The civilian population of the Hawaiian Islands was not consulted by the United States when its troops invaded the Hawaiian Kingdom on January 17, 1893. Nor were they consulted when U.S. troops illegally overthrew the government of the Hawaiian Kingdom the following day. And they were not consulted when the United States disregarded the law on the administration of occupied territories, which would create a legal vacuum under the law of occupation. <\/p>\n\n\n\n
Now that we are at 131 years of an illegal occupation, the law of occupation still requires the United States, through its State of Hawai\u2018i Army National Guard<\/a><\/strong>, to transform the State of Hawai\u2018i into a military government to administer the laws of the Hawaiian Kingdom. To do so, would not require the civilian population to be consulted because it is a consequential military duty when territory is occupied. To not do so would be, for the most senior officer in the Army National Guard, to commit the war crime by omission.<\/p>\n\n\n\n Despite not being consulted, under customary international law, there are rules, however, that establish a working relationship between U.S. military governance, the government of the occupied State, and the civilian population. According to U.S. Army doctrine and regulations, governance in occupied territory is by military government<\/a><\/strong>, which is the civilian government of the occupied State headed by a military governor. The highest ranking commander of the Hawai\u2018i Army National Guard would be the military governor that replaces the civilian governor. Paragraph 6-24, U.S. Army Field Manual 6-27<\/a><\/strong> under the heading Limitations of Occupation<\/em>, states:<\/p>\n\n\n\n Military occupation of enemy territory involves a complex, trilateral set of legal relations between the Occupying Power, the temporarily ousted sovereign authority, and the inhabitants of the occupied territory. Military occupation does not transfer sovereignty to the Occupying Power, but simply gives the Occupying Power the right to govern the enemy territory temporarily.<\/p>\n<\/blockquote>\n\n\n\n Article 50<\/a><\/strong> of the 1949 Fourth Geneva Convention states, the “Occupying Power shall, with the cooperation of the national and local authorities, facilitate the proper working of all institutions devoted to the care and education of children,\u201d and Article 56 states, to “the fullest extent of the means available to it, the Occupying Power has the duty of ensuring and maintaining, with the cooperation of national and local authorities, the medical and hospital establishments and services, public health and hygiene in the occupied territory.\u201d<\/p>\n\n\n\n Article 43<\/a><\/strong> of the 1907 Hague Regulations triggers the obligation of the occupant of the occupying State the functions of governance:<\/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<\/blockquote>\n\n\n\n The law on the administration of occupied territories recognizes a dual managerial obligation under Article 43’s \u201crestore and ensure,\u201d with each having two distinct goals. On this, Professor Benvenisti, in his book The International Law of Occupation<\/a><\/strong><\/em>, explains:<\/p>\n\n\n\n The need to \u201crestore\u201d public order and civil life arises in the wake of hostilities that disrupt the previous order. The restoration process includes immediate acts needed to bring daily life as far as possible back to the previous state of affairs. The occupant\u2019s discretion in this process is limited. It is the other term, the command \u201cto ensure,\u201d that poses some difficulties. At issue is the extent to which the occupant must adhere to the status quo ante bellum<\/em> [the situation as it existed before the war]. This question becomes more pressing when the occupation is protracted.<\/p>\n<\/blockquote>\n\n\n\n Professor Benvenisti problematizes this second command \u201cto ensure,\u201d because when many occupants who implement this duty \u201coften created a whole cycle of events: new policies brought about new outcomes, which in their turn necessitated multiple other social decisions, and so forth.\u201d This concern is an outcome of a normal situation of occupation when the occupant governs after securing effective control of occupied territory. There is no disregard by the occupant of the legal order of the occupied State, and the occupant is treated more as a temporary trustee of the legal order until a treaty of peace comes into effect.<\/p>\n\n\n\n In the Hawaiian situation, however, these two commands for the occupant to perform its duties is upended by the fact that the United States disregarded the law on the administration of occupied territories by unlawfully imposing its own laws over Hawaiian territory that ruptured the status quo ante bellum<\/em> of the Hawaiian Kingdom. These American laws in Hawaiian territory constitute the war crime of usurpation of sovereignty during military occupation, which the United States recognizes as a war crime since the First World War.<\/p>\n\n\n\n Consequently, the command \u201cto restore public order and safety\u201d becomes a significant problem for the occupant because the laws of the Hawaiian Kingdom remain as they were on January 17, 1893. For the occupant to strictly adhere to this rule and administer Hawaiian Kingdom law, it would be impossible to \u201crestore public and order and safety,\u201d as intended by Article 43. In fact, it would create chaos. Further cementing this problem for the occupant, which is recognized by its own regulations, \u201cMilitary occupation does not transfer sovereignty to the Occupying Power, but simply gives the Occupying Power the right to govern the enemy territory temporarily.\u201d<\/p>\n\n\n\n For that reason, the occupant, without Hawaiian sovereignty, cannot create law for the Hawaiian Kingdom as the occupied State, but it could create policies stemming from the existing laws of the occupied State that existed prior to the occupation. However, the Council of Regency<\/a><\/strong>, as the acting government of the Hawaiian Kingdom, does have the authority to provisionally legislate. As concluded by Professor Lenzerini, in his legal opinion<\/a><\/strong>:<\/p>\n\n\n\n Under international humanitarian law, the proclamations<\/a><\/strong> of the Council of Regency\u2014including the Proclamation recognizing the State of Hawai\u2018i and its Counties as the administration of the occupying State on 3 June 2019\u2014have on the civilian population the effect of domestic legislation aimed at protecting their rights and prerogatives, which should be, to the extent possible, respected and implemented by the occupying power.<\/p>\n<\/blockquote>\n\n\n\n \u201cDuring the occupation,\u201d according to Professor Benvenisti, \u201cthe ousted government would often attempt to influence life in the occupied area out of concern for its nationals, to undermine the occupant\u2019s authority or both. One way to accomplish such goals is to legislate for the occupied population.\u201d Furthermore, he states the \u201coccupant should give effect to the sovereign\u2019s new legislation as long as it addresses those issues in which the occupant has no power to amend the local laws, most notably in matters of personal status.\u201d<\/p>\n\n\n\n On October 10, 2014, the Council of Regency, in order to fill the vacuum or empty space of Hawaiian law since 1893, proclaimed:<\/p>\n\n\n\n All laws that have emanated from an unlawful legislature since the insurrection began on July 6, 1887 to the present, to include United States legislation, shall be the provisional laws of the Realm subject to ratification by the Legislative Assembly of the Hawaiian Kingdom once assembled, with the express proviso that these provisional laws do not run 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, and if it be the case they shall be regarded as invalid and void.<\/p>\n<\/blockquote>\n\n\n\n Therefore, in order for the occupant to fully comply with Article 43\u2014to restore and ensure public order and safety of the civilian population, it must have a working relationship with the Council of Regency that international humanitarian law provides for. On this working relationship, Professor Lenzerini concluded:<\/p>\n\n\n\n The working relationship between the Regency and the administration of the occupying State should have the form of a cooperative relationship aimed at guaranteeing the realization of the rights and interests of the civilian population and the correct administration of the occupied territory, provided that there are no objective obstacles for the occupying power to cooperate and that, in any event, the \u201csupreme\u201d decision-making power belongs to the occupying power itself. This conclusion is consistent with the position of the latter as \u201cadministrator\u201d of the Hawaiian territory, as stated in the Council of Regency\u2019s Proclamation recognizing the State of Hawai\u2018i and its Counties as the administration of the occupying State of 3 June 2019 and presupposed by the pertinent rules of international humanitarian law.<\/p>\n<\/blockquote>\n\n\n\n The Council of Regency’s Operational Plan for Transitioning the State of Hawai\u2018i into a Military Government<\/a><\/strong> takes all of this into consideration that will align the provisional laws to the status quo ante bellum<\/em> of the Hawaiian Kingdom so that the occupant can \u201crestore and ensure public order and safety\u201d of the civilian population.<\/p>\n","protected":false},"excerpt":{"rendered":" The civilian population of the Hawaiian Islands was not consulted by the United States when its troops invaded the Hawaiian Kingdom on January 17, 1893. Nor were they consulted when U.S. troops illegally overthrew the government of the Hawaiian Kingdom … Continue reading \n
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