The International Criminal Court (ICC) is a court of last resort for the prosecution of individuals for war crimes. Primary responsibility for criminal prosecutions lie with the government of a State that has acceded to the Rome Statute. And during occupation of a State’s territory, primary responsibility for criminal prosecution then lies with the Occupant under Article 43 of the 1907 Hague Convention, IV. In the case of Hawai‘i, primary responsibility for initiating investigations and ultimate prosecutions for war crimes lie with the U.S. Pacific Command as the Occupant of Hawaiian territory. If the Occupant fails or refuses to prosecute individuals within the Hawaiian Kingdom for war crimes, then and only then will the ICC be compelled to step in.

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According to Article 17 of the Rome Statute, the Prosecutor of the ICC cannot initiate an investigation into alleged war crimes if:

1. The case is being investigated or prosecuted by a State which has jurisdiction over it, unless the State is unwilling or unable genuinely to carry out the investigation or prosecution;
2. The case has been investigated by a State which has jurisdiction over it and the State has decided not to prosecute the person concerned, unless the decision resulted from the unwillingness or inability of the State genuinely to prosecute;
3. The person concerned has already been tried for conduct which is the subject of the complaint; or
4. The case is not of sufficient gravity to justify further action by the Court.

Article 17 further states that in order to determine unwillingness to investigate and/or prosecute, which will compel the ICC involvement is where:

1. The proceedings were or are being undertaken or the national decision was made for the purpose of shielding the person concerned from criminal responsibility for crimes within the jurisdiction of the Court;
2. There has been an unjustified delay in the proceedings which in the circumstances is inconsistent with an intent to bring the person concerned to justice; and
3. The proceedings were not or are not being conducted independently or impartially, and they were or are being conducted in a manner which, in the circumstances, is inconsistent with an intent to bring the person concerned to justice.

The enforcement of criminal law within a State is referred to as police power. Police power is the capacity by which a government of a State regulates the behavior of its inhabitants in order to promote and maintain the health, safety, morals, and general welfare of the public. To maintain public order, the Hawaiian Kingdom enacted a penal code, whose duty of the Hawaiian government’s executive branch was to investigate, indict, and prosecute individuals who commit crimes that are listed in the penal code.

On January 17, 1893, the Hawaiian police, headed by Marshal Charles Wilson, was unable to apprehend insurgents for committing the crime of treason, Chapter VI, Penal Code, without colliding with U.S. Marines who were illegally landed by order of the U.S. diplomat, John Stevens, to protect them. This constituted a threat of war, and compelled Queen Lili‘uokalani to temporarily yield and assign Hawaiian police power, being a portion of the executive power, to the President of the United States or risk war and bloodshed. This assignment of Hawaiian police power is referred to as the Lili`uokalani assignment, which is a binding international agreement-a treaty. After an investigation and confirming the overthrow of the Hawaiian government was illegal, President Cleveland and the Queen entered into a Restoration Agreement whereby the police power would be returned to the Hawaiian government and the Queen thereafter to grant amnesty to the insurgents. These agreements have not been carried out since 1893, but nevertheless remain binding on the President to enforce Hawaiian law.

When the Hawaiian Islands were illegally occupied during the Spanish-American War on August 12, 1898 and thereafter “Americanized,” the international laws of occupation that mandates the Occupant to temporarily enforce the laws of the Occupied State, which includes the penal code, only reinforced the Lili`uokalani assignment. The international laws of occupation has since been codified under the 1907 Hague Convention, IV, and the 1949 Geneva Convention, IV, and U.S. Army Field Manual 27-10. War crimes listed in the Rome Statute have since been added to the Hawaiian penal code by virtue of the Hawaiian Kingdom’s accession to the Rome Statute on December 10, 2012.