Tag Archives: Acting Kingdom of Hawaii

Response to Gerald Smith’s “Host Culture in Hawaiʻi is just a Myth”

Gerald Smith was right and wrong in his Civil Beat article “Host Culture in Hawaiʻi is just a Myth.” Hawaiians may not be the “host” culture, and it’s true as he says, that neither Hawaiians nor other non-indigenous groups are here by choice, nor by invitation. In fact, Kamehameha II gave the first group of foreigners to ask permission, the Congregationalist missionaries in 1820, a probationary period of one year. The deadline for reviewing their stay was neglected and within a generation they were entrenched in government and the economy. I often wonder if the term “host culture” is merely a convenient one for the tourism industry, as it creates the impression – a questionable one – that tourist are welcome guests. Smith is wrong, however, on several counts. His claim that “Many Native Hawaiians would like us all to leave and restore the kingdom that was taken away by the United States,” is unsupported by any evidence. Just as the Hawaiian Kingdom never ejected even its most troublesome residents, the Hawaiian movement has not called for non-Hawaiians “all to leave.”

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Kūkaniloko march opposing Stryker brigade, 2006. Thatʻs me looking in the wrong direction as usual. Photo by Michael Puleloa

What is problematic is Smith’s assertion that everyone in Hawaiʻi is equal in the eyes of the law. Putting aside the quite valid claims of independence advocates for the moment, the State of Hawaiʻi recognized Hawaiians as the Indigenous people of Hawaiʻi in 2011. Over one hundred pieces of Federal legislation, beginning with the 1921 Hawaiian Homes Commission Act do the same. To simply brush aside these forms of recognition that Hawaiians are unique in the eyes of the law, is troublingly close to what has been called “white indigeneity.” What can be said of narratives of white indigeneity is that they are widespread. Such claims are seen in New Zealand, Australia, the US and elsewhere. What cannot be said is that they are taken seriously. I happened to observe the phenomenon in the New Zealand parliament: one conservative member cited the respected historian Michael King to support his contention that pakeha (Caucasians) were Indigenous. To this another member asked if the “honorable member” was familiar with the UN definition of Indigenous.

Smith establishes his kamaʻāina credentials by stating that he observed the attack on Pearl Harbor. If this is the case, he certainly did not take Hawaiian history in school, even if he went to school here, as it wasnʻt required until the 1970s. So one is left to wonder where his understanding of Hawaiian history comes from. Likely its from Gavan Daws’s Shoal of Time, still the most read general history of Hawaiʻi. The book’s chapter on Statehood is entitled “Now we are all Haoles.”

Smith’s contention that “the people who live here voted to become a state, so some will never accept their fate.” was roundly and very publically critiqued on its 50th anniversary in 2009, with very little in the way of counter- arguments.  The link in his article that ostensibly supports this “fact” takes the reader to history.com – as Hawaiian history is not well-known in Hawaiʻi, citing an external source does not inspire confidence in the reader. This was taken into consideration by the UN; in 1996 the Star bulletin headline read “UN may find statehood illegal.” It was even tacitly recognized by the local majority. There are fireworks in Waikiki every Friday, but none on the 50th anniversary of statehood. Apparently Friday is a more important event.

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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.

HUMAN RIGHTS

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).

NECESSITY

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).

DEBELLATIO

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.”

MANAGEMENT OF NATURAL RESOURCES

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.

NATIONALS OF THE OCCUPYING POWER

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 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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Press Release: Hawaiian Kingdom Deposits Instrument of Accession to the Jurisdiction of the International Criminal Court with the United Nations Secretary-General in New York

Hawaiians have had dealings with the UN for many years, but what is important about this development, similar to the UN Permanent Court of Arbitration proceedings in 1999-2001, is that this filing was accepted under the provision reserved for “non-[UN] member states” – i.e., reserved for states. This is the status that Palestine was granted a few weeks ago by vote of the general assembly, and is de facto recognition of sovereign status. Disclaimer: this is how it was described to me with ample evidence of the veracity of the statements. Sai was interviewed on South-South News in October, a United Nation’s news outlet, and I have given a presentation at TEDx Mānoa regarding this issue.

For Immediate Release – December 10, 2012
Contact: David Keanu Sai, Ph.D.

E-mail: interiorhk@hawaiiankingdom.org

David Keanu Sai, Ph.D.

NEW YORK, December 10, 2012 — This afternoon the Ambassador-at-large and Agent for the acting Government of the Hawaiian Kingdom, H.E. David Keanu Sai, Ph.D., filed with the United Nations Secretary General in New York an instrument of accession acceding to the jurisdiction of the International Criminal Court (ICC). The ICC is a permanent and independent tribunal in The Hague, Netherlands, that prosecutes individuals for genocide, crimes against humanity and war crimes. The ICC only prosecutes individuals and not States.

The instrument of accession was deposited with the United Nations Secretary-General in accordance with Article 125(3) of the ICC Rome Statute, which provides, “This Statute shall be open to accession by all States. Instruments of accession shall be deposited with the Secretary-General of the United Nations.” The instrument of accession was received and acknowledged by Mrs. Bernadette Mutirende of the United Nations Treaty Section, Office of Legal Affairs, at 380 Madison Avenue, New York.

By acceeding to the ICC Rome Statute, the Hawaiian Kingdom, as a State, accepted the exercise of the ICC’s jurisdiction over war crimes committed within its territory by its own nationals as well as war crimes committed by nationals of States that are not State Parties to the ICC Rome Statute, such as the United States of America. According to Article 13 of the ICC Rome Statute, the Court may exercise its jurisdiction if a situation is referred to the ICC’s Prosecutor by the Hawaiian Kingdom who is now a State Party by accession.

The current situation in the Hawaiian Islands arises out of the prolonged and illegal occupation of the entire territory of the Hawaiian Kingdom by the United States of America since the Spanish-American War on August 12, 1898, and the failure on the part of the United States of America to establish a direct system of administering the laws of the Hawaiian Kingdom. The United States disguised its occupation of the Hawaiian Kingdom as if a treaty of cession annexed the Hawaiian Islands. There is no treaty.

On August 10, 2012 a Protest and Demand of the prolonged occupation of the Hawaiian Kingdom, being a non-Member State of the United Nations, was deposited with the President of the United Nations General Assembly pursuant to Article 35(2) of the United Nations Charter. The Protest and Demand was acknowledged and received by Mrs. Hanifa Mezoui, Ph.D., Special Coordinator, Third Committee and Civil Society, Office of the President of the Sixty-Sixth Session of the General Assembly.

Hanifa Mezoui, Ph.D. – Office of the President of the General Assembly, United Nations

Individuals of the State of Hawai‘i government who have committed a war crimehave been reported to the United States Pacific Command and the United Nations Human Rights Commission in Geneva, Switzerland, for deliberately denying a fair and regular trial to Defendants, irrespective of nationality, and with the Hawaiian Kingdom’s accession to the jurisdiction of the ICC, these alleged war criminals will now come under the prosecutorial authority of the Prosecutor of the ICC.

Regarding the occupation of Hawaiian territory, the ICC is authorized under the Rome Statute to prosecute individuals for:

• war crime of destruction and appropriation of property;

• war crime of denying a fair trial;

• war crime of unlawful deportation and transfer of persons to another State;

• war crime of unlawful confinement;

• the transfer, directly or indirectly, by the Occupying Power of parts of its own civilian population into the territory it occupies;

• war crime of destroying protected objects dedicated to religion, education, art, science or charitable purposes, historic monuments;

• war crime of destroying or seizing the property of the Occupied State;

• war crime of compelling participation in military operations;

• war crime of outrages upon personal dignity;

• war crime of displacing civilians.

H.E. David Keanu Sai, Ph.D. represented the acting Government of the Hawaiian Kingdom in arbitral proceedings before the Permanent Court of Arbitration, Larsen v. Hawaiian Kingdom, (119 International Law Reports 566), at The Hague, Netherlands, and also did an interview with South-South News, a news agencey of the United Nations, regarding the prolonged occupation of the Hawaiian Kingdom.

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The Overthrow

One hundred and nineteen years ago, the Hawaiian Kingdom was overthrown. Queen Lili‘uokalani began her reign on Jan 29. 1891. Concerns at the start of her reign included the Bayonet Constitution, internal political struggles and the McKinley Tariff. When Lili‘uokalani ascended the throne, she was forced to pledge an oath of allegiance to the Bayonet Constitution. This meant that the monarch was unable to accomplish any act without the cabinet’s or the legislature’s approval. The monarch’s greatest power was the ability to appoint cabinet members.

Queen Lili’uokalani

But internal political dissention made it difficult for Lili‘uokalani to select and keep an ideal cabinet. As the queen put it in her 1897 book Hawaiiʻs Story, “The legislature, instead of creating legislation to benefit the people, spent its time in the making and unmaking of cabinets.” The parties involved included the Reform Party, the National Reform Party, and the Liberal Party

The Reform party was also known as the downtown party, or the missionary party. It consisted of sugar businessmen. A key figure was Lorrin Thurston, whose agenda was to maintain control of the government and achieve annexation to the US.

The key figure in the National reform party was the new Queen, Lydia Kamaka‘eha Lili‘uokalani. Her agenda was to maintain Hawaiian independence, change the constitution, and to govern via careful and irreproachable means, so as not to provide the foreign presence in Hawai‘i any justification for calling for assistance from their home countries, which could lead to an overthrow.

Finally, the Liberal party’s key figure was Robert Kalanihiapo Wilcox, one of the young Hawaiians educated in Italy under the guardianship of Celso Cesar Moreno. His agenda was to maintain Hawaiian independence by not acknowledging the validity of the Bayonet Constitution. Further, he planned to take back control of government through more “liberal” means. This group, which included anti-annexation activist Joseph Nawahï, eventually advocated a Native Hawaiian-controlled republic.

The queen consulted with the anti-annexation political party Hui Kalaʻāina to ask the members of the group to draft a new constitution.  Lili’uokalani told the group to hold on to the document until further notice.  After Lili’uokalaniʻs alliance between the Reform Party and Wilcox’s Liberal Party, she decided it was time for a new cabinet.  The Queen wanted to restore some measure of native rule that was lost in the Bayonet Constitution.

US Marines in Hawai’i, January 1893

As Queen Lili‘uokalani was about to promulgate a new constitution (to replace the “Bayonet Constitution” forced on her brother King Kalakaua in 1887, which gave foreigners the right to vote), non-Hawaiian business leaders, most connected with the sugar industry, overthrew the Queen with the aid of US Marines. On January 16th, 1893, the day that Queen Lili‘u was to instate a new constitution, John L. Stevens had the sailors and marines of the USS Boston land at Honolulu harbor and take up quarters in the yard of Arion Hall, in direct view of ʻIolani palace. The Marines acted at the request of Stevens, US Minister to the Kingdom of Hawai‘i, but without the knowledge or authorization of Congress or the President.

Lorrin Thurston

The next day, January 17th 1893, the conspirators read a proclamation declaring that the “Hawaiian monarchical system of government is hereby abrogated,” at the back door of Aliʻiolani Hale, the government building. Henry Cooper read this proclamation to “no one in particular” according to Tom Coffman– there was no crowd present to hear the proclamation. The oligarchy proclaimed itself a provisional government, elected Sanford B. Dole President, and Stevens immediately recognized this government as the “de facto government of the Hawaiian Islands.” De facto  means “in fact” as opposed to de jure, meaning “in law.”

Lili’uokalani’s statement read:

I, Liliʻuokalani, by the grace of God and under the constitution of the Hawaiian Kingdom, Queen, do hereby solemnly protest against any and all acts done against myself and the constitutional government of the Hawaiian kingdom by certain persons claiming to have established a Provisional government of and for this kingdom.

That I yield to the superior force of the United States of America, whose Minister Plenipotentiary, his Excellency John L. Stevens, has caused United States troops to be landed at Honolulu, and declared that he would support the said Provisional Government.

Now to avoid and collision of armed forces, and perhaps the loss f life, I do, under this protest and impelled by the said forces yield my authority until such time as the government of the United States shall, upon the facts presented to it, undo the acts of its representative, and reinstate me in the authority which I claim as the constitutional sovereign of the Hawaiian Islands.

Liliʻuokalani yielded, as Kamehameha III had fifty years earlier, under protest to “the superior force of the United States of America, until such time as the Government of the United States should undo the action of its representatives.” The provisional government then proceeded to lobby the US Congress to annex Hawaii. Their aim was to become a territory, thereby avoiding foreign tariffs on sugar. In March 1893 Grover Cleveland replaced Harrison as President, and withdrew the treaty of annexation from the Senate.

President Cleveland opposed the annexation of Hawai‘i and the overthrow. Cleveland sent Senator James Blount to investigate the events of 1893. Blount was flooded with testimonies from numerous parties; the largest majority of whom were Hawaiians.

The Provisional Government wined and dined Blount, because he was the one who could justify their actions. Blount did not meet a single annexationist willing to put the question of annexation to a vote of the people. After collecting weeks of testimony from both sides of the issue, Blount produced one of the most scathing critiques of US foreign policy in American history. Blount’s 1400-page document recommended that the Provisional Government step down, and that Lili‘uokalani be restored to her rightful position as the monarch of the Hawaiian Kingdom.

On the basis of this report Cleveland pushed for reinstatement of Queen Lili‘uokalani. In his address to Congress, Cleveland stated: “In an act of war a friendly and confiding people has been overthrown, a substantial wrong has thus been done which we should endeavor to repair.” Congress, however, was mainly pro-annexation, and this led to a standoff for the next five years between Congress and the President over the issue of annexing Hawai’i. The Blount report was excerpted in newspapers across the United States, striking up a national debate over imperialism. Cleveland’s message to Congress strongly advised restoring the throne and government to Lili’uokalani.

Meanwhile passage of the Wilson-Gorman Tariff in 1894 repealed the McKinley Tariff, and replaced Hawai‘i sugar growers in the privileged competitive position with regard to US sugar sales.In Cleveland’s message to Congress he stated: “By an act of war, the government of a friendly and confiding people has thus been overthrown. A substantial wrong has been done that we should endeavor to repair.” President Cleveland was accused by some of restoring monarchy and “stamping out republicanism,” an ironic move for an American President. Others in the US supported Cleveland’s position.

In response to Clevelandʻs recommendation to Congress, however, the Provisional Government, on July 4, 1894, declared itself to be the Republic of Hawaii, claiming that the US had no right to interfere in its domestic affairs. According to Noenoe Silva, the Republic of Hawai’i was created in 1894 by “about 4000 men, most of foreign birth, [who] signed the oath and voted in the election.” Hawaiians protested to the US and other countries over this process, claiming that “confident in the honesty and impartiality of America, [had] patiently and peacefully submitted to the insults and tyranny of the Provisional Government.”

When the Republic of Hawai’i planned to proclaim itself on July 4, 1894 – a date meant to signify a transition from monarchy to republican government – Hawaiians were “outraged” (Silva, 2004, 137). On July 2, between 5000 and 7000 people rallied at Palace square to protest the formation of the Republic. This rally was never reported in any of the standard history books. In January 1895, Robert Wilcox planned a second “counter-revolution,” this time against the Republic of Hawaii. The plan was discovered, and the counter-revolutionaries were chased through the mountains behind Honolulu. A soldier on each side was killed. Two hundred were captured and tried for treason against the Republic.

Capitano Robert Wilcox

Some of the captured counter-revolutionaries were sentenced to death. These death sentences were used as a threat by the Republic to persuade Liliʻuokalani to abdicate, or surrender, her position as queen (as opposed to head of state). US officials sent a message to the Republic that no executions should occur, but the Republic allowed Liliʻuokalani to continue to believe that the executions would still be carried out, and under this impression she abdicated her throne. Lili’uokalani was arrested for “misprision of treason” – an antiquated, or out-of-date charge that meant knowledge of treason. She was imprisoned in ʻIolani palace for eight months. She was pardoned in 1896, and immediately traveled to the US to lobby against the annexation treaty. In Washington, Lili‘uokalani lodged a formal protest with the US State Department.

The Provisional Government declared itself an American protectorate after eight days.  According to a statement of Hawaiian Patriotic League: “But eight days had not elapsed before the loyalty, fidelity and patriotism of the incongruous, discordant crowd, who supported the provisional government manifested itself by dissensions running riot, to such a point that the only manner of saving the new order was to implore Mr. Stevens for a declaration of American protectorate.”

The United States sent out diplomatic statements, which, as historian Ralph Kuykendall notes, notified other countries that the US considered Hawai‘I as in its sphere of influence, and that “it would patrol the orchard.” Five years after the overthrow, with a new president in office, the US again attempted annexation, but in a way that was doubly illegal, and as I will argue in a future column, very unlikely.

President William McKinley

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