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The International Committee of the Red Cross (ICRC) is a respected private organization comprised of Swiss citizens that intervenes, as a neutral party, in conflicts and occupations where international humanitarian law is being violated. Article 10 of the 1949 Geneva Convention, IV, Relative to the Protection of Civilian Persons in Time of War (Fourth Geneva Convention) acknowledges the ICRC’s right it may “undertake for the protection of civilian persons and for their relief.”

The ICRC plays an important role as a non-government organization because it is not confined or limited by the politics of governments. According to its mission statement, the ICRC “is an impartial, neutral and independent organization whose exclusively humanitarian mission is to protect the lives and dignity of victims of armed conflict and other situations of violence and to provide them with assistance.” This mission statement is drawn from Article 30 of the Fourth Geneva Convention, which provides “Protected persons shall have every facility for making application to the…International Committee of the Red Cross…as well as to any organization that might assist them.”

In 1958, the ICRC published a commentary of the Fourth Geneva Convention. The following commentary is made in reference to Article 47—Inviolability of Rights. Article 47 states, “Protected persons who in occupied territory shall not be deprived, in any case or in any manner whatsoever, of the benefits of the present Convention by any change introduced, as the result of the occupation of a territory, in to the institutions or government of the said territory, nor by any agreement concluded between the authorities of the occupied territories and the Occupying Power, nor by any annexation by the latter of the whole or part of the occupied territory.”

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1.  General—The position of Article 47 at the beginning of the Section dealing with occupied territories underlines the cardinal importance of the safeguard it proclaims. During the Second World War whole populations were excluded from the application of the laws governing occupation and were thus denied the safeguards provided by those laws and left at the mercy of the Occupying Power. In order to avoid a repetition of this state of affairs, the authors of the [Fourth Geneva] Convention made a point of giving these rules an absolute character. They will be considered in the following pages in the order in which they occur in the Convention.

2.  Changes in the institutions or the government of the occupied territory—During the Second World War Occupying Powers intervened in the occupied countries on numerous occasions and in a great variety of ways, depending on the political aim pursued; examples are changes in constitutional forms or in the form of government, the establishment of new military or political organizations, the dissolution of the State, or the formation of new political entities.

International law prohibits such actions, which are based solely on the military strength of the Occupying Power and not on a sovereign decision by the occupied State. Of course the Occupying power usually tried to give some colour of legality and independence to the new organizations, which were formed in the majority of cases with the co-operation of certain elements among the population of the occupied country, but it was obvious that they were in fact always subservient to the will of the Occupying Power. Such practices were incompatible with the traditional concept of occupation (as defined in Article 43 of the Hague Regulations of 1907) according to which the occupying authority was to be considered as merely being a de facto administrator.

This provision of the Hague Regulations is not applicable only to the inhabitants of the occupied territory; it also protects the separate existence of the State, its institutions and its laws. This provision does not become in any way less valid because of the existence of the [Fourth Geneva] Convention, which merely amplifies it so far as the question of the protection of civilians is concerned.

Interference by the Protecting Power with the institutions or government of an occupied country has the effect of transforming the country’s structure and organizations more or less radically. Such a transformation may make the position of the inhabitants worse, and the present Article is intended to prevent from harming protected persons measures taken by the Occupying Power with a view to restoring and maintaining law and order. It does not expressly prohibit the Occupying Power from modifying the institutions or government of the occupied territory. Certain changes might conceivably be necessary and even an improvement; besides, the text is question is of an essentially humanitarian character; its object is to safeguard human beings and not to protect political institutions and government machinery of the States as such. The main point, according to the [Fourth Geneva] Convention, is that changes made in the international organization of the State must not lead to protected persons being deprived of the rights and safeguards provided for them. Consequently it must be possible for the Convention to be applied to them in its entirety, even if the Occupying Power has introduced changes in the institutions or government of the occupied territory.

3.  Agreement concluded between the authorities of the occupied territory and the Occupying Power—Agreements concluded with the authorities of the occupied territory represent a more subtle means by which the Occupying Power may try to free itself from the obligations incumbent on it under occupation law; the possibility of concluding such agreements is therefore strictly limited by Article 7, paragraph 1, and the general rule expressed there is reaffirmed by the present provision. It may thus be regarded as a provision applying the safeguards embodied in Article 7, which are valid for the whole [Fourth Geneva] Convention; reference should therefore be made to the comments on that Article.

It should be noted, however, that the Diplomatic Conference wished to reaffirm that general rule by re-stating it at the beginning of the chapter dealing with occupied territory for a particular reason; because there is in this case a particularly great danger of the Occupying Power forcing the Power whose territory is occupied to conclude agreements prejudicial to protected persons. Cases have in fact occurred where the authorities of an occupied territory have, under pressure from the Occupying Power, refused to accept supervision by a Protecting Power, banned the activities of humanitarian organizations and tolerated the forcible enlistment or deportation of protected persons by the occupying authorities. Such stipulations are in flagrant contradiction with Articles 9, 39 and 51 of the [Fourth Geneva] Convention and are consequently strictly forbidden.

Lastly it will be noted that the same clause applies both to cases where the lawful authorities in the occupied territory have concluded a derogatory agreement with the Occupying Power and to cases where that Power has installed and maintained a government in power.

4.  Annexation—The occupation of territory in wartime is essentially a temporary, de facto situation, which deprives the occupied Power of neither its statehood nor its sovereignty; it merely interferes with its power to exercise its rights. That is what distinguishes occupation from annexation, whereby the Occupying Power acquires all or part of the occupied territory and incorporates it in its own territory.

Consequently occupation as a result of war, while representing actual possession to all appearances, cannot imply any right whatsoever to dispose of territory. As long as hostilities continue the Occupying Power cannot therefore annex the occupied territory, even if it occupied the whole of the territory concerned. A decision on that point can only be reached in the peace treaty. That is a universally recognized rule which is endorsed by jurists and confirmed by numerous rulings of international and national courts.

And yet the Second World War provides us with several examples of “anticipated annexation,” as a result of unilateral action on the part of the victor to dispose of territory he had occupied. The population of such territories, which often covered a wide area, did not enjoy the benefit of the rules governing occupation, were without the rights and safeguards to which they were legitimately entitled, and were thus subjected to whatever laws or regulations the annexing State wished to promulgate.

Aware of the extremely dangerous nature of such proceedings, which leave the way open to arbitrary actions and decisions, the Diplomatic Conference felt it necessary to stipulate that actions of this nature would have no effect on the rights of protected persons, who would, in spite of them, continue to be entitled to the benefits conferred by the Convention.

It will be well to note that the reference to annexation in this Article cannot be considered as implying recognition of this manner of acquiring sovereignty. The preliminary work on the subject confirms this. In order to bring out more clearly the unlawful character of annexation in wartime, the government experts of 1947 proposed adding the adjective “alleged” before the word “annexation.” Several delegates at the Diplomatic Conference, concerned about the same point, went as far as to propose cutting out the reference to a hypothetical annexation in this Article. The Conference eventually decided to keep it because they considered that these fears were unfounded and also felt that it was wiser to mention such a situation in the text of the Article, in order to be better armed to meet it.

A fundamental principle emerges from the foregoing considerations; an Occupying Power continues to be bound to apply the Convention as a whole even when, in disregard of the rules of international law, it claims during a conflict to have annexed all or part of an occupied territory.

According to United States constitutional law, the federal government is separated into three distinct and separate branches, commonly referred to as the separation of powers doctrine. The Congress is the legislative branch that enacts federal statutes, the President heads the executive branch that executes or enforces federal statutes and treaties, and the Supreme Court is the judicial branch that interprets federal statutes and treaties. Under the separation of powers doctrine, the United States Supreme Court is the highest authority in the interpretation of federal statutes and treaties. In other words, when the Supreme Court makes a decision on a particular issue it is binding over everyone in the United States including the President and Congress.

In 1936, a very important case was heard by the United States Supreme Court that centered on the limitation of U.S. laws that became a binding precedent. The case was U.S. v. Curtiss-Wright Export Corp., 299 U.S. 304, 318, where the U.S. Supreme Court stated, “Neither the Constitution nor the laws passed in pursuance of it have any force in foreign territory unless in respect of our own citizens; and operations of the nation in such territory must be governed by treaties, international understandings and compacts, and the principles of international law.” Expressed in a different way, the U.S. constitution and federal statutes have no legal effect outside of the United States and actions taken by the United States government in foreign territories are governed by international law and treaties.

For Hawai‘i, a few of the treaties include:

• 1849 Treaty of Friendship, Commerce and Navigation;
• 1875 Treaty of Reciprocity;
• 1893 Lili‘uokalani Assignment & Agreement of Restoration;
• 1907 Hague Convention, IV;
• 1907 Hague Convention, V;
• 1949 Geneva Convention, IV; and the
• 1998 Rome Statute establishing the International Criminal Court.

Federal statutes that were passed in pursuance of the U.S. Constitution by Congress regarding Hawai‘i include, but are not limited to:

• Joint Resolution To provide for annexing the Hawaiian Islands to the United States, July 7, 1898 (30 U.S. Stat. 750);
• Revenue Act, October 3, 1913 (38 U.S. Stat. 114)
• Merchant Marine Act, June 5, 1920 (41 U.S. Stat. 988)
• An Act To provide for the admission of the State of Hawai‘i into the Union, March 18, 1959 (73 U.S. Stat. 4).

Without a treaty of cession, the Hawaiian Islands remain a foreign territory and therefore the U.S. constitution and federal statutes have no legal effect. Two particular federal statutes, the 1913 Revenue Act that established the Internal Revenue Service and the 1920 Merchant Marine Act, also known as the Jones Act, are not only illegal but are the driving forces behind Hawai‘i’s high cost of living.

TAXES

According to the Tax Foundation 2013 Facts & Figures, the current taxes paid by residents of Hawai‘i under United States laws, which includes the laws of the State of Hawai‘i, with an average income of $42,925.00 are on average $16,311.00. This is $.38 on the dollar (38%), which is a conservative estimate. Here’s the breakdown:

• $.13 cents/dollar (13%) – U.S. Federal Income Taxes;
• $.08 cents/dollar (8%) – U.S. Social Security & Medicaid (actual rate is 15.3% but employers cover half);
• $.08 cents/dollar (8%) – State Income Taxes;
• $.05 cents/dollar (5%) – State Corporate Income Taxes; and
• $.04 cents/dollar (4%) – State Sales Tax.

JONES ACT

The Jones Act is a restraint of trade and commerce in violation of international law and treaties between the Hawaiian Kingdom and other foreign States. According to the Jones Act, all goods, which includes tourists on cruise ships, whether originating from Hawai‘i or being shipped to Hawai‘i must be shipped on vessels built in the United States that are wholly owned and crewed by United States citizens. And should a foreign flag ship attempt to unload foreign goods and merchandise in the Hawaiian Islands will have to forfeit its cargo to the to the U.S. Government, or an amount equal to the value of the merchandise or cost of transportation from the person transporting the merchandise.

As a result of the Jones Act there is no free trade in the Islands. 90% of Hawai‘i’s food is imported from the United States, which has created a dependency on outside food. The three major American carriers for Hawai‘i are Matson, Horizon Lines, and Pasha Hawai‘i Transport Services, as well as several low cost barge alternatives. Under the Jones Act, these American carriers travel 2,400 miles to ports on the west coast of the United States in order to reload goods and merchandise delivered from Pacific countries on foreign carriers, which would have otherwise come directly to Hawai‘i ports. The cost of fuel and the lack of competition drives up the cost of shipping and contributes to Hawai‘i’s high cost of living. Gas tax is $.47 per gallon as a result of the Jones Act because only American carriers can transport oil to Hawai‘i to be converted into gas. And according to the USDA Food Cost, Hawai‘i residents pay an extra $296 per month for food than families in the United States.

Pacific countries with the highest number of carriers are led by Panama with 6,413; China with 2,771; Hong Kong with 1,644; Singapore with 1,599; Marshall Islands with 1,593; Indonesia with 1,340; South Korea with 786; Japan with 684; Vietnam with 579; Cambodia with 544; Philippines with 446; United States with 393; Thailand with 363; India with 340; Malaysia with 315; Canada with 181; North Korea with 158; Taiwan 112; Vanuatu with 77; Kiribati with 77; Tuvalu with 58; Mexico with 52; Australia with 41; Cook Islands with 35; Papua New Guinea with 31; Peru with 22; New Zealand with 15; French Polynesia with 12; Fiji with 11; Tonga with 7; New Caledonia with 3; Federated States of Micronesia with 3; Samoa with 2; Costa Rica with 1; Timor-Leste with 1.

The Jones Act functions as a barrier to entry for low-cost foreign carriers that Hawai‘i merchants could utilize to trade food and merchandise from other countries throughout the Pacific. This also includes purchasing oil at a much cheaper rate for conversion to gas. Free trade would also increase jobs here in the islands, especially after converting Pearl Harbor Naval Base into a commercial port similar to Subic Bay Free Port Zone in the Philippines, which used to be the second largest United States Naval Base in the world. Subic Bay “continues to be one of the country’s major economic engines with more than 700 investment projects, including the 4th largest shipbuilding facility in the world.” The military housing would also be converted to civilian housing.

Under the laws of occupation, U.S. Federal taxes cannot be collected in a foreign territory. If the State of Hawai‘i taxes were converted to Hawaiian Kingdom taxes in order to maintain government services, the taxes to be paid would be $.17 cents on the dollar, which is $7,297.25 for an income of $42,925.00, a savings of $9,013.75. Illegally collecting taxes in a foreign territory is a war crime called “appropriation of property [money]” (Article 147, 1949 Geneva Convention, IV, Title 18 U.S.C. §2441) not justified under the laws of occupation. The International Criminal Court also prosecutes individuals for committing the war crime of “appropriation of property, not justified by military necessity and carried out unlawfully and wantonly.” Adding to this unlawful “appropriation of property [money]” is the collection of monies paid out by the Hawai‘i consumer as a direct result of the Jones Act.

The United States government is liable to compensate Hawai‘i’s residents, which includes foreign nationals, for these violations.

Watch KITV News Man Goes to Court to Fight for More Than Traffic Citations.

Yesterday, Lopaka Brown, through his attorney Dexter Kaiama, esq., provided evidence and argument in District Court that the court is not lawfully constituted according to United States constitutional law and international law because there exists no treaty of annexation that would have incorporated the Hawaiian Islands into the United States of America. Without a treaty, U.S. law enacted by the Congress have no force and effect beyond U.S. territory, which nullifies the 1898 Joint Resolution of Annexation and the 1959 Statehood Act. The District Court derives its authority from the 1959 Statehood Act. The proper Court is a military commission established by the U.S. Pacific Command that administers Hawaiian Kingdom law and the laws of occupation.

Additional evidence provided to the court were two executive agreements entered into between Queen Lili‘uokalani and President Grover Cleveland that settled the illegal overthrow of the Hawaiian government. The first agreement, called the Lili‘uokalani assignment, binds the U.S. President, through the Pacific Command, to administer Hawaiian law and the laws of occupation. The second agreement, called the Agreement of restoration, binds the U.S. President to restore the government and thereafter the Queen to grant amnesty. Both agreements are treaties and under U.S. constitutional law are called sole-executive agreements. Sole-executive agreements are also binding upon successor Presidents for their faithful execution. See also War Crimes: The Role of the International Criminal Court during the Occupation of the Hawaiian Kingdom.

If the Court disregards the evidence, it would be committing a felony by denying Brown a fair trial according to Title 18, U.S.C., §2441. In 1996, Congress enacted the War Crimes Act that criminalized war crimes identified in the 1949 Geneva Conventions as felonies. Article 147 of the Fourth Geneva Convention states that failure to provide a fair trial in an occupied territory is a war crime. See also War Crimes are Felonies under U.S. Federal Law. The War Crimes Act is enforceable “outside” of U.S. territory when the United States military is the occupant of an occupied State.