Occupation

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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55 Years of Hawaiʻi Statehood

According to Bell (1984, 38), American statehood for Hawaiʻi was discussed as early as the 1850s. The incorporation of Hawaiʻi into the United States through the 1900 Organic Act, Bell argues, included an tacit, or unspoken “assurance of ultimate statehood” (Bell, 1984, 40). Supreme Court decisions pointed to the idea that territorial status was “an intermediate step to eventual statehood” (1984, 41).

According to AhQuon McElrath: “the issue of communism was a smoke screen … They had to figure out a was of getting rid of the ILWU. So they raised the issue of communism. Of course, the anti-statehood people, most of them were anti-statehood because of the Oriental [Asian] population, jumped onto the anti-Communist issue too … it was popular … during the days of Senator McCarthy to worry about Communism” (PHS, 1986, 109).

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John Burns recognized opposition to statehood. He stated:

The reasons why Hawaii did not achieve statehood, say, ten years ago … [or even] sixty years ago—lie not in the Congress but in Hawaii. The most effective opposition to statehood has always originated in Hawaiʻi itself. For the most part it has remained under cover and has marched under other banners. Such opposition could not afford to disclose itself, since it was so decidedly against the interests and desires of Hawaii’s people generally (Whitehead, 1993, 44).

Governor John A. Burns

Opposition to statehood for Hawaiʻi fell into two camps – those who opposed it because they preferred the Territorial arrangement, and those who held on to the idea of a more independent Hawaiʻi. The first position was represented by a group called IMUA, or the Hawaii Residents’ Association, which the mainstream dismissed as “lunatic fringe conservatives” (Whitehead, 1993, 45).

The most outspoken voice of the second group was Alice Kamokila Campbell, who testified:
I do not feel … we should forfeit the traditional rights and privileges of the natives of our islands for a mere thimbleful of votes in Congress, that we, the lovers of Hawaii from long association with it should sacrifice our birthrights for the greed of alien desires to remain on our shores, that we should satisfy the thirst for power and control of some inflated industrialists and politicians who hide under the guise of friends of Hawaii, yet still keeping an eagle eye on the financial and political pressure button of subjugation over the people in general of these islands (Whitehead, 1993, 50).

The January 17, 1946 headline of the Honolulu Star-Bulletin read “Kamokila Opposes Island Statehood.” Campbell also created an Anti-Statehood Clearinghouse, which received testimony from members of the community, especially Hawaiians, and expressed those opinions that ordinary people could not, under fear of losing jobs or other forms of retribution. Her precise goal for Hawaiʻi is not entirely clear. At times she asked that Hawaiʻi be “left alone,” and at others she said she favored “an independent form of government, but one in which ʻthe Congress of the United States would have a slight hold on us, so that we could not go absolutely haywire.’”

KAMOKILA CAMPBELL

Alice Kamokila Campbell

Kamokila Campbell was the daughter of sugar grower and financier James Campbell and Abigail Maʻipinepine Parker, who was “descended from HawaiʻI’s ruling chiefs” (Whitehead, 1993, 47). Kamokila Campbell’s sister, Abigail Wahiikaʻahuʻula Campbell, married prince David Kawānanakoa. The Campbell children were beneficiaries of the Campbell Estate, worth approximately $20 million in the post-war period (Whitehead, 1993, 47).

George Lehlightner worked for statehood because he perceived inequalities in the Territory:
So we [the United States] were actually saying out of one side of our mouths that we were fighting a war to assure the maintenance of our own freedom and restore it to others and, yet, out of the other side of the mouth we were telling 500,000 Americans [residents of Hawaiʻi], all of whom were good and loyal citizens, that we were going to impose taxation without representation and even worse on them, and we did (Lehleitner, 1986, 12).
Lehleitner (1986, 13) also felt that the charge of anti-American sentiment in HawaiʻI was exaggerated and false:

…there was not a single case on record of any citizen [of Hawaiʻi] having done anything that could be even remotely called treasonable. And then, when you add on top of that, the fact that HawaiʻI’s population was about 40 percent of Japanese descent, 40 percent AJAs, that in itself, it seemed to me, and I so presented it to the members of Congress I spoke with, was a strong case.

The strategy pursued by John Burns and pro-Statehood Democrats was to allow Alaska to gain statehood first, rather than combining the two territories into one bill. This would split the opposition in Congress to statehood for either HawaiʻI or Alaska. This proved a successful strategy, as Hawaiʻi was made a state on August 21st, 1959.

Hawaiʻi had been on the United Nations list of Non-Self Governing territories since the 1940s. It’s removal from the list required there be three options on the plebiscite ballot: territory (commonwealth), state and independence. Because this third option was left out, the Statehood vote and Statehood itself could be seen as illegal.

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A People Without a Past: Mythology and History

Samuel Manaiakalani Kamakau

In 1841, historian Samuel Kamakau warned against Hawaiians becoming “a race without a history.” This nearly came to pass, and in many circles (including powerful circles in Hawaiʻi) it is as if it did. The lesson of recent findings in Hawaiian history and archaeology (meaning in the last 50 years, but especially that last 20) is that we can trust our kupuna. Scientific findings have moved closer and closer to Hawaiian understandings in topics such as migration and oral history. Even unbelievable stories can be understood to be “true” if seen as metaphors. And what have our kupuna told us? For one thing, they unequivocally stated with the Kuʻe petitions in 1897-98 that they did not want us to be Americans (or only Americans). This is a modern example that is easy understand, but it is the older stories that are more difficult to reconcile.

Joseph Campbell has shown that Hawaiian mythology has correspondences to Eastern and Western mythologies, as if connecting to a “world mind.” The world’s foremost scholar of mythology, Joseph Campbell, is buried in Hawaiʻi at Oʻahu Cemetery (as is Kamakau, interestingly). Campbell got the spark for mythology at the Museum of Natural History in New York City when he saw the dioramas of Native Americans. This led to a lifelong study of comparative mythologies – Native American, “Oriental,” Western and even Polynesian. It is this incorporation of Hawaiian myths that particularly attracted me to Campbell’s work; many thinkers have grand meta-narratives that have great explanatory power, but they nearly always fail to apply to my own Hawaiian culture, and are thus incomplete.

Campbell’s work is impossible to summarize here, but he offered much in terms of explanation of the meaning of mythological stories, including biblical ones. One explanation that particularly struck me was that of meaning of the virgin birth, which he explains through chakras. To Campbell, the virgin birth is confusing when it is seen as a physical birth

“When the symbols that a religion is tied to is connected to a history, and then that history is found to be false, the symbols also fall.” Campbell suggests that the symbols emerge not from the outside world, but from the psyche [important note: psyche means soul, not mind - psychology has forgotten its own root (see Ken Wilber's Integral Psychology)].

“Every civilization in the world has been shaped by mythology.” People live out these mythologies. Just as Jung’s work helped Campbell to understand the psychic meaning of myths, Hawaiians can use Campbell’s work to reconcile the mythological and historical dimensions of our oral history. In short, by reconciling the metaphorical nature of or history, we can begin to trust ourselves, our kupuna and our culture.

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My Department of Interior Testimony

The misunderstandings upon which the rule change process is based were seen in Assistant Secretary Esther Kiaʻāina’s recent statement that she “acknowledge[s] illegality, but the remedy must be done within the confines of modern domestic and international law. And as far as I’m concerned, unless the Admissions Act, and the Annexation Act, has been repealed, or ruled invalid in a U.S. court of law, it is hard for me to be in pursuit of an alternative form other than subtle recognition.”

First: there was no “Annexation Act,” as was clear from the hearings, but a mere resolution purporting to annex foreign territory.

Second: the Admissions Act was the result of a plebiscite that was in violation of United Nations standards, which required the third option of independence for removal from its list of Non-Self Governing territories.

Third: a U.S. court of law simply has no jurisdiction over an international affair such as annexation of foreign territory.

Fourth: it is precisely international law that opponents of the rule change are pointing to, and that its proponents are ignoring.

Given that this process is based on a highly flawed understanding of Hawaiian history, it is hard for me as a scholar, teacher and Hawaiian history researcher to give any answer to the several questions other than no.

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Kaulia’s invitation to Morgan, 1897.

Originally posted on nupepa:

KAULIA TO HEAR MORGAN

ANTI-ANNEXATIONIST LEADER SIGNS INVITATION.

Says His People are Anxious to Learn From the Veteran Senator What Annexation Would Mean to Them.

Senator Morgan has accepted the invitation of the native Hawaiians to address them in public meeting upon the political relations between Hawaii and the United States.

Among the signers of the invitation is James K. Kaulia, president of the Hawaiian Patriotic League and president of the Aloha Aina Society. Mr. Kaulia is bitterly opposed to annexation and he is at the head of the opposition among his own countrymen. It was Mr. Kaulia who was largely instrumental in getting a few Hawaiians to gather in an abortive mass meeting at the Union Square last month, and adopt the resolutions protesting against annexation which Mr. Kaulia afterwards at the head of a committee of fifteen presented to President Dole and his Cabinet.

Mr. Kaulia states that…

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Indigenous Knowledge and Complex Systems Theory

umi:

The intersection of two topics of intense interest for me…

Originally posted on Incites for the week:

“In order to make sustainable change in complex social systems, it is necessary for people to work together as teams, organizations, and networks of organizations. However, many of the traditional ways organizations (especially in the West) are structured and run are founded on more linear approaches that make it very difficult for these organizations to support non-linear, complex, and systemic efforts. This creates a dual challenge to a systems practitioner – both how to grapple with the complexity “out there” (in the social contexts in which they work) and to grapple with the complexity “in here” (in the complex organizations they work within).”[1]

This quote comes from a paper on institutionalizing systems thinking. This briefing paper is a part of the Dynamic Systems Theory Summer Innovation Lab. (http://conflictinnovationlab.org/) I am grateful for the exposure to complex systems thinking and various techniques to map these complex relationships. The…

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