{"id":2793,"date":"2014-12-23T01:35:24","date_gmt":"2014-12-23T01:35:24","guid":{"rendered":"http:\/\/hawaiiankingdom.org\/blog\/?p=2793"},"modified":"2014-12-23T02:03:52","modified_gmt":"2014-12-23T02:03:52","slug":"ongoing-international-armed-conflict-between-the-u-s-and-hawaii","status":"publish","type":"post","link":"https:\/\/hawaiiankingdom.org\/blog\/ongoing-international-armed-conflict-between-the-u-s-and-hawaii\/","title":{"rendered":"Ongoing International Armed Conflict between the U.S. and Hawai\u2018i"},"content":{"rendered":"

Before war crimes can be alleged to have been committed in the Hawaiian Islands, there must be a state of war\u2014<\/em>an international armed conflict between the Hawaiian Kingdom and the United States. Black\u2019s Law<\/em> (1996), states, \u201cFor there to be a \u2018war,\u2019 a sovereign or quasi-sovereign must engage in hostilities (p. 1583).\u201d<\/p>\n

Professor Clapham, director of the Geneva Academy of International Humanitarian Law and Human Rights<\/a> and professor in international law at the Geneva Graduate Institute, however, states<\/a> that \u201cthe classification of an armed conflict under international law is an objective legal test and not a decision left to national governments or any international body, not even the UN Security Council.\u201d As an international armed conflict is a question of fact, these facts must be objectively tested by the principles of international humanitarian law as provided in the 1907 Hague Conventions, the 1949 Geneva Conventions and its 1977 Additional Protocols.<\/p>\n

\"German<\/a>The German occupations of Luxembourg from 1914-1918 during the First World War<\/a> and from 1940-1945 during the Second World War<\/a> occurred without resistance and were not wars in the technical sense, but, according to the Nuremburg trials, were wars of aggression against a neutral State\u2014crimes against peace<\/em>. In its judgment, vol. XXII, 452 (14 Nov. 1945-1 Oct. 1946), the Nuremburg Tribunal decreed, \u201cThe invasion of Belgium, Holland, and Luxembourg was entirely without justification [and] was carried out in pursuance of policies long considered and prepared, and was plainly an act of aggressive war (p. 452).\u201d<\/p>\n

The experience of both World Wars is what prompted international humanitarian law<\/a> to replace the narrow term \u201cwar\u201d with the more expansive term \u201carmed conflict.\u201d Armed conflicts include both hostilities between armed forces as well as occupations of a State\u2019s territory that occurred without armed resistance, i.e. <\/em>Luxembourg. This is why Article 2 of all four 1949 Geneva Conventions state that the Convention will also apply \u201cto all cases of partial or total occupation of the territory of a High Contracting Party, even if the said occupation meets with no armed resistance.\u201d War crimes are defined as grave breaches in the Conventions.<\/p>\n

According to the International Committee of the Red Cross<\/em> (ICRC) Commentary<\/em> of the Fourth Geneva Convention<\/em> (1958), this wording of Article 2 \u201cwas based on the experience of the Second World War, which saw territories occupied without hostilities, the Government of the occupied country considering that armed resistance was useless. In such cases the interests of protected persons are, of course, just as deserving of protection as when the occupation is carried out by force (p. 21).\u201d According to Dr. Casey-Maslen in The War Report 2013 <\/em>(2014), an international armed conflict exists \u201cwhenever one state uses any form of armed force against another, irrespective of whether the latter state fights back,\u201d which \u201cincludes the situation in which one state invades another and occupies it, even if there is no armed resistance (p. 7).\u201d The ICRC Commentary<\/em> further clarifies that \u201cAny difference arising between two States and leading to the intervention of members of the armed forces is an armed conflict within the meaning of Article 2, even if one of the Parties denies the existence of a state of war. It makes no difference how long the conflict lasts… The respect due to the human person as such is not measured by the number of victims (p. 20).\u201d<\/p>\n

Although the Conventions apply to Contracting State Parties, it is universally understood that the Conventions reflect customary international law that bind all States. On this subject, the Commentary clarifies that \u201cany Contracting Power in conflict with a non-Contracting Power will begin by complying with the provisions of the Convention pending the adverse Party\u2019s declaration (p. 24).\u201d Even if a State should denounce the Fourth Convention according to Article 158, the denouncing State \u201cwould nevertheless remain bound by the principles contained in [the Convention] in so far as they are the expression of the imprescriptible and universal rules of customary international law (p. 625).\u201d<\/p>\n

\u201cAccording to the Rules of Land Warfare of the United States Army,\u201d in Professor Hyde\u2019s Land Warfare<\/em> (1918), \u201cbelligerent or so-called military occupation is a question of fact. It presupposes a hostile invasion as a result of which the invader has rendered the invaded Government incapable of publicly exercising its authority, and that the invader is in a position to substitute and has substituted his own authority for that of the legitimate government of the territory invaded (p. 8).\u201d The armed conflict arose out of the United States\u2019 belligerent occupation of Hawaiian territory in order to wage war against the Spanish in the Pacific without the consent from the lawful authorities of the Hawaiian Kingdom. Since the end of the Spanish-American War by the 1898 Treaty of Paris, the Hawaiian Kingdom has remained belligerently occupied and its territory was used as a base of military operations during World War I and II, the Korean War, the Vietnam War, the Gulf War, the Iraqi War, and the United States war on terrorism.<\/p>\n

\u201cA declaration of war,\u201d says Oppenheim\u2019s International Law<\/em>, vol. 2, \u201cis a communication by one State to another that the condition of peace between them has come to an end, and a condition of war has taken its place (p. 293);\u201d and war is \u201cconsidered to have commenced from the date of its declaration, although actual hostilities may not have been commenced until much later (p. 295).\u201d While customary international law does not require a formal declaration of war to be made before international law recognizes a state of war, it does, however, provide notice to not only the opposing State of the intent of the declarant State, but also to all neutral States that a state of war has been established.<\/p>\n

The Hawaiian Kingdom has again been drawn into another state of war as shown\u00a0in the DPRK\u2019s March 30, 2013 declaration of war<\/a>, which stated, \u201cIt is self-evident that any military conflict on the Korean Peninsula is bound to lead to an all-out war, a nuclear war now that even U.S. nuclear strategic bombers in its military bases in the Pacific including Hawaii and Guam and in its mainland are flying into the sky above south Korea to participate in the madcap DPRK-targeted nuclear war moves.\u201d The day before the declaration of war, DPRK\u2019s Korean Central News Agency reported<\/a>, Supreme Commander of the Korean People\u2019s Army Marshal Kim Jong Un \u201csigned the plan on technical preparations of strategic rockets of the KPA, ordering them to be on standby for fire so that they may strike any time the U.S. mainland, its military bases in the operational theaters in the Pacific, including Hawaii and Guam, and those in south Korea.\u201d In response to the declaration of war, the BBC reported<\/a>, \u201cThe US Department of Defense said on Wednesday it would deploy the ballistic Terminal High Altitude Area Defense System (Thaad) to Guam in the coming weeks.\u201d<\/p>\n

From an international law standpoint, the armistice agreement of July 27, 1953 did not bring the state of war to an end between North Korea and South Korea because a peace treaty is still pending. The significance of the DPRK\u2019s declaration of war of March 30, 2013, however, has specifically drawn the Hawaiian Islands into the region of war because it has been targeted as a result of the United States prolonged occupation.<\/p>\n

In light of the DPRK\u2019s declaration of war, the Hawaiian Kingdom is situated in a region of war that places its civilian population, to include foreign nationals, in perilous danger similar to Japan\u2019s attack of U.S. military forces situated in the Hawaiian Islands on December 7, 1941. According to Oppenheim, \u201cThe region of war is that part of the surface of the earth in which the belligerents may prepare and execute hostilities against each other (p. 237).\u201d While neutral States do not fall within the region of war, there are exceptional cases, such as when a belligerent invades a neutral State, i.e.<\/em> Luxembourg by Germany during World War I and II. The United States invasion of the Hawaiian Kingdom occurred during the Spanish-American War just 16 years before the German occupation of Luxembourg in 1914, and has since been prolonged.<\/p>\n

\"Camp<\/a><\/p>\n

What is rarely mentioned regarding the Japanese attack are civilian casualties, who numbered 55 to 68 deaths and approximately 35 wounded. According to Dr. Kelly<\/a>, \u201cIt is not 100 percent clear, but it seems likely that most, if not all, of the casualties in civilian areas were inflicted by \u2018friendly fire,\u2019 our own anti-aircraft shells falling back to earth and exploding after missing attacking planes.\u201d<\/p>\n

\"Civilian_Casualty_Pearl_Harbor\"<\/a><\/p>\n

The advancement of modern weaponry, which includes North Korea\u2019s cyber warfare capability against Sony Pictures<\/em>, far surpasses the conventional weapons used during the Japanese attack, and foreign governments should be concerned for the safety of their citizens that currently reside within the territory of the Hawaiian Kingdom who are afforded protection under international humanitarian law.<\/p>\n

Furthermore, should the DPRK invade and occupy a portion or the entire territory of the Hawaiian Kingdom during the state of war it would nevertheless be bound by the Fourth Geneva Convention, as is the United States. The DPRK, United States and the Hawaiian Kingdom, are High Contracting Parties to the Fourth Geneva Convention. The DPRK ratified the Convention on August 27, 1957; the United States ratified the Convention on August 2, 1955; and the Hawaiian Kingdom acceded<\/a> to the Convention on November 28, 2012, which was acknowledged and received by Ambassador Benno B\u00e4ttig, General Secretariat of the Swiss Federal Department of Foreign Affairs, on January 14, 2013, at the city of Bern, Switzerland.<\/p>\n

Under United States federal law, Title 18 U.S.C. \u00a72441<\/a>, a war crime<\/em> is a felony and defined as any conduct \u201cdefined as a grave breach in any of the international conventions signed at Geneva 12 August 1949,\u201d and conduct \u201cprohibited by Article 23, 25, 27, or 28 of the Annex to the Hague Convention IV, Respecting the Laws and Customs of War on Land, signed 18 October 1907.\u201d United States Army Field Manual 27-10<\/a>, section 499, expands the definition of a war crime, which is applied in armed conflicts that involve United States troops such as the occupation of the Hawaiian Kingdom, to be \u201cthe technical expression for a violation of the law of war by any person or persons, military or civilian. Every violation of the law of war is a war crime.\u201d<\/p>\n","protected":false},"excerpt":{"rendered":"

Before war crimes can be alleged to have been committed in the Hawaiian Islands, there must be a state of war\u2014an international armed conflict between the Hawaiian Kingdom and the United States. Black\u2019s Law (1996), states, \u201cFor there to be … Continue reading →<\/span><\/a><\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_jetpack_newsletter_access":"","_jetpack_dont_email_post_to_subs":false,"_jetpack_newsletter_tier_id":0,"_jetpack_memberships_contains_paywalled_content":false,"_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[5,4],"tags":[],"class_list":["post-2793","post","type-post","status-publish","format-standard","hentry","category-national","category-war-crimes"],"jetpack_featured_media_url":"","jetpack_shortlink":"https:\/\/wp.me\/p31YBQ-J3","jetpack_sharing_enabled":true,"_links":{"self":[{"href":"https:\/\/hawaiiankingdom.org\/blog\/wp-json\/wp\/v2\/posts\/2793","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/hawaiiankingdom.org\/blog\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/hawaiiankingdom.org\/blog\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/hawaiiankingdom.org\/blog\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/hawaiiankingdom.org\/blog\/wp-json\/wp\/v2\/comments?post=2793"}],"version-history":[{"count":8,"href":"https:\/\/hawaiiankingdom.org\/blog\/wp-json\/wp\/v2\/posts\/2793\/revisions"}],"predecessor-version":[{"id":2802,"href":"https:\/\/hawaiiankingdom.org\/blog\/wp-json\/wp\/v2\/posts\/2793\/revisions\/2802"}],"wp:attachment":[{"href":"https:\/\/hawaiiankingdom.org\/blog\/wp-json\/wp\/v2\/media?parent=2793"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/hawaiiankingdom.org\/blog\/wp-json\/wp\/v2\/categories?post=2793"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/hawaiiankingdom.org\/blog\/wp-json\/wp\/v2\/tags?post=2793"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}