An Analysis of the “Legal Opinion on War Crimes related to the United States Occupation of the Hawaiian Kingdom” by Prof. William Schabas

#79 in the Moʻolelo series, this is an analysis of Professor William A Schabas’s “Legal opinion on war crimes related to the United States occupation of the Hawaiian Kingdom since 17 January 1893.” Schabas is Professor of International law at National University of Ireland, director of the Irish Center for Human Rights and author of Genocide in International Law: The Crime of Crimes and was an investigator for the genocide in Rwanda. He holds joint appointments at University of Warwick School of Law, and is professeur associé at the Université du Québec à Montréal. Schabas has the distinction of the Order of Canada, a Canadian national order and the second highest honour for merit in the system of orders, decorations, and medals of Canada.

Iʻm not an International lawyer, or a lawyer at all, but most people fail to realize few lawyers are experts in the international arena – thereʻs really no money in it. Very few universities offer programs specializing in international law – most offer courses that are part of a general law degree. I am a political scientist by training (PhD) and teach two courses at UH Mānoa that relate to international law – Protest under Occupation (PACE 450), which examines the law of occupation, and Indigenous Nonviolent Action in the Asia Pacific (PACE 460), which looks at the international Indigenous rights regime. I also studied International Organizations at Harvard and have a Masterʻs degree from that university.

All this is to give my credentials for the purpose of establishing my level expertise on the topic – not an expert at the highest level, but very far from an amateur. The Schabas opinion is from an expert at the highest level (not the only expert, but one nonetheless). So it addresses a problem we’ve had in this area: people making claims about Hawaiʻi’s status internationally, when their qualifications to make those claims are unclear. Not all opinions are of equal value. Schabas’s opinion, released on July 25th, 2019, begins:

This legal opinion is made at the request of the head of the Hawaiian Royal Commission of Inquiry, Dr. David Keanu Sai, in his letter of 28 May 2019, requesting of me “a legal opinion addressing the applicable international law, main facts and their related assessment, allegations of war crimes, and defining the material elements of the war crimes in order to identify mens rea and actus reus”. It is premised on the assumption that the Hawaiian Kingdom was occupied by the United States in 1893 and that it remained so since that time. Reference has been made to the expert report produced by Prof. Matthew Craven dealing with the legal status of Hawai‘i and the view that it has been and remains in a situation of belligerent occupation resulting in application of the relevant rules of international law, particularly those set out in the Hague Conventions of 1899 and 1907 and the fourth Geneva Convention of 1949. This legal opinion is confined to the definitions and application of international criminal law to a situation of occupation.

Schabas, 2019, 1

Schabas determines the applicable law in this case:

the relevant treaties appear to be the following: Hague Convention II on the Laws and Customs of War, 1899; Hague Convention IV on the Laws and Customs of War, 1907; Convention (IV) Relative to the Protection of Civilian Persons in Time of War, 1949 (‘fourth Geneva Convention’). 

Schabas, 2019, 1

Some have claimed that because Hawaiʻi’s annexation was in 1898, it predates The Hague Convention and laws cannot be applied retroactively. But the principle of occupation is much older than The Hague convention, and the Convention only codified a pre-existing understanding. It could be argued that international law itself was established to prevent occupations – technically, it was to prevent “interventions” like the overthrow, but itʻs the same concept. And international law itself is widely regarded as being established at the Peace of Westphalia in 1648 – quite a while before 1898!

The report examined the possibility of war crimes committed in eight categories:

  1. usurpation of sovereignty during occupation
  2. compulsory enlistment
  3. denationalization
  4. pillage
  5. confiscation or destruction of property
  6. deprivation of fair and regular trial
  7. deporting civilians of the occupied territory
  8. transferring populations into an occupied territory

One of the most compelling arguments Schabas makes is in the first, and perhaps most relevant, category – “usurpation of sovereignty during occupation” – where he finds (Schabas, 2019, 17):

  1. The perpetrator [the United States – it’s in the title] 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 circumstances that established the existence of the armed conflict and subsequent occupation.

While Schabas was certainly paid to write the report (this is standard procedure in my understanding, as this is, in theory, a country – the Hawaiian Kingdom – paying him, and so the fee would be a “drop in the bucket” in a normal situation, i.e., not occupied), he doesn’t just take the side of Hawaiians in every case, suggesting the report is fair-minded. In a section called “Temporal Issues” – an extremely relevant one if indeed Hawaiʻi is the longest occupation in history – Schabas has this to say:

it is important to bear in mind that, as the judgment of the International Military Tribunal famously stated, ‘crimes against international law are committed by men, not by abstract entities, and only by punishing individuals who commit such crimes can the provisions of international law be enforced’.5 Consequently, human longevity means that the inquiry into the perpetration of war crimes becomes quite abstract after about 80 years, bearing in mind the age of criminal responsibility. Writing in 2019, it serves little purpose to consider the international criminality of acts that may have taken place at the end of the nineteenth century or the early years of the twentieth century, given that there is nobody alive who could be subject to punishment.

Schabas, 2019, 4

Since the controversial Larsen v. Hawaiian Kingdom case, this opinion, and those of a few others (Federico Lenzerini, for one)* have been some of the touchstones for understanding Hawaiʻi present political status. One important point brought up by the Hawaiian Kingdom Blog is that one of the sources of International Law is the opinions of scholars in the field – this adds to the heft of Schabas’s findings. The report is available here: https://hawaiiankingdom.org/pdf/Opinion_War-Crimes_Schabas_RCI.pdf and also as an eBook.

*I gave the opening remarks at a symposium with Lenzerini and Dr. Keanu Sai, see My Remarks at the Panel on the International Inquiry – Permanent Court of Arbitration (at Kamehameha Schools).

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