:::: WAR crimes WHAT IS IT GOOD FOR? :::: This post is a critical analysis of the recent blog article produced by Dr. Sai titled, Former Diplomat Reports War Crimes in Hawaii to Swiss Attorney General. hawaiiankingdom.org/…/former-diplomat-reports-war-c…/ The intent of this analysis is to provide some clarity to the issue raised regarding the existence of an international armed conflict (and belligerent occupation) and war crimes in the Hawaiian Islands. I care for Hawaii and for its people. I want us to see the entire picture, rather than develop tunnel vision; only to be led down a path that I believe is not conducive to what we need - effective governance - our life by our terms - a great life. War Crimes are charges against individuals not States. Individuals may be prosecuted, but States are not required to offer reparations. What is the strategy behind these war crimes allegations? How exactly does charging an individual for war crimes free Hawaii from foreign State control? Please keep these questions in mind as you read on. HAWAIIAN COMPETENCE Dr. Sai, in his War Crimes Report (linked within his blog article) concludes stating, The prolonged occupation of the Hawaiian Kingdom is such an egregious act that it could only have gone unnoticed by the international community because of the manipulation of the facts by the United States since the turn of the twentieth century. Through a very effective program of denationalization—Americanization, memory of the Hawaiian Kingdom was nearly obliterated from the minds of the people of the Hawaiian Islands in a span of three generations, which underline the severity of the Hawaiian situation and the quest toward justice and redress under international humanitarian law. I begin with Dr. Sais conclusion because I believe it encapsulates the tone of his approach to our (Hawaiians) current plight - that we are too brainwashed to determine what we want for ourselves, so hes going to make that determination for us. In a way, this explains why Dr. Sai established his acting government without the consent of the Hawaiian people and also why his acting government does not have a legislative branch (representative branch of the people), which places sole decision-making power on him as self-proclaimed head of state (regent). Indeed, this may only be an assumption and Dr. Sai may feel otherwise, however, it still begs the questions: why does the acting government have no legislative process and why would he imply that the Hawaiian people have been brainwashed - if not to indicate that we need some superior mind to guide us through exactly what we want? Hey, if weve been brainwashed, then so too is Dr. Sai. PROLONGED OCCUPATION In his conclusion, Dr. Sai asserts that there exists a prolonged occupation of the Hawaiian State by the United States. While I do not disagree that if the Hawaiian State exists, then its territory, having not been transferred to the U.S., would be under U.S. occupation. However, there are different types of occupations and the one necessary for the consideration of war crimes (belligerent occupation) is that which results from an international armed conflict. The International Committee of the Red Cross, an organization tasked with ensuring humanitarian protection in time of conflict, defines international armed conflict as opposing two or more States. The ICRC derived its definition from common article 2 of the 1949 Geneva Conventions. The ICRC goes on to say, An IAC occurs when one or more States have recourse to armed force against another State, regardless of the reasons or the intensity of this confrontation. Dr. Sai, in section 1.2 of his Report, alleges that the prolonged U.S. occupation of the Hawaiian Islands began on August 12, 1898. In his blog article titled, An Act of War of Aggression: United States Invasion of the Hawaiian Kingdom on August 12, 1898 Dr. Sai states, On August 12, 1898, at 12 noon, the Hawaiian Kingdom was invaded by the United States with full military display on the grounds of the ‘Iolani Palace. The first military base was Camp McKinley established on August 16, 1898 at Kapi‘olani Park adjacent to the famous Waikiki beach and Diamond Head mountain. I do not disagree that the U.S. occupied the Hawaiian Islands, as I am now occupying this chair - physical presence in a location. Whether the U.S. occupation of the Hawaiian Islands can be considered a belligerent occupation requires, on the facts, an international armed conflict in addition to there being no consent on the part of the State controlling the territory (Hawaiian State). The actual conflict between the United States and Spain effectively ended with the signing of the Protocol of Peace in Washington D.C. on August 12, 1898. The New York Times on August 12, 1898 reported that the Peace Protocol was signed at 4:23 (assuming PM). There is a seven hour time difference between Washington D.C. and Honolulu. If the Peace Protocol was signed at 4:23 PM in Washington D.C. then it was 9:23 AM in Honolulu. nytimes/learni…/general/onthisday/…/0812.html Dr. Sai, in the above blog article mentions the landing of U.S. troops in the Hawaiian Islands at 12 (noon) - nearly 3 hours after the Peace Protocol had been signed, ending the international armed conflict. Furthermore, a belligerent occupation can hardly be said to be one, if the State being occupied consented to the occupation. The Republic of Hawaii consented to the U.S. occupation of the Hawaiian Islands. Indeed, it could be argued that the Republic of Hawaii government did not have the authority to speak on behalf of the Hawaiian State, however, did anyone with that authority actually protest? What did Queen Liliuokalani have to say about it? Silence is acquiescence. Worth consideration is when a belligerent occupation ends. The ICRC states, The normal way for an occupation to end is for the occupying power to withdraw from the occupied territory or be driven out of it. However, the continued presence of foreign troops does not necessarily mean that occupation continues. Another issue worth noting is that the laws governing international armed conflict, the 1907 Hague Conventions and the 1949 Geneva Conventions, were established after 1898 - there is no retroactivity in law, following the principle of international law, nullum crimen sine lege (no crime without law). Basically, a law created after an act was committed cannot be (retroactively) applied to that act. Yes, the Hague and Geneva Conventions codified customary international law, however still, the law at the time (1898) was the Law of Nations and that is the set of laws that need to be considered when determining what exactly is going on (legally) in the Hawaiian Islands in the latter part of the 19th century. WAR CRIMES Dr. Sai alleges pillaging and unfair trial as war crimes being committed in the Hawaiian Islands, citing Mr. Kale Gumapacs complaint dated January 22, 2015. The complaint does not detail the issue at complaint, however, Dr. Sais blog article links a video, which chronicles Mr. Gumapacs eviction on August of 2013. War crimes requires the state of war, or rather, an armed conflict. In 2013, was there an armed conflict? Is there an armed conflict today? The Appeals Chamber of the International Criminal Tribunal for the former Yugoslavia (ICTY) defined armed conflict stating, An armed conflict exists whenever there is a resort to armed force between States or protracted armed violence between governmental authorities and organized armed groups or between such groups within a State. The War Report 2013 notes, an [International Armed Conflict] exists whenever one state uses armed force against the territorial integrity of another state, irrespective of whether the latter state fights back. One could make the argument that U.S. military training here in the Hawaiian Islands constitutes armed force against the territorial integrity of the Hawaiian State. Whether or not that actually holds is determined by a competent court. Did the Hawaiian State ever consent to U.S. authority here? This is an issue that ultimately needs to be determined before an actual international armed conflict can be established. In addition to there being an armed conflict, war crimes require the elements of intent (mens rea) and an unlawful act (actus reus) - in addition to other elements. PILLAGING Article 8 (2)(b)(xvi) of the International Criminal Courts Elements of Crimes (ICCEC) details the requisite elements for the war crime of pillaging: 1. The perpetrator appropriated certain property. 2. The perpetrator intended to deprive the owner of the property and to appropriate it for private or personal use. 3. The appropriation was without the consent of the owner. 4. The conduct took place in the context of and was associated with an international armed conflict. 5. The perpetrator was aware of factual circumstances that established the existence of an armed conflict. As noted earlier, war crimes are committed by individual actors and not States. The first step here, should be identifying the actor. Dr. Sais blog article states, Mr. Kale Kepekaio Gumapac, a Hawaiian subject, who resides on the island of Hawai‘i and has alleged war crimes have been committed against himself by Deutsche Bank for the pillaging of his home, whose Chief Executive Officer at the time was Josef Ackermann, a Swiss citizen and resident of Zurich. Here, it appears the individual is Josef Ackermann. The question then turns to whether Mr. Ackermann intend to appropriate Mr. Gumapacs property; whether Mr. Ackermann intended to appropriate the property for personal use; whether Mr. Gumapac did not consent; whether there exists an international armed conflict; and whether Mr. Ackermann was aware there was an international armed conflict. Im a law school student at William S. Richardson School of Law. I have taken a number of international law courses including one on war crimes. I am also writing a law journal article (and thesis paper) on Hawaiis legal status under international law. I consider myself a Hawaiian patriot - and not even I am aware that there is an international armed conflict in the Hawaiian Islands. In my opinion, I do not think Mr. Ackermann meets the requisite criteria necessary to be found guilty of war crimes. UNFAIR TRIAL Article 8 (2)(a)(vi) of the ICCEC details the requisite elements for the war crime of denying a fair trial: 1. The perpetrator deprived one or more persons of a fair and regular trial by denying judicial guarantees as defined, in particular, in the third and the fourth Geneva Conventions of 1949. 2. Such person or persons were protected under one or more of the Geneva Conventions of 1949. 3. The perpetrator was aware of the factual circumstances that established that protected status. 4. The conduct took place in the context of and was associated with an international armed conflict. 5. The perpetrator was aware of factual circumstances that established the existence of an armed conflict. Dr. Sai, states in his blog article titled, State of Hawaii Judge Says He Received Summons from the International Criminal Court, In February 2013, Kaiama submitted the following complaint on behalf of his client with the Prosecutor of the ICC alleging Judge Harry P. Freitas committed a war crime by willfully depriving his client of a fair and regular trial prescribed by the Fourth Geneva Convention, and that Federal National Mortgage Association, and attorneys Blue Kaanehe, Charles Prather, and Peter Keegan were complicit in these proceedings and therefore committed a war crime as accessories. Although Dr. Sai indicates in the title of the blog article that Judge Freitas says he received summons from the [ICC], there is no evidence that he actually did say that. People here in this Facebook group have indicated that Judge Freitas said no such thing. Whatever the case may be, Judge Freitas (and his accomplices) needs to be aware that an armed conflict exists to be meet the necessary elements constituting the war crime of denying a fair trial. Again, the factual circumstances establishing an armed conflict here in the Hawaiian Islands is still at issue. THE INTERNATIONAL CRIMINAL COURT Dr. Sai indicates in a number of blog articles (including some listed here) that complaints have been filed in the International Criminal Court (ICC). The ICC has jurisdiction over States, which have consented to the Courts jurisdiction. The ICC was established in the Rome Statute of the International Criminal Court - the Rome Statute is a multi-lateral treaty to which the United States and the Hawaiian State are not parties. Both the U.S. and Hawaiian State - not parties to the treaty - have not consented to the jurisdiction of the ICC. This means that the ICC cannot prosecute crimes occurring in either State. Dr. Sai in his blog article titled, Jurisdiction of ICC over Hawaiian Territory begins March 4, 2013, indicates that the ICC has jurisdiction over the Hawaiian State because he, on behalf of the Hawaiian State, acceded to the Rome Statute. First, Dr. Sai has NO AUTHORITY to accede to any treaty on behalf of the Hawaiian State. With that said, he could not have successfully acceded to the Rome Statute, thereby not succeeding in acquiring the ICCs jurisdiction over the Hawaiian State. In a kukui nut shell, the whole ICC/war crimes thing is best represented by this face here: unsure emoticon WAR CRIMES, WHAT IS IT GOOD FOR? Absolutely nothing? Scare tactics? Sounds cool? Maybe its not my place to ask - or maybe it is. Im a Hawaiian and anyone claiming to represent my interests (like the Acting Government) should expect a critique of their actions. If the acting government is acting in my best interest, then what good will come from war crimes allegations that obviously even a law school student can already guess the outcome? How is the pursuit of war crimes more important than a democratic process through governance? - I mean, Dr. Sai and his acting government purports to represent the Hawaiian State, so why is it that the VAST majority of the Hawaiian population cannot participate in governance? Were too brainwashed to know whats good for us? Because war crimes are that much more important? If were talking about violations of human rights, humanitarian rights, Hawaiian law, and international law - then Id really have to question the legality of the acting government. I suppose if Dr. Keanu Sai, through a small hui, can proclaim himself regent of the Hawaiian Kingdom government, then Sanford B. Dole, through the Committee of Safety, can be proclaimed President of the Republic of Hawaii. But, I digress. Going through all that trouble to accede to the Rome Statute just to acquire ICC jurisdiction for the prosecution of war crimes? How about trying to sign the UN Charter? Maybe international human rights treaties? Maybe international environmental rights treaties? Show the world that we have some positive contribution rather than just anger. Mahalo for your time.
Posted on: Tue, 27 Jan 2015 22:30:35 +0000
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