After securing Phase I of the of the Council of Regency’s strategic plan where in 1999 the Permanent Court of Arbitration, in Larsen v. Hawaiian Kingdom, “verified the Hawaiian Kingdom as independent State and subject of international law,” Phase II was initiated in order to expose “Hawaiian Statehood within the framework of international law and the laws of occupation as it affects the realm of politics and economics at both the international and domestic levels.” This exposure has brought out many aspects of international law and the law of occupation that many have only heard for the first time.
There are terms such as international humanitarian law, which the military throughout the world refers to as the law of armed conflict. The rule that distinguishes between a State and its government. The difference between military occupation of a State and the colonization of territory that is not a State. Adding to this list of new terms and principles include Army doctrine and regulations that apply to military occupation of foreign territory.
In the case of Hawai‘i, we are dealing with role of the Adjutant General of the Army and Air National Guard. Under federal and State law, the National Guard can serve two commanders in chief but not at the same time. According to Article II, section 2 of the U.S. Constitution, the President becomes the commander in chief of the National Guard “when called into the actual Service of the United States.” Until that time, the commander in chief of the National Guard is the Governor of the State.
When the National Guard is called to State active duty, not federal active duty, the Governor is the commander and chief and has command and control. Under him is the Adjutant General that has command and control of the forces that have been activated. This is what occurred when certain units of the Army and Air National Guard were activated in 1992 when Hurricane Iniki devastated the island of Kaua‘i. Governor John Waihe‘e was the commander in chief and Brigadier General Edward Richardson was the Adjutant General.
When units of the Hawai‘i Army and Air National Guard were called to federal active duty for deployment to Iraq during Second Gulf War in 2003, the commander in chief changed from State of Hawai‘i Governor Linda Lingle to President George W. Bush.
As an occupied State, these American laws do not apply in the Hawai‘i situation. The unlawful imposition of these laws constitutes the war crime of usurpation of sovereignty during military occupation. Unlike the other 49 Governors of States in the federal Union, their authorities derive from these American laws that include both federal and State laws.
Because the State of Hawai‘i is outside of the borders of the United States, and as such is foreign territory, the authority of the State of Hawai‘i to include its Governor is stripped. What allows the State of Hawai‘i to exist, however, is international humanitarian law and the law of occupation. Under these laws, the State of Hawai‘i is a civilian armed force acting for the United States as an occupying State, which has effective control of 94% of the territory of the Hawaiian Kingdom. The federal government only has effective control of less that 6% of the territory.
The decision to establish a military government in foreign territory is not with the U.S. President as commander in chief but rather with the most senior commander of the armed forces in foreign territory that has come under effective control by the occupying force. According to section 3 of FM 27-5, Civil Affairs Military Government, the theater commander over the territory to come under military occupation bears full responsibility for establishing a military government.
That person is a general officer and designated as military governor and is authorized to delegate his authority and title, in whole or in part, to a subordinate commander. “In occupied territory the commander, by virtue of his position, has supreme legislative, executive, and judicial authority, limited only by the laws and customs of war and by directives from higher authority.” So under Army doctrine, it is never the President of the United States to establish a military government but rather the most senior military commander in the occupied territory.
Section 4 of FM 27-5 also states that the reasons for establishing a military government “are either military necessity as a right, or as an obligation under international law.” And since military occupation “suspends the operation of the government of the occupied territory, the obligation arises under international law for the occupying force to exercise the functions of civil government looking toward the restoration of maintenance of public order.”
In this situation, it is the State of Hawai‘i Adjutant General that has the responsibility and duty to establish a military government for Hawai‘i under international law. This is a command decision to be made by the Adjutant General who is the most senior Army commander in the occupied territory of Hawai‘i.