On November 8, 1999, international arbitration proceedings were initiated at the Permanent Court of Arbitration (PCA), The Hague, Netherlands, between Lance Paul Larsen and the acting Government of the Hawaiian Kingdom (Larsen v. Hawaiian Kingdom). The arbitration agreement provided, “The Arbitral Tribunal is asked to determine, on the basis of the Hague Conventions IV and V of 18 October 1907, and the rules and principles of international law, whether the rights of the Claimant under international law as a Hawaiian subject are being violated, and if so, does he have any redress against the Respondent Government of the Hawaiian Kingdom?”

Larsen was arrested on October 4, 1999, in Hilo, Hawai‘i, and imprisoned for 30 days, seven of which were in solitary confinement, for following Hawaiian Kingdom law. Larsen, as the Claimant, alleged that the acting government, the Respondent, was legally liable to him for allowing the unlawful imposition of American municipal laws over him within the territorial jurisdiction of the Hawaiian Kingdom. In the pleading, Larsen’s attorney, Ms. Ninia Parks, esq., based her case on the following grounds:

1. Mr. Larsen is a Hawaiian subject, with a Hawaiian nationality.
2. As a Hawaiian subject, Mr. Larsen is bound by Hawaiian Kingdom law. He is not bound by the laws of the State of Hawaii nor by the laws of the United States of America.
3. Mr. Larsen’s rights as a Hawaiian subject have been systematically and continuously denied by the United States of America, the occupying force in the prolonged occupation of the Hawaiian islands by the United States of America. At a minimum, the United States of America has continually denied Mr. Larsen’s nationality as a Hawaiian subject, has illegally imposed American laws over his person, has extorted monetary fines from Mr. Larsen under threat of imprisonment, and has imprisoned Mr. Larsen for asserting his lawful rights as a Hawaiian national.
4. The government of the Hawaiian Kingdom has a duty to protect the rights of Mr. Larsen, a Hawaiian subject, despite the continued occupation of the Hawaiian Islands by the United States of America.
5. The government of the Hawaiian Kingdom, through its acting Regency, has not fulfilled this duty.

In its pleading, the acting Government, represented by Dr. Keanu Sai as lead agent, denied the allegations and submitted “that the Claimant’s rights under international law are being violated, but to what extent, is left to the Arbitral Tribunal to decide. That this decision must be made within fixed and established principles and laws pertaining to the matter, and that the Hawaiian Kingdom Government is not liable for redress of these violations under its present conditions as an occupied State.”

In the American Journal of International Law, vol. 95, p. 928 (2001), and reprinted in the Hawaiian Journal of Law and Politics, vol. 1, p. 83 (2004), Bederman and Hilbert, state that at “the center of the PCA proceeding was…that the Hawaiian Kingdom continues to exist and that the Hawaiian Council of Regency (representing the Hawaiian Kingdom) is legally responsible under international law for the protection of Hawaiian subjects, including the claimant. In other words, the Hawaiian Kingdom was legally obligated to protect Larsen from the United States’ ‘unlawful imposition [over him] of [its] municipal laws’ through its political subdivision, the State of Hawai‘i. As a result of this responsibility, Larsen submitted, the Hawaiian Council of Regency should be liable for any international law violations that the United States committed against him.”

In February 2000, the PCA’s Secretary General Tjaco T. van den Hout recommended that the acting Government provide a formal invitation to the United States to join in the arbitration. In order to carry out this request by the Secretary General, Dr. Sai was sent to Washington, D.C. Ms. Ninia Parks, attorney for the Claimant Lance Larsen, accompanied Dr. Sai.

On March 3, 2000, a telephone meeting with John R. Crook, Assistant Legal Adviser for United Nations Affairs section of the US Department of State, was held. It was stated to Mr. Crook that the “visit was to provide these documents to the Legal Department of the U.S. Department of State in order for the U.S. Government to be apprised of the arbitral proceedings already in train and that the Hawaiian Kingdom, by consent of the Claimant, extends an opportunity for the United States to join in the arbitration as a party.”

Mr. Crook was made fully aware of the United States occupation of the Hawaiian Kingdom and the establishment of the acting Government. This direct challenge to US sovereignty over the Hawaiian Islands should have prompted the United States to protest the action taken by the Permanent Court of Arbitration in accepting the Hawaiian arbitration case and call upon the Secretary General to cease and desist because this action constitutes a violation of US sovereignty. The United States did neither. Instead, Deputy Secretary General Phyllis Hamilton notified the acting Government that the United States notified the Court that it will not join in the arbitration, but did request from the acting government permission to access all pleadings and transcripts of the case. Both the acting government and Larsen’s attorney consented. By this action, the United States directly acknowledged the circumstances of the proceedings and the acting government’s representation of the Hawaiian Kingdom before an international tribunal.

Three distinguished jurists presided on the Arbitration Tribunal. Professor James Crawford, SC, served as Presiding arbitrator. Professor Crawford is a professor of international law at the University of Cambridge. At the time of the arbitration, Crawford was also a member of the United Nations International Law Commission (ILC) and was responsible for the ILC’s work on the International Criminal Court (1994) and the Articles on State Responsibility (2001).

Judge Sir Christopher Greenwood, QC, served as Associate arbitrator. Greenwood was at the time professor of international law at the London School of Economics and Political Science and legal counsel to the United Nations on the Laws of War and Occupation. In 2008, the United Nations elected Greenwood to be judge on the International Court of Justice.

Dr. Gavan Griffith, QC, served as Associate Arbitrator. Griffith was former Solicitor General for Australia and also served as counsel and agent for Australia in Nauru v. Australia before the International Court of Justice.

Three days of oral hearings were set for December 7, 8 and 11, 2000 at the PCA. At the center of these proceedings was whether or not Larsen was able to maintain his suit against the acting Government for not protecting him without the participation of the United States who would need to answer to the alleged violations committed by them against Larsen. Larsen was attempting to hold the acting Government responsible for his injuries committed by the United States. In international law, this is a situation called the “necessary and indispensable party” rule and it was the basis of decisions made by the International Court of Justice in Monetary Gold case (Italy v. France, United Kingdom of Great Britain and Northern Ireland and United States of America), the Nauru case (Nauru v. Australia), and the East Timor case (Portugal v. Australia).

In the 2001 Arbitral Award, the Tribunal explained, that it “cannot determine whether the Respondent [the acting government] has failed to discharge its obligations towards the Claimant [Larsen] without ruling on the legality of the acts of the United States of America. Yet that is precisely what the Monetary Gold principle precludes the Tribunal from doing. As the International Court explained in the East Timor case, ‘the Court could not rule on the lawfulness of the conduct of a State when its judgment would imply an evaluation of the lawfulness of the conduct of another State which is not a party to the case.’”

The Tribunal, however, did acknowledge the Hawaiian Kingdom to be an independent State. In its decision, the Tribunal concluded in the Award, “that 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.” International law provides for the continuity of the Hawaiian Kingdom since the nineteenth century to the present, which was the basis for the arbitration case in the first place.

War crimes are actions taken by individuals, whether military or civilian, that violates international humanitarian law, which includes the 1907 Hague Conventions, 1949 Geneva Conventions and the Additional Protocols to the Geneva Conventions. War crimes include “grave breaches” of the 1949 Fourth Geneva Convention, which also applies to territory that is occupied even if the occupation takes place without resistance. Protected persons under International Humanitarian Law are all nationals who reside within an occupied State, except for the nationals of the Occupying Power. The International Criminal Court and States prosecute individuals for war crimes.

War Crimes: Attempts to Denationalize the Inhabitants of an Occupied State

The first instance of war crimes was brought up during World War I. In 1919, the Commission on Responsibilities of the Paris Peace Conference identified 32 war crimes, one of which was “attempts to denationalize the inhabitants of occupied territory.” The prosecution of German officials and their Allies for war crimes committed during World War I, however, was dismal. Of 5,000 individuals reported for war crimes only 12 were tried and 6 were convicted.

In October of 1943, the United States, the United Kingdom and the Soviet Union established the United Nations War Crimes Commission (UNWCC). World War II had been waging since 1939, and atrocities committed by Germany, Italy and Japan drew the attention of the Allies to hold individuals responsible for the commission of war crimes. On December 2, 1943, the UNWCC adopted the war crimes that were drawn up by the Commission on Responsibilities in 1919 with the addition of another war crime—indiscriminate mass arrests. The UNWCC was organized into three Committees: Committee I (facts and evidence), Committee II (enforcement), and Committee III (legal matters).

Committee III was asked to provide a report on war crime charges against four Italians accused of denationalization in Yugoslavia. The charge stated:

“Apart from killing, deportation and interning innocent persons, the Italians started a policy, on a vast scale, of denationalization. As a part of such a policy, they started a system of ‘re-education’ of Yugoslav children. This re-education consisted of forbidding children to use the Serbo-Croat language, to sing Yugoslav songs and forcing them to salute in a fascist way, become members of the G.I.L. (Gioventu italiana del Littoria) and spend a certain time in camps for ‘education.’ In all these actions aimed at the denationalization of Yugoslav children, Dr. Binna took a very active part. He brought Italian teachers from Italy and posted them all over the province of Zadar. Amongst those Italian teachers who insisted on the Italianization of Yugoslav children, BETTINI, Education Inspector and INCHIOSTRI, head-master of a secondary school at SIBENIK took a prominent part. Dr. Tulio NICOLETTI Trustee for Education at SIBENIK, and Edoardo CIUBELLI, Education Inspector at ZADAR, were also prominently associated with this policy. NICOLETTI organized special courses for teachers to learn Italian and Italian ‘methods’ and he threatened all those who would not attend the courses. Dr. BINNA is also responsible for forbidding the edition of any newspaper printed in the Serbo-Croat language, and for forcing Yugoslavs to hoist Italian flags.”

The question before Committee III was whether or not “denationalization” constituted a war crime that called for prosecution or merely a violation of international law. The Committee reported:

“It is the duty of belligerent occupants to respect, unless absolutely prevented, the laws in force in the country (Art. 43 of the Hague Regulations). Inter alia, family honour and rights and individual life must be respected (Art. 46). The right of a child to be educated in his own native language falls certainly within the rights protected by Article 46 (‘individual life’). Under Art. 56, the property of institutions dedicated to education is privileged. If the Hague Regulations afford particular protection to school buildings, it is certainly not too much to say that they thereby also imply protection for what is going to be done within those protected buildings. It would certainly be a mistaken interpretation of the Hague Regulations to suppose that while the use of Yugoslav school buildings for Yugoslav children is safe-guarded, it should be left to the unfettered discretion of the occupant to replace Yugoslav education by Italian education.”

“It is the rationale of Art. 56 to protect spiritual values. And in order to afford this protection to spiritual values the provision protects the property of institutions dedicated to public worship, charity, education, science and art as a means to a certain end; to make public worship, charity, education, science and art possible even under belligerent occupation. If the belligerent occupant must not confiscate, seize, destroy, or willfully damage the property of educational institutions, he is the less entitled to interfere with the spiritual and intellectual life of the schools, the only possible legitimate exception being considerations of the safety of the occupying forces.”

The Committee concluded:

“In the case of Nicoletti (No. 20) who is described as Educational Trustee, it appears that he was a kind of Commissioner in charge of the administration and Italianization of the schools in the district. In his case it seems to be conceivable to fasten upon him the individual responsibility for the whole Italianization scheme. The case of the three other persons who were mainly teaching personnel, seems prima facie to be different.”

Denationalization through Germanization was also taking place during World War II. “Within weeks of the fall of France, Alsace-Lorraine was annexed and thousands of citizens deemed too loyal to France, not to mention all its ‘alien-race’ Jews and North African residents, were unceremoniously deported to Vichy France, the southeastern section of the country still under French control. This was done in the now all too familiar manner: the deportees were given half an hour to pack and were deprived of most of their assets. By the end of July 1940, Alsace and Lorraine had become Reich provinces. The French administration was replaced and the French language totally prohibited in the schools. By 1941, the wearing of berets had been forbidden, children had to sing ‘Deutschland über Alles’ instead of ‘La Marseillaise’ at school, and racial screening was in full swing.” Lynn H. Nicholas, Cruel World: The Children of Europe in the Nazi Web (2005), 277.

In 1906, the United States, as the occupying State, instituted a plan of Americanization in the Hawaiian Islands. The objective was to erase any and all national consciousness of the Hawaiian Kingdom amongst the school children in the Hawaiian Islands. The Hawaiian language was banned and American patriotism was taught in the public schools. The policy was established to counter the strong Hawaiian nationalism and opposition to American annexation as reported by the San Francisco Call newspaper, Strangling Hands Upon a Nation’s Throat (1897), Hawaii’s Last Struggle for Freedom (1897), and Passing of Hawaii as a Nation (1898). Americanization was carried out on a massive scale across the islands by inculcating American patriotism into the hearts of the school children and have them recite on a daily basis, ““We give our heads and our hearts to God and our Country! One Country! One Language! One Flag!”

The policy of Americanization bore a striking resemblance to Italianization and Germanization that took place during World War II, but where the German and Italian occupations only lasted six years (1939-1945), the American occupation of the Hawaiian Kingdom (1898-present) has gone uninterrupted for 116 years. What Germany and Italy failed to accomplish in six years, the United States was nearly successful at 116 years.

Today, there is no clear distinction made between the occupying State and the occupied State, as was the case between Yugoslavia and Italy or France and Germany during World War II. This was the case, however, when the United States military occupation began in 1898 during the Spanish-American War. But because of the prolonged nature of the occupation and the nearly successful program of denationalization, this clear distinction between the occupier and the occupied soon dissipated and our own people have unknowingly become the ones maintaining the policy of Americanization at the present.

The revitalization of the Hawaiian language and culture is in response to years of Americanization and the fact that the majority of the inhabitants of the Hawaiian Islands, to include the aboriginal Hawaiian, do not speak the Hawaiian language and know very little of Hawaiian culture is unequivocally the evidence of the war crime of “denationalization.”

War crimes are actions taken by individuals, whether military or civilian, that violates international humanitarian law, which includes the 1907 Hague Conventions, 1949 Geneva Conventions and the Additional Protocols to the Geneva Conventions. War crimes include “grave breaches” of the 1949 Fourth Geneva Convention, which also applies to territory that is occupied even if the occupation takes place without resistance. Protected persons under International Humanitarian Law are all nationals who reside within an occupied State, except for the nationals of the Occupying Power. The International Criminal Court and States prosecute individuals for war crimes.

War Crimes: Unlawful deportation or transfer or unlawful confinement

According to the United States Department of Justice, the prison population in the Hawaiian Islands in 2009 was at 5,891. Of this population there were 286 aliens. Two paramount issues arise—first, prisoners were sentenced by courts that were not properly constituted under Hawaiian Kingdom law and/or the international laws of occupation and therefore were unlawfully confined, which is a war crime; second, the alien prisoners were not advised of their rights in an occupied State by their State of nationality in accordance with the 1963 Vienna Convention on Consular Relations. Compounding the violation of alien prisoners rights under the Vienna Convention, Consulates located in the Hawaiian Islands were granted exequaturs by the government of the United States of America by virtue of United States treaties and not treaties between the Hawaiian Kingdom and these foreign States.

In 2003, the United States of America through its political subdivision, the State of Hawai‘i, allocated funding to transfer up to 1,500 prisoners to private corrections institutions in the United States of America. By June of 2004, there were 1,579 Hawai‘i inmates in these facilities. Although the transfer was justified as a result of overcrowding, the government of the State of Hawai‘i did not possess authority to transfer, let alone to prosecute in the first place. Therefore, the unlawful confinement and transfer of inmates are war crimes.

War crimes are actions taken by individuals, whether military or civilian, that violates international humanitarian law, which includes the 1907 Hague Conventions, 1949 Geneva Conventions and the Additional Protocols to the Geneva Conventions. War crimes include “grave breaches” of the 1949 Fourth Geneva Convention, which also applies to territory that is occupied even if the occupation takes place without resistance. Protected persons under International Humanitarian Law are all nationals who reside within an occupied State, except for the nationals of the Occupying Power. The International Criminal Court and States prosecute individuals for war crimes.

War Crimes: Willfully depriving a protected person of the rights of fair and regular trial

Since January 17, 1893, there have been no lawfully constituted courts in the Hawaiian Islands whether Hawaiian Kingdom courts or military commissions established by order of the Commander of the United States Pacific Command in conformity with the 1907 Hague Convention, IV, the 1949 Geneva Convention, IV, and the international laws of occupation.

The Federal courts and State of Hawai‘i courts in the Hawaiian Islands derive their authority from the Hawai‘i Statehood Act, which is a statute enacted by the United States Congress in 1959. Section 9 states that “the United States District Court for the District of Hawaii established by and existing under title 28 of the United States Code shall henceforth be a court of the United States with judicial power derived from article III, section 1, of the Constitution of the United States;” and Section 12 provides that “State courts shall be the successors of the courts of the Territory [of Hawai‘i] as to all cases arising within the limits embraced within the jurisdiction of such courts, respectively, with full power to proceed.”

The United States Constitution and Congressional laws have no legal effect beyond the borders of the United States. According to the United States Supreme Court in U.S. v. Curtiss-Wright Export Corp., 299 U.S. 304, 318 (1936), “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. As a member of the family of nations, the right and power of the United States in that field are equal to the right and power of the other members of the international family.” Without a treaty of cession, these Courts cannot claim to have any authority in the territory of a foreign State, and, therefore, they are not properly constituted to give defendant(s) a fair and regular trial whether in civil or criminal proceedings.

International law also provides limitations to the exercise of jurisdiction. The sovereignty of an independent state is territorial and international law provides for its restrictions and exceptions. In The Lotus case, the Permanent Court of International Justice stated, “Now the first and foremost restriction imposed by international law upon a State is that—failing the existence of a permissive rule to the contrary—it may not exercise its power in any form in the territory of another State. In this sense jurisdiction is certainly territorial; it cannot be exercised by a State outside its territory except by virtue of a permissive rule derived from international custom or from convention (treaty).” The Court continued, “In these circumstances, all that can be required of a State is that it should not overstep the limits which international law places upon its jurisdiction; within these limits, its title to exercise jurisdiction rests in its sovereignty.”

In 2006, the United States Supreme Court addressed the issue of whether or not the military courts at Guantanamo Bay were lawfully established. The case was Hamdan v. Rumsfeld, 548 U.S. 557. The Court relied on the International Committee of the Red Cross that defines a “regularly constituted court” as a court “established and organized in accordance with the laws and procedures already in force in a country.” Article 3 of the 1949 Geneva Convention, IV, prohibits “the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples.” The Federal courts and State of Hawai‘i courts were not established “in accordance with the laws and procedures” of the Hawaiian Kingdom nor was it regularly constituted under the international laws of occupation, and therefore was not “regularly constituted” under any of the above standards.

Only a “regularly constituted court” may pass judgment, and when a court is not “regularly constituted,” the proceedings that would lead to a judgment imposed by it would not only be extrajudicial, but would also constitute a war crime.  Enforcements of these judgments would also constitute war crimes because the judgments themselves are unlawful. In Hamdan, Justice Kennedy concluded that a court that is not regularly constituted could not provide any guarantees of a fair trial.

In a civil case hearing that came before Judge Glenn S. Hara, Wells Fargo Bank, N.A., vs. Elaine E. Kawasaki, et al., civil no. 11-1-106, in the Circuit Court of the Third Circuit, State of Hawai‘i, on June 15, 2012, Mr. Kaiama, Esq., provided special appearance for Defendant Elaine E. Kawasaki on a motion to dismiss for lack of subject matter jurisdiction based on two executive agreements entered into between U.S. President Grover Cleveland and the Hawaiian Kingdom’s Queen Lili‘uokalani in 1893. The transcripts of the case fully layout the argument presented by Kaiama.

After arguing the merits of the case, Kaiama states, “I have now been arguing, Your Honor, this motion before judges of the courts of the circuit court and district court throughout the State of Hawai‘i, and nearly—and probably over 20 times, and in not one instance has the plaintiff in the cases challenged the merits of the executive agreement or that the executive agreements have been terminated. Because we believe, respectfully, again, Your Honor, they cannot.” He continues to argue that “it’s irrefutable that these are executive agreements and preempts state law, …which is the state statute that plaintiff relies on in their complaint seeking to confer jurisdiction upon that court,” and “once we have met our burden [of proof], the court cannot have no other, we believe, no other recourse but to dismiss the complaint.” Unable to deny the evidence, Judge Hara replies, “what you’re asking the court to do is commit suicide, because once I adopt your argument, I have no jurisdiction over anything. Not only these kinds of cases…, but jurisdiction of the courts evaporate. All of the courts across the state from the supreme court down, and we have no judiciary. I can’t do that.”

Two issues resonate from Judge Hara’s statement: first, he’s admitting to the veracity of the evidence; and, secondly, he knowingly and deliberately denied the Defendant, Ms. Elaine Kawasaki, and fair and regular trial, and allowed the Plaintiff, Wells Fargo Bank, to proceed to unlawfully seize upon her home. Unfair trials can lead to other crimes under the Court’s jurisdiction that include appropriation of property, both real and personal, which is also called pillaging, and unlawful confinement.

Kawasaki provided notice to Wells Fargo Bank of a defect in her fee-simple title as a result of the 1893 overthrow of the Hawaiian government, and for Wells Fargo Bank to file an insurance claim with the title insurance company in order to pay off the debt owed. Kawasaki was required by the lender to purchase a lender’s title insurance policy at escrow to protect the lender and have the debt paid off if there exists a defect in the title, which would render the mortgage invalid. A foreclosure process is directly tied to a valid mortgage, and if the mortgage is invalid there can be no foreclosure. Wells Fargo Bank disregarded Kawasaki’s notice and proceeded with the foreclosure in a court that was not regularly constituted.