State of Hawai‘i Adjutant General, Major General Kenneth Hara, has not delegated complete authority to Brigadier General Stephen Logan to transform the State of Hawai‘i into a Military Government of Hawai‘i by 12 noon today, July 31st.

Consequently, MG Hara has incurred criminal culpability under international criminal law for the war crime by omission. By not establishing a military government to administer Hawaiian Kingdom law, he has allowed the continued imposition of American laws, which is the war crime of usurpation of sovereignty during military occupation. The Royal Commission of Inquiry will publish its war criminal report on MG Hara on Monday, August 5, 2024.

Since July 27, 2023, MG Hara acknowledged that the Hawaiian Kingdom continues to exist as an occupied State after his Staff Judge Advocate, Lieutenant Colonel Lloyd Phelps, was unable to to disprove the Hawaiian Kingdom existence. Consequently, this triggered MG Hara’s military duty to transform the State of Hawai‘i into a Military Government of Hawai‘i in order to administer Hawaiian Kingdom laws.

U.S. Department of Defense Directive 5100.1 states it is the function of the Army in “[occupied] territories abroad [to] provide for the establishment of a military government pending transfer of this responsibility to other authority.” And U.S. Department of Directive 2000.13 states the Army’s “Civil affairs operations include…[e]stablish[ing] and conduct[ing] military government until civilian authority or government can be restored.”

MG Hara’s conduct is unbecoming of an officer that has consequently placed every soldier under his command subject to criminal culpability because he willfully disobeyed an Army regulation and was willfully derelict in his duty to establish a military government. U.S. military officers are held to the highest personal and professional standards. When those standards are not met, officers may be administratively punished or criminally prosecuted.

Unbecoming of an officer is a criminal offense under Article 133 of the Uniform Code of Military Justice, which states that this type of offense is any “action or behavior in an official capacity that, in dishonoring or disgracing the person as an officer, seriously compromises the officer’s character, or action or behavior [that] seriously compromises the person’s standing as an officer.” Maximum punishment for violating this offense is dismissal, forfeiture of all pay and allowances, and confinement for up to a year.

Once the Royal Commission of Inquiry has published its war criminal report for MG Hara on its website, the Deputy Adjutant General, BG Logan, will have one week to perform his duty, as the theater commander of occupied territory, to proclaim the establishment of a military government. MG Hara is no longer the theater commander because he is a war criminal subject to prosecution.

If BG Logan is derelict in the performance of his duties to establish a military government, he would be the subject of an RCI war criminal report for the war crime by omission. From the date of the publication of BG Logan’s war criminal report on the RCI’s website, Colonel David Hatcher II, Commander of the 29th Infantry Brigade, and who is next in the chain of command below BG Logan, will have one week to transform the State of Hawai‘i into a military government. BG Logan would no longer be the theater commander because he would be a war criminal subject to prosecution.

The chain of command, or what is called the order of battle, for the 29th Infantry Brigade for units in the Hawaiian Islands is first the 1st Squadron, 299th Cavalry Regiment, second the 1st Battalion, 487th Field Artillery Regiment, third the 29th Brigade Support Battalion, and fourth the 227th Brigade Engineer Battalion. The 29th Infantry Brigade has units stationed in Alaska and Guam but because they are outside of Hawaiian territory they do not have the military duty as an occupant to establish a military government in the Hawaiian Islands.

If Colonel Hatcher is derelict in the performance of his duties to establish a military government, he would be the subject of an RCI war criminal report for the war crime by omission. From the date of the publication of Colonel Hatcher’s war criminal report on the RCI’s website, Lieutenant Colonel Fredrick J. Werner, Commander of 1st Squadron, 299th Cavalry Regiment, will have one week to transform the State of Hawai‘i into a military government. Colonel Hatcher would no longer be the theater commander because he would be a war criminal subject to prosecution.

If LTC Werner is derelict in the performance of his duties to establish a military government, he would be the subject of an RCI war criminal report for the war crime by omission. From the date of the publication of LTC Werner’s war criminal report on the RCI’s website, Lieutenant Colonel Bingham L. Tuisamatatele, Jr., Commander of 1st Battalion, 487th Field Artillery Regiment, will have one week to transform the State of Hawai‘i into a military government. LTC Werner would no longer be the theater commander because he would be a war criminal subject to prosecution.

If LTC Tuisamatatele is derelict in the performance of his duties to establish a military government, he would be the subject of an RCI war criminal report for the war crime by omission. From the date of the publication of LTC Tuisamatatele’s war criminal report on the RCI’s website, Lieutenant Colonel Joshua A. Jacobs, Commander of 29th Brigade Support Battalion, will have one week to transform the State of Hawai‘i into a military government. LTC Tuisamatatele would no longer be the theater commander because he would be a war criminal subject to prosecution.

If LTC Jacobs is derelict in the performance of his duties to establish a military government, he would be the subject of an RCI war criminal report for the war crime by omission. From the date of the publication of LTC Jacobs’s war criminal report on the RCI’s website, Major Dale R. Balsis, Commander of 227th Brigade Engineer Battalion, will have one week to transform the State of Hawai‘i into a military government. LTC Jacobs would no longer be the theater commander because he would be a war criminal subject to prosecution.

After LTC Balsis is derelict in the performance of his duties to establish a military government and is the subject of a war criminal report for the war crime by omission that will be published on the RCI’s website, the sequence of events will then loop to the Executive Officers beginning first with the 1st Squadron, 299th Cavalry Regiment Executive Officer, second the 1st Battalion, 487th Field Artillery Regiment, third the 29th Brigade Support Battalion, and fourth the 227th Brigade Engineer Battalion. This looping will first cover all commissioned officers, then all non-commissioned officers, then all the soldiers down to the lowest rank of private.

This chain of events will continue by rank down the chain of command of the entire Hawai‘i Army National Guard down to the last soldier with the rank of private until there is someone who will perform their military duty.

We are now at 131 years of an American occupation of the Hawaiian Kingdom. If the American military in Hawai‘i complied with the international law of occupation when Queen Lili‘uokalani conditionally surrendered to the United States on January 17, 1893, the occupation would not have lasted 131 years. Consequently, everything since 1893 that derives from American authority, that would otherwise be valid within U.S. territory, is invalid and void in Hawaiian territory because the United States has not been vested with Hawaiian sovereignty by a treaty. U.S. Army Field Manual 27-10, which regulates military occupations of foreign countries states:

Being an incident of war, military occupation confers upon the invading force the means of exercising control for the period of occupation. It does not transfer the sovereignty to the occupant, but simply the authority or power to exercise some of the rights of sovereignty.

The function of the military government is to provisionally administer the laws of the occupied State until a peace treaty comes into effect where the occupation comes to an end. Paragraph 62 of U.S. Army Field Manual 27-10 states that “Military government is the form of administration by which an occupying power exercises governmental authority over occupied territory.”

In the Island of Palmas arbitration, which was a dispute between the United States and the Netherlands, the arbitrator explained that “Sovereignty in the relations between States signifies independence. Independence in regard to a portion of the globe is the right to exercise therein, to the exclusion of any other State, the functions of a State.” And in the S.S. Lotus case, which was a dispute between France and Turkey, the Permanent Court of International Justice stated:

Now the 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 [treaty].

The permissive rule under international law that allows the United States to exercise authority over the territory of the Hawaiian Kingdom is Article 43 of the 1907 Hague Regulations and Article 64 of the Fourth Geneva Convention, that mandates the occupant to establish a military government to provisionally administer the laws of the occupied State until there is a treaty of peace. For the past 131 years, there has been no permissive rule of international law that allows the United States to exercise any authority in the Hawaiian Kingdom, which makes the occupation illegal under international law.

The only way to bring order to this calamity is by establishing a military government of Hawai‘i where the military governor has centralized command and control allowable under the law of occupation in order to make command decisions. We are at the cusp of transitioning the State of Hawai‘i into a Military Government of Hawai‘i. It is not a matter of “if” but rather “when.” It is also not a question of “choice” but rather a “duty” that has profound ramifications. A duty is a legal obligation called duty bound.

The current practice of the United States military is that it is the responsibility of the Army to establish a military government to preside over occupied territory. Not the Navy, Marines or the Air Force. U.S. Department of Defense Directive 5100.1 states that it is the function of the Army in “[occupied] territories abroad [to] provide for the establishment of a military government pending transfer of this responsibility to other authority.” And U.S. Department of Directive 2000.13 states that the Army’s “Civil affairs operations include…[e]stablish[ing] and conduct[ing] military government until civilian authority or government can be restored.”

At the beginning of the twentieth century, the U.S. Army took steps to prepare for military occupations by publishing field manuals—FM 27-10, The Law of Land Warfare, FM 27-5, Civil Affairs Military Government, FM 3-57, Civil Affairs Operations, and FM 6-27, The Commander’s Handbook on the Law of Land Warfare.

Paragraph 3, FM 27-5, states that the “theater command bears full responsibility for [military government]; therefore, he is usually designated as military governor […], but has authority to delegate 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.”

In other words, the highest-ranking officer in the theater of occupied territory is duty bound to transform the civilian government of the occupied State into a military government that would be presided over by the Army theater commander to be called a “military governor.” The civilian government of the occupied State remains intact, except for the legislative branch, because the military governor “has supreme legislative, executive, and judicial authority, limited only by the laws and customs of war and by directives from higher authority.”

If the theater commander refuses to establish a military government, he can be held accountable by court martial or by non-judicial punishment under the Uniform Code of Military Justice (UCMJ). There are two offenses under the UCMJ that would collectively apply. The first offense is willfully disobeying a regulation where the maximum punishment is dishonorable discharge and up to 2 years in prison. The second offense is willful dereliction of duty that carries a maximum punishment of bad conduct discharge and up to 6 months in prison. Collectively, the theater commander could face a total of 2.5 years in prison.

For the occupied Government, there is a duty to protect the population from war crimes committed on occupied territory. 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.”

Under international criminal law, the willful failure to establish a military government is a violation of article 43 of the 1907 Hague Regulations and article 64 of the Fourth Geneva Convention. This is especially egregious when the failure to establish a military government to administer the laws of the occupied State allows the imposition of the laws of the occupied State within a foreign country’s territory is the war crime of usurpation of sovereignty. So, the willful refusal to establish a military government is the war crime by omission.

To prepare for the transition to a military government, the Council of Regency, on October 10, 2014, proclaimed provisional laws for the Hawaiian Kingdom in order to bring the laws of 1893 up to date. The proclamation stated that all Federal, State of Hawai‘i and County laws shall be the provisional laws of the Hawaiian Kingdom so long as these laws do not run “contrary to the express, reason and spirit of the laws Hawaiian Kingdom.” On August 1, 2023, the Minister of the Interior published a memorandum on the formula to be applied in determining which American laws can be considered provisional laws of the kingdom.

After the Council of Regency was made aware that the State of Hawai‘i Attorney General instructed Major General Kenneth Hara to ignore the call to establish a military government, Dr. Keanu Sai, as Head of the Royal Commission of Inquiry sent a letter on June 22, 2024, to the Army National Guard Staff Judge Advocate, Lieutenant Colonel Phelps. The letter opened with:

It has been brought to my attention, that State of Hawai‘i Attorney General Anne E. Lopez has instructed Major General Kenneth Hara and Brigadier General Stephen Logan to ignore my efforts in calling upon MG Hara to perform his military duty of transforming the State of Hawai‘ into a military government. This baseless statement by Mrs. Lopez has criminal repercussions for herself and MG Hara for the war crime by omission. She has no lawful authority in the Hawaiian Islands because American laws do not apply here. There is no treaty of cession whereby the Hawaiian Kingdom ceded its territorial sovereignty to the United States. Therefore, sovereignty remains in the Hawaiian Kingdom, which the Permanent Court of Arbitration (“PCA”) recognized in 1999 in Larsen v. Hawaiian Kingdom. The PCA recognized the continued existence of the Hawaiian Kingdom as a “State,” and the Council of Regency as its government. At the center of the international dispute was the unlawful imposition of American municipal laws.

This interference by a civilian of a clear military duty is a very serious matter in military law for MG Hara. For MG Hara to not perform his duty of establishing a military government, Lopez would have to show him clear and irrefutable evidence that the Hawaiian Kingdom does not exist as an occupied State under international law. She did not show any such evidence. In closing, the letter stated:

As a result of the continuing and ongoing violations of the law of armed conflict, the law of occupation, and Army regulations, the Royal Commission of Inquiry is left with no choice but to take this particular course of action in order to compel the performance of a military duty to transform the State of Hawai‘i into a military government under the law of armed conflict, the law of occupation, and Army regulations. At present, there are two scenarios for MG Hara.

FIRST SCENARIO: Since the public announcement by MG Hara that he will be retiring in October of 2024, the third element of the offense of dereliction of duty—willfulness would appear to have been met. As a result, the Royal Commission of Inquiry (“RCI”) will publish a war criminal report on MG Hara for the war crime by omission for his failure to transform the State of Hawai‘i into a military government. Mrs. Lopez would be included in this report as an accomplice.

After the RCI’s publication, BG Logan to assume the chain of command to perform the duty by establishing a military government according to the Council of Regency’s operational order dated August 14, 2023. BG Logan shall reach out to the 322nd Civil Affairs Brigade, Fort Shafter, to advise him on the function of a military government. It is a function of Civil Affairs to advise commanders on military governments. BG Logan will also hold MG Hara accountable for dereliction of duty by court-martial or nonjudicial punishment, under Article 15, UCMJ. The information in the RCI war criminal report will be the evidential basis for punishment. To not hold MG Hara accountable for dereliction of duty sets the wrong standard for the entire National Guard.

SECOND SCENARIO: To relieve MG Hara from criminal culpability and for the RCI to refrain from publishing a war criminal report, MG Hara must delegate his authority to BG Logan to perform his duty, and, thereafter, MG Hara immediately resigns. This delegation of authority is authorized under paragraph 3, Army Field Manual 27-5, that states the “theater command bears full responsibility for [military government]; […] but has authority to delegate authority and title, in whole or in part, to a subordinate commander.” This regulation provides a window for MG Hara to delegate authority because he is currently the theater commander. The second scenario is time sensitive. When the RCI concludes, with evidence, that MG Hara refuses to delegate authority, the first scenario will be implemented.

Should BG Logan be derelict of his duty, a war criminal report on him will be drafted and published, and the next officer in the Army National Guard’s chain of command, Colonel David Hatcher II, commander of the 29th Infantry Combat Brigade, will assume the chain of command. This process of publishing war criminal reports will continue down the chain of command to the last enlisted soldier in the Hawai‘i Army National Guard, after, which, it will begin anew with the chain of command for the Hawai‘i Air National Guard down to the last enlisted soldier.

The American occupation is now at 131 years, which is unacceptable. I provided MG Hara and yourself more than enough time to falsify the information and legal basis for the American occupation and the continued existence of the Hawaiian Kingdom under international law. Falsification would have rendered MG Hara without this military duty to perform. Neither yourself nor the State of Hawai‘i, to include Mrs. Lopez, has ever provided rebuttable evidence as to the presumption of the continuity of the Hawaiian State under international law. Because he is aware of his duty under military law, MG Hara, as the theater commander, is directly responsible for all the war crimes being committed by members of the State of Hawai‘i. There are no statutes of limitations for the prosecution of war crimes. The RCI’s published war criminal reports provides the necessary evidence of the actus reus and mens rea for prosecution. As the Staff Judge Advocate, I recommend that you advise your senior military leadership not to take this communication lightly. I am including, with this letter, an RCI memorandum on bringing the American occupation of Hawai‘i to an end by establishing a American military government.

I am also attaching two recent law articles that were published by the International Review of Contemporary Law by myself as Head of the RCI, and by Professor Federico Lenzerini as the Deputy Head of the RCI. I am including these documents to inform you of the military duty to establish a military government and the legal consequences for not performing the military duty.

Attached to the letter to LTC Phelps was an RCI memorandum on bringing the American occupation of Hawai‘i to an end by establishing an American Military Government.

Many people confuse politics with law. Both terms are different, but they do work together in the governance of an independent State. According to the 6th edition of Black’s Law Dictionary, politics is the “science of government; the art or practice of administering public affairs,” and the term political pertains to the “exercise of the functions vested in those charged with the conduct of government.” Law on the other hand, according to Black’s Law, “is a body of rules of action or conduct prescribed by controlling authority, and having binding legal force,” and “must be obeyed and followed” because it “is a solemn expression of the will of the supreme power of the State.”

From politics stem policies, which, according to Black’s Law, are “the general principles by which a government is guided in its management of public affairs.” The South African Community Organisers Toolbox explains that a “policy outlines what a government ministry hopes to achieve and the methods and principles it will use to achieve them. It states the goals of the ministry. A policy document is not a law but it will often identify new laws needed to achieve its goals….Laws set out standards, procedures and principles that must be followed. If a law is not followed, those responsible for breaking them can be prosecuted in court.”

In other words, laws provide the framework for politics and policies to work and not the other way around. For independent States, there are two types of laws that frame governance at the international level and at the national level. There is public international law, which, according to the American Law Institute, is “the law of the international community of states,” that consists of “specific norms and standards, and largely in practice, international law functions between states, as represented by their governments.” International law is comprised of customary law, treaties, certain principles of law found in municipal laws of States that are universal, and the writings of scholars on certain topics.

The other type of law applies within the boundaries of the State called municipal laws. These laws are comprised of a written or unwritten constitution, statutes enacted by a State’s legislature, and decisions made by a State’s highest court if there is no statute covering a particular topic. The Hawaiian Kingdom is a common law country similar in function to the United Kingdom and its municipal laws stem from the 1864 Constitution, as amended, statutes enacted by the Legislative Assembly, and the decisions made by the Supreme Court. Under the law of occupation, laws can be proclaimed by the government of the occupied State while the legislature is out of session as a result of the occupation whether as a government in exile or in situ.

When the Hawaiian government was restored in 1997 by a Regency in situ under Hawaiian constitutional law and the doctrine of necessity, its policy was laid out in a strategic plan of three phases: phase 1—verification of the Hawaiian Kingdom as an independent State and subject of international law; phase 2—exposure of the Hawaiian Kingdom as an independent State; and phase 3—restoring the Hawaiian Kingdom to its former status before the American occupation began. The strategic plan lays out the policy of the Council of Regency that outlines what it “hopes to achieve and the methods and principles it will use to achieve them.” The Council of Regency’s primary function is to protect the population of the Hawaiian Kingdom and to ensure that the United States and the State of Hawai‘i comply with the law of occupation in order to eventually bring the occupation to an end.

Within each of the three phases there are laws that frame the approach of the Council. Phase 1 was achieved by treaty law at the Permanent Court of Arbitration (PCA) in Larsen v. Hawaiian Kingdom. Before the PCA could establish an arbitral tribunal to resolve the dispute between Larsen and the Hawaiian Kingdom, it first needed to have institutional jurisdiction. In the treaty that formed the PCA (1907 Convention), Article 47 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.” The term Powers refers to independent States. The PCA concluded that the Hawaiian Kingdom is a “non-Contracting Power” to the treaty. The PCA received the notice of arbitration on November 8, 1999, and after concluding it had institutional jurisdiction it established the arbitral tribunal on June 9, 2000. These proceedings came to an end when the Award was issued by the arbitral tribunal on February 5, 2001.

The action taken by the PCA was not political but rather legal. In other words, the PCA did not have any discretion or a choice as to whether to accept or not accept the dispute under its jurisdiction. It was a matter of treaty law. The continued existence of the Hawaiian Kingdom as an independent State, according to the civil law system of Europe, is a “legal fact” that led to the “legal act” of the PCA to accept the dispute under article 47 of the 1907 Convention.

Phase 2 is being achieved through both international law and the municipal laws of the Hawaiian Kingdom. As Professor Federico Lenzerini pointed out in his legal opinion, “the Council of Regency possesses the constitutional authority to temporarily exercise the Royal powers of the Hawaiian Kingdom,” and that it “has the authority to represent the Hawaiian Kingdom as a State, which has been under a belligerent occupation by the United States of America since 17 January 1893, both at the domestic and international level.”

The proclamations made by the Council of Regency is its exercise of legislative authority under Hawaiian municipal laws, which is allowable under international law and the law of occupation. And its most recent proclamation of October 20, 2023, pronouncing the termination of the 1875 Commercial Reciprocity Treaty and its 1884 Supplemental Convention is its exercise of authority as a treaty partner with the United States under international law. The Hawaiian Kingdom, by its Council of Regency, being a treaty partner is an indisputable “legal fact,” and the notice of termination by virtue of Article 1 of the 1884 Supplemental Convention is a “legal act” with consequences under international law.

For the United States to disregard the notice of termination, as a matter of treaty law, requires it to publicly rebuke the existence of the Hawaiian Kingdom as a State and the Council of Regency as its government. This is an impossible task.

The reason why it is impossible is because during the arbitral proceedings at the PCA, the United States explicitly acknowledged the Hawaiian Kingdom as a non-Contracting State to the 1907 Convention and the Council of Regency as its government. In its case depository on its website, the PCA stated the Hawaiian Kingdom to be a “State,” and Lance Larsen a “Private entity.” The PCA described the case as:

Lance Paul Larsen, a resident of Hawaii, brought a claim against the Hawaiian Kingdom by its Council of Regency (“Hawaiian Kingdom”) on the grounds that the Government of the Hawaiian Kingdom is in continual violation of: (a) its 1849 Treaty of Friendship, Commerce and Navigation with the United States of America, as well as the principles of international law laid down in the Vienna Convention on the Law of Treaties, 1969 and (b) the principles of international comity, for allowing the unlawful imposition of American municipal laws over the claimant’s person within the territorial jurisdiction of the Hawaiian Kingdom.

An important note in the above case description is that the PCA acknowledges that the Hawaiian Kingdom is a treaty partner with the United States in the 1849 Treaty of Friendship, Commerce and Navigation. This treaty has not been terminated by either the Hawaiian Kingdom or the United States. Article XVI states:

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.

Additional evidence is the executive agreement between the Council of Regency and the United States granting them access to the pleadings and records of the case, and the PCA Annual Reports from 2001-2011, which the PCA Administrative Council publishes. In Annex 2 of its 2001 Annual Report, it stated that the Larsen v. Hawaiian Kingdom arbitration was established “Pursuant to article 47 of the 1907 Convention (article 26 of the 1899 Convention).” All Contracting States that have diplomatic posts in the Netherlands sit as members of the Administrative Council that meet at the PCA, which includes the United States.

The termination of the Treaty and its Supplemental Convention is not subject to negotiation with the United States. Rather, the treaties themselves were the subject of negotiations and once both countries ratified the treaties it became international law. Termination that is provided by a treaty provision becomes self-executing according to the terms of the treaty. For termination of the treaty, the only requirement is for the Hawaiian Kingdom to provide notification of its intent to terminate to the United States, and once the United States receives the notice twelve months starts.

The United States, however, does have a provision to terminate a treaty that is first subject to negotiation and mutual agreement. This treaty provision concerns Guantanamo Bay, Cuba. In 1903, the newly independent State of Cuba leased Guantanamo Bay to the United States to build a Naval Station by entering into two international agreements. In the 1934 Treaty these agreements were acknowledged, and the terms of termination were explicitly stated in Article III, which states:

Until the two contracting parties agree to the modification or abrogation of the stipulations of the agreement in regard to the lease to the United States of America of lands in Cuba for coaling and naval stations signed by the President of the Republic of Cuba on February 16, 1903, and by the President of the United States of America on the 23d day of the same month and year, the stipulations of that agreement with regard to the naval station of Guantanamo shall continue in effect. The supplementary agreement in regard to naval or coaling stations signed between the two Governments on July 2, 1903, also shall continue in effect in the same form and on the same conditions with respect to the naval station at Guantanamo. So long as the United States of America shall not abandon the said naval station of Guantanamo or the two Governments shall not agree to a modification of its present limits, the station shall continue to have the territorial area that it now has, with the limits that it has on the date of the signature of the present Treaty.

What this treaty provision means is that there is no time limit for the United States’ lease of Guantanamo Bay, and the only way to terminate the lease agreement is that both the United States and Cuba must agree beforehand. The United States history has shown that it will not give its consent to terminate the lease of Guantanamo Bay Naval Station because it is in their self-interest to maintain the base despite any objection made by the Cuban government. This treaty provision has become known as Cuba’s “legal blackhole.” This is not the case for the United States naval station at Pearl Harbor.

On September 12, 2023, the Council of Regency approved its Operational Plan for Transitioning the Military Government into the Hawaiian Kingdom Government. The Council of Regency has drafted a proposed Treaty of Peace, and sees that the occupation can come to an end in 3 years. This operational plan assumes that the military government has been established in accordance with its August 14, 2023, Operational Plan for Transitioning the State of Hawai‘i into a Military Government and moves it to the next phase where the occupation will come to an end. These operational plans are comprehensive and incorporates Hawaiian Kingdom laws and the law of occupation.

The mandate of the Council of Regency is through all legal means, compel the United States and the State of Hawai‘i to begin to comply with international humanitarian law and the law of occupation in order to bring the prolonged occupation to an end. It has been 23 years since the Council of Regency returned from oral hearings held at the Permanent Court of Arbitration, in Larsen v. Hawaiian Kingdom arbitration proceedings in December of 2000.

As part of phase II of its strategic plan—exposure of the Hawaiian Kingdom as a State under international law, the Council of Regency focused on academic research to not only draw attention to the fact that the Hawaiian Kingdom continues to exist, but how international humanitarian law and the law of occupation provides the process for the occupation to eventually come to an end. At first glance, for the State of Hawai‘i to transform itself into a military government would appear counter intuitive to a problem that came about by the U.S. military itself when they invaded the Hawaiian Kingdom on January 16, 1893.

The U.S. military is the most regulated organization in the United States. It operates like it is its own government with the exception of a legislative body. It has a general that oversees all branches of the military, a chain of command with superiors at every level to the lowest ranking soldier, and a judicial system to hold to account soldiers who violate regulations called the Uniform Code of Military Justice.

What the U.S. military did when they invaded Hawaiian territory and caused the overthrow of the Hawaiian Kingdom government was unlawful, and admitted being so by President Grover Cleveland, but that didn’t mean it ended then and there. When a government of another country is militarily overthrown by an “act of war,” it triggers duties and obligations upon the invader that are not just military regulations, but also international law called international humanitarian law and the law of occupation.

The law of occupation in 1893 obligated the United States military to establish a military government to administer the laws of the occupied State until a treaty of peace has been negotiated and agreed upon that will either bring the occupation to an end or the occupied country could cede itself to the former occupying State. To not administer the laws of the occupied State by a military government is a war crime by omission, and the imposition of American laws over Hawaiian territory is the war crime of usurpation of sovereignty during military occupation. There are no statutes of limitations for war crimes.

Until there is a treaty of peace, the occupation continues and war crimes continue to be committed with impunity. There is no treaty of peace whereby the Hawaiian Kingdom ceded itself to the United States. The Hawaiian Kingdom continues to exist because of the international principle of inalienable sovereignty, and the Permanent Court of Arbitration acknowledged this in Larsen v. Hawaiian Kingdom in 1999.

A military government is also a misnomer. It is not a government comprised of the military, but rather the civilian government of the occupied State where only the head is replaced by a military governor, which is the highest-ranking Army officer that is in effective control of the territory of an occupied State. That officer is the State of Hawai‘i Adjutant General, Major General Ken Hara. According to Army regulations, the 322nd Civil Affairs Brigade at Fort Shafter, Island of O‘ahu, advises military governors on the function of transitioning governance—military government. U.S. Army Field Manual 3-57 is the manual for Civil Affairs units.

Ladies and Gentlemen:

This is the day we commemorate the return of the Hawaiian Flag by Admiral Thomas. Twenty-two years have passed since that officer arrived at these shores, restoring the Flag to our King and the nation. Our hearts were filled with joy on that day that is forever remembered, and many tears were shed, not from sadness, but from joy. How very different from the previous February 25. I recall what I saw as I stood in the grounds of the old Fort with our current King and his younger brothers, now deceased; we witnessed our Flag being brought down. On that day, these islands were surrendered to the Crown of Great Britain, and on that day the flying star flag of Albion waved victoriously over these Islands. Many here probably heard the short speech King Kamehameha IIIgave regarding that event.

“Attention, Nobles, people, and subjects from my ancestors’ time, as well as those of foreign lands! Pay heed all of you! I say to you all that I am in distress as a result of predicaments into which I have been drawn without cause, therefore I have surrendered the sovereignty of our land, and so you should all heed that! However, my reign over all of you, my people, and your rights, will continue because I am hopeful that the sovereignty of the land will yet be restored, if my actions are just.”

That speech by the King to his people was short, but important nonetheless. He expressed his sadness about what he had seen. There were many tears that day. Those were dark and fearful days. The entire nation mourned during those months of investigation, thinking that the government might have been lost for all time to the hands of a foreign power. For five long months all remained calm, as at the outset, and on the 31^st of July, the day we now commemorate, we saw “the flag for which they had dared for a thousand years to valiantly face war and the wind” brought down by one of the own sons of England.

As Doctor Gulick clarified, “America gaining independence was not something that simply came to be, nor was it some short-lived foolishness. Instead, it was something that came about and will be remembered for centuries, and is something that will continue on into the future.” The same is true of this, our restoration day, it is not something that just came to be. Admiral Thomas did not simply come here regarding trouble that was occurring and seek the facts as they have done before, but he heard, from a high-level source, of actions happening between this Government and those under its domain. He carefully considered it, and the setting was perfectly clear to him prior to his sailing here and his return of the land to its King who had acted justly. The people (though I speak as an individual) had acted appropriately, were thoughtful and vigilant in the workings of the Government, and if they had spoken or acted irresponsibly, they would certainly have incurred the wrath of the opposition. Something real that was witnessed was whether the assets that the nation had entrusted to someone in a certain department would continue to exist. It was assumed they had not. The books of every kind, which were critical, were taken away from the offices and hidden, then taken to the Royal Crypt, there to be left among the residents of that eerie place. Night and day, the work was carried out there, and the casket of Good Ka’ahumanu became the desk for writing.

But the sun rose again, brighter than ever. The hopes of the good and benevolent Kauikeaouli were fulfilled (you will likely never forget the short speech he gave with the wishes for his people on the day he surrendered the land to Great Britain, and his hopes that once his actions on behalf of his Kingdom were justified, it would be restored to him as before). At this time, we are an independent modern nation, and we are seen as such, and though we have only recently emerged from darkness into enlightenment, our status has grown, and continues to expand through righteousness.

Each of the many peoples of the earth has things of which they may be proud. England has promoted its powerful navy and through its colonies all around the world (and it is said to be true) the sun never sets on its bounds. France glorifies its Bonaparte, and the way all of Europe trembled while that soldier of a hundred wars sat on the French throne. Rome prided itself on its strength and its wealth. The United States of America was boastful that when it moved toward liberty, it gained its independence, and in recent years, stamped out both rebellion and slavery, never to rise again. Of what do we boast? I say sincerely, indeed there is something, for in the few, short years since the light of God’s word reached our shores, the tree of knowledge and wisdom has been planted, the roots have expanded out, the branches have spread wide, and now its fruits are being sent out among the benighted peoples of this great Pacific Ocean. The brightness of our enlightenment grows every day, and I am proud to say that we are assuming a position among the learned and civilized peoples of the world. I call this the true beauty of this land, Hawai’i.

As a closure to my reflections, I say that we should give our love to Him, the Judge of all things, because of his love for us, in our hours of strife and in times of good fortune and joy.

“May God Save The King With His Eternal Love.”

Twenty years ago, Kauikeaouli emerged from the grounds of Kanaina; he and Kekuanaoa, Paki, Keoniana, Kanoa, Kivini, and some foreigners on horseback, and they rode for Kulaokahua.

Admiral Thomas was there with his troops and mounted guns in all his grandeur, and also there were the young chiefs, and a crowd of natives and foreigners awaiting the arrival of the King.

When he arrived, Admiral Thomas came to him holding the Hawaiian flag in his hands. The King and all his people dismounted and the Admiral came and opened the flag to the wind, and then gave it to Kauikeaouli’s flag bearer.

Right then, 21 mounted guns fired as a salute to the Flag, and the British flag was lowered on Puowaina, while the Hawaiian flag was drawn up again, whereupon 21 guns of Puowaina sounded. Then the British flag was pulled down at the Fort and the Hawaiian flag was raised, so the Fort fired a 21 gun salute, followed by 21 guns from the ship Carysfort, 21 from the Dublin, 21 more from the Hazzard, and then the American ship Constellation fired a 21-gun salute. When that was over, the 21 mounted guns fired a salute in honor of the King.

The British soldiers stood in a circle saluting the King, and when that was done the King returned to the palace. At 3[1] o’clock the King, his soldiers and the crowd of people all went to the church of Kawaiaha’o and gave thanks to God for his grace in restoring the sovereignty of the Nation.

At three o’clock, the King went aboard the ship Dublin to a dinner hosted by the Admiral, and when the Carysfort saw the King’s flag on the launches, a 21-gun salute was fired, followed by 21 guns from the Hazzard, then the Dublin, and then a final 21 gun salute came from the Constellation.

When the dinner on board the ship was finished, the King and his retinue came ashore and the Dublin fired a salute, followed by the Carysfort, then the Hazzard and the Constellation, 21 guns each.

The next day the great feast at Luakaha was held for the Admiral, and Kauikeaouli decided that the 31^st of July would become a holiday for the Nation and the people. What was the reason for this great festivity?

What was the reason for the resounding of 315 guns, startling the mountains and roiling the seas? It was because the flag, once pulled down, had been raised up again.

I should perhaps recount the source of this entanglement. It was the desire of British foreigners here ashore for Britain to take this island chain. It would not then remain independent, so Consul [Charlton] sought to petition the Admiral, whereupon the Admiral ordered Lord George Paulet to sail here to Hawaii and do everything according to the terms of the Consul, and he intended to take the land by war, but, the King gave in advance the sovereignty of the land to the two of them, so as to escape battle, in the manner of a mortgage until such time as the British government could decide about the entanglements that the foreigners had made up.

The Admiral perhaps recognized his own entanglement because of the transfer to George Paulet under Consul, therefore he was concerned and restored the sovereignty of the Nation.

Therefore, the chiefs and the common people are joyful on this day because of the victory of righteousness over wrong, and the religious ones praise God, their Savior, for allowing them not to live as prisoners under Britain. Glory! Glory!! Glory!!!

There is some confusion as to who or what is responsible for prosecuting war criminals, in particular, war crimes committed against the civilian population of an occupied State. The simple answer are governments who signed and ratified the 1907 Hague Regulations and the 1949 Fourth Geneva Convention. This responsibility is further amplified when governments signed and ratified the Rome Statute that established the International Criminal Court (ICC) in The Hague, Netherlands.

One such country is New Zealand. Professor Treasa Dunworth wrote a revealing law article in the New Zealand Yearbook of International Law titled “From Rhetoric to Reality: Prosecuting War Criminals in New Zealand” in 2008. According to Professor Dunworth, in order to pursue the prosecution of war criminals by New Zealand courts there are two statutory options, the Geneva Conventions Act of 1958 and the International Crimes and International Criminal Court Act of 2000 (ICC Act). New Zealand signed the Rome Statute on October 7, 1998, and deposited its instrument of ratification with the Secretary General of the United Nations on September 7, 2000.

Prosecution of war criminals must be evidence based and not politically driven. The Geneva Conventions Act and the ICC Act allows New Zealand to prosecute any person irrespective of their nationality and where the war crime was committed.

Under the Rome Statute, the national courts of contracting States have the responsibility to deal with cases of international crimes first called complementary jurisdiction to the ICC. The ICC deals only with cases under limited circumstances. Article 1 of the Rome Statute provides that the ICC “shall have the power to exercise its jurisdiction over persons for the most serious crimes of international concern, as referred to in this State, and shall be complementary to national criminal jurisdictions.”

According to the Handbook on Complementarity, there are at least four reasons for the complementary system: 1) it protects the accused if they have been prosecuted before national courts; 2) it respects national sovereignty in the exercise of criminal jurisdiction; 3) it might promote greater efficiency because the ICC cannot deal with all cases of serious crimes; and 4) it puts the onus on States to do their duty under international and national law to investigate and prosecute alleged serious crimes (that is, it is not just a matter of efficiency but a matter of law, policy, and morality).

Under New Zealand law there are two ways to get a war criminal arrested, which is separate from the prosecution, which can only take place with the consent of the Attorney-General. The most common way to get an arrest warrant is for the Attorney-General to pursue a public prosecution by seeking an arrest warrant, or by a process for a private prosecution for war crimes where a person, whether a citizen of New Zealand or not, acts as an “Informant” in order to file an application of information before a District Court. This right of a private person to file an application comes under section 345(2) of the Crimes Act of 1961. This section was repealed and replaced by section 15 of the Criminal Procedure Act of 2011 where “Any person may commence a proceeding.”

On November 27, 2006, a New Zealand District Court in Auckland issued an arrest warrant for Lieutenant General Mosche Ya’alon, former Israeli Chief of Staff of the Israeli Defense Force. Ya’alon approved the order of bombing a Palestinian terrorist in Gaza that also killed civilians, which is a war crime. On behalf of the family killed, Janfrie Wakim filed information with the District Court in Auckland. Wakim alleged that Ya’alon was guilty of war crimes by his participation in the decision to carry out the assassination of Salah Shehadeh. Wakim provided the District Court with compelling evidence of the war crimes.

The war crimes alleged were a breach of section 3(1) of the Geneva Conventions Act. Wakim also invoked Section 11 of the ICC Act, alleging breaches of Article 8(2) of the Rome Statute being grave breaches of the Geneva Conventions including wilfully causing great suffering, or serious injury to the body or health (Article 8(2)(a)(iii)); extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly (Article 8(2)(a)(iv)); intentionally directing attacks against the civilian population as such or against individual civilians not taking direct part in hostilities (Article 8(2)(b)(i) and Article 8(2)(e)(i)); and finally, intentionally launching an attack in the knowledge that such attack will cause incidental loss of life or injury to civilians or damage to civilian objects or widespread, long-term and severe damage to the natural environment which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated (Article 8(2)(b)(iv)).

Wakim filed on a Friday November 24 and the application was heard on Monday November 27. District Court Judge Deobhakta was satisfied that the Informant made a compelling case for the issuance of an arrest warrant for Ya’alon. On Tuesday November 28, after receiving Wakim’s request for consent of the Attorney-General to prosecute as required under both war crime statutes, the Attorney-General filed a warrant to put a hold on the proceedings. The District Court cancelled the arrest warrants and the proceedings eventually came to a close.

The Attorney-General justified his actions by stating in a press release that “there was insufficient evidence to support any possible prosecution.” The Attorney-General later stated, “It is the law in New Zealand that before any criminal proceedings can be commenced charging a person with war crimes the person brining the charges must obtain consent of the Attorney-General. This provision is compatible with New Zealand’s relevant international obligations.

Section 3(5) of the Geneva Conventions Act states, “No one shall be prosecuted for an offense against this section without the leave of the Attorney-General.” And section 13 of the ICC Act states, “Proceedings for an offense against section 9 [genocide] or section 10 [crimes against humanity] or section 11 [war crimes] may not be instituted in any New Zealand court without the consent of the Attorney-General.”

However, section 13 of the ICC Act also states, “a person charged with an offence against section 9 or section 10 or section 11 may be arrested, or a warrant for his or her arrest may be issued and executed, and the person may be remanded in custody or on bail, even though the consent of the Attorney-General to the institution of a prosecution for the offence has not been obtained, but no further proceedings can be taken until that consent has been obtained.”

A plain reading of section 13 of the ICC Act explicitly allowed for the arrest warrant of Ya’alon “even though the consent of the Attorney-General…has not been obtained.” While there is no exception to the consent provision in the Geneva Conventions Act, it must be read in light of section 25(2)(a) of the Prosecution of Offences Act of 1985, which provides that any such consent provision of the Attorney-General “shall not prevent the arrest without warrant, or the issue of execution of a warrant for the arrest, of person for any offence, or the remand in custody or bail of a person charged with any offense.”

The action taken by the Attorney-General in the Ya’alon case was political and not legal. For the Attorney-General to state “there was insufficient evidence to support any possible prosecution” undermines District Court Judge Deobhakta’s decision that there was enough evidence, which was the basis for the arrest warrants in the first place. Ya’alon entered and departed New Zealand territory without being arrested.

This episode was not a failure of the law but a failure to comply with the letter of the law. And more importantly, Ya’alon is still a war criminal because there is no statute of limitation for war crimes. In other words, Ya’alon may still find himself in a New Zealand courtroom. Professor Dunworth ends her article with, “New Zealand could make good on its rhetorical claim to being a champion of a true international criminal justice system.”

Individuals found to be guilty of war crimes by the Royal Commission of Inquiry’s War Criminal Reports could well find themselves before a New Zealand Court for prosecution. There are 121 other countries, like New Zealand, that are contracting States to the Rome Statute and have similar provisions in their laws for the prosecution of war criminals under complementary jurisdiction to the ICC. Most of these countries have extradition treaties and if their citizens or subjects were the victims of war crimes committed outside of their home country, like the Hawaiian Kingdom, their governments could also seek extradition warrants when the war criminals travel to an extraditing country.

There is a common misunderstanding among the world that Hawai‘i is the 50th state of the American union. The historical and legal revealing of evidence that Hawai‘i is not the 50th state, but rather the continued existence of the Hawaiian Kingdom as an independent State, has shattered this belief for those who have come to know. To better understand the why, here is the history of the formation of the 49 States of the American union that many don’t know.

All 49 states of the American union were acquired through international law because these territories were formerly the territories of other independent States. The first 13 states, which were formerly British Crown colonies, were acquired from the British Crown by the 1783 Treaty of Paris that brought the revolution to an end. Article I provided, “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.”

In 1789, as a result of the federalist movement, these 13 sovereign and independent States collectively gave their independence to the federal government, which came to be known as the American union. These states held what was referred to as residual sovereignty but no longer retained independence. The instrument that formed this union was the federal constitution. Prior to this consolidation, these independent States were in a loose union called a confederacy according to the terms of the 1777 Articles of Confederation.

The other states of the union were formed out of territories acquired by the federal government through international treaties, with the exception of Hawai‘i, which was unilaterally annexed by a congressional statute in 1898.

There is also a common misunderstanding that the State of Texas came about as a result of a joint resolution of Congress in 1845. The truth of the matter is that this congressional action is what sparked the Mexican-American war in 1846. The State of Texas was on Mexican territory and not United States territory. In the 1848 Peace Treaty of Guadalupe Hidalgo that ended the war, the new border between the two Republics 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.

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.”

Under international law, what was illegally overthrown on January 17, 1893, was the Hawaiian Kingdom government and not the Hawaiian Kingdom as an independent State. International law distinguishes between the independent State and its government. For one State to acquire the territory of another State there needs to be a treaty like the United States treaty of cessions with Great Britain, France, Mexico, Russia and Spain. When the United States unilaterally annexed Hawai‘i by a congressional joint resolution in 1898, the act was no different than Iraq unilaterally annexing Kuwait in 1990 during the First Gulf War, or Nazi Germany unilaterally annexing Luxembourg during the Second World War. Both were illegal under international law and so is the annexation of Hawai‘i.

In 1997, the Hawaiian government was constitutionally restored by a Council of Regency that serves in the absence of the Monarch. Two years later, both the Hawaiian Kingdom, as a State, and the Council of Regency, as its government, was acknowledged in 1999 by the Permanent Court of Arbitration in The Hague, Netherlands, in Larsen v. Hawaiian Kingdom.

Because people “believe” that the Hawaiian Islands are a part of the United States as the 50th State of the American Union, it does not mean that it is true, especially from a “legal” standpoint. As Abraham Lincoln once asked, how many legs does a calf have if you call its tail a leg? Five, the questioner responded. Lincoln said no. Calling a calf’s tail a leg doesn’t make it a leg.

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

The Ninth Circuit Court of Appeals can only hear appeals that come from one of the District Courts within its circuit. These District Courts are located within the United States. The District Court in Honolulu is not situated in the territory of the United States but rather in the territory of the Hawaiian Kingdom.

The Hawaiian Kingdom drew attention to the illegality of the District Court in its Amended Complaint that was filed on August 11, 2021, which led to an amicus brief filed on October 6, 2011, by the International Association of Democratic Lawyers, the National Lawyers Guild, and the Water Protectors Legal Collective as to why the District Court had to transform from an Article III Court to an Article II Occupation Court because it is in occupied territory of a foreign State—the Hawaiian Kingdom.

The Notice of Appeal was filed in response to District Court Judge Leslie Kobayashi’s ruling on a motion to dismiss from the Swedish Honorary Consul without first transforming into an Article II Occupation Court. Judge Kobayashi stated that she didn’t need to transform into an Article II Occupation Court because in seventeen previous cases that came before the District Court of Hawai‘i since 1993, the federal judges in these cases all ruled that the Hawaiian Kingdom does not exist as a State.

Her reasoning was flawed so the Hawaiian Kingdom requested Judge Kobayashi to reconsider her decision in light of international law, but she responded that the Hawaiian Kingdom just disagrees with her decision. This resulted in the filing of the Notice of Appeal to an Article II Occupation Appellate Court to be hereafter established by the United States as an Occupying State. The Hawaiian Kingdom filed the appeal so that the records of its case can be preserved for future proceedings. Kobayashi did not dismiss the case.

On May 3, 2022, the Clerk of the Ninth Circuit filed an Order that stated, “Within 21 days after the date of this order, appellant shall either move for voluntary dismissal of the appeal or show cause why it should not be dismissed for lack of jurisdiction.” In response to this Order, the Hawaiian Kingdom today, May 20th, filed a Motion to Dismiss for Forum Non Conveniens. Because the Ninth Circuit is a bona fide Appellate Court in the United States, it allows the Hawaiian Kingdom to file this type of a Motion to Dismiss and can fully argue its case. Normally defendants named in an appeal would file, if appropriate, a Motion to Dismiss for Forum Non Conveniens, and not the plaintiff in an appeal to dismiss its appeal. This case, however, is a truly unique situation.

This type of motion is filed when an appeals court in a foreign country should be hearing the appeal, and not, in this case, the Ninth Circuit. The appropriate court would be an Article II Occupation Appellate Court in the Hawaiian Kingdom, which hasn’t been established yet. In its Motion to Dismiss, the Hawaiian Kingdom explained:

Under international law there is a presumption that an established sovereign and independent State, being a subject of international law, continues to exist despite the overthrow of its government. See Professor Quincy Wright, “The Status of Germany and the Peace Proclamation,” 46, no. 2 American Journal of International Law 299, 307 (April 1952) (“[i]nternational law distinguishes between a government and the state it governs. This distinction makes it clear that the extinction of the Nazi Government and the temporary absence of any German Government did not necessarily mean that Germany as a state ceased to exist”); see also Professor Yejoon Rim, “State Continuity in the Absence of Government: The Underlying Rationale in International Law,” 20(20) European Journal of International Law 1, 4 (2021) (the State continues “to exist even in the factual absence of government so long as the people entitled to reconstruct the government remain”). According to Professor Ian Brownlie, Principles of Public International Law, 109 (4^th ed., 1990):

“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 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, the Hawaiian Kingdom as a State is presumed to continue to exist despite its government being unlawfully overthrown by the Defendant Appellee UNITED STATES OF AMERICA’s military on January 17, 1893. As such, the District Court of Hawai‘i is not a properly constituted court in accordance with international humanitarian law, and, therefore, had to transform itself into an Article II Occupation Court.

If the U.S. District Court of Hawai‘i did not have jurisdiction or authority to rule in the case, the Ninth Circuit, as an appeals court, wouldn’t have authority as well. This is because the Hawaiian Kingdom continues to exist as a State despite the unlawful overthrow of its government by the United States military on January 17, 1893. This is not the State of Hawai‘i.

According to Judge James Crawford from the International Court of Justice, “there is a presumption that the State continues to exist, with its rights and obligations despite a period in which there is no effective government.” He also stated that “belligerent occupation does not affect the continuity of the State, even where there exists no government claiming to represent the occupied State.”

“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.”

A legal title under international law would be a treaty between the Hawaiian Kingdom and the United States where the Hawaiian State would merge with the State of the United States called a treaty of cession. In other words, the question is not whether the Hawaiian Kingdom continues to exist, but rather can “the party opposing that continuity” establish factual evidence, i.e., treaty cession, that it “does not exist.” In the absence of the evidence that it “does not exist,” the Hawaiian Kingdom “continues to exist” as a State under international law.

This is precisely why the Permanent Court of Arbitration (PCA), in Larsen v. Hawaiian Kingdom, acknowledged the presumption of the continued existence of the Hawaiian Kingdom as a State when the proceedings were initiated on November 8, 1999. The PCA could find no evidence under international law that the Hawaiian Kingdom “does not exist,” therefore, it continues to exist.

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

When the seventeen federal cases that ruled the Hawaiian Kingdom doesn’t exist as a State, it cited a precedent case in 1994 that was heard by the State of Hawai‘i Intermediate Court of Appeals called State of Hawai‘i v. Lorenzo. In the federal courts it is known as the “Lorenzo principle.” As the District Court in 2002 stated, in United States v. Goo:

Since the Intermediate Court of Appeals for the State of Hawaii’s decision in Hawaii v. Lorenzo, the courts in Hawaii have consistently adhered to the Lorenzo court’s statements that the Kingdom of Hawaii is not recognized as a sovereign state by either the United States or the State of Hawaii. See Lorenzo, 77 Haw. 219, 883 P.2d 641, 643 (Haw. App. 1994); see also State of Hawaii v. French, 77 Haw. 222, 883 P.2d 644, 649 (Haw. App. 1994) (stating that “presently there is no factual (or legal) basis for concluding that the [Hawaiian] Kingdom exists as a state in accordance with recognizing attributes of a state’s sovereign nature”) (quoting Lorenzo, 883 P.2d at 643). This court sees no reason why it should not adhere to the Lorenzo principle.

According to the Lorenzo principle, the burden of proof was on the defendants in the seventeen cases, and that these defendants did not provide evidence of the Hawaiian Kingdom’s existence as a State. In the 1994 Lorenzo decision, however, the Appellate Court did acknowledge that its “rationale is open to question in light of international law.” The federal judges in the seventeen cases were not correctly applying the Lorenzo principle with international law.

Because the presumption of State continuity is a rule of international law, the Lorenzo principle turns it into a rule of evidence that shifts the burden of proof away from the defendants to prove the Hawaiian Kingdom “exists” as a State, to those opposing the presumption of Hawaiian State continuity to prove that the Hawaiian Kingdom “does not exist” as a State under international law. The only evidence to show that the Hawaiian Kingdom “does not exist” is that there must be a treaty of cession where the Hawaiian Kingdom ceded itself to the United States. There exists no such treaty!

This is a radical shift of the burden of proof and not only were the seventeen federal cases wrongly decided, but every case that came before the federal courts in Hawai‘i since 1900 are all void because the United States did not extinguish the Hawaiian Kingdom as a State under international law before it created, by Congressional legislation, the so-called Territory of Hawai‘i in 1900 and the so-called State of Hawai‘i in 1959. This is why in the Lorenzo decision, the Appellate Court stated that the “illegal overthrow leaves open the question whether the present governance system should be recognized” under international law. This is not just federal court decisions since 1900, Territory of Hawai‘i court decisions since 1900, and State of Hawai‘i court decisions since 1959, but all decisions made by an illegal American government that span from unlawful taxation, business regulations to land titles.

In its Motion to Dismiss, the Hawaiian Kingdom is setting the stage for the United States, as a defendant in this case, to provide evidence that the Hawaiian Kingdom was extinguished as a State under international law. To do this, the Hawaiian Kingdom is invoking the Lorenzo principle, by applying international law, in order for the Ninth Circuit Court to schedule an evidentiary hearing that will compel the United States to provide the evidence of a treaty of cession and prove that the seventeen cases using the Lorenzo principle were “not in error.”

But here is the catch, for the United States to provide evidence is to directly acknowledge the presumption that the Hawaiian Kingdom continues to exist and that the United States federal government and the State of Hawai‘i are unlawful. This rule of international law was triggered on January 17, 1893.

As Sir Walter Scott wrote, “Oh what a tangled web we weave/When first we practice to deceive.”

The practical value of history, is that it is a film of the “past,” run through the projector of “today,” onto the screen of “tomorrow.” The film can never change, but a projector can be updated to process the film, which will change your view of the future. I ke au i hala ka lamaku o ke ala i ke kupukupu—the past is the beacon that will guide us into the future.

The past is very important to Hawaiians. So much so where the Hawaiian word for future is “ka wā ma hope,” which is literally translated to the time of the past. In the past that begins from a second ago to three hundred years ago are the stories or mo‘olelo of our people. This is where one can learn from past mistakes and capitalize on past sucesses.

The influx of diseases and viruses in the Hawaiian Islands after 1778 devestated the Hawaiian population. From measles, influenza, whooping cough and small pox, Hawaiian governmental authorities had to deal with the decimation of Hawaiian lives. It wasn’t a matter of politics or finger pointing, it was about how to protect Hawai‘i’s people from death knocking on Hawai‘i’s door.

On December 2, 1848, Governor Mataio Kekuanāo‘a, published a report on the carnage from disease and virus across the islands in the Ka Elele Hawaii newspaper. The report was in Hawaiian, but an English translation is provided by Awaiaulu, Inc.

Regarding Illness in Hilo. Regards to you, the Elele. All of the students of this school are afflicted with the contagious smallpox. Previously, some individuals had coughs. They did not have whooping cough. At church service yesterday, there was one boy with whooping cough. Some had fevers, perhaps two, almost exactly like the illness of 1847. Many are somewhat fatigued. Different sick ones may have frequent cramps or headaches.

Malo is carrying out his duties among the folks of this area. In a nearby land area, there are perhaps 80 who are doing required public service. 18 of them have died since the contagious smallpox got here. Most were strong and able-bodied.

Illness at Lahaina. Lahaina has illness much like what is seen here in Honolulu. There is smallpox and whooping cough. Earlier, all the children had whooping cough, and afterwards, all the adults had already contracted it, and we heard that some have died.

Illness at Molokaʻi. Most of the people here are very ill. Some have died, and many more have the coughing illness. There are many sick folk at Hālawa. Someone dies there nearly every day. Few individuals went to church services on the last Sabbath. At services in the new month, there were none. There is no school at this time. All of the teachers are sick, as are most of the students. There have been no deaths among those who drank the medicine that we provided.

Illness at Honolulu. Here below is the letter from the Governor, M. Kekūanāoʻa, regarding those who died in the two week period from the 1st to the 15th of this November.

Fort of Honolulu. 18 November, 1848. Regards. I am reporting to you about the number those who died from Waikīkī to Moanalua in these past two weeks of November. Waikīkī, 7 dead. Honolulu area and Honolulu town, 271 dead. Kapālama, 7 dead. Kalihi, 24 dead. Moanalua, 7 dead.

You should publish this in the Elele Hawaii, and announce it in churches during services, which all I have to say to you, with appreciation. M. Kekūanāoʻa.

If those numbers of the reported deaths are added up, it equals 380. And if you divide it by the 15 days, you get 25, that being the number of people who died each single day.

Illness at Waialua (Oʻahu). A letter from there states thus: Everyone here is ill, and some, if not ill, are recovering. Not many have actually died. There were perhaps ten that I heard of, and some of them had been infirm previously.

Extensive death has just hit here in Honolulu. Chiefs are dying, as are their people. Those of status great and small are entering the house of darkness. The wrongdoers and the righteous all end up falling.

This last Sabbath, Iakoba Malo, an attendant of Leleiōhoku, passed on. He was born on Hawaiʻi; he had always been a chiefs attendant, and was nearly 70 when he died. For many years he had been a servant of God, and appeared to be truly pious, steadfast to the oath he had made. It was never heard about him being in trouble, though he was connected to the royal circles, but did not get involved in pleasure seeking or wantonness because of where he resided. That was because his faith in Almighy God was sincere. He died with hope on God’s holy day. Smallpox and its resulting diarrhea were the causes of his death.

Here is another death: Mose Kekūāiwa, the son of Kekūanāoʻa and Kīnaʻu, died on the 24th of November; He was 19 years and four months old. He attended the Chiefs’ Children’s School for seven years, and mastered the English language. His body had been weakened previously by this illness, and when he contracted smallpox again, along with a cough, he passed on. How tragic is the death of the young!

Here is another: Ioana Kaʻiminaʻauao, the foster daughter of Kalama, wife of the king. She was three years and two days old. Kapaʻakea and Keohokālole were her actual parents. Liver failure was the cause of her death.

This as well: On the 19th of November, John Meek Jr. died, he being the firstborn of Captain J. Meek, and being 27 years old.

Because the printers have been ill, the Elele was not published at its usual time. Perhaps it will be published at its customary time in the future. Those who want a good paper should write articles for it. There are few who are writing articles; some have nearly abandoned this.  Those who care about the Elele should give this careful consideration.

COVID-19 and the Delta variant is a new virus but an old story of Hawaiians dying. The vaccine, which has been approved by science and not politics is crucial for Hawaiians to understand and to make informed decisions. The State of Hawai‘i and the United States federal government have a history of not being trusted by Hawaiians and and for good reason. They are an illegal occupier. Medical science, however, should be trusted as you would trust your own doctorʻs recommendations when he or she is treating you for sepsis or a case of bronchitis.

There are medical doctors who are Hawaiian and private organizations that provide medical support for Hawaiians such as Papa Ola Lokahi, Hui Mālama Ola Nā ʻŌiwi, Ke Ola Mamo, or The Queenʻs Medical Center-Native Hawaiian Health Center. During this crisis, get advice from people you trust, know, and that you can rely on.

Donʻt become a statistic. Be healthy and thrive for the good of your country, the Hawaiian Kingdom.

July 30, 2021

Contact:

Natali Segovia, Staff Attorney, WPLC: defense@waterprotectorlegal.org

NLG International Committee: international@nlg.org

Download the amicus brief here.

Honolulu—The Water Protector Legal Collective (WPLC), alongside the International Association of Democratic Lawyers (IADL) and National Lawyers Guild (NLG), filed an amicus curiae (“friend of the court”) brief today in support of the Hawaiian Kingdom’s complaint against the United States government, President Joe Biden, and other defendants, due to the unlawful occupation of Hawai‘i by the United States since January 17, 1893. The complaint and the amicus brief request Declaratory and Injunctive Relief, namely for the US to end the occupation of the Hawaiian Kingdom. 

Hawai‘i has been illegally occupied by the US since 1893, when businessmen and politicians helped John Stevens overthrow Queen Lili‘uokalani and the Hawaiian government. One-hundred years later, President Clinton would apologize and the US would acknowledge that Hawaiian Kingdom never relinquished their land. That is not enough. The people of the Hawaiian Kingdom have remained continuously opposed to the illegal occupation of the US and its effects, including de-nationalization, the exploitation of natural resources, legacy of racial unrest sown by colonialism, and over-tourism at the expense of Native Hawaiians. 

Mr. Dexter Ke`eaumoku Ka`iama, Acting Attorney General for the Hawaiian Kingdom who filed the original complaint, described the amicus brief filed by the three legal organizations: “The amicus transcends over 128 years of the illegal occupation of the Hawaiian Kingdom, the violations of international law and international humanitarian law and political pressures and trappings brought to maintain this illegality.  Instead, the amicus rightly directs our attention to the undisputed history of the Hawaiian Kingdom and proper application of international law, US Constitutional law and compacts (treaties) between the sovereign States of the Hawaiian Kingdom and the United States.” 

While relief in this matter would seemingly be barred by the political question doctrine, the amicus brief states the federal and state courts of Hawai’i are de facto Article II courts since 1893 because the US occupation of the Hawaiian Kingdom has never ended or been resolved through an operative peace treaty. Experts in international law and human rights have determined that without some type of transfer of sovereignty, the Hawaiian Kingdom and its people have the sole right to that land. There is judicial precedent of at least 12 Article II executive “occupation” courts in U.S. legal and political history since the Mexican War in 1846, provisional courts during the Civil War, and through 1971 when the United States returned Okinawa and Ryukyu Islands to Japan after WWII. 

“At its core,” says WPLC Staff Attorney Natali Segovia, “this case is about the sovereignty of the Hawaiian Kingdom and the right of self-determination of an entire Nation. I don’t mean luke-warm self-determination within the boundaries of a settler state; I mean the self-determination that is at the heart of international law: the right of nations to self-govern to freely determine their political status, their economic, social, and cultural development within their own territory. Standing Rock, Line 3, and the #Landback movement share this in common. WPLC began at Standing Rock, where the fight for the water and for future generations was a manifestation and exercise of self-determination of the Oceti Sakowin Oyate and Indigenous Peoples and allies around the world that answered their call. WPLC is committed to supporting those struggles for sovereignty and self-determination of Indigenous Peoples and Original Nations wherever we can.” 

“As an organization that values human rights and the rights of ecosystems over property interests, the NLG supports all Native peoples’ right to self-determination and resistance against settler-colonial oppression—whether it be in Palestine, Standing Rock, or Hawai’i. The US is no exception to standards set by international and humanitarian law, and must end its occupation of the Hawaiian Kingdom,” said NLG President Elena Cohen.

IADL President Jeanne Mirer said, “As an international organization of human rights lawyers dedicated to the furtherance of peace, justice, and the rule of law, the IADL reiterates its support for the Hawaiian Kingdom and the people of Hawai‘i in their ongoing struggle for sovereignty, and self-determination. The United States has an obligation to comply with international humanitarian law and the law of occupation.”

Mr. Ka`iama concluded, “Filing of the amicus coincides with the formal restoration of the Hawaiian Kingdom from the British Government on July 31, 1843.  A day that is remembered and celebrated as Lā Hoʻihoʻi Ea (“Restoration Day”).  So too, this amicus will be forever marked and fondly remembered in the annals of the Hawaiian Kingdom. Aloha ‘Āina.” 

“Aloha ‘Āina” is Hawaiian for “love of the land.” As legal organizations committed to human rights, international law, and the rule of law, we stand — for the land, for the water, and for future generations.

Counsel for Amici Curiae NLG, IADL, and WPLC are Natali Segovia, Joseph (Joey) Chase, and Charles Heaukulani.

#Landback #HawaiianKingdom #AlohaAina

—

The International Association of Democratic Lawyers (“IADL”) is an international organization of human rights lawyers and jurists founded in 1946, with member associations and individual members in over 90 countries and with consultative status in ECOSOC. IADL is dedicated to upholding international law and promoting the tenets of the UN Charter in furtherance of peace and justice. 

The National Lawyers Guild (“NLG”) was formed in 1937 as the first national racially integrated bar association in the U.S. to advocate for the protection of constitutional, human, and civil rights.

The Water Protector Legal Collective (“WPLC”) is an Indigenous-led legal non-profit organization that began in 2016 as the on-the-ground legal team at Oceti Sakowin camp at Standing Rock in defense of Water Protectors in frontline resistance to the Dakota Access Pipeline. WPLC continues to provide legal support and advocacy to Indigenous Peoples and Original Nations, the Earth, and climate justice movements.

Support the Hawaiian Kingdom. To learn more, visit: 

• https://hawaiiankingdom.org/blog/

GENEVA (Reuters)—The trial of a former Liberian commander accused of rape, pillage, assassinations, and an act of cannibalism opens in Switzerland this week.

The trial of Alieu Kosiah, who denies the charges, is one of just a handful of cases brought before international courts in relation to the West African country’s 1989-2003 conflict, which killed nearly a quarter of a million people, often at the hands of child soldiers.

He is accused of war crimes listed as “recruitment and use of a child soldier, forced transportation, looting, cruel treatment of civilians, attempted murder, murder (directly or by order), desecration of a corpse and rape”.

It is Switzerland’s first war crimes trial to be heard outside a military court.

“This is historic for Switzerland and Liberia,” said Alain Werner, a Swiss lawyer at Geneva-based NGO Civitas Maxima which filed the complaint on behalf of victims.

The NGO was researching war crimes with a Liberian partner when they discovered a rebel commander was living near Lake Geneva. Kosiah was arrested in 2014 and Switzerland filed an indictment against him in 2019.

The case involves dozens of witnesses, thousands of pages of testimony and has been complicated, according to the Swiss Attorney general’s office, by a lack of official Liberian cooperation. The trial is set to open on Thursday at the Federal Criminal Court in Bellinzona.

Kosiah, 45, says he wants to clear his name. Some of the charges are attributed to troops under his command.

“According to Mr. Alieu Kosiah, one of the big problems with this case is he had not yet arrived in Lofa (county) at the time of the crimes he supposedly committed there,” his lawyer Dimitri Gianoli told Reuters.

“What counts for (him) is to be able to officially re-establish his honour by making himself heard openly and clearly,” he said. “(He) has always been very clear on his whereabouts in Liberia and the court filings include testimonies collected in Switzerland that confirm it.”

Unlike neighbour Sierra Leone which had its own civil war in the 1990s, Liberian perpetrators have never faced prosecution at home despite a recommendation by the Truth and Reconciliation Commission to create a war crimes court.

Liberia’s former President Charles Taylor was sentenced in 2012 for war crimes in Sierra Leone, but was never convicted for Liberian acts.

Others arrested in Europe have yet to appear in court.

Former warlords retain positions of power in Liberia and witnesses have been reluctant to come forward amid threats.

“This trial gives hope to victims, to the survivors, and gives voice to the dead,” said Hassan Bility who collected evidence for the case and was himself tortured in the conflict.

Human Rights Watch’s Elise Keppler said she hoped the trial would serve as a “wake-up call” for Liberia.

The court will hear Kosiah next week.

Liberian plaintiffs cannot attend due to COVID restrictions and will instead testify in 2021. Kosiah faces a maximum possible sentence of 20 years.

HELSINKI (AP) — A trial has started in Finland for a Sierra Leone man charged with committing serious war crimes, including several murders, and crimes against humanity during Liberia’s bloody second civil war from 1999 through 2003.

Gibril Massaquoi, who has been living in Finland for more than 10 years, is alleged by Finnish prosecutors to have held a leading position in the Revolutionary United Front, a rebel army in Sierra Leone that was involved in the Liberian civil war in West Africa.

The mask-wearing Massaquoi, known to have used the alias “Angel Gabriel,” was present at the Pirkanmaa District Court in the southern Finnish city of Tampere where the main handling of the case started Wednesday. Finnish media reported the 51-year-old defendant didn’t say anything at the court.

Prosecutors are seeking a life sentence — which is usually around 14 years in Finland — for Massaquoi, who has denied all charges. Those charges include his alleged direct or indirect participation in rapes, murders, cannibalism and using child soldiers during the conflict in Liberia.

Massaquoi was arrested in March last year by Finland’s National Bureau of Investigation in Tampere, a main industrial and university city, where according to Finnish media reports he held a job and had a family with children.

Massaquoi is allegedly the first non-Liberian to be held accountable in connection with Liberia’s brutal first and second civil wars, which are estimated to have killed at least 500,000 people. He ended up in Finland under a witness relocation scheme.

Later this month, the Finnish court, in a rare move, will temporarily relocate to Liberia and neighboring Sierra Leone to hear testimony from dozens of witnesses on the alleged atrocities carried out by Massaquoi himself or by others on his orders.

A verdict in the case is expected next fall.

PROSECUTING WAR CRIMINALS UNDER UNIVERSAL JURISDICTION

Both Switzerland and Finland are State parties to the International Criminal Court Rome Statute. 123 countries are States Parties to the Rome Statute. 33 are African States, 19 are Asia-Pacific States, 18 are from Eastern Europe, 28 are from Latin American and Caribbean States, and 25 are from Western European and other States.

In the preamble of the Rome State, it states “that the most serious crimes of concern to the international community as a whole must not go unpunished and that their effective prosecution must be ensured by taking measures at the national level and by enhancing international cooperation.” This provision is called complementarity jurisdiction, where the State parties are obligated to first use their institutions and courts to prosecute war crimes instead of the International Criminal Court.

If the alleged war criminal is not a citizen of a State party and that the war crime occurred outside of its territory, the State party can exercise universal jurisdiction to prosecute. All of the State parties to the Rome Statute have the ability to exercise universal jurisdiction, which Switzerland and Finland are doing.

This is significant regarding the war crimes that have been and are currently be committed in the Hawaiian Islands that the Royal Commission of Inquiry is investigating. If Hawai‘i’s alleged war criminals find themselves, whether as a resident or in transit, in the territory of one of the 123 countries who are State parties to the Rome Statute, they may find themselves in a similar situation as Kosiah in Switzerland or Massaquoi in Findland.

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

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

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

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

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

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

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

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

In its judgment in 1999, the Appeals Chamber concluded:

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

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

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

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

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

November 28th is the most important national holiday in the Hawaiian Kingdom. It is the day Great Britain and France formally recognized the Hawaiian Islands as an “independent state” in 1843, and has since been celebrated as “Independence Day,” which in the Hawaiian language is “La Ku‘oko‘a.” Here follows the story of this momentous event from the Hawaiian Kingdom Board of Education history textbook titled “A Brief History of the Hawaiian People” published in 1891.

**************************************

The First Embassy to Foreign Powers—In February, 1842, Sir George Simpson and Dr. McLaughlin, governors in the service of the Hudson Bay Company, arrived at Honolulu on business, and became interested in the native people and their government. After a candid examination of the controversies existing between their own countrymen and the Hawaiian Government, they became convinced that the latter had been unjustly accused. Sir George offered to loan the government ten thousand pounds in cash, and advised the king to send commissioners to the United States and Europe with full power to negotiate new treaties, and to obtain a guarantee of the independence of the kingdom.

Accordingly Sir George Simpson, Haalilio, the king’s secretary, and Mr. Richards were appointed joint ministers-plenipotentiary to the three powers on the 8th of April, 1842.

Mr. Richards also received full power of attorney for the king. Sir George left for Alaska, whence he traveled through Siberia, arriving in England in November. Messrs. Richards and Haalilio sailed July 8th, 1842, in a chartered schooner for Mazatlan, on their way to the United States*

*Their business was kept a profound secret at the time.

Proceedings of the British Consul—As soon as these facts became known, Mr. Charlton followed the embassy in order to defeat its object. He left suddenly on September 26th, 1842, for London via Mexico, sending back a threatening letter to the king, in which he informed him that he had appointed Mr. Alexander Simpson as acting-consul of Great Britain. As this individual, who was a relative of Sir George, was an avowed advocate of the annexation of the islands to Great Britain, and had insulted and threatened the governor of Oahu, the king declined to recognize him as British consul. Meanwhile Mr. Charlton laid his grievances before Lord George Paulet commanding the British frigate “Carysfort,” at Mazatlan, Mexico. Mr. Simpson also sent dispatches to the coast in November, representing that the property and persons of his countrymen were in danger, which introduced Rear-Admiral Thomas to order the “Carysfort” to Honolulu to inquire into the matter.

Recognition by the United States—Messres. Richards and Haalilio arrived in Washington early in December, and had several interviews with Daniel Webster, the Secretary of State, from whom they received an official letter December 19th, 1842, which recognized the independence of the Hawaiian Kingdom, and declared, “as the sense of the government of the United States, that the government of the Sandwich Islands ought to be respected; that no power ought to take possession of the islands, either as a conquest or for the purpose of the colonization; and that no power ought to seek for any undue control over the existing government, or any exclusive privileges or preferences in matters of commerce.” *

*The same sentiments were expressed in President Tyler’s message to Congress of December 30th, and in the Report of the Committee on Foreign Relations, written by John Quincy Adams.

Success of the Embassy in Europe—The king’s envoys proceeded to London, where they had been preceded by the Sir George Simpson, and had an interview with the Earl of Aberdeen, Secretary of State for Foreign Affairs, on the 22d of February, 1843.

Lord Aberdeen at first declined to receive them as ministers from an independent state, or to negotiate a treaty, alleging that the king did not govern, but that he was “exclusively under the influence of Americans to the detriment of British interests,” and would not admit that the government of the United States had yet fully recognized the independence of the islands.

Sir George and Mr. Richards did not, however, lose heart, but went on to Brussels March 8th, by a previous arrangement made with Mr. Brinsmade. While there, they had an interview with Leopold I., king of the Belgians, who received them with great courtesy, and promised to use his influence to obtain the recognition of Hawaiian independence. This influence was great, both from his eminent personal qualities and from his close relationship to the royal families of England and France.

Encouraged by this pledge, the envoys proceeded to Paris, where, on the 17th, M. Guizot, the Minister of Foreign Affairs, received them in the kindest manner, and at once engaged, in behalf of France, to recognize the independence of the islands. He made the same statement to Lord Cowley, the British ambassador, on the 19th, and thus cleared the way for the embassy in England.

They immediately returned to London, where Sir George had a long interview with Lord Aberdeen on the 25th, in which he explained the actual state of affairs at the islands, and received an assurance that Mr. Charlton would be removed. On the 1st of April, 1843, the Earl of Aberdeen formally replied to the king’s commissioners, declaring that “Her Majesty’s Government are willing and have determined to recognize the independence of the Sandwich Islands under their present sovereign,” but insisting on the perfect equality of all foreigners in the islands before the law, and adding that grave complaints had been received from British subjects of undue rigor exercised toward them, and improper partiality toward others in the administration of justice. Sir George Simpson left for Canada April 3d, 1843.

Recognition of the Independence of the Islands—Lord Aberdeen, on the 13^th of June, assured the Hawaiian envoys that “Her Majesty’s government had no intention to retain possession of the Sandwich Islands,” and a similar declaration was made to the governments of France and the United States.

At length, on the 28th of November, 1843, the two governments of France and England united in a joint declaration to the effect that “Her Majesty, the queen of the United Kingdom of Great Britain and Ireland, and His Majesty, the king of the French, taking into consideration the existence in the Sandwich Islands of a government capable of providing for the regularity of its relations with foreign nations have thought it right to engage reciprocally to consider the Sandwich Islands as an independent state, and never to take possession, either directly or under the title of a protectorate, or under any other form, of any part of the territory of which they are composed…”

This was the final act by which the Hawaiian Kingdom was admitted within the pale of civilized nations. Finding that nothing more could be accomplished for the present in Paris, Messrs. Richards and Haalilio returned to the United States in the spring of 1844. On the 6th of July they received a dispatch from Mr. J.C. Calhoun, the Secretary of State, informing them that the President regarded the statement of Mr. Webster and the appointment of a commissioner “as a full recognition on the part of the United States of the independence of the Hawaiian Government.”