{"id":6280,"date":"2022-11-28T14:46:33","date_gmt":"2022-11-29T00:46:33","guid":{"rendered":"https:\/\/hawaiiankingdom.org\/blog\/?p=6280"},"modified":"2022-11-28T14:46:33","modified_gmt":"2022-11-29T00:46:33","slug":"a-spectacular-mic-drop-hawaiian-kingdom-withdraws-complaint-in-federal-court-because-of-war-crimes-committed-by-defendants-and-the-court","status":"publish","type":"post","link":"https:\/\/hawaiiankingdom.org\/blog\/a-spectacular-mic-drop-hawaiian-kingdom-withdraws-complaint-in-federal-court-because-of-war-crimes-committed-by-defendants-and-the-court\/","title":{"rendered":"A Spectacular “Mic Drop”\u2014Hawaiian Kingdom Withdraws Complaint in Federal Court Because of War Crimes Committed by Defendants and the Court"},"content":{"rendered":"\n

On this momentous day of Hawaiian independence since November 28, 1843, the Hawaiian Kingdom filed a Response<\/a><\/strong> to the State of Hawai\u2018i\u2019s Motion to Dismiss the Amended Complaint<\/a><\/strong> in the federal court in Honolulu shifting focus to the Royal Commission of Inquiry<\/a><\/strong> and its investigations of war criminals. The Royal Commission of Inquiry provides war criminal reports documenting evidence of perpetrators committing certain war crimes so that they can be prosecuted. There is no statute of limitation for war crimes.<\/p>\n\n\n\n

When the federal court proceeding was initiated by a Complaint<\/a><\/strong> filed on May 21, 2021, and followed by the filing of an Amended Complaint<\/a><\/strong> on August 11, 2021, the Hawaiian Kingdom\u2019s stated purpose was to have the Court put a stop to the unlawful imposition of the United States constitution, Federal and State of Hawai\u2018i statutes, County ordinances, common law, administrative law, and the maintenance of the U.S. military installations across the territory of the Hawaiian Kingdom. This imposition of American laws is a violation of the laws of occupation and constitutes the war crime of usurpation of sovereignty<\/em>.<\/p>\n\n\n\n

Here follows word for word the<\/strong> Hawaiian Kingdom’s Response<\/strong> to the State of Hawai\u2018i\u2019s Motion to Dismiss the Amended Complaint:<\/strong><\/p>\n\n\n\n

Today marks the 179th anniversary Great Britain and France jointly recognized the Hawaiian Kingdom as a sovereign and independent State on November 28, 1843, at the Court of London. The United States followed on July 6, 1844. Since January 17, 1893, the Hawaiian Kingdom came under belligerent occupation after Queen Lili\u2018uokalani conditionally surrendered by \u201cyield[ing] to the superior force of the United States.\u201d<\/p>\n\n\n\n

\n

As a subject of international law, the Hawaiian State would continue to exist despite its government being unlawfully overthrown by the United States on January 17, 1893. President Cleveland entered into a treaty, by exchange of notes, with Queen Lili\u2018uokalani on December 18, 1893, whereby the President committed to restoring the Queen as the Executive Monarch, and, thereafter, the Queen committed to granting a full pardon to the insurgents. Political wrangling in the Congress, however, prevented President Cleveland from carrying out his obligations under the executive agreement. Five years later, the United States Congress enacted a joint resolution for the purported annexation of the Hawaiian Islands that was signed into law on July 7, 1898, by President William McKinley.<\/p>\n\n\n\n

Professor Wright, a renowned American political scientist, states that \u201cinternational law distinguishes between a government and the state it governs.\u201d And Judge Crawford of the International Court of Justice clearly explains that \u201c[b]elligerent occupation does not affect the continuity of the State, even where there exists no government claiming to represent the occupied State.\u201d Crawford\u2019s conclusion is based on the \u201cpresumption that the State continues to exist<\/u><\/strong>, with its rights and obligations … despite a period in which there is…no effective government (emphasis added).\u201d Applying this principle to the Second Gulf War, Crawford explains, the

occupation of Iraq in 2003 illustrated the difference between \u2018government\u2019 and \u2018State\u2019; when Members of the Security Council, after adopting SC res 1511, 16 October 2003, called for the rapid \u201crestoration of Iraq\u2019s sovereignty\u201d, they did not imply that Iraq had ceased to exist as a State but that normal governmental arrangements should be restored.<\/p>\n<\/blockquote>\n\n\n\n

When the Hawaiian Kingdom initiated these sui generis<\/em> proceedings on May 20, 2021, it sought to arrest the commission of the war crime of usurpation of sovereignty<\/em> by having the Court \u201c[e]njoin Defendants from implementing or enforcing all laws of the Defendants UNITED STATES OF AMERICA and the STATE OF HAWAI\u2018I AND ITS COUNTIES, to include the United States constitution, State of Hawai\u2018i constitution, Federal and State of Hawai\u2018i statutes, County ordinances, common law, case law, administrative law, and the maintenance of Defendant UNITED STATES OF AMERICA\u2019s military installations across the territory of the HAWAIIAN KINGDOM, to include its territorial sea.\u201d These proceedings have now gone on for sixteen months and the war crime of usurpation of sovereignty<\/em> is still being committed with impunity.<\/p>\n\n\n\n

The basis of the complaint was the presumption that the Hawaiian Kingdom as a State continues to exist despite its government being militarily overthrown by the United States on January 17, 1893. The Hawaiian Kingdom as a State is a juridical<\/em> fact, which was acknowledged by the Permanent Court of Arbitration in Larsen v. Hawaiian Kingdom<\/a><\/strong><\/em> in 1999.<\/p>\n\n\n\n

When these proceedings were initiated, the Hawaiian Kingdom, however, understood that it could not get relief until the Court transforms itself from an Article III Court into an Article II Occupation Court because it is situated in the territory of the Hawaiian Kingdom and not the United States. In its Amended Complaint<\/a><\/strong>, the Hawaiian Kingdom addressed this under the heading \u201cJurisdiction and Venue:\u201d<\/p>\n\n\n\n

\n

While this court is operating within the territory of the HAWAIIAN KINGDOM and not within the territory of Defendant UNITED STATES OF AMERICA, its jurisdiction is found as a de facto<\/em> Article II Court. According to Professor Bederman:<\/p>\n<\/blockquote>\n\n\n\n

\n

What, then, is distinctive about a court established under Article II of the Constitution? First, executive tribunals are established without<\/em> an act of Congress or any other form of legislative concurrence. Congressional intent concerning the status of a presidential court is irrelevant because no congressional approval is needed. The fact that the President alone can create an executive court places it outside the scope of Article III of the Constitution, which demands that Congress shall establish courts inferior to the Supreme Court. Second, the executive courts are created pursuant only to the power and authority granted to the President in Article II of the Constitution. In practice, the only presidential power that would call for the creation of a court is that arising from his responsibility as Commander in Chief of the armed services and his subsequent war-making authority.<\/p>\n<\/blockquote>\n\n\n\n

\n

The authority for this Court to assume jurisdiction as a de facto<\/em> Article II Court is fully elucidated in the Amicus Curiae<\/em> brief previously lodged in these proceedings by virtue of the Motion for Leave to File Amicus Curiae<\/em> Brief on July 30, 2021 [ECF 45] by the International Association of Democratic Lawyers (IADL), the National Lawyers Guild (NLG), and the Water Protector Legal Collective (WPLC). The Amicus<\/em> brief is instructional for the Court to transition to a de facto<\/em> Article II Court.<\/p>\n\n\n\n

An Article II Court was established in Germany after hostilities ceased in 1945 during the Second World War. After the surrender, western Germany came under belligerent occupation by the United States, France and Great Britain. The military occupation officially came to an end on May 5, 1955, with the entry into force of peace treaties called the Bonn Conventions between the Federal Republic of Germany and the three Occupying States. During the occupation, these Article II Courts had jurisdiction \u201cover all persons in the occupied territory,\u201d except for Allied armed forces, their dependents, and civilian officials, for \u201c[a]ll offenses against the laws and usages of war[,] [\u2026] [a]ll offenses under any proclamation, law, ordinance, notice or order issued by or under the authority of the Military Government or of the Allied Forces, [and] [a]ll offenses under the laws of the occupied territory or any part thereof.\u201d<\/p>\n\n\n\n

Like the Article II Court in Germany, this Court has Jurisdiction as a de facto<\/em> Article II Court because this action arises under international humanitarian law\u2014law of armed conflict, which include the 1907 Hague Convention, IV (1907 Hague Regulations), the 1907 Hague Convention, V, the 1949 Geneva Convention, IV (1949 Fourth Geneva Convention), and Hawaiian Kingdom law. Article 43 of the 1907 Hague Regulations states:<\/p>\n\n\n\n

The authority of the legitimate power having in fact passed into the hands of the occupant, the latter shall take all the measures in his power to restore, and ensure, as far as possible, public order and safety, while respecting, unless absolutely prevented, the laws in force in the country.<\/p>\n\n\n\n

The Court is authorized to award the requested declaratory and injunctive relief as a de facto<\/em> Article II Court because it is situated within the territory of the HAWAIIAN KINGDOM that has been under a prolonged belligerent occupation by the United States of America since January 17, 1893.<\/p>\n\n\n\n

Venue is proper because the events giving rise to this claim occurred in this District, and the Defendants are being sued in their official capacities.<\/p>\n<\/blockquote>\n\n\n\n

When the Amici<\/em> filed their amicus curiae<\/em> brief<\/a><\/strong> in support of the Hawaiian Kingdom\u2019s Amended Complaint on October 6, 2021, they sought to assist the Court in the understanding as to why it must transform into an Article II Occupation Court given the legal and factual situation of the Hawaiian Kingdom. The Amici<\/em> stated:<\/p>\n\n\n\n

\n

Under the concept of void ab initio<\/em>, there are structures that have no legal effect from inception. The United States occupation of Hawai\u2018i began with unclean hands, and this can only be remedied by a clean slate and a new beginning. Recognition of the prolonged occupation of the Hawaiian Kingdom by the United States through Declaratory Judgment is not only a redressable claim, it is long overdue and would only be consistent with what is already known to the international community and clear under international law. Additionally, granting the Hawaiian Kingdom injunctive relief would acknowledge the Kingdom\u2019s continuous sovereignty, mitigate the United States\u2019 liability for its war crimes against the Hawaiian people, and apply local law as required of an occupying power by the international law of war. Acknowledging extraterritoriality and occupation would have the practical effect of applying the laws of the Hawaiian Kingdom but as was the case with prior occupation courts, this would not nullify any prior decisions of any of the courts currently operating in Hawai\u2018i, so long as they are not inconsistent with local law.<\/p>\n<\/blockquote>\n\n\n\n

As an Article III Court, the Court cannot claim to have jurisdiction within the territory of the Hawaiian Kingdom unless it can provide rebuttable evidence that the Hawaiian Kingdom as a State was extinguished under international law. As Professor Craven stated, \u201c[i]f one were to speak about a presumption of continuity, one would suppose that an obligation would lie upon the party opposing that continuity to establish the facts substantiating its rebuttal. The continuity of the Hawaiian Kingdom, in other words, may be refuted only by reference to a valid demonstration of legal title, or sovereignty, on the part of the United States.\u201d<\/p>\n\n\n\n

Without proffering any \u201creference to a valid demonstration of legal title, or sovereignty, on the part of the United States,\u201d this Court is precluded from asserting jurisdiction as an Article III Court when it is situated within the territory of the Hawaiian Kingdom and any judgment it makes is void. A judgment is void \u201cif the court that rendered judgment lacked jurisdiction of the subject-matter, or of the parties, or acted in a manner inconsistent with due process.\u201d According to Justice Story, \u201cno sovereignty can extend its process beyond its territorial limits, to subject either persons or property to its judicial decisions. Every exertion of authority beyond this limit is a mere nullity.\u201d  In Pennoyer v. Neff<\/em>, the Supreme Court reiterated Justice Story\u2019s views on territorial jurisdiction. The Court stated:<\/p>\n\n\n\n

\n

[N]o State can exercise direct jurisdiction and authority over persons or property without its territory (citation omitted). The several States are of equal dignity and authority, and the independence of one implies the exclusion of power from all others. And so it is laid down by jurists as an elementary principle that the laws of one State have no operation outside of its territory except so far as is allowed by comity, and that no tribunal established by it can extend its process beyond that territory so as to subject either persons or property to its decisions. <\/p>\n<\/blockquote>\n\n\n\n

Since these proceedings began, neither the Court nor the Defendants provided any \u201creference to a valid demonstration of legal title, or sovereignty, on the part of the United States,\u201d and, therefore, the presumption of the Hawaiian State remains. Their arguments, to include the arguments made in the instant motion to dismiss, relies on \u201cthe United States constitution, State of Hawai\u2018i constitution, Federal and State of Hawai\u2018i statutes, County ordinances, common law, case law, [and] administrative law,\u201d which is the war crime of usurpation of sovereignty<\/em>. The Amended Complaint clearly states:<\/p>\n\n\n\n

\n

Municipal laws of the Defendant UNITED STATES OF AMERICA being imposed in the HAWAIIAN KINGDOM constitute a violation of the law of occupation, which, according to Professor Schabas, is the war crime of usurpation of sovereignty. The actus reus of the offense \u201cwould consist of the imposition of legislation or administrative measures by the occupying power that go beyond those required by what is necessary for military purposes of the occupation.\u201d All war crimes committed in the Hawaiian kingdom have a direct nexus and extend from the war crime of usurpation of sovereignty.<\/p>\n<\/blockquote>\n\n\n\n

\n

According to Professor Schabas, the requisite elements for the following war crimes are:<\/p>\n\n\n\n

Elements of the war crime of usurpation of sovereignty during occupation<\/em><\/p>\n\n\n\n

1. The perpetrator imposed or applied legislative or administrative measures of the occupying power going beyond those required by what is necessary for military purposes of the occupation.
2. The perpetrator was aware that the measures went beyond what was required for military purposes or the protection of fundamental human rights.
3. The conduct took place in the context of and was associated with an occupation resulting from international armed conflict.
4. The perpetrator was aware of factual circumstance that established the existence of the armed conflict and subsequent occupation<\/p>\n\n\n\n

Elements of the war crime of denationalization<\/em><\/p>\n\n\n\n

1. The perpetrator participated in the imposition or application of legislative or administrative measures of the occupying power directed at the destruction of the national identity and national consciousness of the population.
2. The perpetrator was aware that the measures were directed at the destruction of the national identity and national consciousness of the population.
3. The conduct took place in the context of and was associated with an occupation resulting from international armed conflict.
4. The perpetrator was aware of factual circumstance that established the existence of the armed conflict and subsequent occupation.<\/p>\n\n\n\n

Elements of the war crime of pillage<\/em><\/p>\n\n\n\n

1. The perpetrator appropriated certain property.
2. The perpetrator intended to deprive the owner of property and to appropriate it for private or personal use.
3. The appropriation was without the consent of the owner.
4. The conduct took place in the context of and was associated with an occupation resulting from international armed conflict.
5. The perpetrator was aware of factual circumstances that established the existence of the armed conflict and subsequent occupation.<\/p>\n\n\n\n

Elements of the war crime of confiscation or destruction of property<\/em><\/p>\n\n\n\n

1. The perpetrator confiscated or destroyed property in an occupied territory, be it that belonging to the State or individuals.
2. The confiscation or destruction was not justified by military purposes of the occupation or by the public interest.
3. The perpetrator was aware that the owner of the property was the State or an individual and that the act of confiscation or destruction was not justified by military purposes of the occupation or by the public interest.
4. \u00a0The conduct took place in the context of and was associated with an occupation resulting from international armed conflict.
5. The perpetrator was aware of factual circumstance that established the existence of the armed conflict and subsequent occupation.<\/p>\n\n\n\n

Elements of the war crime of deprivation of fair and regular trial<\/em><\/p>\n\n\n\n

1. The perpetrator deprived one or more persons in an occupied territory of fair and regular trial by denying judicial guarantees recognized under international law, including those of the fourth Geneva Convention and the International Covenant on Civil and Political Rights.
2. The conduct took place in the context of and was associated with an occupation resulting from international armed conflict.
3. The perpetrator was aware of factual circumstance that established the existence of the armed conflict and subsequent occupation.<\/p>\n\n\n\n

Elements of the war crime of deporting civilians of the occupied territory<\/em><\/p>\n\n\n\n

1. The perpetrator deported or forcibly transferred, without grounds permitted under international law, one or more persons in the occupied State to another State or location, including the occupying State, or to another location within the occupied territory, by expulsion or coercive acts.
2. Such person or persons were lawfully present in the area from which they were so deported or transferred.
3. The perpetrator was aware of the factual circumstances that established the lawfulness of such presence.
4. The conduct took place in the context of and was associated with an occupation resulting from international armed conflict.
5. The perpetrator was aware of factual circumstances that established the existence of the armed conflict and subsequent occupation.<\/p>\n\n\n\n

With regard to the last two elements of the aforementioned war crimes, Schabas states:<\/p>\n\n\n\n

1. There is no requirement for a legal evaluation by the perpetrator as the existence of an armed conflict as international.
2. In that context there is no requirement for awareness by the perpetrator of the facts that established the character of the conflict as international.
3. There is only a requirement for the awareness of the factual circumstances that established the existence of an armed conflict.<\/p>\n\n\n\n

The prohibition of war crimes is an \u201cold norm which [has] acquired the character of jus cogens<\/em>.\u201d According to the International Criminal Tribunal for the Former Yugoslavia (ICTY), international crimes, which include war crimes, are \u201cuniversally condemned wherever they occur,\u201d because they are \u201cperemptory norms of international law or jus cogens.\u201d Jus cogens<\/em> norms are peremptory norms that \u201care nonderogable and enjoy the highest status within international law.\u201d Schabas\u2019 legal opinion is undeniably, and pursuant to The Paquette Habana<\/em> case, a means for the determination of the rules of international criminal law.<\/p>\n<\/blockquote>\n\n\n\n

The Duty of the Hawaiian Kingdom as a State to Investigate War Crimes Committed in its Territory<\/strong><\/p>\n\n\n\n

While these proceedings were underway, the United Nations Human Rights Council was made aware of the prolonged occupation of the Hawaiian Kingdom and the commission of war crimes and human rights violations. As stated by the Royal Commission of Inquiry<\/a><\/strong> in its War Criminal Report no. 22-0007<\/a><\/strong>:<\/p>\n\n\n\n

\n

On 7 February 2021, the International Association of Democratic Lawyers (\u201cIADL\u201d), a non-governmental organization of human rights lawyers that has special consultative status with the United Nations Economic and Social Council (\u201cECOSOC\u201d) and accredited to participate in the Human Rights Council\u2019s sessions as Observers, passed a resolution calling upon the United States to immediately comply with international humanitarian law in its prolonged occupation of the Hawaiian Islands\u2014the Hawaiian Kingdom. In its resolution, the IADL also \u201csupports the Hawaiian Council of Regency, who represented the Hawaiian Kingdom at the Permanent Court of Arbitration, in its efforts to seek resolution in accordance with international law as well as its strategy to have the State of Hawai\u2018i and its Counties comply with international humanitarian law as the administration of the Occupying State.\u201d<\/p>\n\n\n\n

Together with the IADL, the American Association of Jurists\u2014Asociaci\u00f3n Americana de Juristas (\u201cAAJ\u201d), who is also a non-governmental organization with consultative status with the United Nations ECOSOC and accredited as an observer in the Human Rights Council\u2019s sessions, sent a joint letter dated 3 March 2022 to member States of the United Nations on the status of the Hawaiian Kingdom and its prolonged occupation by the United States. In its joint letter, the AAJ also \u201csupports the Hawaiian Council of Regency, who represented the Hawaiian Kingdom at the Permanent Court of Arbitration, in its efforts to seek resolution in accordance with international law as well as its strategy to have the State of Hawai\u2018i and its Counties comply with international humanitarian law as the administration of the Occupying State.\u201d<\/p>\n\n\n\n

On 22 March 2022, the author delivered an oral statement, on behalf of the IADL and AAJ, to the United Nations Human Rights Council at its 49th session in Geneva. The oral statement read:<\/p>\n\n\n\n

The International Association of Democratic Lawyers and the American Association of Jurists call the attention of the Council to human rights violations in the Hawaiian Islands. My name is Dr. David Keanu Sai, and I am the Minister of Foreign Affairs ad interim<\/em> for the Hawaiian Kingdom. I also served as lead agent for the Hawaiian Kingdom at the Permanent Court of Arbitration from 1999-2001 where the Court acknowledged the continued existence of my country as a sovereign and independent State.<\/p>\n\n\n\n

The Hawaiian Kingdom was invaded by the United States on 16 January 1893, which began its century long occupation to serve its military interests. Currently, there are 118 military sites throughout the islands and the city of Honolulu serves as the headquarters for the Indo-Pacific Combatant Command.<\/p>\n\n\n\n

For the past century, the United States has and continues to commit the war crime of usurpation of sovereignty, under customary international law, by imposing its municipal laws over Hawaiian territory, which has denied Hawaiian subjects their right of internal self-determination by prohibiting them to freely access their own laws and administrative policies, which has led to the violations of their human rights, starting with the right to health, education and to choose their political leadership.<\/p>\n\n\n\n

The Defendant UNITED STATES OF AMERICA is a member of the United Nations Human Rights Council and did not oppose or object to the statement made by H.E. Dr. David Keanu Sai, Ph.D., and, therefore, acquiesced to the statement by Dr. Sai. Under international law, acquiescence \u201cconcerns a consent tacitly conveyed by a State, unilaterally, through silence or inaction, in circumstances such that a response expressing disagreement or objection in relation to the conduct of another State would be called for.\u201d Since the United States \u201cdid not do so \u2026 thereby must be held to have acquiesced. Qui tacet consentire videtur si loqui dbuisset act potuisset<\/em>.\u201d Nevertheless, the war crime of usurpation of sovereignty<\/em> continues to be committed with impunity.<\/p>\n<\/blockquote>\n\n\n\n

\n