Americans are Protected Persons in the Hawaiian Kingdom

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

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

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

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

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

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

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

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

In its judgment in 1999, the Appeals Chamber concluded:

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

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

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

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

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

Feb. 11, 2023 Symposium – The Royal Commission of Inquiry Investigating War Crimes and Human Rights Violations Committed in the Hawaiian Kingdom

The Hawaiian Society of Law & Politics (HSLP), in collaboration with the International Association of Democratic Lawyers, the National Lawyers Guild, the University of Hawai‘i at Mānoa College of Education, the University of Hawai‘i at Mānoa Native Hawaiian Student Services, and the Kamehameha Schools Kanaeokana, invites you to its February 11, 2023 Symposium showcasing the Royal Commission of Inquiry – Investigating War Crimes and Human Rights Violations Committed in the Hawaiian Kingdom. The event is at no cost but you’ll need to register to ensure you can get a seat. The auditorium is air conditioned and sits 300. The symposium will also be live streamed on Facebook via NHSS UH Mānoa for those who are unable to attend.

The half-day symposium will feature experts in the fields of international law, international relations, international criminal law and war crimes, and Hawaiian Kingdom law on the topic of the American occupation of the Hawaiian Kingdom since January 17, 1893. 

Dr. Kamana‘opono Crabbe will open the symposium with a Hawaiian chant and then followed by a special appearance by Hawaiian actor Jason Scott Lee who acted in films such as Dragon – the Bruce Lee Story, the Jungle BookRapanuiMulan, and The Wind and the Reckoning.

Presenters to follow include Professor William Schabas, renowned expert in international criminal law and war crimes from Middlesex University London, author of “Legal Opinion on War Crimes Related to the United States Occupation of the Hawaiian Kingdom since 17 January 1893;” Professor Federico Lenzerini, professor of international law from the University of Siena, Italy, and Deputy Head of the Royal Commission of Inquiry, author of “Legal Opinion on the Authority of the Council of Regency of the Hawaiian Kingdom;” and Dr. Keanu Sai, a Lecturer in Political Science and Hawaiian Studies at the University of Hawai‘i, and Head of the Royal Commission of Inquiry, author of “The Royal Commission of Inquiry.” The presenters will discuss the subject matter of their respective articles which have been published by the Hawaiian Journal of Law and Politics. Following their presentations, the presenters will sit together on a panel to answer questions from the audience.

The symposium will also have as a finale a presentation celebrating Aloha ‘Āina (Hawaiian Patriotism) through mele (song) by well known Hawaiian entertainers and musicians featuring Mele Apana, Lina Girl, Davey D, Amy Gilliom, Mailani Makainai, Ku‘uipo Kumukahi, Sean Pimental, Glenn Maeda, Danny Kennedy, Na Wai Ho‘olu‘u o ke Ānuenue, and Heuaʻolu Sai-Dudoit.

SYMPOSIUM SCHEDULE: The symposium will begin at 11:00am and end at 4:30pm at the University of Hawai‘i at Mānoa’s Art Building auditorium across from Varney Circle where the water fountain is. Here is a link to a map of UH Mānoa. Light lunch and drinks included at no cost.

Registration is now open for all UH Mānoa students, faculty and staff, as well as community members. Click here to register for the event.

REGISTRATION DEADLINE: February 10, 2023

For any questions or concerns, please contact nhss@hawaii.edu.

Click here to visit HSLP’s Symposium’s website

Exposing the Achilles Heel of the State of Hawai‘i Judiciary

Since the Permanent Court of Arbitration verified and acknowledged the Hawaiian Kingdom to still exist as a State under international law in 1999 in Larsen v. Hawaiian Kingdom, it’s been a slow but methodical progression of exposing this legal reality. For the Hawaiian Kingdom to be a State in continuity since the nineteenth century despite the United States illegal overthrow of its government on January 17, 1893, it radically shifted the legal and political terrain concerning the United States’ presence and the State of Hawai‘i’s control over Hawaiian territory. From the 50th State of the American Union to an Occupied State under a prolonged and illegal occupation.

While under international law, there is a rule that effective control by the government of the State over its territory is the exercise of sovereignty, this independence rule does not apply over territory of another State during military occupation. Under international humanitarian law, when a State is in effective control over occupied territory it triggers the law of occupation, not sovereignty, which obligates the occupying State to temporarily administer the laws of the occupied State until a treaty of peace is concluded. In the Hawaiian situation, the State of Hawai‘i and the Counties are in effective control of the territory of the Hawaiian Kingdom and are subject to the international law of occupation. Their effective control is not an exercise of sovereignty. According to Professor Krystyna Marek:

Belligerent occupation is thus the classical case in which the requirement of effectiveness as a condition of validity of a legal order is abandoned. The explanation of this unusual fact is to be found in the temporary nature of belligerent occupation. International law could not permanently relinquish the requirement of effectiveness, since this would mean reducing international law and relations to a pure fiction. But belligerent occupation is by definition not of a lasting character. Sooner or later it is bound to end, whether in favour of the occupied or the occupying State.

Once believed to be a democratically elected government under United States laws, the State of Hawai‘i, under international law, is an American armed force and not a government. The leadership of the State of Hawai‘i and the Counties are citizens of the United States. This is similar to the situation in Cyprus after it became an independent State on August 16, 1960, from Great Britain. In 1974, Turkey invaded the Republic of Cyprus and established the Turkish Republic of Northern Cyprus as a Turkish armed force. The northeastern territory of Cyprus has been under Turkish occupation, through its proxy the Turkish Republic of Northern Cyprus, since 1974. The difference, however, is that the Hawaiian Kingdom is an internationally recognized sovereign and independent State, but the Turkish Republic of Northern Cyprus is not.

In 1959, the United States Congress established the State of Hawai‘i by legislation to be the successor of the Territory of Hawai‘i that the Congress established in 1900. In the 1900 statute, the Congress specifically stated that the Territory of Hawai‘i is the successor of the Republic of Hawai‘i. And the Republic of Hawai‘i was the successor to the provisional government that President Grover Cleveland stated to the Congress that it “owes its existence to an armed invasion by the United States” on January 16, 1893. President Cleveland also concluded that the provisional government was “neither a government de factor nor de jure” but self-declared.

When an occupying power imposes its legislation and administrative measures over the territory of an occupied State, it constitutes the war crime of usurpation of sovereignty during military occupation. For this war crime not to have been committed in the Hawaiian Islands, the Hawaiian Kingdom, as an independent State, would had to have been extinguished by the United States under international law and acquired its sovereign territory. To have extinguished the Hawaiian Kingdom, the United States needs to show evidence of a treaty of cession, whether by conquest or otherwise. Examples of foreign States ceding portions of their sovereign territory to the United States by a peace treaty include the 1848 Treaty of Peace, Friendship, Limits, and Settlement with the Republic of Mexico that ended the Mexican American War, and the 1898 Treaty of Peace between the United States of America and the Kingdom of Spain that ended the Spanish American War.

There exists no such treaty. Instead, the United States enacted a congressional law on July 7, 1898, purporting to have annexed the Hawaiian Islands. The legislation was called a joint resolution of annexation. This act itself, being American legislation, is the war crime of usurpation of sovereignty during military occupation.

In 1994, the State of Hawai‘i Intermediate Court of Appeals established a precedent case called State of Hawai‘i v. Lorenzo. In that case, it set the precedence for defendants who argue that the courts do not have jurisdiction because of the Hawaiian Kingdom’s continued existence, they must present a factual or legal basis for concluding that the Kingdom exists as a State under the rules of international law. The Supreme Court, in State of Hawai‘i v. Armitage, clarified the evidentiary burden that Lo­renzo placed upon defendants. The court stated:

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

Since 1994, State of Hawai‘i courts denied attempts by defendants to dismiss their cases because of the Lorenzo principle. In other words, these courts were asserting that the defendants failed to present any factual or legal basis that the Kingdom continues to exist as a State. This was the case until the Council of Regency got involved in order to expose the illegality of the American occupation in the court system.

The Regency was working with attorney Dexter Ka‘iama who had been representing defendants who were arguing that the courts of the State of Hawai‘i have no jurisdiction. His arguments were based on State of Hawai‘i v. Lorenzo, which the Appellate court and the Supreme Court stated that defendants had the burden of providing evidence of a factual or legal basis that the Hawaiian Kingdom continues to exist as a State. Ka‘iama provided evidence that met that burden.

In a 2012 case that came before Circuit Judge Glenn Hara in Hilo, Wells Fargo Bank v. Kawasaiki, Judge Hara openly stated what all the judges knew after Ka‘iama presented the irrefutable evidence of the Kingdom’s continued existence. The transcript of the case preserved the record, which stated:

MR. KAIAMA: The scope of my special appearance, Your Honor, is to make argument and presentation with respect to Ms. Kawasaki’s 12(b)(1) motion to dismiss challenging the subject matter jurisdiction of this court, Your Honor.

THE COURT: Okay. So here’s the court’s inclination, Mr. Kaiama. And in answer to the plaintiff’s comment that maybe the motion may be delayed, it looks like the motion is one that challenges the subject matter jurisdiction. At least on its face. But—and any time there is a jurisdictional challenge, it can be made at any time. That’s my understanding. Because if the court has no jurisdiction then whatever the court does is void. Um, so I’m treating this as a motion to dismiss for the court’s lack of subject matter jurisdiction for the reasons stated. And that is that the argument is that the Kingdom of Hawaii still exists, and therefore, in essence, this court has no jurisdiction, it’s the courts of the Kingdom of Hawaii. That’s how I’m taking the motion. Mr. Kaiama?

MR. KAIAMA: And that is essentially Ms. Kawasaki’s motion and our argument.

MR. KAIAMA: I have now been arguing, Your Honor, this motion before judges of the courts of the circuit court and district court throughout the State of Hawaii, and nearly—and probably over 20 times, and in not one instance has the plaintiff in the cases challenged the merits of the executive agreements to show that either it’s not an executive agreement or that the executive agreements have been terminated. Because we belief, respectfully, again Your Honor, they cannot.

THE COURT: No, but, Mr. Kaiama, I think you failed—in my mind, what you’re asking the court to do is commit suicide, because once I adopt your argument, I have no jurisdiction over anything. Not only these kinds of cases where you may claim either being a citizen of the kingdom, but jurisdiction of the courts evaporate. All of the courts across the state, from the supreme court down, and we have no judiciary. I can’t do that.

THE COURT: I think what [Mr. Kaiama is] saying is the argument is that if, in fact, I buy into his arguments then this court has no jurisdiction over any matter. That’s his analysis, I think.

MS. HIROSANE [for Wells Fargo]: And that’s my understanding of it too, Your Honor.

THE COURT: Okay. So the court will deny the motion to dismiss the complaint pursuant to Hawaii Rules of Civil Procedure 12(b)(1) for lack of subject matter jurisdiction.

Hara’s extra-judicial or unlawful order led to Wells Fargo Bank’s pillaging of defendant’s home and property by a court that possessed no jurisdiction. As acknowledged by Hara in the transcript, “if the court has no jurisdiction then whatever the court does is void.” The defendant was the victim of the war crime of usurpation of sovereignty during military occupation, deprivation of fair and regular trial, and pillaging.

To stop the State of Hawai‘i’s judiciary from unravelling, the Supreme Court, in 2013, in State of Hawai‘i v. Kaulia, responded to a defendant’s arguments that was like the case that came before Judge Hara except that Ka‘iama was not his attorney. The Supreme Court stated that the defendant “contends that the courts of the State of Hawai‘i lacked subject matter jurisdiction over his criminal prosecution because the defense proved the existence of the Hawaiian Kingdom and the illegitimacy of the State of Hawai‘i government.” With only American case law and municipal laws to rely on, the Supreme Court responded with, “Whatever may be said regarding the lawfulness of its origins, the State of Hawai‘i is now, a lawful government. Individuals claiming to be citizens of the Kingdom and not the State are not exempt from application of the State’s laws.”

The Supreme Court was silent in providing evidence of the lawfulness of the State of Hawai‘i, which, according to the rules of evidence, silence is an acknowledgement of its unlawfulness. According to Professor Nuno Antunes, under international law, acquiescence “concerns a consent tacitly conveyed by a State, unilaterally, through silence or inaction, in circumstances such that a response expressing disagreement or objection in relation to the conduct of another State would be called for.” On acquiescence, the International Court of Justice in Case concerning the Temple of Preah Vihear (Cambodia v. Thailand), the Court stated:

It has been contended on behalf of Thailand that this communication of the maps by the French authorities was, so to speak, ex parte, and that no formal acknowledgment of it was either requested of, or given by, Thailand. In fact, as will be seen presently, an acknowledgment by conduct was undoubtedly made in a very definite way; but even if it were otherwise, it is clear that the circumstances were such as called for some reaction, within a reasonable time, on the part of the Siamese authorities, if they wished to disagree with the map or had any serious question to raise in regard to it. They did not do so, either then or for many years, and thereby must be held to have acquiesced. Qui tacet consentire videtur si loqui debuisset ac potuisset.

On June 1, 2013, Ka‘iama was licensed to practice law in the Hawaiian Kingdom. His license was issued by Hawaiian Kingdom Supreme Court First Associate Justice Allen K. Hoe. On August 11, 2013, Ka‘iama petitioned the Council of Regency for a commission as Attorney General after Gary V. Dubin resigned. Ka‘iama stated:

As an Attorney, Counselor, Solicitor and Proctor who has been admitted to practice in al the courts of the Hawaiian Kingdom on June 1, 2013, by the Honorable Allen K. Hoe, First Associate Justice, I respectfully and humbly petition the Council to consider me for the office of acting Attorney General of the Hawaiian Kingdom in light of the recent resignation of Gary V. Dubin, Esq., from the office of the same.

After consideration, the Council of Regency commissioned Dexter Ke‘eaumoku Ka‘iama as Attorney General.

Attorney General Ka‘iama continued to represent defendants in both civil and criminal cases making the argument that the court does not have jurisdiction or authority over the cases because they were unlawful. But in every case that came before these courts across the islands, the judges were not following the Lorenzo precedent, which is their own rule. Without any proof of evidence that countered Attorney General Ka‘iama’s or, in other words, provided any evidence that the Hawaiian Kingdom no longer exists as a State under the rules of international law, they just steam rolled forward as if there was no problem with their authority. As Professor Marek explained:

Thus, the relation between effectiveness and title seems to be one of inverse proportion: while a strong title can survive a period of non-effectiveness, a weak title must rely heavily, if not exclusively, on full and complete effectiveness. It is the latter which makes up for the weakness in title. Belligerent occupation presents an illuminating example of this relation of inverse proportion.

The utter disregard by the State of Hawai‘i courts, to include the Supreme Court, to the rules of fair play and evidence based arguments only proves its “weakness in title” against the Hawaiian Kingdom’s “strong title.” Under international criminal law, these actions taken by the courts, which are preserved in the court filings, comprise the Achilles heel, which is the weakness despite the strength of the State of Hawai‘i judiciary. The actions taken in violation of the law of occupation gives rise to war crimes and individual criminal culpability. There are no statute of limitations for war crimes. These actions do come under the investigative authority of the Royal Commission of Inquiry.

Backstory of the Hawaiian Kingdom v. Biden Federal Lawsuit

Yesterday, Federal District Judge Leslie Kobayashi signed an Order officially ending the federal lawsuit Hawaiian Kingdom v. Biden. Attorney General Dexter Ka‘iama, representing the Hawaiian Kingdom by its Council of Regency, filed the notice of withdrawal on November 28, 2023, and yesterday was the Order. The federal lawsuit was initiated on May 20, 2021, and spanned for nineteen months. Here is the backstory of the federal lawsuit and its significance in obtaining evidence for the war crime of usurpation of sovereignty during military occupation.

The objective for the filing of the lawsuit was to seek an order from the court to compel the United States, the State of Hawai‘i and the Counties to comply with international humanitarian law by administering the laws of the Hawaiian Kingdom as an occupied State. The lawsuit also sought from the court an order to halt the imposition of American municipal laws because it is the war crime of usurpation of sovereignty during military occupation, which is the unlawful imposition of legislative and administrative measures of the occupying State.

But before the federal court could rule on the complaint, the Hawaiian Kingdom requested the court to transform from an Article III Court into an Article II Occupation Court, since the court is operating within the territory of the Hawaiian Kingdom and not within the territory of the United States. Article III Courts are federal courts that operate within the territory of the United States by judicial authority under Article III of the U.S. Constitution, whereas Article II Occupation Courts are federal courts that are established under the executive authority President under Article II of the U.S. Constitution in territories that are occupied by the United States military.  According to Professor Bederman, there are twelve instances in the history of the United States where Article II Occupation Courts were established during the Mexican War, the Civil War, the Spanish-American War, and the Second World War.

An amicus brief or friend of the court brief was filed by the International Association of Democratic Lawyers, the National Lawyer Guild, and the Water Protector Legal Collective on October 6, 2021, to help explain to the court why it was obligated to transform into an Article II Occupation Court. The Court pondered on this issue for five months.

Then on March 3, 2022, District Judge Kobayashi issued an Order granting the dismissal of Sweden’s Honorary Consul Anders Nervell from the lawsuit. In the Order, and without providing any evidence that the Hawaiian Kingdom no longer exists under international law, she stated that she will not transform into an Article II Occupation Court. Instead, Judge Kobayashi justified her decision on prior court decisions that provided no evidence of the Hawaiian Kingdom’s demise under the rules of international law. American court decisions, like American laws and administrative measures, constitute the war crime of usurpation of sovereignty during military occupation. In other words, Judge Kobayashi knowingly committed the war crime.

The Hawaiian Kingdom attempted to address the error of Judge Kobayashi but to no avail. She laid the path for the court and the defendants to commit the war crime of usurpation of sovereignty during military occupation and deprivation of fair and regular trial. The Hawaiian Kingdom would then use the proceedings to get evidence that the defendants and the court knowingly imposed American legislative and administrative measures. The elements for the war crime of usurpation of sovereignty during military occupation are:

1. The perpetrator(s) imposed or applied legislative or administrative measures of the occupying power going beyond those required by what is necessary for military purposes of the occupation.

2. The perpetrator(s) was aware that the measures went beyond what was required for military purposes or the protection of fundamental human rights.

3. Their conduct took place in the context of and was associated with a military occupation

4. The perpetrators were aware of factual circumstance that established the existence of the military occupation.

The third and fourth elements refer to the mens rea or the criminal intent requirement. With respect to these last two elements:

1. There is no requirement for a legal evaluation by the perpetrator as to the existence of the military occupation.

2. In that context there is no requirement for awareness by the perpetrator of the facts that established the character of existence of the military occupation.

3. There is only a requirement for the awareness of the factual circumstances that established the existence of a military occupation.

Later that month, on March 22, 2022, H.E. Dr. David Keanu Sai, as Minister of Foreign Affairs ad interim, delivered an oral statement to the United Nations Human Rights Council (HRC) bringing attention of the war crime of usurpation of sovereignty before the 47 countries that are member States of the HRC, which included the United States. Here is the message:

None of the 47 member States of the HRC protested, or objected to the oral statement of war crimes being committed in the Hawaiian Kingdom by the United States. This is important because under international law, according to Professor Antunes, acquiescence “concerns a consent tacitly conveyed by a State, unilaterally, through silence or inaction, in circumstances such that a response expressing disagreement or objection in relation to the conduct of another State would be called for.” In other words, silence means agreement.

This oral statement would have the effect of shifting accountability from the U.S. courts to the Royal Commission of Inquiry (RCI). The RCI’s mandate is “to investigate the consequences of the United States’ belligerent occupation, including with regard to international law, humanitarian law and human rights, and the allegations of war crimes committed in that context. The geographical scope and time span of the investigation will be sufficiently broad and be determined by the head of the Royal Commission.”

The RCI will focus on senior leadership of the United States, the State of Hawai‘i and the Counties. In mid-November of 2022, the RCI published its first war criminal reports of the senior leadership that were also named defendants in Hawaiian Kingdom v. Biden. The evidence of these perpetrators’ mens rea was by their own admissions in pleadings filed with the federal court.

There is no requirement for a “legal evaluation” or agreement that Hawai‘i is under a military occupation but rather only the awareness of the “factual circumstance that established the existence of the military occupation.” The amended complaint and the Hawaiian Kingdom’s own filed pleadings provided the factual circumstances of the American military occupation and neither the defendants nor the judges refuted or objected to these facts or provided any evidence that the Hawaiian Kingdom is no longer a sovereign and independent State under international law. Silence under international law means agreement.

Since the establishment of the International Criminal Court (ICC) there has been major developments in the national criminal laws of the 123 States that signed the ICC’s founding document, the Rome Statute. Article I of the Rome Statute states:

An International Criminal Court (“the Court”) is hereby established. It shall be a permanent institution and shall have the power to exercise its jurisdiction over persons for the most serious crimes of international concerns, as referred to in this Statute, and shall be complementary to national criminal jurisdictions. The jurisdiction and functioning of the Court shall be governed by the provisions of this Statute.

Complementary jurisdiction means that the national courts of these States are the first to deal with international crimes. This is because States, not the ICC, already have national criminal justice systems in operation and are capable of dealing with perpetrators who commit international crimes. The ICC deals only with cases under limited circumstances and has been the cause of much criticism.

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

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

Under national criminal jurisdictions, States of these tourists would have authority to arrest and prosecute under passive personality jurisdiction. The passive personality principle provides countries with jurisdiction for crimes committed against their nationals while they were abroad in the Hawaiian Islands. This type of jurisdiction has more teeth as opposed to universal jurisdiction that allows States to prosecute war criminals who committed crimes outside of the territory of the State and where the perpetrator or victim is not a national of the State. The drawback on universal jurisdiction is that it can only be triggered when the perpetrator is in the territory of the prosecuting State. Passive personality jurisdiction, on the other hand, provides for immediate action to apply for extradition arrest warrants to be issued by the prosecuting State where the perpetrators remain outside of the prosecuting State’s territory.

The RCI will focus its attention on the various national criminal jurisdictions in order to seek arrests warrants for the subjects of the RCI’s war criminal reports because war crimes cannot continue to take place in Hawai‘i with impunity. War crimes have no statute of limitations and prosecution can follow a perpetrator until his elderly years.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

occupation of Iraq in 2003 illustrated the difference between ‘government’ and ‘State’; when Members of the Security Council, after adopting SC res 1511, 16 October 2003, called for the rapid “restoration of Iraq’s sovereignty”, they did not imply that Iraq had ceased to exist as a State but that normal governmental arrangements should be restored.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Elements of the war crime of usurpation of sovereignty during occupation

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

Elements of the war crime of denationalization

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

Elements of the war crime of pillage

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

Elements of the war crime of confiscation or destruction of property

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

“MIC DROP”

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

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

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

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

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

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

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

PART I: The Kingdom

Presenter: Dr. Keanu Sai

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

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

PART II: The Church

Presenter: Dr. Ronald Williams Jr.

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

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

PART III: The Land

Presenter: Donovan Preza MORE INFO TO COME

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

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

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

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

Reparation Payments:

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

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

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

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

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

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

Seizing of Assets:

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

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

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

State of Hawai‘i v. Lorenzo – The Case That Brought Down the State of Hawai‘i

One year after the United States Congress passed the joint resolution apologizing for the Unit­ed States overthrow of the Hawaiian Kingdom government in 1993, an appeal was heard by the State of Hawai‘i Intermediate Court of Appeals that centered on a claim that the Hawaiian Kingdom continues to exist. In State of Hawai‘i v. Lorenzo, the appellate court stated:

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

While the appellate court affirmed the trial court’s judgment, it admitted “the court’s rationale is open to question in light of international law.” By not applying international law, the court concluded that the trial court’s decision was correct because Lorenzo “presented no factual (or legal) basis for concluding that the Kingdom [continues to exist] as a state in accordance with recognized attributes of a state’s sovereign nature.”

In other words, the appellate court was applying the rules of evidence that applied in State of Hawai‘i courts. According to the rules of evidence, there is a presumption that the court is lawful and has jurisdiction of the case, unless the defendant provides rebuttable evidence that it doesn’t have jurisdiction. An example would be where a prosecutor files a criminal complaint against a person for committing manslaughter in traffic court. The defendant’s attorney would then file a motion to dismiss stating that the traffic court does not have jurisdiction over an allegation of manslaughter, and that the proper court would be the circuit court that has jurisdiction.

Lorenzo’s attorney filed a motion to dismiss based on the argument that his client had immunity from prosecution. So the appellate court stated that Lorenzo provided no evidence that the Hawaiian Kingdom exists as a State that would have provided for his immunity because he should have been on trial in a Hawaiian Kingdom court and not a State of Hawai‘i court. Since 1994, the Lorenzo case became a precedent case that served as the basis for denying defendants’ motions to dismiss where they claimed immunity. In State of Hawai‘i v. Fergerstrom, the appellate court stated, “We affirm that relevant precedent [in State of Hawai‘i v. Lorenzo],” and that defendants have an evidentiary burden that shows the Hawaiian Kingdom continues to exist. The federal court, in 2002, referred to the Lorenzo case as the Lorenzo principle.

The Supreme Court, in State of Hawai‘i v. Armitage, clarified the evidentiary burden that Lo­renzo principle placed upon defendants. The court stated:

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

What is profound is that if the appellate court applied international law in its decision, it would have confirmed the continued existence of the Hawaiian Kingdom as a State and ruled in favor of Lorenzo. International law recognizes the difference between the State and its government, and that there is a presumption that the State continues to exist despite its government being militarily overthrown. As Judge James Crawford explained, “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.” In other words, all Lorenzo needed to provide was evidence that the Hawaiian Kingdom “did” exist as a State, which would then shift the burden on the prosecution to provide rebuttable evidence that the United States extinguished the Hawaiian State in accordance with recognized modes of extinction under international law, a treaty of cession.

The appellate court did acknowledge that Lorenzo, in fact, provided evidence in his motion to dismiss “that the [Hawaiian Kingdom] was recognized as an independent sovereign nation by the United States in numerous bilateral treaties” In other words, the “bilateral treaties” were the evidence of Hawaiian statehood. Therefore, the appellate court mistakenly placed the burden on the defendant to provide evidence of the Kingdom’s continued existence, when it should have determined from the trial records if the prosecution provided rebuttable evidence against the presumption of the Kingdom’s continued existence as a State, which was evidenced by the “bilateral treaties.” The prosecution provided no such evidence.

If, for the sake of argument, the prosecution argued before the trial court that the 1898 joint resolution of annexation extinguished Hawaiian statehood, it would be prevented from doing so under the rules of evidence because the United States Department of Justice’s Office of Legal Counsel concluded in 1988, in a legal opinion, that it is “unclear which constitutional power Congress exercised when it acquired Hawaii by joint resolution.”

The opinion by the Department of Justice is an admission against interest, which is an out-of-court statement made by the federal government prior to the date of Lorenzo’s trial that would have bound the prosecutor from claiming otherwise. Furthermore, a congressional joint resolution or a statute are not sources of international law, and as such could not have affected Hawaiian statehood. According to the American Law Institute, a “rule of international law is one that has been accepted as such by the international community of states (a) in the form of customary law; (b) by international agreement; or (c) by derivation from general principles common to the major legal systems of the world.” Only by a treaty of cession, which is an “international agreement,” could the United States have extinguished the Hawaiian Kingdom as a State. Congressional laws are not treaties of cession.

The significance of the Lorenzo case is that the appellate court, when international law is applied, answered its own question in the negative as to “whether the present governance system should be recognized,” and that a “state has an obligation not to recognize or treat as a state an entity that has attained the qualifications for statehood as a result of a threat or use of armed force.” In other words, the State of Hawai‘i cannot be recognized as a State of the United States, which arose “as a result of a…use of armed force.” In 1893, President Grover Cleveland concluded that the provisional government, which is a predecessor of the State of Hawai‘i, “owes its existence to an armed invasion by the United States.” Therefore, a proper interpretation of State of Hawai‘i v. Lorenzo renders all courts of the State of Hawai‘i to be unlawful, and that every judgment, order or decree that emanated from any court of the State of Hawai‘i is void pursuant to the Lorenzo principle.

As such, these decisions are subject to collateral attack, which is where a defendant has a right to impeach a decision previously made against him because the “court that rendered judgment lacked jurisdiction of the subject matter.” While these decisions are subject to collateral attack, there is the problem as to what court is competent to receive a motion to set aside judgment because all courts of the State of Hawai‘i are not lawful pursuant to the Lorenzo principle.

“If a person or body assumes to act as a court without any semblance of legal authority so to act and gives a purported judgment,” explains the American Law Institute, “the judgment is, of course, wholly void.” And according to Moore, “Courts that act beyond…constraints act without power; judgments of courts lacking subject matter jurisdiction are void—not de­serving of respect by other judicial bodies or by the litigants.” Furthermore, courts who were made aware of the American occupation prior to their decisions would have met the constitu­ent elements of the war crime of depriving a protected person of a fair and regular trial.

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

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

Judge Leslie E. Kobayashi

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

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

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

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

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

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

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

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

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

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

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

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

TO THE COURT AND TO ALL PARTIES HEREIN:

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

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

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

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

The Hawaiian Kingdom concluded in its Notice of Appeal:

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

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

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

Letters to Send to the Internal Revenue Service and State of Hawai‘i Department of Taxation

If you are currently residing in the Hawaiian Islands, letters could be sent, by certified mail, to Charles P. Rettig, Commissioner of the Internal Revenue Service, and Isaac W. Choy, Director of the State of Hawai‘i Department of Taxation, regarding the unlawful collection of so-called taxes within the territorial jurisdiction of the Hawaiian Kingdom. Both individuals are named as defendants in their official capacities in the federal lawsuit Hawaiian Kingdom v. Biden.

Here is the link (MSWord file) of the letter to Commissioner Rettig, and here is the link (MSWord file) of the letter to Director Choy. Information in the letter is from the filings in Hawaiian Kingdom v. Biden.

Download both pdf files of the letters and use the information to draft your letters. You will need to insert the necessary information to personalize the letters and to provide your mailing address, phone number and email address. It is recommended that both letters be sent certified mail through the United States Postal Service.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The U.S. Supreme Court also stated, in United States v. Curtiss-Wright Export Corp., that “neither the Constitution nor the laws passed in pursuance of it have any force in foreign territory unless in respect of our own citizens, and operations of the nation in such territory must be governed by treaties, international understandings and compacts, and the principles of international law.” In 1988, the U.S. Department of Justice, in a legal opinion titled, “Legal Issues Raised by Proposed Presidential Proclamation To Extend the Territorial Sea,” it stated that “we doubt that Congress has constitutional authority to assert either sovereignty over an extended territorial sea or jurisdiction over it under international law on behalf of the United States.” The Department of Justice also concluded, “It is therefore unclear which constitutional power of Congress exercised when it acquired Hawaii by joint resolution.”

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

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

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

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

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