For 130 years the United States violated international law and the sovereignty of the Hawaiian Kingdom. These violations were concealed by a false narrative that the Hawaiian Islands became a part of the United States in 1898, which led to the establishment of the Territory of Hawai‘i in 1900, and then the State of Hawai‘i in 1959.
These three acts were done by congressional legislation, which have no effect beyond the borders of the United States. This is analogous to Congress enacting legislation that establishes an American government in Ottawa, Canada. Without a treaty where the Hawaiian Kingdom ceded its territory to the United States like the Mexican government ceded its northern territory to the United States in 1848, congressional laws have no effect within Hawaiian territory. This legal principle of United States law is a pulled grenade pin that renders these acts not only unlawful under international law but are also considered the war crime of usurpation of sovereignty during military occupation.
Usurpation of sovereignty during military occupation was listed as a war crime in 1919 report by the Commission on Responsibilities of the Paris Peace Conference that was established by the Allied and Associated Powers at war with Germany and its allies during World War I. The Commission was especially concerned with acts perpetrated in occupied territories against non-combatants and civilians. Usurpation of sovereignty during military occupation is the imposition of the laws and administrative policies and measures of the Occupying State over the territory of the Occupied State.
When the United States unlawfully overthrew the government of the Hawaiian Kingdom on January 17, 1893, the Hawaiian Kingdom continued to exist as a State, which the Permanent Court of Arbitration, in Larsen v. Hawaiian Kingdom, acknowledged in 1999. The law of occupation mandated the United States to establish a military government in order to temporarily administer the laws of the Hawaiian Kingdom until a treaty of peace comes into force.
In 1828, U.S. Chief Justice John Marshall, in American Insurance Company v. Canter, wrote that “the holding of conquered territory is mere military occupation, until its fate shall be determined at the treaty of peace. If it be ceded by the treaty, the acquisition is confirmed and the ceded territory becomes a part of the nation to which it is annexed, either on the terms stipulated in the treaty of cession or on such as its new master shall impose.” There is no treaty of cession between the Hawaiian Kingdom and the United States.
Because military occupations do not last for long periods, the cornerstone of the law of occupation is to maintain the status quo of the occupied State. This means that the occupying State cannot impose its laws over occupied territory, change the governmental institutions of the occupied State, or transfer its own citizens into the occupied State. For the past 130 years, the United States did exactly that, which complicates the situation today. However, the laws of occupation and the principles of necessity are flexible enough to come up with a comprehensive plan of compliance. It is said that necessity is the mother of all inventions.
The first step is to identify what entity of the occupying State is responsible for establishing a military government. Is it the United States federal government or the State of Hawai‘i and its Counties? Article 42 of the 1907 Hague Regulations states that territory is occupied when it comes under the effective control of the occupying State, which triggers the law of occupation. Of the 4 million acres that comprise Hawaiian territory, the State of Hawai‘i is in effective control of 94%, while the United States federal government is in control of 6%. Having met the requirement of effective control of occupied territory, the State of Hawai‘i and not the federal government has the responsibility to established the military government to temporarily administer the laws of the Hawaiian Kingdom.
With a view to bringing compliance with international humanitarian law by the State of Hawai‘i and its Counties and recognizing their effective control of Hawaiian territory in accordance with Article 42 of the 1907 Hague Regulations, the Council of Regency proclaimed and recognized their existence as the administration of the occupying State on June 3, 2019.
The State of Hawai‘i and its Counties, under the laws and customs of war during occupation, can now serve as the administrator of Hawaiian Kingdom laws. Prior to the proclamation, the State of Hawai‘i and its Counties were established by virtue of U.S. Congressional legislation unlawfully imposed within Hawaiian territory, being the war crime of usurpation of sovereignty during military occupation. According to Professor Schabas, the action or conduct “of the offense of ‘usurpation of sovereignty’ would consist of the imposition of legislation or administrative measures by the occupying power that go beyond those required by what is necessary for military purposes of the occupation.”
The next step is to address the fact that Hawaiian Kingdom laws in 1893 are not up to date because of the non-compliance by the United States at the time of international law. Nevertheless, it is still a rule of international law that Hawaiian laws must be administered and not American laws, which is a war crime.
To address this issue, the Council of Regency on October 10, 2014, proclaimed provisional laws of the kingdom to be any and all American laws, whether federal, State of Hawai‘i or the Counties, that are not “contrary to the express, reason and spirit of the laws of the Hawaiian Kingdom prior to July 6, 1887, the international laws of occupation and international humanitarian law.” Accompanying the proclamation of provisional laws is a memorandum by the Chairman of the Council of Regency who provides a formula to be used when determining which American municipal laws can be the provisional laws of the kingdom.
In determining which American municipal laws shall constitute a provisional law of the kingdom, the following questions need to be answered. If any question is answered with “yes,” with the exception of question 5, then it is not to be considered a provisional law.
1. The first consideration begins with Hawaiian constitutional alignment. Does the American municipal law violate any provisions of the 1864 Constitution, as amended?
2. Does it run contrary to a monarchical form of government? In other words, does it promote a republican form of government.
3. If the American municipal law has no comparison to Hawaiian Kingdom law, would it be authorized under the Hawaiian Kingdom’s police power?
4. If the American municipal law is comparable to Hawaiian Kingdom law, does it run contrary to the Hawaiian statute?
5. Does the American municipal law infringe vested rights secured under Hawaiian law?
6. And finally, does it infringe the obligations of the Hawaiian Kingdom under customary international law or by virtue of it being a Contracting State to its treaties? The last question would also be applied to Hawaiian Kingdom laws enumerated in the Civil Code, together with the session laws of 1884 and 1886, and the Penal Code.
In his memorandum, the Chairman applied the formula to determine whether the State of Hawai‘i statutes on murder, manslaughter, and negligent homicide can be considered provisional laws of the kingdom. His conclusion was yes. The memo states that the State of Hawai‘i laws on murder, manslaughter and negligent homicide are not “’contrary to the express, reason and spirit of the laws of the Hawaiian Kingdom prior to July 6, 1887, the international laws of occupation and international humanitarian law.’ To the extent that the felony murder rule is omitted, the State of Hawai‘i law on murder would be consistent with the Hawaiian Kingdom law on murder.”
The final step is to draft a comprehensive plan of action for the State of Hawai‘i to transform itself into a military government to administer the laws of 1893 that are augmented with provisional laws while the State of Hawai‘i and its Counties are in effective control of Hawaiian territory. On April 7, 2023, the Chairman authored another memorandum on the role and function of the military government of Hawai‘i.
The memo first dispels with the American annexation of the Hawaiian Islands in 1898, the establishment of the Territory of Hawai‘i in 1900, and the changing of the name of the Territory to the State of Hawai‘i in 1959. Each of these acts stem from legislation by the United States Congress, which has no legal effect beyond the borders of the United States. The memo then addresses the law of occupation and the duty of a military government of the occupying State to administer the laws of the occupied State. The legal status of the State of Hawai‘i under international humanitarian law is then addressed.
Under international law, the State of Hawai‘i is not an American government but rather a civilian armed force of the occupying State. It can claim no authority under American law because the American law that established the State of Hawai‘i in 1959 has no effect outside of United States borders, and when it is imposed in Hawaiian territory it constitutes the war crime of usurpation of sovereignty during military occupation. However, according to the memo, “Article 1 of the 1907 Hague Regulations provides that the laws, rights and duties of war apply not only to the occupying State’s army but also to its civilian armed forces. In other words, the State of Hawai‘i can exist within the confines of international humanitarian law and not American municipal laws.”
The memo then addresses the role and function of a military government. Under the heading of Military Government, the memo explains that there “is a difference between military government and martial law. While both comprise military jurisdiction, the former is exercised over territory of a foreign State under military occupation, and the latter over loyal territory of the State enforcing. Actions of a military government are governed by international humanitarian law while martial law is governed by the domestic laws of the State enforcing it.”
The memo then explains that according to the practice of the United States when establishing a military government in foreign territory, that responsibility is the Army and not the Navy, Marines or Air Force. Military governments usually take over the governmental infrastructure of the occupied State and can augment certain aspects of the infrastructure in order to effectively carry out the mission of a military occupation. In the Hawaiian situation, the memo states that there are four “essential tasks set forth in the Hague and Geneva Conventions […] as follows: (1) Restore and ensure public order and safety, (2) provide medical care, supplies and subsistence, (3) ensure the care and education of children, [and] (4) respect private property and properly manage public property.”
Because the Army is responsible for this function of the occupying State, it “took steps to prepare for military occupations by publishing two field manuals—FM 27-10, The Law of Land Warfare, and FM 27-5, Civil Affairs Military Government. Chapter 6 of FM 27-10 covers military occupation. Section 355 of FM 27-10 states, ‘[m]ilitary occupation is a question of fact. It presupposes a hostile invasion, resisted or unresisted, as a result of which the invader has rendered the invaded government incapable of publicly exercising its authority, and that the invader has successfully substituted its own authority for that of the legitimate government in the territory invaded.’ FM 27-10 has been superseded by FM 6-27, The Commander’s Handbook on the Law of Land Warfare. Chapter 6 covers occupation.”
The State of Hawai‘i official with the duty and obligation to transform the State of Hawai‘i and the Counties into a military government by proclamation is the Adjutant General who is in charge of the Army and Air National Guard. The memo explains that the “Adjutant General is trained in Army doctrine and regulations, to include the 1907 Hague Regulations and the 1949 Fourth Geneva Conventions, for this type of a situation in occupied territory, where a civilian is not. The Adjutant General would be the military governor that presides over a military government.”
The memo makes reference to the 1893 proclamation by the provisional government as an example to use in drafting a proclamation today. “Although unlawful, the proclamation of 17 January 1893 by the so-called provisional government can be useful as to the wording of the military governor’s proclamation today because government officials continued in place with the exception of Queen Lili‘uokalani, her Cabinet, and the Marshal of the police force. The laws were also continued to be in effect. In the situation now, government officials would remain in place, with exceptions not in line with the law of occupation, and the laws would continue to be in effect as provisional laws together with Hawaiian Kingdom laws that existed prior to 1893. The military governor’s proclamation would, in a sense, be a reversal of the provisional government’s proclamation and in line with the law of occupation.”
Following the proclamation of a military government, the memo states, “The first order of business for the military government would be to disband the legislative bodies of the State of Hawai‘i and the Counties in order to stop the enactment of American municipal laws. The function of a military government is to administer the laws of the occupied State, which in this case include certain American municipal laws, as situations of fact, that have become provisional laws of the Hawaiian Kingdom in accordance with the formula to determine which American municipal laws can be considered provisional laws of the kingdom.”
The memo then states, “Second order of business is for the military governor to determine which American municipal laws can be considered the provisional laws of the Hawaiian Kingdom during the American military occupation that augments and not replaces the Civil Code, together with the session laws of 1884 and 1886, and the Penal Code. These provisional laws will need to be made public by proclamation of the military governor. Paragraph 6-53 of FM 6-27 states that “the population of the occupied territory must be informed of any alteration, suspension, or repeal of existing laws and of the enactment of new laws.” The memo concludes with:
In light of the legal opinion on war crimes related to the United States belligerent occupation of the Hawaiian Kingdom by Professor Schabas on 25 July 2019, a renowned jurist and expert on international criminal law, genocide and war crimes, and the oral statement given to the United Nations Human Rights Council on 22 March 2022 by two NGOs—International Association of Democratic Lawyers and the American Association of Jurists that war crimes are being committed in Hawai‘i, it should warrant the Adjutant General to take this matter seriously because of the legal consequences of the United States’ violation of international humanitarian law for over a century.
The only way to stop war crimes from being committed with impunity by State of Hawai‘i and County officials is to comply with the law of occupation. In Army jargon, this is a command decision to be made at the top of the chain of command.
Very interesting, I need to read it again.
How do we get the occupying powers military (via the Adjutant General) to carry out & enforce this plan?
Aloha P., by reading between the lines I would have to presume the AHKG started the process or is about to start the process to make him aware of the occupation and his duty as said officer to be in compliance with his legal requirements under FM 27-5, FM 6-27, the G & H conventions and humanitarian law. Now mens rea can be determined. You can show intention of knowingly or willfully committing a crime. It goes to show his state of mind if he chooses not to comply with what is legally required of him. I’m beginning to see the logic in identifying what entity of the occupying State is responsible for establishing a military government. Now let’s go further down this rabbit whole and ask why? My guess would be that if this is going somewhere you want to take the right person that needs to be there. MHO
So essentially you’re saying this isn’t about getting the ball moving on deoccupation necessarily, although that would be nice… and shocking (lol) if they complied, it’s more so a strategic move so no one can claim to have not known and therefore must face the music when the time comes. Correct?!
A command decision to be made at the top of the chain of command means the ‘Commander in Chief’ which is the President. He/she would have to authorize and order the establishment of a military government over the Hawaiian Islands. Such an act would mean that the US would either explicitly or implicitly acknowledge the occupation which I find to be a stretch but a game changer nonetheless should they have the moral rectitude to do so.
On the other hand, and because it is such a stretch and requires the US to act on it’s own or be compelled to, we need to expose the US for fraudulently misrepresenting our territory in the maladministration of the UN plebiscite for Statehood. On this front, Leon Siu has ran the ball under the Decolonization Alliance for more than a decade and seeks to show the world the US has a pattern of commiting fraud wantonly for its own gain and profits. When he exposes the US at the UN, our national self determination can be executed and the top down approach will be juxtaposed against the bottom up plebiscite. And this is the crux of the matter, are we to be controlled by a legal regime and military that is founded on the doctrine of Discovery or are we to be self determining!
Lopaka, I don’t agree with your assessment that the “Commander in Chief” makes the command decision to establish a military gov’t in occupied territory. That is not how the Chain of Command works in a military operation in occupied territory. Pleas cite the military operating procedure to justify your statement and be specific. Because I don’t see any and it would make no sense. Of all the past and present U.S. occupations the Highest Military commander in the occupied territory is at the head of the Chain of Command when dealing with occupied territory. There is a big difference in being the “Commander in Chief” of the U.S. armed forces and being the head of the “Chain of Command” of a Military operation.
Not seeking your agreement kekoa, just sharing what I know and have experienced. No military operation can commence without authority from the Commander in Chief via the advice and consent of Congress. Just the same, no US General/Commander can commandeer any US Command including the US Indo-Pacific Command.
As for military standard operating procedures and protocols such as in US Army Field Manuals (FM), such are merely guidance, not necessarily self executing and therefore requires oversight. For instance, all the FMs
that were mentioned in this article had applied during the occupation of Iraq when I served but just cause they did doesn’t mean that they were complied with. The disgrace of US soldiers treatment of prisoners in Abu Ghraib is a prime example. And who monitored those soldiers…certainly not their commanders or Congress! More importantly, who held them accountable…and who pardoned them? Thus US compliance to the strict letter of the laws of occupation as prescribed in their FM is a nonstarter. We cannot trust the US military to comply with international laws as they have no proof of evidence or record of ever doing so, at least not in any of the wars they fought over the last century and a half.
Moreover, the US is founded upon the doctrine of discovery. It would be extremely idiotic for Hawaiians not to protest a military government by a State that was constituted on the premise that natives are savages in order to claim ownership of their land by discovery, and which might I add has, thru force and fraud, been pillaging and plundering our ancestors and homelands for over a century. Perhaps even incompetent & crazy!
You said “No military operation can commence without authority from the Commander in Chief via the advice and consent of Congress.” … but isn’t that exactly what happened when we were invaded by the US on 1-16-1893? The US military (needlessly) invaded our friendly neutral state in supposed “protection” of U.S. citizens… without the knowledge or consent of either President Cleveland (The commander in chief) or US Congress.
Reading this made my head spin How much times I had to go back and read the sentence again. I love this but hard to understand Please help us
Basically, the Council’s plan to transform the State of Hawaii into a military government as publicly proclaimed in 2014 pursuant to the Council’s Strategic Plan is coming to a head. The latest memo released provides opinions, position statements and comments of the council backed by sources. It directly calls for the attention of the Adjutant General which was informed of the matter over a decade ago by Keanu in a presentation provided to the AG staff. In essence, the Council has fired it’s first shot and is turning on the heat with this memo to the powers that be.
BUT, Power, Greed, and Control, last ONLY temporarily ……only TRUTH, JUSTICE and LOVE+PEACE is Permanent, Forever! Amen, Alleluia! Mahalo Ke Akua! Happy Easter, Everyone! —He Is RISEN-the OHANA KUPAU, Hana, Pukuilua-Maui-2023.
Wow, you did a lot of work in writing and citing sources. Mahalo for the sources :). I am looking forward to reading the 27 page, memo!
My first thought was, I wonder how Major General Hara will take the information, and how much, if any, realpolitik will motivate his actions?
I am thinking that he would need a moral and or political incentive to initiate a change that would receive world wide attention in a few hours, which would definitely put him in the limelight.
Presuming he that he reads the memo, at least he’ll have information that he can use if and when a time may arrive for him to play a hand that would probably blind-side a lot of people. Exciting!
Keep the readers in the loop 🙂