Cease and desist letter alleges TMT project is a war crime

On April 17, 2015, Dexter Kaiama—legal counsel for Chase Kahoʻokahi Kanuha and Lanakila Mangauil—sent a cease and desist letter to Douglas Ing of the law firm Watanabe and Ing, who is the legal counsel for TMT International Observatory, LLC.

Your client, TMT International Observatory, LLC, is hereby directed to immediately cease and desist in the construction of a 30-meter telescope on the summit of Mauna Kea that is situated within the ahupuaʻa of Kaʻohe, district of Hāmākua, Island of Hawaiʻi, Hawaiian Kingdom. The ahupuaʻa of Kaʻohe is public land under the administration of the Minister of the Interior of the Hawaiian Kingdom under An Act Relating to the Lands of His Majesty the King and of the Government (1848).

The Hawaiian Kingdom has been under an illegal and prolonged occupation by the United States of America since August 12, 1898, during the Spanish-American War. Under international law, extensive destruction and appropriation of property not justified by military necessity and carried out unlawfully and wantonly is a war crime. The construction of permanent fixtures on public property that belongs to the Hawaiian Kingdom government is extensive destruction of that property.

Kaimana lists several articles of international law the telescope project is in violation of based on the fact that the Hawaiian Kingdom was illegally overthrown. These include:

• §  Article 55, Hague Convention, IV (1907), “The occupying State shall be regarded only as administrator and usufructuary of public buildings, real estate, forests, and agricultural estates belonging to the [occupied] State, and situated in the occupied country. It must safeguard the capital of these properties, and administer them in accordance with the rules of usufruct.”

• §  Article 56, Hague Convention, IV (1907), “All seizure of, destruction or willful damage done to institutions [dedicated to religion, charity and education, the arts and sciences, even when State property], historic monuments, works of art and science, is forbidden, and should be made the subject of legal proceedings.”

• §  Article 53, Geneva Convention, IV (1949), “Any destruction by the Occupying Power of real or personal property belonging individually or collectively to private persons, or to the State, or other public authorities, or to social or co-operative organizations, is prohibited, except where such destruction is rendered absolutely necessary by military operations.”

• §  Article 147, Geneva Convention, IV (1949), “Grave breaches… shall be those involving any of the following acts, if committed against persons or property protected by the present Convention: …extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly.”

 Kaimana points out that the environment itself is also afforded protections under international law:

The Final Declaration adopted by the International Conference for the Protection of War Victims in 1993 urged all states to make every effort to, “Reaffirm and ensure respect for the rules of international humanitarian law applicable during armed conflicts protecting…the natural environment…against wanton destruction causing serious environmental damage.”

In its advisory opinion in the Nuclear Weapons case in 1996, the International Court of Justice stated, “States must take environmental considerations into account when assessing what is necessary and proportionate… Respect for the environment is one of the elements that go to assessing whether an action is in conformity with the principle of necessity.”

The State of Hawaiʻi began leasing 13,321.054 acres of the summit of Mauna Kea to the University of Hawaiʻi in 1968. Thirteen telescopes have been constructed as permanent fixtures since 1970—the TMT would be number 14. TMT International Observatory, LLC, has already broken ground on the project. Additionally, 31 individuals were arrested while blocking construction crews from beginning work. According to Kaimana, these arrests constitute a secondary war crime—unlawful confinement (Article 147, Geneva Convention, IV.

Historical Injustice

The Hawaiian Kingdom was first recognized as an independent and sovereign state on November 28, 1843, by joint proclamation of Great Britain and France. The United States would follow suit and, along with recognition of Hawaiian independence, entered into a Treaty of Friendship, Commerce and Navigation with the Hawaiian Kingdom on December 20, 1849 (9 U.S. Stat. 977). Later treaties between the U.S. and the Hawaiian Kingdom include:

• Treaty of Commercial Reciprocity, January 13, 1875 (19 U.S. Stat. 625);

• Postal Convention Concerning Money Orders, September 11, 1883 (23 U.S. Stat. 736); and

• Supplementary Convention to the 1875 Treaty of Commercial Reciprocity, December 6, 1884 (25 U.S. Stat. 1399).

Despite these treaties, on January 17, 1893, the United States military facilitated the overthrow of the Hawaiian Kingdom monarchy and forced Queen Liliʻuokalani to give up her power. Unable to procure a treaty of cession from the Hawaiian Kingdom government to acquire the Hawaiian Islands as required by international law, the United States Congress enacted a Joint Resolution To provide for annexing the Hawaiian Islands to the United States.

This resolution was signed into law by President William McKinley on July 7, 1898, during the Spanish-American War (30 U.S. Stat. 750) as a war measure. However, congressional laws have no authority outside the United States, which did not include Hawaiʻi, a recognized sovereign state. The Hawaiian Kingdom, therefore, was never an incorporated territory of the United States and is currently under an illegal and prolonged occupation.

Military occupation began at the height of the Spanish-American War, and Hawaiʻi was immediately put to use as a military asset to reinforce and supply U.S. troops that had been occupying the Spanish colonies of Guam and the Philippines since May 1, 1898.

When the Spanish-American War ended with the Treaty of Paris, signed December 10, 1898 (30 U.S. Stat. 1754), U.S. troops remained in the Hawaiian Islands and continued its occupation to date in another violation of international law.

In direct violation of the 1899 Hague Convention (II), President McKinley signed into United States law An Act To provide a government for the Territory of Hawai‘i on April 30, 1900 (31 U.S. Stat. 141). On March 18, 1959, President Eisenhower signed into United States law An Act To provide for the admission of the State of Hawai‘i into the Union (73 U.S. Stat. 4) in direct violation of the 1907 Hague Convention (IV).

Just like the war time resolution signed by in 1898, these domestic laws have no extraterritorial effect. They stand in violation of the 1907 Hague Convention (IV) and the 1949 Geneva Convention Relative to the Protection of Civilian Persons in Time of War (IV).

In an evidentiary ruling in State of Hawaiʻi v. English (CR 14-1-0820) on March 5, 2015, in which Kaimana served as defense counsel, the State of Hawaiʻi Circuit Court concluded that the Hawaiian Kingdom continues to exist as a state under international law, despite the illegal overthrow of its government and its prolonged military occupation by the United States. This ruling affirms the technical illegitimacy of the entity known as the State of Hawaiʻi.

The State of Hawaiʻi, therefore, has no legal authority to lease public land to the university in the first place. Which means the proposed University of Hawaiʻi sublease to TMT International Observatory, LLC, would also be illegitimate.

The cease and desist letter was also sent to the Canadian Department of Justice, the Prosecutor of the International Criminal Court, the Board of Regent of the University of Hawaiʻi, the State of Hawaiʻi Board of Land and Natural Resources, the trustees of the Office of Hawaiian Affairs, and the County of Hawaiʻi Police Department.