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