Dr. Keanu Sai to Present on the Myth of Annexation at UH Windward Community College Tomorrow
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Category Archives: Treaties
U.S. Troops to Withdraw from the Hawaiian Islands by October 26, 2024
In 1875, a Commercial Reciprocity Treaty was entered into between the Hawaiian Kingdom and the United States that was to last for seven years. In 1884, a Supplemental Convention extended the duration of the commercial treaty for another seven years with the express condition that the United States was granted exclusive access to Pearl Harbor. Article II of the Supplemental Convention states:
His Majesty the King of the Hawaiian Islands grants to the Government of the United States the exclusive right to enter the harbor of Pearl River, in the Island of Oahu, and to establish and maintain there a coaling and repair station for the use of vessels of the United States, and to that end the United States may improve the entrance to said harbor and do all other things needful to the purpose aforesaid.
The Supplemental Convention came into effect in 1887 after ratifications were exchanged and would last for seven years and further until “either of the High Contracting Parties shall give notice to the other of its wish to terminate the same,” where termination would commence twelve months after the notification is received by the other High Contracting Party. Although the Hawaiian government was unlawfully overthrown by the United States on January 17, 1893, the Hawaiian Kingdom as a State under international law continued to exist. In 1997, the Hawaiian Kingdom government was restored as a Regency serving in the absence of a Monarch.
On October 20, 2023, the Hawaiian Kingdom, by its Council of Regency, proclaimed the termination of the 1875 Commercial Reciprocity Treaty and its 1884 Supplemental Convention in accordance with Article I of the said Supplemental Convention. The following day, a notice of termination was sent, by courier United States Postal Service, to Secretary of State Antony J. Blinken. The notice of termination was received by the United States Department of State on 26 October 2023 at 5:47am ET, which consequently triggered the tolling of twelve months after which the Commercial Reciprocity Treaty and its Supplemental Convention would terminate.
The reasoning behind the notice of termination was that the United States in its unlawful and prolonged military occupation of the Hawaiian Kingdom since 17 January 1893 has exploited its use of Pearl Harbor by establishing military bases and facilities throughout the Hawaiian Islands under the Indo-Pacific Command of the U.S. Department of Defense in violation of the Article 1 of the 1907 Hague Convention (V) respecting the Rights and Duties of Neutral Powers and Persons in Case of War on Land. Although the Hawaiian Kingdom is not a Contracting State to the 1907 Hague Convention (V), it is mere codification of nineteenth century customary international law. On April 7, 1855, King Kamehameha IV proclaimed the foreign policy of the Kingdom:
My policy, as regards all foreign nations, being that of peace, impartiality and neutrality, in the spirit of the Proclamation by the late King, of the 16th May last, and of the Resolutions of the Privy Council of the 15th June and 17th July, I have given to the President of the United States, at his request, my solemn adhesion to the rule, and to the principles establishing the rights of neutrals during war, contained in the Convention between his Majesty the Emperor of all the Russias and the United States, concluded in Washington on the 22nd July last.
This policy of neutrality remained unchanged throughout the nineteenth century. Furthermore, the policy of neutrality by the Hawaiian Kingdom as a Neutral Power were inserted as treaty provisions in the Hawaiian-Swedish/Norwegian Treaty of 1852, the Hawaiian-Spanish Treaty of 1863, and the Hawaiian-German Treaty of 1879. In its treaty with Sweden/Norway, Article XV states, “His Majesty the King of Sweden and Norway engages to respect in time of war the neutral rights of the Hawaiian Kingdom, and to use his good offices with all other powers, having treaties with His Majesty the King of the Hawaiian Islands, to induce them to adopt the same policy towards the Hawaiian Kingdom.”
As a result of the termination of the treaty and its convention, all United States military forces in the Hawaiian Islands will be withdrawn in twelve months by 5:47am ET on October 26, 2024. On the withdrawal, the Council of Regency proclaimed:
And, We do require that when the United States has received this notice of termination, it shall, prior to the expiration of twelve months in accordance with Article I of the 1884 Supplemental Convention, remove all movable property at its military facilities throughout the Hawaiian Islands, including unexploded munitions, and fuel, with the exception of real property attached to the land or erected on it, including man-made objects, such as buildings, homes, structures, roads, sewers, and fences, to include on other properties that have been or are currently under its supervision and command.
Not all military forces in the Hawaiian Islands are affected by the notice of termination. There are two military forces present within the Hawaiian Kingdom today. That of the United States Federal government called Title 10 United States Code (“USC”) armed forces, and that of the State of Hawai‘i National Guard called Title 32 USC armed forces. Title 10 troops are purely American in origin while the Title 32 troops are Hawaiian in origin, and, therefore, remain in the Hawaiian Islands to be called by its original designation—the Royal Guard.
When the United States unilaterally annexed the Hawaiian Islands in violation of international law on 7 July 1898, it initiated the establishment of the United States Army Pacific, United States Marine Forces Pacific, United States Pacific Fleet, and the United States Pacific Air Forces. The United States Army Pacific was established in the Hawaiian Islands in 1898 during the Spanish-American War, headquartered at its first military base called Camp McKinley on the Island of O‘ahu, and later headquartered at Fort Shafter on the Island of O‘ahu in 1921. In 1908, the Congress allocated funds to establish a Naval Station at Pearl Harbor.
In April 1942, the United States military forces in the Hawaiian Islands were organized into two commands for the Army under United States Army Forces Pacific and for the Navy as Commander-in-Chief, Pacific Fleet, and Pacific Oceans Areas Commander-in-Chief. This command structure of the Army and Navy in the Hawaiian Islands during the Second World War was transformed into the United States Pacific Command on 1 January 1947, which is presently called the Indo-Pacific Command, whose headquarters is at Camp H.M. Smith on the Island of O‘ahu. In September 1947, the United States Air Force separated from the United States Army as a separate branch of the armed forces with its base headquartered at Hickam Air Force Base on the Island of O‘ahu, and later, in 2010, merged to become an element of Joint Base Pearl Harbor-Hickam with the Navy.
The Indo-Pacific Command has four component commands stationed in the territory of the Hawaiian Kingdom—United States Army Pacific, whose headquarters is at Fort Shafter on the Island of O‘ahu, United States Marine Forces Pacific, whose headquarters is at Camp H.M Smith on the Island of O‘ahu, United States Pacific Fleet, whose headquarters is at Naval Station Pearl Harbor on the Island of O‘ahu, and United States Pacific Air Forces, whose headquarters is at Hickam Air Force Base/Joint Base Pearl Harbor-Hickam on the Island of O‘ahu.
There is no legal basis for the presence of Title 10 USC military forces in the Hawaiian Islands by virtue of Congressional legislation because municipal laws have no extraterritorial effect. Since Congressional legislation is limited in operation to the territory of the United States, it cannot unilaterally establish military installations in the territory of a foreign State without the State’s consent through a treaty or convention. According to traditional international law, the concept of jurisdiction is linked to the State territory. As the Permanent Court of International Justice in the 1927 Lotus case stated:
[T]he first and foremost restriction imposed by international law upon a State is that – failing the existence of a permissive rule to the contrary – it may not exercise its power in any form in the territory of another State. In this sense jurisdiction is certainly territorial; it cannot be exercised by a State outside its territory except by virtue of a permissive rule derived from international custom or from a convention […] all that can be required of a State is that it should not overstep the limits which international law places upon its jurisdiction; within these limits, its title to exercise jurisdiction rests in its sovereignty.
The presence of all Title 10 USC military forces throughout the Hawaiian Islands has a direct nexus to the 1884 Supplemental Convention that granted the United States exclusive access to Pearl Harbor. The 1884 Supplemental Convention was a valid treaty under international law up until the Hawaiian Kingdom’s notice of intention to terminate was received by the U.S. Department of State at 5:47am ET on 26 October 2023. As a consequence of the termination, all Title 10 USC military forces shall have to be withdrawn from the Hawaiian Islands no later than 5:47am ET on 26 October 2024. The military forces that remain is the Hawaiian Kingdom’s Royal Guard that is referred to today as the Hawai‘i Army and Air National Guard.
For a comprehensive report on the termination of the 1875 Commercial Reciprocity Treaty and its 1884 Supplemental Convention go to the Royal Commission of Inquiry’s Preliminary Report on this subject.
CLARIFICATION. The 1884 Supplemental Convention began a seven-year term as of 1887 when ratifications were exchanged in Washington, D.C. It would continue after the seven-year period until either the Hawaiian Kingdom or the United States gives notification of its intention to terminate the treaty. When notice is received by the other party a twelve-month period begins for termination. Article I specifically states:
The High Contracting Parties agree, that the time fixed for the duration of the said Convention, shall be definitely extended for a term of seven years from the date of the exchange of ratifications hereof, and further, until the expiration of twelve months after either of the High Contracting Parties shall give notice to the other of its wish to terminate the same, each of the High Contracting Parties being at liberty to give such notice to the other at the end of the said term of seven years or at any time thereafter.
In other words, the seven-year term was locked in, but it would continue in force if there was no notice of termination. A similar provision for termination of the 1849 Treaty of Friendship, Commerce and Navigation between the Hawaiian Kingdom and the United States was stated in Article XVI:
The present treaty shall be in force from the date of the exchange of the ratifications, for the term of ten years, and further, until the end of twelve months after either of the contracting parties shall have given notice to the other of its intention to terminate the same, each of the said contracting parties reserving to itself the right of giving such notice at the end of the said term of ten years, or at any subsequent term.
Only the 1875 Commercial Reciprocity Treaty and the 1884 Supplemental Convention have been terminated. All other treaties with the United States remain in full force and effect.
The Significance and the Importance of the Two Operational Plans of the Council of Regency
When dealing with a 130-year crisis of a prolonged and illegal American occupation of the Hawaiian Kingdom, planning is a crucial component that informs where we are today and where we want to be tomorrow. An operational plan is informed by due diligence of the situation, which is a gathering of information relevant to the situation at hand and how it got to the current situation. In the military, this is colloquially known as gathering intel before you come up with a battle plan.
Due diligence is “depending on the relative facts of the special case.” It is the assessment of a situation before a decision should be made. When due diligence is done, the person doing it must be mindful of their own biases and assumptions. To gather information through one’s own bias is what is called “confirmation bias” where the gatherer of information only selects information that would confirm his/her own biases. This is also called cherry picking.
In the Hawaiian situation, there is an abundance of assumptions that are false such as the Hawaiian Islands were colonized by the United States in the nineteenth century, and, as a colonized people, Native Hawaiians are an Indigenous People by definition of the United Nations. United Nations defines Indigenous Peoples as tribal nations that exist with an independent State not of their own making. Arriving at this conclusion was done through confirmation bias.
The Council of Regency sought to gather information through the lens of both the laws of the Hawaiian Kingdom and international law that includes international humanitarian law and the law of occupation. It was through this process that revealed that the Hawaiian Kingdom, which existed as an internationally recognized sovereign and independent State continued to exist since November 28, 1843, despite the illegal overthrow of its government by the United States on January 17, 1893. This continued existence stemmed from the international principle of inalienability of sovereignty of a State, and the only way a State can alienate its sovereignty is by its consent through a treaty of cession with the acquiring State. There exists no such treaty, therefore, the Hawaiian State continues to exist.
It was based on this premise that the government was restored as a Council of Regency in 1997 to provisionally represent the Hawaiian State both domestically and abroad. The actions to be taken by the Council of Regency would be in line with its strategic plan that entailed three phases. Phase I—verification of the Hawaiian Kingdom as an independent State and a subject of international law. Phase II—exposure of Hawaiian Statehood within the framework of international law and the laws of occupation as it affects the realm of politics and economics at both the international and domestic levels. Phase III—restoration of the Hawaiian Kingdom as an independent State and a subject of international law. Phase III is when the American occupation comes to an end.
Phase I was achieved when the Permanent Court of Arbitration (PCA), before establishing the arbitration tribunal in Larsen v. Hawaiian Kingdom on June 9, 2000, acknowledged the continued existence of the Hawaiian State, and the Council of Regency as its government. Phase II, exposure of the Hawaiian State, was initiated during oral hearings on December 7, 8 and 11, 2000, at the PCA in The Hague. Phase II continued at the University of Hawai‘i at Mānoa when the Chairman of the Council of Regency, David Keanu Sai, entered the political science graduate program, where he received a master’s degree specializing in international relations and public law in 2004 and a Ph.D. degree in 2008 on the subject of the continuity of Hawaiian Statehood while under an American prolonged belligerent occupation since 1893.
The exposure through academic research also motivated historian Tom Coffman to change the title of his 1998 book from Nation Within: The Story of America’s Annexation of the Nation of Hawai‘i, to Nation Within—The History of the American Occupation of Hawai‘i. Coffman explained the change in his note on the second edition and took a quote from Dr. Sai’s law article A Slippery Path Towards Hawaiian Indigeneity. Coffman wrote:
I am compelled to add that the continued relevance of this book reflects a far-reaching political, moral and intellectual failure of the United States to recognize and deal with the takeover of Hawai‘i. In the book’s subtitle, the word Annexation has been replaced by the word Occupation, referring to America’s occupation of Hawai‘i. Where annexation connotes legality by mutual agreement, the act was not mutual and therefore not legal. Since by definition of international law there was no annexation, we are left then with the word occupation.
In making this change, I have embraced the logical conclusion of my research into the events of 1893 to 1898 in Honolulu and Washington, D.C. I am prompted to take this step by a growing body of historical work by a new generation of Native Hawaiian scholars. Dr. Keanu Sai writes, “The challenge for … the fields of political science, history, and law is to distinguish between the rule of law and the politics of power.” In the history of the Hawai‘i, the might of the United States does not make it right.
It took the Council of Regency just over 20 years to change the conversation from colonization and indigenous peoples rights to military occupation and the rights of Hawaiian subjects under the law of occupation. With the shifting of the historical lens, legal consequences began to emerge especially with the involvement of Professor Matthew Craven from the University of London, SOAS, School of Law, who authored a legal opinion on the Continuity of the Hawaiian Kingdom as a State under international law; Professor William Schabas from Middlesex University London, School of Law, and a renowned expert in international criminal law, who authored a Legal Opinion on War Crimes related to the United States belligerent occupation of the Hawaiian Kingdom; and Professor Federico Lenzerini from the University of Siena, Italy, Department of Political and International Science, who authored Legal Opinion on the authority of the Council of Regency of the Hawaiian Kingdom.
Both the Operational Plans for Transitioning the State of Hawai‘i into a Military Government and Transitioning the Military Government to the Hawaiian Kingdom Government, which will bring the prolonged American occupation to an end, is a culmination of years of research and exposure and is a subset of plans under phase II of the strategic plan. As such we are moving toward the end of phase II and preparing for phase III that will bring the 130-year crisis to an end.
The two operational plans are clear as to where we are, where we need to get to, and the path to get there. The essential tasks and the implied tasks in each of the plans are measurable, and, most importantly, flexible when achieving the tasks. They allow flexibility to adjust to issues unforeseen such as time and allocation of resources. The Council of Regency established a 3-year window for the occupation to come to an end, but it doesn’t prevent unforeseen and extenuating circumstances to adjust the timeline. When the American occupation of Japan began in 1945, it was thought that it would last 3 years. But circumstances extended the occupation an additional 4 years. The same could happen in the Hawaiian situation, but the Council of Regency needed to set an initial timeline of 3 years.
Council of Regency Lays Out Plan for the State of Hawai‘i to be a Military Government
For 130 years the United States violated international law and the sovereignty of the Hawaiian Kingdom. These violations were concealed by a false narrative that the Hawaiian Islands became a part of the United States in 1898, which led to the establishment of the Territory of Hawai‘i in 1900, and then the State of Hawai‘i in 1959.
These three acts were done by congressional legislation, which have no effect beyond the borders of the United States. This is analogous to Congress enacting legislation that establishes an American government in Ottawa, Canada. Without a treaty where the Hawaiian Kingdom ceded its territory to the United States like the Mexican government ceded its northern territory to the United States in 1848, congressional laws have no effect within Hawaiian territory. This legal principle of United States law is a pulled grenade pin that renders these acts not only unlawful under international law but are also considered the war crime of usurpation of sovereignty during military occupation.
Usurpation of sovereignty during military occupation was listed as a war crime in 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 during World War I. 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 policies and measures of the Occupying State over the territory of the Occupied State.
When the United States unlawfully overthrew the government of the Hawaiian Kingdom on January 17, 1893, the Hawaiian Kingdom continued to exist as a State, which the Permanent Court of Arbitration, in Larsen v. Hawaiian Kingdom, acknowledged in 1999. The law of occupation mandated the United States to establish a military government in order to temporarily administer the laws of the Hawaiian Kingdom until a treaty of peace comes into force.
In 1828, U.S. Chief Justice John Marshall, in American Insurance Company v. Canter, wrote that “the holding of conquered territory is mere military occupation, until its fate shall be determined at the treaty of peace. If it be ceded by the treaty, the acquisition is confirmed and the ceded territory becomes a part of the nation to which it is annexed, either on the terms stipulated in the treaty of cession or on such as its new master shall impose.” There is no treaty of cession between the Hawaiian Kingdom and the United States.
Because military occupations do not last for long periods, the cornerstone of the law of occupation is to maintain the status quo of the occupied State. This means that the occupying State cannot impose its laws over occupied territory, change the governmental institutions of the occupied State, or transfer its own citizens into the occupied State. For the past 130 years, the United States did exactly that, which complicates the situation today. However, the laws of occupation and the principles of necessity are flexible enough to come up with a comprehensive plan of compliance. It is said that necessity is the mother of all inventions.
The first step is to identify what entity of the occupying State is responsible for establishing a military government. Is it the United States federal government or the State of Hawai‘i and its Counties? Article 42 of the 1907 Hague Regulations states that territory is occupied when it comes under the effective control of the occupying State, which triggers the law of occupation. Of the 4 million acres that comprise Hawaiian territory, the State of Hawai‘i is in effective control of 94%, while the United States federal government is in control of 6%. Having met the requirement of effective control of occupied territory, the State of Hawai‘i and not the federal government has the responsibility to established the military government to temporarily administer the laws of the Hawaiian Kingdom.
With a view to bringing compliance with international humanitarian law by the State of Hawai‘i and its Counties and recognizing their effective control of Hawaiian territory in accordance with Article 42 of the 1907 Hague Regulations, the Council of Regency proclaimed and recognized their existence as the administration of the occupying State on June 3, 2019.
The State of Hawai‘i and its Counties, under the laws and customs of war during occupation, can now serve as the administrator of Hawaiian Kingdom laws. Prior to the proclamation, the State of Hawai‘i and its Counties were established by virtue of U.S. Congressional legislation unlawfully imposed within Hawaiian territory, being the war crime of usurpation of sovereignty during military occupation. According to Professor Schabas, the action or conduct “of the offense of ‘usurpation of sovereignty’ would consist of the imposition of legislation or administrative measures by the occupying power that go beyond those required by what is necessary for military purposes of the occupation.”
The next step is to address the fact that Hawaiian Kingdom laws in 1893 are not up to date because of the non-compliance by the United States at the time of international law. Nevertheless, it is still a rule of international law that Hawaiian laws must be administered and not American laws, which is a war crime.
To address this issue, the Council of Regency on October 10, 2014, proclaimed provisional laws of the kingdom to be any and all American laws, whether federal, State of Hawai‘i or the Counties, that are not “contrary to the express, reason and spirit of the laws of the Hawaiian Kingdom prior to July 6, 1887, the international laws of occupation and international humanitarian law.” Accompanying the proclamation of provisional laws is a memorandum by the Chairman of the Council of Regency who provides a formula to be used when determining which American municipal laws can be the provisional laws of the kingdom.
In determining which American municipal laws shall constitute a provisional law of the kingdom, the following questions need to be answered. If any question is answered with “yes,” with the exception of question 5, then it is not to be considered a provisional law.
1. The first consideration begins with Hawaiian constitutional alignment. Does the American municipal law violate any provisions of the 1864 Constitution, as amended?
2. Does it run contrary to a monarchical form of government? In other words, does it promote a republican form of government.
3. If the American municipal law has no comparison to Hawaiian Kingdom law, would it run contrary to the Hawaiian Kingdom’s police power?
4. If the American municipal law is comparable to Hawaiian Kingdom law, does it run contrary to the Hawaiian statute?
5. Does the American municipal law infringe vested rights secured under Hawaiian law?
6. And finally, does it infringe the obligations of the Hawaiian Kingdom under customary international law or by virtue of it being a Contracting State to its treaties? The last question would also be applied to Hawaiian Kingdom laws enumerated in the Civil Code, together with the session laws of 1884 and 1886, and the Penal Code.
In his memorandum, the Chairman applied the formula to determine whether the State of Hawai‘i statutes on murder, manslaughter, and negligent homicide can be considered provisional laws of the kingdom. His conclusion was yes. The memo states that the State of Hawai‘i laws on murder, manslaughter and negligent homicide are not “’contrary to the express, reason and spirit of the laws of the Hawaiian Kingdom prior to July 6, 1887, the international laws of occupation and international humanitarian law.’ To the extent that the felony murder rule is omitted, the State of Hawai‘i law on murder would be consistent with the Hawaiian Kingdom law on murder.”
The final step is to draft a comprehensive plan of action for the State of Hawai‘i to transform itself into a military government to administer the laws of 1893 that are augmented with provisional laws while the State of Hawai‘i and its Counties are in effective control of Hawaiian territory. On April 7, 2023, the Chairman authored another memorandum on the role and function of the military government of Hawai‘i.
The memo first dispels with the American annexation of the Hawaiian Islands in 1898, the establishment of the Territory of Hawai‘i in 1900, and the changing of the name of the Territory to the State of Hawai‘i in 1959. Each of these acts stem from legislation by the United States Congress, which has no legal effect beyond the borders of the United States. The memo then addresses the law of occupation and the duty of a military government of the occupying State to administer the laws of the occupied State. The legal status of the State of Hawai‘i under international humanitarian law is then addressed.
Under international law, the State of Hawai‘i is not an American government but rather a civilian armed force of the occupying State. It can claim no authority under American law because the American law that established the State of Hawai‘i in 1959 has no effect outside of United States borders, and when it is imposed in Hawaiian territory it constitutes the war crime of usurpation of sovereignty during military occupation. However, according to the memo, “Article 1 of the 1907 Hague Regulations provides that the laws, rights and duties of war apply not only to the occupying State’s army but also to its civilian armed forces. In other words, the State of Hawai‘i can exist within the confines of international humanitarian law and not American municipal laws.”
The memo then addresses the role and function of a military government. Under the heading of Military Government, the memo explains that there “is a difference between military government and martial law. While both comprise military jurisdiction, the former is exercised over territory of a foreign State under military occupation, and the latter over loyal territory of the State enforcing. Actions of a military government are governed by international humanitarian law while martial law is governed by the domestic laws of the State enforcing it.”
The memo then explains that according to the practice of the United States when establishing a military government in foreign territory, that responsibility is the Army and not the Navy, Marines or Air Force. Military governments usually take over the governmental infrastructure of the occupied State and can augment certain aspects of the infrastructure in order to effectively carry out the mission of a military occupation. In the Hawaiian situation, the memo states that there are four “essential tasks set forth in the Hague and Geneva Conventions […] as follows: (1) Restore and ensure public order and safety, (2) provide medical care, supplies and subsistence, (3) ensure the care and education of children, [and] (4) respect private property and properly manage public property.”
Because the Army is responsible for this function of the occupying State, it “took steps to prepare for military occupations by publishing two field manuals—FM 27-10, The Law of Land Warfare, and FM 27-5, Civil Affairs Military Government. Chapter 6 of FM 27-10 covers military occupation. Section 355 of FM 27-10 states, ‘[m]ilitary occupation is a question of fact. It presupposes a hostile invasion, resisted or unresisted, as a result of which the invader has rendered the invaded government incapable of publicly exercising its authority, and that the invader has successfully substituted its own authority for that of the legitimate government in the territory invaded.’ FM 27-10 has been superseded by FM 6-27, The Commander’s Handbook on the Law of Land Warfare. Chapter 6 covers occupation.”
The State of Hawai‘i official with the duty and obligation to transform the State of Hawai‘i and the Counties into a military government by proclamation is the Adjutant General who is in charge of the Army and Air National Guard. The memo explains that the “Adjutant General is trained in Army doctrine and regulations, to include the 1907 Hague Regulations and the 1949 Fourth Geneva Conventions, for this type of a situation in occupied territory, where a civilian is not. The Adjutant General would be the military governor that presides over a military government.”
The memo makes reference to the 1893 proclamation by the provisional government as an example to use in drafting a proclamation today. “Although unlawful, the proclamation of 17 January 1893 by the so-called provisional government can be useful as to the wording of the military governor’s proclamation today because government officials continued in place with the exception of Queen Lili‘uokalani, her Cabinet, and the Marshal of the police force. The laws were also continued to be in effect. In the situation now, government officials would remain in place, with exceptions not in line with the law of occupation, and the laws would continue to be in effect as provisional laws together with Hawaiian Kingdom laws that existed prior to 1893. The military governor’s proclamation would, in a sense, be a reversal of the provisional government’s proclamation and in line with the law of occupation.”
Following the proclamation of a military government, the memo states, “The first order of business for the military government would be to disband the legislative bodies of the State of Hawai‘i and the Counties in order to stop the enactment of American municipal laws. The function of a military government is to administer the laws of the occupied State, which in this case include certain American municipal laws, as situations of fact, that have become provisional laws of the Hawaiian Kingdom in accordance with the formula to determine which American municipal laws can be considered provisional laws of the kingdom.”
The memo then states, “Second order of business is for the military governor to determine which American municipal laws can be considered the provisional laws of the Hawaiian Kingdom during the American military occupation that augments and not replaces the Civil Code, together with the session laws of 1884 and 1886, and the Penal Code. These provisional laws will need to be made public by proclamation of the military governor. Paragraph 6-53 of FM 6-27 states that “the population of the occupied territory must be informed of any alteration, suspension, or repeal of existing laws and of the enactment of new laws.” The memo concludes with:
In light of the legal opinion on war crimes related to the United States belligerent occupation of the Hawaiian Kingdom by Professor Schabas on 25 July 2019, a renowned jurist and expert on international criminal law, genocide and war crimes, and the oral statement given to the United Nations Human Rights Council on 22 March 2022 by two NGOs—International Association of Democratic Lawyers and the American Association of Jurists that war crimes are being committed in Hawai‘i, it should warrant the Adjutant General to take this matter seriously because of the legal consequences of the United States’ violation of international humanitarian law for over a century.
The only way to stop war crimes from being committed with impunity by State of Hawai‘i and County officials is to comply with the law of occupation. In Army jargon, this is a command decision to be made at the top of the chain of command.
The American Experience with Unilateral Annexation of Another State’s Territory: The Story of Texas Without the Rhetoric Just International Law
Like many who are unaware of the legal and political history of the Hawaiian Kingdom, many are unaware of the legal and political history of the State of Texas. While there are parallels to the Crimean and the Hawaiian situation, there are also important distinctions. Under international law, annexation is a unilateral act by an independent State, and a treaty of cession is a bilateral act between independent States. As a unilateral act, annexation is illegal under international law.
The Republic of Texas was established during the Mexican Revolution but it doesn’t mean the revolution was successful and that the Republic became an independent State. The revolution began on October 2, 1835, that included other provinces rebelling against the regime of President Antonio López de Santa Anna. The Republic of Texas was comprised of United States citizens and Tejanos (Hispanic Texans) who declared their independence on March 2, 1836. Four days later was the famed Battle of the Alamo. Although the Republic of Texas declared their independence their act was treasonous under Mexican law. It was still a part of Mexican territory, and the Republic was fighting Mexican troops through the 1840s. There was no treaty of peace whereby Mexico acknowledged the Republic of Texas as an independent State, and, therefore the revolution continued.
This was a different situation for the United States and when the thirteen colonies declared their independence on July 4, 1776. This act was a treasonous act under British law that triggered the American revolution. It did not transform the thirteen colonies into thirteen independent States. Like the Mexican revolution, battles were fought for seven years until there was a treaty of peace entered into between representatives of King George III and the representatives of the thirteen colonies calling themselves the United States under the Articles of Confederation. The treaty of peace was called the Treaty of Paris and it was signed on September 3, 1783. The treaty specifically acknowledged the former thirteen British colonies as independent States and Article 2 provided the boundaries of the new independent States. Article 1 stated:
His Brittanic Majesty acknowledges the said United States, viz., New Hampshire, Massachusetts Bay, Rhode Island and Providence Plantations, Connecticut, New York, New Jersey, Pennsylvania, Delaware, Maryland, Virginia, North Carolina, South Carolina and Georgia, to be free sovereign and Independent States; that he treats with them as such, and for himself his Heirs & Successors, relinquishes all claims to the Government, Propriety, and Territorial Rights of the same and every Part thereof.
Article 2 of the Treaty of Paris regarding the boundaries states:
And that all Disputes which might arise in future on the subject of the Boundaries of the said United States may be prevented, it is hereby agreed and declared, that the following are and shall be their Boundaries, viz.; from the Northwest Angle of Nova Scotia, viz., that Angle which is formed by a Line drawn due North from the Source of St. Croix River to the Highlands; along the said Highlands which divide those Rivers that empty themselves into the river St. Lawrence, from those which fall into the Atlantic Ocean, to the northwesternmost Head of Connecticut River; Thence down along the middle of that River to the forty-fifth Degree of North Latitude; From thence by a Line due West on said Latitude until it strikes the River Iroquois or Cataraquy; Thence along the middle of said River into Lake Ontario; through the Middle of said Lake until it strikes the Communication by Water between that Lake & Lake Erie; Thence along the middle of said Communication into Lake Erie, through the middle of said Lake until it arrives at the Water Communication between that lake & Lake Huron; Thence along the middle of said Water Communication into the Lake Huron, thence through the middle of said Lake to the Water Communication between that Lake and Lake Superior; thence through Lake Superior Northward of the Isles Royal & Phelipeaux to the Long Lake; Thence through the middle of said Long Lake and the Water Communication between it & the Lake of the Woods, to the said Lake of the Woods; Thence through the said Lake to the most Northwestern Point thereof, and from thence on a due West Course to the river Mississippi; Thence by a Line to be drawn along the Middle of the said river Mississippi until it shall intersect the Northernmost Part of the thirty-first Degree of North Latitude, South, by a Line to be drawn due East from the Determination of the Line last mentioned in the Latitude of thirty-one Degrees of the Equator to the middle of the River Apalachicola or Catahouche; Thence along the middle thereof to its junction with the Flint River; Thence straight to the Head of Saint Mary’s River, and thence down along the middle of Saint Mary’s River to the Atlantic Ocean. East, by a Line to be drawn along the Middle of the river Saint Croix, from its Mouth in the Bay of Fundy to its Source, and from its Source directly North to the aforesaid Highlands, which divide the Rivers that fall into the Atlantic Ocean from those which fall into the river Saint Lawrence; comprehending all Islands within twenty Leagues of any Part of the Shores of the United States, and lying between Lines to be drawn due East from the Points where the aforesaid Boundaries between Nova Scotia on the one Part and East Florida on the other shall, respectively, touch the Bay of Fundy and the Atlantic Ocean, excepting such Islands as now are or heretofore have been within the limits of the said Province of Nova Scotia.
Instead of a treaty whereby Mexico explicitly recognized the Republic of Texas as an independent State by a successful revolution and provided the boundaries of the new State, the Republic sought recognition from foreign States to include the United States in an attempt to circumvent the sovereign rights of Mexico and its territorial integrity. In March of 1837, the United States recognized the Republic of Texas but failed to annex the Republic by a treaty of cession. In 1840, Great Britain entered into a treaty with the Republic for trade purposes but did not recognize it as an independent State because it was still Mexican territory.
On March 1, 1845, the United States Congress enacted a Joint Resolution for annexing Texas to the United States. It stated that “Congress doth consent that the territory properly included within and rightfully belonging to the Republic of Texas may be erected into a new State, to be called the State of Texas, with a republican form of government, to be adopted by the people of said Republic, by deputies in convention assembled, with the consent of the existing government, in order that the same may be admitted as of the States of this Union.”
At issue, and was always the issue, were the boundaries of the Republic of Texas. A treaty of peace would have settled the boundaries, like the 1783 Treaty of Paris, but without a treaty the Republic of Texas had no formal boundaries. This was acknowledged in the joint resolution that stated “Said State to be formed, subject to the adjustment by this Government of all questions of boundary that may arise with other Governments.” That other government was Mexico.
This unilateral act, under international law, was the United States intervention in the internal affairs of Mexico, which is violation of international law, and triggered the Mexican-American War from 1846 to 1848. In the 1848 Peace Treaty of Guadalupe Hidalgo that ended the war, the new border between the United States and Mexico began from the Gulf of Mexico along the Rio Grande river, which is the southern border of the State of Texas, then by a surveyed boundary line that runs along the southern borders of what are now States of New Mexico, Arizona and California. Article V of the 1848 Treaty of Guadalupe Hidalgo states:
The boundary line between the two Republics shall commence in the Gulf of Mexico, three leagues from land, opposite the mouth of the Rio Grande, otherwise called Rio Bravo del Norte, or Opposite the mouth of its deepest branch, if it should have more than one branch emptying directly into the sea; from thence up the middle of that river, following the deepest channel, where it has more than one, to the point where it strikes the southern boundary of New Mexico; thence, westwardly, along the whole southern boundary of New Mexico (which runs north of the town called Paso) to its western termination; thence, northward, along the western line of New Mexico, until it intersects the first branch of the river Gila; (or if it should not intersect any branch of that river, then to the point on the said line nearest to such branch, and thence in a direct line to the same); thence down the middle of the said branch and of the said river, until it empties into the Rio Colorado; thence across the Rio Colorado, following the division line between Upper and Lower California, to the Pacific Ocean.
If Texas was annexed in 1845, then the boundary would not have begun from the Gulf of Mexico, but rather from the surveyed boundary line that would have begun from the mid-southern border of what is now the State of New Mexico, which is adjacent to the city of El Paso, Texas. From El Paso, the Rio Grande river goes north into the State of New Mexico. Texas had no territorial boundaries until Mexico ceded its territory north of the Rio Grande in 1848 and not in 1845.
The United States tends to view things retroactively. As an example, although the United States achieved its recognition from Great Britain in 1783, its history books say it achieved independence in 1776 when it declared it. Likewise, instead of the history books stating that Texas territory was acquired in 1848, it says Texas was annexed in 1845. Texas was never annexed in 1845 but rather acquired from Mexico in 1848.
In 1988, the Department of Justice’s Office of Legal Counsel (OLC) published a legal opinion regarding the annexation of Hawai‘i. The OLC’s memorandum opinion was written for the Legal Advisor for the Department of State regarding legal issues raised by the proposed Presidential proclamation to extend the territorial sea from a three-mile limit to twelve miles. The OLC concluded that only the President and not the Congress possesses “the constitutional authority to assert either sovereignty over an extended territorial sea or jurisdiction over it under international law on behalf of the United States.” As Justice Marshall stated, “[t]he President is the sole organ of the nation in its external relations, and its sole representative with foreign nations,” and not the Congress.
The OLC also 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.” The OLC then concluded that it is “unclear which constitutional power Congress exercised when it acquired Hawaii by joint resolution. Accordingly, it is doubtful that the acquisition of Hawaii can serve as an appropriate precedent for a congressional assertion of sovereignty over an extended territorial sea.”
That territorial sea referred to by the OLC was to be extended from three to twelve miles under the 1982 United Nations Law of the Sea Convention. In other words, the Congress could not extend the territorial sea an additional nine miles by statute because its authority was limited up to the three-mile limit. Furthermore, the United States Supreme Court, in The Apollon, concluded that the “laws of no nation can justly extend beyond its own territories.”
Arriving at this conclusion, the OLC cited constitutional scholar Professor Willoughby, “The constitutionality of the annexation of Hawaii, by a simple legislative act, was strenuously contested at the time both in Congress and by the press. The right to annex by treaty was not denied, but it was denied that this might be done by a simple legislative act. …Only by means of treaties, it was asserted, can the relations between States be governed, for a legislative act is necessarily without extraterritorial force—confined in its operation to the territory of the State by whose legislature enacted it.” Professor Willoughby also stated, “The incorporation of one sovereign State, such as was Hawaii prior to annexation, in the territory of another, is…essentially a matter falling within the domain of international relations, and, therefore, beyond the reach of legislative acts.”
Like Crimea there is no treaty of cession whereby Ukraine ceded Crimea to Russia with its boundaries, and like Hawai‘i there is no treaty of cession whereby the Hawaiian Kingdom ceded the Hawaiian Islands to the United States with its boundaries. The question is who is the independent State with its rights under international law, and not an entity that has yet to achieve independence under international law.
What is Annexation under International Law?
By definition the word annexation is to add to one’s own territory by appropriation. Under international law, it is a unilateral act by one State as to territory of another State, which is why it is unlawful. According to The Handbook of Humanitarian Law in Armed Conflicts:
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 or deballatio. International law does not permit annexation of territory of another State.
What is lawful under international law is cession whereby the ceding State transfers its territory to the acquiring State by a treaty. According to Professor Oppenheim:
Cession of State territory is the transfer of sovereignty over State territory by the owner-State to another State and the only form in which a cession can be effected is an agreement embodied in a treaty between the ceding and the acquiring State.
American examples of ceded lands are the 1807 Louisiana Purchase where France ceded its territory west of the Mississippi river to the United States and 1848 Treaty of Guadalupe-Hidalgo where Mexico transferred its territory north of the Rio Grande river to the United States as part of a peace treaty.
The latest example of an unlawful annexation is when Russia annexed Crimea after its invasion in 2014. Ukraine, which Crimea is a part of its territory, did not cede its territory to Russia by a treaty. Under international law, the annexation of Crimea is unlawful. There is no reason to say unlawful about the Russian annexation because it is inherently unlawful under international law.
Symposium on War Crimes Committed in the Hawaiian Islands by the United States
Watch the Hawaiian Society of Law & Politics‘ Symposium showcasing the “Royal Commission of Inquiry – Investigating War Crimes and Human Rights Violations Committed in the Hawaiian Kingdom” held at the University of Hawai‘i at Mānoa on February 11, 2023. This half-day symposium, in collaboration with the International Association of Democratic Lawyers, the National Lawyers Guild, the University of Hawaiʻi at Mānoa Native Hawaiian Student Services, and the University of Hawaiʻi at Mānoa College of Education, featured experts in the fields of international law, international relations, international criminal law and war crimes, and Hawaiian Kingdom law on the topic of the American occupation of the Hawaiian Kingdom since January 17, 1893. Part 2 of the presentation ends with a celebration of Aloha ʻĀina (Hawaiian patriotism) through mele (song) by well known Hawaiian entertainers and musicians.
The presentations stem from the three presenters’ articles published in the Hawaiian Journal of Law and Politics: Professor William Schabas, “Legal Opinion on War Crimes Related to the United States Occupation of the Hawaiian Kingdom since 17 January 1893;” Professor Federico Lenzerini, “Legal Opinion on the Authority of the Council of Regency of the Hawaiian Kingdom;” and Dr. David Keanu Sai, “The Royal Commission of Inquiry.”
KITV News: Symposium Will Highlight Investigation into War Crimes in the Hawaiian Islands
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
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.
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 occupationElements 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).