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.