Today, Dr. Keanu Sai, as Head of the Royal Commission of Inquiry, sent a letter to Governor Josh Green, M.D., and the members of his cabinet that he or any member of his cabinet have until September 20, 2024, to submit a request for a legal opinion from the Attorney General according to Hawai‘i Revised Statutes §28-3. The legal opinion must provide a legal basis, under international law, that the State of Hawai‘i exists within the territory of the United States and not within the territory of the Hawaiian Kingdom. To not do so, Dr. Sai stated that Governor Green and the members of his cabinet will be subject to war criminal reports, after September 20th, for the war crime of usurpation of sovereignty during military occupation. Here is a link to the letter.

The purpose of this letter is to apprise you of the severity of the current situation and its impact on the State of Hawai‘i’s legislative bodies. Enacting American municipal laws is in violation of international humanitarian law and the law of occupation, as is the enforcement of these laws by the executive branch. The continuous enacting of State of Hawai‘i laws, to include County ordinances, constitutes the war crime of usurpation of sovereignty during military occupation. According to Professor William Schabas, a renowned expert on international criminal law, war crimes and human rights, in his legal opinion on war crimes, being committed in the Hawaiian Kingdom, Professor Schabas identifies four elements of the war crime of usurpation of sovereignty during military occupation that has taken place within Hawaiian territory.

1. The perpetrator imposed or applied legislative or administrative measures of the occupying power going beyond those required by what is necessary for military purposes of the occupation.
2. The perpetrator was aware that the measures went beyond what was required for military purposes or the protection of fundamental human rights.
3. The conduct took place in the context of and was associated with an occupation resulting from international armed conflict.
4. The perpetrator was aware of factual circumstances that established the existence of the armed conflict and subsequent occupation.

Regarding the last two elements of the war crime of usurpation of sovereignty during military occupation, Professor Schabas explains:

1. There is no requirement for a legal evaluation by the perpetrator as to the existence of an armed conflict or its character of the conflict as international or non-international;
2. In that context there is no requirement for awareness by the perpetrator of the facts that established the character of the conflict as international or non-international;
3. There is only a requirement for the awareness of the factual circumstances that established the existence of an armed conflict that is implicit in the terms “took place in the context of and was associated with.”

It has been twenty-five years since the international arbitral proceedings at the Permanent Court of Arbitration (“PCA”) were initiated on November 8, 1999, in Larsen v. Hawaiian Kingdom. The first allegation of the war crime of usurpation of sovereignty during military occupation, was the subject of this arbitral dispute, whereby the claimant, Lance Larsen, alleged that the Hawaiian Kingdom, by its Council of Regency, was legally liable “for allowing the unlawful imposition of American municipal laws” over him within Hawaiian territory. This led to the war crimes of unfair trial and unlawful confinement by the District Court of the Third Circuit in Kea‘au.

Before the arbitral tribunal was established on June 9, 2000, the PCA Secretary General recognized, as a matter of institutional jurisdiction, the continued existence of the Hawaiian Kingdom as a non-Contracting State pursuant to Article 47 of the 1907 Hague Convention, I, for the Pacific Settlement of International Disputes. Article 47 states, “[t]he jurisdiction of the Permanent Court, may within the conditions laid down in the regulations, be extended to disputes between non-Contracting [States] or between Contracting [States] and non-Contracting [States], if the parties are agreed on recourse to this Tribunal.” This brought the dispute under the auspices of the PCA. The PCA Secretary General also recognized the Council of Regency as the Hawaiian Kingdom government. The Council of Regency did not claim to be the government of a new State but rather the legal personality of the continued existence of the Hawaiian Kingdom since the nineteenth century.

The issue of the continuity of the Hawaiian Kingdom, as a State under international law, is not a novel legal issue for the State of Hawai‘i. This issue has been at the center of case law and precedence, regarding jurisdictional arguments that came before the courts of the State of Hawai‘i since 1994. One year after the United States Congress passed the 1993 joint resolution, apologizing for the United States overthrow of the Hawaiian Kingdom government, the State of Hawai‘i Intermediate Court of Appeals heard an appeal that centered on a claim that the Hawaiian Kingdom continued to exist. In State of Hawai‘i v. Lorenzo, the appellate court stated:

Lorenzo appeals, arguing that the lower court erred in denying his pretrial motion (Motion) to dismiss the indictment. The essence of the Motion is that the [Hawaiian Kingdom] (Kingdom) was recognized as an independent sovereign nation by the United States in numerous bilateral treaties; the Kingdom was illegally overthrown in 1893 with the assistance of the United States; the Kingdom still exists as a sovereign nation; he is a citizen of the Kingdom; therefore, the courts of the State of Hawai‘i have no jurisdiction over him. Lorenzo makes the same argument on appeal. For the reasons set forth below, we conclude that the lower court correctly denied the Motion.

The appellate court affirmed the trial court’s judgment, but it admitted “the court’s rationale is open to question in light of international law.” By not applying international law, the appellate court concluded that the trial court’s decision was correct because Lorenzo “presented no factual (or legal) basis for concluding that the Kingdom exists as a state in accordance with recognized attributes of a state’s sovereign nature.” Since 1994, Lorenzo become the precedent case for denying defendants’ motions to dismiss claims that the Hawaiian Kingdom continues to exist. When the appellate court placed the burden on defendants to provide a ‘factual (or legal) basis for concluding that the Kingdom exists as a state in accordance with recognized attributes of a state’s sovereign nature,’ it would require the application of international law and not the municipal law or common law of the United States and/or the State of Hawai‘i in order for the defense to meet that burden.

The Supreme Court, in State of Hawai‘i v. Armitage, clarified the evidentiary burden that Lorenzo placed upon defendants. The court stated:

Lorenzo held that, for jurisdictional purposes, should a defendant demonstrate a factual or legal basis that the Kingdom of Hawai‘i “exists as a state in accordance with recognized attributes of a state’s sovereign nature[,]” and that he or she is a citizen of that sovereign state, a defendant may be able to argue that the courts of the State of Hawai‘i lack jurisdiction over him or her.

I am enclosing two legal opinions, published by the Hawaiian Journal of Law and Politics, by experts in international law, that provide a legal basis for concluding that the Hawaiian Kingdom ‘exists as a state in accordance with recognized attributes of a state’s sovereign nature,’ as called for by the State of Hawai‘i Intermediate Court of Appeals and the Supreme Court. These legal opinions were authored by two professors of international law, Matthew Craven, from the University of London, SOAS, Department of Law, and Federico Lenzerini, from the University of Siena, Department of Political and International Sciences. I am also enclosing my latest law article on the responsibility to protect a State’s population from war crimes that was published this year by the International Review of Contemporary Law.

Hawai‘i Revised Statutes §28-3 states: “[t]he attorney general shall, when requested, give opinions upon questions of law submitted by the governor, the legislature, or its members, or the head of any department (emphasis added).” The legal definition of shall “is an imperative command, usually indicating that certain actions are mandatory, and not permissive. This contrasts with the word ‘may,’ which is generally used to indicate a permissive provision, ordinarily implying some degree of discretion.” As Governor, you are authorized to request a legal opinion on a question of law, and the Attorney General shall provide you with it. That question of law, that I propose you request for a legal opinion on is:

Considering the two legal opinions by Professor Craven and Professor Lenzerini, that conclude the Hawaiian Kingdom continues to exist as a State under international law, which are enclosed with this request, is the State of Hawai‘i within the territory of the United States or is it within the territory of the Hawaiian Kingdom?

Under international law, there is a presumption of continuity of the Hawaiian State despite the overthrow of its government by the United States on January 17, 1893. According to Judge James Crawford, International Court of Justice, there “is a presumption that the State continues to exist, with its rights and obligations […] despite a period in which there is no, or no effective, government,” and belligerent occupation “does not affect the continuity of the State, even where there exists no government claiming to represent the occupied State.” Presumption is defined as an act or instance of taking something to be true. As a matter of law, in the absence of acceptable reasons to the contrary, presumption is an attitude adopted in law toward an action or proposal.

The presumption of State continuity shifts the burden of proof as to what is to be proven and by whom. Like the presumption of innocence, the accused does not prove their innocence, but rather the prosecution must prove, beyond a reasonable doubt, that person’s guilt. Beyond a reasonable doubt is evidence so convincing that no reasonable person would have any doubts as to the person’s guilt. Matthew Craven, professor of international law, explains:

If one were to speak about a presumption of continuity, one would suppose that an obligation would lie upon the party opposing that continuity to establish the facts substantiating its rebuttal. The continuity of the Hawaiian Kingdom, in other words, may be refuted only by reference to a valid demonstration of legal title, or sovereignty, on the part of the United States, absent of which the presumption remains.

In other words, the Attorney General’s legal opinion does not prove the State of Hawai‘i lawfully exists, but rather, it must prove beyond any reasonable doubt, that the Hawaiian Kingdom does not exists, as a State, under the rules of international law. Evidence of ‘a valid demonstration of legal title, or sovereignty, on the part of the United States’ would be an international treaty, particularly a peace treaty, whereby the Hawaiian Kingdom would have ceded its territory and sovereignty to the United States. Examples of foreign States ceding sovereign territory to the United States by a peace treaty include the 1848 Treaty of Peace, Friendship, Limits, and Settlement with the Republic of Mexico and the 1898 Treaty of Peace between the United States of America and the Kingdom of Spain.

To answer, in the affirmative, that the State of Hawai‘i is within the territory of the United States, the Attorney General must refer to a ‘valid demonstration of legal title, or sovereignty, on the part of the United States,’ in her legal opinion. Otherwise, the Hawaiian Kingdom continues to exist as a State under international law. For her to claim that the question of law raises a political question and, therefore, she cannot answer the question, is an admission to the Hawaiian Kingdom’s presumed existence since the nineteenth century. The political question doctrine refers to federal courts and their inability to adjudicate disputes that have been submitted to the courts for adjudication. According to the U.S. Supreme Court:

For purposes of Article III of the Constitution, “no justiciable ‘controversy’ exists when parties seek adjudication of a political question.” But the term “political question” is a legal term of art that on its face gives little indication of what sorts of cases the doctrine bars federal courts from deciding.

Furthermore, the Hawai‘i Supreme Court, in State of Hawai‘i v. Armitage, precludes the Attorney General from not answering the question if it was previously demonstrated, by the two legal opinions, that “a factual or legal basis that the Kingdom of Hawai‘i ‘exists as a state in accordance with recognized attributes of a state’s sovereign nature.’” According to State of Hawai‘i v. Lorenzo, she would have to provide rebuttable evidence that counters the conclusions of the two legal opinions, otherwise the presumption of the Hawaiian Kingdom’s existence as a State remains. Therefore, all acts taken by the United States within the territory of the Hawaiian Kingdom, to include the creation of the State of Hawai‘i by a congressional act, is void. According to the Permanent Court of International Justice, in the Lotus case (France v. Turkey):

Now the first and foremost restriction imposed by international law upon a State is that—failing the existence of a permissive rule to the contrary—it may not exercise its power in any form in the territory of another State. In this sense jurisdiction is certainly territorial; it cannot be exercised by a State outside its territory except by virtue of a permissive rule derived from international custom or from a convention.

Therefore, the United States cannot ‘exercise its power in any form in the territory of another State,’ such as the Hawaiian Kingdom, which it already has international treaties with. The United States needs a treaty of cession with the Hawaiian Kingdom before it can exercise any power within the latter’s territory. Consequently, the State of Hawai‘i has no legal standing within the territory of the Hawaiian Kingdom, and actions or conduct taken by members of the State of Hawai‘i and or its Counties could be construed as war crimes.

Unless the Adjutant General, Major General Kenneth Hara, as the theater commander, takes affirmative steps to establish a military government in accordance with the Law of Armed Conflict—international humanitarian law, U.S. Department of Defense Directive 5100.01, and Army Regulations—FM 27-5 and FM 27-10, the State of Hawai‘i has no lawful authority allowable under international law. A legal opinion, to the contrary, pursuant to HRS §28-3, must be made by yourself, as Governor, or by any of your department heads by Friday, September 20, 2024. War crimes have no statute of limitations. I recommend that all of you view a presentation that I gave to the Maui County Council’s Disaster, Resilience, International Affairs, and Planning (DRIP) Committee on March 6, 2024 (online at https://www.youtube.com/watch?v=X-VIA_3GD2A). .

For you and the members of your cabinet, this letter constitutes actual notice for committing the war crime of usurpation of sovereignty during military occupation and thus, you all will be subject to war criminal reports by the Royal Commission of Inquiry after September 20, 2024. To render this as frivolous, it is in your vested interest, as the Governor of the State of Hawai‘i, or of any of your heads of the departments, to get a legal opinion from the Attorney General pursuant to HRS §28-3 that provides the legal basis that the State of Hawai‘i exists within the territory of the United States and not within the territory of the Hawaiian Kingdom.