Before war crimes can be alleged to have been committed in the Hawaiian Islands, there must be a state of war—an international armed conflict between the Hawaiian Kingdom and the United States. Black’s Law (1996), states, “For there to be a ‘war,’ a sovereign or quasi-sovereign must engage in hostilities (p. 1583).”
Professor Clapham, director of the Geneva Academy of International Humanitarian Law and Human Rights and professor in international law at the Geneva Graduate Institute, however, states that “the classification of an armed conflict under international law is an objective legal test and not a decision left to national governments or any international body, not even the UN Security Council.” As an international armed conflict is a question of fact, these facts must be objectively tested by the principles of international humanitarian law as provided in the 1907 Hague Conventions, the 1949 Geneva Conventions and its 1977 Additional Protocols.
The German occupations of Luxembourg from 1914-1918 during the First World War and from 1940-1945 during the Second World War occurred without resistance and were not wars in the technical sense, but, according to the Nuremburg trials, were wars of aggression against a neutral State—crimes against peace. In its judgment, vol. XXII, 452 (14 Nov. 1945-1 Oct. 1946), the Nuremburg Tribunal decreed, “The invasion of Belgium, Holland, and Luxembourg was entirely without justification [and] was carried out in pursuance of policies long considered and prepared, and was plainly an act of aggressive war (p. 452).”
The experience of both World Wars is what prompted international humanitarian law to replace the narrow term “war” with the more expansive term “armed conflict.” Armed conflicts include both hostilities between armed forces as well as occupations of a State’s territory that occurred without armed resistance, i.e. Luxembourg. This is why Article 2 of all four 1949 Geneva Conventions state that the Convention will also apply “to all cases of partial or total occupation of the territory of a High Contracting Party, even if the said occupation meets with no armed resistance.” War crimes are defined as grave breaches in the Conventions.
According to the International Committee of the Red Cross (ICRC) Commentary of the Fourth Geneva Convention (1958), this wording of Article 2 “was based on the experience of the Second World War, which saw territories occupied without hostilities, the Government of the occupied country considering that armed resistance was useless. In such cases the interests of protected persons are, of course, just as deserving of protection as when the occupation is carried out by force (p. 21).” According to Dr. Casey-Maslen in The War Report 2013 (2014), an international armed conflict exists “whenever one state uses any form of armed force against another, irrespective of whether the latter state fights back,” which “includes the situation in which one state invades another and occupies it, even if there is no armed resistance (p. 7).” The ICRC Commentary further clarifies that “Any difference arising between two States and leading to the intervention of members of the armed forces is an armed conflict within the meaning of Article 2, even if one of the Parties denies the existence of a state of war. It makes no difference how long the conflict lasts… The respect due to the human person as such is not measured by the number of victims (p. 20).”
Although the Conventions apply to Contracting State Parties, it is universally understood that the Conventions reflect customary international law that bind all States. On this subject, the Commentary clarifies that “any Contracting Power in conflict with a non-Contracting Power will begin by complying with the provisions of the Convention pending the adverse Party’s declaration (p. 24).” Even if a State should denounce the Fourth Convention according to Article 158, the denouncing State “would nevertheless remain bound by the principles contained in [the Convention] in so far as they are the expression of the imprescriptible and universal rules of customary international law (p. 625).”
“According to the Rules of Land Warfare of the United States Army,” in Professor Hyde’s Land Warfare (1918), “belligerent or so-called military occupation is a question of fact. It presupposes a hostile invasion as a result of which the invader has rendered the invaded Government incapable of publicly exercising its authority, and that the invader is in a position to substitute and has substituted his own authority for that of the legitimate government of the territory invaded (p. 8).” The armed conflict arose out of the United States’ belligerent occupation of Hawaiian territory in order to wage war against the Spanish in the Pacific without the consent from the lawful authorities of the Hawaiian Kingdom. Since the end of the Spanish-American War by the 1898 Treaty of Paris, the Hawaiian Kingdom has remained belligerently occupied and its territory was used as a base of military operations during World War I and II, the Korean War, the Vietnam War, the Gulf War, the Iraqi War, and the United States war on terrorism.
“A declaration of war,” says Oppenheim’s International Law, vol. 2, “is a communication by one State to another that the condition of peace between them has come to an end, and a condition of war has taken its place (p. 293);” and war is “considered to have commenced from the date of its declaration, although actual hostilities may not have been commenced until much later (p. 295).” While customary international law does not require a formal declaration of war to be made before international law recognizes a state of war, it does, however, provide notice to not only the opposing State of the intent of the declarant State, but also to all neutral States that a state of war has been established.
The Hawaiian Kingdom has again been drawn into another state of war as shown in the DPRK’s March 30, 2013 declaration of war, which stated, “It is self-evident that any military conflict on the Korean Peninsula is bound to lead to an all-out war, a nuclear war now that even U.S. nuclear strategic bombers in its military bases in the Pacific including Hawaii and Guam and in its mainland are flying into the sky above south Korea to participate in the madcap DPRK-targeted nuclear war moves.” The day before the declaration of war, DPRK’s Korean Central News Agency reported, Supreme Commander of the Korean People’s Army Marshal Kim Jong Un “signed the plan on technical preparations of strategic rockets of the KPA, ordering them to be on standby for fire so that they may strike any time the U.S. mainland, its military bases in the operational theaters in the Pacific, including Hawaii and Guam, and those in south Korea.” In response to the declaration of war, the BBC reported, “The US Department of Defense said on Wednesday it would deploy the ballistic Terminal High Altitude Area Defense System (Thaad) to Guam in the coming weeks.”
From an international law standpoint, the armistice agreement of July 27, 1953 did not bring the state of war to an end between North Korea and South Korea because a peace treaty is still pending. The significance of the DPRK’s declaration of war of March 30, 2013, however, has specifically drawn the Hawaiian Islands into the region of war because it has been targeted as a result of the United States prolonged occupation.
In light of the DPRK’s declaration of war, the Hawaiian Kingdom is situated in a region of war that places its civilian population, to include foreign nationals, in perilous danger similar to Japan’s attack of U.S. military forces situated in the Hawaiian Islands on December 7, 1941. According to Oppenheim, “The region of war is that part of the surface of the earth in which the belligerents may prepare and execute hostilities against each other (p. 237).” While neutral States do not fall within the region of war, there are exceptional cases, such as when a belligerent invades a neutral State, i.e. Luxembourg by Germany during World War I and II. The United States invasion of the Hawaiian Kingdom occurred during the Spanish-American War just 16 years before the German occupation of Luxembourg in 1914, and has since been prolonged.
What is rarely mentioned regarding the Japanese attack are civilian casualties, who numbered 55 to 68 deaths and approximately 35 wounded. According to Dr. Kelly, “It is not 100 percent clear, but it seems likely that most, if not all, of the casualties in civilian areas were inflicted by ‘friendly fire,’ our own anti-aircraft shells falling back to earth and exploding after missing attacking planes.”
The advancement of modern weaponry, which includes North Korea’s cyber warfare capability against Sony Pictures, far surpasses the conventional weapons used during the Japanese attack, and foreign governments should be concerned for the safety of their citizens that currently reside within the territory of the Hawaiian Kingdom who are afforded protection under international humanitarian law.
Furthermore, should the DPRK invade and occupy a portion or the entire territory of the Hawaiian Kingdom during the state of war it would nevertheless be bound by the Fourth Geneva Convention, as is the United States. The DPRK, United States and the Hawaiian Kingdom, are High Contracting Parties to the Fourth Geneva Convention. The DPRK ratified the Convention on August 27, 1957; the United States ratified the Convention on August 2, 1955; and the Hawaiian Kingdom acceded to the Convention on November 28, 2012, which was acknowledged and received by Ambassador Benno Bättig, General Secretariat of the Swiss Federal Department of Foreign Affairs, on January 14, 2013, at the city of Bern, Switzerland.
Under United States federal law, Title 18 U.S.C. §2441, a war crime is a felony and defined as any conduct “defined as a grave breach in any of the international conventions signed at Geneva 12 August 1949,” and conduct “prohibited by Article 23, 25, 27, or 28 of the Annex to the Hague Convention IV, Respecting the Laws and Customs of War on Land, signed 18 October 1907.” United States Army Field Manual 27-10, section 499, expands the definition of a war crime, which is applied in armed conflicts that involve United States troops such as the occupation of the Hawaiian Kingdom, to be “the technical expression for a violation of the law of war by any person or persons, military or civilian. Every violation of the law of war is a war crime.”
Mahalo for posting! Very informative.
Aloha AHKG, this is good information and a wake up call to all us HK subjects and resident aliens. Documentation of all war crimes in Hawaii is the key. The Geneva Academy of Humanitarian Law and Human Rights 2013 War Report noted allegations of occupation of Hawaii by the USA. They are now actively investigating those allegations and will come out with a full report. One of the catagories in the investigation consists of war crimes. All victims must come forward and document the war crimes by filing a fromal complaint with the USPACOM and ICC. These documented complaints can now become part of the record for the War Report investigation. This also becomes evidence that the USPACOM has knowledge of the war crimes and factual basis of the occupation. Not like they don’t already know but this is an element that is needed to prosecute an individual for war crimes. This documentation will also be readily available to the next person that will take command over the USPACOM. Because of all the documentation he or she cannot claim ignorance. Hopefully he/her will honor their oath and their duty not to violate the United States Army Field Manual 27-10, Title 18 USC, Geneva Conventions, Hauge Regulations and or our Humanitarian rights. If the USPACOM or ICC are not actively investigating or prosecuting your complaints then Switzerland’s Prosecutor would be the next best option. This will also keep the ICC in check. What would be the preception of the USPACOM and ICC if another entity would investigate and prosecute war crimes while they both stay on the sidelines. Not legal advice just mana’o.
After a 121 years of it’s belligerent occupation the falsehood of having a treaty has come to light, as indeed a falsehood. Yes, the US can not produce a Treaty of Annexation. Despite repeated attempts by various agencies and their inquiries to the White House, the Secretary of State, the Department of Interior, they continue to be reticent without any reply. It is assumed at this point, by this gesture of acquiescence, that they have no proof of a treaty. It seems to me that the Hawaiian Kingdom Government under the auspices and guidance of the H/K Regency Council and other parties to the cause, i.e. ICRC, Switzerland or other members of the International Family of Nations could form a round table of inquiry similar to the Tribunal of Rwanda to assess and arbitrate for a lasting peace for our H/K. Enforcing a cease and desist order, requiring the US to decommission its forces and de-occupy our homeland. Ku’u mana’o.
Aloha Everyone,
This is off the subject, but I thought I’d share this with everyone because it relates to the military here in Hawaii. This letter was sent to all the parents that have children attending Damien Memorial School
Dear Damien Ohana:
I received the attached flyer from an organization soliciting support for saving our communities from the downsizing of Schofield Barracks and Fort Shafter. The organization reports that: “As part of its 2020 force structure realignment, the Army is considering a proposal that would eliminate 19,800 soldiers and approximately 30,000 civilians. The total is roughly 5% of Honolulu’s total populations.”
Obviously if adopted, this action will have a negative impact for our community and student enrollment at Damien Memorial School because many of our parents are employed by the military as Army personnel and as civilians working at Schofield Barracks and Fort Shafter.
Please read the attachments and if you wish to sign the Petition to Keep Hawaii’s Heroes, you may do so online via http://www.KeepHawaiisHeroes.org. You may also attend an informative session on January 27, 2015, 6:30 p.m. at the Hale Koa Hotel.
Thank you very much.
Sincerely,
Bernard A.K.S. Ho, MBA
President and Chief Executive Officer
Damien Memorial School
1401 Houghtailing St.
Honolulu, HI 96817
Office: (808)440-9505
Fax: (808) 841-6464
The attachment shows figures on how many troops will be affected, 16,606 from Schofield, 3,786 from Fort Shafter and approximately 30,000 family members.
They go to say that it equals to approximately 5% of Honolulu’s population and will result to a $1.3 Billion economic impact. They also sent a copy of the petition that they’re encouraging the parent s to sign.
It all boils down to what this school’s main concern is and that is revenue.
Just something to think about.
A Hui Hou
Interesting. Aren’t these two bases the two bases that were straight up stolen BEFORE the overthrow? Was it Prof. Chang that spoke about that? And I truly hope that there is at least one parent who is willing to tell this CEO how offensive it is that he would send home a letter identifying US military personnel as Hawaii’s Heroes. As an educator, he should be ashamed. IMO.
(I wonder what Pope Francis would have to say? Lol.)
I am a Diaspora Kanaka living off island and looking forward to returning home, the land of my birth. Mr Bernard Ho CEO, Damian HS in sending this poignant message to it’s student body families is quite frankly unfortunate. it appears to be a plea for the continuing the status quo dependence on the US, but it sends the wrong message. Given the tithing and support pledges that this christian organization receives from it’s parishioners seems to me, a good time for this school to offer discounted tuition rates. This would be a means to rebuild our Hawaiian Kingdom’s nationhood and also relieve these families of the stress of nurturing their young under the oppressive US Illegal Occupation. It’s time to create or find other means of subsistence. Off migration like my families diaspora needs to stop. We need not suffer joining the ranks of the vanquished that is being foisted on our H/K na Kanaka citizenry by the alien US forces.
Aloha
Hawaii a sovereign independent neutral nation since 1843
Invaded by the US in 1893
Taken over by the US in 1898
Its time to end the fraud
A resolution by a foreign coutry is not a treaty
With out a treaty its hard to be part of something you’re not
Once you know the truth its hard to look the other way
LLHK
Peace and goodwill to all nations
May keAkua bless each and everyone of you
Mele kalikimaka
Hauoli makahiki hou
From Hawaii with Aloha
Just curious, who or what entity stated: “Before war crimes can be
alleged to have been committed in the Hawaiian Islands, there
must be a state of war. . .”
What is there to gain in bloodshed that cannot be solved intellectually?
U.S. insurgents landed on Hawaiian soil without permission, isn’t that
enough to be considered an Act of War as opposed to a simple trespass?
No treaty and no permission, I’d say that’s enough to show a violation of
another country’s sovereignty!
If as individuals we were to settle our difference as the statement suggest
we would be so busy killing everyone opposed to our cause peace would
only be achieved when everyone else is eliminated and there would be no
need to allege any then! If this is the case, Crimea is screwed!
No treaty of annexation of the Hawaiian Islands by the U.S. Therefore,
there is no U.S. authority in Hawaiian jurisdiction! It’s that simple!!!
IMHO anyway!
Mele Kalikimaka!
Wanted to further add with regard to: “For there to be
a ‘war,’ a sovereign or quasi-sovereign must engage in
hostilities (p. 1583).”
For hostilities to occur would be to violate the treaty of
peace entered into between the kingdom and the U.S.
dated, December 20, 1849, under Article I.
The U.S. has failed to honor its end of that treaty not
the Hawaiian Kingdom! To engage in hostilities would
lead to both parties violating the treaty entered into and
for that matter that treaty would be meaningless!
The U.S. must be accountable to its end of that treaty!
It is one thing to have to defend and another thing to invade!
Again, IMHO!
Aloha Kanekeawe, a state of war does not necessarily mean there has to be bloodshed. If you read the above article again, paragraphs 1 thru 4 clearly explains this. Hope this helps.
Mahalo Kekoa,
I got the concept on the explanation of an Armed Conflict, my
focus was on the opening statement. I’m almost sure it didn’t
come from the acting government of the Hawaiian Kingdom,
unless it was for the purposes of education.
To me, it seems like something the occupier would state in
order to remain non-compliant to the claim asserted by the
Hawaiian Kingdom and at the same time attempting to remain
in good-standing by its response, albeit a worthless attempt!
I think your statement “a state of war does not necessarily
mean there has to be bloodshed” echos my rhetorical question
first stated above: “What is there to gain in bloodshed that
cannot be solved intellectually?”
From my perception, (not saying I’m correct) that opening
statement seems like a taunt rather than a requirement.
(Not that it really matters as the definition of War is expanded
under Armed Conflicts)
The word “Before” in that statement signals a requirement and
under Blacks Law the narrow requirement of war equates to
engagement in hostilities. (Again, covered under Armed
Conflicts) But the invitation to engage in order to implement
a War Crime in the Hawaiian Islands seems like a bait in
order for both parties to nullify the peace and amity treaty
entered into by both parties which one party (the U.S.)
has already violated. Two wrongs won’t make things right!
Mahalo again and have a great Christmas!!
Aloha
I think it’s safe to say that the opening statement was not
form a direct response, but information to navigate around
the narrow description of Blacks law concerning “War.”
Aloha Kanekeawe, “Before war crimes can be
alleged to have been committed in the Hawaiian Islands, there must be a state of war. . .” and “For there to be
a ‘war,’ a sovereign or quasi-sovereign must engage in
hostilities (p. 1583).” I believe the author is speaking to the the legal elements that are required to substantiate any claims of war crimes. It’s just straight up law, I don’t think the author has a slant on a narrative. MHO. Melekalikimaka Kanekeawe.
Aloha Kekoa,
I’m in agreement with you. When first read that was how
I received it, but upon closer review I thought, could that
have been a direct response from the ICC to the acting
government of the Hawaiian Kingdom for the War Crimes
that were reported and filed with them? Or, a response
from the U.S.?
After further review, I too agree that the post was to support
a much more broader definition of the term “War Crime.”
I wanted to make sure that if it were an actual response
that it didn’t slip by us without first being questioned!
A hui hou
Wow! This took me a while to understand, but that’s the harsh thing about Hawaii’s legal history–it takes a while to understand all this. But if one uses his/her brain, it will become a little easier to help understand and in time, he/she will understand. Who would’ve thought Hawaii has been in an armed conflict for more than a century! Even Additional Protocol 1 under ARTICLE 1, Paragraph 4, classifies occupation as an armed conflict. This conflict needs to end; it cannot last forever especially before its too late! I hope the international community including the leaders of those nations who views this blog, along with the evidence provided, are taking this highly seriously! Because, yes, not only are we in danger from foreign attack due to the U.S. military’s illegal presence here, which is also a violation of the Laws of Neutrality (Hawaii became a neutral nation in 1854 like Ireland). Not only are we all in perilous danger from foreign attack, but your own national citizens residing in Hawaii are in danger too. They too are also subjected to War Crimes as well and I would be sad to hear foreign nationals in Hawaii commit War Crimes. See this is why this occupation needs to end soon before more innocent people, including those who are committing War Crimes, get hurt or worse.
The worse would be in this case a foreign attack on Hawaii! Especially nuclear! From countries such as the Democratic People’s Republic of Korea, the Russian Federation, or the People’s Republic of China! They would not only be attacking occupied territory, but also neutral territory as well! Under ARTICLE 1 of the 1907 V Hague Regulations, “The territory of neutral Powers is inviolable” The United States has not only committed such a violation in Hawaii, but has committed numerous others neutrality violations here as well. I would hate to see other Powers do that to us and get held severely accountable just like how the United States will when this occupation is over.
It cannot go on like this. Not only for our sake, but for the sake of the peace of the world.