On August 17, 2021, the International Association of Democratic Lawyers (IADL), the National Lawyers Guild (NLG) and the Water Protector Legal Collective (WPLC) filed a motion for permission to file an amicus curiae brief with the U.S. District Court for the District of Hawai‘i in support of the Hawaiian Kingdom’s complaint against U.S. President Biden and others for violations of international law, the commission of war crimes, and human rights violations in its prolonged occupation of the Hawaiian Kingdom. The motion was filed after the Hawaiian Kingdom filed its Amended Complaint on August 11, 2021.

An amicus curiae is “one (such as a professional person or organization) that is not a party to a particular litigation but that is permitted by the court to advise it in respect to some matter of law that directly affects the case in question.” The amicus brief was attached to the motion for the court to consider. In its request for permission, the IADL-NLG-WPLC stated:

1. The nongovernmental organizations whose views are represented in this brief have expertise in public international law, international human rights, humanitarian law, and norms regarding statehood, sovereignty, and self-determination.

2. Movants submit this brief to ensure a proper understanding and application of the international law and historical precedent relevant to this case regarding Article II occupation courts. The amici are additionally human rights organizations that have an interest in ensuring an informed interpretation of international human rights law in domestic jurisprudence.

In its complaint, the Hawaiian Kingdom takes the position that the Court must first transform itself into an Article II Court for it to have lawful jurisdiction because it is located in the territory of an occupied State, which is outside of the United States. According to Professor Bederman, in his law article Article II Courts,

What, then, is distinctive about a court established under Article II of the Constitution? First, executive tribunals are established without an act of Congress or any other form of legislative concurrence. Congressional intent concerning the status of a presidential court is irrelevant because no congressional approval is needed. The fact that the President alone can create an executive court places it outside the scope of Article III of the Constitution, which demands that Congress shall establish courts inferior to the Supreme Court. Second, the executive courts are created pursuant only to the power and authority granted to the President in Article II of the Constitution. In practice, the only presidential power that would call for the creation of a court is that arising from his responsibility as Commander in Chief of the armed services and his consequent war-making authority.

An Article II Court was established in Germany after hostilities ceased in 1945 during the Second World War. After the surrender, western Germany came under belligerent occupation by the United States, France, and Great Britain. The military occupation officially came to an end on May 5, 1955, with the entry into force of the Bonn Conventions between the Federal Republic of Germany and the three Occupying States. During the occupation, these Article II Courts had jurisdiction “over all persons in the occupied territory,” except for Allied armed forces, their dependents, and civilian officials, for “all offenses against the laws and usages of war, all offenses under any proclamation, law, ordinance, notice or order issued by or under the authority of the Military Government or of the Allied Forces, and all offenses under the laws of the occupied territory or any part thereof.”

Currently, the U.S. District Court is called an Article III Court. This designation refers to Article III of the U.S. Constitution, which is the judicial branch of the United States headed by a Supreme Court over Circuit Courts of Appeal, and District Courts established in the States of the Federal Union. The authority of the District Court for Hawai‘i comes from section 9(a) of the 1959 Hawai‘i Statehood Act that established the State of Hawai‘i.

In its complaint, the Hawaiian Kingdom explains that Congress cannot establish a U.S. District Court in a foreign country, the Hawaiian Kingdom, that has been under a prolonged occupation by the United States for over a century. The Congress can only enact laws that apply within the United States and not outside of it. According to a 1988 legal opinion by the U.S. Department of Justice regarding the annexation of Hawai‘i by a congressional joint resolution, “there is a serious question whether Congress has the authority either to assert jurisdiction over an expanded territorial sea for purposes of international law or to assert the United States’ sovereignty over it.”

On September 30, 2021, U.S. Magistrate Judge Rom Trader issued an Order granting permission for the IADL-NLG-WPLC to formally file their amicus curiae brief in order to aid the Court in its decision on transforming itself into an Article II Occupation Court. Judge Trader’s Order stated, “The Court, having carefully reviewed the Motion and attached brief, records and files in this case, and the applicable law, GRANTS the Motion.” The IADL-NLG-WPLC filed their amicus brief on October 6, 2021. In its brief, the IADL-NLG-WPLC stated:

The purpose of this brief is to bring to the Court’s attention customary international law norms and judicial precedent regarding Article II occupation courts that bear on the long-standing belligerent occupation of the Hawaiian Kingdom by the United States at issue in this case.

In assessing the legality of the US occupation of Hawai‘i, the Court should be cognizant of customary international law and international human rights treaties that are incorporated into domestic law by virtue of Article VI, section 2 of the Constitution (the “Supremacy Clause”). International law, which includes treaties ratified by the United States as well as customary international law, is part of U.S. law and must be faithfully executed by the President and enforced by U.S. courts except when clearly inconsistent with the U.S. Constitution or subsequent acts of Congress.

The question here is not whether the Hawaiian Kingdom has standing in an Article III court. The question is whether this court can sit as an Article II occupation court and whether the claims of the Hawaiian Kingdom can be redressed. The answer to both questions is yes.

The significance of this Order cannot be underestimated. The Court is seriously considering transforming itself into an Article II Occupation Court.