UPDATE: UCC Synod Changes Decision, Passes Resolution on Occupied Hawai‘i

Synod changes decision, passes resolution on occupied Hawaii

by Hans Holznagel | published on Jul 18, 2021

Here is the link to the amended resolution “Encouraging to End 128 years of of War between the United States of America and the Hawaiian Kingdom” that was passed.

The governing body of the United Church of Christ doesn’t usually change its mind about a vote it has taken. On July 18, it did.

General Synod delegates voted to reconsider a resolution about Hawaii that they had narrowly defeated the day before. This time the resolution got 72.9 percent approval — comfortably more than the two-thirds required to pass. The vote was 328-122, with 34 abstentions.

The resolution calls on church leaders to ask that the U.S. recognize its own presence in Hawaii as an “illegal occupation” according to international law. On July 17, a majority — but not the needed super-majority — had voted for it.

The resolution had come to Synod from the UCC’s Association of Hawaiian Evangelical Churches, made up of 31 historically Native Hawaiian congregations from across Hawaii. Some 80 percent of them were founded before 1893, the year the United States took Hawaii by military overthrow.

What it calls for

Now that it has passed, the resolution charges the UCC’s general counsel with communicating the church’s position to government agencies. First, the counsel is to “listen to and consider recommendations” from AHEC, “other Native Hawaiian organizations, and Native Hawaiian voices.” Then it is to draft “communications to local, national and international leaders and organizations calling for compliance with international humanitarian law and an end to the illegal occupation of the Hawaiian islands.”

AHEC spelled out the case for that position in submitting its resolution months ago.

As amended by delegates in a two-day process at Synod, the resolution also:

  • Calls on “all settings of the church … to live into the 1993 apology of the United Church of Christ delivered to the Native Hawaiian people”
  • Reaffirms the Synod’s commitment “to stand alongside and in support of the efforts of Native Hawaiians to seek redress and restitution for the war crimes of the U.S. against the Hawaiian Kingdom including, but not limited to, the crime of denationalization”
  • Asks for “a written and oral update on the progress on the implementation of this resolution” at the 2023 Synod.
Synod delegates reconsider the resolution during their July 18 plenary session.

The Rethink

The Synod’s rethink followed numerous points of order and points of personal privilege raised by delegates. Several said they felt the July 17 floor debate had been unfairly cut short — though Moderator Penny Lowes pointed out that the delegates themselves had defeated a motion to extend debate in that Saturday session. What succeeded on Jan. 18 — after much parliamentary analysis — was a formal motion to reconsider.

Gloria-Ann Muraki, an AHEC member and a Synod delegate from the UCC Board who spoke to the resolution in committee and on the floor, saw a higher power at work in the process.

She said the AHEC committee that originally wrote the resolution had been meeting since its July 17 defeat. “We have been reminding ourselves that we have to keep our faith in Ke Akua (God),” she said. “And that is what happened on the floor of the General Synod. We thank everyone, and it’s given us renewed faith in the UCC and its process.”

Hawaiian Kingdom files Complaint against the United States and the State of Hawai‘i in U.S. Federal Court

Since the United States Congress enacted a joint resolution purporting to annex the Hawaiian Islands, which was signed by President McKinley into U.S. law on July 7, 1898, American municipal laws have been illegally imposed within the territorial jurisdiction of the Hawaiian Kingdom. U.S. constitutional scholar, Westel Willoughby, wrote at the time of the purported annexation by legislative act:

The constitutionality of the annexation of Hawaii, by a simple legislative act, was strenuously contested at the time both in the Congress and by the press. The right to annex by treaty was not denied, but it was denied that this might be done by a simple legislative act…Only by means of treaties, it was asserted, can the relations between States be governed, for a legislative act is necessarily without extraterritorial force—confined in its operation to the territory of the State by whose legislature it is enacted.

westel woodbury willoughby, the constitutional law of the United states §239 (1929).

Along the same lines, the Hawaiian Kingdom Supreme Court, in In re Francis de Flanchet in 1858, stated that the “laws of a nation cannot have force to control the sovereignty or rights of any other nation within its own jurisdiction. And however general and comprehensive the phrases used in the municipal laws may be, they must always be restricted in construction, to places and persons upon whom the Legislature have authority and jurisdiction.” There is no treaty transferring Hawaiian territory to the United States. As such, the Hawaiian Kingdom continued to exist as an independent State that was acknowledged by the United States in arbitral proceedings before the Permanent Court of Arbitration in Larsen v. Hawaiian Kingdom despite the unlawful overthrow of its government by the United States on January 17, 1893.

On the subject of the 1898 joint resolution of annexation of the Hawaiian Islands, the U.S. Department of Justice’s Office of Legal Counsel, after covering the territorial limits of legislative acts, concluded in a 1988 legal opinion, “It is therefore unclear which constitutional power Congress exercised when it acquired Hawaii by joint resolution. Accordingly, it is doubtful that the acquisition of Hawaii can serve as an appropriate precedent for a congressional assertion of sovereignty over an extended territorial sea.” The complaint states:

If it was unclear how Hawai‘i was annexed by legislation, it would be equally unclear how the Congress could create a territorial government, under an An Act to provide a government for the Territory of Hawaii in 1900, within the territory of a foreign State by legislation. It would also be unclear how the Congress could rename the Territory of Hawai‘i to the State of Hawai‘i in 1959, under an Act To provide for the admission of the State of Hawai‘i into the Union by legislation.

International law at the time obligated the United States to administer Hawaiian Kingdom law after it unlawfully overthrew the Hawaiian Kingdom Government. The law of occupation was triggered after the United States, as the occupying State, secured effective control over Hawaiian territory. This effective control began when Queen Lili‘uokalani conditionally surrendered to the United States President on January 17, 1893. The Queen stated:

Now, to avoid any collision of armed forces and perhaps the loss of life, I do, under this protest, and impelled by said force, yield my authority until such time as the Government of the United States shall, upon the facts being presented to it, undo the action of its representatives and reinstate me in the authority which I claim as the constitutional sovereign of the Hawaiian Islands.

UNITED STATES HOUSE OF REPRESENTATIVES, 53RD CONGRESS, EXECUTIVE DOCUMENTS ON AFFAIRS IN HAWAII: 1894-95 (1895), 586.

President Cleveland initiated a presidential investigation on March 11, 1893 by appointing Special Commissioner James Blount to travel to the Hawaiian Islands and to provide periodic reports to the U.S. Secretary of State Walter Gresham. Commissioner Blount arrived in the Islands on March 29th, where he “directed the removal of the flag of the United States from the government building and the return of the American troops to their vessels.” His first report was dated April 6, 1893, and his final report was dated July 17, 1893. On October 18, 1893, Secretary of State Gresham notified the President:

The Provisional Government was established by the action of the American minister and the presence of the troops landed from the Boston, and its continued existence is due to the belief of the Hawaiians that if they made an effort to overthrow it, they would encounter the armed forces of the United States.

The earnest appeals to the American minister for military protection by the officers of that Government, after it had been recognized, show the utter absurdity of the claim that it was established by a successful revolution of the people of the Islands. Those appeals were a confession by the men who made them of their weakness and timidity. Courageous men, conscious of their strength and the justice of their cause, do not thus act. …

The Government of Hawaii surrendered its authority under a threat of war, until such time only as the Government of the United States, upon the facts being presented to it, should reinstate the constitutional sovereign…

Should not the great wrong done to a feeble but independent State by an abuse of the authority of the United States be undone by restoring the legitimate government? Anything short of that will not, I respectfully submit, satisfy the demands of justice.

UNITED STATES HOUSE OF REPRESENTATIVES, 53RD CONGRESS, EXECUTIVE DOCUMENTS ON AFFAIRS IN HAWAII: 1894-95 (1895), 462-463.

When negotiations began at the U.S. Legation in Honolulu on November 13, 1893, U.S. Minister Albert Willis stated to the Queen the position taken by the President after a full investigation. Willis expressed “the President’s sincere regret that, through the unauthorized intervention of the United States, she had been obliged to surrender her sovereignty, and his hope that, with her consent and cooperation, the wrong done to her and to her people might be redressed.” “To this,” Willis noted, “she bowed her acknowledgements.” Negotiations continued for another month. The illegality of the overthrow was due to the international principle of non-intervention in the internal affairs of another State.

President Cleveland delivered a manifesto to the Congress on his investigation into the overthrow of the Hawaiian Government on December 18, 1893.  The President concluded that the “military occupation of Honolulu by the United States…was wholly without justification, either as an occupation by consent or as an occupation necessitated by dangers threatening American life and property.” He also determined “that the provisional government owes its existence to an armed invasion by the United States.” Finally, the President admitted that by “an act of war…the Government of a feeble but friendly and confiding people has been overthrown.” Referring to the annexation plot of the insurgents, Cleveland concluded “that the United States could not, under the circumstances disclosed, annex the islands without justly incurring the imputation of acquiring them by unjustifiable methods.”

Unbeknownst to the President, an agreement of peace was reached on the very same day Cleveland gave his manifesto to the Congress. Gresham acknowledged receipt of Willis’ dispatch of the agreement dated December 20, 1893, in a telegram of January 12, 1894, in which he stated, “Your reports show that on further reflection the Queen gave her unqualified assent in writing to the conditions suggested.” According to the executive agreement, by exchange of notes, the President committed to restoring the Queen as the constitutional sovereign, and the Queen agreed, after being restored, to grant a full pardon to the insurgents. As a constitutional monarch, however, the agreement required an additional signature of a cabinet minister to make it binding under Hawaiian constitutional law. Article 42 of the 1864 Constitution provides, “No act of the [Monarch] shall have any effect unless it be countersigned by a Minister, who by that signature makes himself responsible.”

The United States neither complied with international humanitarian law and the law occupation nor did it carry out the international agreement of restoring Queen Lili‘uokalani as the Executive Monarch. Instead, the United States concealed this history and the unlawful seizure of Hawaiian territory by embarking on a sinister plan of denationalization through Americanization across the Hawaiian Islands in 1906. This plan was implemented throughout the schools, both public and private, in a deliberate effort to brainwash school children into believing they are American citizens and that Hawai‘i sought to be incorporated as a U.S. territory.

Within three generations since its implementation, the national consciousness of the Hawaiian Kingdom had become erased. This was the ultimate aim of the insurgency, which was evidenced in the record of a Council of State meeting of the so-called Republic of Hawai‘i in 1895. Samuel Damon, who served as the group’s Vice-President, stated, “If we are ever to have peace and annexation the first thing to do is to obliterate the past.” According to political scientist Lorenz Gonschor,

American indoctrination of the people of Hawai‘i had profound negative consequences not only on Hawaiian culture and identity, but also on the islands’ historiography. As soon as the Missionary Party—or, as loyalist newspaper editor Edmund Norrie called them, the American Mafia—had taken the reins of power, they began to systemically rewrite the country’s history and obscure and discredit the achievements of the Hawaiian Kingdom.

Lorenz Gonschor, a Power in the world: the Hawaiian Kingdom in Oceania (2019), 158.

This obliteration of Hawaiian national consciousness had effectively erased, in the minds of generations to date, the United States invasion of the Hawaiian Kingdom on January 16, 1893, and the unlawful overthrow of Hawaiian government the day after. In order to better understand the effects of denationalization download Dr. Keanu Sai’s article published by the University of Hawai‘i at Mānoa’s Hawaiian Journal of Law and Politics titled “Setting the Record Straight on Hawaiian Indigeneity.”

International humanitarian law views denationalization within the occupied territory as a war crime. According to Professor William Schabas, denationalization is one of the war crimes currently being committed in Hawai‘i, which are “actions directed at the destruction of the national identity and national consciousness of the population” of the Hawaiian Kingdom. The unlawful imposition of American municipal laws for over a century since 1898 is also the war crime of usurpation of sovereignty. Professor Schabas also stated, “the Occupying Power must not change the demographic, social and political situation in the territory it has occupied to the social and economic detriment of the population living in the occupied territory.” The unlawful imposition of American municipal laws did radically change the “demographic, social and political situation” of the Hawaiian Kingdom.

To fully understand the scope and magnitude of the prolonged American occupation of the Hawaiian Kingdom download the free eBook titled “The Royal Commission of Inquiry: Investigating War Crimes and Human Rights Violations Committed in the Hawaiian Kingdom (2000). Activities and reports by the Royal Commission of Inquiry can be accessed here.

On May 20, 2021, Dexter Ka‘iama, Attorney General for the Hawaiian Kingdom, filed a complaint for declaratory and injunctive relief (Hawaiian Kingdom v. Biden et al.). Defendants named in the complaint include President Joseph Biden and other officers of the United States Federal government, the State of Hawai‘i and Counties and its officers, as well as 32 foreign consulates unlawfully established in the Hawaiian Kingdom, which include Australia, Austria, Bangladesh, Belgium, Brazil, Chile, Czech Republic, Denmark, Finland, France, Germany, Hungary, India, Italy, Japan, Luxembourg, Mexico, Morocco, Netherlands, New Zealand, Norway, Philippines, Poland, Portugal, Slovenia, South Korea, Spain, Sri Lanka, Sweden, Switzerland, and Thailand.

What is significant about this action taken by the Council of Regency, as the government of the Hawaiian Kingdom, is that the United States Federal Court cannot invoke the political question doctrine that would be the basis for dismissal. The political question doctrine is where there is a question as to the sovereignty of a country, the federal courts will defer the answer to this question by the President as head of the executive branch. Once the President, through its Department of State, explicitly recognizes the sovereignty of a country the courts are bound by that recognition.

In other words, since the United States, by its embassy in the Netherlands which is a member of the Permanent Court of Arbitration (PCA) Administrative Council, explicitly recognized the Hawaiian Kingdom as a non-Contracting State in accordance with article 47 of the 1907 PCA Convention in the Administrative Council’s annual reports from 2000 to 2011, it answered the political question in the affirmative that the Hawaiian Kingdom continues to exist as an independent State and the Council of Regency is its government. The complaint explains:

102. The explicit recognition by the United States of the continued existence of the HAWAIIAN KINGDOM as a State and the Council of Regency as its government prevents the denial of this civil action in the courts of the United States under the political question doctrine. In Williams v. Suffolk Insurance Co., the Supreme Court rhetorically asked whether there could be “any doubt, that when the executive branch of the government, which is charged with our foreign relations…assumes a fact in regard to the sovereignty of any island or country, it is conclusive on the judicial department. In Sai v. Clinton and in Sai v. Trump the court erred when it invoked the political question doctrine. In both cases the plaintiff provided evidence of the Hawaiian Kingdom’s continuity by virtue of the proceedings at the Permanent Court of Arbitration in Larsen v. Hawaiian Kingdom.

103. In Jones v. United States, the Supreme Court concluded that “[w]ho is the sovereign, de jure or de facto, of a territory is not a judicial, but is a political, question, the determination of which by the legislative and executive departments of any government conclusively binds the judges, as well as all other officers, citizens, and subjects of that government. This principle has always been upheld by this Court, and has been affirmed under a great variety of circumstances.” As a leading constitutional scholar, Professor Corwin, concluded, “[t]here is no more securely established principle of constitutional practice than the exclusive right of the President to be the nation’s intermediary in its dealing with other nations.” The ‘executive’ did determine ‘[w]ho is the sovereign’ of the HAWAIIAN KINGDOM, and, therefore, since there is no political question, it ‘binds the judges, as well as all other officers, citizens, and subjects of that government.’

Not only did the United States explicitly recognized the continuity of the Hawaiian Kingdom as a member of the PCA Administrative Council but also the other 32 countries that have unlawfully established foreign consulates in Hawaiian territory. These 32 countries along with the United States are members of the PCA Administrative Council. As a result, the named defendants and the U.S. Federal Court are prevented from raising the political question doctrine. To understand how the United States explicitly recognized the continuity of the Hawaiian Kingdom see the Preliminary Report of the Royal Commission of Inquiry.

Under the first Count (Supremacy Clause) of the cause of action in the complaint, the Defendant State of Hawai‘i is prohibited from “any curtailment or interference” of the Defendant United States of America’s explicit recognition of the Council of Regency as the government of the Hawaiian Kingdom.

Under the second Count (Usurpation of Sovereignty) of the cause of action in the complaint, in enacting and implementing the laws of the United States, to include the laws of the State of Hawai‘i and its Counties, i.e., 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 United States military installations, Defendants who are officers of the Federal, State and County governments have exceeded their statutory authority, engaged in violating the 1849 Hawaiian-American Treaty of Friendship, Commerce and Navigation, the 197 Hague Regulations, the 1907 Hague Convention, V, and the 1949 Fourth Geneva Convention, and has failed to comply with international humanitarian law by administering the laws of the Hawaiian Kingdom, which include the 1864 constitution, statutes, common law, case law, and administrative law.

Under the third Count (Pillaging and Destruction of Property) of the cause of action in the complaint, international humanitarian law prohibits pillaging and destruction of property through the collection of taxes that are exacted from the residents of the Hawaiian Kingdom by the Internal Revenue Service of the Defendant United States of America and the Department of Taxation of the Defendant State of Hawai‘i in violation of Article 8 of the 1849 Hawaiian-American Treaty of Friendship, Commerce and Navigation, Article 43 of the 1907 Hague Regulations, and Article 64 of the 1949 Fourth Geneva Convention.

Under the final Count (Exequaturs) of the cause of action in the complaint, international humanitarian law prohibits usurpation of sovereignty by granting exequaturs to foreign consulates under American municipal law within the territory of the Hawaiian Kingdom in violation of the Article 8 of the 1849 Hawaiian-America Treaty of Friendship, Commerce and Navigation, Article 43 of the 1907 Hague Regulations, and Article 64 of the 1949 Fourth Geneva Convention.

The Hawaiian Kingdom is asking the Court to:

Declare that 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 statute, County ordinances, common law, case law, administrative law, and the maintenance of Defendant United States of America’s military installations are unauthorized by, and contrary, to the Constitution and Treaties of the United States;

Enjoin Defendants from implementing or enforcing all laws of the Defendant 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 statute, 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;

Enjoin Defendants who are or agents of foreign diplomats from serving as foreign consulates within the territorial jurisdiction of the Hawaiian Kingdom until they have presented their credentials to the Hawaiian Kingdom Government and received exequaturs; and

Award such additional relief as the interests of justice may require.

On May 21, 2021, an Order was signed by Chief Judge J. Michael Seabright setting a scheduling conference over the telephone at 9:00am on July 19, 2021 before Magistrate Judge Rom Trader.

United Church of Christ: Native Hawaiians seek Synod support for sovereignty steps

Native Hawaiians seek Synod support for sovereignty steps

by Hans Holznagel | published on May 17, 2021

The 2021 General Synod of the United Church of Christ, meeting July 11-18, will consider 11 resolutions and several bylaw changes. This is one in a series of articles about them. Readers can view an initial summary here and find full texts at the Synod website.

Aside from the 1941 attack on Pearl Harbor, war may not be the first thing that comes to mind when people think of Hawaii.

Some Native Hawaiians in the United Church of Christ are asking people to think again.

They are calling attention to an earlier military action, from 1893. They say it created what amounts to a state of war that never ended — and needs to end now.

They argue that, because the United States took Hawaii by military overthrow, the U.S. and the state government of Hawaii should be seen as occupying forces.

They make their case in a proposed resolution that calls for an end to “128 years of war” between the U.S. and the Hawaiian Kingdom. It will require a two-thirds vote of Synod delegates to pass.

Its sponsor is the Association of Hawaiian Evangelical Churches of the UCC. The AHEC consists of 31 historically Native Hawaiian congregations from across the Hawaii Conference. Some 80 percent of them were founded before 1893.

Hawaiian Kingdom still exists

The resolution’s key points are that the Hawaiian Kingdom never ceased to exist, even after its overthrow — and that there’s unfinished business.

It says the U.S., under President Grover Cleveland, negotiated with the Hawaiian Queen Lili‘uokalani — soon after deposing her — to restore her government to power. Cleveland himself, in an 1893 address to Congress, called the overthrow:

an act of war, committed with the participation of a diplomatic representative of the United States and without authority of Congress. ... A substantial wrong has thus been done which a due regard for our national character as well as the rights of the injured people requires we should endeavor to repair.

But the Native Hawaiian government has never returned to power — even though Cleveland, by a still-valid executive order, called for it to be restored, the resolution says.

Peace treaty sought

“Under international law, the action needed is a signed treaty of peace between the United States of America and the Hawaiian Kingdom government,” said Kalaniakea Wilson. He belongs to Kalapana Maunakea First Hawaiian Congregational Church in Nanawale, founded in 1823. He will speak to the resolution for AHEC when a committee of Synod delegates reviews it in July. Such a treaty, Wilson said, would be “similar to the agreement of restoration” between Cleveland and Queen Lili’uokalani that was “not implemented.”

The resolution also notes that the UCC and the U.S. Congress apologized in 1993 for their predecessors’ roles in the overthrow. National and Conference bodies in the UCC followed up by paying millions of dollars in reparations, in money and property, to Native Hawaiians.https://www.youtube.com/embed/CF6CaLAMh98?feature=oembed“Exposing the American Occupation” is part of the subtitle of this 2019 documentary featuring today’s leaders of the Hawaiian Kingdom.

But Wilson said these have not ended the decades of human costs paid by Native Hawaiians ever since the hostile takeover of their home.

“Thirty years have passed and there has been no solution to resolve 128 years of war crimes and human rights violations targeting Hawaiian Christians,” he said. “The Hawaiian people have been struggling to survive in Hawaii, leading in all negative health statistics, homelessness and much more. False apologies and broken promises exacerbate our situation.”

Wilson said recent struggles “have built a strong movement for self-governance that has grown stronger.” An example, he said, are Native-led efforts to protect a sacred mountain, Mauna Kea, “from continued desecration” by construction work on a large telescope.

Case for war crimes

One immediate step forward, Wilson said, would be for the U.S. government and the State of Hawaii “to cooperate with the Royal Commission of Inquiry.” Formed in 2019, it’s an official body of the Hawaiian Kingdom.

The UCC resolution refers to “war crimes” that impose “humanitarian and human rights violations daily” on Native Hawaiian people. The Commission of Inquiry is amassing historical and legal evidence to back those charges.

For example, the Commission argues that actions such as these — committed against Native Hawaiians by the U.S., as an occupying power — are war crimes according to international law:

  • “Usurpation of sovereignty during occupation”
  • “Denationalizing the inhabitants of occupied territory,” by, for example, outlawing aspects of Native language and culture
  • “Confiscation of property”

International law “flagrantly violated”

The AHEC is not alone in the current movement to re-recognize the Hawaiian Kingdom.

One example is the United Nations Office of the Commissioner for Human Rights. Its appointed expert, Alfred M. deZayas, said in 2018 that the islands are “under a strange form of occupation by the United States, resulting from an illegal military occupation and a fraudulent annexation.” In a letter to Hawaii’s state judiciary, he described Hawaii as “a sovereign nation-state in continuity.”

Another is the National Lawyers Guild. “International humanitarian law continues to be flagrantly violated with apparent impunity by the State of Hawai‘i and its county governments,” it said in a November 2020 letter to Hawaii’s governor. “This has led to the commission of war crimes and human rights violations of a colossal scale throughout the Hawaiian Islands.”

“Stop imposing American law”

The AHEC resolution summarizes this history and these arguments in “whereas” paragraphs and footnotes. But if the Synod were to pass the resolution as written, it would simply and “strongly” urge:

  • Hawaii’s state and county leaders and the U.S. Congress and president to “begin to comply with international humanitarian law in its prolonged and illegal occupation of the Hawaiian Islands.”
  • “All United Nation member states and non-member states to cooperate to ensure the United States complies with international humanitarian law and bring an end to the unlawful occupation of the Hawaiian Islands.”

The law of the land — of the Hawaiian Islands, that is — is what’s at stake, Wilson said. “The first step is to stop imposing American municipal laws within Hawaiian territory,” he said, “and, second, begin to administer Hawaiian Kingdom law.”

The Hawaiian Journal of Law and Politics at the University of Hawai‘i at Mānoa

The Hawaiian Journal of Law and Politics (HJLP) at the University of Hawaiʻi at Mānoa just published its third volume. Itʻs last edition, volume 2, was published back in the summer of 2006. The journal is published by the Hawaiian Society of Law and Politics (HSLP) which is a student organization at the university comprised of students, faculty and staff at the University of Hawai‘i at Mānoa.

HSLP was founded as a registered independent organization under Co-curricular Activities, Programs, and Services at the University of Hawaiʻi at Mānoa in October 30, 2003. In 2014, the organization had disbanded, only to be revived in the Spring of 2021 with an all-new membership.

Volume 3 of the HJLP has three original articles and reprints of articles and chapters that were authored by alumni of HSLP. These alumni all have Ph.D. degrees. Of the original articles, Dr. Kalawai‘a Moore is the Editor of HJLP and is the author of the “Editorʻs Notes,” and the article “American Hegemonic Discourse in Hawai‘i: Rhetorical Strategies in Support of American Control Over Hawai‘i.” Dr. Keanu Sai is the author of “Setting the Record Straight on Hawaiian Indigeneity.” And Dr. Umi Perkins is the author of “Negotiating Native Tenant Rights.”

Authors of the reprint of articles and chapters include Dr. Keao NeSmith who is the author of “Tūtūtʻs Hawaiian and the Emergence of a Neo Hawaiian Language.” Dr. Sydney Iaukea is the author of “The Queen and I: a Story of Dispossessions and Reconnections in Hawai‘i.” And Dr. Lorenz Gonschor is the author of “The Subtleties of a Map and a Painting.”

Professor Niklaus Schweizer is the author of a book review of the “Royal Commission of Inquiry: Investigating War Crimes and Human Rights Violations Committed in the Hawaiian Kingdom.”

Dr. Keanu Sai is the author of “The Royal Commission of Inquiry.” Professor William Schabas is the author of the “Legal Opinion on War Crimes Related to the United States Occupation of the Hawaiian Kingdom since 17 January 1893.” And Professor Federico Lenzerini is the author of the “Legal Opinion on the Authority of the Council of Regency of the Hawaiian Kingdom.”

It is recommended to first read Dr. Kalawaiʻa’s “Editor’s Note” where he explains the hiatus of the HJLP since 2006 and why this volume is dedicated to the late Professor Kanalu Young who served as the faculty advisor for HSLP. Followed by Dr. Sai’s article “Setting the Record Straight on Hawaiian Indigeneity,” Dr. Kalawai’s article “American Hegemonic Discourse,” and Dr. Perkins’ article “Negotiating Native Tenant Rights.”

Dr. Keanu Sai to Present on the Hawaiian Kingdom, United States and International Law on April 8

Dr. Keanu Sai will be covering in his presentation some of the subjects in his latest article “Setting the Record Straight on Hawaiian Indigeneity” that was recently published in volume 3 of the Hawaiian Journal of Law and Politics at the University of Hawai‘i at Manoa. Dr. Sai asked that everyone read the article before his presentation on April 8, 2021.

7:30pm Indian Standard Time (IST) is:

10:00am Eastern Time

7:00am Pacific Time

4:00am Hawai‘i Time

Dr. Sai’s presentation will be via Zoom:

Zoom Linkhttps://zoom.us/j/93879471109
Password: JGU

U.S. Explicitly Recognizes the Continued Existence of the Hawaiian Kingdom and its restored government

Explicit Recognition by the United States of America of the Continued Existence of the Hawaiian Kingdom and its government—the Council of Regency

HONOLULU, 5 April 2021 — On 15 March 2021, Dr. David Keanu Sai, Chairman of the Council of Regency, and Mrs. Kau‘i Sai-Dudoit, Minister of Finance, was notified that the “Securities Commission of the State of Hawaii is about to commence an enforcement action against [them] based upon the sale of unregistered Kingdom of Hawaii Exchequer Bonds, in violation of HRS § 485A-301.” In § 485A-201(2) of the statute it states that bonds issued “by a foreign government with which the United States maintains diplomatic relations” are exempt.

The State of Hawai‘i has taken the dubious position that the Council of Regency is not a government and that the Hawaiian Kingdom does not exist. This position, however, runs counter to the United States explicit recognition of the continuity of the Hawaiian Kingdom, as a State, and its government—the Council of Regency, when arbitral proceedings were instituted at the Permanent Court of Arbitration (PCA) on 8 November 1999 in Larsen v. Hawaiian Kingdom. This explicit recognition by the United States has serious consequences for the State of Hawai‘i because it triggered the Supremacy Clause under federal law, where “all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.”

The United States Supreme Court, in United States v. Curtiss-Wright Export Corp., stated that the rule of the Supremacy Clause holds “in the case of international compacts and agreements [when it forms] the very fact that complete power over international affairs is in the National Government and is not and cannot be subject to any curtailment or interference on the part of the several States.”

Attached to this press release is a Preliminary Report of the Royal Commission of Inquiry that explains not only the United States explicit recognition of the Council of Regency and the continued existence of the Hawaiian Kingdom, but also by the explicit recognition by the other treaty partners of the Hawaiian Kingdom, which includes Austria, Belgium, Denmark, France, Germany, Great Britain, Hungary, Italy, Japan, Luxembourg, Netherlands, Norway, Portugal, Russia, Spain, Sweden, and Switzerland.

The Supremacy Clause has rendered the State of Hawai‘i incapacitated because under international law, congressional acts, which includes the 1959 Statehood Act, have no effect in the territory of a foreign State unless it has the consent by the government of that State. There is no consent from the Hawaiian government since 1893 that would allow American municipal laws to have any effect within the territory of the Hawaiian Kingdom. This was precisely the dispute between Larsen and the Council of Regency. As the PCA stated:

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

American municipal laws include the constitution and laws of the State of Hawai‘i. Under international criminal law, the unlawful imposition of American municipal laws within the territory of the Hawaiian Kingdom constitutes the war crime of usurpation of sovereignty. War crimes have no statute of limitation and a person who commits a war crime can be prosecuted even after 50 years from the time the war crime was committed. Under international law, war criminals are subjected to be prosecuted by all States when they enter the State’s territory even though the crimes were committed outside of their territories. Finland and Switzerland are currently prosecuting war criminals for crimes committed in Liberia.

The only way for the State of Hawai‘i and its Counties to continue to govern is in accordance with international humanitarian law and the law of occupation. From a domestic standpoint, the Supremacy Clause renders the existence of the State of Hawai‘i unconstitutional and void because its existence is in conflict with treaties that the United States has ratified, which includes the 1849 Hawaiian-American Treaty of Friendship, Commerce and Navigation. To continue to govern would be to transform themselves into an occupying government within the limits and what is allowed under international law.

In a letter of correspondence from Dr. Sai, as Head of the Royal Commission of Inquiry (RCI), to State of Hawai‘i Attorney General Clare E. Connors, dated 2 June 2020, the Attorney General was notified that:

I am not aware whether you were informed of three meetings I had in 2015 with Mike McCartney, former chief of staff for Governor David Ige, at his office in the Executive Chambers regarding the subject of war crimes and the American occupation. This prompted a report I submitted to him that summarized what we discussed in those three meetings and how the State of Hawai‘i has a duty, under international humanitarian law, to transform itself into a Military government by virtue of Article V, section 5 of the Constitution of the State of Hawai‘i. United States practice for Military government is covered in United States Army and Navy FM 27-5, and occupation of an occupied State is covered in FM 27-10. The Adjutant General, MG Kenneth Hara, should be aware of these regulations and the function of a Military government.

These are not normal times but you are the legal advisor to the Governor, and due to the severity of the situation under international criminal law and the material elements of mens rea and actus reus, I respectfully implore you to carefully review the information I have provided you and to advise the office of the Governor accordingly. Under international humanitarian law, decisions on this matter are not with the federal government nor is it with its military here in the islands, but solely on the shoulders of the State of Hawai‘i as it is the entity in effective control of Hawaiian territory thereby triggering the law of occupation. I should also note that the governmental infrastructure of the State of Hawai‘i is that of the Hawaiian Kingdom. The only change was in name, e.g. the Department of Land and Natural Resources is the Ministry of the Interior. All that was changed in 1893 was the Queen and her cabinet, and the top law enforcement of the kingdom, being forcibly replaced by insurgents calling themselves the Executive and Advisory Councils.

Both the National Lawyers Guild (NLG) and the International Association of Democratic Lawyers (IADL) have called upon the State of Hawai‘i to transform itself into an occupying government. In its letter to Governor David Ige of 10 November 2020, the NLG stated:

We urge you, Governor Ige, to proclaim the transformation of the State of Hawai‘i and its Counties into an occupying government pursuant to the Council of Regency’s proclamation of June 3, 2019, in order to administer the laws of the Hawaiian Kingdom. This would include carrying into effect the Council of Regency’s proclamation of October 10, 2014 that bring the laws of the Hawaiian Kingdom in the nineteenth century up to date. We further urge you and other officials of the State of Hawai‘i and its Counties to familiarize yourselves with the contents of the recent eBook published by the RCI and its reports that comprehensively explains the current situation of the Hawaiian Islands and the impact that international humanitarian law and human rights law have on the State of Hawai‘i and its inhabitants.”

In its resolution of 7 February 2021, the “IADL fully supports the NLG’s November 10, 2020 letter to State of Hawai‘i Governor David Ige urging him to ‘proclaim the transformation of the State of Hawai‘i and its Counties into an occupying government pursuant to the Council of Regency’s proclamation of June 3, 2019, in order to administer the laws of the Hawaiian Kingdom. This would include carrying into effect the Council of Regency’s proclamation of October 10, 2104 that bring the laws of the Hawaiian Kingdom in the nineteenth century up to date.”

The NLG letter and the IADL resolution are attached to this press release.

The actions taken by the State of Hawai‘i against government officials of the Hawaiian Kingdom also constitutes a violation of Article 54 of the Fourth Geneva Convention, which states, “The Occupying Power may not alter the status of public officials…in the occupied territories, or in any way apply sanctions to or take any measures of coercion or discrimination against the them.” The Fourth Geneva Convention was ratified by the United States Senate on 6 July 1955 and came into force on 2 February 1956. As such, the Fourth Geneva Convention comes under the Supremacy Clause.

In light of the awareness of the occupation by the leadership of the State of Hawai‘i, these allegations against the Hawaiian government officials constitute malicious intent. As pointed out by Professor Lenzerini, under the rules of international law, “the working relationship between the Regency and the administration of the occupying State would have the form of a cooperative relationship aimed at guaranteeing the realization of the rights and interests of the civilian population and the correct administration of the occupied territory.” This unwarranted attack is a violation of the law of occupation, and as a proxy for the United States, it also constitutes an international wrongful act.

###

IADL Resolution on the US Occupation of the Hawaiian Kingdom

The following resolution was adopted by the IADL Council, in virtual session, on 7 February 2021:

IADL RESOLUTION CALLING UPON THE UNITED STATES TO IMMEDIATELY COMPLY WITH INTERNATIONAL HUMANITARIAN LAW IN ITS PROLONGED OCCUPATION OF THE HAWAIIAN ISLANDS—THE HAWAIIAN KINGDOM

The International Association of Democratic Lawyers (IADL) is a non-governmental organization of human rights lawyers founded in 1946, with member associations throughout the world and with consultative status in ECOSOC. IADL is dedicated to upholding international law and promoting the tenets of the UN Charter in furtherance of peace and justice.

The IADL strongly condemns the January 1893 invasion of the Hawaiian Kingdom by the United States and its subsequent unlawful and prolonged occupation to date, a clear violation of customary international law at the time, which is currently set out in Article 2(4) of the Charter of the United Nations prohibiting the use of force. The IADL has always been a proponent of the rule of law and a State’s obligation to comply with international humanitarian law, which includes the law of occupation.

In 2001, the Permanent Court of Arbitration, in Larsen v. Hawaiian Kingdom, stated “in the nineteenth century the Hawaiian Kingdom existed as an independent State recognized as such by the United States of America, the United Kingdom and various other States, including by exchanges of diplomatic or consular representatives and the conclusion of treaties.” [1] The Hawaiian Kingdom currently has treaties with Austria, Belgium, Bremen, Denmark, France, Germany, Great Britain, Hamburg, Hungary, Italy, Japan, Luxembourg, Netherlands, Norway, Portugal, Russia, Spain, Sweden, Switzerland and the United States. [2] The Hawaiian Kingdom also became a member of the Universal Postal Union on January 1, 1882.

After completing an investigation into the United States role in the overthrow of the Hawaiian Kingdom government on January 17, 1893, President Cleveland apprised the Congress of his findings and conclusions. In his message to the Congress, he stated, “And so it happened that on the 16th day of January, 1893, between four and five o’clock in the afternoon, a detachment of marines from the United States steamer Boston, with two pieces of artillery, landed at Honolulu. The men, upwards of 160 in all, were supplied with haversacks and canteens, and were accompanied by a hospital corps with stretchers and medical supplies. This military demonstration upon the soil of Honolulu was of itself an act of war.” [3] The President concluded, that “the military occupation of Honolulu by the United States on the day mentioned was wholly without justification, either as an occupation by consent or as an occupation necessitated by dangers threatening American life and property.” [4]

This invasion coerced Queen Lili‘uokalani, executive monarch of the Hawaiian Kingdom, to conditionally surrender to the superior power of the United States military, where she stated, “Now, to avoid any collision of armed forces and perhaps the loss of life, I do, under this protest, and impelled by said force, yield my authority until such time as the Government of the United States shall, upon the facts being presented to it, undo the action of its representatives and reinstate me in the authority which I claim as the constitutional sovereign of the Hawaiian Islands.” The President acknowledged that by “an act of war…the Government of a…friendly and confiding people has been overthrown.” [5]

Through executive mediation between the Queen and the new U.S. Minister to the Hawaiian Islands, Albert Willis, that lasted from November 13, 1893 through December 18, 1893, an agreement of peace was reached. [6] According to the executive agreement, by exchange of notes, the President committed to restoring the Queen as the constitutional sovereign, and the Queen agreed, after being restored, to grant a full pardon to the insurgents. Political wrangling in the Congress, however, blocked President Cleveland from carrying out his obligation of restoration of the Queen.

Five years later, at the height of the Spanish-American War, President Cleveland’s successor, William McKinley, signed a congressional joint resolution of annexation on July 7, 1898, unilaterally seizing the Hawaiian Islands for military purposes. In the Lotus case, the Permanent Court of International Justice stated that “the first and foremost restriction imposed by international law upon a State is that…it may not exercise its power in any form in the territory of another State.” [7]

This rule of international law was acknowledged by the Supreme Court in United States v. Curtiss-Wright, Corp. (1936), when the court stated, “Neither the Constitution nor the laws passed in pursuance of it have any force in foreign territory unless in respect of our own citizens, and operations of the nation in such territory must be governed by treaties, international understandings and compacts, and the principles of international law.” [8] In 1988, the U.S. Department of Justice’s Office of Legal Counsel concluded, it is “unclear which constitutional power Congress exercised when it acquired Hawaii by joint resolution.” [9]

Under international law, “a disguised annexation aimed at destroying the independence of the occupied State, represents a clear violation of the rule preserving the continuity of the occupied State.” [10]

Despite the limitations of United States legislation, the Congress went ahead and enacted the Territorial Act (1900) changing the name of the governmental infrastructure to the Territory of Hawai‘i. [11] Fifty-nine years later, the Congress changed the name of the Territory of Hawai‘i to the State of Hawai‘i in 1959 under the Statehood Act. [12] The governmental infrastructure of the Hawaiian Kingdom continued as the governmental infrastructure of the State of Hawai‘i.

On February 25, 2018, United Nations Independent Expert, Dr. Alfred M. deZayas, in his communication with members of the State of Hawai‘i Judiciary wrote, “I have come to understand that the lawful political status of the Hawaiian Islands is that of a sovereign nation-state in continuity; but a nation-state that is under a strange form of occupation by the United States resulting from an illegal military occupation and a fraudulent annexation. As such, international laws (the Hague and Geneva Conventions) require that governance and legal matters within the occupied territory of the Hawaiian Islands must be administered by the application of the laws of the occupied state (in this case, the Hawaiian Kingdom), not the laws of the occupier (the United States).” [13]

The IADL fully supports the National Lawyers Guild’s 2019 resolution that “calls upon the United States of America immediately to begin to comply with international humanitarian law in its prolonged and illegal occupation of the Hawaiian Islands.” [14] Together with the National Lawyers Guild (NLG):

  • IADL strongly condemns the prolonged and illegal occupation of the Hawaiian Islands.
  • IADL also condemns the unlawful presence and maintenance of the United States Indo-Pacific Command with its 118 military sites throughout the Hawaiian Islands.
  • IADL calls for the United States to immediately comply with international humanitarian law and begin to administer the laws of the Hawaiian Kingdom as the occupied State.
  • IADL calls on the legal and human rights community to view the United States presence in the Hawaiian Islands through the prism of international law and to roundly condemn it as an illegal occupation under international law.
  • IADL 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.
  • IADL calls on all United Nations member States and non-member States to not recognize as lawful a situation created by a serious violation of international law, and to not render aid or assistance in maintaining the unlawful situation. As an internationally wrongful act, all States shall cooperate to ensure the United States complies with international humanitarian law and consequently bring to an end the unlawful occupation of the Hawaiian Islands.

The IADL recognizes that the United States’ violations of international humanitarian law have led to the commission of war crimes and human rights violations in the Hawaiian Islands. The IADL also recognizes that the civilian population in the Hawaiian Islands are “protected persons” and their rights during a belligerent occupation are vested in the 1949 Fourth Geneva Convention and the 1977 Additional Protocol.

For the restoration of international law and the tenets of the UN Charter, the IADL calls upon the United States to immediately comply with international humanitarian law and the law of occupation in its prolonged and illegal occupation of the Hawaiian Islands.

The IADL fully supports the NLG’s November 10, 2020 letter to State of Hawai‘i Governor David Ige urging him to “proclaim the transformation of the State of Hawai‘i and its Counties into an occupying government pursuant to the Council of Regency’s proclamation of June 3, 2019, in order to administer the laws of the Hawaiian Kingdom. This would include carrying into effect the Council of Regency’s proclamation of October 10, 2014 that bring the laws of the Hawaiian Kingdom in the nineteenth century up to date.” [15]

IADL reiterates that supporting the tenets of the UN Charter also means that member States must comply with the Articles of State Responsibility for Internationally Wrongful Acts (2001). [16] The U.S. violation of the Hawaiian Kingdom’s sovereignty and its failure to comply with international humanitarian law for over a century is an internationally wrongful act. As such, member States have an obligation to not “recognize as lawful a situation created by a serious breach…nor render aid or assistance in maintaining that situation,” [17] and member States “shall cooperate to bring to an end through lawful means any serious breach [by a member State of an obligation arising under a peremptory norm of general international law].” [18]

To download a copy of the IADL resolution go to this link.

[1] Larsen v. Hawaiian Kingdom, 119 Int’l L. Reports 566, 581 (2001). Case description for the Larsen case online at https://pca-cpa.org/en/cases/35/.

[2] International Treaties between the Hawaiian Kingdom and other Powers (online at https://hawaiiankingdom.org/treaties.shtml).

[3] President Cleveland’s Message to the Congress 451 (December 18, 1893) (online at https://hawaiiankingdom.org/pdf/Cleveland’s_Message_(12.18.1893).pdf).

[4] Id., 452.

[5] Id., 456.

[6] Executive Agreement, by exchange of notes, between President Cleveland and Queen Lili‘uokalani (December 18, 1893) (online at https://hawaiiankingdom.org/pdf/EA_2(HI%20Claim).pdf).

[7] Lotus, PCIJ Series A, No. 10, 18 (1927).

[8] United States v. Curtiss-Wright, Corp., 299 U.S. 304, 318 (1936)

[9] Douglas W. Kmiec, “Legal Issues Raised by Proposed Presidential Proclamation To Extend the Territorial Sea,” 12 Op. O.L.C. 238, 252 (1988) (online at https://hawaiiankingdom.org/pdf/1988_Opinion_OLC.pdf).

[10] Krystyna Marek, Identity and Continuity of State in Public International Law 110 (2nd ed., 1968).

[11] An Act To provide a government for the Territory of Hawaii, 31 Stat. 141 (1900).

[12] An Act To provide for the admission of the State of Hawaii into the Union, 73 Stat. 4 (1959).

[13] Letter from U.N. Independent Expert Dr. deZayas to Members of the Judiciary of the State of Hawai‘i (25 Feb. 2018) (online at https://hawaiiankingdom.org/pdf/Dr_deZayas_Memo_2_25_2018.pdf).

[14] NLG Calls Upon US to Immediately Comply with International Humanitarian Law in its Illegal Occupation of the Hawaiian Islands (January 13, 2020) (online at https://www.nlg.org/nlg-calls-upon-us-to-immediately-comply-with-international-humanitarian-law-in-its-illegal-occupation-of-the-hawaiian-islands/).

[15] NLG letter urges implementation on international law in U.S.-occupied Hawaiian Kingdom (2020) (online at https://nlginternational.org/2020/11/nlg-letter-urges-implementation-of-international-law-in-u-s-occupied-hawaiian-kingdom/).

[16] United Nations, Responsibility of States for Internationally Wrongful Acts (2001) (online at https://legal.un.org/ilc/texts/instruments/english/draft_articles/9_6_2001.pdf).

[17] Id., Article 41(2).

[18] Id., Article 41(1).

Dr. Keanu Sai to Present on the American Occupation of the Hawaiian Kingdom in India and Ethiopia by Webinar April 8, 2021

About the Centre for International Legal Studies

Jindal Global Law School’s Centre for International Legal Studies is committed to the study of emerging areas of interest in public international law. Its mandate is to undertake collaborative research within JGU and also with other national and international entities in various areas of international law. The Centre designs training courses, lectures, seminars, conferences, and symposia for students and professionals working in the field and advises national and international public bodies on matters of interpretation and application of international law.

About Jindal Global Law School

Jindal Global Law School (JGLS), the flagship faculty for O.P. Jindal Global (Institution of Eminence Deemed To Be University), is an ambitious entrant into the Indian, and indeed the global—academic scene. The model is simple. Faculty with outstanding academic qualifications have been assembled, given world class facilities, extensive academic freedom, and embedded—in many cases re-embedded—into the Indian academic fabric. The result is an institution for research and scholarship that exists at a unique set of crossroads for almost any research issue. JGLS combines perspectives unique to the Global North as well as to the Global South, applies the potential for global collaboration towards local application, has the ability to disseminate Indian legal and policy research to a global audience, enjoys the in-house expertise to engage in seamless comparative law review, to bridge jurisdictional divides, and to draw upon a global set of faculty contacts to coordinate scholars and scholarship.

About Addis Ababa University International Humanitarian Law Clinic

The Addis Ababa University International Humanitarian Law Clinic offers a venue for the learning, research, debate and awareness raising of International Humanitarian Law. Only a few months after its establishment, the AAU IHL Clinic has become an important emerging voice in International Humanitarian Law, posting articles by Students, Scholars and IHL practitioners. Our blog is attracting readers from all over the world. Our articles range from theoretical issues of IHL to practical situations of armed conflicts. The AAU IHL Clinic encourages learners to pursue and develop legal research, analytical thinking, legal analysis and problem-solving skills through practical applications of legal rules and principles to real-world situations. It is a platform where students develop their skills in writing, publishing, presentation and correspondence. It is also a venue for scholars and practitioners to write about and present on issues they deem relevant to the proper enforcement of IHL rules. Through projects chosen by the Clinic and our partners, students will get a unique experience in IHL, within the classroom and beyond.

Dr. Keanu Sai will present on “The Hawaiian Kingdom, United States and International Law” on April 8 at 7:30pm (India Time), which is 9am (US Eastern Time) and 4am (Hawai‘i Time). To register here for the event.

Reminder! Please register: January 9, IADL/NLG Webinar: War Crimes and the U.S. Occupation of Hawai‘i with Dr. Keanu Sai and Professor Federico Lenzerini

From the National Lawyers Guild International Committee:

Dear all NLG International Committee members and friends,

We invite you to join this important webinar below, organized by the International Association of Democratic Lawyers and the National Lawyers Guild International Committee (U.S.). Please join us and do not hesitate to reach out with any questions! Please do share this invitation with your colleagues, comrades and friends.

January 9, IADL/NLG Webinar: War Crimes and the U.S. Occupation of Hawai‘i with Dr. Keanu Sai and Professor Federico Lenzerini

Saturday, January 9, 2021
10am – 1pm Hawai‘i/12 – 3pm Pacific/3 – 6pm Eastern (8 – 11pm UTC, 9 pm – 12 midnight central Europe)
Register to join over Zoom: https://bit.ly/hawaiioccupation
Facebook Event: https://www.facebook.com/events/3519049134808762

As strange as it may seem, Hawai‘i, a recognized sovereign and independent State since the nineteenth century, has been under a prolonged military occupation by the United States for the past 127 years that has led to the commission of war crimes and human rights violations of unimaginable proportions. In 2019, the Hawaiian Council of Regency proclaimed the establishment of the Royal Commission of Inquiry whose mandate is to investigate the commission of these war crimes and human rights violations in order to hold to account war criminals in accordance with international humanitarian law. Join us for a discussion on this important subject and the movement to ensure that the United States complies with the international law of occupation.

Dr. Keanu Sai is a lecturer at the University of Hawai‘i and serves as Hawaiian Minister of the Interior, Minister of Foreign Affairs ad interim, and Head of the Royal Commission of Inquiry. He also served as Agent for the Council of Regency at the Permanent Court of Arbitration, The Hague, Netherlands, in Larsen v. Hawaiian Kingdom, PCA case no. 1999-01. Dr. Sai received his Ph.D. and M.A. degrees in political science specializing in international relations and public law from the University of Hawai‘i at Manoa.

Professor Federico Lenzerini is a professor of international law at the University of Siena, Italy, Department of Political and International Sciences. He is also a Professor at the LL.M. Program in Intercultural Human Rights of the St. Thomas University School of Law, Miami, U.S., and Professor of the Tulane-Siena Summer School on International Law, Cultural Heritage and the Arts. He is a member of the editorial boards of the Italian Yearbook of International Law, of the Intercultural Human Rights Law Review and of the Cultural Heritage Law and Policy series. Professor Lenzerini received his Doctor of Law degree from the University of Siena, Italy, and his Ph.D. degree in international law from the University of Bari, Italy.

This webinar is organized by the National Lawyers Guild International Committee and the International Association of Democratic Lawyers.

National Lawyers Guild Calls Upon State of Hawai‘i to Comply with International Law of Occupation

Download the full letter to State of Hawai‘i Governor David Ige.

On Monday January 16, 1893, United States Minister intervened in the internal affairs of the Hawaiian Kingdom when he ordered U.S. troops to invade Honolulu and overthrow the Hawaiian Kingdom government in order to replace it with an insurgency he supported. The next day, the insurgents, in the presence of and protected by armed-for-battle U.S. military forces, declared themselves a “provisional government”. Under threat of violence by the U.S. military forces, Queen Lili‘uokalani conditionally surrendered to the United States.

Her conditional surrender stated:

I, Liliuokalani, by the Grace of God, and under the Constitution of the Hawaiian Kingdom, Queen, do hereby solemnly protest against any and all acts done against myself and the constitutional Government of the Hawaiian Kingdom by certain persons claiming to have established a Provisional Government of and for this Kingdom.

That I yield to the superior force of the United States of America whose Minister Plenipotentiary, His Excellency John L. Stevens, has caused United States troops to be landed at Honolulu and declared that he would support the said Provisional Government.

Now to avoid any collision of armed forces, and perhaps the loss of life, I do this under protest, and impelled by said force yield my authority until such time as the Government of the United States shall, upon facts being presented to it, undo the action of its representative and reinstate me in the authority which I claim as the constitutional sovereign of the Hawaiian Islands.

On December 18, 1893, President Grover Cleveland, in his message to Congress, informed it of his findings in his investigation into the United States Government overthrow of the Hawaiian Kingdom government. President Cleveland concluded that the invasion was a “military demonstration upon the soil of Honolulu [which] was of itself an act of war.” He concluded “that the provisional government owes its existence to an armed invasion by the United States.” He acknowledged that on January 17th, “the Government of the Queen…was undisputed and was both the de facto and the de jure government.” President Cleveland also determined that the insurgency “was neither a government de facto nor de jure”. The insurgents merely declared it to exist after being assured of United States diplomatic and military support.

On November 13, 1893, when negotiations began between the Queen and the new U.S. Minister, Albert Willis, the President proposed restoration of the Queen only if she would grant a general amnesty to the insurgency and their supporters, as well as recognizing their bona fide acts and obligations. In this first meeting, the Queen refused, but after more deliberations on the subject she agreed, and the resolution was memorialized in an executive agreement between the two governments. The U.S. Supreme Court has held, in U.S. v. Belmont (1937), that executive agreements entered into between the President and the governments of foreign countries are deemed treaties not requiring Senate consent for ratification or approval.

The United States President breached his promise and obligation to restore the Queen, and, consequently, the insurgents were never granted amnesty. They remained a United States proxy pretending to be a government for Hawai‘i. On July 3, 1894, the insurgents changed their name from the provisional government to the “Republic of Hawai‘i.” Four years later during the Spanish-American War, the U.S. Congress, via domestic law, unilaterally annexed the Hawaiian Islands under a Joint Resolution To provide for annexing the Hawaiian Islands to the United States.

In 1900, the U.S. Congress, via domestic law, changed the name of the “Republic of Hawai‘i” to the “Territory of Hawai‘i” under An Act To provide a government for the Territory of Hawaii. In 1959, the U.S. Congress, again domestic law, changed the name of the “Territory of Hawai‘i” to the “State of Hawai‘i” under An Act To provide for the admission of the State of Hawaii into the Union. As the U.S. Supreme Court, in United States v. Curtiss-Wright Export Corp. (1936), stated: “Neither the Constitution nor the laws passed in pursuance of it have any force in foreign territory.” In other words, Congressional laws, to include the joint resolution of annexation, have no effect beyond the territory of the United States.

Despite the military invasion, belligerent occupation, purported annexation, and the effective control of Hawaiian territory by the United States through its proxies—the provisional government, the Republic of Hawai‘i, and the Territory of Hawai‘i—the Hawaiian Kingdom, as a State under international law, continues to exist, and that the United States, through its current proxy, the State of Hawai‘i, is obligated to administer Hawaiian Kingdom laws until a peace treaty has been concluded.

The State of Hawai‘i, as a direct descendant of the provisional government, owes its existence to an armed invasion by the United States. Currently, the State of Hawai‘i, is in effective control of the territory of the Hawaiian Kingdom. Under international law, this effective control triggers the law of occupation to administer the laws of the occupied State, the Hawaiian Kingdom.

On January 13, 2020, the National Lawyers Guild (“NLG”) publicly announced its position regarding the prolonged occupation of the Hawaiian Kingdom. The NLG:

• strongly condemns the prolonged and illegal occupation of the Hawaiian Islands.

• also condemns the unlawful presence and maintenance of the United States Indo-Pacific Command with its 118 military sites throughout the Hawaiian Islands, which has caused the islands to be targeted for nuclear strike by North Korea, China and Russia.

• calls for the United States to immediately comply with international humanitarian law and begin to administer the laws of the Hawaiian Kingdom as the occupied State.

• calls on the legal and human rights community to view the United States presence in the Hawaiian Islands through the prism of international law and to roundly condemn it as an illegal occupation under international law.

• 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.

• calls on all United Nations member States and non-member States to not recognize as lawful a situation created by a serious violation of international law, and to not render aid or assistance in maintaining the unlawful situation. As an internationally wrongful act, all States shall cooperate to ensure the United States complies with international humanitarian law and consequently bring to an end the unlawful occupation of the Hawaiian Islands.

In its November 10, 2020 letter to Governor David Ige of the State of Hawai‘i the NLG calls “upon the State of Hawai‘i and its County governments, as United States’ proxy, which is in effective control of Hawaiian territory, to immediately comply with international humanitarian law while the United States continues its prolonged and illegal occupation of the Hawaiian Kingdom since 1893.”

The NLG “is deeply concerned that international humanitarian law continues to be flagrantly violated with apparent impunity by the State of Hawai‘i and its County governments. This has led to the commission of war crimes and human rights violations on a colossal scale throughout the Hawaiian Islands. International criminal law recognizes that the civilian inhabitants of the Hawaiian Islands are ‘protected persons’ who are afforded protection under international humanitarian law and their rights are vested in international treaties. There are no statutes of limitation for war crimes, as you must be aware.”

In closing, the NLG calls upon “Governor Ige to proclaim the transformation of the State of Hawai‘i and its Counties into an occupying government pursuant to the Council of Regency’s proclamation of June 3, 2019 in order to administer the laws of the Hawaiian Kingdom. This would include carrying into effect the Council of Regency October 10, 2014 Proclamation that brings Hawaiian Kingdom laws up to date. We further urge you and other officials of the State of Hawai‘i and its Counties to become familiar with the contents of the recent eBook published by the [Royal Commission of Inquiry] and its reports that comprehensively explain the current situation of the Hawaiian Islands and the impact that international humanitarian law and human rights law have on the State of Hawai‘i and its inhabitants.”

The reader is encouraged to visit the Royal Commission of Inquiry’s (“RCI”) webpage for materials providing a broader understanding of the prolonged U.S. occupation of the Hawaiian Kingdom and the obligations international law imposes on the United States. The webpage also explains the RCI’s mandate and its approach in investigating war crimes and human rights violations.

National Lawyers Guild Annual Convention (2020): The Law of Occupation – Hawai‘i, Iraq, Afghanistan and Palestine

Join the NLG International Committee’s CLE program on Monday, Sept. 21, 2020, as part of the NLG Convention!

The four-hour CLE will take place at 9 am Pacific/12 pm Eastern time. To participate in the CLE, you must register for the NLG Convention. You can attend all Convention events as part of your registration – just follow the directions to create your schedule!

Register online: https://nlg.org/convention/

Please note, the NLG Convention is open to members and non-members! Sliding scale registration is available, with registration for the entire, all-digital convention beginning at $25 for NLG members and $50 for non-members. If you need a fee waiver in order to attend the CLE or the Convention as a whole, please contact registration@nlg.org to request a fee waiver or reduction.

Four CLE credits are available for this program, with presentations on humanitarian and human rights law and the U.S. occupations of Hawai’i, Afghanistan and Iraq, and Israel’s occupation of Palestine.  (CLE Credit will be given through the State Bar of CA. After the convention, the NLG will be emailing out attendance verification forms to all attendees.)

On January 17, 1893, the Hawaiian Kingdom was invaded and its government overthrown by the United States empire, beginning a 126-year occupation and unlawful annexation of the Pacific nation. On October 7, 2001, the United States invaded the Islamic Republic of Afghanistan, overthrew its government, and began a 19-year occupation of that Middle Eastern nation. Less than two years later on March 20, 2003, under the pretext that the Republic of Iraq had failed to abandon its weapons of mass destruction, the United States led the invasion, overthrow and continuing occupation of Iraq. The Israeli occupation of Palestine, continuing since 1947 and marked by the Nakba in 1948 when more than 700,000 Palestinians were forceably expelled from their homes and lands, has evolved, with full political and economic support of the U.S., into a belligerent expansion and occupation of territory of Palestine, Jordan, and Syria.

International humanitarian law, also known as the law of war or armed conflict, is the legal framework applicable to situations of armed conflict and occupation. An esteemed panel of international law experts will discuss and examine the application of these rules of law to illegal wars and occupations involving the United States. The panel will discuss the law of occupation which governs the relationship between the occupying power and those subject to belligerent occupation as well as the interplay between humanitarian law and international human rights law. The panel will also cover the legal mechanisms and remedies available to occupied peoples and nations, including Hawaii, Afghanistan, Iraq, and Palestine, to challenge continuing occupation and violations of humanitarian and human rights.

Speakers:

Valentina Azarova, Ph.D. is an international legal academic and practitioner, who teaches and writes on foreign territorial control and the law of third state responsibility.  She is Visiting Academic at the University of Manchester International Law Centre (England) and Associate Editor of the Oxford Reports on International Human Rights Law and United Nations Treaty Bodies. Dr. Azarova is legal advisor to the Global Legal Action Network and has over a decade of experience documenting and engaging in legal actions and advocacy to challenge processes of structural violence of armed conflict and occupation with a focus on third party complicity.  She has worked with and regularly advises UN bodies and fact-finding missions, states and non-governmental organizations.  She is the author of numerous articles on humanitarian law including that law of prolonged belligerent occupations and Israel’s occupation of Palestine.  She co-founded the Human Rights and International law program at Al-Quds Bard College (Palestine) and has held positions at Birzeit University (Ramallah), and in Lebanon, Budapest, and Istanbul.  She received her Ph.D. from the National University of Ireland’s Irish Centre for Human Rights.

Marjorie Cohn is professor emerita at the Thomas Jefferson School of Law (San Diego) and a former president of the National Lawyers Guild. Professor Cohn has written extensively on war and humanitarian law, particularly on torture and targeted killings. She is the author of numerous law review articles and five books. In 2010, Professor Cohn debated the legality of the war in Afghanistan at the prestigious Oxford Union. A lifelong peace activist, Professor Cohn has provided expert testimony on the law of war and is the recipient of 2008 Peace Scholar of the Year Award from the Peace and Justice Studies Association among other awards for her work. She received her J.D. from the Santa Clara University School of Law.

Federico Lenzerini, Ph.D., is an associate professor of public international law and international human rights law at the University of Siena (Italy), a professor in the intercultural human rights program of the St. Thomas University School of Law (Miami). He is a UNESCO consultant and has served as a Rapporteur on the Rights of Indigenous Peoples. He is the author or editor of over one hundred academic articles and seven books. He received his Doctor of Law degree from the University of Siena and his Ph.D. degree in international law from the University of Bari (Italy).

Keanu Sai, Ph.D. is the Chairman of the Council of Regency and Acting Minister of the Interior of the provisional government of the Hawaiian Kingdom.  Dr. Sai served as Agent for the Hawaiian Kingdom at the Permanent Court of Arbitration in Larsen v. Hawaiian Kingdom.  He is the editor of the recent book, Investigating War Crimes and Human Rights Violations Committed in the Hawaiian Kingdom.  Dr. Sai received his Ph.D. and M.A. degrees in political science specializing in international relations and public law from the University of Hawai’i where he also teaches. Dr. Sai co-chairs the Hawaiian Kingdom Subcommittee of the International Committee of the NLG.

Royal Commission of Inquiry Calls Upon the State of Hawai‘i to Comply with International Law and to Work with the Council of Regency

HAWAIIAN KINGDOM – After returning from oral hearings held at the Permanent Court of Arbitration, The Hague, Netherlands, where the Council of Regency represented the Hawaiian Kingdom in Larsen v. Hawaiian Kingdom in December of 2000, the Council of Regency focused its attention on the effects of denationalizationAmericanization where the national consciousness of the Hawaiian Kingdom was obliterated.

Denationalization was formally initiated in 1906 by the Board of Education and carried into effect within the public and private schools throughout the Hawaiian Islands. Within three generations, Hawaiian Kingdom national consciousness had been effectively replaced with American national consciousness and the national language of Hawaiian replaced with English. As part of this inculcation, young students were led to falsely believe that the Hawaiian Islands had become a part of the United States, and they were now American citizens.

According to Professor William Schabas, recognized expert in international criminal law, who provided a legal opinion for the Royal Commission of Inquirydenationalization, among other international crimes committed in the Hawaiian Islands, is a war crime under customary international law. War crimes have no statutes of limitations and criminal culpability will last up to 80 years after the war crime was committed.

The Royal Commission was established, by proclamation of the Council of Regency, on April 17, 2019. Its mandate is to investigate war crimes and human rights violations committed within the territorial jurisdiction of the Hawaiian Kingdom since the unlawful overthrow of the Hawaiian government in 1893, and the subsequent belligerent occupation by the United States ever since.

The lawful authority of the Council of Regency has also been the subject of a recent legal opinion by Professor Federico Lenzerini, a professor of international law from the University of Siena, Italy. The American treatise, Restatement (Third) of the Foreign Relations Law of the United States,, §103(2)(c), recognizes that “writings of scholars” are a source of international law in determining, in this case, whether the Council of Regency has been established in conformity with the rules of international humanitarian law. In his opinion, Professor Lenzerini concluded that:

1. the Council of Regency possesses the constitutional authority to temporarily exercise the Royal powers of the Hawaiian Kingdom;

2. the Council of Regency has the authority to represent the Hawaiian Kingdom as a State, which has been under a belligerent occupation by the United States of America since 17 January 1893, both at the domestic and international level; and

3. the Council of Regency is exactly in the same position of a government of a State under military occupation, and is vested with the rights and powers recognized to governments of occupied States pursuant to international humanitarian law. 

Professor Lenzerini further concludes:

Under international humanitarian law, the proclamations of the Council of Regency are not divested of effects as regards the civilian population of the Hawaiian Islands. In fact, considering these proclamations as included in the concept of “legislation”…they might even, if the concrete circumstances of the case so allow, apply retroactively at the end of the occupation, on the condition that the legislative acts in point do not “disregard the rights and expectations of the occupied population.” It is therefore necessary that the occupied government refrains “from using the national law as a vehicle to undermine public order and civil life in the occupied area.”

Imposition of United States legislative and administrative measures constitutes the war crime of usurpation of sovereignty under customary international law. This includes the legislative and administrative measures of the State of Hawai‘i and its Counties.

Professor Schabas also identified usurpation of sovereignty as a war crime that has and continues to be committed in the Hawaiian Islands. His legal opinion was also incorporated in a book published by the Royal Commission as chapter 4—War Crimes Related to the United States Belligerent Occupation of the Hawaiian Kingdom. This publication is downloadable as an eBook at no charge.

In 2015, Dr. David “Keanu” Sai met with State of Hawai‘i Governor Ige’s Chief of Staff, Mike McCartney, on three occasions at his office in the Executive Chambers regarding the subject of war crimes and the American occupation. After the meetings, Dr. Sai provided Mr. McCartney a report on July 2, 2015, on the duty and obligation of the State of Hawai‘i to transform itself into a Military government in order to come into compliance with international law. This transformation would take place when the governor declares martial law in accordance with the provisions of the State of Hawai‘i Constitution.

Governor Ige at the time did not take the necessary steps to comply with international law and the law of occupation. Consequently, the State of Hawai‘i and its Counties have continued to commit war crimes and human right violations, as well as violations of international law. As such, the actions and conduct of State of Hawai‘i and County officials have come under the purview of the Royal Commission of Inquiry.

The Royal Commission, however, sees as its priority the establishment of the Military government in order to administer the laws of the occupied State, and, thereby, bringing the State of Hawai‘i and its Counties into compliance with international law of occupation. This is the only way for war crimes and human rights violations to cease.

Members of the State of Hawai‘i and its Counties are not the insurgents of 1893, but rather individuals that found themselves in a tenuous situation without any fault of their own. Their actions viewed through the lens of international humanitarian law, however, have led to the commission of war crimes against the civilian population who have been made aware of the prolonged occupation, and when they were asserting their rights, they were maliciously attacked. Awareness of the American occupation satisfies the mental element necessary for the prosecution of a war crime.

The awareness of the prolonged occupation has reached the National Education Association (NEA) by a resolution introduced in 2017 by the Hawai‘i State Teachers Association at the NEA’s annual convention in Boston. This resulted in three articles that were published by the NEA on its website in 2018. 

Also, the National Lawyers Guild, “the oldest and largest progressive bar association in the United States, calls upon the United States to immediately begin to comply with international humanitarian law in its prolonged and illegal occupation of the Hawaiian Kingdom since 1893.”

The Royal Commission recognizes that war crimes and human rights violations cannot continue to be committed with impunity and the perpetrators must be held accountable, but it does recognize that the Council of Regency must have, as Professor Lenzerini stated in his opinion, a “cooperative relationship aimed at guaranteeing the realization of the rights and interests of the civilian population and the correct administration of the occupied territory.”

To this end, a letter of correspondence was sent by Dr. Sai, as Head of the Royal Commission of Inquiry, to State of Hawai‘i Attorney General Clare Connors on June 2, 2020. In his letter, Dr. Sai ends with:

These are not normal times but you are the legal advisor to the Governor, and due to the severity of the situation under international criminal law and the material elements of mens rea and actus reus, I respectfully implore you to carefully review the information I have provided you and to advise the office of the Governor accordingly. Under international humanitarian law, decisions on this matter are not with the federal government nor is it with its military here in the islands, but solely on the shoulders of the State of Hawai‘i as it is the entity in effective control of Hawaiian territory thereby triggering the law of occupation. I should also note that the governmental infrastructure of the State of Hawai‘i is that of the Hawaiian Kingdom. The only change was in name, e.g. the Department of Land and Natural Resources is the Ministry of the Interior. All that was changed in 1893 was the Queen and her cabinet, and the top law enforcement of the kingdom, being forcibly replaced by insurgents calling themselves the Executive and Advisory Councils.

Notwithstanding the warrantless attacks against myself and other officers of the Council of Regency by the State of Hawai‘i, I am hopeful that its current leadership, as the administration of the occupying State, will begin to meet with the Council of Regency in order to establish a “cooperative relationship” provided by international humanitarian law. In the meantime, the Royal Commission will continue to fulfill its mandate of investigating war crimes and human rights violations and providing periodic reports with the purpose of holding perpetrators accountable under international humanitarian law and human rights law.

Far too long the State of Hawai‘i and its Counties, whether by mistake or design, mischaracterized the Council of Regency as a self-declared sovereignty group. Rather, it is assured to be the interim government of the Hawaiian Kingdom established by proclamation on February 28, 1997, and is vested with the rights and powers afforded to a government of an occupied State in accordance with international humanitarian law. A recent documentary, which won several awards at independent film festivals, covers the Council of Regency and its strategy to engage the prolonged occupation of the Hawaiian Kingdom.

IMPORTANT NOTE: The Royal Commission of Inquiry’s mandate is to investigate war crimes and human rights violations and report its findings to countries or international venues for prosecution, which is evidence based. Because war crimes have no statutes of limitations, investigations can occur within 80 years after the commission of the crime because of human longevity. In other words, the Royal Commission can investigate crimes that have been committed 80 years ago. Because war crimes are considered a peremptory norm, which is a serious violation of international law, all countries are obligated to prosecute the alleged perpetrators through their national institutions and may invoke universal jurisdiction. For those countries that a parties to the Rome Statute of the International Criminal Court, they are obligated to prosecute alleged perpetrators who enter their territories for war crimes committed outside of their territory after 2002. According to Article 1 of the Rome Statute, the signatory countries must first investigate and prosecute war crimes, leaving the International Criminal Court the court of last resort. This is called complementary.

Legal Opinion Affirms Authority of the Council of Regency Under International Law

In light of the severity of the mandate of the Royal Commission of Inquiry, established by the Hawaiian Council of Regency on April 17 2019, to investigate war crimes and human rights violations committed within the territorial jurisdiction of the Hawaiian Kingdom, the “authority” of the Council of Regency to appoint the Royal Commission is fundamental and, therefore, necessary to address within the rules of international humanitarian law, which is a component of international law. As the United States Supreme Court in The Paquete Habana, 175 U.S. 677, 700 (1900), explained:

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. For this purpose, where there is no treaty and no controlling executive or legislative act or judicial decision, resort must be had to the customs and usages of civilized nations, and, as evidence of these, to the works of jurists and commentators who by years of labor, research, and experience have made themselves peculiarly well acquainted with the subjects of which they treat. Such works are resorted to by judicial tribunals not for the speculations of their authors concerning what the law ought to be, but for trustworthy evidence of what the law really is.

According to Article 38(1) of the Statute of the International Court of Justice, “the teachings of the most highly qualified publicists of the various nations, [are] subsidiary means for the determination of rules of law.” Furthermore,  §103(2)(c), Restatement Third—Foreign Relations Law of the United States, recognizes that “writings of scholars” are a source of international law in determining, in this case, whether the Council of Regency has been established in conformity with the rules of international humanitarian law. The writing of scholars, “whether a rule has become international law,” are not prescriptive but rather descriptive “of what the law really is.”

As head of the Royal Commission, Dr. Keanu Sai provided a narrative of the authority of the Council of Regency in its recent publication Royal Commission of Inquiry: Investigating War Crimes and Human Rights Violations Committed in the Hawaiian Kingdom (p. 18-23), a process that was unprecedented, for purposes of explanation and understanding, but it may not be considered authoritative as to whether it meets the rules of international law. Therefore, in order to satisfy this requirement and to remove any questions as to the authority of the Council of Regency, Federico Lenzerini, Ph.D., a professor of international law from the University of Siena, Italy, was requested, by letter dated May 11, 2020, to provide a legal opinion on the following:

First, does the Regency have the authority to represent the Hawaiian Kingdom as a State that has been under a belligerent occupation by the United States of America since 17 January 1893?

Second, assuming the Regency does have the authority, what effect would its proclamations have on the civilian population of the Hawaiian Islands under international humanitarian law, to include its proclamation recognizing the State of Hawai‘i and its Counties as the administration of the occupying State on 3 June 2019?

Third, can you provide comment on the working relationship between the Regency and the administration of the occupying State under international humanitarian law?

On May 24, 2020, Professor Lenzerini completed his legal opinion. His opinion begins by stating:

In order to ascertain whether the Regency has the authority to represent the Hawaiian Kingdom as a State, it is preliminarily necessary to ascertain whether the Hawaiian Kingdom can actually be considered a State under international law. To this purpose, two issues need to be investigated, i.e.: a) whether the Hawaiian Kingdom was a State at the time when it was militarily occupied by the United States of America, on 17 January 1893; b) in the event that the solution to the first issue would be positive, whether the continuous occupation of Hawai’i by the United States, from 1893 to present times, has led the Hawaiian Kingdom to be extinguished as an independent State and, consequently, as a subject of international law.

After addressing the historical record and citing the Permanent Court of Arbitration, he concluded, “[i]t is therefore unquestionable that in the 1890s the Hawaiian Kingdom was an independent State and, consequently, a subject of international law. This presupposed that its territorial sovereignty and internal affairs could not be legitimately violated by other States.”

After concluding the Hawaiian Kingdom did exist as a subject of international law, Professor Lenzerini stated, “it is now necessary to determine whether the continuous occupation of Hawai‘i by the United States from 1893 to present times has led the Hawaiian Kingdom to be extinguished as an independent State and, consequently, as a subject of international law.” He addressed this issue “by means of a careful assessment carried out through ‘having regard inter alia to the lapse of time since the annexation [by the United States], subsequent political, constitutional and international developments, and relevant changes in international law since the 1890s.’”

Aside from all speculative arguments, Professor Lenzerini concludes, “the argument which appears to overcome all the others is that a long-lasting and well-established rule of international law exists establishing that military occupation, irrespective of the length of its duration, cannot produce the effect of extinguishing the sovereignty and statehood of the occupied State.” On this subject, he provides an English translation of a statement made by the Swiss arbitrator Eugène Borel in the 1925 Ottoman Public Debt case:

Whatever are the effects of the occupation of a territory by the enemy before the re-establishment of peace, it is certain that such an occupation alone cannot legally determine the transfer of sovereignty […] The occupation, by one of the belligerents, of […] the territory of the other belligerent is nothing but a pure fact. It is a state of things essentially provisional, which does not legally substitute the authority of the invading belligerent to that of the invaded belligerent.

Professor Lenzerini also cites renowned jurist Oppenheim who stated that “[t]he only form in which a cession [of sovereignty] can be effected is an agreement embodied in a treaty between the ceding and the acquiring State. Such treaty may be the outcome of peaceable negotiations or of war.” Without a treaty with the Hawaiian Kingdom ceding its territory to the United States, he concludes that, “according to a plain and correct interpretation of the relevant legal rules, the Hawaiian Kingdom cannot be considered, by virtue of the prolonged US occupation, as extinguished as an independent State and a subject of international law, despite the long and effective exercise of the attributes of government by the United States over Hawaiian territory.” Therefore, the Hawaiian Kingdom “has been under uninterrupted belligerent occupation by the United States of America, from 17 January 1893 up to the moment of this writing.”

After confirming the continuity of the Hawaiian Kingdom, Professor Lenzerini reviewed the process by which the Council of Regency was formed, he further concludes “on the basis of the doctrine of necessity,…the Council of Regency possesses the constitutional authority to temporarily exercise the Royal powers of the Hawaiian Kingdom.” He further concludes “that the Regency actually has the authority to represent the Hawaiian Kingdom as a State, which has been under a belligerent occupation by the United States of America since 17 January 1893, both at the domestic and international level.” In international proceedings at the Permanent Court of Arbitration from 1999-2001, the Council of Regency did represent the Hawaiian Kingdom in Larsen v. Hawaiian Kingdom, and the Dr. Sai served as the Hawaiian Kingdom’s agent and head of its legal team.

In its capacity as representing the Hawaiian Kingdom, Professor Lenzerini concludes that “the Council of Regency is exactly in the same position of a government of a State under military occupation, and is vested with the rights and powers recognized to governments of occupied States pursuant to international humanitarian law.” Therefore, “the ousted government being the entity which represents the ‘legitimate government’ of the occupied territory…may ‘attempt to influence life in the occupied area out of concern for its nationals, to undermine the occupant’s authority, or both. One way to accomplish such goals is to legislate for the occupied population.’”

Regarding legislation by governments of occupied States, Professor Lenzerini cites the Swiss Federal Tribunal which held that “[e]nactments by the [exiled government] are constitutionally laws of the [country] and applied [from the beginning] to the territory occupied […] even though they could not be effectively implemented until the liberation.” He explains that “[a]though this position was taken with specific regard to exiled governments, and the Council of Regency was not established in exile but in situ, the conclusion, to the extent that it is considered valid, would not substantially change as regards the Council of Regency itself.” Hence,

under international humanitarian law, the proclamations of the Council of Regency are not divested of effects as regards the civilian population of the Hawaiian Islands. In fact, considering these proclamations as included in the concept of “legislation”…they might even, if the concrete circumstances of the case so allow, apply retroactively at the end of the occupation, on the condition that the legislative acts in point do not “disregard the rights and expectations of the occupied population.” It is therefore necessary that the occupied government refrains “from using the national law as a vehicle to undermine public order and civil life in the occupied area.”

When the legislative function is exercised by the Council of Regency, through its proclamations, it “is subjected to the condition of not undermining the rights and interests of the civilian population,” and therefore “may be considered applicable to local people, unless such applicability is explicitly refuted by the occupying authority.” “In this regard,” states Professor Lenzerini, “it is reasonable to assume that the occupying power should not deny the applicability of the…proclamations when they do not undermine, or significantly interfere with the exercise of, its authority.”

Addressing the June 3, 2019 proclamation of the Council of Regency recognizing the State of Hawai‘i and the Counties as the administration of the Occupying State, Professor Lenzerini states, “this Proclamation pursues the clear purpose of ensuring the protection of the Hawaiian territory and the people residing therein against the prejudicial effects which may arise from the occupation.” He explains that “it represents a legislative act aimed at furthering the interests of the civilian population through ensuring the correct administration of their rights and of the land. As a consequence, it has the nature of an act that is equivalent, in its rationale and purpose (although not in its precise subject), to a piece of legislation concerning matters of personal status of the local population, requiring the occupant to give effect to it.” He, therefore, concludes that “the proclamations of the Council of Regency—including the Proclamation recognizing the State of Hawai‘i and its Counties as the administration of the occupying State on 3 June 2019—have on the civilian population the effect of acts of domestic legislation aimed at protecting their rights and prerogatives, which should be, to the extent possible, respected and implemented by the occupying power.”

In his commentary on the working relationship between the Regency and the administration of the occupying State, Professor Lenzerini establishes that the law of occupation “allows for authority to be shared by the Occupying Power and the occupied government, provided the former continues to bear the ultimate and overall responsibility for the occupied territory.” By implementing the legislation of the Council of Regency, “the occupying power would better comply with its obligation, existing under international humanitarian law and human rights law, to guarantee and protect the human rights of the local population. It follows that the occupying power has a duty—if not a proper legal obligation—to cooperate with the [Council of Regency] to better realize the rights and interest of the civilian population, and, more in general, to guarantee the correct administration of the occupied territory.” Professor Lenzerini concludes:

[T]he working relationship between the Regency and the administration of the occupying State should have the form of a cooperative relationship aimed at guaranteeing the realization of the rights and interests of the civilian population and the correct administration of the occupied territory, provided that there are no objective obstacles for the occupying power to cooperate and that, in any event, the “supreme” decision-making power belongs to the occupying power itself. This conclusion is consistent with the position of the latter as “administrator” of the Hawaiian territory, as stated in the Council of Regency’s Proclamation recognizing the State of Hawai‘i and its Counties as the administration of the occupying State of June 3, 2019 and presupposed by the pertinent rules of international humanitarian law.

This cooperative relationship, however, is “premised on both the Council of Regency and the State of Hawai‘i and its Counties [to] ensure [their] compliance with international humanitarian law.” Compliance with the law of occupation requires the State of Hawai‘i to transform itself into a government recognized under international humanitarian law. United States practice during occupations requires the establishment of a Military government, which “is the form of administration by which an occupying power exercises governmental authority over occupied territory. The necessity for such government arises from the failure or inability of the legitimate government to exercise its functions on account of the military occupation (U.S. Army Field Manual 27-10, para. 362).” The establishment of Military government is not limited to the United States military, but also applies to a proxy of the occupying power that is in effective control of Hawaiian territory such as the State of Hawai‘i and its Counties. United States practice recognizes that an occupying power “has the duty of establishing [a Military government] when the government of such territory is absent or unable to function properly (U.S. Army and Navy Manual of Civil Affairs Military Government, Field Manual 27-5, p. 4).”

Furthermore, “[i]t is immaterial whether the government over an [occupied State’s] territory consists in a military or civil or mixed administration. Its character is the same and the source of its authority is the same. It is a government imposed by force, and the legality of its acts is determined by the law of war (FM 27-10, para. 368).” And “restrictions placed upon the authority of a belligerent government cannot be avoided by a system of using a puppet government, central or local, to carry out acts which would be unlawful if performed by the occupant. Acts induced or compelled by the occupant are nonetheless its acts (FM 27-10, para. 366).”

In the current state of things, the State of Hawai‘i is not a Military government but rather a “puppet government” or proxy of the United States that continues to commit the war crime of usurpation of sovereignty by unlawfully imposing or applying “legislative or administrative measures of the occupying power going beyond those required by what is necessary for military purposes of the occupation (Royal Commission of Inquiry, p. 155-57, 167).” The volitional element, or criminal intent, of usurpation of sovereignty, according to Professor William Schabas, is that the “perpetrator was aware of factual circumstances that established the existence of the armed conflict and subsequent occupation (RCI, p. 167).” There is no statute of limitation for war crimes but it is customary for individuals to be prosecuted for the commission of war crimes up to 80 years after the alleged war crime was committed given the life expectancy of individuals (RCI, p. 155).

In 2012, member States of the United Nations committed themselves to “ensuring that impunity is not tolerated for genocide, war crimes, crimes against humanity and for violations of international humanitarian law and gross violations of human rights law, and that such violations are properly investigated and appropriately sanctioned, including by bringing the perpetrators of any crimes to justice, through national mechanisms or, where appropriate, regional or international mechanisms, in accordance with international law.”

According to the applicable rules of international law, as provided in the legal opinion of Professor Lenzerini, the Council of Regency, first, does have the lawful authority to represent the Hawaiian Kingdom as a State that has been under a belligerent occupation by the United States since January 17, 1893; second, its proclamations do have legal effects on the civilian population of the Hawaiian Islands, to include its proclamation recognizing the State of Hawai‘i and its Counties as the administration of the occupying State on June 3, 2019; and, third, international humanitarian law does provide for a cooperative relationship between the Regency and the administration of the occupying State—the State of Hawai‘i and its Counties. Furthermore, the mandate of the Royal Commission, which was established by “legislation” of the Council of Regency, is also confirmed by the legal opinion and the applicable rules of international law.