In 2011, Dr. Keanu Sai wrote a book titled Ua Mau Ke Ea – Sovereignty Endures: An Overview of the Political and Legal History of the Hawaiian Islands. Pū‘ā Foundation is the publisher of this book that can be purchased online at their website. This book draws from Dr. Sai’s doctoral dissertation in political science titled The American Occupation of the Hawaiian Kingdom: Beginning the Transition from Occupied to Restored State. Ua Mau is currently being used to teach Hawaiian history in the Middle Schools, High Schools, and entry level collage classes.
In 2020, Dr. Sai is an editor and author of a free eBook titled Royal Commission of Inquiry: Investigating War Crimes and Human Rights Violations Committed in the Hawaiian Kingdom. Contributing authors include Professor Matthew Craven from the University of London, SOAS, Law Department, on the subject of the Hawaiian Kingdom’s continued existence as a State under international law; Professor William Schabas from Middlesex University London, Law Department, on the subject of war crimes being committed in the Hawaiian Kingdom; and Professor Federico Lenzerini from the University of Siena, Italy, Department of Political and International Science, on the subject of human rights violations committed in the Hawaiian Kingdom and the right of self-determination of a population under military occupation. In 2022, a book review of the Royal Commission of Inquiry’s eBook was done by Dr. Anita Budziszewska from the University of Warsaw, which was published in the Polish Journal of Political Science. This book is currently being used in undergraduate and graduate courses at universities.
To access Dr. Sai’s other publications you can visit his University of Hawai‘i website. Dr. Sai firmly believes in the power of education. He often states, “The practical value of history, is that it is a film of the past, run through the projector of today, on to the screen of tomorrow.” It is through education and awareness that the national consciousness of the Hawaiian Kingdom will be restored to its rightful place.
When the government of the Hawaiian Kingdom was restored in 1997 by a Council of Regency, it came into existence where the population of the Hawaiian Islands effectively had their national consciousness of the Hawaiian Kingdom from the nineteenth century obliterated and replaced with an American national consciousness. The process by which this obliteration occurred was by a deliberate and consistent policy of denationalization through Americanization that was formally instituted in the public and private school system in 1906 by the Department of Public Instruction, which is currently called the Department of Education.
According to the Programme, “The teacher will call one of the pupils to come forward and stand at one side of the desk while the teacher stands at the other. The pupil shall hold an American flag in military style. At second signal all children shall rise, stand erect and salute the flag, concluding with the salutation, ‘We give our heads and our hearts to God and our Country! One Country! One Language! One flag!’”
In 1907, Harper’s Weekly magazine covered the Americanization taking place at Ka‘ahumanu and Ka‘iulani Public Schools, which has students from the first to eighth grade. When the reporter visited Ka‘iulani Public School, he documented the policy being carried out and took a picture of the 614 school children saluting the American flag. He wrote:
At the suggestion of Mr. Babbitt, the principal, Mrs. Fraser, gave an order, and within ten seconds all of the 614 pupils of the school began to march out upon the great green lawn which surrounds the building. Hawaii differs from all our other tropical neighbors in the fact that grass will grow here. To see beautiful, velvety turf amid groves of palms and banana trees and banks of gorgeous scarlet flowers gives a feeling of sumptuousness one cannot find elsewhere.
Out upon the lawn marched the children, two by two, just as precise and orderly as you can find them at home. With the ease that comes of long practice the classes marched and countermarched until all were drawn up in a compact array facing a large American flag that was dancing in the northeast trade-wind forty feet above their heads. Surely this was the most curious, most diverse regiment ever drawn up under that banner—tiny Hawaiians, Americans, Britons, Germans, Portuguese, Scandinavians, Japanese, Chinese, Porto-Ricans, and Heaven knows what else.
‘Attention!’ Mrs. Fraser commanded.
The little regiment stood fast, arms at sides, shoulders back, chests out, heads up, and every eye fixed upon the red, white, and blue emblem that waved protectingly over them.
‘Salute!’ was the principal’s next command.
Every right hand was raised, forefinger extended, and the six hundred and fourteen fresh, childish voices chanted as one voice:
‘We give our heads and our hearts to God and our Country! One Country! One Language! One Flag!’
The last six words were shot out with a force that was explosive. The tone, the gesture, the gaze fixed reverently upon the flag, told their story of loyal fervor. And it was apparent that the salute was given as spontaneously and enthusiastically by the Japanese as by any of the other children. There were hundreds of them in the throng, and their voices rang out as clearly as any others, their hands raised in unison. The coldest clod of a man who sees the children perform this act of reverence must feel a tightening at the throat, and it is even more affecting to see these young atoms from all the world actually being fused in the crucible from which they shall issue presently as good American citizens.”
Under customary international law, Americanization is a war crime of denationalizing the inhabitants of an occupied territory. Germans and Italians were prosecuted for the same war crime after World War II for implementing a systematic plan of Germanization and Italianization in occupied territories.
The insurgency relied on loyalty, not merit, to fill the ranks of their provisional government in 1893 and their so-called Republic of Hawai‘i in 1894. When the United States seized control of the Hawaiian Islands by renaming the Republic of Hawai‘i to the Territory of Hawai‘i in 1900 loyalty in the ranks were continued by the insurgency pretending to be American citizens.
The lead insurgent, Sanford Dole, as President of the Republic of Hawai‘i, was appointed by President McKinley to be the Governor of the Territory of Hawai‘i. Loyalty to the insurgency was party affiliation to the Republican Party. In 1959, when the United States changed the name of the Territory of Hawai‘i to the State of Hawai‘i, loyalty was now under a new party—the Democratic Party, which continues today. While international law renders the current apparatus of the State of Hawai‘i not as a legitimate government but rather an occupant that is committing war crimes against the population of the Hawaiian Islands, it has not altered the firm grip of loyalty in the minds of alleged war criminals. What will eventually break this chain is criminal culpability and prosecutions like what occurred with with the Nazi Party in Germany.
When the Hawaiian government was restored in 1997 by a Regency, its officers had to conform to Hawaiian constitutional law and administrative processes. King Kamehameha III established, as an administrative process, meritocracy, which is where government jobs were based on merit and not solely on loyalty. Responding to a slew of appeals to remove these foreign advisors who replaced native Chiefs, Kamehameha III penned the following letter that was communicated throughout the realm—a letter that speaks to the time and circumstance the kingdom faced and establishing a meritocracy:
Kindly greetings to you with kindly greetings to the old men and women of my ancestors’ time. I desire all the good things of the past to remain such as the good old law of Kamehameha that “the old women and the old men shall sleep in safety by the wayside,” and to unite with them what is good under these new conditions in which we live. That is why I have appointed foreign officials, not out of contempt for the ancient wisdom of the land, but because my native helpers do not understand the laws of the great countries who are working with us. That is why I have dismissed them. I see that I must have new officials to help with the new system under which I am working for the good of the country and of the old men and women of the country. I earnestly desire to give places to the commoners and to the chiefs as they are able to do the work connected with the office. The people who have learned the new ways I have retained. Here is the name of one of them, G.L. Kapeau, Secretary of the Treasury. He understands the work very well, and I wish there were more such men. Among the chiefs Leleiohoku, Paki, and John Young [Keoni Ana] are capable of filling such places and they already have government offices, one of them over foreign officials. And as soon as the young chiefs are sufficiently trained I hope to give them the places. But they are not now able to become speakers in foreign tongues. I have therefore refused the letters of appeal to dismiss the foreign advisors, for those who speak only the Hawaiian tongue.
The Council of Regency and its officers had to become proficient in Hawaiian constitutional law, administrative law, land tenure, public international law, international humanitarian law, and the law of occupation. This is why Dr. Keanu Sai, as Chairman of the Council of Regency, secured a M.A. degree and a Ph.D. degree in political science specializing in international relations and law. Dr. Sai’s merit is also reflected in multiple peer review articles and published books on the topic of the Hawaiian Kingdom and its continued existence.
Loyalty was satisfied by Hawaiian administrative law where the members of the Cabinet Council were required to take the following oath, “I solemnly swear in the presence of Almighty God, that I will faithfully support the Constitution and laws of the Hawaiian Kingdom, and faithfully and impartially discharge the duties of [Minister of Foreign Affairs, the Minister of the Interior, the Minister of Finance, and the Attorney General].”
Under the law of occupation there is a working relationship between the occupant and the Regency as the government of the occupied State. International law constrains and regulates the actions of both entities with its collective duty of protecting the population of the occupied State. The law of occupation places another duty, which is paramount, on the head of the State of Hawai‘i Department of Defense, Major General Kenneth Hara, to proclaim the transformation of the State of Hawai‘i into a Military Government and begin to comply with the law of occupation.
According to the U.S. Manual for Courts-Martial, a “duty may be imposed by treaty, statute, regulation, lawful order, standard operating procedure, or custom of the Service.” In this case, MG Hara’s duty is imposed upon him by Article 43 of the 1907 Hague Regulations, and U.S. Department of Defense Directive 5001.1 that states it is the duty of the Army in “[occupied] territories abroad [to] provide for the establishment of a military government pending transfer of this responsibility to other authority.” It is not the duty of the Navy, Marines, or the Air Force. U.S. Army field manuals (“FM”) regulating military government are FM 27-5—Civil Affairs Military Government, FM 27-10—The Law of Land Warfare, FM 3-57—Civil Affairs Operations, and FM 6-37—The Commander’s Handbook on the Law of Land Warfare.
MG Hara’s failure to perform this duty that is established by treaty as an Army general officer is a crime under the Uniform Code of Military Justice, and a war crime of omission under international law. A soldier who is found guilty of willful dereliction of duty resulting in death or grievous bodily harm is subject to “dishonorable discharge, forfeiture of all pay and allowances, and confinement for 2 years.”
The war crimes tribunals in Nuremburg and Tokyo that followed the end of hostilities during the Second World War, “marked a clear recognition by the international community that all members of the chain of command who participate or acquiesce in war crimes must bear individual criminal responsibility.” Command responsibility arises when the military superior during an occupation of a foreign State fails to exercise sufficient control and accountability for his/her subordinates’ in the commission of war crimes. And a “non-military commander is [also] responsible for omissions which lead to the commission of crimes.” The doctrine of command responsibility arises when the superior, by omission, fails to control or punish those under his/her command.
Paragraph 4-24 of the 2020 Army Regulations 600-200 states, “Commanders are legally responsible for war crimes they personally commit, order committed, or know or should have known about and take no action to prevent, stop, or punish.” The failure of MG Hara to transform the State of Hawai‘i into a Military Government has allowed for war crimes to be committed with impunity throughout the Hawaiian Islands by the unlawful imposition of American laws over Hawaiian territory, which is the war crime of usurpation of sovereignty during military occupation. This imposition of American laws has led to secondary war crimes such as unfair trials, unlawful confinement, confiscation or destruction of property, denationalization, pillage, etc.
According to the U.S. Department of Defense, command and control is the “exercise of authority and direction by a properly designated commander over assigned forces in the accomplishment of the mission.” Establishing a Military Government is a mission of the Army in occupied territory, and when it is established, it is not based upon democratic principles. U.S. Army Field Manual 27-5 states, “Military government is exercised when an armed force has occupied such territory, whether by force or agreement, and has substituted its authority for that of the sovereign or previous government. The right of control passes to the occupying force limited only by the rules of international law and established customs of war.”
FM 27-5 also states under command responsibility, the “theater commander bears full responsibility for military government; therefore, he is usually designated as military governor or civil affairs administrator, but is authorized to delegate his authority and title, in whole or in part, to a subordinate commander. In occupied territory the commander, by virtue of his position, has supreme legislative, executive, and judicial authority, limited only by the laws and customs of war and by directives from higher authority.” And the reasons for the establishment of military government “are either military necessity as a right, or as an obligation under international law.”
The mission of a military government assumes that the population of the occupied territory is hostile to its presence, which is precisely why the military governor has command and control. The military governor does not maintain the loyalties of the former government but rather severs it by replacing it with his authority in order to temporarily administer the laws of the occupied State until a peace treaty has been agreed upon that would bring the occupation to an end.
After General Dwight Eisenhower proclaimed the establishment of a Military Government in Germany on April 19, 1945, began the de-Nazification of Germany. In his proclamation, General Eisenhower stated, “we shall obliterate Nazi-ism and German Militarism. We shall overthrow the Nazi rule, dissolve the Nazi Party and abolish the cruel, oppressive and discriminatory laws and institutions which the Party has created. We shall eradicate that German Militarism which has so often disrupted the peace of the world. Military and Party leaders, the Gestapo and others suspected of crimes and atrocities will be tried and, if guilty, punished as they deserve.”
Like in the case of Germany, the Military Government for Hawai‘i would have to “obliterate” American-ism and American Militarism in order to begin the restoration of Hawaiian Kingdom national consciousness that existed before the American invasion on January 16, 1893. American-ism and American Militarism was established by the American authorities themselves in order to conceal the illegality of the occupation and the militarization of an occupied State. This would not be an easy task but it is, nevertheless a duty imposed by treaty and Army regulations, which falls squarely on MG Hara despite his personal feelings and/or perceived loyalties to the Democratic Party of the current administration. As an Army general officer, MG Hara is held to a higher standard than any person pretending to be an American politician in an occupied State, and his training and military education reveals it.
There would, however, be no duty imposed upon MG Hara if the Hawaiian Kingdom had ceased to exist as a State under international law, but this is not the case because his Staff Judge Advocate, Lieutenant Colonel Lloyd Phelps, could not find any legal evidence that that was the case.
In 2014, LTC Phelps was the Deputy Prosecuting Attorney for the County of Maui in State of Hawai‘i v. English et al., criminal no. 14-1-0819, brought before Judge Joseph P. Cardoza of the Second Circuit Court. Attorney General for the Hawaiian Kingdom, Dexter Ka‘iama, served as the defendants’ counsel who filed a motion to dismiss both criminal complaints on the grounds that the court lacked subject matter jurisdiction because of the American military occupation of the Hawaiian Kingdom. Mr. Ka‘iama has been serving as the Attorney General of the Hawaiian Kingdom and member of the Council of Regency since August 11, 2013.
An evidentiary hearing was held at the Second Circuit Court on March 5, 2015, where Dr. Keanu Sai served as expert witness for the defense. The purpose for the evidentiary hearing was to meet the burden of proof established by the Intermediate Court of Appeals in State of Hawai‘i v. Lorenzo whereby defendants that are contesting the jurisdiction of the court must provide a “factual (or legal) basis for concluding that the Kingdom exists as a state in accordance with recognized attributes of a state’s sovereign nature.”
In Dr. Sai’s expert testimony, he provided the factual circumstances of the United States military occupation of the Hawaiian Kingdom and the unlawful imposition of American municipal laws as to the reason why the Court does not have subject matter jurisdiction because its authority extends from the 1959 Statehood Act passed by the Congress, which has no extra-territorial effect. In the court’s transcripts, Dr. Sai stated that for the Court to proceed it would violate “Article 147 [1949 Fourth Geneva Convention], unfair trial [as] a grave breach, which is considered a war crime.” When asked by Judge Cordoza, “Any cross-examination?” LTC Phelps responded, “Your Honor, the State has no questions of Dr. Sai. Thank you for his testimony. One Army officer to another, I appreciate your testimony.”
Binding on MG Hara was also the fact that the United States already recognized the continued existence of the Hawaiian Kingdom as a State and the Council of Regency as its government by opinio juris. Additionally, the United States explicitly recognized the Council of Regency, by a mutual agreement, so it could be granted permission to access all records and pleadings of the Larsen v. Hawaiian Kingdom case at the Permanent Court of Arbitration.
For MG Hara to continue to deny the overwhelming evidence that imposes upon him the duty and obligation to transform the State of Hawai‘i into a Military Government, he is establishing a very strong basis of “willfulness” of not performing his duty, which satisfies the criminal intent for the war crime of omission.
On October 20, 2023, the Council of Regency, as the government of the occupied State, initiated the process to terminate the 1884 Supplemental Convention (“Pearl Harbor Convention”). Secretary of State Antony Blinken received the notice of termination from the Council of Regency on October 26, 2023, at 05:47 hours, which consequently triggered the tolling of twelve months. According to the terms of the Pearl Harbor Convention, the treaty will be terminated on October 26, 2024, 05:47 hours.
The Pearl Harbor Convention extended the duration of the 1875 Commercial Reciprocity Treaty an additional seven years until 1894, unless either the United States or the Hawaiian Kingdom gives notice to the other of its intention to terminate the treaty and convention. According to Article I:
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.
As a condition for the extension of the commercial treaty, the United States sought exclusive access to Pearl Harbor. Article II of the Pearl Harbor Convention provides:
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.
According to Article 1, the Pearl Harbor Convention came into effect in 1887 after ratifications were exchanged in Washington, D.C., 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 17 January 1893, the Hawaiian Kingdom as a State under international law continued to exist.
After the Hawaiian government was overthrown by the United States in 1893, the United States did nothing with Pearl Harbor until 1908 when the United States Congress allocated monies to build a naval station instead of a “coaling and repair station.” This violated the terms of the Pearl Harbor Convention as well as violating the Hawaiian Kingdom’s neutrality under international law.
A note of the Hawaiian Kingdom attached to the Pearl Harbor Convention stated, “that Hawaiian Sovereignty and jurisdiction were not impaired that the Hawaiian Government was not bound to furnish land for any purpose and that the privilege to be granted should be coterminous with the Treaty.” Coterminous is defined as “having the same boundaries,” which is limited to Pearl Harbor.
The unlawful presence of the United States military has transformed the Hawaiian Kingdom from a neutral State into a military target by its adversaries, which first occurred on 7 December 1941 when Japan’s military forces attacked U.S. military targets. The high probability of military attacks by other countries, such as North Korea, China, and Russia continue due to the rising tensions in the Indo-Pacific region. In 1990, the Federal Emergency Management Agency’s Risks and Hazards—A State by State Guide listed 6 targets for nuclear attack that would effectively annihilate the entire Island of O‘ahu. The presence of the United States military places the civilian population of the Hawaiian Kingdom into perilous danger.
In light of the termination of the Pearl Harbor Convention, all Title 10 military forces of the four component commands of the Indo-Pacific Command—Army, Navy, Air Force and Marines, shall forthwith cease and desist any and all military exercises, to include utilizing live fire ranges across the islands, and anywhere within 200 nautical miles from the low water mark of the shoreline of the islands that constitute the Hawaiian Kingdom’s territorial sea and its exclusive economic zone, and to complete the withdrawal from the Hawaiian Islands by 26 October 2024.
The Staff Judge Advocates of the Indo-Pacific Command and the 25th Infantry Division were also included with the notifications. In his letters, Dr. Sai restated from the Council of Regency’s proclamation terminating the Pearl Harbor Convention:
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 manmade 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.
Dr. Sai stated that the reasoning for notifying the component commands was because it was unclear whether the State Department notified Indo-Pacific Command of the termination of the Pearl Harbor Convention. Dr. Sai also stated that it did not appear that U.S. troops were beginning to be withdrawn. In his letters to the commanders of the component commands, Dr. Sai addressed the war crimes of confiscation or destruction of property:
Military installations and target ranges beyond Pearl Harbor were unlawfully confiscated by the United States from the Hawaiian Kingdom public lands and the estates of private persons in violation of international humanitarian law and the law of occupation. Live fire at these target ranges constitute destruction of property. According to Professor William Schabas, renowned expert on international criminal law, war crimes and human rights, in his legal opinion on war crimes being committed in the Hawaiian Kingdom, there are five elements of the war crime of confiscation or destruction of property.
Following the end of hostilities during the Second World War, the war crimes tribunals in Nuremburg and Tokyo, “marked a clear recognition by the international community that all members of the chain of command who participate or acquiesce in war crimes must bear individual criminal responsibility.” Command responsibility arises when the military superior during an occupation of a foreign State fails to exercise sufficient control and accountability for his/her subordinates’ in the commission of war crimes. And a “non-military commander is [also] responsible for omissions which lead to the commission of crimes.” The doctrine of command responsibility arises when a superior, by omission, fails to control or punish those under his/her command.
Dereliction of the performance of a duty arises when a commander took no action to prevent, stop, or punish. Confiscation and destruction of property are war crimes and commanders of the four component commands have a duty to stop the further commission of these and other war crimes. Dereliction of the performance of a duty is also a war crime of omission.
Dr. Sai’s letter concluded with:
Since 17 April 2023, I have been in communication with Major General Kenneth Hara of the State of Hawai‘i Department of Defense, regarding his duty under international law and Army regulations, to transition the State of Hawai‘i into a military government. Of note in my meeting with BG Okamura on November 1, 2023, he stated to me that the withdrawal of U.S. troops because of the termination of the Pearl Harbor Convention will create chaos. I acknowledged that it would indeed be chaotic, and then answered that is precisely why MG Hara must establish a military government to facilitate the withdrawal of U.S. troops and begin to comply with the law of occupation. BG Okamura responded to me with that’s a good plan.
Unlike American politicians, members of the military have a duty and responsibility to comport with international law and regulations. To begin to withdraw Title 10 troops under your command is a duty imposed by the terms of a treaty and that you have command responsibility. Your presence in this country was by virtue of a treaty that would last from 1887 to 1894, and further, unless either country gives notice to the other of its intention to terminate. That notice to terminate was received by the United States on 26 October 2023 at 05:47 hours, which triggered the tolling of 12 months for termination. Therefore, your withdrawal is a duty imposed by the termination of that treaty that is not affected by any presidential or congressional action.
The legal basis for the Council of Regency’s establishment under Hawaiian constitutional law and the legal doctrine of necessity was based on the continued existence of the country called the Hawaiian State. What was unlawfully overthrown on January 17, 1893, was the government of the Hawaiian Kingdom and not the Hawaiian Kingdom as a State under international law. In fact, international law protects the State and its continuity from the continuous violations of its sovereignty by another State. What international law cannot protect, however, is the population of the Hawaiian Islands from denationalization through Americanization that began as a formal policy in 1906.
Under international criminal law, denationalization is the process of replacing the national consciousness of the Hawaiian Kingdom, to include its language, in the minds of school children with the national consciousness of the United States and its English language. Within three generations since 1906, the national consciousness of the Hawaiian Kingdom was wiped clean in the minds of the population in the Hawaiian Islands. Denationalization is a policy carried out in the school systems of the occupied States that attempts to change the national consciousness in the minds of school children. The United States and the Allied Powers in the First World War determined denationalization to be a war crime committed by Germany, Austria, and Bulgaria against the population of the Kingdom of Serbia when Serbia was occupied.
From the Allied Powers 1919 Commission on Responsibilities for the First World War, under the heading “attempts to denationalize the inhabitants of occupied territory,” the Commission charged several crimes committed in Serbia by the Bulgarian authorities: “Efforts to impose their national characteristics on the population;” “Serbian language forbidden in private as well as in official relations. People beaten for saying “Good morning” in Serbian;” Inhabitants forced to give their names a Bulgarian form;” “Serbian books banned—were systematically destroyed;” “Archives of churches and law-courts destroyed;” “Schools and churches closed, sometimes destroyed;” “Bulgarian schools and churches substituted—attendance at school compulsory;” “Population forced to be present at Bulgarian national solemnities.” The Commission also stated that in Serbia the Austrian and German authorities “interfered with religious worship, by deportation of priests and requisition of churches for military purposes. Interfered with the Serbian language.” In United States v. Greifelt et al., in 1948, the war crimes tribunal specifically referred to the war crime of denationalization by German authorities in occupied territories during the Second World War. The tribunal observed:
Attempts of this nature were recognized as a war crime in view of the German policy in territories annexed by Germany in 1914, such as in Alsace and Lorraine. At that time, as during the war of 1939-1945, inhabitants of an occupied territory were subjected to measures intended to deprive them of their national characteristics and to make the land and population affected a German province. The methods applied by the Nazis in Poland and other occupied territories, including once more Alsace and Lorraine, were of a similar nature with the sole difference that they were more ruthless and wider in scope than in 1914-1918. In this connection the policy of ‘Germanizing’ the populations concerned, as shown by the evidence in the trial under review, consisted partly in forcibly denationalizing given classes or groups of the local population, such as Poles, Alsace-Lorrainers, Slovenes and others eligible for Germanization under the German People’s List. As a result in these cases the programme of genocide was being achieved through acts which, in themselves, constitute war crimes.
The operative word used when describing the policy and acts of denationalization committed against the population of occupied States in both World Wars was “attempts.” The reason for the choice of this word was because the First World War only lasted for four years, and the Second World War only lasted six years. The American occupation is now at 131 years where the lies to conceal the occupation have become institutionalized and perceived to be the truth. As British novelist Dresden James wrote, “When a well-packaged web of lies has been sold gradually to the masses over generations, the truth will seem utterly preposterous and its speaker a raving lunatic.”
Another war crime committed by German, Austrian and Bulgarian authorities in occupied territories during the First World War was usurpation of sovereignty during military occupation. Usurpation of sovereignty is the imposition of the laws of the occupying State over the territory and its population of the occupied State. During the military occupation of a State, the occupying State is obligated to temporarily administer the laws of the occupied State until there is a treaty of peace. To impose the occupying State’s laws is a crime.
The Commission on Responsibility for the First World War 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 of Bulgaria committed 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.;” and “Museums belonging to the State (e.g., Belgrade, Detchani) were emptied and the contents taken to Vienna.”
The crime of “usurpation of sovereignty” was referred to by Judge Blair of the American Military Commission in a separate opinion in United States v.Alstötter et al. of 1951, “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.”
When the Hawaiian government was restored by a Council of Regency in 1997, it also held vicarious liability for its actions. As a constitutional monarchy, the primary duty of the Hawaiian government is to protect the rights of its population. In Larsen v. Hawaiian Kingdom at the Permanent Court of Arbitration, Larsen was alleging that he was not being protected by the Regency because the Regency, he argued, was allowing the unlawful imposition of American laws over him which led to his unfair trial and incarceration. The Regency denied this allegation but used the Permanent Court of Arbitration to recognize the continued existence of the Hawaiian Kingdom as a State and the Regency as its government.
This duty for governments to protect its population from war crimes reached the international level in 2005. 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 a State’s responsibility to protect their populations from war crimes and crimes against humanity. And in 2021, the General Assembly passed a resolution on “[t]he responsibility to protect and the prevention of genocide, war crimes, ethnic cleansing and crimes against humanity.” The third pillar, which may call into action State intervention, can become controversial.
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.”
What faced the Regency was how to protect a population from the commission of war crimes when that population itself had been completely denationalized into believing that the State of Hawai‘i exists as a lawful government under United States laws. The Regency’s strategy after returning from the PCA in the Netherlands was to effectively engage the devastating effects of denationalization through academic research at the university level. Since 2000, this research made public through published peer review articles, master’s theses, doctoral dissertations, books, and classroom instruction have managed to tear down the facade that the State of Hawai‘i is lawful and that the United States is an occupying Power.
During the occupation of the territory by an occupying State, there are two legal systems that exist at the same time, that of the occupied State and that of the occupying State. As Professor Krystina Marek explains, in “the first place: of these two legal orders, that of the occupied State is regular and ‘normal,’ while that of the occupying power is exceptional and limited. At the same time, the legal order of the occupant is…strictly subject to the principle of effectiveness, while the legal order of the occupied State continues to exist notwithstanding the absence of effectiveness.” The Regency knew that while the State of Hawai‘i exercised effective, but unlawful, control of Hawaiian territory there are rules that apply called international humanitarian law and the law of occupation. To knowingly violate these international laws created criminal culpability. While the Regency has no effective control as a result of the American occupation, it does have effective control of factual and legal information that it will use to compel compliance where the prolonged occupation will eventually come to an end by a treaty of peace.
Determined to hold to account individuals who have committed war crimes and human rights violations throughout the Hawaiian Islands, being the territory 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.” Dr. David Keanu Sai serves as Head of the RCI and Professor Federico Lenzerini from the University of Siena, Italy, as its Deputy Head.
On February 7, 2024, the RCI sent a letter of communication to all members of the State of Hawai‘i legislature and the County Councils regarding the war crime of usurpation of sovereignty during military occupation. In the letter, Dr. Sai apprised them of his communication he’s had since April 17, 2023, with Major General Kenneth Hara, State of Hawai‘i Adjutant General, regarding his duty to transform the State of Hawai‘i into a Military Government and to begin to administer the laws of the Hawaiian Kingdom as the occupied State. Dr. Sai directed Major General Hara that, in accordance with international laws and Army regulations, he will issue a proclamation transforming the State of Hawai‘i into a Military Government. Should he fail to do so would be a dereliction in the performance of his duty and the war crime of omission.
Major General Hara would also be made the subject of an RCI war criminal report for the purpose of prosecution. There are no statutes of limitation for war crimes, which means a person can be prosecuted regardless of his age. In 2022, a German court convicted a 97-year-old women for war crimes she committed during the Second World War.
Major General Hara also has the duty to protect officials and employees of the State of Hawai‘i and the Counties who, like the Legislature and County Councils, are committing the war crime of usurpation of sovereignty during military occupation. The RCI has given more than enough time for Major General Hara to have completed his due diligence done by his Staff Judge Advocate Lieutenant Colonel Lloyd Phelps as to the continued existence of the Hawaiian Kingdom as an occupied State. On July 27, 2023, he acknowledged that the Hawaiian Kingdom continues to exist, which consequently triggered his duty.
There are two laws that distinguish themselves from each other. There are “national” laws that are established within countries called States, and there are “international” laws that are established by the States themselves. Sources of national laws include the constitution, whether written or unwritten, statutes enacted by the legislature, and decisions by the highest court if the country is a common law system, e.g. United States and the Hawaiian Kingdom. Civil law countries like Italy and Germany do not have judge made laws. An indicator of whether the country is common law is if they have jury trials.
Every State is geo-political, which means that each State has their own geographical location and unique political experience that contribute to the function of their government, whether autocratic or democratic. And foreign influences and interests is what drives government reform and survival. In this regard, no two countries are alike.
Current international law has its roots in the Middle Ages of Europe. At the time, the Holy Roman Empire had great influence over the kings and dukes called Cannon Law. However, commercial, and maritime law was developing as well. In England the Law Merchant was established that covered rules governing foreign trade, which England, because of its naval power, declared was universal. This resulted in mercantile courts being established in trading ports throughout Europe to resolve disputes between traders of goods. According to Professor Malcolm Shaw,
Such rules, growing out of the Middle Ages, constituted the seeds of international law, but before they could flourish, European thought had first to be developed by that intellectual explosion known as the Renaissance. This complex of ideas changed the face of European society and ushered in the modern era of scientific, humanistic and individualistic thought.
The eventual fall of the supremacy of the Holy Roman Empire in 1648 gave rise to the States headed by kings and dukes. With a history of interaction between themselves that grew into custom prior to the fall, the interactions escalated with the introduction of the concept of sovereignty and centralized control of government of the State by another concept called the Leviathan, especially in the States of England, France and Spain. The concept of Leviathan was espoused by Thomas Hobbs in 1651 that advocated for a centralized monarchical form of government. With the printing press invented in the fifteenth century, this Hobbsian theory reached the ruling classes across Europe, who at the time were the only ones that could read.
With the rise of States and their interaction with each other, custom became the foundation of international law, which was supplemented with treaties. Eventually, principles of law that prevailed in the different States became norms or rules of international law that was universally accepted. When the Kingdom of Hawai‘i became a British Protectorate in 1794, the Hawaiian Kingdom in the nineteenth century was very much influenced by British forms of governance and the development of international law.
As a result of the positivist movement within States, which was a movement based on a scientific approach in thought rather than on faith, the movement eventually moved into the political and legal realms of governance called legal positivism. This movement eventually created the basis for a departure from the natural law of kings and dukes that relied on cannon law and moral thought, to a legal system that is based on existing and verifiable laws established by the legislature or the judges in a common law system. It establishes logic, consistency, and measurability like the methods of science and mathematics. Most importantly, legal positivism promotes predictability. In the courts of a common law country, this is called stare decisis, which is decision making by precedent set in previous court decisions.
Legal positivism eventually advocated the rule of law and not the politics of power, which drove many countries in Europe in the mid-nineteenth century into constitutional forms of governance and the recognition of civil and political rights. The French Revolution was an extension of this movement against absolute rule by a King. The Hawaiian Kingdom was riding this wave of government reform as it spread throughout Europe, and it successfully evolved from absolute rule to a constitutional form of governance with democratic principles without suffering the pains of revolution by the people like the case of France.
Positivism eventually would reach the international realm and be the driving force in reforming international law. Since constitutionalism separated government from the person of the king, which means the king was no longer the supreme absolute ruler but now a constitutional head of government, there would now be a separation of the government from the State.
In the sixteenth century, French jurist and political philosopher Jean Bodin stressed the importance that “a clear distinction be made between the form of the state, and the form of the government, which is merely the machinery of policing the state.” Nineteenth century political philosopher Frank Hoffman also emphasizes that a government “is not a State any more than a man’s words are the man himself,” but “is simply an expression of the State, an agent for putting into execution the will of the State.” Professor Quincy Wright, a twentieth century American political scientist, also concludes that, “international law distinguishes between a government and the state it governs.” Therefore, a State would continue to exist despite its government being overthrown by military force by another State’s armed forces.
As a result, customary international law would begin to be codified into treaty law. One particular aspect of customary international law was to bring order into the chaos of war, which was recognized as a means of enforcement of international law. Codification of the international laws of war began at the Brussels Conference in 1874 where the representatives of powerful and weak States advocated the formulation of the laws of war through multilateral treaties. While the first multilateral treaties that codified the laws of war were not done until 1899 called the Hague Conventions, rules of war eventually became accepted by States as customary international law, and they were recognized by States when they were at war since the mid-nineteenth century.
When a State’s territory is “effectively” occupied, customary international law obligates the occupying State to administer the laws of the occupied State. This is reflected in Articles 2 and 3 of the 1874 Brussels Declaration where, “[the occupying State] shall take all the measures in his power to restore and ensure, as far as possible, public order and safety [and] shall maintain the laws which were in force in the country in peacetime, and shall not modify, suspend or replace them unless necessary.” Although the Declaration failed to be signed off by the European States and become codified, it did have scholarly approval. The Institut de droit international (IDI) in 1875 declared:
[A]lthough there was room for improvement, the new rules on occupation as suggested by the 1874 Brussels Declaration were essentially more favorable to peaceful citizens and public and private ownership in occupied territories than what had been provided by practice thus far and by the teaching of most scholars. The IDI subsequently adopted the same rules in its Oxford Manual on Land Warfare (1880).
Eventually codification occurred in 1899. Article 43 of the 1899 Hague Regulations states, “The authority of the legitimate power having actually passed into the hands of the occupant, the latter shall take all steps in his power to re-establish and insure, as far as possible, public order and safety, while respecting, unless absolutely prevented, the laws in force in the country.” According to Professor Eyal Benvenisti:
The law of occupation as ultimately expressed in the 1899 Hague Regulations imposes two types of obligations on an army that seizes control of enemy land during war: the obligation to protect the life and property of the inhabitants and the obligation to respect the sovereign rights of the ousted government.
The “text of Article 43, according to Professor Benvenisti, “was accepted by scholars as mere reiteration of the older law.” Professor Doris Graber states that “nothing distinguishes the writing of the period following the 1899 Hague code from the writing prior to that code. And according to Professor Georg Schwarzenberger, “the Hague Regulations…was declaratory of international customary law.” The United States government also recognizes that Article 43 is customary international law that predates the Hague Regulations. In a 1943 legal opinion, the United States stated:
The Hague Convention clearly enunciated the principle that the laws applicable in an occupied territory remain in effect during the occupation, subject to change by the military authorities within the limits of the Convention. Article 43: … This declaration of the Hague Convention amounts only to a reaffirmation of the recognized international law prior to that time.
The administration of occupied territory is set forth in the Hague Regulations, being Section III of the Hague Regulations. The 1899 Hague Regulations was superseded by the 1907 Hague Regulations. Also, consistent with what was generally considered the international law of occupation, in force at the time of the Spanish-American War that predates the codification, the “military governments established in the territories occupied by the armies of the United States were instructed to apply, as far as possible, the local laws and to utilize, as far as seemed wise, the services of the local Spanish officials.”
Commenting on the occupation of the Hawaiian Kingdom, Professor Patrick Dumberry states:
[T]he 1907 Hague Convention protects the international personality of the occupied State, even in the absence of effectiveness. Furthermore, the legal order of the occupied State remains intact, although its effectiveness is greatly diminished by the fact of occupation. As such, Article 43 of the 1907 Hague Convention IV provides for the co-existence of two distinct legal orders, that of the occupier and the occupied.
Stark parallels can be drawn between what the United States did to the Hawaiian Kingdom and what Iraq did to Kuwait in 1990, commonly referred to as the First Gulf War. Just as Iraq, without justification, invaded Kuwait and overthrew the Kuwaiti government August 2, 1990, the United States did the same to the Hawaiian Kingdom and its territory. Where Kuwait was under a belligerent occupation by Iraq for 7.5 months, the Hawaiian Kingdom has been under a belligerent occupation by the United States for 131 years.
Hiding the occupation does not legalize it under international law. The international law of occupation has and continues to apply in the prolonged American occupation of the Hawaiian Kingdom. Hawaiian national consciousness is regained through education and knowing its legal and political history.
International law literally means the law between (inter) nations called States and not above these States. Domestic or municipal laws, on the other hand, are laws that reside within (intra) a State and that the persons in the territory of the State are subject to these laws. The reason why international is between and not above States is because they are considered politically independent from each other and are sovereign over their territory and their nationals abroad. This creates sovereign equality among the States. Therefore, for international law to be established, the State has to consent by international custom or by treaty.
According to article 38 of the Statute of the International Court of Justice these are five primary sources of international law: (a) treaties between States; (b) customary international law derived from the practices of State; (c) general principles of law recognized by civilized nations; and as subsidiary means for the determination of rules of international law; (d) judicial decisions and the writings of “the most highly and qualified publicists.”
Regarding customary international law there must be evidence that States accept the practice as law. The evidence must show a consensus among States concerning rules or actions—practices done by States as well as by international organizations that were established by States. According to Professor Ian Brownlie this evidence includes the following:
diplomatic correspondence, policy statements, press releases, the opinions of official legal advisers, official manuals on legal questions, e.g. manuals of military law, executive decisions and practices, order to naval forces etc., comments by governments on drafts produced by the International Law Commission, state legislation, international and national judicial decisions, recitals in treaties and other international instruments, a pattern of treaties in the same form, the practice of international organs, and resolutions relating to legal questions in the United Nations General Assembly.
According to the International Court of Justice, for a rule of customary international law to exist, there needs to be “two conditions [that] must be fulfilled” where there is a “‘settled practice’ together with opinio juris,” where the practice is accepted as law by States. This acceptance can be achieved by the silence or omission of the concerned States regarding the practice. In other words, States do not always have to say “I accept as law” the practice that was done in order for it to be considered law. Opinio juris is Latin for “an opinion of law.” The opinio juris can be the creation of a “new” rule of international law, or the acceptance of an “existing” rule of international law.
An example of a “new” rule of international law was when the Hawaiian Kingdom was recognized as an independent State by Great Britain and France on November 28, 1843. As a recognized independent State, the Hawaiian Kingdom would be protected under the rules of international law, in particular, the “existing” rule that the Hawaiian Kingdom as a State would continue to exist despite the military overthrow of its government. This existing rule is called the presumption of continuity of a State, which means that the State is presumed to continue to exist despite the removal of its government by another State.
This existing rule of international law is explained by Judge James Crawford where he states, there “is a presumption that the State continues to exist, with its rights and obligations…despite a period in which there is no, or no effective, government,” and belligerent occupation “does not affect the continuity of the State, even where there exists no government claiming to represent the occupied State.” Addressing the presumption of the German State’s continued existence despite the military overthrow of the Nazi government during the Second World War, Professor Brownlie explains:
Thus, after the defeat of Nazi Germany in the Second World War the four major Allied powers assumed supreme power in Germany. The legal competence of the German state [its independence and sovereignty] did not, however, disappear. What occurred is akin to legal representation or agency of necessity. The German state continued to exist, and, indeed, the legal basis of the occupation depended on its continued existence.
Therefore, “If one were to speak about a presumption of continuity,” explains Professor Matthew Craven, “one would suppose that an obligation would lie upon the party opposing that continuity to establish the facts substantiating its rebuttal. The continuity of the Hawaiian Kingdom, in other words, may be refuted only by reference to a valid demonstration of legal title, or sovereignty, on the part of the United States, absent of which the presumption remains.” Evidence of “a valid demonstration of legal title, or sovereignty, on the part of the United States” would be an international treaty, particularly a peace treaty, whereby the Hawaiian Kingdom would have ceded its territory and sovereignty to the United States. Examples of foreign States ceding sovereign territory to the United States by a peace treaty include the 1848 Treaty of Peace, Friendship, Limits, and Settlement with the Republic of Mexico and the 1898 Treaty of Peace between the United States of America and the Kingdom of Spain. There is no treaty of peace where the Hawaiian Kingdom ceded its sovereignty and territory to the United States, which means the Hawaiian Kingdom continues to exist under international law and that the present system of government under United States domestic law called the State of Hawai‘i is illegal.
One piece of evidence of international custom is “the practice of international organs” that have been established and are managed by States like the United Nations or the Permanent Court of Arbitration (PCA). The former was established by States who became Contracting States to the 1945 Charter of the United Nations, and the latter was established by States who became Contracting States to the 1899 Hague Convention for the Pacific Settlement of International Disputes (1899 PCA Convention), which was superseded by the 1907 Hague Convention for the Pacific Settlement of International Disputes (1907 PCA Convention). What will eventually come before the PCA in the Hawaiian Kingdom case is whether the Hawaiian Kingdom continues to exist as a State from the nineteenth century, and not whether the Hawaiian Kingdom is a new State. This brings it squarely under the existing rule of “continuity” or “discontinuity” of a State that was already established.
Because the PCA establishes ad hoc arbitral tribunals to resolve international disputes on a case by case basis, it must first have institutional jurisdiction before it can form the tribunal. For those States that are Contracting States to the 1899 PCA Convention when the PCA was established, they had automatic access to the PCA facilities. However, it was possible for non-Contracting States to have access to the PCA facilities as well.
Article 26 addressed the jurisdiction of the PCA in two parts, for Contracting States and for non-Contracting States. The first part of article 26 states, “The International Bureau at The Hague is authorized to place its premises and its staff at the disposal of the Signatory Powers for the operations of any special Board of Arbitration.” In other words, if the arbitral tribunal, being a “special Board of Arbitration,” was formed by the Contracting State or States and not by the PCA, they could still have access to the PCA “premises and its staff.”
The second part states, “The jurisdiction of the Permanent Court may, within the conditions laid down in the Regulations, be extended to disputes between non-Signatory Powers, or between Signatory Powers and non-Signatory Powers, if the parties are agreed on recourse to this Tribunal.” In other words, the second part grants access to disputes with non-Contracting States. In international law, the term “Powers” are synonymous with “States.”
At a meeting of the Contracting States in The Hague, Netherlands, it was agreed that the 1899 PCA Convention would be replaced by the 1907 PCA Convention. Article 47 reiterated the two-part institutional jurisdiction of the PCA. The first part states, “The Bureau is authorized to place its offices and staff at the disposal of the Contracting Powers for the use of any special Board of Arbitration.” The second part states, “The jurisdiction of the Permanent Court may, within the conditions laid down in the regulations, be extended to disputes between non-Contracting Powers or between Contracting Powers and non-Contracting Powers, if the parties are agreed on recourse to this Tribunal.”
Prior to the Larsen v. Hawaiian Kingdom case that lasted from November 8, 1999, to February 5, 2001, there were six instances where the PCA Secretary General recognized either both or one of the parties to the dispute to be a non-Contracting State to the 1899 or the 1907 PCA Conventions. The action taken by the PCA Secretary General is a practice of an “international organ” recognizable under international custom. When the PCA recognizes the State as a non-Contracting State it relies on “existing” rules of international law that provides for its existence or, in the case of the Hawaiian Kingdom, its continued existence.
In annex 2 of the PCA’s 111th Annual Report in 2011, certain cases have a footnote that states, “Pursuant to article 47 of the 1907 Convention (article 26 of the 1899 Convention).” In annex 2, the Larsen v. Hawaiian Kingdom is listed as the 33rd case under the jurisdiction of the PCA since its inception in 1899. If both parties to the dispute are Contracting States but the dispute involves a “special Board of Arbitration” than that created by the PCA it would be noted to have been established pursuant to article 47 of the 1907 PCA Convention or pursuant to article 26 of the 1899 PCA Convention. If the case involved a non-Contracting State, it would also be cited by the same wording of the footnote. Here is the link to the current 122 States that are Contracting States to the 1899 and 1907 PCA Conventions.
Regarding the involvement of a non-Contracting State to the dispute, the first instance was an arbitration between Norway and Sweden called The Grisbådarna Case that lasted from March 14, 1908, to October 23, 1909. The subject of the dispute was the maritime boundary between the two countries in the aftermath of the separation of the union of the Swedish-Norwegian Kingdom in 1905. Prior to the dissolution of the union, the Swedish-Norwegian Kingdom became a Contracting State to the 1899 PCA Convention on September 4, 1900. However, after the dissolution, Sweden became a Contracting State to the 1907 PCA Convention on January 26, 1910, and Norway became a Contracting State to the 1907 PCA Convention on November 18, 1910. Both countries were non-Contracting States during the arbitration, and, therefore, were allowed access to the jurisdiction of the PCA under article 47.
The second instance was a dispute between Russia and Turkey, called the Russian Claim for Interest on Indemnities case, that lasted from July 22, 1910, to November 11, 1912. While Russia became a Contracting State to the 1907 PCA Convention on January 26, 1910, Turkey was and continues to be a non-Contracting State.
The third instance was a dispute between the French High Commission to the States of Levant under Mandate (Syria and Lebanon) and the Egyptian Government over Egypt’s refusal to have the French Company Radio Orient in Egypt to receive any telegrams. The proceedings lasted from November 11, 1938, to April 2, 1940. Although France became a Contracting State to the 1907 PCA Convention on December 6, 1919, Egypt did not become a Contracting State until November 4, 1968.
The fourth instance was a dispute between France and Greece regarding the administration of light houses. The proceedings lasted from July 15, 1931, to July 24, 1956. Although France became a Contracting State to the 1907 PCA Convention on December 6, 1910, Greece was and continues to be a non-Contracting State.
The fifth instance was in 1997 in a dispute between Italy and Costa Rica regarding a dispute over a loan agreement between the two countries. The proceeding lasted from September 11, 1997, to June 26, 1998. While Italy is a non-Contracting State to the 1907 PCA Convention, Costa Rica did not become a Contracting State until after the arbitration on July 20, 1999.
In 1928, a precedence was set for the PCA to allow a dispute between a “private entity” and a State. In this case, there was a dispute centered on a contract between China and Radio Corporation of America—Radio Corporation of America v. China. The proceeding lasted from November 10, 1928, to April 13, 1935. The jurisdiction of the PCA was invoked by China, that became a Contracting State on January 26, 1910, according to article 47 because it involved a “special Board of Arbitration” that was not established by the PCA.
While China was the first Contracting State to have a dispute with a “private entity” that came under the jurisdiction of the PCA in 1928, the Larsen case was the first instance that the PCA had jurisdiction over a dispute between a non-Contracting State—the Hawaiian Kingdom and a “private entity”—Larsen in 1999.
Dr. Budziszewska is a faculty member of Political Science and International Studies at the University of Warsaw. In the years 2011-2020 she served as the coordinator for mobility, exchange and international cooperation at the IIR UW and at the WNPiSM UW. During the years 2016-2020 served as the Plenipotentiary of the Dean of the Faculty of Political Science and International Studies for international cooperation under the Erasmus+ program (European Union).
Dr. Budziszewska was member of the Polish mission to the United Nations during the 43rd session of the United Nations Human Rights Council in Geneva (43rd session of UN HRC). In 2020-2021 external expert of the project Polska360 organized/financed by the Kresy RP. Foundation and the Chancellery of the Prime Minister of Poland. She conducts classes on Elements of Diplomatic Protocol as part of the training organized by the Polish Olympic Committee and the Polish Corporation of Sports Managers. Member of the Organizing Committee of 8th Pan-European Congress of International Relations in Warsaw (2013) co-organized with the European International Studies Association.
Dr. Budziszewska completed scientific and professional internship, e.g. at the Polish Representation to the United Nations Office in Geneva. Study and training stays, among others, at the European Court of Human Rights in Strasbourg, the University of Zurich and the University of Oxford. International speeches, lectures and papers abroad, e.g. in Spain, Italy, Portugal, Greece, Finland, Croatia, Hungary and the UK. Member of the European Research Network on Philanthropy, International Studies Association and European International Studies Association.
Here follows her book review that was published in volume 8, issue 2 of the Polish Journal of Political Science.
The subject of review here is the multi-author publication Investigating War Crimes and Human Rights Violations Committed in the Hawaiian Kingdom, edited by Dr. David Keanu Sai, Head of the Hawaiian Royal Commission of Inquiry, published in 2020. The book is divided into three parts, i.e. Part 1 Investigating war crimes and human rights violations committed in the Hawaiian Kingdom; Part 2 The prolonged occupation of the Hawaiian Kingdom; and Part 3 Hawaiian law, treaties with foreign states and international humanitarian law. This final part represents a collection of source documents in such fields as Hawaiian law, but also international-law treaties with foreign states (in fact 18 including the USA)—dating back to the 19th century. A selection of treaties from the sphere of international humanitarian law has also been made and included.
The essence of the publication nevertheless resides in its two first parts, in which the authors offer an in-depth treatment of the complicated long-time relationship between Hawaii and the United States. Nevertheless, the thesis pursued here overall is the straightforward one that Hawaii has been occupied illegally and incorporated into the United States unlawfully, with that occupation continuing to the present day and needing to be understood in such terms. The authors also pursue the difficult thread of the story relating to war crimes.
The above main assumption of the book is emphasised from the very beginning of Part 1, which is preceded by the text of the Proclamation Establishing the Royal Commission of Inquiry, recalling that that Commission was established 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.”
In fact, the main aim of the above institution as called into being has been to pursue any and all offences and violations in the spheres of humanitarian law, human rights and war crimes committed by the Americans in the course of their occupation of Hawaii—which is given to have begun on 17 January 1893.
Presented next is the genesis and history of the Commission’s activity described by its aforementioned Head—Dr. David Keanu Sai. He presents the Commission’s activity in detail, by reference to concrete examples; with this part going on to recreate the entire history of the Hawaiian-US relations, beginning with the first attempt at territorial annexation. This thread of the story is supplemented with examples and source texts relating to the recognition of the Hawaiian Kingdom by certain countries (e.g. the UK and France, and taken as evidence of international regard for the integrity of statehood). Particularly noteworthy here is the author’s exceptionally scrupulous analysis of the history of Hawaii and its state sovereignty. No obvious flaws are to be found in the analysis presented.
It is then in the same tone that the author proceeds with an analysis relating to international law, so as to point to the aspects of Hawaii’s illegal occupation by the United States—including an unprecedentedly detailed analysis of the contents of documents, resolutions, mutual agreements and official political speeches, but also reference to other scientific research projects. This very interesting strand of the story is followed by Matthew Craven in Chapter 3 on the Continuity of the Hawaiian Kingdom as a State under International Law. Notwithstanding the standpoint on the legality of the occupation or annexation of Hawaii by the United States, the matter of the right to self-determination keeps springing up now and again.
Considerable attention is also paid to the multi-dimensional nature of the plebiscite organised in 1959 (with regard to Hawaii’s incorporation as a state into the United States of America), with the relative lack of transparency of organisation pointed out, along with various breaches and transgressions that may have taken place.
In turn, in Chapter 4—on War Crimes Related to the United States’ Belligerent Occupation of the Hawaiian Kingdom—William Schabas makes attempts to verify the assertion, explaining the term war crimes and referring to the wording of the relevant definition that international law is seen to have generated. The main problem emerging from this concerns lack of up-to-date international provisions as regards the above definition. The reader’s attention is also drawn to the incomplete nature of the catalogue of actions or crimes that could have constituted war crimes (in line with the observations of Lemkin).
While offering narration and background, this Chapter’s author actually eschews Hawaiian-US examples. Instead, he brings the discussion around to cases beyond Hawaii, and in so doing also invokes examples from case-law (e.g. of Criminal Courts and Tribunals). While this is a very interesting choice of approach, it would still have been interesting for the valuable introduction to the subject matter to be supplemented by concrete examples relating to Hawaii, and to the events occurring there during the period under study.
Chapter 5—on International Human Rights Law and Self-Determination of Peoples Related to the United States’ Occupation of the Hawaiian Kingdom—allows its author Federico Lenzerini to contribute hugely to the analysis of the subject matter, given his consideration of the human rights protection system and its development with a focus on the right to self-determination. The author separates those dimensions of the law in question that do not relate to the Hawaiian Kingdom, as well as those that may have application to the Hawaiian society. Indeed, the process ends with Applicability of the Right to Self-Determination During the American Occupation—a chapter written with exceptional thoroughness, objectivity and synthesis. The author first tells the story on how the human rights protection system came to be formulated (by the 1948 Universal Declaration of Human Rights and the Covenants of 1996, but also by reference to other Conventions). Rightly signalled is the institutional dimension to the protection of human rights, notably the Human Rights Committee founded to protect the rights outlined in the Covenant on Civil and Political Rights. It is of course recalled that the US is not a party to the relevant Protocols, which is preventing US citizens from asserting the rights singled out in the 1966 Covenants. Again rightly, attention is also paid to the regional human rights mechanism provided for by the 1969 American Convention on Human Rights, which also lacks the United States as a party.
The focus here is naturally on the right to self-determination, which the author correctly terms the only officially recognised right of a collective nature (if one excludes the rights of tribal peoples). The further part of the chapter looks at the obligations of states when it comes to safeguarding their citizens’ fundamental human rights. The philosophical context underpinning the right to self-determination is considered next (with attention rightly paid first to liberty related aspects and the philosophical standpoints of Locke and Rousseau, along with the story of the formulation of this right’s ideological basis and reference to what is at times a lack of clarity regarding its shape and scope (not least in Hawaii’s case). What is therefore welcome is the wide-ranging commentary offered on the dimensions to the above rights that do relate to Hawaiian society as well as those that do not.
In summing up the substantive and conceptual content, it is worth pointing to the somewhat interdisciplinary nature of the research encompassed. Somewhat simplifying things, this book can first be seen as an in-depth analysis of matters historical (with much space devoted to the roots of the relations between Hawaii and the United States, to the issue of this region’s occupation and the genesis of Hawaii’s incorporation into the USA). These aspects have all been discussed with exceptional thoroughness and striking scrupulousness, in line with quotations from many official documents and source texts. This is all pursued deliberately, given the authors’ presumed intention to illustrate the genesis of the whole context underpinning the Hawaiian-US relations, as well as the further context through which Hawaii’s loss of state sovereignty came about. This strand to the story gains excellent illustration thanks to Dr. Keanu Sai.
The second part is obviously international law related and it also has much space devoted to it by the authors. The publication’s core theses gain support in the analysis of many and varied international documents, be these either mutual agreements between Hawaii and the United States or international Conventions, bilateral agreements of other profiles, resolutions, instruments developed under the aegis of the UN or those of a regional nature (though not only concerned with the Americas, as much space is devoted to European solutions, and European law on the protection of human rights in particular). There is also much reference to international case-law and jurisprudence in a broader sense, the aim being to indicate the precedents already arrived at, and to set these against the international situation in which Hawaii finds itself.
However, notwithstanding this publication’s title, the authors here do not seek to “force-feed” readers with their theses regarding Hawaii’s legal status. Rather, by reaching out to a wide range of sources in international law as well as from history, they provide sufficient space for independent reflection and drawing of conclusions. In this regard, it would be interesting if few remarks were devoted to present-day relations between Hawaii and the rest of the USA, with a view to achieving a more-profound illustration of the state of this relationship. However, it might seem from the book’s overall context that this was done deliberately so that the foundations of this unique dispute gain proper presentation. All is then augmented further by Part 3—the collection of agreements and documents considered to sustain the main assumptions of the publication under review. Were I to force myself to point out any failure of the book to meet expectations, I would choose the cultural dimension. There is no way of avoiding an impression—only enhanced by cover-to-cover reading—that this publication is deeply rooted in the Hawaiians’ sense of cultural and historical identity. So it would have been interesting to see the cultural dimension addressed, including through a more in-depth analysis of social awareness. At the very least, I have in mind here Article 27 UDHR, traditionally regarded as the source of the right to culture and the right to participate in cultural life. To be added to that might be Article 15 of the International Covenant on Economic, Social and Cultural Rights, as well as Article 27 of the International Covenant on Civil and Political Rights. While (as Boutros Boutros-Ghali noted in 1970) the right in question initially meant access to high culture, there has since been a long process of change that has seen an anthropological dimension conferred upon both culture and the right thereto. A component under that right is the right to a cultural identity—which would seem to be the key space in the Hawaiian context. The UN and UNESCO have in fact been paying a great deal of attention to this matter, with the key relevant documents being the 2005 Convention on the Protection and Promotion of the Diversity of Cultural Expressions that in general links these issues with the human rights dimension as well as the Recommendation on Participation by the People at Large in Cultural Life and their Contribution to It (1976).
So a deeply-rooted cultural-identity dimension would have offered an interesting complement to the publication’s research material, all the more so as it would presumably reveal the attempts to annihilate that culture (thus striking not merely at statehood, but at national integrity of identity). An interesting approach would then have been to show in details whether and to what extent this is resisted by the USA (e.g. in regard to the upholding of symbols of material and non-material cultural heritage).
However, given the assumption the book is based on—i.e. the focus on state sovereignty (not the right of cultural minorities, but the right of a nation to self-determination), the above “omission” actually takes nothing away from the value of the research presented. However, the aspect of national identity—of which cultural and historical identity is a key component—may represent an impulse for further, more in-depth research.
I regard this publication as an exceptionally valuable one that systematises matters of the legal status of the Hawaiian Kingdom, taking up the key issues surrounding the often ignored topic of a difficult historical context occurring between Hawaii and the United States. The issue at stake here has been regenerated synthetically, on multiple levels, with a penetrating analysis of the regulations and norms in international law applying to Hawaii – starting from potential occupied-territory status, and moving through to multi-dimensional issues relating to both war crimes and human rights. This is one of the few books – if not the only one – to describe its subject matter so comprehensively and completely. I therefore see this work as being of exceptional value and considerable scientific importance. It may serve not only as an academic source, but also a professional source of knowledge for both practicing lawyers and historians dealing with the matter on hand. The ambition of those who sought to take up this difficult topic can only be commended.
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.
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 Kingdomon 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.
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.
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.
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 memorandumon 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.
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.
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.
