Hawai‘i sales tax on goods purchased in the islands but also taxes placed exclusively on tourists’ accommodations collected by the State of Hawai‘i and the Counties.

The Counties have recently added 3% surcharges to the State of Hawai‘i’s 10.25% transient accommodations tax. Added with the State of Hawai‘i’s general excise tax of 4% in addition to the 0.5% County general excise tax surcharges, civilians who are visiting the islands will be paying a total of 17.75% to the occupying power. In addition, those civilians of foreign countries doing business in the Hawaiian Islands are also subjected to paying American duties on goods that are imported to the United States destined to Hawai‘i. These duty rates are collected by the United States according to the United States Tariff Act of 1930, as amended, and the Trade Agreements Act of 1979.

The far reach of the victims of war crimes committed in the Hawaiian Islands includes civilians throughout the world in various countries.

At the United Nations World Summit in 2005, the Responsibility to Protect was unanimously adopted. The principle of the Responsibility to Protect has three pillars: (1) every State has the Responsibility to Protect its populations from four mass atrocity crimes—genocide, war crimes, crimes against humanity and ethnic cleansing; (2) the wider international community has the responsibility to encourage and assist individual States in meeting that responsibility; and (3) if a state is manifestly failing to protect its populations, the international community must be prepared to take appropriate collective action, in a timely and decisive manner and in accordance with the UN Charter. In 2009, the General Assembly reaffirmed the three pillars of State’s Responsibility to Protect their populations from war crimes and crimes against humanity under resolution A/63/308, and in 2021, the UN General Assembly passed resolution A/75/277 on “The responsibility to protect and the prevention of genocide, war crimes, ethnic cleansing and crimes against humanity.”

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

Determined to hold to account individuals who have committed war crimes and human rights violations throughout the territorial jurisdiction of the Hawaiian Kingdom, the Council of Regency, by Proclamation on April 17, 2019, established a Royal Commission of Inquiry in similar fashion to the United States proposal of establishing a Commission of Inquiry after the First World War “to consider generally the relative culpability of the authors of the war and also the question of their culpability as to the violations of the laws and customs of war committed during its course.”

In mid-November of 2022, the Royal Commission of Inquiry published War Criminal Reports no. 22-0002, 22-0002-1, 22-0003, 22-0003-1, 22-0004, 22-0004-1, 22-0005, 22-0005-1, 22-0007, and 22-0007-1 that provides the evidence that U.S. President Joseph Biden, Jr., Vice-President Kamala Harris, Admiral John Aquilino, IRS Commissioner Charles Rettig, Senator Charles Schumer, Representative Nancy Pelosi, State of Hawai‘i Governor David Ige, Commissioner Ty Nohara, Tax Director Isaac Choy, Hawai‘i County Mayor Mitchell Roth, Hawai‘i County Council Chairwoman Maile David, Maui County Mayor Michael Victorino, Maui County Council Chairwoman Alice Lee, County of Kaua‘i Mayor Derek Kawakami, and Kaua‘i County Council Chair Arryl Kaneshiro have committed the war crime of usurpation of sovereignty during military occupation. Accomplices to this war crime include: U.S. Attorneys Brian Boynton, Anthony Coppolino, and Michael Gerardi; State of Hawai‘i Attorneys Holly T. Shikada and Amanda J. Weston; County of Hawai‘i Attorneys Elizabeth Strance, Mark Disher and Dakota Frenz; County of Maui Attorneys Moana Lutey, Caleb Rowe and Iwalani Mountcastle; and County of Kaua‘i Attorneys Matthew Bracken and Mark Bradbury.

The reports have documented the necessary evidence that satisfies the elements of the war crime of usurpation of sovereignty during military occupation: (1) the perpetrators imposed imposed or applied legislative or administrative measures of the occupying power going beyond those required by what is necessary for military purposes of the occupation, which is the actus reus or the criminal act; (2) the perpetrators were aware that the measures went beyond what was required for military purposes or the protection of fundamental human rights, which is the mens rea or the guilty mind; (3) their conduct took place in the context of and was associated with a military occupation; and (4) the perpetrators were aware of factual circumstances that established the existence of the military occupation.

With regard to the last two elements listed for the war crime of usurpation of sovereignty during military occupation: (1) there is no requirement for a legal evaluation by the perpetrator as to the existence of an armed conflict or its character as international or non-international; (2) in that context there is no requirement for awareness by the perpetrator of the facts that established the character of the conflict as international or non-international; and (3) there is only a requirement for the awareness of the factual circumstance that established the existence of an armed conflict that is implicit in the terms “took place in the context of and was associated with.”

According to Professor Dietrich Schindler, “the existence of an [international] armed conflict within the meaning of Article 2 common to the Geneva Conventions can always be assumed when parts of the armed forces of two States clash with each other. … Any kind of use of arms between two States brings the Conventions into effect.” Dr. Stuart Casey-Maslen, author of The War Report 2012, further concludes that an international armed conflict “also exists whenever one state uses any form of armed force against another state, irrespective of whether the latter state fights back.”

The Hawaiian Kingdom has been in an international armed conflict with the United States since January 16, 1893, when U.S. troops invaded the city of Honolulu. The Hawaiian Kingdom has been under military occupation since January 17, 1893, when Queen Lili‘uokalani conditionally surrendered to the United States forces. For a comprehensive legal narrative and analysis of this international armed conflict download the Royal Commission of Inquiry’s ebook The Royal Commission of Inquiry: Investigating War Crimes and Human Rights Violations Committed in the Hawaiian Kingdom (2020).

The 123 countries who are States Parties to the Rome Statute of the International Criminal Court have primary responsibility to prosecute war criminals under complementary and universal jurisdiction. This type of jurisdiction gives State Parties the first responsibility before the International Criminal Court can initiate proceedings and authority to prosecute individuals for international crimes to include the war crime of usurpation of sovereignty during military occupation without regard to the place the war crime was committed or the nationality of the perpetrator. With the exception of the United States, China, Cuba, Haiti, Nicaragua, and Thailand, the Allied Powers and Associated Powers of the First World War are State Parties to the Rome Statute.

In this situation where the citizenry of these countries have become victims of the war crime of usurpation of sovereignty during military occupation, they can seek extradition warrants in their national courts in order for their governments to prosecute these war criminals under the passive personality principle. The passive personality principle provides countries with jurisdiction for crimes committed against their nationals while they were abroad in the Hawaiian Islands. This has the potential of opening the floodgate to lawsuits from all over the world.

The commission of the war crime of usurpation of sovereignty during military occupation can stop when the United States, the State of Hawai‘i and the Counties begin to comply with Article 43 of the 1907 Hague Regulations and administer the laws of the Occupied State—the Hawaiian Kingdom.

A Spectacular “Mic Drop”—Hawaiian Kingdom Withdraws Complaint in Federal Court Because of War Crimes Committed by Defendants and the Court

On this momentous day of Hawaiian independence since November 28, 1843, the Hawaiian Kingdom filed a Response to the State of Hawai‘i’s Motion to Dismiss the Amended Complaint in the federal court in Honolulu shifting focus to the Royal Commission of Inquiry and its investigations of war criminals. The Royal Commission of Inquiry provides war criminal reports documenting evidence of perpetrators committing certain war crimes so that they can be prosecuted. There is no statute of limitation for war crimes.

When the federal court proceeding was initiated by a Complaint filed on May 21, 2021, and followed by the filing of an Amended Complaint on August 11, 2021, the Hawaiian Kingdom’s stated purpose was to have the Court put a stop to the unlawful imposition of the United States constitution, Federal and State of Hawai‘i statutes, County ordinances, common law, administrative law, and the maintenance of the U.S. military installations across the territory of the Hawaiian Kingdom. This imposition of American laws is a violation of the laws of occupation and constitutes the war crime of usurpation of sovereignty.

Here follows word for word the Hawaiian Kingdom’s Response to the State of Hawai‘i’s Motion to Dismiss the Amended Complaint:

Today marks the 179th anniversary Great Britain and France jointly recognized the Hawaiian Kingdom as a sovereign and independent State on November 28, 1843, at the Court of London. The United States followed on July 6, 1844. Since January 17, 1893, the Hawaiian Kingdom came under belligerent occupation after Queen Lili‘uokalani conditionally surrendered by “yield[ing] to the superior force of the United States.”

As a subject of international law, the Hawaiian State would continue to exist despite its government being unlawfully overthrown by the United States on January 17, 1893. President Cleveland entered into a treaty, by exchange of notes, with Queen Lili‘uokalani on December 18, 1893, whereby the President committed to restoring the Queen as the Executive Monarch, and, thereafter, the Queen committed to granting a full pardon to the insurgents. Political wrangling in the Congress, however, prevented President Cleveland from carrying out his obligations under the executive agreement. Five years later, the United States Congress enacted a joint resolution for the purported annexation of the Hawaiian Islands that was signed into law on July 7, 1898, by President William McKinley.

Professor Wright, a renowned American political scientist, states that “international law distinguishes between a government and the state it governs.” And Judge Crawford of the International Court of Justice clearly explains that “[b]elligerent occupation does not affect the continuity of the State, even where there exists no government claiming to represent the occupied State.” Crawford’s conclusion is based on the “presumption that the State continues to exist, with its rights and obligations … despite a period in which there is…no effective government (emphasis added).” Applying this principle to the Second Gulf War, Crawford explains, 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.

When the Hawaiian Kingdom initiated these sui generis proceedings on May 20, 2021, it sought to arrest the commission of the war crime of usurpation of sovereignty by having the Court “[e]njoin Defendants from implementing or enforcing all laws of the Defendants UNITED STATES OF AMERICA and the STATE OF HAWAI‘I AND ITS COUNTIES, to include the United States constitution, State of Hawai‘i constitution, Federal and State of Hawai‘i statutes, County ordinances, common law, case law, administrative law, and the maintenance of Defendant UNITED STATES OF AMERICA’s military installations across the territory of the HAWAIIAN KINGDOM, to include its territorial sea.” These proceedings have now gone on for sixteen months and the war crime of usurpation of sovereignty is still being committed with impunity.

The basis of the complaint was the presumption that the Hawaiian Kingdom as a State continues to exist despite its government being militarily overthrown by the United States on January 17, 1893. The Hawaiian Kingdom as a State is a juridical fact, which was acknowledged by the Permanent Court of Arbitration in Larsen v. Hawaiian Kingdom in 1999.

When these proceedings were initiated, the Hawaiian Kingdom, however, understood that it could not get relief until the Court transforms itself from an Article III Court into an Article II Occupation Court because it is situated in the territory of the Hawaiian Kingdom and not the United States. In its Amended Complaint, the Hawaiian Kingdom addressed this under the heading “Jurisdiction and Venue:”

While this court is operating within the territory of the HAWAIIAN KINGDOM and not within the territory of Defendant UNITED STATES OF AMERICA, its jurisdiction is found as a de facto Article II Court. According to Professor Bederman:

What, then, is distinctive about a court established under Article II of the Constitution? First, executive tribunals are established without an act of Congress or any other form of legislative concurrence. Congressional intent concerning the status of a presidential court is irrelevant because no congressional approval is needed. The fact that the President alone can create an executive court places it outside the scope of Article III of the Constitution, which demands that Congress shall establish courts inferior to the Supreme Court. Second, the executive courts are created pursuant only to the power and authority granted to the President in Article II of the Constitution. In practice, the only presidential power that would call for the creation of a court is that arising from his responsibility as Commander in Chief of the armed services and his subsequent war-making authority.

The authority for this Court to assume jurisdiction as a de facto Article II Court is fully elucidated in the Amicus Curiae brief previously lodged in these proceedings by virtue of the Motion for Leave to File Amicus Curiae Brief on July 30, 2021 [ECF 45] by the International Association of Democratic Lawyers (IADL), the National Lawyers Guild (NLG), and the Water Protector Legal Collective (WPLC). The Amicus brief is instructional for the Court to transition to a de facto Article II Court.

An Article II Court was established in Germany after hostilities ceased in 1945 during the Second World War. After the surrender, western Germany came under belligerent occupation by the United States, France and Great Britain. The military occupation officially came to an end on May 5, 1955, with the entry into force of peace treaties called the Bonn Conventions between the Federal Republic of Germany and the three Occupying States. During the occupation, these Article II Courts had jurisdiction “over all persons in the occupied territory,” except for Allied armed forces, their dependents, and civilian officials, for “[a]ll offenses against the laws and usages of war[,] […] [a]ll offenses under any proclamation, law, ordinance, notice or order issued by or under the authority of the Military Government or of the Allied Forces, [and] [a]ll offenses under the laws of the occupied territory or any part thereof.”

Like the Article II Court in Germany, this Court has Jurisdiction as a de facto Article II Court because this action arises under international humanitarian law—law of armed conflict, which include the 1907 Hague Convention, IV (1907 Hague Regulations), the 1907 Hague Convention, V, the 1949 Geneva Convention, IV (1949 Fourth Geneva Convention), and Hawaiian Kingdom law. Article 43 of the 1907 Hague Regulations states:

The authority of the legitimate power having in fact passed into the hands of the occupant, the latter shall take all the measures in his power to restore, and ensure, as far as possible, public order and safety, while respecting, unless absolutely prevented, the laws in force in the country.

The Court is authorized to award the requested declaratory and injunctive relief as a de facto Article II Court because it is situated within the territory of the HAWAIIAN KINGDOM that has been under a prolonged belligerent occupation by the United States of America since January 17, 1893.

Venue is proper because the events giving rise to this claim occurred in this District, and the Defendants are being sued in their official capacities.

When the Amici filed their amicus curiae brief in support of the Hawaiian Kingdom’s Amended Complaint on October 6, 2021, they sought to assist the Court in the understanding as to why it must transform into an Article II Occupation Court given the legal and factual situation of the Hawaiian Kingdom. The Amici stated:

Under the concept of void ab initio, there are structures that have no legal effect from inception. The United States occupation of Hawai‘i began with unclean hands, and this can only be remedied by a clean slate and a new beginning. Recognition of the prolonged occupation of the Hawaiian Kingdom by the United States through Declaratory Judgment is not only a redressable claim, it is long overdue and would only be consistent with what is already known to the international community and clear under international law. Additionally, granting the Hawaiian Kingdom injunctive relief would acknowledge the Kingdom’s continuous sovereignty, mitigate the United States’ liability for its war crimes against the Hawaiian people, and apply local law as required of an occupying power by the international law of war. Acknowledging extraterritoriality and occupation would have the practical effect of applying the laws of the Hawaiian Kingdom but as was the case with prior occupation courts, this would not nullify any prior decisions of any of the courts currently operating in Hawai‘i, so long as they are not inconsistent with local law.

As an Article III Court, the Court cannot claim to have jurisdiction within the territory of the Hawaiian Kingdom unless it can provide rebuttable evidence that the Hawaiian Kingdom as a State was extinguished under international law. As Professor Craven stated, “[i]f one were to speak about a presumption of continuity, one would suppose that an obligation would lie upon the party opposing that continuity to establish the facts substantiating its rebuttal. The continuity of the Hawaiian Kingdom, in other words, may be refuted only by reference to a valid demonstration of legal title, or sovereignty, on the part of the United States.”

Without proffering any “reference to a valid demonstration of legal title, or sovereignty, on the part of the United States,” this Court is precluded from asserting jurisdiction as an Article III Court when it is situated within the territory of the Hawaiian Kingdom and any judgment it makes is void. A judgment is void “if the court that rendered judgment lacked jurisdiction of the subject-matter, or of the parties, or acted in a manner inconsistent with due process.” According to Justice Story, “no sovereignty can extend its process beyond its territorial limits, to subject either persons or property to its judicial decisions. Every exertion of authority beyond this limit is a mere nullity.”  In Pennoyer v. Neff, the Supreme Court reiterated Justice Story’s views on territorial jurisdiction. The Court stated:

[N]o State can exercise direct jurisdiction and authority over persons or property without its territory (citation omitted). The several States are of equal dignity and authority, and the independence of one implies the exclusion of power from all others. And so it is laid down by jurists as an elementary principle that the laws of one State have no operation outside of its territory except so far as is allowed by comity, and that no tribunal established by it can extend its process beyond that territory so as to subject either persons or property to its decisions. 

Since these proceedings began, neither the Court nor the Defendants provided any “reference to a valid demonstration of legal title, or sovereignty, on the part of the United States,” and, therefore, the presumption of the Hawaiian State remains. Their arguments, to include the arguments made in the instant motion to dismiss, relies on “the United States constitution, State of Hawai‘i constitution, Federal and State of Hawai‘i statutes, County ordinances, common law, case law, [and] administrative law,” which is the war crime of usurpation of sovereignty. The Amended Complaint clearly states:

Municipal laws of the Defendant UNITED STATES OF AMERICA being imposed in the HAWAIIAN KINGDOM constitute a violation of the law of occupation, which, according to Professor Schabas, is the war crime of usurpation of sovereignty. The actus reus of the offense “would consist of the imposition of legislation or administrative measures by the occupying power that go beyond those required by what is necessary for military purposes of the occupation.” All war crimes committed in the Hawaiian kingdom have a direct nexus and extend from the war crime of usurpation of sovereignty.

According to Professor Schabas, the requisite elements for the following war crimes are:

Elements of the war crime of usurpation of sovereignty during occupation

1. The perpetrator imposed or applied legislative or administrative measures of the occupying power going beyond those required by what is necessary for military purposes of the occupation.
2. The perpetrator was aware that the measures went beyond what was required for military purposes or the protection of fundamental human rights.
3. The conduct took place in the context of and was associated with an occupation resulting from international armed conflict.
4. The perpetrator was aware of factual circumstance that established the existence of the armed conflict and subsequent occupation

Elements of the war crime of denationalization

1. The perpetrator participated in the imposition or application of legislative or administrative measures of the occupying power directed at the destruction of the national identity and national consciousness of the population.
2. The perpetrator was aware that the measures were directed at the destruction of the national identity and national consciousness of the population.
3. The conduct took place in the context of and was associated with an occupation resulting from international armed conflict.
4. The perpetrator was aware of factual circumstance that established the existence of the armed conflict and subsequent occupation.

Elements of the war crime of pillage

1. The perpetrator appropriated certain property.
2. The perpetrator intended to deprive the owner of property and to appropriate it for private or personal use.
3. The appropriation was without the consent of the owner.
4. The conduct took place in the context of and was associated with an occupation resulting from international armed conflict.
5. The perpetrator was aware of factual circumstances that established the existence of the armed conflict and subsequent occupation.

Elements of the war crime of confiscation or destruction of property

1. The perpetrator confiscated or destroyed property in an occupied territory, be it that belonging to the State or individuals.
2. The confiscation or destruction was not justified by military purposes of the occupation or by the public interest.
3. The perpetrator was aware that the owner of the property was the State or an individual and that the act of confiscation or destruction was not justified by military purposes of the occupation or by the public interest.
4.  The conduct took place in the context of and was associated with an occupation resulting from international armed conflict.
5. The perpetrator was aware of factual circumstance that established the existence of the armed conflict and subsequent occupation.

Elements of the war crime of deprivation of fair and regular trial

1. The perpetrator deprived one or more persons in an occupied territory of fair and regular trial by denying judicial guarantees recognized under international law, including those of the fourth Geneva Convention and the International Covenant on Civil and Political Rights.
2. The conduct took place in the context of and was associated with an occupation resulting from international armed conflict.
3. The perpetrator was aware of factual circumstance that established the existence of the armed conflict and subsequent occupation.

Elements of the war crime of deporting civilians of the occupied territory

1. The perpetrator deported or forcibly transferred, without grounds permitted under international law, one or more persons in the occupied State to another State or location, including the occupying State, or to another location within the occupied territory, by expulsion or coercive acts.
2. Such person or persons were lawfully present in the area from which they were so deported or transferred.
3. The perpetrator was aware of the factual circumstances that established the lawfulness of such presence.
4. The conduct took place in the context of and was associated with an occupation resulting from international armed conflict.
5. The perpetrator was aware of factual circumstances that established the existence of the armed conflict and subsequent occupation.

With regard to the last two elements of the aforementioned war crimes, Schabas states:

1. There is no requirement for a legal evaluation by the perpetrator as the existence of an armed conflict as international.
2. In that context there is no requirement for awareness by the perpetrator of the facts that established the character of the conflict as international.
3. There is only a requirement for the awareness of the factual circumstances that established the existence of an armed conflict.

The prohibition of war crimes is an “old norm which [has] acquired the character of jus cogens.” According to the International Criminal Tribunal for the Former Yugoslavia (ICTY), international crimes, which include war crimes, are “universally condemned wherever they occur,” because they are “peremptory norms of international law or jus cogens.” Jus cogens norms are peremptory norms that “are nonderogable and enjoy the highest status within international law.” Schabas’ legal opinion is undeniably, and pursuant to The Paquette Habana case, a means for the determination of the rules of international criminal law.

The Duty of the Hawaiian Kingdom as a State to Investigate War Crimes Committed in its Territory

While these proceedings were underway, the United Nations Human Rights Council was made aware of the prolonged occupation of the Hawaiian Kingdom and the commission of war crimes and human rights violations. As stated by the Royal Commission of Inquiry in its War Criminal Report no. 22-0007:

On 7 February 2021, the International Association of Democratic Lawyers (“IADL”), a non-governmental organization of human rights lawyers that has special consultative status with the United Nations Economic and Social Council (“ECOSOC”) and accredited to participate in the Human Rights Council’s sessions as Observers, passed a resolution calling upon the United States to immediately comply with international humanitarian law in its prolonged occupation of the Hawaiian Islands—the Hawaiian Kingdom. In its resolution, the IADL also “supports the Hawaiian Council of Regency, who represented the Hawaiian Kingdom at the Permanent Court of Arbitration, in its efforts to seek resolution in accordance with international law as well as its strategy to have the State of Hawai‘i and its Counties comply with international humanitarian law as the administration of the Occupying State.”

Together with the IADL, the American Association of Jurists—Asociación Americana de Juristas (“AAJ”), who is also a non-governmental organization with consultative status with the United Nations ECOSOC and accredited as an observer in the Human Rights Council’s sessions, sent a joint letter dated 3 March 2022 to member States of the United Nations on the status of the Hawaiian Kingdom and its prolonged occupation by the United States. In its joint letter, the AAJ also “supports the Hawaiian Council of Regency, who represented the Hawaiian Kingdom at the Permanent Court of Arbitration, in its efforts to seek resolution in accordance with international law as well as its strategy to have the State of Hawai‘i and its Counties comply with international humanitarian law as the administration of the Occupying State.”

On 22 March 2022, the author delivered an oral statement, on behalf of the IADL and AAJ, to the United Nations Human Rights Council at its 49th session in Geneva. The oral statement read:

The International Association of Democratic Lawyers and the American Association of Jurists call the attention of the Council to human rights violations in the Hawaiian Islands. My name is Dr. David Keanu Sai, and I am the Minister of Foreign Affairs ad interim for the Hawaiian Kingdom. I also served as lead agent for the Hawaiian Kingdom at the Permanent Court of Arbitration from 1999-2001 where the Court acknowledged the continued existence of my country as a sovereign and independent State.

The Hawaiian Kingdom was invaded by the United States on 16 January 1893, which began its century long occupation to serve its military interests. Currently, there are 118 military sites throughout the islands and the city of Honolulu serves as the headquarters for the Indo-Pacific Combatant Command.

For the past century, the United States has and continues to commit the war crime of usurpation of sovereignty, under customary international law, by imposing its municipal laws over Hawaiian territory, which has denied Hawaiian subjects their right of internal self-determination by prohibiting them to freely access their own laws and administrative policies, which has led to the violations of their human rights, starting with the right to health, education and to choose their political leadership.

The Defendant UNITED STATES OF AMERICA is a member of the United Nations Human Rights Council and did not oppose or object to the statement made by H.E. Dr. David Keanu Sai, Ph.D., and, therefore, acquiesced to the statement by Dr. Sai. Under international law, acquiescence “concerns a consent tacitly conveyed by a State, unilaterally, through silence or inaction, in circumstances such that a response expressing disagreement or objection in relation to the conduct of another State would be called for.” Since the United States “did not do so … thereby must be held to have acquiesced. Qui tacet consentire videtur si loqui dbuisset act potuisset.” Nevertheless, the war crime of usurpation of sovereignty continues to be committed with impunity.

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

Determined to hold to account individuals who have committed war crimes and human rights violations throughout the territorial jurisdiction of the Hawaiian Kingdom, the Council of Regency, by Proclamation on April 17, 2019, established a Royal Commission of Inquiry (“RCI”) in similar fashion to the United States proposal of establishing a Commission of Inquiry after the First World War “to consider generally the relative culpability of the authors of the war and also the question of their culpability as to the violations of the laws and customs of war committed during its course.”

In accordance with Hawaiian Kingdom administrative precedence in addressing crises by Royal Commissions of Inquiry, the RCI was established by “virtue of the prerogative of the Crown provisionally vested in [the Council of Regency] in accordance with Article 33 of the 1864 Constitution, and to ensure a full and thorough investigation into the violations of international humanitarian law and human rights within the territorial jurisdiction of the Hawaiian Kingdom.” His Excellency, Dr. David Keanu Sai, Ph.D., has been designated as Head of the RCI, and Dr. Federico Lenzerini, Ph.D., as Deputy Head. Pursuant to Article 3—Composition of the Royal Commission, the Head of the RCI has been authorized to seek “recognized experts in various fields.”

The RCI acquired legal opinions from the following experts in international law: on the subject of the continuity of the Hawaiian Kingdom under international law, Professor Matthew Craven from the University of London, SOAS, School of Law; on the subject of the elements of war crimes committed in the Hawaiian Kingdom since 1893, Professor William Schabas, Middlesex University London, School of Law; and on the subject of human rights violations in the Hawaiian Kingdom and the right of self-determination by the Hawaiian citizenry, Professor Federico Lenzerini, University of Siena, Italy, Department of Political and International Studies. These experts, to include the Head of the RCI, are the authors of chapters 1, 2, 3, 4, and 5 of Part II of the Royal Commission’s eBook – The Royal Commission of Inquiry: Investigating War Crimes and Human Rights Violations Committed in the Hawaiian Kingdom.

According to Article 1(2), “[t]he purpose of the Royal Commission shall be to investigate the consequences of the United States’ belligerent occupation, including with regard to international law, humanitarian law and human rights, and the allegations of war crimes committed in that context. The geographical scope and time span of the investigation will be sufficiently broad and be determined by the head of the Royal Commission.”

Article 1(3) provides, “[t]he results of the investigation will be presented to the Council of Regency, the Contracting Powers of the 1907 Hague Convention, IV, respecting the Laws and Customs of War on Land, the Contracting Powers of the 1949 Geneva Convention, IV, relative to the Protection of Civilian Persons in Time of War, the Contracting Powers of the 2002 Rome Statute, the United Nations, the International Committee of the Red Cross, and the National Lawyers Guild in the form of a report.” All 123 countries who are State Parties to the Rome Statute that established the International Criminal Court have the first responsibility and right to prosecute war criminals that enter their territories under the principle of complementarity and universal jurisdiction.

In Restatement (Third) of Foreign Relations Law of the United States, it recognizes that when “determining whether a rule has become international law, substantial weight is accorded to…the writing of scholars.” According to Black’s Law, United States courts have acknowledged that the “various Restatements have been a formidable force in shaping the disciplines of the law covered [and] they represent the fruit of the labor of the best legal minds in the diverse fields of law covered.” The Restatement drew from Article 38(1)(d) of the Statute of the International Court of Justice, which provides that “the teachings of the most highly qualified publicists of the various nations [are] subsidiary means for the determination of rules of [international law].” These “writings include treatises and other writings of authors of standing.” Professors Craven, Schabas, and Lenzerini are “authors of standing” and their legal opinions are “sources” of the rules of international law.

At its website, the RCI recently published the following War Criminal Reports:

War Criminal Report no. 22-0002 finding Derek Kawakami, as Mayor of the County of Kaua‘i, and Arryl Kaneshiro, as Chair of the Kaua‘i County Council, guilty of the war crime of usurpation of sovereignty (November 17, 2022).

War Criminal Report no. 22-0002-1 finding Matthew M. Bracken and Mark L. Bradbury guilty of being accomplices to the war crime of usurpation of sovereignty committed by Mayor Kawakami and Chair Kaneshiro (November 20, 2022).

War Criminal Report no. 22-0003 finding Mitchell Roth, as Mayor of the County of Hawai‘i, and Maile David, as Chairwoman of the Hawai‘i County Council, guilty of the war crime of usurpation of sovereignty (November 17, 2022).

War Criminal Report no. 22-0003-1 finding Elizabeth A. Stance, Mark D. Disher and Dakota K. Frenz guilty of being accomplices to the war crime of usurpation of sovereignty committed by Mayor Roth and Chairwoman David (November 20, 2022).

War Criminal Report no. 22-0004 finding Michael Victorino, as Mayor of the County of Maui, and Alice L. Lee, as Chairwoman of the Maui County Council, guilty of the war crime of usurpation of sovereignty (November 17, 2022).

War Criminal Report no. 22-0004-1 finding Moana M. Lutey, Caleb P. Rowe and Iwalani Mountcastle Gasmen guilty of being accomplices to the war crime of usurpation of sovereignty committed by Mayor Victorino and Chairwoman Lee (November 20, 2022).

War Criminal Report no. 22-0005 finding David Yutake Ige, as Governor of the State of Hawai‘i, Ty Nohara, as Commissioner of Securities of the State of Hawai‘i, and Isaac W. Choy, as Director of the Department of Taxation of the State of Hawai‘i, guilty of the war crime of usurpation of sovereignty (November 18, 2022).

War Criminal Report no. 22-0005-1 finding Holly T. Shikada and Amanda J. Watson guilty of being accomplices to the war crime of usurpation of sovereignty committed by Governor Ige, Commissioner Nohara, and Director Choy (November 20, 2022).

War Criminal Report no. 22-0006 finding Anders G.O. Nervell, as Honorary Consul for Sweden, guilty of the war crime of usurpation of sovereignty (November 18, 2022).

War Criminal Report no. 22-0006-1 finding Scott I. Batterman guilty of being an accomplice to the war crime of usurpation of sovereignty committed by Swedish Honorary Consul Nervell (November 20, 2022).

War Criminal Report no. 22-0007 finding Joseph Robinette Biden Jr., as President of the United States, Kamala Harris, as Vice-President of the United States, Admiral John Aquilino, as Commander of U.S. Indo-Pacific Command, Charles P. Rettig, as Commissioner U.S. Internal Revenue Service, Charles E. Schumer, as U.S. Senate Majority Leader, and Nancy Pelosi, as Speaker of the U.S. House of Representatives, guilty of the war crime of usurpation of sovereignty (November 18, 2022).

War Criminal Report no. 22-0007-1 finding Brian M. Boynton, Anthony J. Coppolino and Michael J. Gerardi guilty of being accomplices to the war crime of usurpation of sovereignty committed by President Biden, Vice-President Harris, Admiral Aquilino, Commissioner Rettig, Senator Schumer, and Representative Pelosi (November 20, 2022).

War Criminal Report no. 22-0008 finding Leslie E. Kobayashi, as United States District Judge, and Rom A. Trader, as United States Magistrate Judge, guilty of the war crimes of usurpation of sovereignty and deprivation of fair and regular trial (November 23, 2022).

The RCI, in its reports, found that the pleadings of the Defendants in this case, to include the instant motion to dismiss, and the orders issued therefrom, have met the constituent elements of usurpation of sovereignty and deprivation of fair and regular trial and mens rea.

The U.S. District Court, for the District of Hawai`i has failed and/or refuses to transform and operate as an Article II Court in defiance of the rule of law as set out in these proceedings by the Hawaiian Kingdom and affirmed in the filing of the Amicus Brief filed by the International Association of Democratic Lawyers, the National Lawyers Guild and the Water Protector Legal Collection.  Furthermore, this Court has administered “[m]unicipal laws of the Defendant UNITED STATES OF AMERICA” in addressing all claims for relief by parties to these proceedings, in the territorial jurisdiction of the Hawaiian Kingdom, in complete disregard of international law.

Defendants, all of those seeking relief and dismissal of the Complaint and/or Amended Complaint, have invoked and asserted only “[m]unicipal laws of the Defendant UNITED STATES OF AMERICA” to serve their interest(s) and obtain their relief sought from this Court.  In no instance, have any of these Defendants proffered evidence (rebuttable or otherwise) of the extinguishment of the Hawaiian Kingdom, as a State under international law.  In fact, to the contrary and extreme detriment of Plaintiff, said defendants have intentionally asserted only “[m]unicipal laws of the Defendant UNITED STATES OF AMERICA” and relied on the Court’s extrajudicial review, consideration and application solely on “[m]unicipal laws of the Defendant UNITED STATES OF AMERICA” to grant the relief sought for said Defendants. 

As now documented in the Reports of the RCI, these proceedings have been rendered moot, as the Hawaiian Kingdom is unable to get relief sought in its Complaint/Amended Complaint from the Defendants and this Court, and thereby subjecting Plaintiff, its Council of Regency, its national subjects and its territorial domain to ongoing suffering and damages brought upon by the continuing imposition of “[m]unicipal laws of the Defendant UNITED STATES OF AMERICA.”

Accordingly, as instructed by the Council of Regency, on behalf of Plaintiff Hawaiian Kingdom, I hereby give Notice of Voluntary Dismissal of its Amended Complaint and these proceedings in a manner consistent with Rule 41(a)(1)(A)(i) FRCP.

“MIC DROP”

The American Pot calling the Russian Kettle Black

Speaking to Pacific island leaders, Reuters reported President Joe Biden said “Russia’s assault on Ukraine in pursuit of imperial ambitions is a flagrant, flagrant violation of the UN Charter, and the basic principles of sovereignty and territorial integrity.” The world should know that this is a classic case of the pot calling the kettle black, which is an idiom that means a person should not criticize another person for a fault they themselves have.

Like Ukraine, the Hawaiian Kingdom was an internationally recognized independent State. Where Ukraine got its independence in 1991 after the collapse of the Soviet Union, the Hawaiian Kingdom achieved its independence when Great Britain and France jointly proclaimed that both countries recognized the Hawaiian Islands as an independent State in 1843. The United States explicitly acknowledged Hawaiian independence on July 6, 1844.

One of the fundamental principles of international law is the sovereignty, which is supreme authority, and territorial integrity of an independent State. Independent States have exclusive authority over its territory that is subject to its own laws and not the laws of any other State.

In 1997, a treaty of friendship, cooperation, and partnership between Ukraine and the Russian Federation was signed that came into force on April 1, 2000. Article 2 of the treaty states that “the High Contracting Parties shall respect each other’s territorial integrity and reaffirm the inviolability of the borders existing between them.”

In 1849, a treaty of friendship, commerce and navigation between the Hawaiian Kingdom and the United States was signed that came into force on November 9, 1850. Territorial integrity is acknowledged in article 8 of the treaty that states “each of the two contracting parties engages that the citizens or subjects of the other residing in their respective states, shall enjoy their property and personal security, or the subjects or citizens of the most favored nation, but subject always to the laws and statutes of the two countries respectively.”

Both Ukraine and the Hawaiian Kingdom established diplomatic relations with their treaty partners. While Ukraine maintained an embassy in Moscow, and Russia maintained an embassy in Kiev, the Hawaiian Kingdom maintained an embassy in Washington, D.C., and the United States maintained an embassy in Honolulu.

Like Russia invaded Ukraine on February 24, 2022, the United States invaded the Hawaiian Kingdom on January 16, 1893. In a presidential investigation, U.S. President Grover Cleveland acknowledged that the U.S. “military demonstration upon the soil of Honolulu was itself an act of war,” which led to the overthrow of the Hawaiian government the following day. The purpose of the invasion and overthrow was to secure Pearl Harbor as a naval base of operations to protect the west coast of the United States from invasion by Japan. The Russian invasion of Ukraine was to buffer an invasion by the North Atlantic Treaty Organization or NATO, which the United States is a member of.

On January 31, 1893, U.S. Captain Alfred Mahan from the Naval War College wrote a letter to the Editor of the New York Times where he advocated seizing the Hawaiian Islands. In his letter, Captain Mahan recognized the Hawaiian Islands, “with their geographical and military importance [to be] unrivaled by that of any other position in the North Pacific.” Mahan used the Hawaiian situation to bolster his argument of building a large naval fleet. He warned that a maritime power could well seize the Hawaiian Islands, and that the United States should take that first step. He wrote, “To hold [the Hawaiian Islands], whether in the supposed case or in war with a European state, implies a great extension of our naval power. Are we ready to undertake this?”

Although President Cleveland apologized for the overthrow of the Hawaiian Kingdom government and entered into a treaty with Queen Lili‘uokalani on December 18, 1893, to restore her to the Hawaiian throne as a constitutional executive monarch, he was prevented from doing so because of the war hawks in the Congress that wanted Pearl Harbor. This consequently placed the Hawaiian Islands in civil unrest under the control of insurgents that received support from Americans in the United States. They were pretending to be a government by calling themselves the provisional government. The reason for the pretending is because President Cleveland’s investigation already concluded “that the provisional government owes its existence to an armed invasion by the United States.” In other words, the insurgents were a puppet of the U.S.

Five years would lapse, and the Cleveland administration was replaced by President William McKinley. U.S. Secretary of the Navy John Young was an advocate for annexing the Hawaiian Islands. Secretary Long was influenced by Assistant Secretary of the Navy Theodore Roosevelt, who would later become President in 1901. On May 3, 1897, Roosevelt wrote a letter to Captain Mahan. He stated, “I need not tell you that as regards Hawaii I take your views absolutely, as indeed I do on foreign policy generally. If I had my way we would annex those islands tomorrow.” Roosevelt also stated that Cleveland’s handling of the Hawaiian situation was “a colossal crime, and we should be guilty of aiding him after the fact if we do not reverse what he did.” Roosevelt also assured Mahan, that “Secretary Long shares our views. He believes we should take the islands, and I have just been preparing some memoranda for him to use at the Cabinet meeting tomorrow.”

The opportunity for the United States to seize the Hawaiian Islands occurred at the height of the Spanish-American War. On July 6, 1898, the war hawks in the Congress passed a joint resolution declaring that the Hawaiian Islands had been annexed and President McKinley signed it into law the following day.

The opportunity for Russia to seize a portion of Ukrainian territory came after sham referendums where the people of the regions of Donetsk, Luhansk, Kherson and Zaporizhzhia voted to be Russian and not remain Ukrainian. On September 30, 2022, Reuters reported that “Russian President Vladimir Putin announced Russia had ‘four new regions’ in a speech in the Kremliin on Friday in which he outlined Russia’s annexation of four Ukrainian regions that Moscow’s forces have partially seized during a seven-month conflict with Ukraine.”

Despite the American annexation of the Hawaiian Islands and the Russian annexation of the four Ukrainian regions, they remain illegal under international law. Because it is illegal it did not alter the territorial integrity of both the Hawaiian Kingdom and Ukraine as independent States. As Professor Malcolm Shaws wrote, “It is, however, clear today that the acquisition of territory by force alone is illegal under international law.” And according to The Handbook of Humanitarian Law in Armed Conflicts (1995):

The international law of belligerent occupation must therefore be understood as meaning that the occupying power is not sovereign, but exercises provisional and temporary control over foreign territory. The legal situation of the territory can be altered only through a peace treaty. International law does not permit annexation of territory of another State.

The return of unlawfully annexed territory occurs when there are changes in the physical power of the usurping State. Since the usurping State has no lawful authority over annexed territory, its possession is based purely on power and not law. Similarly, the abductor of a kidnapped child, being an act prohibited by law, does not become the parent of the child by force despite the length of the kidnapping. And when the child is eventually rescued and the power of the abductor eliminated and taken into custody, the child can then return to the family.

Unlike Ukraine, there was no Reuters news agency in the 1890s informing the world of the illegal activities of the United States against the Hawaiian Kingdom and the illegal annexation of the Hawaiian Islands for military purposes during the Spanish-American War. While there is a difference in time, the Russian actions bear a striking resemblance to the United States actions in seizing the entire territory of the Hawaiian Kingdom. While both the American and Russian actions are unlawful, the Hawaiian Kingdom, like Ukraine, remain independent States under international law together with their territorial integrity intact despite the unlawful annexations.

In the case of the Hawaiian Kingdom, the Permanent Court of Arbitration, in Larsen v. Hawaiian Kingdom, acknowledged the continued existence of the Hawaiian Kingdom as a “State” under international law in 1999, which includes its territorial integrity. In the case of Ukraine, everyone in the world already knows that Ukraine is a “State” under international law.

This is a classic case of the American pot calling the Russian kettle black.

For more information on the belligerent occupation of the Hawaiian Kingdom by the United States and the unilateral annexation of Hawaiian territory, read Dr. Keanu Sai’s law article Backstory – Larsen v. Hawaiian Kingdom at the Permanent Court of Arbitration (1999-2001).

Dr. Keanu Sai to Start Off United Church of Christ Workshops on Hawaiian Kingdom History on August 7, 2022

A free online learning opportunity for ALL hosted by the HCUCC Justice and Witness Missional Team in collaboration with the Association of Hawaiian Evangelical Churches

Come join the HCUCC Justice and Witness Missional Team for this exciting and informative exploration of Hawaiian History. Whether you are kamaʻāina or a relative newcomer to Hawaiʻi, you will hear history that you have not heard before.

Three eminent scholars, Dr. Keanu Sai, Dr. Ron Williams Jr., and Donovan Preza, will help us delve into historic documents and events that can inform us as we seek understanding and discernment regarding fulfilling our promise made in the UCC’s apology 30 years ago to the Hawaiian people to stand with them in seeking justice.

See and hear newly translated church documents from over a century. Learn about the Hawaiian Kingdomʻs founding and continuing legal status under International law. Learn about the Mahele and privatization of Hawaiian land under Hawaiian Kingdom law and why land issues will continue unless the UCC promise is fulfilled. Learn about churches who actively resisted the overthrow of the Hawaiian Kingdom, and the white oligarchy who facilitated the illegal overthrow. If as brothers and sisters in Christ we desire reconciliation, we must first acknowledge the nature of the wrongs and their continuing effects on these islands, the Hawaiian people, and our Church.

This 12-week series will be presented through Zoom beginning on Sunday, August 7, 2022, at 4:00 p.m. HST and continues each Sunday, at the same time, through October 23, 2022. Each Zoom session will be one hour long consisting of a presentation followed by questions and discussion.

To attend any or all of the sessions, please register HERE.

PART I: The Kingdom

Presenter: Dr. Keanu Sai

ABOUT THE PRESENTER: I have a Ph.D. in Political Science specializing in Hawaiian Constitutionalism and International Relations, and a founding member of the Hawaiian Society of Law & Politics. I served as lead Agent for the Hawaiian Kingdom in arbitration proceedings before the Permanent Court of Arbitration at The Hague, Netherlands, from November 1999-February 2001. I also served as Agent in a Complaint against the United States of America concerning the prolonged occupation of the Hawaiian Kingdom, which was filed with the United Nations Security Council on July 5, 2001. Articles on the status of the Hawaiian Kingdom as an independent state, the arbitration case and the complaint filed with the United Nations Security Council have been published in the following journals: American Journal of International Law, vol. 95 (2001); Chinese Journal of International Law, vol. 2, issue 1, (2002), and the Hawaiian Journal of Law & Politics, vol. 1 (2004).

  1. AUGUST 7 Hōʻike ʻEkahi (Presentation 1) The importance of terminology. Is Hawaiian a nationality, which is multi-ethnic, or a native indigenous people that have been colonized by the United States?
  2. AUGUST 14 Hōʻike ʻElua (Presentation 2) The constitutional history of the Hawaiian Kingdom from King Kamehameha III to Queen Lili‘uokalani (1839-1893)
  3. AUGUST 21 Hōʻike ʻEkolu (Presentation 3) The illegal overthrow of the government of the Hawaiian Kingdom and the continued existence of the Hawaiian Kingdom as a State under international law
  4. AUGUST 28 Hōʻike ʻEhā (Presentation 4) The road to recovery of ending the American occupation. How to bring compliance to the rule of law in light of war crimes and human rights violations committed in the Hawaiian Kingdom since January 16, 1893

PART II: The Church

Presenter: Dr. Ronald Williams Jr.

ABOUT THE PRESENTER: Dr. Ronald Williams Jr. holds a doctorate in history from the University of Hawaiʻi at Mānoa with a specialization in Hawaiʻi and Native-language resources. He is a former faculty member of the Hawaiʻinuiākea School of Hawaiian Knowledge, UH Mānoa and in 2017 was the founding director of the school’s Lāhui Hawaiʻi Research Center. Dr. Williams is also a past president of the 128-year old Hawaiian Historical Society. He currently works as an archivist at the Hawaiʻi State Archives and serves as Hoʻopaʻa Kūʻauhau (Historian) for the grassroots political organization Ka ʻAhahui Hawaiʻi Aloha ʻĀina. Dr. Williams was a contributing author to the 2019 Samuel Manaiākalani Kamakau Book of the Year award-winning publication, Hoʻoulu Hawaiʻi: The Kalākaua Era. He has published in a wide variety of academic and public history venues including the Oxford Encyclopedia of Religion in America, the Hawaiian Journal of History, and Hana Hou! Magazine.

  1. SEPTEMBER 04 Hōʻike ʻEkahi (Presentation 1) The Early Mission, 1820 -1863
  2. SEPTEMBER 11 Hōʻike ʻElua (Presentation 2) Hōʻeuʻeu Hou: Sons of the Mission and the Shaping of a New “Mission,” 1863-1888
  3. SEPTEMBER 18 Hōʻike ʻEkolu (Presentation 3) Poʻe Karitiano ʻOiaʻiʻo (True Christians)
  4. SEPTEMBER 25 Hōʻike ʻEhā (Presentation 4) “I ka Wā Mamua, ka Wā Mahope” (The Future is in the Past)

PART III: The Land

Presenter: Donovan Preza MORE INFO TO COME

  1. OCTOBER 2 Hōʻike ʻEkahi (Presentation 1)
  2. OCTOBER 9 Hōʻike ʻElua (Presentation 2)
  3. OCTOBER 16 Hōʻike ʻEkolu (Presentation 3)
  4. OCTOBER 23 Hōʻike ʻEhā (Presentation 4)

Calculating Reparations for 129 years of the United States’ Violations of International Humanitarian Law since 1893

The ongoing illegal state of war between the Hawaiian Kingdom and the United States since 1893, and the prolonged belligerent occupation of an internationally recognized independent State has violated all norms of international law. In light of the federal lawsuit, Hawaiian Kingdom v. Biden, it is timely to address another war and subsequent belligerent occupation that the United States was involved, which eventually came to an end with the payment of reparations. This was the war with Japan from 1941-51.

Here follows the reparations for war paid by the Japanese government under the 1951 Treaty of Peace.

Reparation Payments:

Reparations were made by Japan pursuant to Article 14(a), 1951 Japan Treaty of Peace, which states, “It is recognized that Japan should pay reparations to the Allied Powers for the damage suffering caused by it during the war.” Below are Japanese reparations to countries for 10 years of war (1941-51).

CountryAmount in US$Date of Treaty
Burma$200 millionNov. 5, 1955
Philippines$550 millionMay 9, 1956
Indonesia$223 millionJan. 20, 1958
Vietnam$39 millionMay 13, 1959
Average$250 millionMean year—1957
Inflation calculator$2.6 billionYear—2022

As a basis to calculate the amount of reparations that could be owed to the Hawaiian Kingdom by the United States up to the year of 2022, which is 129 years of war, the Japanese reparations paid could serve as a guide by applying the years of war to the years of war with the Hawaiian Kingdom. Reparations to be paid by the United States could be calculated at $32 billion, which is $250 million annually multiplied by 129 years of war with the Hawaiian Kingdom. The inflation calculator sets $32 billion in 1957 to $337 billion in 2022.

According to the 1876 Act to Regulate the Currency, “the gold coins of the United States of America shall be the standard and a legal tender in this Kingdom in all payments of debts, at their nominal value.” Although the United States completely stopped using the gold standard in 1973, it was replaced by fiat money that the U.S. government orders its currency must be used for payments.

This measurement could also be applied to other countries who are parties to the conflict and who have been complicit in the belligerent actions taken by the United States against the Hawaiian Kingdom such as the 20 States that unlawfully recognized the United States surrogate calling itself the so-called Republic of Hawai‘i in 1894. These States, and the dates they recognized the American puppet, include:

According to renowned American jurist, Professor Ellery Stowell, Intervention in International Law (1921) at 349, n. 75, a “foreign state which intervenes in support of [insurgents] commits an act of war against the state to which it belongs, and steps outside the law of nations in time of peace.”

Seizing of Assets:

Seizure of Japanese assets in the territories of Allied Powers was also done pursuant to Article 14(a)(2)(I), 1951 Japan Treaty of Peace, which states, “Subject to the provisions of sub-paragraph (II) below, each of the Allied Powers shall have the right to seize, retain, liquidate or otherwise dispose of all property, rights and interests of (a) Japan and Japanese nationals, (b) persons acting for or on behalf of Japan or Japanese nationals, and (c) entities owned or controlled by Japan or Japanese nationals, which on the first coming into force of the present Treaty were subject to its jurisdiction.”

In the United States, Japanese assets seized amounted to $85 million (inflation conversion for 2022—$896 million). Pursuant to Presidential Executive Order no. 9567—Alien Property Custodian (1945), the United States took title by “vesting” of all property of Japan and Germany and their nationals. Under the 1948 War Claims Act proceeds derived from these assets would not be returned, but rather placed in a War Claims Fund from which payments would be made to United States citizens that suffered as a consequence of the war with Japan and Germany.

Assets held by the United States and other States who are parties to the conflict since January 16, 1893, to include their nationals, within the territorial jurisdiction of the Hawaiian Kingdom are yet to be determined. The liquidation of these assets could be utilized in similar fashion as the United States did regarding Japanese and German properties vested under Alien Property Custodian, to compensate Hawaiian subjects who were the victims of war crimes under international humanitarian law.

Hawaiian Kingdom Petitions Ninth Circuit Court to Compel Judge Kobayashi to Transform into an Article II Occupation Court

On May 25, 2022, on behalf of the United States, President Joseph Biden, Vice-President Kamala Harris, Commissioner of the Internal Revenue Service, Commander of the Indo-Pacific Command Admiral Aquilino, Senate Majority Leader Charles Schumer and Speaker of the House Nancy Pelosi, the Department of Justice in Washington, D.C., filed a Response to the Hawaiian Kingdom’s Motion to Dismiss for Forum Non Conveniens.

A motion to dismiss for forum non conveniens is filed with an appellate court if the proper court of appeals is in a foreign country. In its motion the Hawaiian Kingdom is asking the Ninth Circuit Court to dismiss the appeal because the Clerk of the District Court of Hawai‘i transmitted the appeal to the Ninth Circuit in error.

When the Hawaiian Kingdom filed its Notice of Appeal with the Clerk of the United States District Court for the District of Hawai‘i on April 24, 2022, it specifically stated that the Hawaiian Kingdom was appealing to a competent Court of Appeals to be hereafter established by the United States as an Occupying Power within the territory of the Hawaiian Kingdom. It was the Clerk that transferred the Notice of Appeal to the Ninth Circuit Court of Appeals in San Francisco, and not the Hawaiian Kingdom.

The international laws of occupation allows the Occupying Power, in this case the United States, to establish an Article II Occupation Court in the Hawaiian Kingdom’s territory as the occupying State to administer the laws of the occupied State and the international laws of occupation. The United States established an Article II Occupation Court in Germany in 1945 until 1955 when the occupation of Germany ended.

After receiving the appeal, the Clerk of the Ninth Circuit issued an Order for the Hawaiian Kingdom to file within 21 days a motion “for voluntary dismissal of the appeal or show cause why it should not be dismissed for lack of jurisdiction.” Federal appeals can only be made after the case is over at the trial court level. District Court Judge Leslie Kobayashi did not terminate the proceedings in Hawaiian Kingdom v. Biden.

The Hawaiian Kingdom filed its Motion to Dismiss for Forum Non Conveniens, but in doing so asked the Ninth Circuit Court to comply with the Lorenzo principle, which is federal common law, and compel the United States to show evidence that the Hawaiian Kingdom does not exist as a matter of international law. The Hawaiian Kingdom is “show[ing] cause why it should not be dismissed for lack of jurisdiction.” The Lorenzo principle has a direct nexus to a 1994 appeal that came before the State of Hawai‘i Intermediate Court of Appeals called State of Hawai‘i v. Lorenzo. The Appellate Court stated:

Lorenzo appeals, arguing that the lower court erred in denying his pretrial motion (Motion) to dismiss the indictment. The essence of the Motion is that the [Ha­waiian Kingdom] (Kingdom) was recognized as an independent sovereign nation by the United States in numerous bilateral treaties; the Kingdom was illegally overthrown in 1893 with the assistance of the United States; the Kingdom still exists as a sovereign nation; he is a citizen of the Kingdom; therefore, the courts of the State of Hawai‘i have no jurisdiction over him. Lorenzo makes the same argument on appeal. For the reasons set forth below, we conclude that the lower court correctly denied the Motion.

Lorenzo became a precedent case on the subject of the Hawaiian Kingdom’s existence as a State in State of Hawai‘i courts, and is known in the United States District Court in Hawai‘i, since 2002, as the Lorenzo principle. The Lorenzo principle placed the burden of proof that the Hawaiian Kingdom continues to exist as a State on the defendants. In 2014, the Hawai‘i Supreme Court clarified this evidentiary burden. In State of Hawai‘i v. Armitage, the Supreme Court stated:

Lorenzo held that, for jurisdictional purposes, should a defendant demonstrate a factual or legal basis that the [Hawaiian Kingdom] “exists as a state in accordance with recognized attributes of a state’s foreign nature[,]” and that he or she is a citizen of that sovereign state, a defendant may be able to argue that the courts of the State of Hawai‘i lack jurisdiction over him or her.

There have been seventeen federal cases that applied the Lorenzo principle, two of which came before the Ninth Circuit Court. However, a careful read of the Lorenzo decision reveals a stunning shift of who has the burden of proof and what needs to be proven. The Appellate Court in Lorenzo stated that “the court’s rationale is open to question in light of international law.” Since the determination of whether a State exists is a matter of international law, what does international law say about the existence of a State?

A rule of international law is that an established State is presumed to still exist despite its government being military overthrown. This is why the German State continued to exist after the Nazi government was militarily overthrown in 1945, and why the Japanese State continued to exist despite the military overthrow of the Japanese government, both of which ended the Second World War. In other words, the Hawaiian Kingdom, as an established State under international law, like Germany and Japan, is presumed to continue to exist despite the illegal overthrow of its government on January 17, 1893.

Because the Hawaiian Kingdom continues to exist, the burden was not on Lorenzo as the defendant to prove the Hawaiian Kingdom “exists,” but rather the burden is placed on the prosecutor to prove that the Hawaiian Kingdom “does not exist.” The State of Hawai‘i courts that applied the Lorenzo principle in multiple cases applied it wrong.

Also, the seventeen federal cases that applied the Lorenzo principle also had it wrong, and like the State of Hawai‘i courts are rendered unlawful because of international law, so is the United States District Court for the District of Hawai‘i. This means that all court decisions after 1893, whether the provisional government, the Republic of Hawai‘i, the Territory of Hawai‘i, the State of Hawai‘i, and since 1900, the federal courts, are void because the courts were never lawful to begin with.

Further implications of international law renders the State of Hawai‘i itself as unlawful. On this note, the Appellate Court in Lorenzo also stated that the “illegal overthrow leaves open the question whether the present governance system should be recognized” because a “State has an obligation not to recognize or treat as a state an entity that has attained the qualifications for statehood as a result of a threat or use of armed force.”

The State of Hawai‘i is a direct successor to the provisional government that was established through the “use of armed force.” In 1893, President Grover Cleveland concluded that the provisional government, which is a predecessor of the State of Hawai‘i, “owes its existence to an armed invasion by the United States.” Secretary of State Walter Gresham stated that “the Government of Hawaii surrendered its authority under a threat of war, until such time only as the Government of the United States, upon the facts being presented to it, should reinstate the constitutional sovereign.” In other words, the trial court that prosecuted Lorenzo and the Appellate Court that heard Lorenzo’s appeal were never lawful in the first place.

The Hawaiian Kingdom’s appeal that was forwarded to the Ninth Circuit by the Clerk of the District Court in Hawai‘i raised a very interesting twist regarding the Lorenzo principle and the legal standing of the Ninth Circuit. By making the Lorenzo principle into federal common law, which means judge made law at the federal level, the Ninth Circuit is bound by the Lorenzo principle, especially when the Ninth Circuit applied the Lorenzo principle in two cases that it heard on appeal.

Unlike the Hawai‘i District Court, which is currently unlawful until it transforms itself into an Article II Occupation Court, the Ninth Circuit is lawful, as an Article III Court, because it sits in the territory of the United States. As such, the Hawaiian Kingdom can invoke the Lorenzo principle that the Hawaiian Kingdom is presumed to continue to exist unless the United States, who is a defendant-appellee in this case, can provide evidence that the Hawaiian Kingdom does not exist. Without providing a treaty of peace whereby the Hawaiian Kingdom ceded itself to the United States, the presumption of continuity remains. There is no treaty except for the unlawful imposition of American municipal laws since 1898.

Yesterday, June 2, 2022, the Hawaiian Kingdom filed its Reply to the United States response to its motion to dismiss that reiterated the Lorenzo principle and why the federal court in Hawai‘i is unlawful. And that since the Ninth Circuit is not unlawful because it sits within the territory of the United States in the city of San Francisco, it should apply the Lorenzo principle in this unique case that has now come before it.

In its Reply, the Hawaiian Kingdom has petitioned the Ninth Circuit for a writ of mandamus to compel Judge Leslie Kobayashi to transform the United States District Court in Hawai‘i into an Article II Occupation Court pursuant to the Lorenzo principle and international law. Under the All Writs Act, federal circuit courts of appeal are authorized to compel an inferior court within its circuit to do something that the law says must be done. In this case, international law requires that only Article II Occupation Courts that administer the laws of the occupied State and the law of occupation can be established in the territory of the Hawaiian Kingdom.

With the filings of the Hawaiian Kingdom’s Motion to Dismiss for Forum Non Conveniens, the United States’ Response, and the Hawaiian Kingdom’s Reply, the issue is now in the hands of the Ninth Circuit for a decision.

Hawaiian Kingdom v. Biden: Federal Judge Acknowledges the Hawaiian Kingdom Continues to Exist under International Law

It the latest filing of a Minute Order on April 19, 2022, in the federal lawsuit, Hawaiian Kingdom v. Biden, U.S. District Court Judge Leslie Kobayashi denied the Hawaiian Kingdom’s Motion for Reconsideration, but simultaneously acknowledged the continued existence of the Hawaiian Kingdom as a State under international law.

Judge Leslie E. Kobayashi

In its Motion for Reconsideration, the Hawaiian Kingdom was addressing Judge Kobayashi’s terse statement in two previous Orders that “there is no factual (or legal basis) for concluding that the [Hawaiian] Kingdom exists as a state in accordance with recognized attributes of a state’s sovereign nature.” This statement runs counter to international law where an international rule exists regarding the continued existence of the Hawaiian Kingdom as a State despite the United States admitted illegal overthrow of its government on January 17, 1893. She provided no evidence to back up her one line statement.

Under international law, according to Judge James Crawford, there “is a presumption that the State continues to exist, with its rights and obligations despite a period in which there is no effective, government,” and that belligerent “occupation does not affect the continuity of the State, even where there exists no government claiming to represent the occupied State.”

According to Black’s Law Dictionary, a “presumption is a rule of law, statutory or judicial, by which finding of a basic fact gives rise to existence of presumed fact, until presumption is rebutted.” In other words, presumption is a rule of international law where a recognized independent State is a basic fact that gives rise to the existence of a presumed fact, which is its continued existence until this presumed fact is rebutted with evidence. Evidence that would show the Hawaiian Kingdom “does not” continue to exist under international law is where the Hawaiian Kingdom transferred its sovereignty and territory to the United States by a treaty.

The presumption of innocence works the same as the presumption of continuity because the burden to disprove the presumption lies with the opposing party. In a criminal trial, the defendant does not have the burden to “prove” his or her innocence, but rather it is the burden of the prosecutor to “disprove” the innocence with rebuttable evidence. Likewise, the Hawaiian Kingdom does not have the burden to “prove” its continued existence, but rather it is the burden of the United States to “disprove” the Hawaiian Kingdom’s continued existence with rebuttable evidence under international law.

Like the presumption of innocence, the presumption of continuity has a much more significant role in legal or court proceedings because it is evidence based as opposed to political venues that rely on power and rhetoric. In a court proceeding, the presumption rule is the cornerstone of the rule of law and the basis for a fair trial.

As Professor Matthew Craven explains, “If one were to speak about a presumption of continuity, one would suppose that an obligation would lie upon the party opposing that continuity to establish the facts sustaining its rebuttal. The continuity of the Hawaiian Kingdom, in other words, may be refuted only by reference to a valid demonstration of legal rights, or sovereignty, on the part of the United States, absent of which the presumption remains.” According to Craven, only by the Hawaiian Kingdom’s “incorporation, union, or submission” to the United States, which is by treaty, can the presumption of continuity be rebutted.

There is no treaty, but rather a Congressional joint resolution of annexation that was signed into U.S. law on July 7, 1898, by President William McKinley. The problem is that a joint resolution is not a treaty but rather a United States municipal law that has no effect beyond the borders of the United States. Ninety years later, in 1988, the U.S. Department of Justice’s Office of Legal Counsel, in a legal opinion, stated, “we doubt that Congress has constitutional authority to assert either sovereignty over an extended territorial sea or jurisdiction over it under international law on behalf of the United States. It is therefore unclear which constitutional power of Congress exercised when it acquired Hawaii by joint resolution.”

Judge Kobayashi, in her latest Order, did not deny the customary international rule of the presumption of continuity of the Hawaiian Kingdom as a sovereign and independent State as was fully explained in the Hawaiian Kingdom’s Motion for Reconsideration. She also did not provide any rebuttable evidence to the presumption of continuity that the Hawaiian Kingdom was extinguished as a State under international law. As the U.S. Supreme Court stated, in The Paquette Habana, 175 U.S. 677, 700 (1900) “International law is part of our law, and must be ascertained and administered by the courts of justice of appropriate jurisdiction as often as questions of right depending upon it are duly presented for their determination.”

In her Order, Judge Kobayashi disregarded international law and simply stated, “Although Plaintiff argues there are manifest errors of law in the 3/30/22 Order and the 3/31/22 Order, Plaintiff merely disagrees with the Court’s decision.” This is analogous to a defense attorney asking the presiding judge to set aside the judgment against the defendant because the prosecutor provided no evidence in trial rebutting the presumption of innocence. And the judge simply responded, “Defendant merely disagrees with the Court’s decision.” Despite the unlawfulness of such a judgment, the Defendant is still innocent.

More significantly though, in these proceedings, is that this cavalier statement by Judge Kobayashi neither denied the international rule of the presumption of continuity nor did she provide any rebuttable evidence that the Hawaiian Kingdom does not continue to exist. This is also a difficult task for Judge Kobayashi because the Permanent Court of Arbitration, in Larsen v. Hawaiian Kingdom, previously acknowledged the continued existence of the Hawaiian Kingdom as a “State” as shown in its case repository.

Consequently, by not providing any rebuttable evidence, i.e., a treaty, Judge Kobayashi acknowledged the continued existence of the Hawaiian Kingdom as a sovereign and independent State and yet disregarded her obligation under international law to transform the Court into an Article II Occupation Court.

In order to preserve the statements made by Judge Kobayashi and the defendants United States and the Swedish Consul, as well as the default entered by the Clerk for the State of Hawai‘i, to include Governor David Ige, Securities Commissioner Ty Nohara, and Director of the Department of Taxation Isaac Choy, and the twelve foreign Consulates also named as defendants in the case, which include Austria, Belgium, Chile, Germany, Japan, Luxembourg, Netherlands, Norway, Philippines, South Korea, Spain, and Thailand, the Hawaiian Kingdom filed a Notice of Appeal today with the Court. In its opening paragraph, the Hawaiian Kingdom stated:

TO THE COURT AND TO ALL PARTIES HEREIN:

PLEASE TAKE NOTICE that Plaintiff HAWAIIAN KINGDOM, hereby preserves the record of these proceedings by its notice to appeal to a competent court of appeals to be hereafter established in the Hawaiian Kingdom by the United States as an Occupying Power in accordance with international humanitarian law from the Order granting in part and denying in part Defendant Nervell’s Motion to Dismiss [ECF 222], Order denying Plaintiff’s Motion for Judicial Notice [ECF 223], and Minute Order denying Plaintiff’s Motion for Reconsideration and Motion to Amend [ECF 227].

In its Notice of Appeal, the Hawaiian Kingdom addressed the lack of fairness by the federal Court and the legal consequences of Judge Kobayashi’s actions that constitute the war crime of “willfully” depriving the Hawaiian Kingdom of its “rights of fair and regular trial” guaranteed in the 1949 Fourth Geneva Convention. Grave breaches are war crimes that have been codified under federal criminal law in Title 18 U.S. Code §2441(c)(1).

Although the “Occupying Power is […] free to decide whether or not the competent courts of appeal are to sit in occupied territory,” Article 66 of the Fourth Geneva Convention “states that they should ‘preferably’ sit in the occupied country; this would be likely to provide the protected persons with additional safeguards.” See Jean S. Pictet, Commentary IV Geneva Convention (1958), 341. The United States has not established “competent courts of appeal” in the Hawaiian Kingdom or in the United States to address the Hawaiian Kingdom’s instant appeal.

Consequently, the Court’s disregard of obligations mandated under international law, in its refusal to transform, and the inability of Plaintiff to appeal to an Article II appellate court has willfully deprived Plaintiff of its “rights of fair and regular trial,” thus being a “grave breach” of the 1949 Fourth Geneva Convention, Article 147, 6.3 U.S.T. 3516, 3618 (1955); 18 U.S.C. §2441(c)(1).

The Hawaiian Kingdom concluded in its Notice of Appeal:

This Court was not “established and organized in accordance with the laws and procedures already in force” in the Hawaiian Kingdom, nor “in accordance with the recognized principles governing the administration of justice.”  Accordingly, the Hawaiian Kingdom’s notice of appeal is submitted for purposes of preserving the record of these proceedings in its appeal until this Court transforms or a competent Article II appellate court is established in compliance with international humanitarian law and Hawaiian Kingdom law.

The Court can learn from the Hawaiian Kingdom Supreme Court, in Shillaber v. Waldo et al., 1 Haw. 31, 32 (1848), where Chief Justice William Lee stated, “In the language of another, ‘Let justice be done though the heavens fall.’ Let the laws be obeyed, though it ruin every judicial and executive officer in the Kingdom. Courts may err. Clerks may err. Marshals may err—they do err in every land daily; but when they err let them correct their errors without consulting pride, expediency, or any other consequences.”

POINT OF CLARIFICATION: The Hawaiian Kingdom is not appealing to the 9th Circuit Court of Appeals because it is an Article III Court situated within the territory of the United States. If the United States District Court for the District of Hawai‘i was operating lawfully as an Article III Court, an appeal would be made with the 9th Circuit. However, this Court is not lawfully operating, and therefore the Hawaiian Kingdom is appealing to an Article II Appellate Court that has yet to be established. The purpose of the Notice of Appeal is also to preserve the record of these proceedings until either this Court transforms itself into an Article II Occupation Court or until the United States establishes Article II Appellate Courts.

The 800-pound Gorilla in the Federal Court: Hawaiian Kingdom v. Biden

Since these proceedings were initiated 11 months ago with the filing of the initial complaint on May 20, 2021, Hawaiian Kingdom v. Biden, and then the filing of the amended complaint on August 11, 2021, there was always the “800-pound gorilla in the room” that the Court did not want to directly address until last week.

That gorilla was the continued existence of the Hawaiian Kingdom as a sovereign and independent State despite the unlawful overthrow of the Hawaiian government by the United States on January 17, 1893, and being belligerently occupied by the United States for over a century. If the gorilla exists, the Court can only exist as an Article II Court under international law operating in an occupied country. If the gorilla doesn’t exist, then the Court continues to exist as an Article III Court under United States law.

The amicus brief filed by the International Association of Democratic Lawyers, the National Lawyers Guild, and the Water Protectors Legal Collective explained why the Court’s present status as an Article III Court is unlawful because it is situated within the territory of the Hawaiian Kingdom and not the United States. As such, it must transform itself into an Article II Occupation Court.

Neither Magistrate Judge Rom Trader nor District Judge Leslie Kobayashi directly addressed the 800-pound gorilla until Judge Kobayashi issued the first Order on March 30, 2022, partially granting a motion to dismiss filed by Nervell, as the Swedish Honorary Consul to Hawai‘i. In her Order Judge Kobayashi stated:

Plaintiff argues that “[b]efore the Court can address the substance of [Nervell’s] motion to dismiss it must first transform itself into an Article II Court…” Plaintiff bases this argument on the proposition that the Hawaiian Kingdom is a sovereign and independent state. This district has uniformly rejected such a proposition. “‘[T]here is no factual (or legal basis) for concluding that the [Hawaiian] Kingdom exists as a state in accordance with recognized attributes of a state’s sovereign nature.’” Plaintiff’s request for the Court to “transform itself into an Article II Court” is therefore denied.

The Court admits that it could “transform itself into an Article II Court” but for “concluding that the [Hawaiian] Kingdom” does not exist as a State it could not. Conversely, if the Hawaiian Kingdom continues to exist as a State, the Court will then “transform itself into an Article II Court.”

The Court later noted that “Plaintiff asserts its claim against Nervell in his official capacity as Honorary Consul of Sweden to Hawai‘i. Nervell argues that, because Plaintiff’s claim is against him in his official capacity, the Court does not possess jurisdiction over him, pursuant to the Vienna Convention. The Court agrees.” The Hawaiian Kingdom at no time in these proceedings denied Sweden’s appointment of Defendant Nervell as the Honorary Consul of Sweden to Hawai‘i. Rather, the Hawaiian Kingdom’s position was that Defendant Nervell held an inchoate title as Honorary Consul because he did not receive his exequatur from the Hawaiian Foreign Ministry by virtue of Article XII of the 1852 Hawaiian-Swedish Treaty. Without accreditation by the Hawaiian Kingdom, Defendant Nervell cannot claim any “official capacity” under the Vienna Convention. Also, Defendant Nervell never provided evidence that the 1852 Hawaiian-Swedish Treaty was replaced by the 1793 United States-Swedish Treaty.

On March 31, 2022, the Court issued its second Order Denying Plaintiff’s Motion for Judicial Notice. The basis of the denial was the same in its previous Order that “‘there is no factual (or legal) basis for concluding that the [Hawaiian] Kingdom exists as a state in accordance with recognized attributes of a state’s sovereign nature,” and, therefore, “the Ninth Circuit, this district court, and Hawai‘i state courts have all held that the laws of the United States and the State of Hawai‘i apply to all individuals in this State.”

Conversely, if the Hawaiian Kingdom continues to exist as a State, all “laws of the United States and the State of Hawai‘i” do not apply within the territory of the Hawaiian Kingdom. Judge Kobayashi initiated a legal dialogue with the 800-pound gorilla—the Hawaiian Kingdom.

The two Orders are not final, and according to the Federal Rules of Civil Procedure, the Hawaiian Kingdom, as the gorilla in this case, is given an opportunity to respond to the position taken by Judge Kobayashi that the gorilla doesn’t exist.

Last night, April 7, 2022, the Hawaiian Kingdom filed a Motion for Reconsideration that explained why both Orders violate international law and the American doctrine of separation of powers.

In both Orders, Judge Kobayashi, by a general verdict, denies the existence of the Hawaiian Kingdom as a sovereign and independent State. She cites U.S. Bank Tr., N.A. v. Fonoti, but provided no evidence or reasoning of the Court’s rejection of the continuity of the Hawaiian Kingdom as a State. The Fonoti decision directly cites a State of Hawai‘i case—State v. French, where the State of Hawai‘i appeals court stated, “this particular kind of claim was rejected in State v. Lorenzo, which held that presently there ‘is no factual (or legal) basis for concluding that the [Hawaiian] Kingdom exists as a state in accordance with recognized attributes of a state’s sovereign nature.”

But Judge Kobayashi’s Order omitted the word “presently” that precedes “there is no factual (or legal basis) for concluding that the Hawaiian Kingdom exists as a state.” This would be misleading because it would appear that the Order was conclusive by merely leaving the word “presently” out of the Order. In State of Hawai‘i v. Lorenzo, the appellate court explained its use of the word “presently,” because “it was incumbent on Defendant to present evidence supporting his claim,” and that “Lorenzo has presented no factual (or legal) basis for concluding that the Kingdom exists as a state in accordance with recognized attributes of a state’s sovereign nature.”

In other words, the reason why the Lorenzo Court used “presently” was because Lorenzo did not “present evidence supporting his claim.” The Lorenzo court did not foreclose the question but rather provided, what it saw at the time, instruction for the Court to arrive at the conclusion that the Hawaiian Kingdom continues to exist as a State based on evidence provided to the Court. The Lorenzo Court placed the burden of proof that the Hawaiian Kingdom continues to exist on the Defendant. The Lorenzo Court, however, acknowledged that its “rationale is open to question in light of international law.”

Because international law provides for the presumption of the continuity of the State despite the overthrow of its government by another State, it shifts the burden of proof. According to Judge Crawford, “there is a presumption that the State continues to exist, with its rights and obligations despite a period in which there no effective government.” He also stated that “belligerent occupation does not affect the continuity of the State, even where there exists no government claiming to represent the occupied State.” In other words, the Hawaiian Kingdom would continue to exist as a State despite the American military overthrow of the Hawaiian government on January 17, 1893.

According to Professor Craven, “If one were to speak about a presumption of continuity, one would suppose that an obligation would lie upon the party opposing that continuity to establish the facts substantiating its rebuttal. The continuity of the Hawaiian Kingdom, in other words, may be refuted only by reference to a valid demonstration of legal title, or sovereignty, on the part of the United States, absent of which the presumption remains.”

The “presumption of continuity of a State” is similar to the “presumption of innocence.” A person on trial does not have the burden to prove their innocence. Rather, the prosecutor has to prove beyond all reasonable doubt the guilt of the person. Without proof of guilt, the person remains innocent. In international law, a recognized sovereign and independent State does not have the burden to prove it continues be a State after being belligerently occupied for over a century. Rather, the opposing State has to prove with evidence under international law that the State was extinguished. Absent the evidence, the State continues to exist.

Therefore, the Lorenzo Court’s placing of the burden on the Defendant is misplaced because international law places the burden “on the party opposing that continuity to establish the facts substantiating its rebuttal.” The only fact the Defendant would need to provide is evidence that the United States recognized the Hawaiian Kingdom as a State, which would be the 1849 Treaty of Friendship, Commerce and Navigation. Judge Kobayashi provided no rebuttable evidence of facts in its Orders that the Hawaiian Kingdom was extinguished in accordance with international law. She just stated, without evidence, there is no 800-pound gorilla, but yet she’s in dialogue with that gorilla.

In these proceedings, the Hawaiian Kingdom provided factual evidence of the Hawaiian Kingdom’s continued existence where the Permanent Court Arbitration, in Larsen v. Hawaiian Kingdom (1999-2001), acknowledged the continued existence of the Hawaiian Kingdom as a State.

Additional factual basis of “continuity” includes the delivering of an oral statement to the United Nations Human Rights Council on March 22, 2022, by Dr. David Keanu Sai, as Minister of Foreign Affairs ad interim. Dr. Sai was accredited by the Office of the United Nations High Commissioner for Human Rights for his statement. Dr. Sai stated to the Human Rights Council, in Geneva, Switzerland:

The International Association of Democratic Lawyers and the American Association of Jurists call the attention of the Council to human rights violations in the Hawaiian Islands. My name is Dr. David Keanu Sai, and I am the Minister of Foreign Affairs ad interim for the Hawaiian Kingdom. I also served as lead agent for the Hawaiian Kingdom at the Permanent Court of Arbitration from 1999-2001 where the Court acknowledged the continued existence of my country as a sovereign and independent State.

The Hawaiian Kingdom was invaded by the United States on 16 January 1893, which began its century long occupation to serve its military interests. Currently, there are 118 military sites throughout the islands and the city of Honolulu serves as the headquarters for the Indo-Pacific Combatant Command.

For the past century, the United States has and continues to commit the war crime of usurpation of sovereignty, under customary international law, by imposing its municipal laws over Hawaiian territory, which has denied Hawaiian subjects their right of internal self-determination by prohibiting them to freely access their own laws and administrative policies, which has led to the violations of their human rights, starting with the right to health, education and to choose their political leadership.

The United States, who is a member State of the Human Rights Council, did not object to Dr. Sai’s statement that “the United States has and continues to commit the war crime of usurpation of sovereignty, under customary international law, by imposing its municipal laws over Hawaiian territory,” thereby, acquiescing to the Hawaiian Kingdom’s continued existence as a State and the United States commission of the war crime of usurpation of sovereignty.

According to the International Court of Justice, in the Case concerning the Temple of Preah Vihear (Cambodia v. Thailand), acquiescence “concerns a consent tacitly conveyed by a State, unilaterally, through silence or inaction, in circumstance such that a response expressing disagreement or objection in relation to the conduct of another State would be called for.” According to Professor MacGibbon, under international law, the “function of acquiescence may be equated with that of consent,” whereby the “primary purpose of acquiescence is evidential; but its value lies mainly in the fact that it serves as a form of recognition of legality and condonation of illegality and provides a criterion which is both objective and practical.”

The failure of the United States to disagree or object to the Hawaiian Kingdom being acknowledged as a State by the Permanent Court of Arbitration, and its failure to disagree or object to the statement to the Human Rights Council regarding the war crime of usurpation of sovereignty are official acts by the United States under customary international law. War crimes can only be committed in an international armed conflict between two or more States, and, therefore, the United States acquiescence are official acts that bind Judge Kobayashi. The U.S. Supreme Court, in Williams v. Suffolk Insurance Co., stated, “when the executive branch of the government, which is charged with our foreign relations assumes a fact it is conclusive on the judicial department.”

United States President John Tyler, by letter of Secretary of State John C. Calhoun on July 6, 1844, to Hawaiian officials, recognized the Hawaiian Kingdom as a sovereign and independent State. And on December 20, 1849, the United States entered into a Treaty of Friendship, Commerce and Navigation with the Hawaiian Kingdom and maintained a Legation (Embassy) in Honolulu and Consulates throughout the islands.

In its filings, the United States has not provided any rebuttable evidence, whether factual or legal, that the Hawaiian Kingdom was extinguished as a State under international law. Rather it claimed that “the United States annexed Hawaii in 1898 and Hawaii entered the union as a state in 1959.” Both the 1898 Joint Resolution of annexation and the 1959 Hawai‘i Admission Act are municipal laws and, according to the U.S. Supreme Court, in The Apollon, these laws cannot “extend beyond its territory except so far as regards its citizens. They can have no force to control the sovereignty or rights of any other nation within its own jurisdiction.”

The U.S. Supreme Court also stated, in United States v. Curtiss-Wright Export Corp., that “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.” In 1988, the U.S. Department of Justice, in a legal opinion titled, “Legal Issues Raised by Proposed Presidential Proclamation To Extend the Territorial Sea,” it stated that “we doubt that Congress has constitutional authority to assert either sovereignty over an extended territorial sea or jurisdiction over it under international law on behalf of the United States.” The Department of Justice also concluded, “It is therefore unclear which constitutional power of Congress exercised when it acquired Hawaii by joint resolution.”

Under international law, the imposition of United States municipal laws violates the territorial integrity of the Hawaiian Kingdom and would constitute the war crime of usurpation of sovereignty under international law. According to Professor Schabas, the war crime of usurpation of sovereignty is where the “perpetrator imposed or applied legislative or administrative measures of the occupying power going beyond those required by what is necessary for military purposes of the occupation.” In these proceedings, the United States’ reliance on its municipal laws is an admission of the war crime of usurpation of sovereignty.

On the topic of separation of powers, the U.S. Supreme Court, in Airports Auth. v. Citizens for Noise Abatement, explained, “the structure of our Government as conceived by the Framers of our Constitution disperses the federal power among the three branches—the Legislative, the Executive, and the Judicial—placing both substantive and procedural limitations on each. The ultimate purpose of this separation of powers is to protect the liberty and security of the governed.” Professor Merrill explains that “because every federal office must be located ‘in’ one of the three branches, each office is subject to whatever specific constitutional limitations apply to action by its branch.”

In United States v. Curtiss-Wright Export Corp., the U.S. Supreme Court stated, “the President alone has the power to speak or listen as a representative of the nation. He makes treaties with the advice and consent of the Senate; but he alone negotiates. Into the field of negotiation the Senate cannot intrude, and Congress itself is powerless to invade it.” Like the Congress, the judicial branch “is powerless to invade” the executive branch. The judicial branch is the arbiter of facts and law. It is not charged with foreign relations.

Judge Kobayashi’s two Orders not only violate international law but also the American doctrine of the separation of powers between the three branches of government. The President cannot act as a judge and a judge cannot act as a President who is in charge of foreign relations. In other words, Judge Kobayashi’s two Orders declaring the Hawaiian Kingdom does not exist without providing any evidence is a violation of the separation of powers doctrine. She’s supposed to provide evidence that the executive branch, not the judicial branch, extinguished the Hawaiian Kingdom as a State under international law.

The Hawaiian Kingdom, as the 800-pound gorilla, has now placed the burden on Judge Kobayashi to show evidence of a factual or legal basis that it doesn’t exist. Under Rule 52(c) of the Federal Rules of Civil Procedure, the Court is required to write “findings of fact and conclusions of law” as to why the gorilla doesn’t exist or why the gorilla does exist. If the gorilla does exist, Judge Kobayashi will have to change the two Orders and transform the Court into an Article II Occupation Court that administers Hawaiian Kingdom law and the international law of occupation.

War Crimes: Russian Invasion of Ukraine and the American Invasion of the Hawaiian Kingdom

Russia’s invasion of Ukraine has highlighted certain rules or norms of international law. These rules of international law include the independence of countries or States that gives rise to sovereignty, which is defined as the “supreme, absolute, and uncontrollable power by which an independent state is governed.” The terms country and State are interchangeable. Ukraine became an independent State on August 24, 1991, after the breakup of the Soviet Union. The Hawaiian Kingdom became an independent State on November 28, 1843.

In the 1928 Island of Palmas case (Netherlands – United States of America), the sole-arbitrator, Max Huber, stated, “Sovereignty in the relations between States signifies independence. Independence in regard to a portion of the globe is the right to exercise therein, to the exclusion of any other State, the functions of a State.”

This rule springs another rule of international law, which is the duty of non-intervention by other States in a State’s internal affairs because of a State’s territorial integrity. These rules are foundational for the international system to operate, and because of this they are considered peremptory norms, also called jus cogens, that cannot be derogated or disparaged. To violate these rules is an internationally wrongful act.

When Russia invaded Ukraine it violated these rules of international law and transformed the state of affairs from a state of peace to a state of war. According to Judge Christopher Greenwood, “Traditional international law was based upon a rigid distinction between the state of peace and the state of war.” This separation provides the proper context by which certain rules of international law would or would not apply. The laws or war, which is also called international humanitarian law, are not applicable in a state of peace. Inherent in the rules of international humanitarian law is the co-existence of two States being that of the invading State and that of the invaded State.

War is regulated by international humanitarian law called the 1907 Hague Regulations, the 1949 Geneva Conventions, as well as customary international law. Since the latter part of the nineteenth century, violations of international humanitarian law could amount to war crimes, which are committed by individuals acting on behalf of a State and not by the government of the State as a whole. In the words of the International Military Tribunal, “crimes against international law are committed by men, not by abstract entities, and only by punishing individuals who commit such crimes can the provisions of international law be enforced.” War crimes have no statute of limitations.

While hostilities are taking place between Russian and Ukrainian forces there are certain rules of international humanitarian that would amount to war crimes committed against the civilian population. These war crimes include:

Intentionally directing attacks against the civilian population as such or against individual civilians not taking direct part in hostilities;

Intentionally directing attacks against civilian objects, that is, objects which are not military objectives;

Intentionally directing attacks against personnel, installations, material, units or vehicles involved in a humanitarian assistance or peacekeeping mission in accordance with the Charter of the United Nations, as long as they are entitled to the protection given to civilians or civilian objects under the international law of armed conflict; and

Intentionally launching an attack in the knowledge that such attack will cause incidental loss of life or injury to civilians or damage to civilian objects or widespread, long-term and severe damage to the natural environment which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated.

It would appear from recent news coverage that Russian forces are committing war crimes against the civilian population of Ukraine who pose no threat to the invading forces. The Chief Prosecutor of the International Criminal Court (ICC) has recently launched an investigation of war crimes committed by Russian forces. The ICC Chief Prosecutor Karim Khan stated, “it is clear…directing attacks against civilians and civilian objects amounts to a war crime.” Although Russia and Ukraine are not State parties to the Rome Statute that would have authorized the ICC to investigate war crimes, the ICC was prompted to investigate by a referral of thirty-nine States that are State parties to the Rome Statute.

Should hostilities cease and certain portions of the territory of Ukraine should come under the effective control of Russian forces, international humanitarian law transforms the situation into belligerent occupation and the occupying State must continue to protect the civilian population who reside within the occupied territory. Should Russia be in effective control of territory, it will trigger the law of occupation where Russian forces are obligated to administer the laws of the Ukraine. This rule of international law would continue until the occupation comes to an end when Russian forces leave Ukrainian territory. As professor Ian Brownlie wrote:

Thus after the defeat of Nazi Germany in the Second World War the four major Allied powers assumed supreme power in Germany. The legal competence of the German state [its independence and sovereignty] did not, however, disappear. What occurred is akin to legal representation or agency of necessity. The German state continued to exist, and, indeed, the legal basis of the occupation depended on its continued existence.”

War crimes committed during belligerent occupation against the civilian population include what are called “grave breaches” that are listed under Article 147 of the 1949 Fourth Geneva Convention.

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

Along with the list of war crimes as “grave breaches,” there are war crimes that are listed under customary international law. In chapter three of the ebook Royal Commission of Inquiry: Investigating War Crimes and Human Rights Violations Committed in the Hawaiian Kingdom, Professor William Schabas provides a list of war crimes, under customary international law, committed in the Hawaiian Kingdom. These include:

war crime of usurpation of sovereignty during occupation;

war crime of compulsory enlistment;

war crime of denationalization;

war crime of pillage;

war crime of confiscation or destruction of property;

war crime of deprivation of fair and regular trial;

war crime of deporting civilians of the occupied territory; and

war crime of transferring populations into an occupied territory.

When United States forces invaded the Hawaiian Kingdom on January 16, 1893, they initiated the state of war between the United States and the Hawaiian Kingdom. Hostilities would only last until the following day when Queen Lili‘uokalani signed a conditional surrender to the United States. She stated:

I, Lili‘uokalani, by the Grace of God, and under the Constitution of the Hawaiian Kingdom, Queen, do hereby solemnly protest against any and all acts done against myself and the constitutional Government of the Hawaiian Kingdom by certain persons claiming to have established a Provisional Government of and for this Kingdom.

That I yield to the superior force of the United States of America whose Minister Plenipotentiary, His Excellency John L. Stevens, has caused United States troops to be landed at Honolulu and declared that he would support the said Provisional Government.

Now to avoid any collision of armed forces, and perhaps the loss of life, I do this under protest, and impelled by said force yield my authority until such time as the Government of the United States shall, upon facts being presented to it, undo the action of its representative and reinstate me in the authority which I claim as the constitutional sovereign of the Hawaiian Islands.

Done at Honolulu this 17th day of January, A.D. 1893.

Lili‘uokalani, R.
Samuel Parker, Minister of Foreign Affairs.
Wm. H. Cornwell, Minister of Finance.
John. F. Colburn, Minister of the Interior.
A.P. Peterson, Attorney General.

After completing an investigation, President Grover Cleveland notified the Congress:

And so it happened that on the 16th day of January, 1893, between four and five o’clock in the afternoon, a detachment of marines from the United States steamer, Boston, with two pieces of artillery, landed at Honolulu. The men, upwards of 160 in all, were supplied with double cartridge belts filled with ammunition and with haversacks and canteens, and were accompanied by a hospital corps with stretchers and medical supplies. This military demonstration upon the soil of Honolulu was of itself an act of war, unless made either with the consent of the Government of Hawaii or for the bona fide purpose of protecting the imperilled lives and property of citizens of the United States. But there is no pretense of any such consent on the part of the Government of the Queen, which at the time was undisputed and was both the de factor and the de jure government. In point of fact the existing government instead of requesting the presence of an armed force protested against it. There is little basis for the pretense that such forces were landed for the security of American life and property. If so, they would have been stationed in the vicinity of such property and so as to protect it, instead of at a distance and so as to command the Hawaiian Government building and palace. Admiral Skerrett, the officer in command of our naval force on the Pacific station, has frankly stated that in his opinion the location of the troops was inadvisable if they were landed for the protection of American citizens whose residences and places of business, as well as the legation and consulate, were in a distant part of the city, but the location selected was a wise one if the forces were landed for the purpose of supporting the provisional government. If any peril to life and property calling for any such martial array had existed, Great Britain and other foreign powers interested would not have been behind the United States in activity to protect their citizens. But they made no sign in that direction. When these armed men were landed, the city of Honolulu was in its customary orderly and peaceful condition. There was no symptom of riot or disturbance in any quarter. Men, women, and children were about the streets as usual, and nothing varied the ordinary routine or disturbed the ordinary tranquillity, except the landing of the Boston’s marines and their march through the town to the quarters assigned them. Indeed, the fact that after having called for the landing of the United States forces on the plea of danger to life and property the Committee of Safety themselves requested [US] Minister [John Stevens] to postpone action, exposed the untruthfulness of their representations of present peril to life and property. The peril they saw was an anticipation growing out of guilty intentions on their part and something which, though not then existing, they knew would certainly follow their attempt to overthrow the Government of the Queen without the aid of the United States forces.

From this date, the United States was in effective control of Hawaiian territory and international humanitarian law at the time obligated the United States to administer the laws of the Hawaiian Kingdom. Instead of complying with international humanitarian law, the United States unilaterally seized the Hawaiian Islands and transformed it into a military outpost to protect the United States from its adversaries. Since 1898, the United States has committed the war crime of “usurpation of sovereignty,” which is the unlawful imposition of American municipal laws over the territory of the Hawaiian Kingdom. This imposition of American laws is what caused the commission of the other war crimes identified by Professor Schabas.

Russian President Vladimir Putin claimed Russian troops were being sent into Ukraine to protect people who were subjected to bullying and genocide and that Russia was aiming for the “demilitarization and de-Nazification” of Ukraine. The BBC reported, “There has been no genocide in Ukraine: it is a vibrant democracy, led by a president who is Jewish.”

It would appear that Russia’s justification is not credible, just as the United States justification for the invasion of the Hawaiian Kingdom was not credible as well. The difference, however, is that President Cleveland, who was President of the invading force, completed a presidential investigation and acknowledged that the invasion was “illegal” under international law. Consequently, there is no need for an investigation into the invasion and unlawful overthrow of the Government of the Hawaiian Kingdom. Rather, the issue is the United States non-compliance with international humanitarian law for over a century, which has led to the commission of war crimes and human rights violations.

The restored government of the Hawaiian Kingdom, the Council of Regency, brought this to the attention by a diplomatic note to the foreign embassies accredited to the United Nations in New York City. This information was also brought to the attention of the foreign embassies in both New York City and Geneva by a joint letter from the International Association of Democratic Lawyers and the American Association of Jurists—Asociación Americana de Juristas, both of whom have consultative status with the United Nations Human Rights Council.