{"id":4747,"date":"2019-07-15T21:36:10","date_gmt":"2019-07-15T21:36:10","guid":{"rendered":"https:\/\/hawaiiankingdom.org\/blog\/?p=4747"},"modified":"2019-07-15T22:23:05","modified_gmt":"2019-07-15T22:23:05","slug":"war-crime-state-of-hawaii-supreme-court-admits-mauna-kea-summit-has-been-destroyed","status":"publish","type":"post","link":"https:\/\/hawaiiankingdom.org\/blog\/war-crime-state-of-hawaii-supreme-court-admits-mauna-kea-summit-has-been-destroyed\/","title":{"rendered":"War Crime: State of Hawai\u2018i Supreme Court Admits Mauna Kea Summit has been Destroyed"},"content":{"rendered":"\n

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\u2019s letter is an attachment to Council member Paltin\u2019s letter<\/a><\/strong> to University of Hawai\u2018i President David Lassner on July 12, 2019.<\/p>\n\n\n\n

\n\n\n\n

War Crime of Destruction of Property on the Summit of Mauna Kea<\/h2>\n\n\n\n

According to Article 55 of the 1907 Hague Convention, IV, \u201cThe 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.\u201d As the title to Ka\u2018ohe 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 \u201cright of using and enjoying and receiving the profits of property that belongs to another.\u201d[1]<\/sup><\/a><\/p>\n\n\n\n

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.<\/h2>\n\n\n\n

Article 147 of the Geneva\nConvention, IV, lists as a grave breach the \u201cextensive destruction and\nappropriation of property, not justified by military necessity and carried out\nunlawfully and wantonly.\u201d This grave breach is expanded under Article 53, any \u201cdestruction\nby the Occupying Power of real or personal property belonging individually or collectively\nto private persons, or to the State [Hawaiian Kingdom], or to other public\nauthorities, or to social or cooperative organizations, is prohibited, except\nwhere such destruction is rendered absolutely necessary by military\noperations.\u201d The Commentary to the Geneva Convention, IV, states:<\/p>\n\n\n\n

In the very wide sense in which the\nArticle must be understood, the prohibition covers the destruction of all\nproperty (real or personal), whether it is the private property of protected\npersons (owned individually or collectively), State property, that of the\npublic authorities (districts, municipalities, provinces, etc.) or of\nco-operative organizations. The extension of protection to public property and\nto goods owned collectively, reinforces the rule already laid down in the Hague\nRegulations, Articles 46 and 56 according to which private property and the\nproperty of municipalities and of institutions dedicated to religion, charity\nand education, the arts and sciences must be respected.[2]<\/sup><\/a><\/p>\n\n\n\n

Section 402 of the United\nStates Army Field Manual 27-10 provides:<\/p>\n\n\n\n

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 \u2026 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. <\/p><\/blockquote>\n\n\n\n

In international criminal\nlaw, the actus reus<\/em> present on Mauna Kea are the acts of destruction of\nproperty belonging to the Hawaiian Kingdom as the Occupied State. The mens\nrea<\/em> requires that the perpetrator act with intent to destroy the property\nand with knowledge that the owner of the property is the Hawaiian Kingdom\ngovernment. The actus reus<\/em> and mens rea<\/em> are met as evidenced in\nthe State of Hawai\u2018i Supreme Court decisions In the Matter of Contested Case\nHearing Re Conservation District Use Application (CDUA) HA-3568 for the Thirty\nMeter Telescope at the Mauna Kea Science Reserve, Ka\u2018ohe Mauka, Hamakua, Hawai\u2018i,\nTMK (3) 404015:009<\/em>.<\/p>\n\n\n\n

On October 30, 2018, the\nHawai\u2018i Supreme Court affirmed a decision of the Board of Land and Natural\nResources which issued a conservation district use permit for TMT near the\nsummit of Mauna Kea.[3]<\/sup><\/a> In its\ndecision, the majority of the court did not, because it could not, refute the claim\nthat \u201cthe ahupua\u2018a of Ka\u2018ohe in the District of Hamakua are lands still held by\nthe Hawaiian Kingdom.\u201d[4]<\/sup><\/a>\nSomewhat amazing was its open acknowledgement that eleven observatories built since\n1970[5]<\/sup><\/a> on the\nsummit of Mauna Kea did destroy the property. <\/p>\n\n\n\n

The majority stated: <\/p>\n\n\n\n

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\u2018u were flattened to accommodate observatory foundations, and some materials removed from the pu\u2018u were pushed over their sides, creating steeper slopes more susceptible to disturbance.[6]<\/sup><\/a><\/p><\/blockquote>\n\n\n\n

Associate Justice Michael\nWilson dissented from the majority of the court and filed his dissent on\nNovember 9, 2018. At the heart of Justice Wilson\u2019s dissent was the destruction\nof the summit of Mauna Kea. He acknowledged that <\/p>\n\n\n\n

the party responsible for the substantial adverse impact to this protected resource is the State of Hawai\u2018i (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\u2014a 180-foot building 600 feet below the summit ridge of Mauna Kea\u2014is deemed to have no substantial adverse impact due to extensive degradation from prior development of telescopes in the summit area.[7]<\/sup><\/a> <\/p><\/blockquote>\n\n\n\n

He concluded that the \u201csubstantial adverse impacts to cultural resources presently existing in the Astronomy Precinct of Mauna Kea combined with the impacts from TMT\u2014a proposed land use that eclipses all other telescopes in magnitude\u2014would constitute an impact on existing cultural resources that is substantial and adverse.\u201d[8]<\/sup><\/a><\/p>\n\n\n\n

\n\n\n\n

[1]<\/a> Black\u2019s Law, p.\n1544.<\/p>\n\n\n\n

[2]<\/a> Oscar M. Uhler,\nHenri Coursier, Fr\u00e9d\u00e9ric Siordet, Claude Pilloud, Roger Boppe, Ren\u00e9-Jean\nWilhelm and Jean Pierre Schoenholzer, Commentary IV, Geneva Convention\nrelative to the Protection of Civilian Persons in Time of War<\/em>, Geneva:\nInternational Committee of the Red Cross, 1958, p. 301.<\/p>\n\n\n\n

[3]<\/a> In Re Conservation District Use Application\nfor TMT<\/em>, SCOT-17-0000777, Opinion, State of Hawai\u2018i Supreme Court (Oct. 30,\n2018), available at: http:\/\/www.courts.state.hi.us\/wp-content\/uploads\/2018\/10\/SCOT-17-0000777.pdf<\/a>.<\/p>\n\n\n\n

[4]<\/a> Id<\/em>., p.\n45.<\/p>\n\n\n\n

[5]<\/a> The University\n2.2-meter Telescope (1970), the United Kingdom Infrared Telescope\n(\u201cUKIRT\u201d)(1979)(now owned by the University), the NASA Infrared Telescope\nFacility (operated by the University)(1979), the Canada-France-Hawai\u02bbi\nTelescope (1979); (5) the California Institute of Technology (\u201cCaltech\u201d) Submillimeter\nObservatory (\u201cCSO\u201d)(1986), the James Clerk Maxwell Telescope (\u201cJCMT\u201d)(1986)(now\nowned by the University), the Very Long Baseline Array (1992), the W. M. Keck\nObservatory, first phase (1992) and second phase (1996), the Subaru Observatory\n(\u201cSubaru\u201d)(1999), the Gemini North Observatory (1999), and the Submillimeter\nArray (2002).<\/p>\n\n\n\n

[6]<\/a> In Re Conservation District Use Application\nfor TMT<\/em>, SCOT-17-0000777, Opinion, State of Hawai\u2018i Supreme Court (Oct. 30,\n2018), p. 5-6.<\/p>\n\n\n\n

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

[8]<\/a> Id<\/em>., p.\n36.<\/p>\n","protected":false},"excerpt":{"rendered":"

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\u2019s … 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-4747","post","type-post","status-publish","format-standard","hentry","category-international-law","category-war-crimes"],"jetpack_featured_media_url":"","jetpack_shortlink":"https:\/\/wp.me\/p31YBQ-1ez","jetpack_sharing_enabled":true,"_links":{"self":[{"href":"https:\/\/hawaiiankingdom.org\/blog\/wp-json\/wp\/v2\/posts\/4747","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=4747"}],"version-history":[{"count":4,"href":"https:\/\/hawaiiankingdom.org\/blog\/wp-json\/wp\/v2\/posts\/4747\/revisions"}],"predecessor-version":[{"id":4751,"href":"https:\/\/hawaiiankingdom.org\/blog\/wp-json\/wp\/v2\/posts\/4747\/revisions\/4751"}],"wp:attachment":[{"href":"https:\/\/hawaiiankingdom.org\/blog\/wp-json\/wp\/v2\/media?parent=4747"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/hawaiiankingdom.org\/blog\/wp-json\/wp\/v2\/categories?post=4747"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/hawaiiankingdom.org\/blog\/wp-json\/wp\/v2\/tags?post=4747"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}