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Humanitarian Relief in Man-Made Disasters: International Law, Government Policy and the Nigerian Experience**

Published online by Cambridge University Press:  09 March 2016

J. W. Samuels
J. W. Samuels*
Affiliation:
Faculty of Law, University of Western Ontario
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Extract

The Nigerian situation of 1967-70 and the India-Pakistan conflict of 1971 should ensure that we do not ignore lightly the need for an adequate international response in cases of man-made disasters. The latter, in particular, involved serious international complications. Since March 1971, when the flow of Pakistani refugees from East Pakistan into India began, the Indian government called for international help to stem the tide, to feed the hungry hordes, and to make possible their return home. As time passed and the help did not come, to some it seemed almost a matter of simple economics — it was cheaper to go to war than to continue caring for the refugees. Granted the history of confrontation between the two sides, it is clear that the primary catalyst for the war of 1971 was the plight of these refugees. This danger of serious conflict resulting from humanitarian need is one of the main reasons for the increasing attention being paid to the problems of international humanitarian relief in cases of man-made disasters.

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Articles
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Canadian Yearbook of International Law/Annuaire canadien de droit international , Volume 10 , 1973 , pp. 3 - 39
Copyright
Copyright © The Canadian Council on International Law / Conseil Canadien de Droit International, representing the Board of Editors, Canadian Yearbook of International Law / Comité de Rédaction, Annuaire Canadien de Droit International 1973

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References

1 75 U.N.T.S. 287; also found in International Red Cross Handbook 157 (11th ed., 1971).

2 For a very complete analysis, see Pictet, J. S. (ed.), Commentary on the Fourth Geneva Convention 26–44 (1958).Google Scholar

3 See, for instance, a Oppenheim, International Law 767–97 (7th ed., Lauterpacht, 1952).

4 For a complete analysis, see Pictet, op. cit. supra note a, at 177–84.

5 Stowell, E. G., Intervention in International Law 51–53 (1921).Google Scholar For other general discussions of the law concerning humanitarian intervention, see Strauss, O.S., “Humanitarian Diplomacy of the United States,” [1912] Am. Soc. of Int’l L., Proceedings, 45 Google Scholar; Rougier, A., “La theorie de l’intervention d’humanité,” 17 Revue Generale de Droit International Public 468 (1910)Google Scholar; Lillich, R. B., “Forcible Self-Help by States to Protect Human Rights,” 53 Iowa L. Rev. 325 (1967–68),Google Scholar and “Intervention to Protect Human Rights,” 15 McGill L.J. 205 (1969); Stowell, E. G., “Humanitarian Intervention,” 33 Am. J. Int’l L. 733 (1939)CrossRefGoogle Scholar; Bogen, D. S., “The Law of Humanitarian Intervention: United States Policy in Cuba (1898) and in the Dominican Republic (1965),” 7 Harv. Int’l L. Club J.296q (1965–66)Google Scholar; Perez-Vera, E., “La protection d’humanité en droit international,” [1969] Revue Belge de Droit International 401 Google Scholar; Moore, J. N., “The Control of Foreign Intervention in Internal Conflict,” 9 Virg. J. of Int’l L. 205, 261–64 (1969)Google Scholar; Ganji, , International Protection of Human Rights, chapter I on “Humanitarian Intervention,” at 9–44 (1962)Google Scholar; 1 Oppenheim, International Law 312–13 (8th ed., Lauterpacht, 1955); Thapa, D.B. S., Humanitarian Intervention, unpublished LL.M. thesis done at McGill University in 1968,Google Scholar of value primarily for the extensive bibliography; Thomas, and Thomas, , Non-intervention (1956), chapter 17 on “Humanitarian Intervention,” at 372–90Google Scholar; McDougal, and Reisman, , “Response,” 3 Int’l Lawyer 438 (1969).Google Scholar

6 See 6 Moore, , Digest of International Law 333–67 (1906)Google Scholar; Stowell, E. C., Intervention in International Law 63–125 (1921)Google Scholar; Winfield, P. H., “The Grounds of Intervention in International Law,” 5 Brit. Yb. Int’l L. 149, 161–62 (1924)Google Scholar; Rougier,supra note 5, at 468–80; Jessup, P. C., “The Defense of Oppressed Peoples,” 32 Am. J. Int’l L. 116 (1938)CrossRefGoogle Scholar; O. S. Strauss,supra note 5; Ganji, op.cit. supra note 5, at 17’38.

7 See D. S. Bogen,supra note 5, at 303-14; V. P. Nanda, “The United States’ Action in the 1965 Dominican Crisis: Impact on World Order,“ 43 Denv. L.J. 439 (1966) and 44 Denv. L.J. 225 (1967); Thomas and Thomas, op. cit. supra note 5, and The Dominican Republic Crisis 1965, 9th Hammars-kjold Forum (1967); Cabranes, J. A., “Human Rights and Non-intervention in the Inter-American System,” 65 Mich. L. Rev. 1147 (1966–67)CrossRefGoogle Scholar; 5 White-man, Digest of International Law 475–76 (1965). As Bond, Captain J. E. says, in “A Survey of the Normative Rules of Intervention,” 52 Military L. Rev. 51, 60,Google Scholar the rule grew up “in the colonial era when Western powers needed a justification for rescuing the local representative of Standard Oil from the native cooking pot.”

8 For instance, see Waldock, , “General Course on Public International Law,” 106 Recueil des Cours 1, 65 (1962).Google Scholar

9 Rougier,supra note 5, at 468.

10 G.A. Res. 2131 (December 21, 1965), 20 U.N. GAOR, Supp. 14 (A/6014), at ir (italics added). Of course, there is no direct legal obligation flowing from such a declaration of the General Assembly, but the resolution may be viewed as an interpretation of Article 2, paragraph 4.

11 Lillich, , “Intervention to Protect Human Rights,” 15 McGill L.J. 205, 211–12 (1969)Google Scholar; Reisman, M. (with the collaboration of M. S. McDougal), Memorandum upon Humanitarian Intervention to Protect the Ibos 15–17 (1968, unpublished).Google Scholar

12 Lillich, ibid., 218–19; Lillich, , “Forcible Self-Help by States to Protect Human Rights,” 53 Iowa L. Rev. 325, 347–51 (1967–68)Google Scholar; Rougier,supra note 5, at 499–509.

13 Ganji, , International Protection of Human Rights 44 (1962).Google Scholar See also, E. Perez-Vera,supra note 5, at 423-44; M. Reisman, op. cit. supra note 11, at 46; U.S. Assistance to Refugees Throughout the World (Findings and Recommendations of the Subcommittee to Investigate Problems Connected with Refugees and Escapees of the Senate Committee on the Judiciary), 91st Cong., 1st Sess., Committee Print, at 70 (1969); and see United Nations: Foreign Policy for Canadians (The Canadian White Paper on Foreign Policy, 1970), at 29.

14 A few have argued that Article 2(7) is not an impediment to humanitarian intervention by the UN even where Chapter 7 does not apply. See, for instance, Lillich,supra note 11, at 213-16; and M. Reisman,supra note 11, at 36-40. My view is not shared by Prof. G. A. G. Gotlieb who argues forcefully for UN involvement in “International Assistance to Civilian Populations in Armed Conflicts,“ 4 N.Y.U.J. of Int’l L. and Pol. 403 (1971).

15 119 U.N.T.S. 3; also found in 46 Am. J. Int’l L., (Supp.), 43 (1952).

16 Perhaps the most extensive argument in favour of the right of the O.A.S. to intervene on humanitarian grounds as a result of the Organization’s practice is in two pieces by J. A. Cabranes — “Human Rights and Non-intervention in the Inter-American System,“ 65 Mich L. Rev. 1147 (1966-67), and “The Protection of Human Rights by the Organization of American States,“ 62 Am. J. Int’l L. 889 (1968). In the former, he refers to the events of the Dominican Republic intervention of 1965 as those “which led to the collapse of the doctrine of absolute non-intervention and the full-bodied re-emergence of the doctrine of ’counter-intervention’,” (at 1172). On the other side, the Thomases in Non-Intervention, op. cit. supra note 5, at 390, conclude that the O.A.S. Charter completely prohibits humanitarian intervention. In their later study, The Dominican Republic Crisis 1965, op. cit. supra note 7, at 23, they argue that the provisions of the O.A.S. Charter are “a troublesome impediment to collective humanitarian intervention.”

17 479 U.N.T.S. 39; also found in 58 Am. J. Int’l L. 873 ( 1964).

18 Infra, 37.

19 I Oppenheim, International Law 365 (8th ed. Lauterpacht 1955).

20 Found in the Report of the Proceedings of the Standing Committee on External Affairs and National Defence, 28th Pari., 1st Sess., No. 13, at 533-34, and dated October 22, 1968.

21 op. cit. supra note 11, at 43–45.

22 The Canadian government’s policy was outlined in numerous statements in the House of Commons and elsewhere, but the leading expression of it can be found in H.C. Deb. (Can.), 28th Pari., 1st Sess., 1968, Vol. III, at 31943200, and 3238–43; and H.C. Deb. (Can.), 28th Pari., 2nd Sess., 1969, Vol. II, at 1193-95, 1318–22, and 1353-56. These statements have been reproduced, respectively, in the publication of the Department of External Affairs Statements and Speeches: No. 68/19, “The Nigerian Situation“; No. 68/20, “The Conflict in Nigeria“; Nos. 69/21-23, “The Problem of Relief for Secessionist Nigeria,“ Parts I-III.

23 H.C. Deb. (Can.), 28th Pari., 1st Sess., 1968, Vol. III, at 3195–3200.

24 Some information on this activity on the part of the Canadian government can be found at ibid., 3198–99; H.C. Deb. (Can.), 28th Pari., 2nd Sess., 1969, Vol. II, at 1193–95 and 1319–20.

25 H.C. Deb. (Can.), 28th Pari., 2nd Sess., 1969, Vol. II, at 1354.

26 H.C. Deb. (Can.), 28th Pari., 1st Sess., 1968, Vol. III, at 3197–99.

27 Report of the Observer Team, 24 September to 23 November, 1968, Cmnd. 3878 (January 1969).

28 See, in particular, Brewin, A. and MacDonald, D., Canada and the Biafran Tragedy (1970).Google Scholar

29 Supra note 23, at 3195–96.

30 op. cit. Supra note 20, at 8–9.

31 Supra note 23, at 3239–42.

32 H.C. Deb. (Can.), 28th Parl., 2nd Sess., 1969, Vol. II, at 1321.

33 Ibid., Vol. III, at 2283. While the promise itself was made when the House was not in session, it is mentioned in Mr. Nystrom’s speech of January 12, 1970.

84 Ibid., 2355.

85 Ibid., 2210.

36 The British government’s view of the facts on the ground in Nigeria was disputed by some who argued that there was indeed a massacre going on in Nigeria. In Waugh, A. and Cronjé, S., Biafra: Britain’s Shame (1969),Google Scholar the British government is accused of gross misjudgment. The authors go so far as to say (at 61) that “Mr. Wilson is undoubtedly responsible for Britain’s complicity in the mass murder of an African people“ and that “if there is a single man in Britain who bears greater responsibility … then that man is Mr. Michael Stewart.”

37 Nigeria — British Relief Advisory Mission, Gmnd. 3727 (August 1968).

38 A set of selected press releases in three volumes of Press Actions can be had by writing to Markpress, 136, Route de Chêne, 1824 Geneva.

39 In the Senate, this pressure was spearheaded by Senator Charles E. Goodell (N.Y.), who released his own report on a “Study Mission to Biafra” to the National Press Club in Washington on February 19, 1969.

40 See Relief Problems in Nigeria-Biafra, Hearings before the Subcommittee to Investigate Problems connected with Refugees and Escapees, of the Senate Committee on the Judiciary, 91st Cong., 1st Sess., pt. 1 (1969), and and Sess., pt. 2, (1970).

41 See Nigerian-Biafran Relief Situation, Hearing before the Subcommittee on African Affairs, of the Senate Committee on Foreign Relations, 90th Congress, and Sess. (1968); Report of Special Factfinding Mission to Nigeria, February y-20, 1969, made to the Committee on Foreign Affairs, March 12, 1969; Report of the Special Co-ordinator for Nigerian Relief, Hearing before the Subcommittee on Africa, of the House Committee on Foreign Affairs, 91st Congress, 1st Sess. (1969); and The Postwar Nigerian Situation, ibid., 2nd Sess. (1970).

43 In particular, see Auspitz, , “Biafra and the Bureaucrats,” Ripon Forum, v. 5, no. 2, February 1969, at 5 Google Scholar; Beai, , “How the State Department Watched Biafra Starve,” ibid., v. 6, no. 3, March 1970, at 8,Google Scholar and Elliot Richardson’s reply in the same issue at 28 (Mr. Richardson was Undersecretary of State); and Rogers, “A Post Mortem on Biafra,“ ibid., a reprint from v. 7, no. 5, May 1971.

43 In the words of Elliot Richardson (Undersecretary of State), in his statement to the Kennedy Subcommittee on Refugees :

“Recognition of an independent Biafra is not a panacea, either for relief, an end to the war, or for the future stability of West Africa. We understand the concern of the Ibo people. We appreciate their insistence on guarantees for their personal safety, just as we appreciate the desire of the Federal Government to restore the high promise of a unified Nigeria. We have repeatedly urged the Federal Military Government to make a precise and unequivocal declaration of these guarantees.

“Furthermore, recognition would have no tangible effect on the hostilities. To the contrary, it would only harden the positions of both sides, at the risk of rising Soviet influence in Federal Nigeria.”

Found in Relief Problems in Nigeria-Biafra, op. cit. Supra note 40, pt. 1, at 32–33.

44 Report of the Special Co-ordinator, op. cit. Supra note 41, at 1-2; also found at 60 Dept. of State Bull. 222-23 (1969). An excellent discussion of the problems in trying to carry out this policy is to be found in Ambassador Ferguson’s testimony in the above Report, particularly at 16–17, 22.

45 For a brief general outline, see “Senator Kennedy Releases GAO Report on U.S. Relief Assistance to Nigeria-Biafra” (released Oct. 19, 1970), and the accompanying excerpts from the letter to Senator Kennedy from Robert F. Keller, Acting Comptroller General of the United States.

46 Press release dated July n, 1968, in 59 Dept. of State Bull. 134 (1968).

47 Press release dated August 5, 1968, in 59 Dept. of State Bull. 243 (1968).

48 Read to news correspondents by R. J. McCloskey on June 6, 1969, found in 60 Dept. of State Bull. 556 (1969). For other statements, see: Secretary Rusk’s news conference at 59 Dept. of State Bull. 186 (1968); “U.S. Mission to Confer on Relief for Nigeria,“ ibid., 343-44; “President Calls on O.A.U. to Break Deadlock on Relief for Nigeria,“ ibid., 356; Katzenbach, “The Tragedy of Nigeria,” ibid., 653–58; and the Department statement, ibid., ., 658; “U.S. Planes Available to Assist Relief Efforts in Nigeria,” ibid., ., v. 60, at 30–31 (1969); statement by Secretary Rogers, “U.S. Seeks Resumption of Relief to Victims of Nigerian Civil War,“ ibid., ., v. 61, at 51-52 (1969); statement by Rogers, “U.S. Supports Daylight Flights of Relief Supplies to Biafra,“ ibid., ., я8о and the President’s greetings to the O.A.U., ibid., ., 28081; Rogers’ report on U.S. efforts to help the victims, ibid., ., 469–70; and “U.S. Welcomes Nigerian Statement on Daylight Relief Flights to Biafra,” ibid., ., 635.

49 60 Dept. of State Bull. 222-23 O969); also at 1-2 in Report of the Special Coordinator for Nigerian Relief, op. cit. Supra note 41.

50 See Report of the Special Coordinator, op. cit. Supra note 41; The Postwar Nigerian Situation, op. cit. Supra note 41; Relief Problems in Nigeria-Biafra, op. cit. Supra note 40.

51 61 Dept. of State Bull. 14 (1969).

52 Relief Problems in Nigeria-Biafra, op. cit. Supra note 40, pt. 1, at 35.

53 Report of the Special Coordinator, op. cit. Supra note 41, at 12.

54 A copy of this report can be found in Relief Problems in Nigeria-Biafra, op. cit. Supra note 49, pt. 2, at 212–72.

55 Ibid., 215.

56 See ibid., 175–86.

57 See “How the State Department Watched Biafra Starve,” Ripon Forum, v. 6, no. 3, March 1970, at 8; Drew’s report on Washington in the Atlantic Monthly, June 1970, at 4; Reik, , “What Happened to Biafra?,” Columbia Forum, Winter 1970, v. 8, at 37.Google Scholar

58 Ripon Forum Supra, at 28.

59 Relief Problems in Nigeria-Biafra, op. cit. Supra note 40, pt. 2, at 173.

60 The Postwar Nigerian Situation, op. cit. Supra note 41, at 19.

61 7 U.S.C.A. §1721. An analysis of the operation of the PL 480 plan can be found in U.S. Apparatus of Assistance to Refugees throughout the World, Hearings before the Subcommittee to Investigate Problems connected with Refugees and Escapees, Senate Committee of the Judiciary, 89th Congress, 2nd Sess. (July 14, 19, 20, 21, 26, 27, 28 and August 2, 3, 4, 1966). In particular, see Appendix 3, “Food for peace and the voluntary agencies: report to the advisory committee on voluntary foreign aid, Agency for International Development,” at 285. See also U.S. Assistance to Refugees throughout the World, Findings and Recommendations of the Subcommittee (as above), November 3, 196g, at 22–43, and 65–67.

62 Ibid., §1722.

63 Ibid., §1723.

64 Relief Problems in Nigeria-Biafra, op. cit. Supra note 40, pt. 2, at 184.

65 Annual Report 1969, Joint Church Aid — U.S.A., Appendix HA.

66 60 Dept. of State Bull. 30–31 (1969).

67 Ibid.,

68 Annual Report 1969, op. cit. supra note 65, noted under “January 8“ in the “Year in Review.“ The pages of this report are unnumbered.

69 Relief Problems in Nigeria-Biafra, op. cit. Supra note 40, pt. 2, at 184. For a detailed analysis, see AID, Relief and Rehabilitation in Nigeria (July 1967 - July 1970).

70 The figures for UNICEF, LICROSS and ICRC are in the GAO Interim Report contained in Keller’s letter, op. cit. Supra note 45.

71 Supra note 66.

72 U.S. Assistance to Refugees throughout the World, op. cit. Supra note 61, particularly at 71-74 (italics in the Report).

73 For instance, see the record of U Thant’s press conference in the UN Monthly Chronicle, v. 5, No. 9, at 103 (October 1968).

74 See the following press releases: SG/1715 (October 9, 1968), SG/1717 (October 30, 1968), SG/ 1721 (November 21, 1968), SG/1725 (January 17, 1969), SG/1731 (May 16, 1969), SG/1740 (January 26, 1970).

75 UNICEF, General Progress Report of the Executive Director, 1969, at 45. For a summary of the assistance afforded by UNICEF, see the General Progress Report of the Executive Director, 1970, Annex IV, at 121–24.

76 Report for 1970, Ibid., 54–55.

77 A full report on this can be found in HCR Bulletin, ist quarter 1971, No. 13.

78 See AHG/Res.51(iv).

79 See AHG/Res.54(v).

80 See AHG/Res.58 (vi).