Monday, November 27, 2017

Rome Statute of the ICC Article 81: Appeal Against Decision Of Acquittal Or Conviction Or Against Sentence


Article 81: Appeal Against Decision Of Acquittal Or Conviction Or Against Sentence

A decision under article 74 may be appealed in accordance with the Rules of Procedure and Evidence as follows:
The Prosecutor may make an appeal on any of the following grounds:
(i)Procedural error,
(ii)Error of fact,
(iii)Error of law, or
(iv)Any other ground that affects the fairness or reliability of the proceedings or decision.
(a) A sentence may be appealed, in accordance with the Rules of Procedure and Evidence, by the Prosecutor or the convicted person on the ground of disproportion between the crime and the sentence;
If on an appeal against the sentence the Court considers that there are grounds on which the conviction might be set aside, wholly or in part, it may invite the Prosecutor and the convicted person to submit grounds under article 81, paragraph 1 (a) or (b), and may render a decision on conviction in accordance with article 83;
The same procedure applies when the Court, on an appeal against convictions only, considers that there are grounds to reduce the sentence under paragraph 2 (a).
(a) Unless the Trial Chamber orders otherwise, a convicted person shall remain in custody pending an appeal;
When a convicted person's time in custody exceeds the sentence of imprisonment imposed, that person shall be released, except that if the Prosecutor is also appealing, the release may be subject to the conditions under subparagraph (c) below;
In case of an acquittal, the accused shall be released immediately, subject to the following:
(i) Under exceptional circumstances, and having regard, inter alia, to the concrete risk of flight, the seriousness of the offence charged and the probability of success on appeal, the Trial Chamber, at the request of the Prosecutor, may maintain the detention of the person pending appeal;
(ii)A decision by the Trial Chamber under subparagraph (c) (i) may be appealed in accordance with the Rules of Procedure and Evidence.
Subject to the provisions of paragraph 3 (a) and
(b), execution of the decision or sentence shall be suspended during the period allowed for appeal and for the duration of the appeal proceedings.

Tuesday, November 21, 2017

Rome Statute of the ICC - Article 80: Non-prejudice to national application of penalties and national laws


Article 80: Non-prejudice to national application of penalties and national laws

Nothing in this part of this Statute affects the application by States of penalties prescribed by their national law, nor the law of States which do not provide for penalties prescribed in this Part.

Rome Statute of the ICC - Article 79: Trust Fund


Article 79: Trust Fund

A Trust Fund shall be established by decision of the Assembly of States Parties for the benefits of victims of crimes within the jurisdiction of the Court, and of the families of such victims.

The Court may order money and other property collected through fines or forfeiture to be transferred, by order of the Court, to the Trust Fund. The Trust Fund shall be managed according to criteria to be determined by the Assembly of States Parties.

Saturday, November 18, 2017

Rome Statute of the ICC - Article 78: Determination of the sentence


Article 78: Determination Of The Sentence

In determining the sentence, the Court shall, in accordance with the Rules of Procedure and Evidence, take into account such factors as the gravity of the crime and the individual circumstances of the convicted person.

In imposing a sentence of imprisonment, the Court shall deduct the time, if any, previously spent in detention in accordance with an order of the Court. The court may deduct any time otherwise spent in detention in connection with conduct underlying the crime.
When a person has been convicted of more than one crime, the Court shall pronounce a sentence for each crime and a joint sentence specifying the total period of imprisonment. This period shall be no less than the highest individual sentence pronounced and shall not exceed 30 years imprisonment or a sentence of life imprisonment in comformity with article 77, paragraph 1 (b).

Thursday, November 16, 2017

Rome Statue of the ICC - Article 77: Applicable Penalties


Article 77: Applicable Penalties

Subject to article 110, the Court may impose one of the following penalties on a person convicted of a under article 5 of this Statute:
Imprisonment for a specified number of years, which may not exceed a maximum of 30 years; or
A term of life imprisonment when justified by the extreme gravity of the crime and the individual circumstances of the convicted person.
In addition to imprisonment, the Court may order:
A fine under the criteria provided by in the Rules of Procedure and Evidence;
A forfeiture of proceeds, property and assets derived directly or indirectly from that crime, without prejudice to the rights of bona fide third parties.

Monday, November 13, 2017

Rome Statute of the ICC - Article 76: Sentencing


Article 76: Sentencing

In the event of a conviction, the Trial Chamber shall consider the appropriate sentence to be imposed and shall take into account the evidence presented and submissions made during the trial that are relevant to the sentence.
Except where article 65 applies and before the completion of the trial, the Trial Chamber may on its own motion and shall, at the request of the Prosecutor or the accused, hold a further hearing to hear any additional evidence or submissions relevant to the sentence, in accordance with the Rules of Procedure and Evidence.
Where paragraph 2 applies, any representations under article 75 shall be heard during the further hearing referred to in paragraph 2 and, if necessary, during any additional hearing.
The sentence shall be pronounced in public and, wherever possible, in the presence of the accused.

Rome Statute of the ICC - Article 75: Reparations to victims


Article 75: Reparations to victims
The Court shall establish principles relating to reparations, or in respect of, victims, including restitution, compensation and rehabilitation. On this basis, in this decision the Court may, either upon request or on its own motion in exceptional circumstances, determine the scope and extent of any damage, loss and injury to, or in respect of, victims and will state the principles on which it is acting.
The Court may make an order directly against a convicted person specifying appropriate reparations to, or in respect of, victims, including restitution, compensation and rehabilitation. Where appropriate, the Court may order that the award for reparations be made through the Trust Fund provided for by article 79.
Before making an order under this article, the Court may invite and shall take account of representations from or on behalf of the convicted person, victims, other interested persons or interested States.
In exercising its power under this article, the Court may, after the person is convicted of a crime within the jurisdiction of the Court, determine whether, in order to give effect to an order which it may make under this article, it is necessary to seek measures under article 93, paragraph 1.
A State Party shall give effect to a decision under this article as if the provisions of article as if the provisions of article 109 were applicable to this article.
Nothing in this article shall be interpreted as prejudicing the rights of victims under national or international law.

Rome Statute of the ICC - Article 74: Requirements for the decision


Article 74: Requirements for the decision


All the judges of the Trial Chamber shall be present at each stage of the trial and throughout their deliberations. The Presidency may, on a case by-case basis, designate, as available, one or more alternate judges t be present at each stage of the trial and to  replace a member of the Trial Chamber if that member is unable to continue attending.
The Trial Chamber's decision shall be based on its evaluation of the evidence and the entire proceedings. The decision shall not exceed the facts and circumstances described in the charges and any amendments to the charges. The Court may base its decision only on evidence submitted and discussed before it at the trial.
The judges shall attempt to achieve unanimity in their decision, failing which the decision shall be taken by a majority of the judges.
The deliberations of the Trial Chamber shall remain secret.
The decision shall be in writing and shall contain a full and reasoned statement of the Trial Chamber's findings on the evidence and conclusions. The Trial Chamber shall issue one decision. When there is no unanimity, the Trial Chamber's decision shall contain the views of the majority and minority. The decision or a summary thereof shall be delivered in open court.

Friday, November 10, 2017

Rome Statutes of the ICC - Article 73: Third party information or documents




Article 73: Third Party Information or Documents

If a State Party is requested by the Court to provide a document or information  in its custody, possession or control, which was disclosed to it in confidence by a State, intergovernmental organization, it shall seek the consent of the originator to disclose that document or information. If the originator is a State Party, it shall either consent to disclosure of the information or document or undertake to resolve the issue of disclosure with the Court, subject to the provisions of article 72. If the originator is not a State Party and refuses consent to disclosure, the requested State shall inform the Court that is unable to provide the document or information because of a pre-existing obligation of confidentially to the originator.

Thursday, November 9, 2017

Rome Statutes of the ICC - Article 72: Protection of national security information


Article 72: Protection of national security information



This article applies in any case where the disclosure of the information or documents of a State would, in the opinion of that State, prejudice its national security interests. Such cases include those falling within the scope of article 56, paragraphs 2 and 3. article 61, paragraph 3, article 64, paragraph 3, article 67, paragraph 2, article 68, paragraph 6, article 87, paragraph 6 and article 93, as well as cases arising at any other stage of the proceedings where such disclosure nay be at issue.
This article shall also apply when a person who has been requested to give information or evidence has refused to do so or has referred the matter to the State on the ground that disclosure would prejudice the national security interests of a State and the State concerned confirms that it is of the opinion that disclosure would prejudice its national security interests.
Nothing in this article shall prejudice the requirements of confidentiality applicable under article 54, paragraph 3 (e) and (f), or the application of article 73.

If a State learns that information or documents of the State are being, or are likely to be, disclosed at any stage of the proceedings, and it is of the opinion that disclosure would prejudice its national security interests, all reasonable steps will be taken by the State, acting in conjunction with the Prosecutor, the Defence or the Pre Trial Chamber or Trial Chamber, as the case may be, to seek to resolve the matter by cooperative means. Such steps my include:
Modification or clarification of the request;
A determination as by the Court regarding the relevance of the information or evidence sought, or a determination as to whether the evidence, though relevant, could be or has been obtained from a source other than the requested State;
Obtaining the information or evidence from a different source or in a different form; or
Agreement on conditions under which the assistance could be provided including, among other things. providing summaries or redactions, limitations on disclosure, use of in camera or ex parte proceedings, or other protective measures permissible under the Statue and the Rules.
Once all reasonable steps have been taken to resolve the matter through cooperative means, and if the State considers that there are no means or conditions under which the information or documents could be provided or disclosed without prejudice to its national security interests, it shall so notify the Prosecutor or the Court of the specific reasons for its decision, unless a specific description of the reasons would itself necessarily result in such prejudice to the State's national security interests. Thereafter, if the Court determines that the evidence is relevant and necessary for the establishment of the guilt or innocence of the accused, the Court may undertake the following actions:
Where disclosure of the information or document is sought pursuant to a request for the cooperation under Part 9 or the circumstances described in paragraph 2, and the State has invoked the ground for refusal referred to in article 93, paragraph 4:
(i)The Court may, before making any conclusion referred to in subparagraph 7 (a) (ii), request further consultations for the purpose of considering the State's representations, which may include, as appropriate, hearings in camera and ex parte;
(ii) If the Court concludes that, by invoking the ground for refusal under article 93, paragraph 4, in the circumstances of the case, the requested State is not acting in accordance with its obligations under this Statue, the Court may refer the matter in accordance with article 87, paragraph 7, specifying the reasons for its conclusion; and
(iii) The Court may make such interference in the trial of the accused as to the existence or non-existence of a fact, as may be appropriate in the circumstances; or
(b)   In all other circumstances:
(i)   Order disclosure; or
(ii)  To the extent it does not order disclosure, make such interference in the trial if the accused as to the existence or non-existence of a fact, as may be appropriate in the circumstances.

Wednesday, November 8, 2017

Rome Statutes of the ICC - Article 71: Sanctions for misconduct before the Court



Article 71: Sanctions for misconduct before the Court

The Court may sanction persons present before it who commit misconduct, including disruption of its proceedings or deliberate refusal to comply with its directions, by administrative measures other than imprisonment, such as temporary or permanent removal from the courtroom, a fine or other similar measures provided for in the Rules of Procedure and Evidence.

The procedures governing the imposition of the measures set forth in paragraph 1 shall be those provided for in the Rules of Procedures and Evidence.



***These Rome Statutes of the ICC series has been duly copied from the book in which the Laws have been written.  None of this information reflects the minds or works of any individuals writing this blog.  They simply have been written in this blog for easy reference, as one may follow the general works of Keanu Sai, et al.

HAWAIIAN ISSUES by Jonathan Kay Kamakawiwo'ole Osorio

Hawaiian Issues

By: Jonathan Kay Kamakawiwo'ole Osorio

Credit to UHMC Hawaiian Studies Department
for providing material from which
this blog post is copied from



In her 1989 book From a Native Daughter,
Haunani-Kay Trask said that the modern Hawaiian movement began when some fifty families living in Kalama Valley protested the eviction notices served by the Bishop Estate in 1967.  Their resistance to a new suburban development, and the lossf one more productive working community, has grown over forty years later into a large part of the way that Hawai'i defines itself to the world.  

It is difficult to identify any aspect of life in Hawai'i that does not reflect some part of the Hawaiian movement today:  the resurgence of Hawaiian language has produced an outpouring of cultural productivity, from political demonstrations to State-supported Hawaiian language immersion schools.  Consider contemporary fashions - even if they are mostly t-shirts - that articulate Hawaiian words that would have been unintelligible to the greater public a few decades ago.  The word aloha will no longer suffice to represent an island identity.  The history of the American takeover in Hawai'i, once a story repressed in Hawaiian families and ignored in public institutions, has spawned dozens of books, plays, video documentaries, lawsuits, music, and lately, slam poetry that have all brought this history into sharp relief in the public mind.  




The physical landscape in Hawai'i has quite definitely been affected.  Windward valleys on O'ahu are still agricultural communities because of the leadership of young Hawaiian activists in the early 70's and there are areas in urban Honolulu where taro grows again, and students of the 'aina learn again how to protect water and land resources using technologies and values that we learn from a curriculum that is many centuries old.  In fact, certain words and phrases like ahupua'a and malama 'aina have crept into the popular lexicon, and may already be indispensable to anyone or any business that is practicing some sustainable activity.

And cultural heroes - outside of a few exceptions in the sports world - are Kanaka Maoli activists, cultural practitioners and musicians who were also activists, or people who have identified themselves with Hawaiian causes.

I doubt that more than a few hundred people could name the boards of directors of any of the largest corporations in  Hawai'i, while tens of thousands of people know Nainoa Thompson, George Helm & Kimo Mitchell, and Israel Kamakawiwo'ole.

But by and large, the Hawaiian Sovereignty Movement has been forwarded by thousands of people, faceless and unnamed, who have protested freeway and hotel construction over sacred heiau, grieved over the desecrated graves of ancestors, ended in military abuse of Kaho'olawe, demonstrated for prison reform and lobbied for health and education reform, proved that a Hawaiian diet prolongs life, translated nineteenth century Hawaiian language newspapers, and joined the rolls of Ka Lahui Hawai'i.




None of this was predictable forty years ago, when it seemed that the story of modern Hawai'i was principally the story of the rise of Asian wage laborers and their descendants, and how they wrested fairer conditions, better lives, and opportunities from a society dominated by the plantation.  Oddly enough, the values and principles that moved the labor unions and the democratic party to destroy the old haole race preferences in Hawai'i seem to have evaporated, as the democrats and the tourism-driven economy have brought fantastical new riches to the Islands, and given unions and big landowners something new to protect.  When one turns to listen for the sounds of protests, or looks for idealists who dream of a fairer and compassionate society, less destructive of nature, one sees Hawaiians.

This is something not lost on the old guard haole and malihini predisposed to think of rights and money as being indistinguishable from one another.  For more than fifteen years a fairly small group of neoconservative activists have attempted to scuttle the Hawaiian movement, challenging government agencies that lay claim to revenues and land for Native Hawaiians, challenging the Hawaiian preference policy of a private school established by the will of a Hawaiian chiefess under Kingdom Law, and insulting Hawaiian attempts to research and write their histories, reassert older spiritual values, and claim the right to live on as a people.  That these objectors are unable to cultivate the same aloha for themselves as an almost homeless Hawaiian musician can with one recorded song is mostly a testimony to the stinginess of their agenda and the poverty of their beliefs.  But it is also a testimony that some sense of pono, of justice, still resonates in the multi-ethnic and widely diverse society that Hawai'i has been for more than 160 years.



No one is really fooled that the conservative agenda is about civil rights, equal opportunity, or respect for property.  Partly because of the Hawaiian movement, the public is much more aware of the extent to which the United States has ignored its own  laws, and certainly the laws of a sovereign nation, to territorialize Hawai'i and take possession of nearly half of its property.  People with long roots in the islands, and especially those who still remember life under the plantations, know very well that every political and economic reform was conceded grudgingly, and after more than fifty years of democratic reform, lo and behold, the plantation companies have held fast to the land and to economic power.

Though Hawaiian protest has resulted in protecting access to more public space, especially the shorelines, and has limited the ability of landowners to maximize their own profit at the expense of other landowners and the general public, these are precarious achievements.  So too is the amazing revival of the Hawaiian language, which has important lessons to offer all residents of Hawai'i, so many of whom have lived through a time when their own cultures and languages were repressed, and when they were cast as inferiors, aliens, and even enemies.   The Hawaiian culture revival dignifies everyone except those who believe that there should really only be one cultural, and demonstrates that identity us at least as important as economic opportunity. It is that lingering sense of justice denied, however, that makes Hawai'i's political and civil society a better place than it would be if the Hawaiian movement is silenced. Should that day come, the ideals of the neocon malihini and old guard landowners will dominate, and the signs of an island paradise for sale will be planted everywhere.

Maybe the most important achievement has been the way that Hawaiian rights - really multiple rights - in education, political standing, restoration of land, environmental protection, and religious freedom have all been asserted peacefully, consistently, and successfully for forty years.  This should provide hope and confidence for all peoples that pursuit of dignity and cultural survival is not only possible, but perhaps the only really meaningful human endeavor left in a world that pursues consumer goods and security so mindlessly.  Some people may say that Hawai'i will be a better place when Hawaiians no longer stand in the way of progress.  But even these people must know that at one point, this will no longer be Hawai'i.



The Sovereignty Movement's political vulnerability has always been the issue of ancestry.  Even the 1960s struggle over evictions in Kalama Valley was racially politicized when Bishop Trustee Richard Lyman attempted to portray the movement as led by haole, leading to a splintering of the Kokua Kalama Movement between Kanaka Maoli and the non-Hawaiian supporters of the valley's tenant pig farmers.  When Ka Lahui was formed in 1987, its constitution required voting citizens to have Hawaiian ancestry, and even required that half its legislature be elected by citizens with 50% blood quantum.  Challenges that the Office of Hawaiian Affairs, the Department of Hawaiian Homelands, and Kamehameha Schools violate American civil rights laws may not be convincing to courts or to the general population, but residents of Hawai'i who are not Kanaka Maoli by descent do express uneasiness about where this movement is going, and whether they might, in time, face some kind of dispossession.

Recently, though, the movement has transformed from a purely native advocacy to a larger nationalist struggle to restore the nation-state that was invaded and occupied by American military forces in 1893.  That nation, the Hawaiian Kingdom, was a multi-ethnic constitutional monarchy that treated with dozens of nations and whose laws, at least until 1887, acknowledged that citizenship and civil rights were not related in any way to race.  Restoration of the Hawaiian Kingdom has garnered more and more support over the past decade because it acknowledges the rights of nations under international law, and because it does not lead to the destruction of relationships among friends   and families because of race.



Restoration,  of course, would re-create a nation quite independent from the United States.  Perhaps not ironically then, the American government's responses to the sovereignty movement have been to insist that race is at the core of the political solution between Hawaiians and the United States.  The 1920 Hawaiian Homes Act clarified that the United States owed some support to Native Hawaiians, and defined such natives by a blood quantum rule that articulates racist assumptions about human beings.  In 1978, the new State Constitution set up the Office of Hawaiian Affairs to seek the betterment of native Hawaiians, and in 1993 the U.S. government apologized to the nation it had victimized a century before, but confined its apology to people of Hawaiian ancestry.  Finally, since 1994, the congressional delegation from Hawai'i has tried to pass the Native Hawaiian Reorganization Act, which would allow natives to form their own government without addressing the non-Hawaiian Kingdom's subjects whose national identity was usurped as well.   It is ironic that that the only successful challenger to Hawaiian "entitlements" was a rancher named Freddy Rice.  During his U.S. Supreme Court challenge to the voting procedures for the Office of Hawaiian Affairs, he made a public announcement that his ancestor was Hawaiian Kingdom subject, and that he had the same right as any native to vote for an OHA trustee.



National identity and ancestry have been easily confused by a public generally ignorant about the standing of the nineteenth century Hawaiian Kingdom.  Not many people in Hawai'i know that dating back to 1841, the nation had biennial elections conducted by a literate and well informed electorate made up of native and non-native citizens, and that the voting franchise was offered with a liberality almost unknown in any other country of the world.






Rancher Freddy Rice probably knows that his ancestors' rights were protected, as were the rights of every other subject - native, Chinese, and African - under the laws of the Kingdom.  In addition to the violence and humiliations that were done to the Hawaiian people since 1893,  there have been the violations of the law.

To ignore how law has been distorted to accommodate the American takeover may be easier for people who believe that everyone is much better off under American rule than we would be as citizens of a small island state thousands of miles from the major industrial centers that feed the global economy.  And that brings one back to the central argument of this essay - that the Sovereignty Movement forces us to consider what it is we want this society to be.

At some point, it may be necessary for people to accept that independence from the U.S. is a logical and necessary step toward protecting the amazing society that matured in these islands, and which is now threatened by runway land prices and an almost total dependence on the global market system for its survival.  This assertion would have been considered an absurdity less than two decades ago, and its growing traction in the movement is not simply a result of a better understanding of the history of the takeover.  In fact, it may have more to do with a blossoming disaffection with global modernity and the international consumerism that drives it.

The problems, not just for native people but for communities in the Pacific, are not simply related to climate change or environmental degradation.  The overarching problem is that Pacific Islanders are less and less in control of our own destiny as we become more integrated into the global economy.  That this is true for everyone, including the ordinary citizens of large industrial nations, does not make it any more palatable for islanders.  Careful conservation, sharing resources, cooperation and consensus, honoring ancestors, protocols that demonstrate respect for one another, and a definition of wealth that is indicated by family relations, healthy lifestyles, and community connections along with monetary security - these are all Pacific Islanders cultural hallmarks that have been assaulted by a Euro-American ethos of individual achievement and profit, and a reliance on the marketplace not just for trade, but as the foundation of its values.



The near collapse of the largest bank in America, and the economic crises that emerged from the mortgage-backed securities failure in 2008, have not led Americans or some Hawai'i residents to question the reliability of an unchecked capitalist society.  In fact, Hawai'i's sudden vulnerability has not spurred a call for a diversified economy and more careful management of our resources, but a kind of panic in the governor's office and the legislature that created furlough Fridays in the public schools, a level of unemployment that was unimaginable three years ago, and a public that seems convinced that returning to the high point of seven million tourists a year is the only thing that can save the economy.  In February 2010, the House finance committee actually considered a bill that would set a minimum price of three quarters of a billion dollars for the sale of several properties controlled by the State.  These specific properties are part of the Ceded Lands - Hawaiian Kingdom and Crown Lands - whose ownership has been contested politically and in court by the Hawaiian Sovereignty Movement, and the sale of which this very same legislature had agreed to impede in legislation a mere two months before.




Some of these lands are contested, most notably Mauna Kea, which houses thirteen large, multi-million dollar telescopes built on lands that the state leases out for one dollar per year.  Hawaiian cultural practitioners have protested the presence of these telescopes for years as a desecration of sacred and environmentally sensitive areas of the mountain.  The state seems to believe that it is easier to sell these lands off to meet this year's budget deficit through one big yard sale, than to do the hard work of really managing these lands - which would mean working with native cultural practitioners, astronomy practitioners and the academic community to create a working relationship that could provide reasonable revenues, protection of the land, and a protocol that respect native religious and cultural beliefs.

No one would argue that this is not a difficult and demanding task.  But consider this:  in the ancient days, that is precisely what konohiki - the chiefly land managers in the Hawaiian ahupua'a - did.  They managed human and natural resources by knowing everything about the land division over which they were responsible.  Some of today's lawmakers may be able to read a spreadsheet, but they have practically no understanding of how to make the land really productive again.  

Kanaka Maoli still know how to make the land a treasure and how to give people a chance to work productively.  In taro gardens and fish ponds, young people from charter schools and expensive private schools are taught how to maintain an 'auwai, plant and harvest taro, inventory and utilize the resources of a shoreline, build and navigate a canoe using traditional methods, and harvest fibers that casn be used for cords to thatch a house or create an intricate work of art.  Perhaps we could call it basket weaving with a vengeance - young people returning to a kind of personal and purposeful creativity which may just save us all.  But for that to happen, a form of subsistence and land management will need to be protected by the most powerful government agencies from real estate speculation, zoning that requires urbanization, large-scale agribusinesses that create their own protective infrastructures, the transfer of water from an agricultural watershed, and ultimately, from a market system that would require a profit.  What we need is a pu'uhonua from the market system, and it needs to be large enough and capitalized enough to give people the opportunity to live a life directly nourished by the land.

This is what the pig farmers in Kalama Valley were trying to do in 1974, and in the end, it is what the Sovereignty Movement is really about.  We have seen what determined guerrilla mahi'ai can do to resurrect taro in urban places like Kanewai and Anuenue, and to rebuild fish ponds along the Moloka'i shores, where the only government assistance required was that it not prosecute mahi'ai for growing taro on public lands.  Imagine homelessness addressed by a vigorous back-to-the-land-movement, with training and housing and employment all located in ahupua'a that were naturally designed for growing taro and harvesting fish.

The Hawaiian Sovereignty Movement has also been about challenging our assumptions regarding the ways we live with one another by continually asserting a culture of sharing and inter-dependency with all of the life around us.  This is why we must end military occupation of Hawai'i, not just because military use poisons our lands and waters, but also because the mission of the armed forces so fundamentally opposes our values of inclusion and aloha 'aina.  It defends a very particular definition of a people, and we Kanaka Maoli are focused on a much larger society than the American nation.  Indeed, we have nurtured and will continue to uphold a community that is larger than humanity itself.

It would be fitting that a movement begun by tenant farmers, idealistic twenty-year-olds, and Kanaka Maoli elders, all drawn to remember and recount the knowledge of their ancestors, might actually be the key to saving us all.





Although I did not ask for any permission to share this essay, I had received it at one event at UHMC and was compelled to share with you, the common+unity that we all have in our journeys.  Let's be reminded that if it wasn't for those before us who have done something right, we wouldn't have the pleasure of being here today.

What happened to our ancestors, forced them to survive by any means necessary.  Now that our lineages have survived this far, what are we going to do with their hard work?  Are we going to ignore their signature in the Ku'e Petition, ignore their loyalty to what truly belongs?  Are we going to go against the common voice of our ancestors?    







Friday, November 3, 2017

Rome Statutes of the ICC - Article 69: Evidence



Article 69:  Evidence


Before testifying, each witness shall, in accordance with the Rules of Procedure and Evidence, give an undertaking  as to the truthfulness of the evidence to be given by that witness.
The testimony of a witness at trial shall be given in person, except to the extent provided by the measures set forth in article 68 or in the Rules of Procedure and Evidence. The Court may also permit the giving of viva voce (oral) or recorded testimony of a witness by means of video or audio technology, as well as the introduction of documents or written transcripts, subject to this statue and in accordance with the Rules of Procedure and Evidence. These measures shall no be prejudicial to or inconsistent with the rights of the accused.
The parties may submit evidence relevant to the case, in accordance with article 64. The Court shall have the authority to request the submission of any evidence, taking into account, inter alia, the probative value of the evidence and any prejudice that such evidence may cause to a fair trial or to a fair evaluation of the testimony of a witness, in accordance with the Rules of Procedure and Evidence.
The Court shall respect and observe privileges on confidentiality as provided for in the Rules of Procedure and Evidence.
The Court shall not require proof of facts of common knowledge but may take judicial notice of them.
Evidence obtained means of a violation of this Statute or internationally recognized human rights shall not be admissible if:
The violation substantial doubt on the reliability of the evidence; or
The admission of the evidence would be antithetical to and would seriously damage the integrity of the proceedings.
When deciding on the relevance of admissibility of evidence collected by a State, the Court shall not rule on the application of the State's national law.

Wednesday, November 1, 2017

Rome Statutes of the ICC - Article 66: Presumption of innocence, and Article 67: Rights of the accused


Article 66: Presumption of innocence

Everyone shall be presumed innocent until proved guilty before the Court in accordance with the applicable law.

The onus is on the Prosecutor to prove the guilt of the accused.

In order to convict the accused, the Court must be convinced of the guilt of the accused beyond reasonable doubt.





Article 67: Rights of the accused

In the determination of any charge, the accused shall be entitled to a public hearing, having regard to the provisions of this Statute, to a fair hearing conducted impartially, and to the following minimum guarantees, in full equality:

 - To be informed promptly and in detail of the nature, cause and content of the charge, in a language which the accused fully understands and speaks;

 - To have adequate time and facilities for the preparation of the defence and to communicate freely with counsel of the accused's choosing in confidence;

 - To be tried without undue delay;

 - Subject to article 63, paragraph 2, to be present at the trial, to conduct the defence in person or through legal assistance of the accused's choosing, to be informed, if the accused does not have legal assistance, of this right and to have legal assistance assigned by the Court in any case where the interests of justice so require, and without payment if the accused lacks sufficient means to pay for it;

 - To examine, or have examined, the witnesses against him or her and to obtain the attendance and examination of witnesses on his or her behalf under the same conditions as witnesses against him or her. 

 - The accused shall also be entitled to raise defences and to present other evidence admissible under this Statute;

 - To have, free of any cost, the assistance of a competent interpreter and such translations as are necessary to meet the requirements of fairness, if any of the proceedings of or documents presented to the Court are not in a language which the accused fully understands and speaks;

 - Not to be compelled to testify or to confess guilt and to remain silent, without such silence being a consideration in the determination of guilt or innocence;

 - To make an unsworn oral or written statement in his of her defence; and

 - Not to have imposed on him or her any reversal of the burden of proof or any onus of rebuttal.

In addition to any other disclosure provided for in this Statute, the Prosecutor shall, as soon as practicable, disclose to the defence evidence in the Prosecutor's possession or control which he or she believes shows or tends to show the innocence of the accused, or to mitigate the guilt of the accused or which may affect the credibility of prosecution evidence.  In case of doubt as to the application of this paragraph, the Court shall decide.

Rome Statutes of the ICC - Article 65: Proceedings on the Admission of Guilt


Article 65: Proceedings on the Admission of Guilt


Where the accused makes an admission of guilt pursuant to article 64, paragraph 8 (a), the Trial Chamber shall determine whether:
 - The accused understands the nature and consequences of the admission of guilt;
 - The admission of guilt is voluntarily made by the accused after sufficient consultation with defence counsel; and 
 - (i) The charges brought by the Prosecutor and admitted by the accused;
 - (ii) Any materials presented by the Prosecutor which supplement the charges and which the accused accepts; and
 - (iii) Any other evidence, such as the testimony of witnesses, presented by the Prosecutor or the accused.

Where the Trial Chamber is satisfied that the matters referred to in paragraph 1 are established, it shall consider the admission of guilt relates, and may convict the accused of that crime.

Where the Trial Chamber is satisfied that the matters referred to in paragraph 1 are established, it shall consider the admission of guilt, together with any additional evidence presented, as established, all the essential facts that are required to prove the crime to which the admission of guilt relates, and may convict the accused of that crime.

Where the Trial Chamber is not satisfied that the matters referred to in paragraph 1 are established, it shall consider the admission of guilt as not having been made, in which case it shall order that the trial procedures provided by this Statute and may remit the case to another Trial Chamber.

Where the Trial Chamber is of the opinion that a more complete presentation of the facts of the case is required in the interests of justice, in particular the interests of the victims, the Trial Chamber may:
 - Request the Prosecutor to present additional evidence, including the testimony of witnesses; or
 - Order that the trial be continued under the ordinary trial procedures provided by this Statute, in which case it shall consider the admission of guilt as not having been made and may remit the case to another Trial Chamber.

Any discussions between the Prosecutor and the defence regarding modification of the charges, the admission of guilt or the penalty to be imposed shall not be binding on the Court.