There is confusion on the role and function of the International Criminal Court (ICC) regarding the prosecution of war crimes being committed in the Hawaiian Kingdom. What is its role on this subject?

The ICC was established in 2002 by a treaty called the Rome Statute. Although the United States participated in negotiations and signed the treaty that eventually established the court, President Bill Clinton did not submit the treaty to the Senate for ratification. President George W. Bush, in 2002, sent a diplomatic note to the United Nations Secretary-General that the United States intends not to ratify the treaty. There are currently 137 countries that signed the treaty, but there are 124 countries that are State Parties to the Rome Statute.

According to the Rome Statute, the 124 countries have committed to be the ones primarily responsible for the prosecution of war crimes called complementarity jurisdiction. Article 1 of the Rome Statute states that the ICC “shall be a permanent institution and shall have the power to exercise its jurisdiction over persons for the most serious crimes of international concern, as referred to in this Statute, and shall be complementary to national criminal jurisdictions.”

This principle of complementarity is implemented through Articles 17 and 53 of the Rome Statute. The principle states that the ICC will not accept a case if a State Party with jurisdiction over it is already investigating it or unless the State Party is unwilling or genuinely unable to proceed with an investigation. According to Human Rights Watch:

Under international law, states have a responsibility to investigate and appropriately prosecute (or extradite for prosecution) suspected perpetrators of genocide, war crimes, crimes against humanity, and other international crimes. The ICC does not shift this responsibility. It is a court of last resort. Under what is known as the “principle of complementarity,” the ICC may only exercise its jurisdiction when a country is either unwilling or genuinely unable to investigate and prosecute these grave crimes.

On November 28, 2012, the Hawaiian Kingdom acceded to the Rome Statute and deposited its instrument of accession with the United Nations Secretary-General in New York City the following month on December 12, 2012. Under the principle of complementarity and its responsibility to investigate war crimes committed in the Hawaiian Islands, the Royal Commission of Inquiry (RCI) was established by proclamation of the Council of Regency on April 17, 2019. According to Article 2 of the proclamation:

The purpose of the Royal Commission shall be to investigate the consequences of the United States’ belligerent occupation, including with regard to international law, humanitarian law and human rights, and the allegations of war crimes committed in that context. The geographical scope and time span of the investigation will be sufficiently broad and be determined by the head of the Royal Commission.

The RCI has already conducted 18 war criminal investigations and published these war criminal reports on its website. The failure of the State of Hawai‘i to transform itself into a U.S. military government to administer the laws of the Hawaiian Kingdom has put a temporary hold on prosecutions. However, once the U.S. military government is established, prosecutions will begin. As a result, the ICC does not have jurisdiction over the Hawaiian Islands to investigate war crimes because the RCI has already initiated its investigative authority and published its war criminal reports.

Under the principle of complementarity, the other State Parties to the Rome Statute could initiate prosecution proceedings for those persons who were the subjects of the RCI war criminal reports when these individuals enter the territory of a State Party.

CLARIFICATION: At first glance, it would appear that Major General Hara can escape criminal culpability by not transforming the State of Hawai‘i into a U.S. military government. This is incorrect because MG Hara is not the subject of a war criminal report by the RCI yet. However, he will be the subject of a war criminal report if he does not delegate full authority to Brigadier General Stephen Logan who must establish the military government by 12 noon on July 31, 2024.

If MG Hara is derelict in the performance of his duties by not delegating authority to BG Logan, he would be the subject of an RCI war criminal report for the war crime by omission. From the date of the publication of MG Hara’s war criminal report, BG Logan will have one week to transform the State of Hawai‘i into a military government.

If BG Logan is derelict in the performance of his duties to establish a military government, he would be the subject of an RCI war criminal report for the war crime by omission. From the date of the publication of BG Logan’s war criminal report, Colonel David Hatcher, Commander of the 29th Infantry Brigade, and who is next in the chain of command below BG Logan, will have one week to transform the State of Hawai‘i into a military government.

These chain of events will continue down the chain of command of the entire Hawai‘i Army National Guard, and possibly the Hawai‘i Air National Guard, until there is someone who sees the “writing on the wall” that he/she either performs their military duty or become a war criminal subject to prosecution.