The following is one of the topics covered by Dr. Sai in his letter of July 9, 2019. Maui County Council member Tamara Paltin requested of Dr. Sai his insights into the proposed construction of the Thirty-Meter Telescope. Dr. Sai’s letter is an attachment to Council member Paltin’s letter to University of Hawai‘i President David Lassner on July 12, 2019.

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War Crime of Destruction of Property on the Summit of Mauna Kea

According to Article 55 of the 1907 Hague Convention, IV, “The occupying State shall be regarded only as administrator and usufructuary of public buildings, real estate, forests, and agricultural estates belonging to the [occupied] State, and situated in the occupied territory. It must safeguard the capital of these properties, and administer them in accordance with the rules of usufruct.” As the title to Ka‘ohe remains vested in the Hawaiian government as public land there is a duty that anything done on public property must be in accordance with the rules of usufruct, which, by definition, is the “right of using and enjoying and receiving the profits of property that belongs to another.”^[1]

NOTE: The international laws of occupation apply to hostile States at war with each other or occupied States that have not engaged in the war but are neutral. Belligerent occupation is a term used to apply where the territory of a foreign country is occupied without the consent of the occupied State. Neutral States, such as the Hawaiian Kingdom, can be belligerently occupied and the laws of occupation still applies.

Article 147 of the Geneva Convention, IV, lists as a grave breach the “extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly.” This grave breach is expanded under Article 53, any “destruction by the Occupying Power of real or personal property belonging individually or collectively to private persons, or to the State [Hawaiian Kingdom], or to other public authorities, or to social or cooperative organizations, is prohibited, except where such destruction is rendered absolutely necessary by military operations.” The Commentary to the Geneva Convention, IV, states:

In the very wide sense in which the Article must be understood, the prohibition covers the destruction of all property (real or personal), whether it is the private property of protected persons (owned individually or collectively), State property, that of the public authorities (districts, municipalities, provinces, etc.) or of co-operative organizations. The extension of protection to public property and to goods owned collectively, reinforces the rule already laid down in the Hague Regulations, Articles 46 and 56 according to which private property and the property of municipalities and of institutions dedicated to religion, charity and education, the arts and sciences must be respected.^[2]

Section 402 of the United States Army Field Manual 27-10 provides:

Real property of the [occupied] State which is essentially of a non-military nature, such as public buildings and offices, land, forests, parks, farms, and mines, may not be damaged or destroyed unless such destruction is rendered absolutely necessary by military operations … The occupant does not have the right of sale or unqualified use of such property. As administrator, usufructuary, he should not exercise his rights in such a wasteful and negligent manner as seriously to impair its value.

In international criminal law, the actus reus present on Mauna Kea are the acts of destruction of property belonging to the Hawaiian Kingdom as the Occupied State. The mens rea requires that the perpetrator act with intent to destroy the property and with knowledge that the owner of the property is the Hawaiian Kingdom government. The actus reus and mens rea are met as evidenced in the State of Hawai‘i Supreme Court decisions In the Matter of Contested Case Hearing Re Conservation District Use Application (CDUA) HA-3568 for the Thirty Meter Telescope at the Mauna Kea Science Reserve, Ka‘ohe Mauka, Hamakua, Hawai‘i, TMK (3) 404015:009.

On October 30, 2018, the Hawai‘i Supreme Court affirmed a decision of the Board of Land and Natural Resources which issued a conservation district use permit for TMT near the summit of Mauna Kea.^[3] In its decision, the majority of the court did not, because it could not, refute the claim that “the ahupua‘a of Ka‘ohe in the District of Hamakua are lands still held by the Hawaiian Kingdom.”^[4] Somewhat amazing was its open acknowledgement that eleven observatories built since 1970^[5] on the summit of Mauna Kea did destroy the property.

The majority stated:

Construction of these observatories and roads has had significant cumulative adverse impacts on cultural, archaeological, and historic resources in the MKSR [Mauna Kea Science Reserve]. The observatories have also had significant cumulative adverse impacts on geology, soils, and slope stability in the MKSR because they significantly modified the preexisting terrain, the tops of certain pu‘u were flattened to accommodate observatory foundations, and some materials removed from the pu‘u were pushed over their sides, creating steeper slopes more susceptible to disturbance.^[6]

Associate Justice Michael Wilson dissented from the majority of the court and filed his dissent on November 9, 2018. At the heart of Justice Wilson’s dissent was the destruction of the summit of Mauna Kea. He acknowledged that

the party responsible for the substantial adverse impact to this protected resource is the State of Hawai‘i (State). It is uncontested that the State authorized previous construction within the Astronomy Precinct of the MKSR that created a substantial adverse impact. Thus, the party that caused the substantial adverse impact is empowered by the degradation principle to increase the damage. Now the most extensive construction project yet proposed for the Astronomy Precinct—a 180-foot building 600 feet below the summit ridge of Mauna Kea—is deemed to have no substantial adverse impact due to extensive degradation from prior development of telescopes in the summit area.^[7]

He concluded that the “substantial adverse impacts to cultural resources presently existing in the Astronomy Precinct of Mauna Kea combined with the impacts from TMT—a proposed land use that eclipses all other telescopes in magnitude—would constitute an impact on existing cultural resources that is substantial and adverse.”^[8]

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[1] Black’s Law, p. 1544.

[2] Oscar M. Uhler, Henri Coursier, Frédéric Siordet, Claude Pilloud, Roger Boppe, René-Jean Wilhelm and Jean Pierre Schoenholzer, Commentary IV, Geneva Convention relative to the Protection of Civilian Persons in Time of War, Geneva: International Committee of the Red Cross, 1958, p. 301.

[3] In Re Conservation District Use Application for TMT, SCOT-17-0000777, Opinion, State of Hawai‘i Supreme Court (Oct. 30, 2018), available at: http://www.courts.state.hi.us/wp-content/uploads/2018/10/SCOT-17-0000777.pdf.

[4] Id., p. 45.

[5] The University 2.2-meter Telescope (1970), the United Kingdom Infrared Telescope (“UKIRT”)(1979)(now owned by the University), the NASA Infrared Telescope Facility (operated by the University)(1979), the Canada-France-Hawaiʻi Telescope (1979); (5) the California Institute of Technology (“Caltech”) Submillimeter Observatory (“CSO”)(1986), the James Clerk Maxwell Telescope (“JCMT”)(1986)(now owned by the University), the Very Long Baseline Array (1992), the W. M. Keck Observatory, first phase (1992) and second phase (1996), the Subaru Observatory (“Subaru”)(1999), the Gemini North Observatory (1999), and the Submillimeter Array (2002).

[6] In Re Conservation District Use Application for TMT, SCOT-17-0000777, Opinion, State of Hawai‘i Supreme Court (Oct. 30, 2018), p. 5-6.

[7] In Re Conservation District Use Application for TMT, SCOT-17-0000777, Dissenting Opinion, Wilson, J. (Nov. 9, 2018), p. 5, available at: http://www.courts.state.hi.us/…/11/SCOT-17-0000777dis.pdf.

[8] Id., p. 36.