Occupation redux

In the (proposed) 1899 Hague Regulations, the basic premise of the law of occupation was stated:

The country invaded submits to the law of the invader; that is a fact; that is might; but we should not legalize the exercise of this power in advance, and admit that might makes right (Beernaert in Benvenisti, 2012, 90).

In the fourth Geneva Convention (GCIV) (which was crafted to with the “aim of imposing on occupants ʻa heavy burden”) (Benvenisti, 2012, 97), the norm was codified that the occupant (occupier) must take three considerations into account: “itʻs own security interests, the interests of the ousted government, and those of the local population, which may be different from the interest of their legitimate government” (Benvenisti, 2012, 69).

First Geneva Convention, 1864

The norms of GCIV were formed in the context of the Franco-Prussian war of 1870-71, which created an expectation that during occupation the occupying military and the civilian population could be kept at a distance from each other and even co-exist relatively harmoniously (Benvenisti, 2012, 70). As for changes to law, they were to be kept at an absolute minimum, but were allowable for the purpose of making occupation practicable and functional on the ground. Benvenisti (2012, 90) notes that the rule that changes to law are only when “absolutely necessary … has no meaning” because the occupant is never absolutely prevented from complying to local law.

Article 43 of the GCIV was a mandate to “restore and ensure public order and civil life” – this came to be seen as an “incomplete instruction to the occupant” because of the conflicts of interest between occupant and the ousted government (Benvenisti, 2012, 71).

Changes to the law of occupation also continued as human rights became more of a concern to the international community. As this occurred, actual occupants began to seek to avoid the responsibilities of occupation by “purport[ing] to annex or establish[ing] puppet states or governments, rely[ing] on ʻinvitations’ from indigenous governments [the Soviet/Russian formula]” and other means (Benvenisti, 2012, 72).

But as is often pointed out, these means are not legitimate as GCIV states “the benefits [or applicability] of the [Geneva] Convention shall not be affected … by any annexation … of the whole or part of the occupied territory.” In short, the occupant retained the duty to fulfill its obligations under the law of occupation (GCIV in Benvenisti, 2012, 73).

As with all legal documents and doctrines, however, it is “impossible to read the drafting history of the GCIV without paying close attention to the diverse concerns of the different state representatives” (Benvenisti, 2012, 98). That is to say, it is contingent on the conditions of the time and context in which it was crafted.


As it developed in the twentieth century, the human rights regime came to decenter the law of occupation’s emphasis on the agency of states as the only actors. People came to play a role in international law, under which previously only states were subjects. In the occupation of Iraq, for example, Amnesty International pushed for changes in Iraqi law – normally in contravention of the law of occupation – for the purpose of the protection of human rights. Occupation was in this case seen as an opportunity to improve conditions for the citizens of the occupied state (a rare, but quite possible scenario). Sharia law was in this case seen as “incompatible” with GCIV rights (Benvenisti, 2012, 103).


Keanu Sai has used the “doctrine of necessity” as a justification for forming the Acting Government of the Hawaiian Kingdom; the necessity of an “organ” to speak on behalf of the occupied state, in other words, necessitated the creation of a “government” whose legitimacy would otherwise be highly questionable. Benvenisti notes this doctrine as a “recognized justification for legislation by the occupant,” but noted that it does not apply to the civil and criminal laws of the occupied state: “the penal laws of the occupied territory shall remain in force,” (Benvenisti, 2012, 96) ostensibly to prevent draconian trials and execution of resisters against the occupation. However, it is also recognized that the occupant would be “prevented from respecting the laws in force” in the rare case that they “conflicted with its obligations under international law, especially [the GCIV] (brackets original)” (Benvenisti, 2012, 102).


Sai also notes that Debellatio, or conquest, while seen as a legitimate form for the transfer of sovereignty, was essentially outlawed in the Americas – by the United States and some of the recognized sovereigns in South America – because they feared their former colonial overlords would re-conquer them. This, in his view, was the purpose of the 1823 Monroe Doctrine. As Jay Sexton notes in his book  The Monroe Doctrine, “American statesmen exploited fears of foreign intervention in order to mobilize political support” (Sexton, 2011, 12). Sexton also notes how the Tyler Doctrine (actually proclaimed in 1842 by secretary of state Daniel Webster) “effectively extended the 1823 message  [the Monroe Doctrine] to Hawaiʻi” (Sexton, 2011, 112). As a result, the United States does not recognize debellatio - conquest – as a legitimate form of transferring sovereignty. This quells any argument that even though there was no conquest of the Hawaiian Kingdom, “there would be.”


The occupant is allowed to collect taxes, “as far as is possible, in accordance with the rules of assessment and incidence in force … to defray the expenses of the administration of the occupied territory” (Benvenisti, 2012, 81). In other words, the occupant should not, as was seen in the film The Last Emperor, make the occupied “pay for its own occupation” as the Japanese ambassador says to the Emperor of Manchuria (Manchukuo). The occupant is also bound by the general rules regarding property of usufruct – the use of land without destroying it (Benvenisti, 2012, 77). This is relevant to the U.S. presence in Hawaiʻi as evidenced by the more than one hundred Superfund sites at Pearl Harbor alone.


My own understanding of the law of occupation is that it strictly prohibits the “overwhelming” of the nationals of the occupied state with settlers from the occupying state, as was done by Russia to Estonia and other Baltic states. Benvenisti treads very lightly here, noting only that settlement need only avoid “impinging on the rights” of the citizens of the occupied state. It is possible (though I donʻt mean to hastily accuse him) that his status as an Israeli influences this light treatment of settlers, and he does mention Israel, the West Bank and Gaza in the very short section on this topic (Benvenisti, 2012, 106-107).

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The Kingdom Exists

Iʻve written for about a decade now that the Hawaiian Kingdom exists legallythat is, as a subject of international law. But I’ve started to compile the other ways in which it continues to exist. Many ask if Hawaiians (and non-Hawaiian allies of independence) want to “go back” to the Kingdom, but signs of the Kingdom are all around us.

1. ʻIolani Palace: after being used as a storage facility, the friends of ʻIolani Palace, led by Abigail Kawananakoa, rehabilitated the palace into the symbol of the monarchy that it is today. In tours it’s called the “only royal palace on American soil” – shouldnʻt that make you wonder if this is in fact American soil?

2. The law: Kingdom law is the common law of the State of Hawaiʻi. The Provisional Government was not in any way capable of recreating decades of carefully-thought out statutes, and simply adopted the existing laws, which became, eventually, the laws of the State (with some notable modifications to be sure). Native Tenant Rights (Kuleana) were still being debated in 1895 (Dowsett v. Maukeala), after the overthrow. Kanawai Mamalahoe (the law of the splintered paddle) was incorporated in Article IX of the Hawaiʻi State Constitution (on Public Safety).

3. Schools: Lahainaluna (1831), Royal School (1839), Punahou (1841), St. Louis School (1846), ʻIolani School (1862) St. Andrew’s Priory (1867), and Kamehameha Schools (1887) are all Kingdom institutions.

4. Churches: They were built to last; Mokuʻaikaua in Kailua, Kona (1837) Kawaiahaʻo (1841), Waiola in Lahaina (burned down and rebuilt in 1953, but its cemetery dates to 1832 and Queen Keōpūolani, King Kaumualiʻi and Princess Nahiʻenaʻena are buried there) and St. Andrew’s cathedral all date to the Kingdom period. (The original Kaumakapili Church was built in 1839, but the current structure dates to 1910).

5. Roads: King Street used to be King’s path, then King’s Road (it was for the King), Kamehameha Highway, Lunalilo Home Road, Kahekili Highway, Manono Street in Hilo, Honoapiʻilani Highway on Maui, and many more refer to royalty.

6. Parks: Kapiʻolani Park was a horse racing track, and the row of ironwood trees was the entrance for King Kalākaua and Queen Kapiʻolani, Thomas Square was named for Admiral Thomas who restored Hawaiian sovereignty in 1843. There is still a visible Union Jack when seen from the air.

Screen Shot 2014-09-12 at 1.43.12 PM

7. Maunaʻala – Royal Mausoleum: Even Congress acknowledges that the Kingdom exists. Congress stated that the grounds of Maunaʻala are sovereign land of the Hawaiian Kingdom. And there the physical symbols of the monarchy lie.


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Legal Pluralism

When I was a boarder at Lahainaluna, one thing that was very clear to me, even at age 14, was that there were multiple layers of rules, depending on who was present. If the Principal was there, no one could wear shoes in the dorm. If only the Dorm Counselors were there, then upperclassmen could wear their shoes. But if it was only boarders, another set of rules applied that was not entirely different from The Lord of the Flies. But these were indeed rules, not anarchy, and they demanded, and were concerned with, respect and obedience.

Scholars in critical legal studies have described the legal systems of some locales as “plural,” i.e., more than one system exists simultaneously in a single area. Sally Engle Merry, a major scholar in this area, notes “different systems of law intersect within fields of power relationships linked to conceptions of race [and] nationalism” (Merry, 2000, 18).  Often these rule systems consist of tribal laws that are superimposed by colonial or national laws.

Hawaiʻi has a legally plural system, but not in the way that other places do. Here, the laws of the Kingdom remain largely intact, while “overwritten” by those of the State of Hawaiʻi. But the State considers Kingdom law to be its common law, and any law that is not expressly changed by the legislature remains in place.

But law in Hawaiʻi is plural in yet another way: many laws that are quite “liberal” toward Hawaiians (my work focuses on native tenant, or kuleana, rights) remain on the books, but are not followed. So there is the written law and that law that is understood to be the “real” (though not official) law of Hawaiʻi. This pluralism may in fact sometimes be merely a failure to follow law; a disregard of law in favor of power. At other times, it is a contest over which [form of] law will be followed.


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Sanford B. Dole, the Congregationalists, and Annexation, 1902.


Non-Hawaiian anti-annexationist views..

Originally posted on nupepa:


On Monday evening, April 28 last, Governor Dole was the guest of the Congregational Club of Boston. Elsewhere in this issue will be found a sketch made by Dole of the Hawaiian situation. It is characteristic of the man. Having the full support of the Administration behind him he is not afraid to say in public what he has been thinking in private for many long years. Let us see and take up his points one by one.

Point No. 1.—”The monarchy was overthrown and annexation was accomplished for the sake of good government for the islands; that is, for their benefit.”—It is true! Annexation was accomplished, by a handful of Congregationalists because the reciprocity treaty between the United States and Hawaii was in imminent danger of being abrogated. The monarchy was overthrown, so as to save the $40 per ton duty on sugar. It was then…

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The Racist Professor at the University of Illinois


On academic freedom … and unfreedom.

Originally posted on The Academe Blog:

University of Illinois emeritus professor Robert Weissberg published an essay this week with the John William Pope Center for Higher Education Policy, a right-wing think tank, in which he argues about the Salaita case: “The trustees are not guilty of violating free speech; their sin is cowardice in overseeing the faculty. They did not perform their job.” It certainly takes some hubris for an openly racist professor who was never punished by the University of Illinois to complain that the trustees have failed to punish offensive left-wing faculty.

I want to refute Weissberg’s attacks on Salaita later on in this blog, but first I should state that the Pope Center had invited me to submit an essay along with Weissberg, and I wrote one for them.

Noting that Weissberg had spoken at a conference of white supremacists, I wrote in that essay: “I think that Weissberg’s views are far more…

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This post is a way for me to sort out my ideas and understandings of the concept of occupation. It is also for my students in the course Protest under Occupation in the Matsunaga Institute for Peace and Conflict Resolution, to clarify the very dense readings in Benvenisti’s The International Law of Occupation and other readings.

Eyal Benvenisti (2012, 1) states that “the law of occupation is intimately related to the law of sovereignty, and to a large extent serves as its mirror image.” This underscores the quite central point that the law of occupation applies only to recognized sovereign states. This has been an area of some confusion for me (and I suspect others), since Israel’s presence in Palestine (Gaza and the West Bank) has been called “occupation” for many years. This term would apply now, since Palestine received recognition from the majority of UN members, in both the General Assembly and UNESCO. But it should not have applied before such recognition. The seeming milestone of recognition has passed almost unnoticed. This is a cause for concern over the effectiveness of the law of occupation, and indeed of recognition itself. There is one caveat: it some hold that full recognition of a state that is seceding must be recognized by the state it is seceding from (i.e., Israel must recognize Palestine).

Human rights law professor Eval Benvenisti

Some premises of the law of occupation:

Occupation is considered “a state of exception for international law.” As Giorgio Agamben notes, the sovereign is that for which a state of exception exists in terms of the law, i.e., the sovereign is “he” to whom the law does not apply.

Giorgio Agamben

Because the law of occupation begins to apply once a law has already been broken (the first law of nations – that law of non-intervention), occupation thus fills a “governance gap” providing some type of governance where the occupied government is overthrown.

Temporary allegiance: “inhabitants are under [the occupant’s] sway and have to render obedience to his commands.”

The bases of the law of occupation include the Hague regulations, Geneva Convention IV, and customary international law.

The working definition of occupation involves the occupier (or “occupant”) having “effective control” and “boots on the ground”- that is, it actually controls the territory, rather than merely claiming to control it. Occupation is thus a “de facto regime” – a regime “in fact,” but not “in law” (de jure).

The Occupant has no title to territory, but this “does not release it from its obligations and responsibilities under international law” (Benvenisti, 2012). The occupant is also “responsible for local public institutions such as the local police, which [it] directs and controls,” in other words, it is responsible for maintaining order during the occupation.

While some have questioned the relevance and effectiveness of the law of occupation, according to Benvenisti:

Despite … the evolution of new normative frameworks such as the law on self-determination or human rights law, the law of occupation has retained its relevance and significance (Benvenisti, 2012, 19).

Origins of the concept

Occupation was “conceived as a temporary regime existing until the conclusion of a peace agreement between the enemy sides” (Benvenisti, 2012, 20). It is thus the “mirror image of the concept of sovereignty” (Benvenisti, 2012, 21). According to eighteenth century international legal theorist Emmerich de Vattel, there is “no difference between [an] occupant and a conqueror who may treat the territory gained as under its sovereignty”(Benvenisti, 2012, 23).

Characterization of Occupation

Occupation begins: “once control is established” – i.e., there is no delay between the beginning of occupation and the responsibilities afforded to the occupant, he is immediately responsible (Benvenisti, 2012, 55).

Occupation ends when: 1) there is a loss of effective control, 2) the occupant can no longer exercise authority, 3) the consent of the sovereign is granted through a peace treaty, or 4) there is a transfer of authority to a government endorsed by the occupied population through internationally-recognized referendum.

Occupation is by definition military in nature, and rather than granting unlimited powers on the occupier, places obligations on them – to administer a temporary government, provide services, etc. This obligation begins immediately. At first, the law of occupation granted very few protections to the residents of an occupied state, and even allowed for punishment of those who defy the occupying government’s dictates. This is problematic for those who currently deny the validity of the State of Hawaiʻi and its government apparatus. But the law evolved over time to grant further rights and protections to the occupied.

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The Burden of Proof

The arguments for occupation and the illegality of annexation seem to be going mainstream, at least in Hawaiʻi. Keanu Sai was on the front page of the Star Advertiser, and on Hawai’i Public Radio in the same week. Journalists, while still somewhat dubious of the arguments, also appear to be noticing the establishment’s lack of a credible defense of the status quo. When asked on Hawaiʻi News Now whether the Kingdom of Hawaiʻi still exists, Governor Abercrombie simply stated, “the Kingdom of Hawaiʻi does not exist,” but provided no support for his claim. He did essentially the same thing in a letter to the Secretary of Interior, skimming over the history of annexation in a way my 11th grade students would be embarrassed to do.

At the same time, the burden of proof seems (rightly, it seems) to be on Keanu Sai and his allies to show the veracity of their claims. This is where the burden should be placed in terms of logic: the logical fallacy onus probandi* holds that “the burden of proof is on the person who makes the claim, not on the person who denies (or questions the claim).” So, again, it seems that the burden here is correctly placed. However, in international  law, when it comes to a state (nation-state or country) the burden of proof lies on the party that denies the existence of the state, the Hawaiian Kingdom in this case. This could be called the doctrine of presumption. As International law professor and Permanent Court of Arbitration (World Court) judge James Crawford states:

There is a strong presumption that the State continues to exist, with its rights and obligations, despite revolutionary changes in government, or despite a period in which there is no, or no effective, government. Belligerent occupation does not affect the continuity of the State, even where there exists no government claiming to represent the occupied State.

It seems to me that international law takes precedence in this case. Here logic and international law appear to be at odds, but this is only because the argument for the continued existence of the Kingdom is the surprising one. We must be vigilant in our arguments, because, in my view, this issue will be resolved in discourse. There are other fallacies; for example I have fallen myself for the Argument from ignorance (argumentum ad ignorantiam) – assuming that a claim is true because it has not been or cannot be proven false. Because the “establishment” cannot satisfactorily explain away the claims that Sai and others bring up, does not automatically make those claims true.

*from Latin “onus probandi incumbit ei qui dicit, non ei qui negat”


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