{"id":4395,"date":"2018-08-15T18:32:48","date_gmt":"2018-08-15T18:32:48","guid":{"rendered":"http:\/\/hawaiiankingdom.org\/blog\/?p=4395"},"modified":"2018-08-16T17:08:57","modified_gmt":"2018-08-16T17:08:57","slug":"state-of-hawaii-v-kaulia-a-recipe-for-war-crimes","status":"publish","type":"post","link":"https:\/\/hawaiiankingdom.org\/blog\/state-of-hawaii-v-kaulia-a-recipe-for-war-crimes\/","title":{"rendered":"State of Hawai\u2018i v. Kaulia – A Recipe for War Crimes?"},"content":{"rendered":"

When the United States assumed control of its installed puppet regime under the new heading of Territory of Hawai\u2018i in 1900, and later the State of Hawai\u2018i in 1959, it surpassed \u201cits limits under international law through extraterritorial prescriptions emanating from its national institutions: the legislature, government, and courts (Eyal Benvenisti, The International Law of Occupation<\/em><\/a> (1993), p. 19).\u201d The legislation of every state, including the United States of America and its Congress, are not sources of international law.<\/p>\n

In The Lotus<\/em> case<\/a>, (1927 PCIJ Series A, No. 10, p. 18),<\/em> the Permanent Court of International Justice stated that \u201cNow the first and foremost restriction imposed by international law upon a State is that\u2014failing the existence of a permissive rule to the contrary\u2014it may not exercise its power in any form in the territory of another State.\u201d According to Judge Crawford, derogation of this principle will not be presumed (James Crawford, The Creation of States in International Law<\/em><\/a> (2nd<\/sup> ed., 2006), p. 41).<\/p>\n

Since Congressional legislation has no extraterritorial effect, it cannot unilaterally establish governments in the territory of a foreign state. According to the U.S. Supreme Court, \u201c[n]either the Constitution nor the laws passed in pursuance of it have any force in foreign territory unless in respect of our own citizens, and operations of the nation in such territory must be governed by treaties, international understandings and compacts, and the principles of international law (United States v. Curtiss Wright Export Corp.<\/em><\/a>, 299 U.S. 304, 318 (1936)).\u201d<\/p>\n

The U.S. Supreme Court also concluded that \u201c[t]he laws of no nation\u00a0can justly extend beyond its own territories except so far as regards its own citizens. They can have no force to control the sovereignty or rights of any other nation within its own jurisdiction (The Apollon<\/em><\/a>, 22 U.S. 362, 370 (1824)).\u201d Therefore, the State of Hawai\u2018i cannot claim to be a government as its only claim to authority derives from Congressional legislation that has no extraterritorial effect. As such, international law defines the State of Hawai\u2018i as an organized armed group.<\/p>\n

According to Henckaerts and Doswald-Beck, Customary International Humanitarian Law<\/em>, Vol. I<\/a> (2009), p. 14, \u201corganized armed groups \u2026 are under a command responsible to that party for the conduct of its subordinates.\u201d They explain that \u201cthis definition of armed forces covers all persons who fight on behalf of a party to a conflict and who subordinate themselves to its command.\u201d Article 1<\/a> of the 1907 Hague Convention, IV, states:<\/p>\n

\u201cThe laws, rights, and duties of war apply not only to armies, but also to militia and volunteer corps fulfilling the following conditions: (1) To be commanded by a person responsible for his subordinates; (2) To have a fixed distinctive emblem recognizable at a distance; (3) To carry arms openly; and (4) To conduct their operations in accordance with the laws and customs of war.\u201d<\/p>\n

In 2013, State of Hawai\u2018i v. Kaulia<\/em>, 128 Hawai\u2018i 479, 486 (2013), the State of Hawai\u2018i Supreme Court responded to a defendant who \u201ccontends that the courts of the State of Hawai\u2018i lacked subject matter jurisdiction over his criminal prosecution because the defense proved the existence of the Hawaiian Kingdom and the illegitimacy of the State of Hawai\u2018i government, with \u201cwhatever may be said regarding the lawfulness\u201d of its origins, \u201cthe State of Hawai\u2018i \u2026 is now, a lawful government<\/em>.\u201d This is a bold statement to be made by the Supreme Court without providing any evidence of its lawfulness other than declaring its lawfulness.<\/p>\n

From a standpoint of evidence, the jurisdiction of the State of Hawai\u2018i court stems from its lawfulness. This lawfulness, however, is allowed to be challenged by a defendant under Rule 12(b)(1) of the Hawai\u2018i Rules of Civil Procedure, which provides for a defendant to file a motion to dismiss based upon subject matter jurisdiction. In Nishitani v. Baker<\/em>, 82 Haw. 281, 289 (1996), the State of Hawai\u2018i Intermediate Court of Appeals (ICA) stated,<\/p>\n

\u201cthat although the governments of the State of Hawaii and the United States had recently acknowledged the illegality of the overthrow of the Kingdom, neither recognizes that the Kingdom exists at the present time (citations omitted).\u00a0 Because the defendant had \u2018presented no factual (or legal) basis for concluding that the Kingdom exists as a state in accordance recognized attributes of a state\u2019s sovereign nature,\u2019 we determined that the defendant had failed to meet his burden under HRS \u00df 701-115(2) (1993) of proving his defense of lack of jurisdiction. \u2026 [And] where immunity claims are raised as a defense to jurisdiction, the burden is on the defendant to establish his immunity status.\u201d<\/p>\n

The citation by the ICA of HRS \u00df 701-115(2)<\/a> states, \u201cNo defense may be considered by the trier of fact unless evidence of the specified fact or facts has been presented.\u201d In other words, it is incumbent on the defendant to present the evidence if he is challenging the jurisdiction of the court. In Kaulia<\/em>, there was no evidentiary hearing by the trial court because the trial court denied Kaulia his right to present \u2018specified fact or facts\u201d that conclude \u201cthe Kingdom exists as a state in accordance recognized attributes of a state\u2019s sovereign nature.\u201d<\/p>\n

Kaulia\u2019s attorney sought to have Dr. Keanu Sai serve as an expert witness. Dr. Sai had been admitted in both criminal and civil proceedings as an expert witness on the continued existence of the Hawaiian Kingdom as a State under international law.<\/p>\n

\u201c[O]n March 15, 2010, Kaulia filed a Motion to Dismiss Complaint (Motion to Dismiss) challenging the court\u2019s jurisdiction over the case based on the existence of the Kingdom of Hawai\u2018i (Kingdom). At the hearing on the Motion to Dismiss, the court confirmed that in off-the-record conferences it had denied Kaulia\u2019s request for an evidentiary hearing to call witnesses, including one Dr. Keanu Sai, to establish the existence of the Kingdom. The court then denied Kaulia\u2019s Motion to Dismiss.\u201d State of Hawai\u2018i v. Kaulia<\/em>,128 Haw. 479, 482 (2013).<\/p>\n

On appeal, the ICA held that \u201c[t]he Circuit Court did not err in precluding Kaulia from calling a witness to present evidence concerning the Kingdom of Hawai\u2018i in support of his motion to dismiss case for lack of jurisdiction (State of Hawai\u2018i v. Kaulia<\/em>, 127 Haw. 414 (2012),\u201d despite the ICA\u2019s previous decision in State of Hawai\u2018i v. Lorenzo<\/em>, 77 Haw. 219, 221 (1994), that \u201cit was incumbent on Defendant to present evidence supporting his claim\u2026that the Kingdom exists as a state in accordance with recognized attributes of a state\u2019s sovereign nature.\u201d According to The American Heritage Dictionary<\/em> (2nd<\/sup> ed., 1982), \u00a0the term \u2018incumbent\u2019 is defined as \u201c[i]mposed as an obligation or duty; obligatory.\u201d Legally, the phrase \u2018incumbent on\u2019 means \u201cmandatory, obligatory, requisite (William C. Burton, Legal Thesaurus<\/em> 754 (2nd<\/sup> ed., 1992)).\u201d<\/p>\n

Like the ICA, the Supreme Court in blatant disregard of the ICA cases of Lorenzo<\/em> and Baker<\/em>, \u201crejected Kaulia\u2019s argument that the circuit court erred in precluding Kaulia from calling a witness to present evidence concerning the existence of the Kingdom in support of his Motion to Dismiss (State of Hawai\u2018i v. Kaulia<\/em>, 128 Haw. 479, 487 (2013)).\u201d<\/p>\n

The irony of this whole matter is that the Supreme Court cited Lorenzo<\/em> and Baker<\/em> as its basis to deny Kaulia\u2019s argument, which is that \u201cit was incumbent on Defendant to present evidence supporting his claim\u2026that the Kingdom exists as a state.\u201d The decisions by the Circuit Court, ICA and Supreme Court in Kaulia clearly run counter to HRS \u00df 701-115(2). According to this flawed logic, so long as the trier of fact (judge) can prevent the defense from presenting \u201cevidence of the specified fact or facts\u201d it does not need to consider it. Prosecutors and plaintiff\u2019s attorneys now cite State of Hawai\u2018i v. Kaulia<\/em> as the precedent case to deny defendants\u2019 motions to dismiss. This is a feeble attempt to close the door that they opened in 1994 in State of Hawai\u2018i v. Lorenzo<\/em>.<\/p>\n

The State of Hawai\u2018i courts have established an echo chamber to shield themselves from the precedence set by the courts themselves in Lorenzo<\/em> and Baker<\/em>. The term echo chamber<\/a> is \u201cwidely used in today\u2019s lexicon, that describes a situation where certain ideas, beliefs or data points are reinforced through repetition of a closed system that does not allow for the free movement of alternative or competing ideas or concepts.\u201d As Mohajer, The Little Book of Stupidity: How We Lie to Ourselves and Don\u2019t Believe Others<\/em> 20, 7 (2015), wrote:<\/p>\n

\u201cThe confirmation bias is so fundamental to [our] development and [our] reality that you might not even realize it is happening. We look for evidence that supports our beliefs and opinions about the world but excludes those that run contrary to our own\u2026 In an attempt to simplify the world and make it conform to our expectations, we have been blessed with the gift of cognitive biases.\u201d<\/p>\n

While this game of hide and seek is being played out by the State of Hawai\u2018i judiciary, these actions constitute violations of the 1907 Hague and the 1949 Geneva Conventions, which have been codified by the Congress under 18 U.S.C. \u00a72441\u2014War crimes<\/a>.<\/p>\n

The United Nations Independent Expert, Dr. Alfred M. deZayas<\/a> notified the State of Hawai\u2018i judiciary to not \u201cplunder\u2026enable or collude.\u201d Plunder is another word for the war crime of pillaging, which is prohibited under Article 28<\/a> of the 1907 Hague Convention, IV, 18 U.S.C. \u00a72441(c)(2). To deny a person of a fair and regular trial is also a war crime under Article 147<\/a> of the 1949 Geneva Convention, IV, 18 U.S.C. \u00a72441(c)(2). The terms enable and collude are terms associated with conspiring<\/a> to commit war crimes.<\/p>\n","protected":false},"excerpt":{"rendered":"

When the United States assumed control of its installed puppet regime under the new heading of Territory of Hawai\u2018i in 1900, and later the State of Hawai\u2018i in 1959, it surpassed \u201cits limits under international law through extraterritorial prescriptions emanating … 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":[8,4],"tags":[],"class_list":["post-4395","post","type-post","status-publish","format-standard","hentry","category-international-law","category-war-crimes"],"jetpack_featured_media_url":"","jetpack_shortlink":"https:\/\/wp.me\/p31YBQ-18T","jetpack_sharing_enabled":true,"_links":{"self":[{"href":"https:\/\/hawaiiankingdom.org\/blog\/wp-json\/wp\/v2\/posts\/4395","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=4395"}],"version-history":[{"count":6,"href":"https:\/\/hawaiiankingdom.org\/blog\/wp-json\/wp\/v2\/posts\/4395\/revisions"}],"predecessor-version":[{"id":4419,"href":"https:\/\/hawaiiankingdom.org\/blog\/wp-json\/wp\/v2\/posts\/4395\/revisions\/4419"}],"wp:attachment":[{"href":"https:\/\/hawaiiankingdom.org\/blog\/wp-json\/wp\/v2\/media?parent=4395"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/hawaiiankingdom.org\/blog\/wp-json\/wp\/v2\/categories?post=4395"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/hawaiiankingdom.org\/blog\/wp-json\/wp\/v2\/tags?post=4395"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}