AN OVER-VIEW OF THE APPLICATION OF INTERNATIONAL HUMANITARIAN LAW IN THE 1967 – 70 NIGERIAN CIVIL WAR



1.       Introduction

The term International Humanitarian Law refers to the aspect of International Law that seeks to protect the wounded and sick soldiers, prisoners of war and other civilians, during any war within a state, or between state, and the conduct of wars generally. This law also seeks to protect and preserve cultural landmarks and places of heritage from being damaged during any war.
Generally, International humanitarian law is a kind of constitution regulating the conduct of warfare, with particular reference to the welfare of the wounded, and fighting soldiers, civilians and historical places and cites.
                    
2.       The History of International Humanitarian Law
           
Another name for International Humanitarian Law is “Law of war”. This is the law that regulates the fighting of all wars, and how civilians, wounded soldiers, war captives, and surrendered soldiers are to be handled, during and at the end of the war. The international community had made several efforts at regulating the conduct of wars, and the treatment of all kinds of war victims. This manifested in the several international conferences held almost after every new war, to take care of mistakes revealed by the wars.
            Prior to the First and Second World Wars the world had been characterized by struggles and wars with and between nations, empires, tribes, towns, villages and even families. It was either they were fighting over land boundaries or just for supremacy and fame. At these periods, nations rose and fell. The Bible has it that at a time Babylon ruled the world, at another time; Rome ruled the world, and so on. Also, at a time in human history Britain ruled, and at her own time, it was Germany. There is no doubt that in our own world of today, America is ruling the world as the Super Power. In the pre-colonial African world, many African empires rose and ruled the world then, through wars. Writing on the ancient Ghana Empire, K.B.C. Onwubiko has this to say:-

By A.D. 1000, the Soninke Kingdom had expanded its territory west to the river Senegal, south to the Bambuk region, east to the Niger and north to the Berber town of Audoghast on the southern edge of the Sahara desert. By middle of the eleventh century, when Ghana was at its zenith of its imperial expansion, it controlled the area covering most of the modern States of Senegal, Mali and Mauritania – a territory of roughly 650,000 square kilometers with a population of several million people.[1]

Writing about the ancient Mali Empire, K.B.C. Onwubiko summarized the achievement of one of the rulers as follows:-

… at his death in 1337, the Mali empire extended from the Atlantic coast in the West to Dendi in the great Niger bend in the east, and from the borders of modern Mauritania and Southern Algeria in the Sahara to Futa Jallon in the South.[2]

Also, at their different times, other empires rose and fell. This rising and falling, no doubt, is out of wars against their neighbouring communities. There are only few examples of the nature of the human society, and life both in the acclaimed civilized world, and in the alleged primitive world. As far back as 1874, at the Brussels Conference, the international community started holding meetings, and making efforts, not only to prevent wars, but to protect war victims. There was also the Hague peace conferences of 1899 and 1907 which provided for provision of hospital ship and care for wounded soldiers, the Paris Declaration of 1856, the German conference of 1864, which sought to protect wounded soldiers in the field, the St. Petersburg Declaration of 1868 which sought to prevent the use of explosives in wars, the Geneva convention of 1925 which prohibited the use of poisonous gas in wars, the Geneva convention of 1929 which sought to protect prisoners of war and the London treaty of Naval armament of 1930 and 1936 on sub-marine warfare.  All these were attempts made before and after the First World War, which all could neither prevent the Second World War, nor fully protect the inhuman treatments meted out to war victims.
After the Second World War, there was the Geneva Convention of 1949 which gave rise to four conventions and three subsequent protocols, as follows:-

(a)        Convention I

This sought to protect the sick and wounded soldiers in the battlefield, and provided for hospitals and medical personnel for care of them.

(b)        Convention II

This is on the care for sick, wounded and shipwrecked soldiers, and hospital ships, medical personnel and means of transportation for soldiers on the sea.


(c)        Convention III

This relates to how fairly prisoners of war are to be handled, and handed over to their countries of origin after the war.

(d)        Convention IV

This relates to the protection of civilians at war times, non-killing of children, women, non-firing into public places such as churches, markets places etc.


3.       Applicability of International Humanitarian Law in Nigeria
           
            As has been defined above, International Humanitarian Law is an aspect of international law that seeks to regulate warfare, with particular flair for the projection and assistance to wounded persons, both on land and in the sea, prisoners of war and the Sundry citizens, both in local and international wars.   It is the law of wars, and in short, the constitution of wars. By all intents and purposes of applicability in Nigeria, just as in other international law, there laid down procedures through, which it can apply in Nigeria.
            The two laid down procedures through which any international law or treaty can apply in Nigeria are:-

1.      It must be ratified by the Federal Government of Nigeria. Once ratified, any international rule or treaty becomes binding on Nigeria. To this end, international humanitarian law is applicable in Nigeria.

2.      It must be enacted into law by the National Assembly. If it is such a law that its application will alter the state of our existing law.

            These two requirements were confined by the 1999 constitution of the Federal Republic of Nigeria[3] thus:-

No treaty between the Federation and any other country shall have the force of law except to the extent to which any such treaty has been enacted into law by the national Assembly.

            This constitutional provision was well endorsed by the Supreme Court of Nigeria in the case of African Reinsurance Corporation v. Fantay,[4] where Uwais, JSC (as he then was) commenting on the provisions of a treaty ratified by Nigeria, but not yet incorporated into domestic law, said:-

There is no evidence that exhibit AR1 or any of its counterparts has been enacted into law, nor am I able to establish that from my research… Treaties do not constitute part of the law of the land merely by virtue of their conclusion by a country.

            The Locus classics case on the applicability of any international law or treaty in any municipal jurisdiction as Nigeria, is the case of Attorney General for Canada v. Attorney-General for Ontario,[5] where Lord Atkin said:-

It will be essential to keep in mind the distinction between (1) the formation and (2) the performance, of the obligations, constituted by a treaty, using that word as comprising any agreement between two or more sovereign states. Within the British Empire, there is a well established rule that the making of a treaty is an executive act, while the performance of its obligations, if they entail alteration of the existing domestic law, require legislative action. Unlike some other countries, the stipulations of a treaty duty ratified do not apply within Empire by virtue of the treaty alone, or have the force of law.  If the national executive, the government of the day, decide to incur the obligation of a treaty which involves alteration of law, they have to run the risk of obtaining the assent of parliament of the necessary statute. To make themselves as secure as possible, they will often in such cases before final ratification seek to obtain from parliament, an expression of approval. But it has never been suggested, and it is not the law, that such an expression of approval operate as law. Or that in law it precludes the assenting parliament, or any subsequent parliament, form refusing to give its sanction to any legislative proposal that my subsequently be brought before it. Parliament, no doubt, as the Chief Justice points out, has a constitutional control over the executive, but it cannot be disputed that the creation of the obligations undertaken in treaties and the assent to their form and quality are the function of the executive alone.  Once they are created, while they blind the State as against the other contracting parties, parliament may refuse to perform them and so leave the State in default.
           
            The summary of the decisions in the above cases is that it will be tantamount to the executive making law, if mere ratification of any treaty or international law will render same directly enforceable under domestic law. Drawing from the above analyses, it is clear that international humanitarian law is binding, and applicable in Nigeria, having been ratified by the federal government. The issue of applicability in our municipal courts is another issue.


4.       A Brief History of the Nigeria Federation and the Nigerian Civil War

            The making of the country called Nigeria was the handiwork of the British Government through their missionaries, traders and administrators, who were already in some parts of West Africa. At the early period of British arrival in West Africa, around 1850 and 1880, the British home government had almost no interest in the governance in of the area. According to Sir Fredrick Roger, the administration of the African colonies was, “expensive and troublesome”.[6]                                                       
            At this time, Britain had political presence in the Gold Coast Colony, Lagos Island and some skeletal presence in few parts of the hinterland. Around 1880 there was great need for African industrial raw material in Europe, and many more European nations like France, Germany, etc.  rushed down to Africa, fighting and scrambling for which part to colonize. These fights were settled in the Berlin Conference of 1884.
            From the Colony of Lagos, Britain expanded into the hinterlands of the Southern and Northern parts of Nigeria, through diplomacy and war. In 1900, Britain established the Colony and protectorate of Southern Nigeria and the protectorate of Northern Nigeria. While a Lieutenant Governor was appointed for Northern Nigeria at Zungeru, Lagos was the capital of the South. In 1912, Governors were appointed for the South with capital at Enugu, and for the North at Zungeru, and later Kaduna.
            In 1914, the protectorates of Southern and Northern Nigeria were amalgamated, with capital in Lagos, while the North and South retained separate administrations, each allowed to develop at her own pace. Southern Nigeria was administered directly through Governors, Provincial and other District Offers, while the North was administered through indirect rule system.


a)       The Causes of the Nigeria Civil Law (1967 – 1970) 
           
            The remotest cause of this war is traceable to the selfish actions of the early colonial administrators of Nigeria, and particularly Sir Fredrick Lugard at the point of amalgamation of the colony and protectorate of Southern Nigeria. This indictment was elaborately stated by Major General Madiebo (Rtd),[7] the head of the Nigeria Army Artillery before the war, and the General Officer Commander (GOC) of the Biafran Army throughout the war, in his book, “the Nigeria Revolution and Biafran War”, where he stated that:-

                        The federation of Nigeria as it exists today has never really been one  homogeneous country, for its widely differing peoples and tribes are yet to find any basis for true unity. This unfortunate yet obvious fact notwithstanding, the former colonial master had to keep the country one, in order to effectively control his vital economic interests concentrated mainly in the more advanced and politically unreliable South. Thus, for administration convenience Northern and Southern Nigeria became amalgamated in 1914. Thereafter, the only thing these people had in common become the name of the country that along was an insufficient basis for true unity.
           
            Also, through amalgamated in 1914, instead of administrating the entire country as one entity, Lord Lugard appointed separate Governors one in Enugu for Southern Nigeria and another in Kaduna for Northern Nigeria with himself coordinating, as Governor General, in Lagos.  By so doing, Lugard denied the country the opportunity of achieving or practicing true unity, and possibly growing strong early in time for fear of opposition. This divide and rule system of government only but encourages division, hatred, unhealthy rivalry, disparity in development and social apartheid among the people of the two regions.


b)       Other Causes of the War
           
The immediate causes of the Nigerian Civil War were basically the following; the Western region crises; the census controversy; the Western region election and the first and second coups.


(i)     The Western Region Crises
           
            At this stage of Nigerian developmental, Dr. Nnamdi Azikaiwe was the premier of Eastern Nigeria, and the leader of the National Council for Nigeria and the Cameroon’s (NCNC) party controlling the East. Chief Obafemi Awolowo was the premier of Western Nigeria, and leader of the Action Group (AG) party controlling the Western Region, while Sir Abubaka Tafawa Balewa was premier of Northern Nigeria and leader of the Northern Peoples’ Congress (NPC) controlling Northern Nigeria. Arrangements were concluded for handing over Nigerian Government to Nigerians under the leadership of Tafawa Balewa as the Prime Minster on 1st October, 1960. In preparation for this development, the NCNC and the NPC agreed to form a coalition Government. This was feared by Chief Awolowo to be aimed at jeopardizing the interest of his party AG. Awolowo sought to relinquish his position at the Federal House of Representatives as leader of the opposition, which he took up while his deputy, Chief S. L. Akintola replaced him as the premier of the region. Following the growing popularity of Awolowo, and the AG. the Federal House of Representatives in a bid to further undermine Awolowo, the AG and the Western region and Alit Western Regions, into April, 1959, to render Awolowo less powerful. Also the Federal House of Representatives ordered an inquiry into the AG owned National Bank activities, by a special tribunal outside the control of the law courts. Awolowo and his supporters opposed these developments, and there was general disorder in the western region following attempts by Awolowo to discipline Chief Akintola and his supporters for what they called anti-party activities. Following this unrest in the region, the Federal Government declared a state of emergency in the region, and arrested Awolowo and some of his supporters and changed them for treason.


(ii)  The Census Controversy
         
          In 1962 there was a national census carried to determine the total population of the country partly for the determination of seats in the Federal House of Representatives. When it was released, the NCNC and AG carried rumors that the census gave the Northern Region a larger population than Eastern and Western regions put together. It was alleged that cattle’s were counted as human beings in the North. The minister, Tafawa Belewa promised to reconcile the census, and indeed, in February 1965 the result of the re-conducted census was amounted without any difference, as the North had more population than the East and west combined. The East and mid–West rejected the population while the north and west accepted it. This became a threat to the unity of Nigeria as a country.


(iii)             Corruption of Polities and Labor Unrest
           
            At this point of Nigerians political history, the political office holders were accused of high-level corruption and looting of public funds. At the same time, civil servants were protesting and rioting against poor salary. This helped to fuel tensions and disharmony in the country.


(iv) The Western Region Election                                                                                                
           
            On 27th November, 1965, there was the Western region election between Chief Akintola’s Nigerian National Democratic Party (NNDP) and the United Progressive Grand Alliance (UPGA) formed by AG and NCNC alliance. This election was alleged to have been rigged by NNDP. It was equally alleged that many political opponents of the Chief Akintola’s Government were declared unopposed in places where UPGA fielded candidates. Many innocent citizens were killed, and many parts of the region ware burnt down.

(v)   The 1966 Coup
           
            Having followed the reoccurring spate of crises in the country, the census crises, the worker’s unrest over poor salaries, the Western region election crises and others a group of Nigerian Army Majors in Kaduna led by Major Chukwuemeka Nzeogwu staged a coup between 14th and 15th January, 1966 in which the Federal Prime Minister, the premier of the Northern and Western regions, the Federal Finance Minister and some Senior Army Officers from the Northern region were killed. The coup however failed as they did not kill the head of the Nigerian Army, Major General J. T. U. Aguyi–Ironsi, who with the help of other surviving officers succeeded in restoring their control of the Army, and therefore took over control of the government.
            This coup was seen by the people of Northern Nigeria as a plan by the Igbos against the Hausas as none of the Igbo top politicians were killed. According to them, an Igbo man led the coup, and an Igbo man is heading the government. Ironsi abolished the regional systems, introduced a unitary system of government which the North saw as a ploy to place the Igbo’s permanently on the seat of leadership in Nigeria. The North started an all out war and rioting against all Southern indigenes in the North, killing many of them and looting and destroying their properties.

(vi)             The Second Coup
           
            Despite efforts to handle the fears of the Northern region at this point, by restoring the status of regions in the country in July, 1966, a group of Northern Officers in the Army staged their own coup. They killed General Ironsi and many Igbo Officers and Soldiers. It was for Brigadier Ogundipe, a Yoruba, the most senior officer to lead the army, and form a government, but he could not. So Colonel Yakubu Gowon brought the army under his control, and took over the leadership of the country. Gowon called a Constitutional Review Conference in Lagos, but discussions broke down due to reports of continued massacres of Igbos in the North. This resulted to the expelling of all Northerners from the East by the Governor of Eastern Region, Lt. Colonel Odumegwu Ojukwu, who never recognized Gowon as the Head of State of Nigeria.  Ojukwu ordered all Southerner residing in the North to return to the East, and refused to attend any peace meeting with Gowon in Lagos. He however accepted, and attended the meeting called by the Ghanaian Head of State with Gowon and the Governors of the regions in Aburi, Ghana. Gowon rejected the proposals made for peace in the Aburi Conference which was accepted by Ojukwu.  For Ojukwu, it was either Aburi proposals, or the East would secede from Nigeria.
            On 27th May, 1967, Gowon, in a bid to frustrate Ojukwu and weaken his support, by liberating the Eastern minorities of Rivers and Calabar areas, divided Nigeria into twelve States. But on 1st July, 1967, Ojukwu declared the independent Republic of Biafra, and the Biafran War commenced.


c)       Execution of the Civil War

            With the declaration of the sovereign State of Biafra, on the 1st day of July, 1967, by Lt. Colonel Ojukwu, he made moves to establish Biafran rule over the whole of Eastern part of Nigeria, which the Nigerian government undermined as a police action. The Northerners ordered all Easterners living in the Northern part of Nigeria to leave, consequent upon which Ojukwu ordered all Northerners living in the Southern part to leave. On 9th August, 1967, Biafra invaded Mid-Western Nigeria, and took up to Ore, in Western Nigeria. At this point, the Federal government massively recruited soldiers and the war ensured for twenty-seven months, much to the hues and cries of Biafrans.
            It is important to note that immediately Gowon assumed the leadership of the country, he released Chief Obafemi Awolowo, Chief Anthony Enahoro and others who were imprisoned for treason. This no doubt aimed him the support of the entire Western Nigeria people during the war.
            Being the government on the ground, controlling the economy and armory of the nation, the Federal government very easily pushed Biafran soldiers back from the Western and Mid-Western Nigeria and all heartlands of Eastern Nigeria, like Enugu, Umuahia, Owerri, Aba, Nusukka, Agwu etc. became battle fields. Also during the war, Gowon reaped the fruits of the creation of twelve states by splitting South Eastern and Rivers States out of Eastern region.  These regions therefore became more amenable to federal rule, resulting in the killing of the Ibos and confiscation of their properties. During the period of this war, the Biafrans suffered untold hardships, and were subjected to all forms of war crimes by the Nigerian soldiers, whose aims it appeared, was to exterminate them from the face of the earth. These Ibos died in their millions from gun bullet wounds, bombings, starvation, malnutrition and torture from the Nigerian soldiers. The sad experience of the Biafran soldiers during that war was better imagined than experienced.


5.       Nigeria and the International Community during the War: The Role of African Countries in the War
           
            According to accepted International law practices, the Biafran secessionist struggle was seen as an illegal struggle. In addition, most countries saw the war as one between the Moslem Northern part of Nigeria and the Christian Eastern part. To these ends, many African countries like Morocco, Chad, and others gave Nigeria both moral and material supports against Biafra.
            Also, based on legality and friendliness of nations, the Federal government entered into a treaty with the Cameroon in which the Bakassi Peninsular was ceded the Cameroon in compensation for their supporting Nigeria against Biafra during the war, and to ensure that Biafra did not get any external aid through the Cameroonian borders. It was the non-enactment of this treaty by the Nigerian National Assembly that brought about the Nigeria-Cameroon case at the International Court of Justice, which Nigeria lost in 2002.
            Most African countries like South Africa, which was afraid of Nigeria rising to become a rival strong nation in Africa, encouraged the war by supplying arms to Nigeria, to ensure a total destruction of Nigeria. On the other hand, some African countries were in sympathy with Biafra during the war. These countries included Ivory Coast, Gabon, Tanzania and Zambia. In fact, when Ojukwu became convinced that Biafra had lost the war, he escaped to Ivory Coast in January, 1970.


6.       The Role of Non-African Countries in the War

            Just like African countries, most non-African countries negatively instigated the Nigerian civil war to satisfy their motives. This was captured by Michael Crowder and Guda Abdullahi[8] thus:

“These sympathizers, together with States like South Africa and Portugal who wanted to stir up trouble in black Africa, supplied arms, and money to buy them with.
           
            Also countries like Britain, France, Germany, the United States and others, at the inception of the war, saw it as an opportunity to sell and test their latest ammunitions, by selling them to the financially ready side, usually, the Nigerian side. However, as the war progressed, they joined other nations to condemn the sufferings of the Biafrans. It was interesting to note that, most of the aircrafts used by the Nigerian side were weapons supplied by Germany, Russia and others.


7.       International Humanitarian Law and the Nigerian Civil War
           
            Here we hope to examine the impact of the international humanitarian law on the Nigerian civil war from the following perspectives:


a)         Observation of the Rules of Wars

          The rules particularly under review here are the provisions of Conventions III and IV of the Geneva Convention, which relates to the treatment of prisoners of war and treatment of women, children, public places and historical places. The two conventions actually contain the rules of wars. This aspect of the International Humanitarian Law was not in any way observed, during and after the war. It has to be observed however that during the war, Gowon did circulated letters instructing his commanders to ensure compliance with International war rules, but there was complete non-compliance.
            During the war, women, children, the old, the sick, in fact, everybody was a target to the Nigerian soldiers. Women, young and old, were not only raped, but force to live with the Nigerian soldiers in the barracks. There was no respect for captured soldiers, in fact, they were in most cases lined up in the public places and shot dead in the presence of their family members.
            During the war, bombs were thrown into markets, churches, schools, and all public places and people were killed massively. There was no form of adherence to the rules of international humanitarian law.  It was clear that the aim of the Nigerian soldiers was total annihilation of the Biafran race from the face of the earth.



b)         The Impact of the International Voluntary Organization
           
                        A notable International voluntary organization that featured prominently during the war was the International Red Cross Society. This society, with assistance of nations like Britain, Germany, United States and a few others who later believed in the Biafran propaganda that the war was that of the Moslem world against the Christians of Eastern Nigeria, contributed immensely to in the supply of humanitarian assistance. The operations of the Red Cross Society featured in the following forms:-


(i)                 Supply and Distribution of Food and Other Materials

The Red Cross ensured regular supply of food and other materials to the hopeless victims of the war. They supplied special stockfish, special high protein rice, salt, milk, beans etc. to the starving, malnourished and displaced Biafran citizens. Food distribution centre were set up with designated distribution days.

(ii)              Supply of Medical Services

The Red Cross ensured regular supply of medicine and medical services to both the civilians and soldiers of Biafran.

(iii)            Provision of Essential Materials

 The Red Cross provided cloths, and some forms of shelter to the returning civilians at the end of the war.

(iv)             Restoration of Hope to the War Survivors and Returnees
           
            The Red Cross gave hope and encouragement to the war returnees through material assistance and preaching of hope.


8.       Conclusion

            Nigeria, no doubt, is a member of the international community and it has ratified the Geneva conventions of 1949. Thus, the provisions of these convention must be observed and applied by her in any armed conflict to which she is a party, including the Biafra war of 1967-70.  However, as we noted in this paper, this obligation of Nigeria was blatantly disregarded leading untold hardship of both Biafran civilians and combatants rendered hors de combat. The evidence in support of these various war crimes and crimes against humanity committed by Nigerian soldiers are discernible and most were recorded by the international community, but no attempt has been made since the close of the war 42 years ago to hold accountable the perpetrators. This is necessary to attain post conflict justice and reconciliation.

[1]  K.B.C Onwubiko, School Certificate History of West Africa, (Book One) (Second ed.), Singapore, FEP International Private Limited (1982) pp. 13 – 14.
[2]   Ibid, pp. 33 - 34
[3]   Sec. 12(1), 1999 Constitution of the Federal Republic of Nigeria
[4]   (1986) NWLR (Pt. 31) 811 at 934.
[5]   (1937) A.C. 326
[6]  Michael Crowder and Guda Abdullahi, Nigeria: An Introduction to its History, (London, Longman Group Ltd 1970) p. 139.
[7]. Alexander A. Madiebo, The Nigerian Revolution and the Biafran War, (Enugu, Fourth Dimension Publishers,                 1980) p. 1.
[8] Ibid. p. 203
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