The Martens Clause and War Crimes in Hawai‘i

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The term “war crimes” was not coined until 1919 after the First World War ended in Europe. A common misunderstanding is that individuals whose criminal conduct constituted a war crime could only be prosecuted if that conduct arose after 1919. This is not the case because under the principles of international law, war crimes could have been committed since, at least, 1874, when delegates of fifteen European States gathered in Brussels, Belgium, at the request of Russia’s Czar Alexander II, in order to draft an international agreement concerning the laws and customs of war.

An agreement was made, but it wasn’t ratified by the fifteen States. It did, however, lead to the adoption of the Manual of the Laws and Customs of War at Oxford in 1880. Both the Brussels Declaration and the Oxford Manual formed the basis of the two Hague Conventions of 1899 and 1907.

At the Peace Conference held in The Hague, Netherlands in 1899, countries from across the world met in order to codify what was already accepted as customary international law regarding the rules of warfare and occupation, which is known today as international humanitarian law. The cornerstone of international humanitarian law during the occupation of a State is the duty of the occupying State to administer the laws of the occupied State, which is reflected in Article 43 of the 1899 Hague Convention, II.

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Article 43 states, “The authority of the legitimate power having actually passed into the hands of the occupant, the latter shall take all steps in his power to re-establish and insure, as far as possible, public order and safety, while respecting, unless absolutely prevented, the laws in force in the country.” This article is a combination of Article 2, “The authority of the legitimate Power being suspended and having in fact passed into the hands of the occupants, the latter shall take all the measures in his power to restore and ensure, as far as possible, public order and safety,” and Article 3, “With this object he shall maintain the laws which were in force in the country in time of peace, and shall not modify, suspend or replace them unless necessary,”  of the 1874 Brussels Declaration. The Brussels Declaration was referenced in the Preamble of the 1899 Hague Convention, II. Article 43 was restated in the 1907 Hague Convention, IV.

The contracting States to the 1899 Hague Convention, II, also recognized that they were codifying customary international law and not creating new law. In its Preamble, it states, “Until a more complete code of the laws of war is issued, the High Contracting Parties think it right to declare that in cases not included in the Regulations adopted by them, populations and belligerents remain under the protection and empire of the principles of international law, as they result from the usages established between civilized nations, from the laws of humanity, and the requirements of the public conscience.” This particular provision of the Preamble has come to be known as the Martens clause. Professor von Martens was the Russian delegate at the 1899 Hague Peace Conference, that recommended this provision be placed in the Preamble after the delegates were unable to agree on the status of civilians who took up arms against the occupying State.

The Commission on the Responsibility of the Authors of the War and on Enforcement of Penalties was established at the Paris Peace Conference in 1919 after World War I. Its role was to investigate the allegations of war crimes and recommend who should be prosecuted. In its report (Pamphlet No. 32, p. 18), the Commission identified 32 war crimes, two of which were “usurpation of sovereignty during military occupation” and “attempts to denationalise the inhabitants of occupied territory.”

Although these crimes were not specifically identified in 1899 Hague Convention, II, or the 1907 Hague Convention, IV, the Commission relied solely on the Martens clause in the 1899 Hague Convention, II. In other words, the Commission concluded that the war crimes of “usurpation of sovereignty during military occupation” and “attempts to denationalise the inhabitants of occupied territory” were recognized under principles of international law since at least the 1874 Brussels Declaration.

Under the war crime of usurpation of sovereignty during military occupation, the Commission concluded that from 1915-1918, Bulgaria engaged in criminal conduct when it “Proclaimed that the Serbian State no longer existed, and that Serbian territory had become Bulgarian,” and that “official orders show efforts of Bulgarisation (Pamphlet No. 32, p. 38).” The Commission also concluded Bulgaria committed the following acts of usurpation of sovereignty:

  • Serbian law, courts, and administration ousted
  • Taxes collected under Bulgarian fiscal regime
  • Serbian currency suppressed
  • Public property removed or destroyed, including books, archives and MSS (g., from the National Library, the University Library, Serbian Legation at Sofia, French Consulate at Uskub)
  • Prohibited sending Serbian Red Cross to occupied Serbia

The Commission also concluded that Austrian and German authorities also engaged in the following criminal conduct of usurpation of sovereignty during military occupation from 1915 to 1918 during the occupation of Serbia (Pamphlet No. 32, p. 38).

  • The Austrians suspended many Serbian laws and substituted their own, especially in penal matters, in procedure, judicial reorganization, &c.
  • Museums belonging to the State (g., Belgrade, Detchani) were emptied and the contents taken to Vienna

Under the war crime of attempts to denationalize the inhabitants of occupied territory, the Commission concluded that from 1915-1918, Bulgaria engaged in the following criminal conduct in occupied Serbia (Pamphlet No. 32, p. 39).

  • Efforts to impose their national characteristics on the population
  • Serbian language forbidden in private as well as official relations
  • People beaten for saying “Good morning” in Serbian
  • Inhabitants forced to give their names a Bulgarian form
  • Serbian books banned—were systematically destroyed
  • Archives of churches and law courts destroyed
  • Schools and churches closed, sometimes destroyed
  • Bulgarian schools and churches substituted—attendance at school made compulsory
  • Population forced to be present at Bulgarian national solemnities

The Commission also concluded that Austrian and German authorities also engaged in the following criminal conduct of attempts to denationalize the inhabitants of occupied territory from 1915 to 1918 during the occupation of Serbia (Pamphlet No. 32, p. 39).

  • Austrians and Germans interfered with religious worship, by deportation of priests and requisition of churches for military purposes
  • Interfered with use of Serbian language

The prosecution of German officials and their Allies for war crimes committed during World War I, however, was dismal. Of 5,000 individuals reported for war crimes only 12 were tried and 6 were convicted. Despite this failure, it was the beginning of imposing criminal liability on individuals for violations of international law that eventually became firmly grounded after the Second World War, which led to war crimes legislation in countries who were contracting parties to the 1949 Geneva Conventions, and also the establishment of the International Criminal Court.

Under the principles of international law, officials of the United States were capable of committing war crimes when the Hawaiian Kingdom was first invaded on January 17, 1893 and occupied until April 1, 1893; and invaded again and occupied since August 12, 1898 during the Spanish-American War. The criminal conduct committed by German, Austrian and Bulgarian officials against Serbia and its people are very similar to the criminal conduct by the United States after 1898 against the Hawaiian Kingdom and its people.

Hawai’i Aloha – Song Across Hawai’i – Playing For Change Collaboration

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“Hawai’i Aloha” features dozens of Hawai‘i’s top artists across many genres, and over 1,000 youth from 10 Hawaiian charter schools in one epic song. Recorded live across 27 locations, this is Hawaiiʻs most widely known song, used to close important gatherings of all sizes. It is a song of unity and Aloha ‘Aina (Aloha for one’s birthplace, land and home).

About this collaboration: Mana Maoli, a Hawaiian nonprofit, teamed up with Playing for Change and 4 Miles as part of their Mana Mele Project, which features a solar mobile studio and a Music & Multimedia academy. Alongside the youth – on campus, in real world settings, and in this video, is the “Mana Mele Collective” – over 200 artists, engineers, and filmmakers who donate their time and talents to mentorships, recordings and concerts in support of these schools. We hope you enjoy watching this collaborative effort as much as we enjoyed creating it!

For lyrics and a bit of history behind “Hawaiʻi Aloha”

Under International Law Native Hawaiians are Victims of Genocide

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Under international humanitarian law, which includes the law of occupation and the protection afforded civilians who are not engaged in war, denationalization is not only a war crime but is synonymous with the term genocide. Since the occupation of the Hawaiian Kingdom began during the Spanish-American War, the United States embarked on a deliberate campaign of forced denationalization in order to conceal the occupation and militarization of a neutral State. Denationalization, in its totality, is genocide.

Children_Salute_1907

Prior to World War I, violations of international law did not include war crimes, or, in other words, crimes where individuals, as separate and distinct from the State or country, could be prosecuted and where found guilty be punished, which included the death penalty. The Commission on the Responsibility of the Authors of the War and on Enforcement of Penalties (Commission on Responsibility) of the Paris Peace Conference of 1919 took up the matter of war crimes after World War I (1914-1918). The Commission identified 32 war crimes, one of which was “attempts to denationalize the inhabitants of occupied territory.”

Although the 1907 Hague Convention, IV, did not specify the term “denationalization” as a war crime, the Commission on Responsibility relied on the preamble of the 1899 Hague Convention, II, which states, “Until a more complete code of the laws of war is issued, the High Contracting Parties think it right to declare that in cases not included in the Regulations adopted by them, populations and belligerents remain under the protection and empire of the principles of international law, as they result from the usages established between civilized nations, from the laws of humanity and the requirements of the public conscience.” This preamble has been called the Martens clause, which was based on a declaration read by the Russian delegate, Professor von Martens, at the Hague Peace Conference in 1899.

In October of 1943, the United States, the United Kingdom and the Soviet Union established the United Nations War Crimes Commission (UNWCC). World War II had been waging since 1939, and atrocities committed by Germany, Italy and Japan drew the attention of the Allies to hold individuals responsible for the commission of war crimes. On December 2, 1943, the UNWCC adopted by resolution the list of war crimes that were drawn up by the Commission on Responsibility in 1919 with the addition of another war crime—indiscriminate mass arrests. The UNWCC was organized into three Committees: Committee I (facts and evidence), Committee II (enforcement), and Committee III (legal matters).

Committee III was asked to draft a report expanding on the war crime of “denationalization” and its criminalization under international law. Committee III did not rely solely on the Martens clause as the Commission on Responsibility did in 1919, but rather used it as an aid to interpret the articles of the 1907 Hague Convention, IV. It, therefore, concluded that “attempts to denationalize the inhabitants of occupied territory” violated Article 43, where the occupying State must respect the laws of the occupied State; Article 46, where family honor and rights and individual life must be respected; and Article 56, where the property of institutions dedicated to education is protected.

In 1944, Professor Raphael Lemkin first coined the term “genocide” in his publication Axis Rule in Occupied Europe (p. 79-95). The term is a combination of the Greek word genos (race or tribe) and the Latin word cide (killing). The 1919 Commission on Responsibility did list “murders and massacres; systematic terrorism” as war crimes, but Professor Lemkin’s definition of genocide was much broader and more encompassing.

Raphael LemkinAccording to Professor Lemkin, “Generally speaking, genocide does not necessarily mean the immediate destruction of a nation, except when accomplished by mass killings of all members of a nation. It is intended rather to signify a coordinated plan of different actions aiming at the destruction of essential foundations of the life of national groups, with the aim of annihilating the groups themselves. The objectives of such a plan would be disintegration of the political and social institutions, of culture, language, national feelings, religion, and the economic existence of national groups, and the destruction of the personal security, liberty, health, dignity, and even the lives of the individuals belonging to such groups.”

“Genocide has two phases,” argued Professor Lemkin, “one, destruction of the national pattern of the oppressed group; the other, the imposition of the national pattern of the oppressor. This imposition, in turn, may be made upon the oppressed population which is allowed to remain, or upon the territory alone, after removal of the population and the colonization of the area by the oppressor’s own nationals. Denationalization was the word used in the past to describe the destruction of a national pattern.” Professor Lemkin believed that denationalization was inadequate and should be replaced with genocide.

The term genocide, however, was not a war crime under international humanitarian law at the time, but it appears that Committee III was in agreement with Professor Lenkin that it should be a war crime. The problem that faced Committee III was how to categorize genocide as a war crime under the Hague Convention, IV. On September 27, 1945, Committee III argued that denationalization was not a single act of “depriving the inhabitants of the occupied territory of their national characteristics,” but rather a program that attempted to achieve this result through: “interference with the methods of education; compulsory education in the language of the occupant; … the ban on the using of the national language in schools, streets and public places; the ban on the national press and on the printing and distributing of books in the language of the occupied region; the removal of national symbols and names, both personal and geographical; [and] interference with religious services as far as they have a national peculiarity.”

Committee III also argued that denationalization included other activities such as: “compulsory or automatic granting of the citizenship of the occupying Power; imposing the duty to swearing the oath of allegiance to the occupant; the introduction of the administrative and judicial system of the occupying Power, the imposition of its financial, economic and labour administration, the occupation of administrative offices by nationals of the occupying Power; compulsion to join organizations and associations of the occupying Power; colonization of the occupied territory by nationals of the occupant, exploitation and pillage of economic resources, confiscation of economic enterprises, permeation of the economic life through the occupying State or individuals of the nationality of the occupant.”

Committee III also stated that these activities by the occupying State or its nationals would also “fall under other headings of the list of war crimes.”

There were apparent similarities between Professor Lemkin’s definition of genocide and the Committee III’s definition of denationalization. Professor Lemkin argued that genocide was more than just mass murder of a particular group of people, but “the specific losses of civilization in the form of the cultural contributions which can only be made by groups of people united through national, racial or cultural characteristics (Lemkin, Genocide as a Crime under International Law, 41 AJIL (1947) 145, at 147).” Similarly, Committee III argued that denationalization “kill[s] the soul of the nation,” and was “the counterpoint to the physical act of killing the body, which was ordinary murder (Preliminary Report of the Chairman of Committee III, C.148, 28 Sept. 1945, 6/34/PAG-3/1.1.0, at 2).”

In its October 4, 1945 report “Criminality of Attempts to Denationalise the Inhabitants of Occupied Territory,” Committee III renamed denationalization to be genocide.

On December 11, 1946, the General Assembly of the United Nations adopted a resolution that declared genocide a crime under the existing international law and recommended member States to sign a convention. After two years of study, the General Assembly adopted the Convention on the Prevention and Punishment of the Crime of Genocide on December 9, 1948. By the Convention, genocide has been recognized as a crime even when there is no war or the occupation of a State. Genocide became an international crime along with piracy, drug trafficking, arms trafficking, human trafficking, money laundering and smuggling of cultural artifacts. During war or the occupation of a State, genocide is synonymous with the war crime of denationalization.

In the Trial of Ulrich Greifelt and Others (October 10, 1947-March 10, 1948) at Nuremberg, the United States Military Tribunal asserted Committee III’s interpretation that genocide can be committed through the war crime of denationalization. In its decision, the Tribunal concluded that, “genocide…may be perpetuated through acts representing war crimes. Among these cases are those coming within the concept of forced denationalisation (p. 42).”

The Tribunal explained, “In the list of war crimes drawn up by the 1919 Commission on the Responsibility of the Authors of the War and on Enforcement of Penalties, there were included as constituting war crimes ‘attempts to denationalize the inhabitants of occupied territory.’ Attempts of this nature were recognized as a war crime in view of the German policy in territories annexed by Germany in 1914, such as in Alsace and Lorraine. At that time, as during the war of 1939-1945, inhabitants of an occupied territory were subjected to measures intended to deprive them of their national characteristics and to make the land and population affected a German province (p. 42).”

When the Hawaiian Kingdom was occupied during the Spanish-American War, the United States operated in complete disregard to the recognized principles of the law of occupation at the time. Instead of administering the laws of the Hawaiian Kingdom, being the occupied State, the United States imposed its own laws, administration, judiciary and economic life throughout the Hawaiian Islands in violation of Hawaiian independence and sovereignty. According to Professor Limken, this action taken by the United States would be considered as “the imposition of the national pattern of the oppressor,” which is the second phase of genocide after the national pattern of the occupied State had been destroyed under the first phase.

In other words, the actions taken by the United States was precisely what the Axis Powers did in occupied territories during World War I and II, which, according to Committee III, included “interference with the methods of education; compulsory education in the language of the occupant; … the ban on the using of the national language in schools, streets and public places; the ban on the national press and on the printing and distributing of books in the language of the occupied region; the removal of national symbols and names, both personal and geographical; [and] interference with religious services as far as they have a national peculiarity. [As well as] compulsory or automatic granting of the citizenship of the occupying Power; imposing the duty to swearing the oath of allegiance to the occupant; the introduction of the administrative and judicial system of the occupying Power, the imposition of its financial, economic and labour administration, the occupation of administrative offices by nationals of the occupying Power; compulsion to join organizations and associations of the occupying Power; colonization of the occupied territory by nationals of the occupant, exploitation and pillage of economic resources, confiscation of economic enterprises, permeation of the economic life through the occupying State or individuals of the nationality of the occupant.”

Under Hawaiian law, native (aboriginal ) Hawaiians had universal health care at no charge through the Queen’s Hospital, which received funding from the Hawaiian Kingdom legislature. Early into the occupation, however, American authorities stopped the funding in 1904, because they asserted that the collection of taxes used to benefit a particular ethnic group violated American law. In a legal opinion by the Territorial Government’s Deputy Attorney General E.C. Peters on January 7, 1904, to the President of the Board of Health, Peters stated, “I am consequently of the opinion that the appropriation of the sum of $30,000.00 for the Queen’s Hospital is not within the legitimate scope of legislative authority.”

Since 1904, aboriginal Hawaiians had to pay for their healthcare from an institution that was established specifically for them at no charge. According to the International Criminal Court’s (ICC) Elements of Crimes, one of the elements of the international crime of “Genocide by deliberately inflicting condition of life calculated to bring about physical destruction,” is that the “conditions of life were calculated to bring about the physical destruction of that group, in whole or in part.” The ICC recognizes the term “conditions of life” includes, “but is not necessarily restricted to, deliberate deprivation of resources indispensable for survival, such as food or medical services, or systematic expulsion from homes.”

As a result of the “deliberate deprivation of…medical services,” many aboriginal Hawaiians could not afford medical care in their own country, which has led to the following dire health statistics today.

  • 13.4% of aboriginal Hawaiians who were surveyed in 2013 reported that they do not have any kind of health care coverage, which is the highest rate across all ethnic groups surveyed (Nguyen & Salvail, Hawaii Behavioral Risk Factor Surveillance System, State of Hawai‘i Department of Health).
  • Aboriginal Hawaiians have the highest rate of diabetes in the Hawaiian Islands (Crabbe, Eshima, Fox, & Chan (2011), Native Hawaiian Health Fact Sheet 2011, Office of Hawaiian Affairs, Demography Section, Research Division).
  • 5% of aboriginal Hawaiians are overweight, which is higher than any other ethnic group in the Hawaiian Islands (Nguyen & Salvail, 2013).
  • 7% of aboriginal Hawaiians have high blood pressure, being second only to Japanese at 39.7% (Nguyen & Salvail, 2013).
  • Aboriginal Hawaiians are more likely to have chronic diseases than non-aboriginal Hawaiians (Nguyen & Salvail, 2013).
  • 48% of the deaths of aboriginal Hawaiian children occur during the perinatal period (Crabbe et al., 2011).
  • 7% of aboriginal Hawaiian adults report being diagnosed with a depressive disorder (Nguyen & Salvail, 2013).

Professor Lemkin would view these statistics as connoting “the destruction of the biological structure” of aboriginal Hawaiians, which is the outcome of the second phase of genocide where the imposition of the national pattern of the oppressor has been established. In addition to these statistics are added the deaths of aboriginal Hawaiians who died in the wars of the United States after forced conscription into the Armed Forces and their compulsion to swear allegiance. These wars included World War I, World War II, the Korean War and the Vietnam War.

US Recruiting Poster

Under Hawaiian Law Native Hawaiians Receive Health Care at No Charge

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Kam IIIIn 1839, King Kamehameha III proclaimed, by Declaration, the protection for both person and property in the kingdom by stating, “Protection is hereby secured to the persons of all the people; together with their lands, their building lots, and all their property, while they conform to the laws of the kingdom, and nothing whatever shall be taken from any individual except by express provision of the laws.” The Hawaiian Legislature, by resolution passed on October 26, 1846, acknowledged that the 1839 Declaration of Rights recognized “three classes of persons having vested rights in the lands,—1st, the government, 2nd, the landlord [Chiefs and Konohikis], and 3d, the tenant [natives] (Principles adopted by the Board of Commissioners to Quiet Land Titles, in their Adjudication of Claims Presented to Them, Resolution of the Legislative Council, Oct. 26, 1846).” Furthermore, the Legislature also recognized that the Declaration of 1839 “particularly recognizes [these] three classes of persons as having rights in the sale,” or revenue derived from the land as well.

These three classes of vested rights, being mixed or undivided in the land, is also reflected in the kingdom’s first constitution in 1840, which states, “Kamehameha I was the founder of the kingdom, and to him belonged all the land from one end of the Islands to the other, though it was not his own private property. It belonged to the chiefs and people in common, of whom Kamehameha was the head, and had the management of the landed property.” The Chiefs and Konohikis carried out the management of the land under the direction of the King for the benefit of the Native Tenants. There is no other country in the world that can boast what a King did for his people in securing their rights in the lands of the kingdom.

Chief Justice William LeeBy definition, a vested right is “a right belonging so absolutely, completely, and unconditionally to a person that it cannot be defeated by the act of any private person and that is entitled to governmental protection usually under a constitutional guarantee.” In 1846, the Hawaiian Legislature recognized that government lands acquired by conveyance remained “subject to the previous vested rights of tenants and others, which shall not have been divested by their own acts, or by operation of law (Statute Laws of Kamehameha III (1846), vol. 1, p. 99).” The Hawaiian Supreme Court in 1851 best articulated the mastery of these vested rights under Hawaiian law in Kekiekie v. Edward Dennis, 1 Haw. 42 (1851). Chief Justice William L. Lee stated, “the people’s lands were secured to them by the Constitution and laws of the Kingdom, and no power can convey them away, not even that of royalty itself.”

On November 7, 1846, the Hawaiian Legislature enacted Joint resolutions on the subject of rights in lands and the leasing, purchasing and dividing of the same that sought to begin the process of dividing out the undivided rights of these three classes in the lands, but it was unsuccessful. The following year in December 1847, executive action was taken by the King in Privy Council to carry into effect a division of the vested rights that has come to be known as the Great Mahele [division]. A common misunderstanding is that the Great Mahele endeavored to divide all the rights of the three classes in the lands. The Great Mahele only divided the vested rights of the Chiefly class from the Government class in the lands. These divided rights over specific lands called ahupua‘a and ili‘aina remained subject to the rights of Native Tenants, who by application to the Minister of the Interior, who managed government lands, or to a particular Chief or Konohiki who managed lands that were separated from the government, could acquire a fee-simple title to their house lot and cultivating lands.

On December 18, 1847, the Privy Council unanimously passed a resolution accepting 7 rules prepared by Chief Justice William Lee that would guide the division of lands between the Government class, the Chiefly class and the Native Tenant class. According to Rule 2, “One third of the remaining lands of the Kingdom shall be set aside as the property of the Hawaiian Government, subject to the direction and control of His Majesty, as pointed out by the Constitution and laws. One third to the Chiefs and Konohikis in proportion to their possessions, to have and to hold to them, their heirs and Successors forever—and the remaining third to the Tenants, the actual possessors and cultivators of the soil, to have and to hold to them their heirs and successors forever (Privy Council Minutes, vol. 10, p. 129).” Rule 3 would apply to the Native Tenants and their division, which states, “The division between the Chiefs or the Konohikis and their Tenants, prescribed by rule second, shall take place, whenever any Chief, Konohiki or Tenant shall desire such a division, subject only to confirmation by the King in Privy Council.” The Rules of the Great Mahele is a living document and a condition of the management of the lands for the Government class and the Chief and Konohiki class. As a living document it remains a condition of land titles throughout the Hawaiian Islands.

After accepting the division of lands between Kamehameha III, in his private capacity as the highest of the Chiefly class, and the Government, the Legislature under An Act Relating to the Lands of His Majesty The King and the of the Government on June 7, 1848, recognized Kamehameha III’s private lands, which came to be known as Crown lands, as “subject only to the rights of tenants (Supplement to the Statute Laws of His Majesty, Kamehameha III (1848), p. 25),” and the Government lands “as subject always to the rights of tenants (p. 41).” The Board of Commissioners to Quiet Land Titles (Land Commission) was tasked with the additional duty to issue Land Commission Awards (LCAs) to Chiefs and Konohikis that received lands in the Great Mahele as well as to native tenants who submitted their claims with the Land Commission. The Land Commission, however, could only grant LCAs to those that filed their claims before February 14, 1848.

Chief Justice William Lee, who also served as President of the Land Commission, wrote an illuminating letter to Reverend Emerson from Wailua, O‘ahu, on the subject of native tenant rights and the lands of Chiefs and Konohikis. Emerson was concerned that not all of the native tenants have filed their claims with the Land Commission before the deadline of February 14, 1848, and was asking if they had therefore lost their rights in the land. Lee responded, “Should the tenants neglect to send in their claims, they will not lose their rights if their Konohiki present claims; for no title will be granted to the Konohiki without a clause reserving the rights of tenants (Letter to Reverend Emerson dated Jan. 12, 1848, Supreme Court Letter Book of Chief Justice Lee, June 3, 1847-April 18, 1854, Judiciary Dept., series 240, box 1, Hawai’i Archives).”

Lee was speaking to the vested rights of the Native Tenant class that was already secured under the constitution and laws of the Kingdom. In LCAs issued to the Chiefs and Konohikis who were assigned lands in the Great Mahele, there is the clause, “Aka, koe nae na kuleana on na Kanaka ma loko (Land Commission Award 8559-B, parcel 31, to W.C. Lunalilo for the iliaina of Kaluakou, Waikiki),” which is translated as “However, reserving the rights of Native Tenants within.” In Royal Patents that were in the English language, the clause “Reserving the rights of Native Tenants (Royal Patent Grant 950 to Robert Robinson)” was expressly written as a condition of the title.

Royal Patent

Under Hawaiian law, all revenues derived from the lands of the Hawaiian Islands; whether by the Government through taxation, rent or sale, or from the Chiefs or Konohikis, through rent or sale, continue to have the vested rights of native tenants. This is what formed the basis as to why the Queen’s Hospital provided health care without charge to native Hawaiians in the nineteenth century because Queen’s Hospital acquired monies from the Government and from Queen Emma as a Chiefess who acquired lands from Mahele grantees, and after her death through the Queen Emma Trust. This is not to be confused with socialism, but rather management of the vested rights of Native Tenants that have and continue to remain in all the lands of the Hawaiian Islands.

As reported by the Pacific Commercial Advertiser in 1901, “The Queen’s Hospital was founded in 1859 by their Majesties Kamehameha IV and his consort Emma Kaleleonalani. The hospital is organized as a corporation and by the terms of its charter the board of trustees is composed of ten members elected by the society and ten members nominated by the Government… The charter also provides for the ‘establishment and putting into operation a permanent hospital at Honolulu, with a dispensary and all necessary furniture and appurtenances for the reception, accommodation and treatment of indigent sick and disabled Hawaiians, as well as such foreigners and others who may choose to avail themselves of the same.’ Under this construction all native Hawaiians have been cared for without charge, while for others a charge has been made of from $1 to $3 per day (Pacific Commercial Advertiser, July 31, 1901, p. 14).”

When the United States seized and occupied the Hawaiian Islands during the Spanish-American War, American laws were illegally imposed in the Hawaiian Kingdom that did not allow health care, at no cost, for Natives. The Hawaiian Kingdom Government annually appropriated $10,000.00 to Queen’s Hospital. Since the occupation began, the American authorities were considering the termination of this annual funding.

In 1901, Queen’s Hospital’s Chairman of the Board of Trustees, George W. Smith, explained, “There is a possibility that the legislative appropriation will be cut off after the first of the year, but even so we shall have funds enough to get along, although the hospital will be somewhat crippled. You see there is a provision in the United States Constitution that public property shall not be taken for private use, or that the people shall not be taxed to support private institutions. The Queen’s Hospital is, from the nature of its charter, a quasi-private institution. When it was chartered it was provided that all Hawaiians, of native birth, should be treated free of charge. Foreigners were to be treated by payment of fees (Pacific Commercial Advertiser, July 30, 1900, p. 2).”

In other words, American law would view Queen’s Hospital’s providing health care at no charge to Natives as race based. The following year, Smith argued, “Under our charter we are compelled to treat native Hawaiians free of charge and I do not see how it can be changed (Pacific Commercial Advertiser, July 31, 1901, p. 14).”

Although there is no express provision in the Charter or By-laws of Queen’s Hospital to provide health care at no cost to Natives, it was universally understood and recognized by the Kingdom’s Constitution and laws that Natives benefit from the revenues derived from the Government and the lands of Queen Emma because of their vested rights. Queen’s Hospital would eventually only receive landed revenues from the Queen Emma Trust, and in 1950, these lands were transferred from the trust to the Hospital. As the occupation progressed, Natives would eventually be denied healthcare at Queen’s Hospital without payment, and if they were unable to pay some could see relief if they were “indigent.”

All the actions taken with regard to Queen’s Hospital and the Queen Emma Trust can be summed up as not only a violation of the laws of the Hawaiian Kingdom, but also a violation of international humanitarian law and human rights law. According to Vincent Bernard, Editorial: Occupation, 94 (885) International Review of the Red Cross 5 (Spring 2012):

“The notion that the occupier’s conduct towards the population of an occupied territory must be regulated underpins the current rules of humanitarian law governing occupation. Another pillar of this body of law is the duty to preserve the institutions of the occupied state. Occupation is not annexation; it is viewed as a temporary situation, and the Occupying Power does not acquire sovereignty over the territory concerned. Not only does the law endeavour to prevent the occupier from wrongfully exploiting the resources of the conquered territory; it also requires the occupier to provide for the basic needs of the population and to ‘restore, and ensure, as far as possible, public order and safety, while respecting, unless absolutely prevented, the laws in force in the country [Article 43, 1907 Hague Convention, IV]’. The measures taken by the occupier must therefore preserve the status quo ante (this is known as the conservationist principle).”

Swiss Criminal Court Accepts Case on War Crimes Committed in Hawai‘i

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Swiss AG Office

Where the following linked documents are in the original German language, an English translation follows.

In 2011, Switzerland passed a statute authorizing the Swiss Attorney General the authority to prosecute war crimes committed abroad. Under Swiss law, all criminal complaints are required to be investigated, and should it be the opinion of the investigator that there are no crimes being committed he is required to draft a report that explains why. This report is subject to review, however, by the Swiss Federal Criminal Court if the report is contested. The review is initiated when a formal Objection is filed with the Court within 10 days in accordance with Article 396(1) of the Swiss Criminal Procedure Code (SCPC). If the Court upholds the Objection, “it may issue instructions to the public prosecutor…on the continuation of the proceedings (Art. 397(3), SCPC).”

This criminal investigation process is very different from criminal investigations that occur within the United States, where the prosecutor has full and complete discretion to investigate a crime or not to investigate, and the decision not to investigate is not subject to review by a higher authority.

In a 2012 decision, the Swiss Federal Criminal Court rejected immunity claims made by a former Algerian Defense Minister Khaled Nezzar that he was immune from prosecution because the alleged war crimes occurred during his time in government office. The Court stated immunity is not available for international crimes such as war crimes, crimes against humanity, torture or genocide.

Dr. Keanu SaiIn December 2014, Dr. Keanu Sai, who represented two victims of war crimes from Hawai‘i through limited powers of attorney, filed a war crime complaint with the Swiss Attorney General (AG) in Bern, Switzerland. Dr. Sai filed additional complaints in January 2015. This initiated an investigation by Prosecutor Andreas Müller from the Swiss AG’s War Crimes Unit that eventually came before the Swiss Federal Criminal Court Objections Chamber in April 2015. The Court decreed that it could not accept Dr. Sai’s Objection due to a procedural technicality.

The Hawaiian Kingdom blog has redacted the name of one of the complainants for security and safety concerns.

After the Court’s decision, Dr. Sai was given information from a reliable source in Switzerland that a former Prosecutor of the Attorney General’s War Crime Unit (Center of Competence for International Crimes) admitted that after receiving the war crime complaints, the War Crime Unit could not refute the evidence of war crimes, and stated, anecdotally, it was as if a bomb went off in the office. He also admitted that the Swiss AG Office deliberately used a procedural technicality to prevent the Court from reviewing the investigation.

In his Report dated February 3, 2015, Prosecutor Müller took the position that war crimes are not being committed because Hawai‘i was annexed in 1898 by a Congressional joint resolution and in 1959 Congress created the State of Hawai‘i as the 50th State. Because of this, according to the Prosecutor, Hawai‘i is not occupied and therefore war crimes have not been committed. The problem with this reasoning, which the Prosecutor knows is wrong, is that he is relying on United States (US) laws enacted by the US Congress, which has no force and effect beyond US borders. According to this logic, Congress could pass a law today annexing Switzerland and then pass another law calling Switzerland its 50th State of the American Federal Union.

US laws are domestic or national laws that apply over the territory of a particular Nation or State. It has no effect beyond the borders of the country whose legislature enacted it. International laws, however, which are laws between nations, can annex foreign territory, which is a treaty or an agreement between the two States. There is no treaty between the Hawaiian Kingdom and the United States. Instead, Hawai‘i was occupied during the Spanish-American War on August 12, 1898, and that occupation has since continued under a cloak of deception and lies.

Responding to Prosecutor Müller’s error of relying on US laws and not international laws, Dr. Sai sent an Objection dated March 31 to the Federal Criminal Court, via FedEx, on April 1, 2015, which was one day prior to the expiration of the ten-day period. The Objection reached the Court in Bellinzona on April 8, 2015. The following day, the Court issued an Order to the Prosecutor to turn over all evidence of his investigation for consideration by the Court.

In just twenty days, the Court issued their Decision on April 28, 2015. After the Court named the former CEO of Deutsche Bank Josef Ackermann, State of Hawai‘i Governor Neal Abercrombie, Lt. Governor Shan Tsutsui, Director of Taxation Frederik Pablo, and Deputy Director Joshua Wisch as alleged war criminals of pillaging, and stating that the 1864 Hawaiian-Swiss Treaty was not cancelled, the Court concluded it was unable to accept the Objection because it was not filed timely within the required 10-day period.

In its judgment, the Court cited a 2012 Federal Criminal Court decision that concluded if a party uses FedEx, being a private courier, and not the Swiss Postal Service or diplomatic representative, the Court can only accept the filings on the day received and not sent. This was the procedural technicality that the former prosecutor spoke of, which is what they used in an attempt to slow down the process. Having been made aware of the actions taken by the Swiss AG’s office, Dr. Sai was preparing to re-file the complaints.

“At the center of these proceedings,” said Dr. Sai, “is whether a domestic law of the United States could have annexed another independent State, being the Hawaiian Kingdom. From a law standpoint it is clear that it cannot because domestic laws are limited to the territory of that particular country.” Dr. Sai also stated, “since the Permanent Court of Arbitration recognized the continued existence of the Hawaiian Kingdom as a “State” during arbitration proceedings from 1999-2001, the Swiss Prosecutor cannot claim otherwise unless he has evidence under international law that the Permanent Court of Arbitration didn’t have that Hawai‘i was annexed by a treaty. If there is a treaty then there are no war crimes, but if there is no treaty then you have war crimes. It’s that simple. ”

Mike McCartneyBefore the re-filing, Dr. Sai met with Governor David Ige’s Chief of Staff Mike McCartney on three occasions in June of 2015. In these meetings that lasted over two hours each, Dr. Sai conveyed to McCartney that his clients were willing to forgo re-filing the complaint with the Swiss AG’s office if the Governor’s office would take corrective measures to address this matter. Dr. Sai also explained the remedy to the situation, which stems from his doctoral research in political science. On July 2, 2015, Dr. Sai provided McCartney a Report that covered what was discussed in the three meetings and a proposed remedy in line with international law and relevant rules of the State of Hawai‘i. After numerous failed attempts to reach McCartney, it left Dr. Sai with no alternative but to re-file the complaint, which would include Lt. Governor Shan Tsutsui who is a carry over from the previous administration under Governor Abercrombie.

On August 18, 2015, the War Crimes Report and Complaint was re-filed.  The investigation commenced in August and lasted for nearly six months. Prosecutor Müller issued a Report on January 28, 2016, again relying on the 1898 joint resolution of annexation and the 1959 Statehood Act.

Dr. Sai received Prosecutor Müller’s Report on February 13, 2016, which made the ten-day window expire on February 23. Dr. Sai sent his Objection to the Federal Criminal Court Objections Chamber on February 20, through the Swiss Postal Service in Geneva, and the Court received it on February 22. According to Article 91(2), SCPC, filings “must be delivered on the day of expiry of the time limit at the latest…handed for delivery to SwissPost, a Swiss diplomatic or consular representations.” In other words, delivery by the Swiss Postal Service or to a diplomatic or consular post is recognized by its post date and not by its date received.

On that same day the Court received Dr. Sai’s Objection, it issued an Order to Prosecutor Müller to furnish the Court right away all records of his investigation. Dr. Sai was copied on the Order.

The following month, Dr. Sai received a Letter from the Court dated March 2, 2016, whereby the Court notified him that the case has been accepted for review and that he will need to provide a security for court costs in the amount of 2,000 Swiss Francs to be deposited in the Court’s bank account by March 14, 2016. Additionally, Dr. Sai was also directed by the Court to resubmit the Objection with his original signature. Dr. Sai’s original Objection pleading that was sent on February 20 had a scanned signature and not his original.

On March 9, 2016, while Dr. Sai was visiting with a friend in San Francisco, he went to the Swiss Consulate to have his letter and package sent to the Court through diplomatic courier. The Consulate acknowledged its receipt of the package on the same day. Swiss law recognizes the “post-date” if sent through the Swiss Consulate, which means the package would be recognized by the Court as being filed on March 9, which is before the March 14 deadline.

Here follows the list of individuals who have been under a criminal investigation for war crimes since August 2015, and which is now under review by the Swiss Federal Criminal Court in Bellinzona, Switzerland.

  1. Greg K. Nakamura—Judge, Circuit Court of the Third Circuit, State of Hawai‘i, whose address is Hale Kaulike, 777 Kilauea Avenue, Hilo, HI 96720-4212, Alleged War crime—Principal perpetrator of denial of a fair and regular trial;
  1. Josef Ackermann, former Chief Executive Officer, Deutsch Bank Management Board, parent company of Deutsche Bank National Trust Company and Deutsche Bank Trust Company Americas, whose address is Gottfried Keller-Strasse 7, 8001 Zurich, Switzerland, Alleged War Crimes—Principal perpetrator of pillaging and accomplice to denial of a fair and regular trial and unlawful arrest and detention;
  1. Jürgen Fitschen, Co-Chief Executive Officer, Deutsche Bank Management Board, parent company of Deutsche Bank National Trust Company and Deutsche Bank Trust Company Americas, whose address is Taunusanlage 12, 60325 Frankfurt, Germany, Alleged War Crimes—Principal perpetrator of pillaging and accomplice to denial of a fair and regular trial and unlawful arrest and detention;
  1. Anshu Jain, Co-Chief Executive Officer, Deutsche Bank Management Board, parent company of Deutsche Bank National Trust Company and Deutsche Bank Trust Company Americas, whose address is Taunusanlage 12, 60325 Frankfurt, Germany, Alleged War Crimes—Principal perpetrator of pillaging and accomplice to denial of a fair and regular trial and unlawful arrest and detention;
  1. Stefan Krause, Chief Financial Officer, Deutsche Bank Management Board, parent company of Deutsche Bank National Trust Company and Deutsche Bank Trust Company Americas, whose address is Taunusanlage 12, 60325 Frankfurt, Germany, Alleged War Crimes—Principal perpetrator of pillaging and accomplice to denial of a fair and regular trial and unlawful arrest and detention;
  1. Stephan Leithner, Chief Executive Officer Europe (except Germany and UK), Human Resources, Legal & Compliance, Government and Regulatory Affairs, Deutsche Bank Management Board, parent company of Deutsche Bank National Trust Company and Deutsche Bank Trust Company Americas, whose address is Taunusanlage 12, 60325 Frankfurt, Germany, Alleged War Crimes—Principal perpetrator of pillaging and accomplice to denial of a fair and regular trial and unlawful arrest and detention;
  1. Stuart Lewis, Chief Risk Officer, Deutsche Bank Management Board, parent company of Deutsche Bank National Trust Company and Deutsche Bank Trust Company Americas, whose address is Taunusanlage 12, 60325 Frankfurt, Germany, Alleged War Crimes—Principal perpetrator of pillaging and accomplice to denial of a fair and regular trial and unlawful arrest and detention;
  1. Rainer Neske, Head of Private and Business Clients, Deutsche Bank Management Board, parent company of Deutsche Bank National Trust Company and Deutsche Bank Trust Company Americas, whose address is Taunusanlage 12, 60325 Frankfurt, Germany, Alleged War Crimes—Principal perpetrator of pillaging and accomplice to denial of a fair and regular trial and unlawful arrest and detention;
  1. Henry Ritchotte, Chief Operating Officer, Deutsche Bank Management Board, parent company of Deutsche Bank National Trust Company and Deutsche Bank Trust Company Americas, whose address is Taunusanlage 12, 60325 Frankfurt, Germany, Alleged War Crimes—Principal perpetrator of pillaging and accomplice to denial of a fair and regular trial and unlawful arrest and detention;
  1. Charles R. Prather, attorney for Deutsche Bank National Trust Company and Deutsche Bank Trust Company Americas, belonging to the law firm RCO Hawaii, LLLC, whose address is 900 Fort Street Mall, Suite 800, Honolulu, HI 96813, Alleged War Crimes—Principal perpetrator of pillaging and accomplice to denial of a fair and regular trial and unlawful arrest and detention;
  1. Sofia M. Hirosone, attorney for Deutsche Bank National Trust Company and Deutsche Bank Trust Company Americas, belonging to the law firm RCO Hawaii, LLLC, whose address is 900 Fort Street Mall, Suite 800, Honolulu, HI 96813, Alleged War Crimes—Principal perpetrator of pillaging and accomplice to denial of a fair and regular trial and unlawful arrest and detention;
  1. Michael G.K. Wong, attorney for Deutsche Bank National Trust Company and Deutsche Bank Trust Company Americas, belonging to the law firm RCO Hawaii, LLLC, whose address is 900 Fort Street Mall, Suite 800, Honolulu, HI 96813, Alleged War Crimes—Principal perpetrator of pillaging and accomplice to denial of a fair and regular trial and unlawful arrest and detention; and
  1. Glenn Swanson, realtor belonging to the real estate firm Savio Realty, whose address is 15-2911 Pahoa Village Rd, Pahoa, HI 96778, Alleged War Crimes—Principal perpetrator of pillaging and accomplice unlawful arrest and detention; and
  1. Sandra Hegerfeldt, realtor belonging to the real estate firm Savio Realty, whose address is 15-2911 Pahoa Village Rd, Pahoa, HI 96778, Alleged War Crimes—Accomplice to pillaging and unlawful arrest and detention; and
  1. Jessica Hall, realtor belonging to the real estate firm Savio Realty, whose address is 15-2911 Pahoa Village Rd, Pahoa, HI 96778, Alleged War Crimes—Accomplice to pillaging and unlawful arrest and detention; and
  1. Dana Kenny, realtor belonging to the real estate firm Savio Realty, whose address is 15-2911 Pahoa Village Rd, Pahoa, HI 96778, Alleged War Crimes—Accomplice to pillaging and unlawful arrest and detention; and
  1. Shawn H. Tsuha, at the time of the pillaging, unfair trial and unlawful arrest, Sheriff, State of Hawai‘i Department of Public Safety Sheriff’s Department, whose address is 919 Ala Moana Boulevard, 4th Floor, Honolulu, HI 96814, Alleged War Crimes—Principal perpetrator of pillaging and accomplice to denial of a fair and regular trial and unlawful arrest and detention; and
  1. Patrick Kawai, Lieutenant, State of Hawai‘i Department of Public Safety Sheriff’s Department, whose address is Hale Kaulike, 777 Kilauea Avenue, Hilo, HI 96720-4212, Alleged War Crimes—Principal perpetrator of pillaging and accomplice to denial of a fair and regular trial and unlawful arrest and detention.
  1. Samuel Jelsma, Captain, County of Hawai‘i Police Department, State of Hawai‘i, whose address is 15-2615 Kea‘au-Pahoa Road, Hilo, HI 96778, Alleged War Crimes—Principal perpetrator of unlawful arrest and detention;
  1. Reed Mahuna, Lieutenant, County of Hawai‘i Police Department, State of Hawai‘i, whose address is 15-2615 Kea‘au-Pahoa Road, Hilo, HI 96778, Alleged War Crimes—Principal perpetrator of unlawful arrest and detention;
  1. Brian Hunt, Patrolman, County of Hawai‘i Police Department, State of Hawai‘i, whose address is 15-2615 Kea‘au-Pahoa Road, Hilo, HI 96778, Alleged War Crimes—Principal perpetrator of unlawful arrest and detention;
  1. Glenn Hara, Judge, Circuit Court of the Third Circuit, State of Hawai‘i, whose address is Hale Kaulike, 777 Kilauea Avenue, Hilo, HI 96720-4212, Alleged War Crimes—Principal perpetrator of denial of a fair and regular trial; and
  1. Mitch Roth, Prosecuting Attorney, County of Hawai‘i, whose address is Aupuni Center, 655 Kilauea Avenue, Hilo, HI 96820, Alleged War Crimes—Principal perpetrator of unlawful arrest and accomplice to denial of a fair and regular trial.
  1. Barack Obama, President of the United States, whose address is 1600 Pennsylvania Avenue NW, Washington, DC 20500, Alleged War Crime—Principal perpetrator of unlawful appropriation of property;
  1. Jack Lew, Secretary, United States Treasury, since February 28, 2013, whose address 1500 Pennsylvania Avenue, NW, Washington, D.C. 20220, Alleged War Crime—Principal perpetrator of unlawful appropriation of property;
  1. Neal Wolin, former Secretary, United States Treasury, from January 25, 2013 to February 28, 2013, whose address 1500 Pennsylvania Avenue, NW, Washington, D.C. 20220, Alleged War Crime—Principal perpetrator of unlawful appropriation of property;
  1. Timothy F. Geithner, former Secretary, United States Treasury, from January 26, 2009 to January 25, 2013, whose address 1500 Pennsylvania Avenue, NW, Washington, D.C. 20220, Alleged War Crime—Principal perpetrator of unlawful appropriation of property;
  1. Stuart A. Levey, former Secretary, United States Treasury, from January 20, 2009 to January 26, 2009, whose address 1500 Pennsylvania Avenue, NW, Washington, D.C. 20220, Alleged War Crime—Principal perpetrator of unlawful appropriation of property;
  1. Henry M. Paulson, former Secretary, United States Treasury, from July 10, 2006 to January 20, 2009, whose address 1500 Pennsylvania Avenue, NW, Washington, D.C. 20220, Alleged War Crime—Principal perpetrator of unlawful appropriation of property;
  1. Robert M. Kimmit, former Secretary, United States Treasury, from June 30, 2006 to July 10, 2006, whose address 1500 Pennsylvania Avenue, NW, Washington, D.C. 20220, Alleged War Crime—Principal perpetrator of unlawful appropriation of property;
  1. John W. Snow, former Secretary, United States Treasury, from February 3, 2003 to June 30, 2006, whose address 1500 Pennsylvania Avenue, NW, Washington, D.C. 20220, Alleged War Crime—Principal perpetrator of unlawful appropriation of property;
  1. Neal Abercrombie, former Governor, State of Hawai‘i, from December 6, 2010 to December 1, 2014, whose address is State of Hawai‘i Executive Chambers, State Capital, Honolulu, HI 96813, Alleged War Crime—Principal perpetrator of pillaging;
  1. Linda Lingle, former Governor, State of Hawai‘i, from December 2, 2002 to December 6, 2010, whose address is State of Hawai‘i Executive Chambers, State Capital, Honolulu, HI 96813, Alleged War Crime—Principal perpetrator of pillaging;
  1. Ben Cayetano, former Governor, State of Hawai‘i, from December 2, 1994 to December 2, 2002, whose address is State of Hawai‘i Executive Chambers, State Capital, Honolulu, HI 96813, Alleged War Crime—Principal perpetrator of pillaging;
  1. Shan Tsutsui, Lieutenant Governor, State of Hawai‘i, since December 27, 2012, whose address is State of Hawai‘i Executive Chambers, State Capital, Honolulu, HI 96813, Alleged War Crime—Principal perpetrator of pillaging;
  1. Brian Schatz, former Lieutenant Governor, State of Hawai‘i, from December 6, 2010 to December 26, 2012, whose address is State of Hawai‘i Executive Chambers, State Capital, Honolulu, HI 96813, Alleged War Crime—Principal perpetrator of pillaging;
  1. Duke Aiona, former Lieutenant Governor, State of Hawai‘i, from December 4, 2002 to December 6, 2010, whose address is State of Hawai‘i Executive Chambers, State Capital, Honolulu, HI 96813, Alleged War Crime—Principal perpetrator of pillaging;
  1. Mazie Hirono, former Lieutenant Governor, State of Hawai‘i, from December 2, 1994 to December 2, 2002, whose address is State of Hawai‘i Executive Chambers, State Capital, Honolulu, HI 96813, Alleged War Crime—Principal perpetrator of pillaging;
  1. Frederik Pablo, former Director of Taxation, State of Hawai‘i, from 2010 to 2014, whose address is State of Hawai‘i Executive Chambers, State Capital, Honolulu, HI 96813, Alleged War Crime—Principal perpetrator of pillaging;
  1. Stanley Shiraki, former Director of Taxation, State of Hawai‘i, from 2009 to 2010, whose address is State of Hawai‘i Executive Chambers, State Capital, Honolulu, HI 96813, Alleged War Crime—Principal perpetrator of pillaging;
  1. Kurt Kawafuchi, former Director of Taxation, State of Hawai‘i, from 2006 to 2009, whose address is State of Hawai‘i Executive Chambers, State Capital, Honolulu, HI 96813, Alleged War Crime—Principal perpetrator of pillaging;
  1. Joshua Wisch, former Deputy Director of Taxation, State of Hawai‘i, from 2012 to 2013, and currently serving as Spokesman for the Attorney General’s Office of the State of Hawai‘i, whose address is State of Hawai‘i Executive Chambers, State Capital, Honolulu, HI 96813, Alleged War Crime—Principal perpetrator of pillaging;
  1. Randolf L.M. Baldemor, former Deputy Director of Taxation, State of Hawai‘i, from 2010 to 2012, whose address is State of Hawai‘i Executive Chambers, State Capital, Honolulu, HI 96813, Alleged War Crime—Principal perpetrator of pillaging;
  1. Ronald B. Randall, former Deputy Director of Taxation, State of Hawai‘i, from 2009 to 2010, whose address is State of Hawai‘i Executive Chambers, State Capital, Honolulu, HI 96813, Alleged War Crime—Principal perpetrator of pillaging;
  1. Sandra Yahiro, former Deputy Director of Taxation, State of Hawai‘i, from 2006 to 2009, whose address is State of Hawai‘i Executive Chambers, State Capital, Honolulu, HI 96813, Alleged War Crime—Principal perpetrator of pillaging;
  1. Bernard Carvalho, Mayor for Kaua‘i County, State of Hawai‘i, since December 1, 2008, whose address is 4444 Rice St., Suite 235, Lihue, HI 96766, Alleged War Crime—Principal perpetrator of pillaging;
  1. Kaipo Asing, former Mayor for Kaua‘i County, State of Hawai‘i, from July 17, 2008 to December 1, 2008, whose address is 4444 Rice St., Suite 235, Lihue, HI 96766, Alleged War Crime—Principal perpetrator of pillaging; and
  1. Bryan Baptiste, former Mayor for Kaua‘i County, State of Hawai‘i, from 2002 to July 17, 2008, who is deceased, Alleged War Crime—Principal perpetrator of pillaging.

These individuals are named as alleged war criminals for pillaging, unlawful appropriation of property, unfair trial and unlawful confinement, which are all war crimes under the Fourth Geneva Convention (1949) and international humanitarian law.

To understand the background of the alleged war crimes committed against Kale Kepekaio Gumapac by Deutsche Bank and State of Hawai‘i officials, Big Island Video News uploaded a 5-part news series in 2013.

Doctoral Dissertation Defense – The Hawaiian Kingdom as a Power in the World

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***UPDATE. Lorenz Gonschor successfully defended his dissertation. He will be graduating in May 2016 with a Ph.D. in political science. His committee members were comprised of Associate Professor Noelani Goodyear–Ka‘ōpua, Committee Chair, Professor John Wilson, Associate Professor Ehito Kimura, Assistant Professor Colin Moore, Professor Niklaus Schweizer, and Assistant Professor Kamana Beamer.

According to the Office of Graduate Education at the University of Hawai‘i at Manoa, all doctoral dissertation defenses are open to the public. Gonschor_Defense

Dr. Keanu Sai’s Presentation on the Island of Kaua‘i

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On February 26, 2016, Dr. Keanu Sai and Ph.D. candidate Lorenz Gonschor each gave a presentation on the legal and political history of the Hawaiian Kingdom at Wilcox Elementary School for the community of Kaua‘i.

Dr. Sai and Gonschor were invited by the Hui Aloha ‘Aina o Kaua‘i as part of Halawai Kū`oko`a, a series of 6 monthly events, open to the public and free of charge.

According to Hui Aloha ‘Aina o Kaua‘i, the purpose of the events is to educate the residents of Kaua’i of the legal and historical facts surrounding Hawai‘i.

We are witnessing a convergence of two very different versions of Hawaiian history:

One version claims Hawai‘i is the 50th State of the United States of America, which by their own admission is flawed. See:

U.S. Department of State’s Website: Article on Hawaiian Annexation Removed

https://hawaiiankingdom.org/blog/u-s-d…

The other belief is that Hawai`i is an independent nation, since 1843, enduring a prolonged, unlawful, belligerent occupation by the United States of America

Our hope is to provide clarity and an opportunity for residents to ask questions and ultimately be able to make informed decisions.

This is a kākou thing. This is a “we” thing.

The Misuse of the term Self-determination Regarding Hawai‘i

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Whether by chance or design, the term “self-determination” is used to confuse an already confusing situation regarding Hawai‘i. The term is constantly applied as a sound bite employed by individuals who don’t have an understanding of its application. In news coverage of the so-called nation building process of Native Hawaiians, the term is so constantly used that it lost its meaning or that its true meaning was never known in the first place.

In her 1991 law article titled, Historical and Contemporary Hawaiian Self-Determination: A Native Hawaiian Perspective (8 Ariz. J. Int’l & Comp. L. 77), Mililani Trask wrote, “Since [Native] Hawaiians never surrendered their political rights through treaties nor voted on annexation, they fall under the United Nations category of a ‘non-self-governing people.’” Is Mililani correct? This begs the question, what is the United Nations definition of “non-self-governing”? And based on this definition, does it apply to Hawai‘i? To know what is “non-self-governing,” we need to know first the definition of “self-governing.”

Since its creation in 1945, the United Nations defines self-governing three ways: first, as an independent State, second, a State in association with another State, and, third, total incorporation into an existing State, all three of which can only occur through consent of the particular people. The process of consent is called “self-determination,” which is also referred to as “nation building.” Consequently, the term “non-self-governing” is a people who are neither an independent State, a State in association with another State, or have been totally incorporated into an existing State.” This is consistent with Encyclopedia Britannica’s definition of self-determination, which is “the process by which a group of people, usually possessing a certain degree of national consciousness, form their own state and choose their own government.”

The principle of self-determination is always opposed to the State and is not an attribute of a State. In other words, States do not have a right to self-determination, but rather an obligation for member States of the United Nations since 1945, to recognize that peoples, who are non-States, have this right to choose for themselves their form of governance. In the Charter of the United Nations, Article 1 provides, “The Purposes of the United Nations are…to develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples, and to take other appropriate measures to strengthen universal peace.” For the purpose of self-determination, the term “people” or “peoples” are not the State, but rather reside within the State.

What has to be kept in mind was that when the Charter was drafted in 1945 the term “self-determination of peoples” was specifically referring to “Mandate” and “Trust” territories that were under the administration of States since the end of the First World War, and colonial territories of the victors of the Second World War under Article 73(e) of the United Nations Charter. Mandate territories were former territorial units of Germany and the Ottoman Empire that were taken under the control of members of the League of Nations, and Trust territories were former mandate territories under the League of Nations, and territories formerly held by Japan prior to the Second World War. The victors of the Second World War also were required to regularly report the status of their colonial territories, being non-self-governing, on the position where each of its territories stood toward self-governance. The administration of territories, however, and the fostering of self-determination, remained with the colonial State, unlike the Mandate and Trust territories. Article 73(b) of the UN Charter requires the administrating State “to develop self-government, to take due account of the political aspirations of the peoples, and to assist them in the progressive development of their free political institutions.”

These territorial units were often referred to as colonial territories of empires that were comprised of different people than that of the citizenry of the colonial power. An example of a Mandate territory is Iraq, being a former colonial territory of the Ottoman Empire, under the administration of the United Kingdom after the First World War. Iraq achieved independence as an independent State in 1932. The Federated States of Micronesia was a Trust territory under the administration of the United States of America. Micronesia achieved independence as a State in association with the United States in 1986. Fiji was an Article 73(e) territory that achieved independence as a State from the United Kingdom in 1970. Iraq, Micronesia, and Fiji, as non-self-governing territories, exercised self-determination in order to achieve self-governance and became independent sovereign States.

Indigenous people, however, are not placed on the same status as Mandate, Trust or Article 73(e) territories. Indigenous peoples are peoples that reside within the territories of the State themselves, which are not considered under international law as colonial territories. According to the United Nations Special Rapporteur Jose Martinez Cobo of the UN Sub-Commission on the Prevention of Discrimination and Protection of Minorities, self-determination “constitutes the exercise of free choice by indigenous peoples, who must, to a large extent, create the specific content of this principle, in both its internal and external expressions, which do not necessarily include the right to secede from the State in which they live and to set themselves up as sovereign entities. This right may in fact be expressed in various forms of autonomy within the State.” Autonomy and independence are not synonymous, whereby the former is governance “within” a State and the latter is governance “separate” from the State.

In 2001, the United States confirmed Cobo’s definition of self-determination for indigenous peoples. According to the United States National Security Council, “Indigenous peoples have a right of internal self-determination. By virtue of that right, they may negotiate their political status within the framework of the existing nation-state and are free to pursue their economic, social, and cultural development. Indigenous peoples, in exercising their right of internal self-determination, have the internal right to autonomy or self-government in matters relating to their local affairs, including determination of membership, culture, language, religion, education, information, media, health, housing, employment, social welfare, maintenance of community safety, family relations, economic activities, lands and resources management, environment and entry by non-members, as well as ways and means for financing these autonomous functions.”

The original members of the United Nations only numbered 51 States, and through self-determination of peoples, the membership of the United Nations grew exponentially to 193, which were all former non-self-governing peoples. In 1843, the Hawaiian Kingdom achieved international recognition of independence as a State in the nineteenth century, what one hundred forty two States, including Iraq, Micronesia and Fiji, achieved in the twentieth century. The United Nations is an international organization of States, but not all States are members of the United Nations. Switzerland is an example of a State that was not a member of the United Nations until 2002. The Hawaiian Kingdom, as well, is not a member of the United Nations, but is an independent and sovereign State today.

In 1946, the United States disguised the prolonged occupation of the Hawaiian Kingdom, by reporting Hawai‘i to the United Nations under Article 73(e) of the UN Charter as if it was a non-self-governing territory of the United States. This began the deception that Hawai‘i was annexed as a colonial territory to the United States, which formed the foundation for the use of the terms today such as colonization, indigenous rights, and self-determination that only reinforces the illusion that Hawai‘i is a part of the United States.

Self-determination does not apply to Hawai‘i, because Hawai‘i already attained the international status as an independent State in the nineteenth century, like Iraq, Micronesia and Fiji in the twentieth century, which was confirmed by the Permanent Court of Arbitration during arbitral proceedings from 1999-2001, in Larsen v. Hawaiian Kingdom. The concept of indigenous people, as well, does not apply to the natives of Hawai‘i, because the Hawaiian Islands remain the territory of the Hawaiian Kingdom and not the United States, and that the natives of Hawai‘i are the ones who comprised the majority of the citizenry of the Hawaiian Kingdom as an independent and sovereign State.

Natives of the Hawaiian Islands are not Indigenous People, They’re Aboriginal

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•This blog entry has been revised to ensure historical accuracy.

There is much confusion regarding the political term indigenous people and its application or misapplication to the natives of the Hawaiian Islands. But before we can discern and qualify whether or not the natives of Hawai‘i are an indigenous people, we need to begin with definitions. By definition, indigenous is “originating or occurring naturally in a particular place,” whereas aboriginal is “inhabiting or existing in a land from the earliest times,” also referring to human migration as “first to arrive in a region.” According to Hawaiian history, the natives of the Hawaiian Islands, who are Polynesians, did not originate in the islands but rather came from central Polynesia between 1 and 300 A.D.

The term indigenous is common parlance in taxonomy, which is the branch of science concerned with the classification of plants and animals, e.g. the Black Bear is indigenous to the Americas, or the ‘Ohi‘a Lehua plant is indigenous to Hawai‘i. In this use, indigenous and endemic are synonymous. Aboriginal, on the other hand, is associated with migrations. You don’t refer to plants or animals as aboriginal. There are, however, instances of when Native Americans were called indigenous as early as 1838, but this also needs to be understood within the context of race relations at the time. Throughout the nineteenth century, Americans stereotypically referred to Native Americans as savages, even using the words noble and ignoble savage. This was a demeaning label as if Native Americans were animals.

The term indigenous as it applies in a “political context” to different people throughout the world appear to have been first coined in 1972 when the United Nations established a Sub-Commission on Prevention of Discrimination and Protection of Minorities. Jose R. Martinez Cobo served as Special Rapporteur and was the author of the Study on the Problem of Discrimination against Indigenous Populations. Cobo was the first to provide the following definition, “Indigenous communities, peoples and nations are those which, having a historical continuity with pre-invasion and pre-colonial societies that developed on their territories, consider themselves distinct from other sectors of the societies now prevailing on those territories, or parts of them.”

James Anaya, who served as Special Rapporteur on the Rights of Indigenous Peoples, defines indigenous peoples as “living descendants of pre-invasion inhabitants of lands now dominated by others. They are culturally distinct groups that find themselves engulfed by other settler societies born of forces of empire and conquest.” Both Cobo and Anaya refer to countries such as the United States of America and Mexico, where in both countries or States, there pre-existed tribal peoples such as the Apache or the Zapotec. Indigenous peoples would not apply to a State such as Germany because Germanic tribal peoples such as the Teutonic, Suebian or Gothic were the ones that formed the German State as we know it today. They were not invaded or colonized by a State when they were still tribal. This same logic would apply to the Tongan State where it was the Tongan people, who are Polynesian, that established their State that exist today.

On June 27, 1989, the concept of indigenous peoples was adopted by the International Labor Organization in its Indigenous and Tribal Peoples Convention (No. 169), which entered into force on September 5, 1991. Article 1 states: “This Convention applies to: (a) tribal peoples in independent countries whose social, cultural and economic conditions distinguish them from other sections of the national community, and whose status is regulated wholly or partially by their own customs or traditions or by special laws or regulations; (b) peoples in independent countries who are regarded as indigenous on account of their descent from the populations which inhabited the country, or a geological region to the which the country belongs, at the time of conquest or colonization or the establishment of present state boundaries and who, irrespective of their legal status, retain some or all of their own social, economic, cultural and political institutions.”

By these definitions, it is clear that indigenous peoples are distinguished from the State they reside in, and the term does not apply to the citizenry of States. In their journal article Indigenous “Sovereignty” and International Law: Revised Strategies for Pursuing “Self-Determination,” Corntassel and Primeau explain that indigenous peoples are viewed not as sovereign States, but rather “any stateless group” residing within the territorial dominions of existing sovereign States [17(2) Human Rights Quarterly 347 (1995)].

On September 13, 2007, the United Nations General Assembly passed a resolution proclaiming the United Nations’ Declaration on the Rights of Indigenous Peoples. While the Declaration has no definition of indigenous peoples, it does provide what rights indigenous peoples have within the States. What is clear is that the Declaration distinguishes between indigenous peoples and the State they reside in. In its preamble, the Declaration provides, “Convinced that the recognition of the rights of indigenous peoples in this Declaration will enhance harmonious and cooperative relations between the State and indigenous peoples, based on principles of justice, democracy, respect for human rights, non-discrimination and good faith,” and “Encouraging States to comply with and effectively implement all their obligations as they apply to indigenous peoples under international instruments, in particular those related to human rights, in consultation and cooperation with the peoples concerned.”

The first United States law to identify the natives of the Hawaiian Islands as indigenous is the 1993 joint resolution to acknowledge the 100th anniversary of the January 17, 1893 overthrow of the Kingdom of Hawai‘i, and to offer an apology to Native Hawaiians on behalf of the United States for the overthrow of the Kingdom of Hawai‘i. The Apology resolution stated, “Whereas, the indigenous Hawaiian people never directly relinquished their claims to their inherent sovereignty as a people or over their national laws to the United States, either through their monarchy or through a plebiscite or referendum.” In 2011, it was inserted in Act 195—Kana‘iolowalu, where it states, “The Native Hawaiian people are hereby recognized as the only indigenous, aboriginal, maoli people of Hawai‘i.” Act 195 also specifically made reference to the “United Nations Declaration on the Rights of Indigenous Peoples.”

This erroneous application of the political term indigenous people upon the natives of the Hawaiian Islands has been the cause of much confusion and assumes that natives never had a sovereign and independent State of their own. Through the explicit acknowledgment by the Permanent Court of Arbitration of the Hawaiian Kingdom as a State from 1999 to 2001, as well as academic and scholarly research, we now know this identification is a complete fabrication.

Since the Hawaiian Kingdom was recognized as a sovereign and independent State in the nineteenth century, the natives comprised its citizenry, which was called Hawaiian subjects. As a nationality, the Hawaiian citizenry was opened to non-natives who were either born on Hawaiian territory (jus soli), or naturalized, which had a residency requirement.

The term that was used to identify the natives amongst the Hawaiian citizenry was aboriginal Hawaiian; and the Hawaiian translation of aboriginal Hawaiian is kanaka maoli as opposed to kanaka Hawai‘i, which is Hawaiian subject. According to the 1890 Hawaiian census, there were 40,622 aboriginal Hawaiians (kanaka maoli), both pure and part, and 7,495 non-aboriginal Hawaiians (kanaka Hawai‘i), which included: 4,117 Portuguese; 1,701 Chinese and Japanese; 1,617 other White foreigners; and 60 other nationalities.

In her will dated October 31, 1883, Princes Bernice Pauahi Bishop set the foundation for the establishment of the Kamehameha Schools to be built in 1887. Article 13 of her will made specific reference to aboriginal Hawaiians, which states, “I direct my trustees to invest the remainder of my estate in such manner as they may think best…in the maintenance of said schools; …and to devote a portion of each years income to the support and education of orphans, and others in indigent circumstances, giving the preference to Hawaiians of pure or part aboriginal blood.” In other words, a person can be Hawaiian who is not “pure or part aboriginal blood.”

A similar provision was in the will of King William Charles Lunalilo who established Lunalilo Home for the Hawaiian elderly. Article 3 of his will dated June 7, 1871, states: “I order the Trustees…to expend the whole amount in the purchase of land and in the erection of a building or buildings on the Island of Oahu, of iron, stone, brick or other fire proof material, for the use and accommodation of poor, destitute and infirm people of Hawaiian (aboriginal) blood or extraction, giving preference to old people.”

Aboriginal Hawaiians are not indigenous people, but remain the majority of the citizenry of a sovereign and independent State—the Hawaiian Kingdom. The rights of the citizens of an occupied State is enshrined under the 1949 Geneva Convention (IV) relative the Protection of Civilian Persons in Time of War, and the 1977 Additional Protocol (I) relating to the Protection of Victims of International Armed Conflicts.

The Hawaiian Kingdom was not invaded or colonized by the United States before it became a State under international law, and therefore its people cannot be considered as indigenous. Instead, international law protects and maintains the continuity of the State despite it being under an illegal and prolonged occupation since the Spanish-American War, which is similar to Germany’s occupation of Luxembourg from 1914-1918 during World War I.

The Difference between International Law and National Law

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The definition of international law centers on the word “inter,” which means “between,” as opposed to “intra,” which means “within.” So, literally, “international law” is defined as “law between nations (States),” which stem from agreements, embodied in a treaty, or customs that is recognized by all nations. According to Article 38 of the Statute of the International Court of Justice, sources of international law, in order of precedence, are: (a) international conventions (treaties); (b) international custom, as evidence of a general practice accepted as law; (c) the general principles of law recognized by civilized nations; and (d) judicial decision and the teachings of the most highly qualified publicists of the various nations.

National law, which is often referred to as domestic law, are those laws that exist “within” a particular nation (State). National laws are also recognized as the expression of the State itself, since it emanates from the local authority, which could be the law making institution, such as the United States Congress or the French Parliament. In some States, called States with a common law tradition, laws could also come from decisions made by judges, which is also called case law. Other States, called States with a civil law tradition, do not recognize judge made law, but only laws enacted by the legislature.

In 1936, the United States Supreme Court explained the difference between the two laws. In particular, the case centered on a joint resolution passed by the Congress on May 28, 1934, that prohibited the sale of arms and munitions of war in the United States to Bolivia, and a proclamation by the President on the same day that established an embargo in order to carry out the joint resolution. The defendant, Curtiss-Wright Export Corporation, was indicted for violating the joint resolution.

In United States v. Curtiss-Wright Export Corporation, the defendant was alleged to have sold fifteen machine guns headed to Bolivia in violation of the joint resolution. Federal legislation includes bills and joint resolutions that are signed by the United States President and made into law. As part of its decision, the Supreme Court needed to distinguish between the joint resolution, being a Congressional law, and the power of the President under international law. The Supreme Court stated, “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.”

In The Appollon, the Supreme Court also concluded, “The laws of no nation can justly extend beyond its own territories except so far as regards is own citizens. They can have no force to control the sovereignty or rights of any other nation within its own jurisdiction.” In other words, Congressional legislation has no effect beyond the territorial borders of the United States, but when the United States operates in a foreign State it is bound by international laws.

Legislation of every independent State, to include the United States Congress, is not a source of international law, but rather a source of national law of the State whose legislature enacted it. In The Lotus case, the international court 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 [Lotus, PCIJ, ser. A no. 10, 18 (1927)].”

After two failed attempts to acquire Hawai‘i by a treaty, which is international law, from an insurgency established by the United States diplomat on January 17, 1893, and admitted by President Grover Cleveland to be unlawful, the United States Congress enacted a joint resolution “purporting” to annex the Hawaiian Islands on July 6, 1898, and President William McKinley signed it into United States law the following day. The President and Congress stated it was a military necessity to annex the Hawaiian Islands during the Spanish-American War in order to protect the west coast of the United States from foreign invasion.

The joint resolution was introduced as House Resolution no. 259 on May 4, 1898, after the Senate could not garner enough votes to ratify a so-called treaty of annexation. During the debate in the Senate, a list of Senators rebuked the theory that a joint resolution has the effect of annexing a foreign territory.

Sen Augustus BaconSenator Augustus Bacon, stated, “The proposition which I propose to discuss is that a measure which provides for the annexation of foreign territory is necessarily, essentially, the subject matter of a treaty, and that the assumption of the House of Representatives in the passage of the bill and the proposition on the part of the Foreign Relations Committee that the Senate shall pass the bill, is utterly without warrant in the Constitution [31 Cong. Rec. 6145 (June 20, 1898)].”

ALLEN,_William_VincentSenator William Allen stated, “A Joint Resolution if passed becomes a statute law. It has no other or greater force. It is the same as if it would be if it were entitled ‘an act’ instead of ‘A Joint Resolution.’ That is its legal classification. It is therefore impossible for the Government of the United States to reach across its boundary into the dominion of another government and annex that government or persons or property therein. But the United States may do so under the treaty making power [31 Cong. Rec. 6636 (July 4, 1898)].”

Thomas_B._TurleySenator Thomas Turley stated, “The Joint Resolution itself, it is admitted, amounts to nothing so far as carrying any effective force is concerned. It does not bring that country within our boundaries. It does not consummate itself [31 Cong. Rec. 6339 (June 25, 1898)].”

In a speech in the Senate where the Senators knew that the 1897 treaty was not ratified, Senator Stephen White stated, “Will anyone Sen Stephen Whitespeak to me of a ‘treaty’ when we are confronted with a mere proposition negotiated between the plenipotentiaries of two
countries and ungratified by a tribunal—this Senate—whose concurrence is necessary? There is no treaty; no one can reasonably aver that there is a treaty. No treaty can exist unless it has attached to it not merely acquiescence of those from whom it emanates as a proposal. It must be accepted—joined in by the other party. This has not been done. There is therefore, no treaty [31 Cong. Rec. Appendix, 591 (June 21, 1898)].”

Senator Allen also rebuked that the joint resolution was a contract or agreement with the so-called Republic of Hawai‘i. He stated, “Whenever it becomes necessary to enter into any sort of compact or agreement with a foreign power, we cannot proceed by legislation to make that contract [31 Cong. Rec. 6636 (July 4, 1898)].”

According to Westel Willoughby, a United States constitutional scholar, “The constitutionality of the annexation of Hawaii, by a simple legislative act, was strenuously contested at the time both in Congress and by the press. The right to annex by treaty was not denied, but it was denied that this might be done by a simple legislative act…Only by means of treaties, it was asserted, can the relations between States be governed, for a legislative act is necessarily without extraterritorial force—confined in its operation to the territory of the State by whose legislature it is enacted.”

Ninety years later, in 1988, the United States Attorney General reviewed these Congressional records and in a legal opinion stated, “Notwithstanding these constitutional objections, Congress approved the joint resolution and President McKinley signed the measure in 1898. Nevertheless, whether this action demonstrates the constitutional power of Congress to acquire territory is certainly questionable.” The Attorney General then concluded, “It is therefore unclear which constitutional power Congress exercised when it acquired Hawaii by joint resolution.”

Hawai‘i was never a part of the United States, and has been under an illegal and prolonged occupation since the Spanish-American War.

Larsen v. Hawaiian Kingdom: Two Jurisdictions of the Permanent Court of Arbitration

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There appears to be some confusion as to what took place at the Permanent Court of Arbitration (PCA). Some contend that the PCA “did not” recognize the continued existence of the Hawaiian Kingdom as a “State” under international law because the Arbitral Tribunal did not pronounce that the Hawaiian Kingdom continues to exist. This false contention assumes that the PCA and the Arbitral Tribunal are one and the same entity. The PCA and the Arbitral Tribunal it creates are two separate entities.

In international arbitration, there are two distinct jurisdictions—“jurisdiction of the institution” and “jurisdiction of the arbitral tribunal.” In 2003, the United Nations Conference on Trade and Development published a module for a course on “Dispute Settlement” that explains how the Permanent Court of Arbitration (PCA) operates, and the two types of jurisdictions is explained on p. 15-16. The PCA is the “institution,” which is separate and distinct from the “arbitral tribunal” it creates. All arbitral tribunals created by the PCA are ad hoc because it depends on the subject of the dispute and who can serve as qualified arbitrators on the tribunal.

Article 26 of the 1899 Hague Convention for the Pacific Settlement of International Disputes, which established the PCA, states “The jurisdiction of the Permanent Court may, within the conditions laid down in the Regulations, be extended to disputes between non-Signatory Powers, or between Signatory Powers and non-Signatory Powers, if the parties are agreed on recourse to this Tribunal.” This article was superseded by Article 47 of the 1907 Hague Convention for the Pacific Settlement of International Disputes, which provides, “The jurisdiction of the Permanent Court may, within the conditions laid down in the regulations, be extended to disputes between non-Contracting Powers or between Contracting Powers and non-Contracting Powers, if the parties are agreed on recourse to this Tribunal.” Contracting Powers and non-Contracting Powers are States.

Since 1930, the PCA expanded its jurisdiction to non-States involved with international disputes. According to the rules of the PCA, when an arbitration agreement is submitted to the PCA for dispute-resolution it must be: (1) between two or more States; (2) between a State and an international organization (e.g. United Nations); (3) between a State and a private party; or (4) between an international organization and a private party.

Here are examples of the four types of arbitration cases that have been convened by the Permanent Court of Arbitration.

When the arbitration agreement between Lance Larsen and the Hawaiian Kingdom was submitted to the PCA for dispute resolution, the PCA had to first determine if it had institutional jurisdiction before it could establish an ad hoc arbitral tribunal. In other words, the PCA had to determine whether or not the parties to the arbitration agreement were two States; a State and an international organization; a State and a private entity; or an international organization and a private entity. From November 8, 1999, when the arbitration agreement was submitted to the PCA, to April 2000 when the arbitral tribunal was established, the PCA was doing its due diligence in determining whether or not the Hawaiian Kingdom existed as a State under international law.

It was only after the PCA confirmed the Hawaiian Kingdom does exists as a “State” and Larsen is a “private entity,” it initiated the process to convene the arbitral tribunal. With Mr. Keoni Agard serving as the appointing authority, he worked directly with the PCA who provided him with a list of names and their expertise for consideration by Mr. Larsen and the Hawaiian government. Since the dispute centered on unlawful imposition of American laws within the Hawaiian Kingdom during occupation and that the United States declined the offer to join in the arbitration, the list of arbitral candidates and their expertise focused on these areas.

Christopher Greenwood PCAThe Hawaiian government selected Professor Christopher Greenwood, QC, whose expertise focused on the law of occupation. Greenwood was a Professor of International Law at the London School of Economics. His often cited work was “The Administration of Occupied Territory in International Law,” International Law and the Administration of Occupied Territories (Emma Playfair ed., 1992); “International Humanitarian Law (Laws of War)—Revised Report for the Centennial Commemoration of the First Hague Peace Conference 1899,” Centennial of the First International Peace Conference (Frits Kalshoven, 2000).

Gavan Griffith PCANinia Parks PCAMs. Ninia Parks, counsel for Lance Larsen, selected Gavan Griffith, QC, whose expertise focused on indispensable third parties. Griffith was the former Solicitor General of Australia and represented Australia before the International Court of Justice in the East Timor case (Portugal v. Australia) and Nauru case(Nauru v. Australia), where the issue before the ICJ was the principle of indispensable third parties in international proceedings.

James Crawford PCAOnce Mr. Agard was able to confirm the selections with the PCA, these two arbitrators would recommend a person to be the president of the tribunal. Both Greenwood and Griffith nominated ProfessorJames Crawford, SC. Crawford was a Professor of International Law at Lauterpacht Research Centre for International Law, University of Cambridge. He was a member of the United Nations International Law Commission (UNILC) and from 1998-2001 served as Special Rapporteur who was responsible for completing the Articles on Responsibility of States for Internationally Wrongful Acts.

Hawaiian Government PCA

The Hawaiian government was very impressed with the qualifications of Professor Crawford and notified Mr. Agard that it would accept Professor Greenwood and Dr. Griffith’s recommendation for the president. Ms. Ninia Parks, counsel for Larsen, also confirmed the nomination. This is when the arbitral proceedings began and oral hearings held at the PCA in The Hague in December 2000.

In the arbitral award, the Tribunal concluded that it did not have jurisdiction over the dispute on whether the Hawaiian government was negligent for allowing the unlawful imposition of American laws within the Hawaiian Kingdom, which led to the incarceration of Larsen, because the United States was an indispensable third party. In other words, the Hawaiian government prevailed because Mr. Larsen could not come after the Hawaiian government unless the United States was a party to the case. This case was not about whether or not the Hawaiian Kingdom exists as a State, it merely centered on the allegation of negligence on the part of the Hawaiian government.

During the proceedings, the Hawaiian government engaged in artful pleading where it was attempting to have the tribunal, within its rules, to pronounce the existence of the Hawaiian Kingdom in order to address Mr. Larsen’s allegation that it was allowing the unlawful imposition of American laws within Hawaiian territory. The Hawaiian government already knew that the Permanent Court of Arbitration, as an institution, explicitly recognized the Hawaiian Kingdom as a “State,” because if it didn’t, the PCA would not have never convened the Arbitral Tribunal.

The issue being considered in this case by the “arbitral tribunal” centered on Larsen’s allegation of negligence on the part of the Hawaiian government.  It was not attempting to determine whether or not the Hawaiian Kingdom exists as a State.  The “institution” (PCA) had already made that determination, according to its rules, and determined that it had jurisdiction to proceed to form the arbitral tribunal whose job it was then to investigate the allegation of negligence.

Although, during the proceedings, the Hawaiian government did engage in artful pleading where it attempted to get the “arbitral tribunal” to pronounce, within its rules, the existence of the Hawaiian Kingdom in order to address Mr. Larsen’s allegation that it was allowing the unlawful imposition of American laws within Hawaiian territory.  This attempt was not necessary because the Hawaiian government already knew that the PCA concluded that as an institution it had jurisdiction because it confirmed that the Hawaiian Kingdom continues to exist as a “State” and that Lance Larsen was a “Private entity.”  The PCA “explicitly” states this in its case view of the Larsen case where it notes “Name(s) of claimant(s) Lance Paul Larsen (Private Entity) Name(s) of respondent(s) The Hawaiian Kingdom (State).”

The Arbitral Tribunal, however, being a separate entity from the PCA, concluded that it did not have jurisdiction over the dispute between the Hawaiian government and its national because the United States government was a necessary third party. If Hawai‘i was the so-called 50th State of the United States, the PCA would have never accepted the case at the onset.

Larsen vs. Hawaiian Kingdom – Bearing Witness to an Historical Event

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The following article was written by Allen Kale‘iolani Hoe, attorney-at-law, and was first published in the Polynesian newspaper in December 2000. Hoe was an invited “observer” to oral hearings in Larsen vs. Hawaiian Kingdom at the Permanent Court of Arbitration, The Hague, on December 7, 8 and 11, 2000.

Hoe (Flag)

The words, “In the Permanent Court of Arbitration, Case No. 99001,” spoken by the Clerk of the Court in the opening moments of the case, Lance Paul Larsen vs. The Hawaiian Kingdom, literally took my breath away. It was a moment to be cherished and remembered by every Hawaiian, whether kanaka maoli or a descendant of Hawaiian subjects.

Personally, this moment had evolved quickly after receiving the joint invitation by the Parties to attend the proceedings as an Observer. Within a couple of weeks of receiving the invitation I found myself half way around the world entering what has been appropriately described as “the grand edifice of Civilization.”

In 20 plus years as a united states educated attorney, including service as a district court judge, I have participated in numerous legal proceedings. However, being at the Peace Palace that day reawakened my belief that there is a path which Hawaiians may follow. This path is not encumbered by a century of lies and apologetic rhetoric by united states politicians who have denied us our rights to sit as equals within the international community of Nation States.

Crossing 10 time zones on a 15 hour flight provided me with an opportunity to review the voluminous legal briefs which the parties had submitted to the Court. Like most observers I had taken an interest in the development of this case from the bits and pieces of information provided through my following of Lance Larsen’s case within the Hawaii courts as well as KCCN 1420 a.m.’s informative program “Perspective.”

The depth of the historical and legal principles applicable in international law was never fully appreciated by me until I had this opportunity to carefully review and consider the issues framed by this case. I was awe struck by the manner in which the Parties had crafted this case for presentation to the Court. The memorials filed by the Hawaiian Kingdom demonstrate clearly its entitlement to participate in this process under international law.

Perhaps for too long now we have just accepted the propaganda that our american destiny is fait complie. We have been smothered by the dreams and desires of non Hawaiians to become americans that we have allowed ourselves to accept the united states government’s official policy to deny that the Hawaiian Kingdom government existed or continues to this date under the well established principles of International Law.

The fact that the Hawaiian Kingdom was transformed from an “autocracy” to a constitutional monarchical form of government by Kamehameha III, which was acknowledged by Britain and France in the Anglo-Franco Proclamation of 1843 is another of the binding historical and legal principles which has been pushed on the side in favor of the american dream; to the great disadvantage of all Hawaiians.

This case represents the first clear opportunity to expose to the International Community this dirty little secret which the united states has tried to keep hidden within in its dark closet of “judge me by my words not my deeds.” For more than a century we have been forced to acknowledge the criminal acts of Dole, Thurston and Stevens along with the unlawful conduct of american presidents and politicians against Hawaiians as american heroics.

The enormity of this case really struck me towards the end of the first day of the proceedings. All those privileged to attend clearly recognized that fact. For me, this moment should not be allowed to pass without some recognition in honor of our kupuna who as members of the Men and Women’s Hawaiian Patriotic League began this struggle a century ago in their written declarations objecting to the illegal acts of the united states of america.

Hae Hawai‘i (the national flag) is for me, and perhaps for many others the most important symbol of who we are as a Nation. Although the united states and the state of hawaii has attempted to subvert its position, it is our flag that once proudly flew over Hawaiian Kingdom Consulates through out the world. We could not leave Den Haag (“The Hague” in Dutch) without sharing this moment with our kupuna through the raising of Hae Hawai‘i over this city which represents the hopes and dreams of all true Hawaiians.

What to do, perhaps the silver lining in the cloud of being a day away from Hawai‘i was that as the day was ending at the Peace Palace it was just beginning in Honolulu. Thus, I immediately placed a call to my secretary with the task of acquiring a large Hawaiian flag and finding the fastest and safest way to get it to Den Haag. The precious package left Honolulu via Fedex on the afternoon of December 7, and after stops in Oakland, California and clearing US Customs in Memphis, Tennessee it arrived in Paris, France at Midnight, December 10th and was delivered to me on the morning of the 11th, which ironically was to be the last day of the proceedings which had originally scheduled to conclude on December 12.

The role of the Hawaiian Patriotic League in pursuit of justice over all these years I felt needed to be recognized and honored. The Hui Kalai‘aina (a Hawaiian Political Party) is another Hawaiian Organization which played an important role in the Hawaiian Kingdom Government. In 1996 numerous other Hawaiians along with myself revived and reconstituted the Hui Kalai‘aina as a Hawaiian political party to promote greater awareness and education on historic and contemporary Hawaiian political issues. As a Director of Hui Kalai‘aina this ho‘okupu of Hae Hawai‘i to the Hawaiian Patriotic League in honor of the Hawaiian Kingdom was a small gesture of all our aloha for their dedication and sacrifice in our behalf for Justice for all Hawaiians.

With that purpose in mind I asked all those in attendance from Hawaii to please sign their names along the border of Hae Hawai‘i. With signatures secured I presented it to the Acting Council of Regency, His Excellency, Agent David Keanu Sai, Acting Minister of Interior along with the best wishes of all those privileged to attend and to sign. One request was made that the Council secure the appropriate place to raise it over the host city of Den Haag as a symbol of its right to reclaim its place within the international community of Nation States.

PCA Flag

Thus, with great pride I was a witness to the lowering of the united states flag and the raising of Hae Hawai‘i to its rightful place next to the flags of Britain, France and the Netherlands. This took place across from the Peace Palace along the Scheveningseweg in Den Haag. My dream now is to witness this again in my country in my lifetime. Pau.

Kanaka Express – Interview with Professor Schweizer

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Kale Gumapac, host of Kanaka Express, interviews Dr. Niklaus Schweizer on history of the Hawaiian Kingdom and its impact today. Dr. Schweizer is a professor at the University of Hawai‘i at Manoa and has published books and articles on the history of the Hawaiian Kingdom. Dr. Schweizer also served as the Honorary Consul for the Swiss Confederation and is currently consul emeritus of the Consular Corps of Hawai‘i.

National Holiday – Independence Day

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November 28th is the most important national holiday in the Hawaiian Kingdom. It is the day Great Britain and France formally recognized the Hawaiian Islands as an “independent state” in 1843, and has since been celebrated as “Independence Day,” which in the Hawaiian language is “La Ku‘oko‘a.” Here follows the story of this momentous event from the Hawaiian Kingdom Board of Education history textbook titled “A Brief History of the Hawaiian People” published in 1891.

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The First Embassy to Foreign Powers—In February, 1842, Sir George Simpson and Dr. McLaughlin, governors in the service of the Hudson Bay Company, arrived at Honolulu George Simpsonon business, and became interested in the native people and their government. After a candid examination of the controversies existing between their own countrymen and the Hawaiian Government, they became convinced that the latter had been unjustly accused. Sir George offered to loan the government ten thousand pounds in cash, and advised the king to send commissioners to the United States and Europe with full power to negotiate new treaties, and to obtain aHaalilio guarantee of the independence of the kingdom.

Accordingly Sir George Simpson, Haalilio, the king’s secretary, and Mr. Richards were appointed joint ministers-plenipotentiary to the three powers on the 8th of April, 1842.

William RichardsMr. Richards also received full power of attorney for the king. Sir George left for Alaska, whence he traveled through Siberia, arriving in England in November. Messrs. Richards and Haalilio sailed July 8th, 1842, in a chartered schooner for Mazatlan, on their way to the United States*

*Their business was kept a profound secret at the time.

Proceedings of the British Consul—As soon as these facts became known, Mr. Charlton followed the embassy in order to defeat its object. He left suddenly on September 26th, 1842, for London via Mexico, sending back a threatening letter to the king, in which he informed him that he had appointed Mr. Alexander Simpson as acting-consul of Great Britain. As this individual, who was a relative of Sir George, was an avowed advocate of the annexation of the islands to Great Britain, and had insulted and threatened the governor of Oahu, the king declined to recognize him as British consul. Meanwhile Mr. Charlton laid his grievances before Lord George Paulet commanding the British frigate “Carysfort,” at Mazatlan, Mexico. Mr. Simpson also sent dispatches to the coast in November, representing that the property and persons of his countrymen were in danger, which introduced Rear-Admiral Thomas to order the “Carysfort” to Honolulu to inquire into the matter.

Recognition by the United States—Messres. Richards and Haalilio arrived in Washington early in December, and had several interviews with Daniel Webster, theDaniel Webster Secretary of State, from whom they received an official letter December 19th, 1842, which recognized the independence of the Hawaiian Kingdom, and declared, “as the sense of the government of the United States, that the government of the Sandwich Islands ought to be respected; that no power ought to take possession of the islands, either as a conquest or for the purpose of the colonization; and that no power ought to seek for any undue control over the existing government, or any exclusive privileges or preferences in matters of commerce.” *

*The same sentiments were expressed in President Tyler’s message to Congress of December 30th, and in the Report of the Committee on Foreign Relations, written by John Quincy Adams.

Success of the Embassy in Europe—The king’s envoys proceeded to London, whereAberdeen they had been preceded by the Sir George Simpson, and had an interview with the Earl of Aberdeen, Secretary of State for Foreign Affairs, on the 22d of February, 1843.

Lord Aberdeen at first declined to receive them as ministers from an independent state, or to negotiate a treaty, alleging that the king did not govern, but that he was “exclusively under the influence of Americans to the detriment of British interests,” and would not admit that the government of the United States had yet fully recognized the independence of the islands.

Sir George and Mr. Richards did not, however, lose heart, but went on to Brussels March 8th, by a previous arrangement made with Mr. Brinsmade. While there, they had an interview with Leopold I., king of the Belgians, who received them with great courtesy, and promised to use his influence to obtain the recognition of Hawaiian independence. This influence was great, both from his eminent personal qualities and from his close relationship to the royal families of England and France.

Encouraged by this pledge, the envoys proceeded to Paris, where, on the 17th, M. Guizot, the Minister of Foreign Affairs, received them in the kindest manner, and at once engaged, in behalf of France, to recognize the independence of the islands. He made the same statement to Lord Cowley, the British ambassador, on the 19th, and thus cleared the way for the embassy in England.

They immediately returned to London, where Sir George had a long interview with Lord Aberdeen on the 25th, in which he explained the actual state of affairs at the islands, and received an assurance that Mr. Charlton would be removed. On the 1st of April, 1843, the Earl of Aberdeen formally replied to the king’s commissioners, declaring that “Her Majesty’s Government are willing and have determined to recognize the independence of the Sandwich Islands under their present sovereign,” but insisting on the perfect equality of all foreigners in the islands before the law, and adding that grave complaints had been received from British subjects of undue rigor exercised toward them, and improper partiality toward others in the administration of justice. Sir George Simpson left for Canada April 3d, 1843.

Recognition of the Independence of the Islands—Lord Aberdeen, on the 13th of June, assured the Hawaiian envoys that “Her Majesty’s government had no intention to retain possession of the Sandwich Islands,” and a similar declaration was made to the governments of France and the United States.

At length, on the 28th of November, 1843, the two governments of France and England united in a joint declaration to the effect that “Her Majesty, the queen of the United Kingdom of Great Britain and Ireland, and His Majesty, the king of the French, taking into consideration the existence in the Sandwich Islands of a government capable of providing for the regularity of its relations with foreign nations have thought it right to engage reciprocally to consider the Sandwich Islands as an independent state, and never to take possession, either directly or under the title of a protectorate, or under any other form, of any part of the territory of which they are composed…”

John C CalhounThis was the final act by which the Hawaiian Kingdom was admitted within the pale of civilized nations. Finding that nothing more could be accomplished for the present in Paris, Messrs. Richards and Haalilio returned to the United States in the spring of 1844. On the 6th of July they received a dispatch from Mr. J.C. Calhoun, the Secretary of State, informing them that the President regarded the statement of Mr. Webster and the appointment of a commissioner “as a full recognition on the part of the United States of the independence of the Hawaiian Government.”

The Meaning of Hawaiian Independence in International Law

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As the Hawaiian Kingdom approaches the celebration of its most important national holiday Lā Ku‘oko‘a (Independence Day) on November 28—Saturday, it is important to understand just what the term “independence” really means. Common misunderstandings are statements such as “independence advocates” or “people who want Hawaiian independence.” These statements assume Hawai‘i is not independent, where independence is a political aspiration and not a legal reality. It is also evidence of denationalization through Americanization that has nearly obliterated the national consciousness of the Hawaiian Kingdom in the minds of the people.

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In international relations and law, independence reflects the status of a State whereby the international community recognizes that only the laws of that particular State apply over its territory “independent” of other laws over other States and their territories. Only independent States are subjects of international law or members or the Family of Nations. In other words you can be a State, but not be independent, such as the State of New York, which once was an independent State but is no longer today.

After the American Revolution, the State of New York became an independent State along with the other former twelve British colonies, who were all member States of a political union called the United Stated States of America, which was a confederation since 1777. A confederation is a political union of independent States, such as today’s European Union, which is a commercial union of independent States.

Article 1 of the 1783 Treaty of Paris that ended the American Revolution, specifically states, “His Brittanic Majesty acknowledges the said United States, viz., New Hampshire, Massachusetts Bay, Rhode Island and Providence Plantations, Connecticut, New York, New Jersey, Pennsylvania, Delaware, Maryland, Virginia, North Carolina, South Carolina and Georgia, to be free sovereign and Independent States.” For the next six years, the international community recognized that only New York law applied over the territory of New York to the exclusion of any foreign States’ laws, such as the laws of Great Britain and France.

In 1789, New York would lose its independence of its laws when it chose to join an American Federation whereby all thirteen American independent States would relinquish their independence to a Federal government thereby creating the United States of America as the world knows it today. This is when the United States of America replaced the former thirteen independent States as the single independent State under international law. No longer being an independent State, New York has two separate laws that apply with equal force within its territory—United States Federal law and State of New York law.

When Great Britain and France jointly proclaimed on November 28, 1843 that both States recognized the Hawaiian Kingdom as an Independent State, it meant that only Hawaiian law would apply over Hawaiian territory, which signified Hawaiian independence. Even more surprising was that the Hawaiian Kingdom was the only non-European Power admitted into the Family of Nations with full recognition of its independence of Hawaiian law over Hawaiian territory.

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1843 Declaration_p_2(color)

Other non-European Powers such as Japan were not admitted as independent States into the Family of Nations until 1899, and since 1858, Japan had unequal treaties whereby independent States, such as the United States of America, applied their own laws within Japanese territory over their citizenry. Under the 1858 American-Japanese unequal treaty, American citizens could only be prosecuted in Japan under American law and tried by the American Consulate serving as the Court. The Hawaiian Kingdom also had an unequal treaty with Japan. Under the 1871 Hawaiian-Japanese Treaty, Hawaiian subjects in Japan could only be prosecuted under Hawaiian law by the Hawaiian Consulate in Tokyo.

Since the American occupation began, Hawaiian independence is at the core of the law of occupation. This means only Hawaiian law must be temporarily administered by the occupying State. No other law can be administered in an occupied State because it is independent. The laws of occupation would not apply if Hawai‘i was not an independent State.

In international arbitration between the Netherlands and the United States at the Permanent Court of Arbitration (Island of Palmas case) from 1925-1928, the arbitrator explained independence. Judge Huber stated, “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.”

Independence refers to “political” independence and not “physical” independence from another State. Oppenheim, International Law, Vol. 1, 177-8 (2nd ed. 1912), explains: “Sovereignty as supreme authority, which is independent of any other earthly authority, may be said to have different aspects. As excluding dependence from any other authority, and in especial from the authority of the another State, sovereignty is independence. It is external independence with regard to the liberty of action outside its borders in the intercourse with other States which a State enjoys. It is internal independence with regard to the liberty of action of a State inside its borders. As comprising the power of a State to exercise supreme authority over all persons and things within its territory, sovereignty is territorial supremacy. As comprising the power of a State to exercise supreme authority over its citizens at home and abroad, sovereignty is personal supremacy. For these reasons a State as an International Person possesses independence and territorial and personal supremacy.”

Occupation does not extinguish independence/sovereignty, but rather it is protected and maintained under international law. U.S. Army FM-27-10, The Law of Land Warfare, acknowledges this. Chapter 6 covers occupation. Section 358 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 exercise of these rights results from the established power of the occupant and from the necessity of maintaining law and order, indispensable both to the inhabitants and to the occupying force. It is therefore unlawful for a belligerent occupant to annex occupied territory or to create a new State therein while hostilities are still in progress.”