We are now at 131 years of an American occupation of the Hawaiian Kingdom. If the American military in Hawai‘i complied with the international law of occupation when Queen Lili‘uokalani conditionally surrendered to the United States on January 17, 1893, the occupation would not have lasted 131 years. Consequently, everything since 1893 that derives from American authority, that would otherwise be valid within U.S. territory, is invalid and void in Hawaiian territory because the United States has not been vested with Hawaiian sovereignty by a treaty. U.S. Army Field Manual 27-10, which regulates military occupations of foreign countries states:

Being an incident of war, military occupation confers upon the invading force the means of exercising control for the period of occupation. It does not transfer the sovereignty to the occupant, but simply the authority or power to exercise some of the rights of sovereignty.

The function of the military government is to provisionally administer the laws of the occupied State until a peace treaty comes into effect where the occupation comes to an end. Paragraph 62 of U.S. Army Field Manual 27-10 states that “Military government is the form of administration by which an occupying power exercises governmental authority over occupied territory.”

In the Island of Palmas arbitration, which was a dispute between the United States and the Netherlands, the arbitrator explained that “Sovereignty in the relations between States signifies independence. Independence in regard to a portion of the globe is the right to exercise therein, to the exclusion of any other State, the functions of a State.” And in the S.S. Lotus case, which was a dispute between France and Turkey, 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 a convention [treaty].

The permissive rule under international law that allows the United States to exercise authority over the territory of the Hawaiian Kingdom is Article 43 of the 1907 Hague Regulations and Article 64 of the Fourth Geneva Convention, that mandates the occupant to establish a military government to provisionally administer the laws of the occupied State until there is a treaty of peace. For the past 131 years, there has been no permissive rule of international law that allows the United States to exercise any authority in the Hawaiian Kingdom, which makes the occupation illegal under international law.

The only way to bring order to this calamity is by establishing a military government of Hawai‘i where the military governor has centralized command and control allowable under the law of occupation in order to make command decisions. We are at the cusp of transitioning the State of Hawai‘i into a Military Government of Hawai‘i. It is not a matter of “if” but rather “when.” It is also not a question of “choice” but rather a “duty” that has profound ramifications. A duty is a legal obligation called duty bound.

The current practice of the United States military is that it is the responsibility of the Army to establish a military government to preside over occupied territory. Not the Navy, Marines or the Air Force. U.S. Department of Defense Directive 5100.1 states that it is the function of the Army in “[occupied] territories abroad [to] provide for the establishment of a military government pending transfer of this responsibility to other authority.” And U.S. Department of Directive 2000.13 states that the Army’s “Civil affairs operations include…[e]stablish[ing] and conduct[ing] military government until civilian authority or government can be restored.”

At the beginning of the twentieth century, the U.S. Army took steps to prepare for military occupations by publishing field manuals—FM 27-10, The Law of Land Warfare, FM 27-5, Civil Affairs Military Government, FM 3-57, Civil Affairs Operations, and FM 6-27, The Commander’s Handbook on the Law of Land Warfare.

Paragraph 3, FM 27-5, states that the “theater command bears full responsibility for [military government]; therefore, he is usually designated as military governor […], but has authority to delegate authority and title, in whole or in part, to a subordinate commander. In occupied territory the commander, by virtue of his position, has supreme legislative, executive, and judicial authority, limited only by the laws and customs of war and by directives from higher authority.”

In other words, the highest-ranking officer in the theater of occupied territory is duty bound to transform the civilian government of the occupied State into a military government that would be presided over by the Army theater commander to be called a “military governor.” The civilian government of the occupied State remains intact, except for the legislative branch, because the military governor “has supreme legislative, executive, and judicial authority, limited only by the laws and customs of war and by directives from higher authority.”

If the theater commander refuses to establish a military government, he can be held accountable by court martial or by non-judicial punishment under the Uniform Code of Military Justice (UCMJ). There are two offenses under the UCMJ that would collectively apply. The first offense is willfully disobeying a regulation where the maximum punishment is dishonorable discharge and up to 2 years in prison. The second offense is willful dereliction of duty that carries a maximum punishment of bad conduct discharge and up to 6 months in prison. Collectively, the theater commander could face a total of 2.5 years in prison.

For the occupied Government, there is a duty to protect the population from war crimes committed on occupied territory. Rule 158 of the International Committee of the Red Cross Study on Customary International Humanitarian Law specifies that “States must investigate war crimes allegedly committed by their nationals or armed forces, or on their territory, and, if appropriate, prosecute the suspects. They must also investigate other war crimes over which they have jurisdiction and, if appropriate, prosecute the suspects.”

Under international criminal law, the willful failure to establish a military government is a violation of article 43 of the 1907 Hague Regulations and article 64 of the Fourth Geneva Convention. This is especially egregious when the failure to establish a military government to administer the laws of the occupied State allows the imposition of the laws of the occupied State within a foreign country’s territory is the war crime of usurpation of sovereignty. So, the willful refusal to establish a military government is the war crime by omission.

To prepare for the transition to a military government, the Council of Regency, on October 10, 2014, proclaimed provisional laws for the Hawaiian Kingdom in order to bring the laws of 1893 up to date. The proclamation stated that all Federal, State of Hawai‘i and County laws shall be the provisional laws of the Hawaiian Kingdom so long as these laws do not run “contrary to the express, reason and spirit of the laws Hawaiian Kingdom.” On August 1, 2023, the Minister of the Interior published a memorandum on the formula to be applied in determining which American laws can be considered provisional laws of the kingdom.

After the Council of Regency was made aware that the State of Hawai‘i Attorney General instructed Major General Kenneth Hara to ignore the call to establish a military government, Dr. Keanu Sai, as Head of the Royal Commission of Inquiry sent a letter on June 22, 2024, to the Army National Guard Staff Judge Advocate, Lieutenant Colonel Phelps. The letter opened with:

It has been brought to my attention, that State of Hawai‘i Attorney General Anne E. Lopez has instructed Major General Kenneth Hara and Brigadier General Stephen Logan to ignore my efforts in calling upon MG Hara to perform his military duty of transforming the State of Hawai‘ into a military government. This baseless statement by Mrs. Lopez has criminal repercussions for herself and MG Hara for the war crime by omission. She has no lawful authority in the Hawaiian Islands because American laws do not apply here. There is no treaty of cession whereby the Hawaiian Kingdom ceded its territorial sovereignty to the United States. Therefore, sovereignty remains in the Hawaiian Kingdom, which the Permanent Court of Arbitration (“PCA”) recognized in 1999 in Larsen v. Hawaiian Kingdom. The PCA recognized the continued existence of the Hawaiian Kingdom as a “State,” and the Council of Regency as its government. At the center of the international dispute was the unlawful imposition of American municipal laws.

This interference by a civilian of a clear military duty is a very serious matter in military law for MG Hara. For MG Hara to not perform his duty of establishing a military government, Lopez would have to show him clear and irrefutable evidence that the Hawaiian Kingdom does not exist as an occupied State under international law. She did not show any such evidence. In closing, the letter stated:

As a result of the continuing and ongoing violations of the law of armed conflict, the law of occupation, and Army regulations, the Royal Commission of Inquiry is left with no choice but to take this particular course of action in order to compel the performance of a military duty to transform the State of Hawai‘i into a military government under the law of armed conflict, the law of occupation, and Army regulations. At present, there are two scenarios for MG Hara.

FIRST SCENARIO: Since the public announcement by MG Hara that he will be retiring in October of 2024, the third element of the offense of dereliction of duty—willfulness would appear to have been met. As a result, the Royal Commission of Inquiry (“RCI”) will publish a war criminal report on MG Hara for the war crime by omission for his failure to transform the State of Hawai‘i into a military government. Mrs. Lopez would be included in this report as an accomplice.

After the RCI’s publication, BG Logan to assume the chain of command to perform the duty by establishing a military government according to the Council of Regency’s operational order dated August 14, 2023. BG Logan shall reach out to the 322nd Civil Affairs Brigade, Fort Shafter, to advise him on the function of a military government. It is a function of Civil Affairs to advise commanders on military governments. BG Logan will also hold MG Hara accountable for dereliction of duty by court-martial or nonjudicial punishment, under Article 15, UCMJ. The information in the RCI war criminal report will be the evidential basis for punishment. To not hold MG Hara accountable for dereliction of duty sets the wrong standard for the entire National Guard.

SECOND SCENARIO: To relieve MG Hara from criminal culpability and for the RCI to refrain from publishing a war criminal report, MG Hara must delegate his authority to BG Logan to perform his duty, and, thereafter, MG Hara immediately resigns. This delegation of authority is authorized under paragraph 3, Army Field Manual 27-5, that states the “theater command bears full responsibility for [military government]; […] but has authority to delegate authority and title, in whole or in part, to a subordinate commander.” This regulation provides a window for MG Hara to delegate authority because he is currently the theater commander. The second scenario is time sensitive. When the RCI concludes, with evidence, that MG Hara refuses to delegate authority, the first scenario will be implemented.

Should BG Logan be derelict of his duty, a war criminal report on him will be drafted and published, and the next officer in the Army National Guard’s chain of command, Colonel David Hatcher II, commander of the 29th Infantry Combat Brigade, will assume the chain of command. This process of publishing war criminal reports will continue down the chain of command to the last enlisted soldier in the Hawai‘i Army National Guard, after, which, it will begin anew with the chain of command for the Hawai‘i Air National Guard down to the last enlisted soldier.

The American occupation is now at 131 years, which is unacceptable. I provided MG Hara and yourself more than enough time to falsify the information and legal basis for the American occupation and the continued existence of the Hawaiian Kingdom under international law. Falsification would have rendered MG Hara without this military duty to perform. Neither yourself nor the State of Hawai‘i, to include Mrs. Lopez, has ever provided rebuttable evidence as to the presumption of the continuity of the Hawaiian State under international law. Because he is aware of his duty under military law, MG Hara, as the theater commander, is directly responsible for all the war crimes being committed by members of the State of Hawai‘i. There are no statutes of limitations for the prosecution of war crimes. The RCI’s published war criminal reports provides the necessary evidence of the actus reus and mens rea for prosecution. As the Staff Judge Advocate, I recommend that you advise your senior military leadership not to take this communication lightly. I am including, with this letter, an RCI memorandum on bringing the American occupation of Hawai‘i to an end by establishing a American military government.

I am also attaching two recent law articles that were published by the International Review of Contemporary Law by myself as Head of the RCI, and by Professor Federico Lenzerini as the Deputy Head of the RCI. I am including these documents to inform you of the military duty to establish a military government and the legal consequences for not performing the military duty.

Attached to the letter to LTC Phelps was an RCI memorandum on bringing the American occupation of Hawai‘i to an end by establishing an American Military Government.