Usurpation of sovereignty during military occupation<\/em> was listed as a war crime in 1919 report<\/a><\/strong> by the Commission on Responsibilities<\/strong><\/a> of the Paris Peace Conference that was established by the Allied and Associated Powers at war with Germany and its allies during World War I. The Commission was especially concerned with acts perpetrated in occupied territories against non-combatants and civilians. Usurpation of sovereignty during military occupation<\/em> is the imposition of the laws and administrative policies and measures of the Occupying State over the territory of the Occupied State. <\/p>\n\n\n\n When the United States unlawfully overthrew the government of the Hawaiian Kingdom on January 17, 1893, the Hawaiian Kingdom continued to exist as a State, which the Permanent Court of Arbitration, in Larsen v. Hawaiian Kingdom<\/a><\/strong><\/em>, acknowledged in 1999. The law of occupation mandated the United States to establish a military government in order to temporarily administer the laws of the Hawaiian Kingdom until a treaty of peace comes into force. <\/p>\n\n\n\n In 1828, U.S. Chief Justice John Marshall, in American Insurance Company v. Canter<\/a><\/strong><\/em>, wrote that \u201cthe holding of conquered territory is mere military occupation, until its fate shall be determined at the treaty of peace. If it be ceded by the treaty, the acquisition is confirmed and the ceded territory becomes a part of the nation to which it is annexed, either on the terms stipulated in the treaty of cession or on such as its new master shall impose.\u201d There is no treaty of cession between the Hawaiian Kingdom and the United States.<\/p>\n\n\n\n Because military occupations do not last for long periods, the cornerstone of the law of occupation is to maintain the status quo<\/em> of the occupied State. This means that the occupying State cannot impose its laws over occupied territory, change the governmental institutions of the occupied State, or transfer its own citizens into the occupied State. For the past 130 years, the United States did exactly that, which complicates the situation today. However, the laws of occupation and the principles of necessity are flexible enough to come up with a comprehensive plan of compliance. It is said that necessity is the mother of all inventions.<\/p>\n\n\n\n The first step is to identify what entity of the occupying State is responsible for establishing a military government. Is it the United States federal government or the State of Hawai\u2018i and its Counties? Article 42 of the 1907 Hague Regulations states that territory is occupied when it comes under the effective control of the occupying State, which triggers the law of occupation. Of the 4 million acres that comprise Hawaiian territory, the State of Hawai\u2018i is in effective control of 94%, while the United States federal government is in control of 6%. Having met the requirement of effective control of occupied territory, the State of Hawai\u2018i and not the federal government has the responsibility to established the military government to temporarily administer the laws of the Hawaiian Kingdom.<\/p>\n\n\n\n With a view to bringing compliance with international humanitarian law by the State of Ha\u00adwai\u2018i and its Counties and recognizing their effective control of Hawaiian territory in accordance with Article 42 of the 1907 Hague Regulations, the Council of Regency pro\u00adclaimed<\/a><\/strong> and recognized their existence as the administration of the occupying State on June 3, 2019.<\/p>\n\n\n\n The State of Hawai\u2018i and its Counties, under the laws and customs of war during occupation, can now serve as the administrator of Hawaiian Kingdom laws. Prior to the proclamation, the State of Hawai\u2018i and its Counties were established by virtue of U.S. Congressional legislation unlawfully imposed within Hawaiian territory, being the war crime of usurpation of sovereignty during military occupation<\/em>. According to Professor Schabas, the action or conduct “of the offense of \u2018usurpation of sovereignty\u2019 would 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<\/p>\n\n\n\n The next step is to address the fact that Hawaiian Kingdom laws in 1893 are not up to date because of the non-compliance by the United States at the time of international law. Nevertheless, it is still a rule of international law that Hawaiian laws must be administered and not American laws, which is a war crime.<\/p>\n\n\n\n To address this issue, the Council of Regency on October 10, 2014, proclaimed<\/a><\/strong> provisional laws of the kingdom to be any and all American laws, whether federal, State of Hawai\u2018i or the Counties, that are not \u201ccontrary to the express, reason and spirit of the laws of the Hawaiian Kingdom prior to July 6, 1887, the international laws of occupation and international humanitarian law.\u201d Accompanying the proclamation of provisional laws is a memorandum<\/a><\/strong> by the Chairman of the Council of Regency who provides a formula to be used when determining which American municipal laws can be the provisional laws of the kingdom.<\/p>\n\n\n\n In determining which American municipal laws shall constitute a provisional law of the kingdom, the following questions need to be answered. If any question is answered with \u201cyes,\u201d with the exception of question 5, then it is not to be considered a provisional law.<\/p>\n\n\n\n 1. The first consideration begins with Hawaiian constitutional alignment. Does the American municipal law violate any provisions of the 1864 Constitution, as amended?<\/p>\n\n\n\n 2. Does it run contrary to a monarchical form of government? In other words, does it promote a republican form of government.<\/p>\n\n\n\n 3. If the American municipal law has no comparison to Hawaiian Kingdom law, would it run contrary to the Hawaiian Kingdom\u2019s police power?<\/p>\n\n\n\n 4. If the American municipal law is comparable to Hawaiian Kingdom law, does it run contrary to the Hawaiian statute?<\/p>\n\n\n\n 5. Does the American municipal law infringe vested rights secured under Hawaiian law?<\/p>\n\n\n\n 6. And finally, does it infringe the obligations of the Hawaiian Kingdom under customary international law or by virtue of it being a Contracting State to its treaties? The last question would also be applied to Hawaiian Kingdom laws enumerated in the Civil Code, together with the session laws of 1884 and 1886, and the Penal Code.<\/p>\n<\/blockquote>\n\n\n\n In his memorandum, the Chairman applied the formula to determine whether the State of Hawai\u2018i statutes on murder, manslaughter, and negligent homicide can be considered provisional laws of the kingdom. His conclusion was yes. The memo states that the State of Hawai\u2018i laws on murder, manslaughter and negligent homicide are not \u201c’contrary to the express, reason and spirit of the laws of the Hawaiian Kingdom prior to July 6, 1887, the international laws of occupation and international humanitarian law.’ To the extent that the felony murder rule is omitted, the State of Hawai\u2018i law on murder would be consistent with the Hawaiian Kingdom law on murder.”<\/p>\n\n\n\n The final step is to draft a comprehensive plan of action for the State of Hawai\u2018i to transform itself into a military government to administer the laws of 1893 that are augmented with provisional laws while the State of Hawai\u2018i and its Counties are in effective control of Hawaiian territory. On April 7, 2023, the Chairman authored another memorandum<\/strong> on the role and function of the military government of Hawai\u2018i<\/strong><\/a>. <\/p>\n\n\n\n The memo first dispels with the American annexation of the Hawaiian Islands in 1898, the establishment of the Territory of Hawai\u2018i in 1900, and the changing of the name of the Territory to the State of Hawai\u2018i in 1959. Each of these acts stem from legislation by the United States Congress, which has no legal effect beyond the borders of the United States. The memo then addresses the law of occupation and the duty of a military government of the occupying State to administer the laws of the occupied State. The legal status of the State of Hawai\u2018i under international humanitarian law is then addressed.<\/p>\n\n\n\n Under international law, the State of Hawai\u2018i is not an American government but rather a civilian armed force of the occupying State. It can claim no authority under American law because the American law that established the State of Hawai\u2018i in 1959 has no effect outside of United States borders, and when it is imposed in Hawaiian territory it constitutes the war crime of usurpation of sovereignty during military occupation<\/em>. However, according to the memo, \u201cArticle 1 of the 1907 Hague Regulations provides that the laws, rights and duties of war apply not only to the occupying State\u2019s army but also to its civilian armed forces. In other words, the State of Hawai\u2018i can exist within the confines of international humanitarian law and not American municipal laws.\u201d<\/p>\n\n\n\n The memo then addresses the role and function of a military government. Under the heading of Military Government<\/em>, the memo explains that there \u201cis a difference between military government and martial law. While both comprise military jurisdiction, the former is exercised over territory of a foreign State under military occupation, and the latter over loyal territory of the State enforcing. Actions of a military government are governed by international humanitarian law while martial law is governed by the domestic laws of the State enforcing it.\u201d<\/p>\n\n\n\n The memo then explains that according to the practice of the United States when establishing a military government in foreign territory, that responsibility is the Army and not the Navy, Marines or Air Force. Military governments usually take over the governmental infrastructure of the occupied State and can augment certain aspects of the infrastructure in order to effectively carry out the mission of a military occupation. In the Hawaiian situation, the memo states that there are four “essential tasks set forth in the Hague and Geneva Conventions [\u2026] as follows: (1) Restore and ensure public order and safety, (2) provide medical care, supplies and subsistence, (3) ensure the care and education of children, [and] (4) respect private property and properly manage public property.”<\/p>\n\n\n\n Because the Army is responsible for this function of the occupying State, it \u201ctook steps to prepare for military occupations by publishing two field manuals\u2014FM 27-10, The Law of Land Warfare<\/em><\/a><\/strong>, and FM 27-5, Civil Affairs Military Government<\/em><\/a><\/strong>. Chapter 6 of FM 27-10 covers military occupation. Section 355 of FM 27-10 states, ‘[m]ilitary occupation is a question of fact. It presupposes a hostile invasion, resisted or unresisted, as a result of which the invader has rendered the invaded government incapable of publicly exercising its authority, and that the invader has successfully substituted its own authority for that of the legitimate government in the territory invaded.’ FM 27-10 has been superseded by FM 6-27, The Commander\u2019s Handbook on the Law of Land Warfare<\/em><\/a><\/strong>. Chapter 6 covers occupation.\u201d<\/p>\n\n\n\n The State of Hawai\u2018i official with the duty and obligation to transform the State of Hawai\u2018i and the Counties into a military government by proclamation is the Adjutant General who is in charge of the Army and Air National Guard. The memo explains that the “Adjutant General is trained in Army doctrine and regulations, to include the 1907 Hague Regulations and the 1949 Fourth Geneva Conventions, for this type of a situation in occupied territory, where a civilian is not. The Adjutant General would be the military governor that presides over a military government.”<\/p>\n\n\n\n The memo makes reference to the 1893 proclamation by the provisional government as an example to use in drafting a proclamation today. “Although unlawful, the proclamation of 17 January 1893 by the so-called provisional government can be useful as to the wording of the military governor\u2019s proclamation today because government officials continued in place with the exception of Queen Lili\u2018uokalani, her Cabinet, and the Marshal of the police force. The laws were also continued to be in effect. In the situation now, government officials would remain in place, with exceptions not in line with the law of occupation, and the laws would continue to be in effect as provisional laws together with Hawaiian Kingdom laws that existed prior to 1893. The military governor\u2019s proclamation would, in a sense, be a reversal of the provisional government\u2019s proclamation and in line with the law of occupation.”<\/p>\n\n\n\n Following the proclamation of a military government, the memo states, “The first order of business for the military government would be to disband the legislative bodies of the State of Hawai\u2018i and the Counties in order to stop the enactment of American municipal laws. The function of a military government is to administer the laws of the occupied State, which in this case include certain American municipal laws, as situations of fact, that have become provisional laws of the Hawaiian Kingdom in accordance with the formula to determine which American municipal laws can be considered provisional laws of the kingdom.”<\/p>\n\n\n\n The memo then states, “Second order of business is for the military governor to determine which American municipal laws can be considered the provisional laws of the Hawaiian Kingdom during the American military occupation that augments and not replaces the Civil Code<\/a><\/strong>, together with the session laws of 1884<\/a><\/strong> and 1886<\/a><\/strong>, and the Penal Code<\/a><\/strong>. These provisional laws will need to be made public by proclamation of the military governor. Paragraph 6-53 of FM 6-27 states that \u201cthe population of the occupied territory must be informed of any alteration, suspension, or repeal of existing laws and of the enactment of new laws.\u201d The memo concludes with:<\/p>\n\n\n\n In light of the legal opinion<\/a><\/strong> on war crimes related to the United States belligerent occupation of the Hawaiian Kingdom by Professor Schabas on 25 July 2019, a renowned jurist and expert on international criminal law, genocide and war crimes, and the oral statement<\/a><\/strong> given to the United Nations Human Rights Council on 22 March 2022 by two NGOs\u2014International Association of Democratic Lawyers<\/em> and the American Association of Jurists<\/em> that war crimes are being committed in Hawai\u2018i, it should warrant the Adjutant General to take this matter seriously because of the legal consequences of the United States\u2019 violation of international humanitarian law for over a century.<\/p>\n<\/blockquote>\n\n\n The only way to stop war crimes from being committed with impunity by State of Hawai\u2018i and County officials is to comply with the law of occupation. In Army jargon, this is a command decision to be made at the top of the chain of command. <\/p>\n\n\n\n <\/p>\n","protected":false},"excerpt":{"rendered":" For 130 years the United States violated international law and the sovereignty of the Hawaiian Kingdom. These violations were concealed by a false narrative that the Hawaiian Islands became a part of the United States in 1898, which led to … Continue reading \n
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