The International Commission of Inquiry in Incidents of War Crimes in the Hawaiian Islands—The Larsen Case that stems from the Larsen v. Hawaiian Kingdom arbitration held at the Permanent Court of Arbitration from 1999-2001, will be holding its first hearing on the grounds of ‘Iolani Palace at the Kana‘ina Building on January 16 and 17, 2018.
The hearing will be closed to the public, but the proceedings will be live streamed on the Internet. At the core of these proceedings will be the unlawful imposition of American laws that led to the unfair trial, unlawful confinement and pillaging of Lance Paul Larsen, a Hawaiian subject and victim of war crimes committed against him by the United States through its armed force—the State of Hawai‘i. These war crimes were committed in 1999.
These two days will mark 125 years of the American invasion of the Hawaiian Kingdom on January 16th and the conditional surrender of the Hawaiian government by Queen Lili‘uokalani on January 17th calling upon the President of the United States to investigate the unlawful actions taken by its diplomat who ordered the landing of U.S. troops. While in the Palace, the Queen drafted the following conditional surrender to the United States:
After investigating the overthrow of the Hawaiian government, President Cleveland notified Congress on December 18, 1893, that the “military demonstration upon the soil of Honolulu was of itself an act of war.” Cleveland noted “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 double cartridge belts filled with ammunition and with haversacks and canteens, and were accompanied by a hospital corps with stretchers and medical supplies.” He then concluded that by “an act of war, committed with the participation of a diplomatic representative of the United States and without authority of Congress, the Government of a feeble but friendly and confiding people has been overthrown.”
Under international law, when a Head of State concludes that an act of war was committed by its military on foreign soil it changes the state of affairs from a state of peace to a state of war. According to McDougal and Feliciano, authors of “The Initiation of Coercion: A Multi-temporal Analysis,” 52 American Journal of International Law (1958) p. 247, a state of war “automatically brings about the full operation of all the rules of war and neutrality.” And, according to Venturini, author of “The Temporal Scope of Application of the Conventions,” in Andrew Clapham, Paola Gaeta, and Marco Sassòli (eds), The 1949 Geneva Conventions: A Commentary (2015), p. 52, if “an armed conflict occurs, the law of armed conflict must be applied from the beginning until the end, when the law of peace resumes in full effect.”
Koman, author of The Right of Conquest: The Acquisition of Territory by Force in International Law and Practice (1996), p. 224, states that “the laws of war … continue to apply in the occupied territory even after the achievement of military victory, until either the occupant withdraws or a treaty of peace is concluded which transfers sovereignty to the occupant.” In the Tadić case, decision on the Defense Motion for Interlocutory Appeal on Jurisdiction (Appeals Chamber), October 2, 1995, §70, the International Criminal Court for the Former Yugoslavia indicated that the laws of war—international humanitarian law—applies from “the initiation of … armed conflicts and extends beyond the cessation of hostilities until a general conclusion of peace is reached.”
The political determination by President Cleveland, regarding the actions taken by the military forces of the United States since January 16, 1893, was the same as the political determination by President Roosevelt regarding actions taken by the military forces of Japan on December 7, 1945 in its attack of Pearl Harbor. On December 8, 1941, President Roosevelt notified Congress:
“Yesterday, December 7th, 1941—a date which will live in infamy—the United States of America was suddenly and deliberately attacked by naval and air forces of the Empire of Japan. The United States was at peace with that nation… [and] since the unprovoked and dastardly attack by Japan on Sunday, December 7th, 1941, a state of war has existed between the United States and the Japanese Empire.”
Both political determinations by these Presidents created a “state of war” for the United States under international law. Japan entered into a peace treaty in 1951, which came into effect the following year. However, there is no treaty of peace between the Hawaiian Kingdom and the United States. Consequently, the United States was bound by customary international law to administer the laws of the Hawaiian Kingdom until a peace treaty has been negotiated. After Japan signed a treaty of surrender in 1945, the United States occupied Japan until 1952 whereby a military government was formed, with General MacArthur as its military governor, and who administered Japanese law and not American law.
The deliberate failure by the United States to administer Hawaiian Kingdom law has led to the unlawful imposition of American laws in the Hawaiian Kingdom that formed the basis of the dispute between Lance Larsen, a Hawaiian subject, and the Provisional Government of the Hawaiian Kingdom in Larsen v. Hawaiian Kingdom at the Permanent Court of Arbitration, The Hague, Netherlands. The unlawful imposition of American laws within Hawaiian territory is the war crime of “usurpation of sovereignty” of the occupied State. And the failure to comply with the law of occupation in the administration of Hawaiian Law according to Article 43 of the 1907 Hague Convention, IV, is a war crime as well.