On December 17, 2013, Dr. David Keanu Sai and attorney Dexter Kaiama had a meeting with Stephane Ojeda, Deputy Head of Operations for the Americas for the International Committee of the Red Cross (ICRC) at the ICRC’s headquarters in Geneva, Switzerland. The ICRC is a humanitarian organization that has a specific mandate in the 1949 Geneva Conventions to provide protection for civilians during international conflicts and occupations. At a Conference on the Politics of Humanitarianism in the Occupied Territories held in Israel in 2004, Mr. Ojeda described the ICRC as “guardians of international humanitarian law” and independent of political influences.
The purpose of the meeting was to bring to the attention of the ICRC the severity of an illegal and prolonged occupation of the Hawaiian Islands and the violation of the rights of protected persons in the Hawaiian Islands as defined under the Fourth Geneva Convention and the Protocol (1) Additional to the Geneva Conventions of 12 August 1949, as well as United States citizens, who are not protected persons under the Convention and Protocol, but do have rights protected under Title 18, United States Code, §2441 (War Crimes Act) that has force in territories occupied by the United States. These violations include deprivation of a fair and regular trial, pillaging of real and personal property, and unlawful confinement. Mr. Kaiama has represented over 150 clients in both Federal and State of Hawai‘i courts of the Hawaiian Islands centering on these violations. The majority of these clients are also clients of Laulima Title Search & Claims, LLC, to include the company’s president, Mr. Kale Gumapac.
In addition, Mr. Kaiama submitted a formal request to the ICRC for assistance in accordance with Article 30 of the Fourth Geneva Convention. Article 30 states that “Protected persons shall have every facility for making application to…the International Committee of the Red Cross.” According to the ICRC, “The right in question is an absolute right, possessed by all protected persons both in the territory of a Party to the conflict and in occupied territory, whether they are not detained, or are internees, persons placed in assigned residence or detained. The communication may have a wide variety of causes, and it may take the form of an application, suggestion, a complaint, a protest, a request for assistance, etc.; it is not even necessary for an infringement of the Convention on the part of the authorities to have occurred. The right of communication may be exercised under all circumstances.” The Hawaiian Kingdom is a party to the Fourth Geneva Convention and Protocol 1.
After Dr. Sai provided a brief overview of Hawai‘i’s status as an independent State under an illegal and prolonged occupation, Mr. Ojeda admitted he was not aware of Hawai‘i’s history despite the ICRC’s working relationship with the United States Pacific Command. Mr. Ojeda was also fascinated by the online news coverage provided Big Island Video News on the subject of occupation and war crimes. Later that day, Mr. Ojeda contacted Dr. Sai and Mr. Kaiama in order to schedule a follow up meeting with the ICRC’s legal advisor, Dr. Tristan Ferraro, the following day. Dr. Ferraro’s legal expertise is on occupations.
The meeting with Dr. Ferraro lasted 2.5 hours, and, like Mr. Ojeda, Dr. Ferraro was not aware of Hawai‘i’s legal and political history and its place in international law. The focus of the meeting centered on Hawai‘i’s status as an independent State and whether or not international law provided for its continued existence or its demise. In order for the ICRC to exercise its mandate to ensure protection for civilians during a prolonged occupation as requested by Mr. Kaiama, the ICRC needs to determine how the intervention will take place. Dr. Ferraro assured Mr. Kaiama that he would complete his recommendation by March 2014, and report his conclusion to Mr. Ojeda. Dr. Sai provided his legal brief titled “The Continuity of the Hawaiian State and the Legitimacy of the acting Government of the Hawaiian Kingdom,” and other pertinent documents to assist Dr. Ferraro in his review. Dr. Sai specifically drew attention to a section of the legal brief that states:
“any claim to State continuity will be dependent upon the establishment of two legal facts: first, that the State in question existed as a recognized entity for purposes of international law at some relevant point in history; and, secondly, that intervening events have not been such as to deprive it of that status. It should be made very clear, however, that the issue is not simply one of ‘observable’ or ‘tangible facts,’ but more specifically of ‘legally relevant facts.’ It is not a case, in other words, simply of observing how power or control has been exercised in relation to persons or territory, but of determining the scope of ‘authority,’ which is understood as ‘a legal entitlement to exercise power and control.’ Authority differs from mere control by not only being essentially rule governed, but also in virtue of the fact that it is not always entirely dependent upon the exercise of that control.”
As the meeting came to a close, Dr. Sai provided Dr. Tristan the Hawaiian Kingdom’s formal request to have the ICRC assist in securing a Protecting Power that is neutral and not a party to the conflict in accordance with Article 5(3) & (5) of Protocol 1. A Protecting Power is a country that would serve as an intermediary between the Hawaiian Kingdom and the United States in order to assure compliance with the Fourth Geneva Convention, Protocol 1 and international humanitarian law. If the ICRC is not able to secure a Protecting Power it has to offer itself as a substitute. According to the ICRC, a timetable for a decision will be no later than 60 days.