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Suffering and sovereignty: civil conflict, convert aid and international humanitarian law Brenninkmeyer, Olivier A. J. 1993

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SUFFERING AND SOVEREIGNTY:CIVIL CONFLICT, COVERT AID AND INTERNATIONALHUMANITARIAN LAWbyOLIVIER A.J. BRENNINKMEYERB.A.(Honours), The University of British Columbia, 1991A THESIS SUBMITTED IN PARTIAL FULFILLMENTOF THE REQUIREMENTS FOR THE DEGREE OFMASTER OF ARTSinTHE FACULTY OF GRADUATE STUDIES(Department of Political Science)We accept this thesis -as conformingto the required standardTHE UNIVERSITY OF BRITISH COLUMBIAAugust 1993© Olivier Brenninkmeyer, 1993In presenting this thesis in partial fulfilment of the requirements for an advanceddegree at the University of British Columbia, I agree that the Library shall make itfreely available for reference and study. I further agree that permission for extensivecopying of this thesis for scholarly purposes may be granted by the head of mydepartment or by his or her representatives. It is understood that copying orpublication of this thesis for financial gain shall not be allowed without my writtenpermission.(Signature)Department of ^L T^C^K.; CThe University of British ColumbiaVancouver, CanadaDate t- G 3 L , I 9 3DE-6 (2/88)ABSTRACTThe following text analyzes legal and political problemsthat arise when donor countries attempt to provide, orfacilitate the distribution of, humanitarian aid to people ininsurgent-controlled areas of another state without the consentof the government in question. The purpose is to find out howuninvited humanitarian relief operations (covert aid) can bejustified given the existing legal treaties and recentdevelopments in customary international law. The reason fordoing so is to explore the impact which such aid has on theconcept of state sovereignty and how this concept is undergoingchange due to the increasing involvement of the internationalcommunity through the work of the United Nations.In the wake of recent humanitarian interventions, there isa shifting of concerns in favour of the welfare of civilians incivil wars over the interests to safeguard the security of thenation-state. In light of the above, the discussion hereconsiders three civil conflicts: the civil wars in Nigeria andEthiopia and the persecution of Kurds in Iraq.The text concludes that covert aid may produce abeneficial effect besides helping those in need; its inherentchallenge to state sovereignty promotes an incrementalloosening of the ideological conflict between human rights andsovereignty by which the international community under theauspices of the United Nations can encourage a wider acceptanceof human rights values.TABLE OF CONTENTSAbstract^ iiTable of Contents^ iiiAcknowledgement ivI. INTRODUCTION^ 1II. CIVIL CONFLICT 4Civil Strife, Sovereignty, and Humanitarianism 6Intervention^ 11Non-intervention 13III. HUMANITARIAN LAW AND THE PROTECTION OF CIVILIANS^17IV. THE LEGAL DOCUMENTS^ 23The United Nations Charter^ 23The Genocide Convention of 1948 28The Geneva Conventions of 1949 33The Geneva Protocols I and II 41V. THE NICARAGUA - USA JUDGEMENT:Customary Law and Covert Aid^ 56Intervention for humanitarian purposes^60VI. INTERNAL CONFLICTS AND COVERT AID:Nigeria and Biafra^ 63Ethiopia and Eritrea 70Iraq and Kurdistan 79VII. MULTI-LATERAL HUMANITARIAN AID^ 85VIII. CONCLUSION^ 92BIBLIOGRAPHY 95iv.ACKNOWLEDGEMENTI would like to thank Professor Ivan Head for serving asmy supervisor and Professor Jean Laponce for having agreed tobe the second reader. I am also very grateful to them--as wellas Professors Donald Blake, Pete Chamberlain, Noemi Gal-Or,Brian Job, Cathal Nolan, and John Wood--for their suggestionsand their support in writing recommendations for my futurestudies. I must also make note here of the friendlyadministrative help offered by Petula and Nancy in theDepartment of Political Science.Vancouver, B.C.August 30, 19931.SUFFERING AND SOVEREIGNTY:CIVIL CONFLICT, COVERT AID AND INTERNATIONALHUMANITARIAN LAWI.Since the Second World War, more civilians have sufferedhuman rights abuses, persecution, and genocidal exterminationin civil wars than in international wars. Deliveringinternational humanitarian aid to people caught up in internalconflicts has always been problematic because civil warsconstitute the greatest challenge to a state's existence andlegitimacy. This thesis examines the legal and politicalobstacles that arise when donor countries and aid organizationsattempt to provide or distribute humanitarian relief to peoplein insurgent-controlled areas of a given state without theconsent of the regime in question. The objective is to explorewhy the delivery of emergency humanitarian aid to countriesravaged by civil strife is, legally and politically, sodifficult to undertake:The legal obstacles to the delivery of humanitarian aidare the logical result of the manner in which the internationalstate system has evolved, and the principles that guide the1 "Humanitarian" activity or concern is disinterestedattention aimed at the victims of man-made or naturaldisasters. In the present context, the term denotes aid andemergency relief given to victims of violent conflicts betweena regime and an insurgent force. Humanitarian relief isimpartial in character and given without any adversedistinction based on race, colour, sex language, religion orbelief, national or social origin, or any other criteria (takenfrom Protocol 1).2interaction of the system's constituent units--that is, nation-states. The present analysis aims at a clearer understandingof these obstacles, in the belief that such an understandingconstitutes a first step to overcoming the impediments andproviding help to more victims in a wider variety of conflictsettings. The perspective here is essentially an optimisticone. It points to a global spread of humanitarian values thatfavours greater respect for fundamental human rights. Owing tothe mass media and increasingly sophisticated communicationstechnology, human rights violations in civil wars have beenbrought to the attention of an ever-wider global constituency.The vivid images of human suffering have spawned revulsion anddisgust, but also sympathy. As a result, an unprecedentedlybroad humanitarian outlook has gained currency. It centers onthe belief that it is morally correct to supply emergencyrelief--wherever necessary, and by whatever means possible--tocivilian populations caught up in civil strife.But when moral imperatives are brought to bear on thechaos of civil war, something is bound to get lost intranslation. Protection of civilian populations is at best asecondary consideration for military leaders and governmentpolicy-makers embroiled in large-scale counter-insurgencycampaigns. Their primary concern is to rid the nationalterritory of rebels or dissidents and thereby preserve thesovereignty of the state, the authority of the rêgime, and theintegrity of the national territory. These are all political3aims with profound legal consequences that deserveconsideration.What features of international law are most pertinent tosuch situations? The first feature is an injunction aimed atprotecting states against outside interference andintervention: donors of humanitarian aid are granted no rightto enter a given country to deliver aid, without the expressconsent of the regime in power. A second tenet grants theregime in power pre-eminence in dealings with the internationalcommunity: non-governmental actors, such as insurgent forces,have no legal right to request delivery of foreign relief toinhabitants of zones they control or operate in.2 Both theseinjunctions have grown increasingly shaky as humanitarianconsiderations have been granted more and more weight. Thediscussion here will consider the conflicting interests ofstate sovereignty and humanitarianism, in the context of threespecific civil conflicts: the civil wars in Nigeria andEthiopia and the persecution of Kurds in Iraq. In all threecases, aid was distributed by international agencies tocivilians in the insurgent-held territories of Biafra, Eritrea,and Kurdistan--without the respective regime's consent. Thiswas a violation of international treaty law. From ahumanitarian perspective, however, such covert delivery of aidwas desirable. It provided material assistance to manyrefugees and war victims, while also launching the issue of2 A "right" implies the permission given or withheld by thesignatories to international treaties.4humanitarian values versus state sovereignty to the forefrontof the international agenda.3CIVIL CONFLICTSIn most countries where political institutions have beenestablished since the Second World War, controversies anddisputes have arisen that pit cultural, religious, or ethniccommunities against one another. Particularly in formercolonies — and more recently following the dissolution of thesocialist bloc — communities and nations have found themselvesincreasingly embroiled in disputes over territory, identity,and resources.Rather than dampening or mediating the clashes among thisplurality of communities, modern political institutions and theforces of economic centralization have all too often fanned theflames of inter-ethnic conflict and civil war. Such wars arenotable for the zero-sum viciousness that tends to characterizethem. In particular, a complete lack of respect is oftenevident for fundamental rights of civilians whose allegianceregimes and insurgent armies seek to hold or secure (Jackson1990, 149). In Angola, Somalia, Iraq, and the states of theformer USSR and Yugoslavia, violence has taken on a3 By covert aid, we mean foreign aid to which an incumbentregime has not agreed in advance. If, for example, aninsurgent force engaged in a civil war against a regime permitsor invites foreign-aid deliveries into the territories itcontrols, and international agencies or governments providesuch aid without first securing the consent of the rulingregime, then the aid is considered covert and constitutes anintervention under positive international law.5particularly horrible face--one for which grim terms like"genocide" and "ethnic cleansing" are used.4Four general reasons can be cited to explain why suchhuman tragedies in the context of civil strife seem to be onthe increase:(1) Since the establishment of the modern state system--and especially since the adoption of the United NationsCharter--the principle of sovereignty has given governments asense of security from outside criticism, interference, andintervention. As a consequence, regimes have come to assumethat their methods of governance--including their treatment ofcivilians--lie wholly within their jurisdiction.(2) Since the end of the Cold War, impediments to thenationalist expression of minority aspirations have diminished.The power of certain African and Asian regimes, once bolsteredby one or the other of the superpowers, has diminished relativeto domestic opposition groups, including rebel and insurgentforces.(3) The collapse of communism has prompted a worldwidesurge in calls for more representative, popularly-supportedgovernments. Totalitarian regimes could once justify theirrule by reference to the global struggle between socialism andcapitalism. Now these same regimes must secure domestic4 An ethnic group is a collection of people who canidentify (real or imagined) common myths of origin and descent,common historical ancestry, some elements of a distinctiveculture, a sense of group solidarity, a common territorialassociation, and frequently also racial characteristics bywhich they set themselves apart from other groups (Smith 1985).6support on its own terms in order to remain in command. Inlight of these new pressures, the temptation exists for regimesto seek support from population groups that exercisedisproportionate control over national resources or culturaland religious institutions. The consequence is the likelyalienation of minority groups.(4) With the decline of dictatorial regimes comes the lossof regime control over information and the spread of "Western"values and ideals. One central value posits respect forfundamental human rights as a measuring stick of good or badgovernment. The use of international coercion to promoterespect for human rights--through methods such as sanctions,embargoes, and humanitarian intervention--has grown inacceptability (Cooper 1993, 119-120; Falk 1971, 1-10; Greenwood1993, 39; Judd of Portsea 1992).Civil Strife, Sovereignty, and HumanitarianismThe hope for solutions to the many civil conflicts oftoday becomes less and less tenable within the framework of theexisting state system. As civil or inter-ethnic violencespreads, and as different ethnies move away from peacefulnegotiation and a willingness to share territory, resources andrepresentation in federal-type states, more and more civiliansdie or suffer dreadfully. Angola, Sudan, Armenia, and Bosnia-Herzegovina are just some of the present situations where therejection of political--i.e., federal--solutions to civilconflicts seems to perpetuate the suffering for civilians.7Similarly, the examples of Czechoslovakia, Ethiopia, and Bosniamay point to a renewed opportunity for many minority or ethnicgroups to break loose from perceived patterns of "internalcolonialism." There is no doubt that the Kurds, the Kashmiris,the Basques, the UNITA insurgents, or the southern Sudanesewould like to have greater control over their own territoriesand, in most cases, independent statehood.The process of change and fragmentation is a slow andpainful one. It is threatening to those who cling to themodicum of security offered by established notions of a statesystem consisting of existing independent units and upheld bynotions of an international balance of power. Those holding tothese established conceptions, of course, take a rather dimview of secessionist groups and aspirations. Such groups havenever had the legal right to struggle for political self-determination and/or independence. No recognition of theprinciple of self-determination exists in internationaltreaties for groups or units other than nations who struggletoward freedom from colonial or racist oppression (Adelman1992, 12 and n.22).5 And for many countries in whichcentralized control persists, or where the domestic politicalclimate is unstable, the notion of rights for individualpeoples is an unwelcome challenge to internal law and order,and to the position of government and military leaders.5 C.f. Declaration on the Granting of Independence toColonial Countries and Peoples, UNGA Resolution 1514 (1960).8The result is that in the past, genocidal atrocities havenot only remained unchecked by outside forces, but have oftenbeen tacitly sanctioned by countries whose foreign-policyinterests or patterns of economic organization are similar tothose of an offending state. Under international law,governments under siege by rebel forces can authorize theirsoldiers to kill all "enemies of the state"--while actionscommitted by the insurgent group are depicted as crimespunishable under state law.6 Atrocities committed by regimesagainst their own populations are legally immune from outsideinterference. Thus, at the level of international relationsand law, there is a disequilibrium of political and militarypower and a firmly-entrenched emphasis on internationalsecurity, reflected in a status quo that grants sovereignstates the status of sole actors in international politics(Cassese 1986).International law, as enshrined in international treaties,presents two major obstacles to the protection of civilianscaught up in civil strife. First, it is not legal forregionally-specific (ethnic) groups to attain political self-determination when they lie within the borders of an6 A rebellion implies an organized and violent attempt tooverthrow an existing government and to replace it withanother. An insurgency is a regionally-specific war conductedby a dissident force against an established regime. Such aninsurgency may attain the proportions of a full-scale war ofsecession when the dissidents manage to exert control over allterritory they claim as theirs. A war of secession is theattempt by a regionally-definable group, led by a dissidentarmed force, to establish an independent state by means ofviolent struggle against the incumbent regime.9established sovereign state not ruled by a non-indigenous(colonial) minority. Second, it is not legal for outsiders toenter a state's territory without the express consent of theincumbent regime—even when the outsiders' objectives arepurely humanitarian in nature. The distinction is alwaysmaintained in international law between what occurs amongstates, and what actions are taken within the boundaries of agiven state.Established procedures for humanitarian assistance reflectthis status quo. Most aid deliveries to countries ravaged byviolence occur with the agreement of the regime embroiled incivil conflict. But when governments are at war with groups oftheir own citizens (organized as rebel or insurgent forces),strong disincentives exist to permit international aid to reachrebel or insurgent-controlled areas. Such aid is viewed astantamount to supporting the enemy's fighting capacity. Nor isa regime likely to permit the domestic enemy—insurgent forces--to request and oversee the delivery of foreign aid into zonesof rebel operation, since these remain officially within thejurisdiction of the sovereign state authority. Perhaps toavoid undermining their own claims to sovereignty, donorcountries have generally adhered to the principle of thesovereign rights of states, and have directed theirhumanitarian relief through official channels. The overarchingassumption is that civil strife occurs within the domesticjurisdiction of a given regime. Thus, persecution of targetedgroups of civilians in Tibet, Sri Lanka, Myanmar, East Timor,10Turkey, Angola, or Sudan has proceeded with relatively littlepolitical and humanitarian interference by other countries.Apart from the principled preservation of statesovereignty, states in the international system have otherpressing reasons to turn a blind eye to such human disasters:foreign policy concerns, economic interests, and considerationsof feasibility or practicality. The wealthier countries of theindustrialized world, in particular, thus leave themselves opento the charge that they do not care about the welfare of otherstates' citizens; a charge which will grow as Westerngovernments are increasingly called upon by their ownpopulations to "do something" about the inhuman treatment ofcitizens in war-ravaged countries. As noted, the public'sexposure to the ravages of civil conflicts has shifted publicopinion increasingly towards humanitarian values and acondemnation of regimes who can secure control over territoryand citizenry only by the use of military force againstcivilians. This public pressure prompts western governments tosearch for solutions in the areas of foreign policy,international diplomacy, and humanitarian aid.The result has been an increase in the willingness andcapacity of outside actors to exert pressure and imposeconstraints on a regime's use of force to subdue domesticdissent. The role of the United Nations in this context haslately received considerable attention: the gradual developmentof the UN's "peace-making" role, as opposed to its traditional"peace-keeping" function, is seen as encouraging by those who11reject the notion of a state's sovereign prerogative tomassively violate human rights (Boutros-Ghali 1992, 202-203).As seen thus far, though, the possibilities for foreignintervention on humanitarian grounds are strictly limited underinternational treaty law. Only under international customarylaw are (covert) interventions for humanitarian purposesdefensible. Customary law will be considered later; first itwill be useful to clarify the concept of "intervention" as thisrelates to state sovereignty and conceptions ofhumanitarianism.InterventionUnder international treaty law, a state has the right toexercise control over its territory and the populationstherein. Movement of civilians can be checked by thegovernment. This is usually done through the establishment ofcustoms controls, where permitted by the country'sinfrastructure. But while a rêgime has the right to keepoutsiders out and defend itself against unwelcome intrusions,it does not have absolute authority over the movements of itsown citizens. Article 13(2) of the United Nations UniversalDeclaration of Human Rights (1948) stipulates that "Everyonehas the right to leave any country, including his own, and toreturn to his country." The United Nations InternationalCovenant on Civil and Political Rights (1966) restates theright to freedom of movement in Article 12(2): "Everyone shallbe free to leave any country, including his own." Article1212(4) likewise stipulates that "No one shall be arbitrarilydeprived of the right to enter his own country." However,Article 12(3) gives permission for the state to preserve lawand order according to the interpretation it chooses: "Theabove-mentioned rights shall not be subject to any restrictionsexcept those which are provided by law, are necessary toprotect national security, public order, ... or the rights andfreedoms of others ..." (Laqueur 1990, 197-199, 215-220).The distinction here is between entry into, and exit froma given country: the latter is a fundamental human right, butthe former is contingent on an incumbent rêgime's grantingpermission. While countless refugees do travel across stateborders, officially they are intruding if they fail to securethe permission of the rêgime in question. To intrude is todisturb, interrupt, influence, or interfere with: an intruderis someone who enters a place where he or she is not permittedto be, i.e., a trespasser. Intervention in a situation, on theother hand, means to take uninvited action in a situation inwhich the actor was not previously involved. While the term iscommonly used to indicate entry by one or more states intoanother state's territory, with or without the use of militaryforce, latter-day definitions of intervention are generallybroader. They include non-military involvement such aspropaganda, smuggling of marketable goods like drugs, use ofeconomic sanctions, or any other form of interference indomestic policies or the domestic political process of a givencountry (Schraeder 1992, 2).13For the purposes of this thesis, the agents ofintervention can be listed as uninvited civilians or uninvitedmilitary forces. Regardless, an intervention always aims atdisrupting or changing social, political, economic, or militaryfeatures of the target polity. It "connotes action inanother's territory ... where purposes diverge and a threat isimplicit. Two [or more] states are involved, but not inmutually acceptable activities" (Wriggins 1968, 218). Thisdefinition also serves for the sub-genre of humanitarianinterventions. These may be covert or overt, civilian ormilitary. The special feature of a humanitarian interventionis that it aims to relieve human suffering in a polity withoutthe consent of the regime in question.7Non-InterventionPredictably, given the existing state system's emphasis onthe sovereignty of its constituent units, non-interventionrepresents one of the oldest and firmest obligations of statesunder international law. This norm was first codified in theLeague of Nations Covenant, Article 10, which declares that"Members of the League undertake to respect and preserve asagainst external aggression the territorial integrity andexisting political independence of all Members of the League"(Covenant of the League of Nations, 1919). The declaration set7 Instances where a state intervenes with military force torescue its own nationals also constitutes an intervention — butnot a humanitarian intervention, as it is not intended torelieve the suffering of all people in the targeted territory.14the tone for all subsequent treaties, including the Conventionon the Duties and Rights of States in the Event of Civil Strife(Havana, 1928), the Convention on Rights and Duties of States(Montevideo, 1933), the Treaty on Non-Aggression andConciliation (Rio de Janeiro, 1933), the Americas TreatyConvention (1933) and the United Nations Charter (SanFrancisco, 1945). Further conventions that stress theprinciples of non-intervention and state sovereignty have beencodified by the Organization of American States and theOrganization of African Unity (Plano 1988; Joyner 1992, 230).The principle is no less evident in the United NationsCharter, which stipulates in Article 2:7 that the organizationis not authorized "to intervene in matters essentially withinthe domestic jurisdiction of any state ..." This article canbe interpreted as referring to U.N. action alone, or to all theactivities of member nations whether carried out under U.N.auspices or not. To underline the signal importance of non-intervention, the General Assembly in 1965 passed theDeclaration on the Inadmissability of Intervention in theDomestic Affairs of States and the Protection of theirIndependence and Sovereignty. The declaration expressedconcern over "the increasing threat to universal peace due toarmed intervention and other direct or indirect forms ofintervention threatening the sovereign personality and thepolitical independence of States." It "solemnly declares" thatNo state has the right to intervene, directly orindirectly, for any reason whatever, in the internal orexternal affairs of any other State. Consequently, armedintervention and all other forms of interference or15attempted threats against the personality of the State oragainst its political, economic and cultural elements, arecondemned.Also, no State shall organize, assist, foment, finance,incite or tolerate subversive, terrorist or armedactivities directed towards the violent overthrow of theregime of another State, or interfere in civil strife inanother State. (UNGA Res. 2131, XX)Such emphatic condemnation of any and all interventionleaves precious little room for interpretations that maylegitimize interference for the express purpose of saving orprotecting human lives. But the trend in recent decades hasbeen towards a more nuanced evaluation of intervention. On theone hand, intervention for military, economic, or politicalobjectives is perhaps less acceptable than ever. Practicesthat until the end of the Second World War were seen by manygovernments as acceptable and often praiseworthy politicalstrategies--such as military expansionism--are now politicalanathema in most Western countries. This can be observed inthe case of the former Yugoslavia, for example, whereinternational military involvement in furtherance of nationalpolitical interests has been scrupulously avoided, for fear ofdestabilizing the situation still further and perhaps settingdangerous precedents for future conflicts (Coulmas 1993, 86).What types of intervention are permitted under existinginternational treaties? International law grants thatintervention by third parties is acceptable when the motive isto establish peace between the countries concerned. Thus anend to human rights abuses can be brought about incidentallywhen a cross-border conflict is the origin of the suffering,16even if the re-establishment of peaceable relations betweenstates remains the primary concern. However, in the case of anisolated civil war that does not spill over to other states,third-party intervention is strictly ruled out. Only if theincumbent regime in question seeks outside assistance is suchthird-party involvement sanctioned. No clearer evidence existsfor the bias in international law towards states rather thanethnic groups, "nations," or indeed individual citizens. Nomatter how tenable the claims for regionally or ethnically-based "national" self-determination, they invariably conflictwith state sovereignty and the absolute authority vested inincumbent regimes.On the surface, these principles of non-interventionprovide a large measure of security for states and regimes.However, a glance at virtually any period of recent historydemonstrates that the principle of non-intervention tends to behonoured more in the breach than in the observance. Militaryor non-military intervention has characterized relations amongstates no less since the drafting of the U.N. Charter than inprevious eras. Indeed, the plethora of resolutions andtreaties aimed at establishing relations of co-operation amongstates on the basis of mutual recognition of sovereignty can beseen as an attempt by member-states to bolster their securityin the face of the constant real-world threat of intervention.(It is no coincidence that the most uncompromising rhetoricagainst intervention has issued from representatives of thegenerally poor and militarily-weak states that emerged from theL7ruins of empire between 1948 and 1975.) The paradoxicalelement here is as follows: the rhetoric of non-intervention isostensibly aimed at preserving the freedom of citizens fromoutside interference or exploitation. But the leaders ofincumbent regimes responsible for drafting and promulgatingresolutions on non-intervention are themselves the principalabusers of human rights and freedoms. The paradox makes itplain that in many, perhaps most instances, the primaryconsideration is the security of the incumbent regime, and itsfreedom — from foreign invasion, on the one hand, and domesticsubversion, on the other. Accordingly, self-serving strategiesof international treaty-making ensure that security forgovernments and states holds priority. Humanitarian concernsare granted a subsidiary place on the political agenda,achieving prominence only when they accord with "nationalinterests."HUMANITARIAN LAW AND THE PROTECTION OF CIVILIANSThe principal objective of humanitarian law is to minimizeunnecessary destruction of, or damage to, human life.Accordingly, specific norms and customs have evolved toestablish rules of conduct for combatants and acceptablepostures vis-a-vis civilian populations. It can be argued thatthese measures have achieved a considerable degree of success.Supporters can point to the thousands or millions of livesalready spared because of injunctions against harming non-18combatants, or guidelines covering treatment of prisoners andwounded combatants:Despite the harsh realities of violence throughouthistory, a generally acknowledged basic premise ofhumanitarian law is that destruction beyond actualmilitary necessity is not only immoral and wasteful ofscarce resources, but ... also counter-productive to theattainment of the political objectives for which militaryforce is used. (Allen 1989, 15).Conventions of modern warfare rest on the view thatcombatants are equal on the battlefield, and that non-combatants have the right not to be targeted or exploited formilitary purposes. As with the principle of non-interventionand actual practice, however, a powerful disparity existsbetween tenets of humanitarian law and the course of modernmilitary conflicts. The three conflicts considered in detailhere--Nigeria, Ethiopia, and Iraq--were all characterized by aruthless targeting of civilians that resulted in massacres,persecution, and starvation. And when a military forceperceives that gains on the ground can be obtained bydisregarding moral, ethical, and legal standards, there is verylittle that can be done under international law to stop theviolence. Because international treaties rest on the mutualconsent of signatory states, political-military interests mustbe balanced with the rules and restrictions laid out in a giventreaty text. Drafters of humanitarian law have always had tokeep in mind the relative weight of moral principles (based onfundamental human needs) versus military objectives (notions ofmilitary "necessity" and political-economic interests). Ascombatants in the real world rarely sacrifice their military19interests for abstract moral principles, treaties designed topromote respect for human rights and needs must be formulatedin such a manner as to conflict as little as possible withpower-political concerns (Allen 1989, 15). The quandary forcivilians caught up in a military conflict is clear andunfortunate. While the distinction between combatants and non-combatants is the basis for the protection of civilians in war,it is part of the calculus of war for modern military leadersto include civilians in their warfare tactics so as to inflictmaximum damage on an enemy's power base and public morale.8The major instruments setting forth the laws of conduct inwar include:• The Declaration of Paris (1856), which limited seawarfare by abolishing privateering and specifying that ablockade had to be effective to be legally binding;• The Geneva Conventions of 1864 (revised 1906), whichprovided for the humane treatment of wounded in thebattlefield;• The Hague Convention of 1899, which codified many of theaccepted practices of land warfare;• The Hague Convention of 1907, which added revisionsconcerning the rights and duties of belligerents as well as of8 This correlates, of course, with the shift from limitedto "total" war that is commonly associated with the advent ofthe French levee en masse in the late 18th century andsubsequent technological and strategic developments mostclosely associated with the American Civil War and the FirstWorld War.20neutral states and persons, while also introducing rules togovern the use of new weapons technologies;• The Geneva Conventions of 1929, providing for thetreatment of prisoners and care of the sick and wounded;• The London Protocol of 1936 limiting the use ofsubmarines against merchant shipping;• The Geneva Conventions I to IV of 1949 for theprotection of war victims, updating regulations concerningtreatment of prisoners and of wounded and sick non-combatantsand establishing new rules for the protection of civilians;• The Geneva Diplomatic Conferences of 1949-77, whichreaffirmed the development of international humanitarian law toapply to armed conflicts; and finally• The Geneva Protocols 1 and 2 (1977), which re-emphasizedthe need to provide protection for non-combatants, civiliansand prisoners in international and civil conflicts (Plano 1988,193; UNESCO 1988, xvi-xvii).In addition to these major agreements and treaties onrules of conduct in wartime, states have drafted both regionaland international conventions, covenants, principles ofcustomary law, and norms regarding the protection of refugees,fundamental human rights, aggression, genocide, and the rightsand duties of states. All are designed to limit the activitiesof governments and military forces, and to encourage protectionfor and respect of human rights and needs. These agreementscan be taken as evidence of a growing international consensusthat civilians must be given protection in situations of strife21and conflict. The U.N. Charter can be seen as the foundationof this body of human rights legislation, supported andstrengthened by later treaties such as the UniversalDeclaration, the Genocide Convention, the U.N. RacialConvention, and the U.N. Covenants on Human Rights. Theactivities of the specialized agencies of the United Nations(UNESCO, UNHCR, and so on) should also be cited in this context(Buergenthal 1979, 15).The U.N. Charter points to the importance of protectingand respecting human rights. But it does not provide for aneffective power to rectify abuses of these rights when theabuse does not take place within a cross-border (international)context. The same is true for all previous and subsequenttreaties laying down rules of warfare and protection ofcivilian populations. International treaties, beginning withthe U.N. Charter, give regimes the de jure right to implementany strategy of control whatsoever over their territory andcitizenry. Outside interference threatens not only these dejure rights but the regime's de facto capacity to govern.Third parties, then--whether these be other states in theinternational systems, or aid organizations--can find littlelegal support in international treaties for covert humanitarianinterventions, military or otherwise. They may, however, pointto the oppressive nature of the regime in question (or, forthat matter, of insurgent forces) and justify covert deliveriesof aid on the grounds of fundamental human rights. They mayalso fall back on past practice that can be subsumed under the22aegis of customary international law. Such policies or appealswill be affected by a complex set of ethical and practicalconsiderations.The establishment of norms and laws for the protection ofhuman beings in wartime is "based on the assumption that it isunlikely that war will be completely abolished and therefore[it] should be made as humane as possible" (Plano 1988, 193).But who, precisely, is to be considered part of the war effort?Since the French Revolution it has been customary for entirepopulations to be mobilized for the national war effort. Everycivilian may be regarded by the enemy as somehow aiding orsupporting military strategy. Likewise, delivery of anymaterial good--even medical supplies or food aid--with aperceptible human benefit can be seen as bolstering a wareffort: "the international community has never been able toagree on exactly what goods are contraband and what areunrelated to the war effort" (Plano 1988, 189).The analytical thicket becomes more tangled still when thebalance of forces in civil conflicts is considered.Accordingly, it is worth examining how humanitarianintervention in civil conflicts can be justified under bothtreaty and customary law. A discussion follows of the variousinternational treaties that address the work of aidorganizations and the circumstances under which it ispermissible for them to distribute relief.23IV.THE LEGAL DOCUMENTSThe earliest treaty to address humanitarian interventionin the affairs of sovereign states is the ConventionEstablishing an International Relief Union of 1927. Theconvention stipulates clearly in Article 4 that "Action by theInternational Relief Union in any country is subject to theconsent of the Government thereof" (in Macalister-Smith 1985,202). Since that time, relief organizations have had toformally respect sovereign state authority.The United Nations CharterInternational peace and security are the primaryobjectives of the United Nations. The U.N. Charter begins withthe claim that the purposes of the organization are:To maintain international peace and security, and to thatend: to take effective collective measures for theprevention and removal of threats to the peace, and forthe suppression of acts of aggression or other breaches ofthe peace. (Article 1:1).The Charter appropriates to the U.N. itself--the United Nationsof peoples--responsibility for ensuring international peace andsecurity (Article 1:2):To develop friendly relations among nations based onrespect for the principle of equal rights and selfdetermination of peoples ...Article 1:3 calls for international co-operation to addressproblems of an economic, social, cultural or humanitariancharacter, while demanding that all nations promote and24encourage respect for human rights and the fundamental freedomsof all peoples.Beginning with Article 2, the Charter focusses on therights and duties of its members, that is, the signatorystates:The organization is based on the principle of thesovereign equality of all its Members (Article 2:1). ...All Members shall refrain in their international relationsfrom the threat or use of force against the territorialintegrity or political independence of any state. (2:4).While Article 1 left room for interpretation as to the intendedsubject of the text, from Article 2 onward there is no doubtwhatsoever about who retains the rights of sovereignty andself-determination (Weiss 1991, 214). The members of the U.N.are granted equal status, equal rights, and equal obligationsas sovereign actors. Their duties and responsibilities centreon respect for each other's sovereign authority over territoryand domestic (internal) affairs. No state is permitted tointervene in the internal affairs of another state. The use offorce is permitted only in self-defense, or to assist anotherstate in its defense efforts if that state so requests (or ifthe U.N. Security Council issues an appeal for assistance).Clearly, the dominant underpinning of these regulations isthe survival and independence of states (Walzer 1992, 61-62).The rights of individual peoples are not addressed directly,except insofar as member nations are obliged to respect humanrights (Article 1:3). The difficulty, however, is that theprincipal violators of human rights worldwide are incumbentregimes—not "nations," which are normally understood to25consist of communities of like-minded or ethnically-distinguishable peoples. Since the Charter does not clarifyits use of the term "nations," the implication to be drawn isthat states are nations when they function as such--that is, byproviding peace and security for all their citizens.For present purposes, the principal ramification of theCharter's evasive language is that no provision is made for theprotection of civilians in violent conflicts occurring amongnations or communities within the boundaries of a given state.However, the Charter does contain one provision for theprotection of civilians that could potentially be seen asguaranteeing security to populations within a given state. Theprovision is first cited in Article 2:7 and explained furtherin Chapter VII of the Charter. Article 2:7 begins by stressingthe U.N.'s obligation to abide by the principle of non-intervention in the internal affairs of sovereign states:Nothing contained in the present Charter shall authorizethe United Nations to intervene in matters which areessentially within the domestic jurisdiction of any stateor shall require the Members to submit such matters tosettlement under the present Charter; but this principleshall not prejudice the application of enforcementmeasures under Chapter VII.For its part, Chapter VII provides for a United Nationsforce to preserve or restore peace where internationalconflicts have disturbed the peace among states. It makes theenforcement of peace possible when member states themselves areunable to solve problems that confront them in their dealingswith one another:The Security Council shall determine the existence of anythreat to the peace, breach of the peace, or act of26aggression and shall make recommendations, or decide whatmeasures shall be taken ... to maintain or restoreinternational peace and security. (Chapter VII, Article39).This potential use of force (political, economic, ormilitary) constitutes the only leeway granted the UnitedNations to secure peace and promote respect for human rightsoutside the arena of inter-state diplomatic relations.Articles 41 and 42 in Chapter VII grant the Security Councilthe power to impose economic sanctions against an offendingstate, or to disrupt its transportation and communicationnetworks. The Council is also given the power to take militaryaction "by air, sea, or land forces as may be necessary tomaintain or restore international peace and security" (ChapterVII, Article 42). Thus, when the Council determines that athreat exists to international peace, it can--by the unanimousvote of its permanent members--organize and wage a militaryintervention against the aggressor rêgime. This power was usedin 1991 to expel Iraq from Kuwait, and to intervene forcibly inSomalia in 1992. However, for any U.N. action along theselines--sanctions, peace-keeping, or military intervention--totake place, the Security Council must unanimously endorse theproposals. Its members must agree that a rêgime is poised toviolate, or has actually violated, international peace; only insuch cases is a concerted political, economic, or militaryresponse possible and permissible.As for disturbances of international peace, however, theprinciple of U.N. non-intervention still stands, albeitsomewhat softened in the 1991 General Assembly resolution27Strengthening of the coordination of humanitarian emergencyassistance of the United Nations (46/182):The sovereignty, territorial integrity and national unityof States must be fully respected in accordance with theCharter of the United Nations. In this context,humanitarian assistance should be provided with theconsent of the affected country and in principle on thebasis of an appeal by the affected country.While all United Nations agencies, affiliatedorganizations, and aid or relief efforts must thus accommodatethemselves to the overriding principles of sovereignty and non-intervention, the word "should" softens these principlessomewhat. Questions about the changing character of nationalsovereignty and the legitimacy of delivering uninvitedhumanitarian aid need to be addressed today because most of theconflicts in which the U.N. is now involved are in fact civiland inter-ethnic in nature.Is it possible to rework or reformulate the principle ofstate sovereignty in a manner that might permit theinternational community to aid civilian victims of internalrêgime violence? In addressing this question, it is worthnoting that the limitations placed on U.N. action vis-à-vissovereign states do not necessarily obviate such actionoutright. Most civil conflicts, if they do not occur in ageographically-isolated setting such as a distant island, havean international dimension to them. Most civil wars and inter-ethnic conflicts generate refugee flows, while links may beestablished between insurgent forces and like-minded groups inneighbouring states. Furthermore, neighbouring states maybecome involved in a country's internal conflict when guerrilla28forces base themselves outside the national territory, or whenideological commitments bind such forces to foreign allies orsponsors. Thus, when Iraqi Kurds fled towards and into Turkishterritory, Turkey could cite the exodus as a threat tointernational peace. The U.S.-led military intervention intonorthern Iraq could then be justified on these grounds(Greenwood 1993, 36). These cases appear to be exceptional,however. In general, a breach of international peace is not soeasily ascertained or claimed. Taken in isolation, the U.N.Charter and the organization's various resolutions over theyears seem to offer little possibility for the delivery ofoutside aid to civilians suffering human rights abuses at thehands of their own government.9 Other international treaties,however, do offer hope for change in this area, and these willconsidered in turn.The Genocide Convention of 1948Since the horrors inflicted on the Jewish people andothers by the Nazis, the phenomenon of genocide has become arecognized reality. In 1948, the United Nations General9 Different interpretations of the U.N. Charter have beenadvanced that could potentially allow for a wider applicationof Chapter VII to include humanitarian intervention into civilconflicts. While not in disagreement with suchinterpretations, the present study refrains from advancing itsown interpretation for two reasons: (1) most countries ravagedby civil wars are dominated by governments that insist on ahighly traditional and conservative interpretation of theCharter; and (2) international aid agencies that have tonegotiate with combatants to deliver emergency relief are facedevery day with the conflict between humanitarian needs andtraditional interpretations of sovereignty.29Assembly adopted the Convention on the Prevention andPunishment of the Crime of Genocide. Under the terms of thetreaty, persons who commit or incite genocidal acts are liableto punishment by the international community. But whileallegations of genocide are easy to make, they are difficult tosubstantiate, partly because of the contentious nature ofdefinitions of the term. The second Article of the 1948Convention defines genocide asany of the following acts committed with intent todestroy, in whole or in part, a national, ethnical, racialor religious group as such:a. Killing members of the group;b. Causing serious bodily or mental harm to members ofthe group;c. Deliberately inflicting on the group conditions oflife calculated to bring about its physical destruction inwhole or in part;d. Imposing measures intended to prevent births withinthe group;e. Forcibly transferring children of the group to anothergroup. (In Laqueur 1990, 203).Because genocide is most frequently committed by regimeleaders and their military forces against domestic populations,international action is required to punish the perpetrators —given that they are unlikely to hold themselves accountable forcrimes against humanity. Such international intervention is,however, a difficult proposition. No enforcement mechanismexists that is powerful enough to bring perpetrators to trialor impose punishment. The Convention provides for aninternational penal tribunal, but none exists as yet. As aresult, signatories to the Convention are required to enshrineits provisions into their domestic legal system, and to enactdomestic legislation aimed at punishing offenders. The paradox30is plain: when a rêgime itself has committed genocide, it issupposed to bring punishment on itself (Zeiler 1989, 590).Article VI provides that "persons charged with genocide ...shall be tried by a competent tribunal of the State [where] theact was committed, or by such international penal tribunal asmay have jurisdiction" (in Zeiler 1989, 599). The punitivemechanism is still so weak as to render the Genocide Conventionvirtually unenforceable.Two provisions of the Genocide Convention do, however,sketch a role and legal justification for humanitarianassistance in genocidal situations. Article IX provides thatwhen disputes occur over the interpretation of the Conventionor the fulfilment of its obligations, the International Courtof Justice can provide arbitration. And Article VIII providesfor referral of disputes to the United Nations:Any Contracting Party may call upon the competent organsof the United Nations to take such actions under theCharter of the United Nations as they consider appropriatefor the prevention and suppression of acts of genocide orany of the other acts enumerated in Article 3.It seems that the permission granted the U.N. to take action inbringing alleged criminals to justice offers the best hope forfuture multi-lateral relief programmes to the victims of civilstrife. It must be acknowledged, however, that any referral toan international body immediately and inevitably "encountersthe obstacles of state sovereignty" (Zeiler 1989, 599).Fearing outside interference in their internal affairs, many31countries have withheld from signing the Convention. "International enforcement is only possible in the case ofcountries that have ratified the Convention: Article 1 clearlylimits the Convention's range to "The Contracting Parties [who]confirm that genocide, whether committed in time of peace or intime of war, is a crime against international law which theyundertake to prevent and to punish" (in Laqueur 1990, 203).Further difficulties arise in ascertaining precisely whatacts constitute genocide. Article 3 stipulates which acts arepunishable:a. Genocide;b. Conspiring to commit Genocide;c. Direct and public incitement to commit genocide;d. Attempt to commit genocide;e. Complicity in genocide.This should be viewed in conjunction with the moreconcrete acts itemized earlier, i.e., those "committed withintent to destroy, in whole or in part, a national, ethnical,racial or religious group as such." The quandary lies in"distinguishing genocide from deaths normally occurring in thecourse of war" (Zeiler 1989, 605). Civilian casualties are afeature of virtually all wars. It is the intent of theaggressor that governs whether genocide can be held to occur(Article 2). Consider the People's Republic of China'sattempts in the 1960's and 1970's to destroy the structure ofreligious life in Tibet; the aid blockade imposed on Biafra bythe Nigerian military leadership; and the Khmer Rouge's forcedn 107 countries have signed the Convention as of January1992 (U.S. Department of State). They include Ethiopia andIraq.32evacuation of the civilian population of Phnom Penh followingthe collapse of the Cambodian regime in 1975. All theseactions caused the death and destruction of many lives andhomes; all except the last (which was apparently class-based)could be seen as constituting an attempt to destroy a national,ethnic, racial, or religious group. But these patterns ofpersecution and tactical military measures were not necessarilyimplemented with the genocidal intentions specified by the 1948Convention. Much the same argument can be made with regard tothe persecution of Eritreans during the Ethiopian civil war, orthe large-scale killing of Kurds in northern Iraq over the pastthree decades. The civil and military leaders responsible forthese actions and policies will obviously not own to havingaimed their aggression against a particular group. Rather,they will defend their actions on the basis of attempts tounify the country or secure the population against rebelattacks. In most cases, in-depth investigations of theaggressor's intent is possible only after the fact, whencontrol over the territory or country in question has passed toa successor regime interested in prosecuting representatives ofthe ancien regime. iiPerhaps the greatest impediment to concerted internationalaction in such situations is the general failure of theII Thus the Vietnamese government was eager to encourageinvestigation of the violent acts committed by the Khmer Rougein Cambodia, once the Vietnamese invasion had succeeded indeposing Pol Pot and his allies. Likewise, the Bangladeshigovernment had a vested interest in seeing Pakistanis punishedfor genocidal actions in the former East Pakistan (Zeiler 1989,607 and 609).33Convention and other treaties to address the role of non-governmental armed forces and civil war victims directly. Ifgenocidal actions are occurring within the boundaries of agiven state, mediation could occur between representatives ofthe international community and the dissident army thatcontrols or operates in the areas where civilian casualtiesoccur. This mediation could take place under the auspices ofthe U.N. Security Council, giving the dissident force anelevated status in international relations and securing itsassistance in getting humanitarian relief to the victims. Inmany cases, providing or merely offering internationalrecognition to the dissident force could be sufficient tocompel an incumbent r6gime to cease its violent or genocidalactions.The Geneva Conventions of 1949Like the United Nations Charter, the Geneva Conventionsmainly address military aggression and the protection of non-combatants in the context of international conflict situations.However, for the first time--in Common Article 3--considerationis given to the protection of civilians in conflicts withinstates. The problem this article tackles is that, while theobjective of humanitarian law is to limit violence towards non-combatants, the signatories to the Convention (the HighContracting Parties, i.e., states) cannot be counted on toprotect the lives of opponents in civil conflict. The same istrue for the non-governmental parties to a conflict: insurgent34or dissident forces cannot be expected to attend to principlesof civilian protection if they have nothing to gain by doingso. Thus, when the conflict is between regime forces andsecessionist or dissident forces, both parties must be givensome incentive to abide by the rules of war, in particular theinjunctions against harming civilian populations. Forincumbent regimes, a certain incentive may already exist.Regimes are in a position of sovereign authority over territoryand resources, and they wish to maintain this control.Promoting responsible government, displaying concern forcitizens, and adhering to international Conventions may allowregimes to bolster popular support and preserve their standingin the community of nations.Dissident forces, however, might be said to have littlemotivation to abide by conventions that they did not ratify asfull members. Even if they abide by them, there is generallylittle advantage to be gained internationally. What insurgentsor secessionist forces seek most is recognition from theinternational community that they are fighting for a legitimatecause. Common Article 3 of the Geneva Conventions addressesthis matter only obliquely, seeking to reassure member statesthat the existence of civil conflict does not obviate theirclaims to sovereignty:In the case of armed conflict not of an internationalcharacter occurring in the territory of one of the HighContracting Parties, each Party to the conflict shall bebound to apply, as minimum, the following provisions:(1) Persons taking no active part in the hostilities,including members of armed forces, who have laid downtheir arms and those placed hors de combat by sickness,35wounds, detention, or any other cause, shall in allcircumstances be treated humanely, without any adversedistinction founded on race, colour, religion or faith,sex, birth or wealth, or any similar criteria.To this end, the following are and shall remain prohibitedat any time and in any place whatsoever with respect tothe above-mentioned persons:a. violence to life and person, in particular murder ofall kinds, mutilation, cruel treatment and torture;b. taking of hostages;c. outrages upon personal dignity, in particularhumiliating and degrading treatment;d. the passing of sentences and the carrying out ofexecutions without previous judgment pronounced by aregularly constituted court ...(2) The wounded and sick shall be collected and cared for.An impartial humanitarian body, such as the InternationalCommittee of the Red Cross, may offer its services to theParties to the conflict ... The application of thepreceding provisions shall not affect the legal status ofthe Parties to the conflict.The last sentence is the crucial one for our purposes. Itspecifies existing regimes as the highest legal authorities;dissident forces that had no legal standing to begin with willnot obtain any even by scrupulously adhering to the regulationsin question. Furthermore, without internationally recognizedlegality, a non-governmental force cannot appoint, and expectto be supported by a third party--a "protecting power." Thiswould imply in fact, if not in law, that an internationalstatus is conferred on the dissidents (Abi-Saab 1988, 223).It is worth pausing briefly to examine the background ofthis article, to demonstrate that this bias towards theincumbent regime in situations of civil strife was notnecessarily a given at the time the Conventions were drafted.The International Committee of the Red Cross (ICRC) hadpresented a draft of the article to the conference convened to36draw up the 1949 Conventions. The ICRC took a maximalistapproach, stressing that all parties to an internal conflictshould be bound to abide by the law of warfare--and, in return,granting them equal status before the law. The ICRC hadproposed that "the application of the Convention ... shall inno way depend on the legal status of the Parties to theconflict and shall have no effect on that status" (in Abi-Saab1988, 220). In other words, even though dissident forces werenot legally recognized, they could obtain quasi-legalrecognition by adhering to the convention's precepts. If othercountries then recognized the dissidents as fighting for alegitimate cause and offered help, or if the dissidentsrequested that another country serve as "protecting power" andsupply outside assistance, the civil war would become a quasi-international one, conferring on the non-governmental armedforce the status of belligerent.12 Furthermore, these thirdstates might, short of giving recognition to the belligerents,proclaim their neutrality towards both parties in the civilwar. An example is sometimes drawn from the Nigerian civilwar:Biafra undoubtedly possessed the status of a belligerent,which required other nations to be neutral. However, somewent further, and recognized Biafra as an independentstate--which in legal terms it clearly was not--and suchaction was an intervention in the civil war. (Higgins1972, 175).Belligerency implies a recognition by foreign countriesthat the non-governmental combatant in a civil war is pursuinga legitimate cause that merits international support (Plano1988, 188).37It must be emphasized, though, that the status conferred ondissidents or belligerents comes about as the result ofpolitical, not legal, actions: it is contingent on the foreignpolicy interests of governments.Belligerency as such is not incorporated into anyinternational treaties, even though enshrining it in thismanner might have saved numerous lives in past civil conflicts(Scruton 1982, 38; c.f. Gomulkiewicz 1988). The recognition ofbelligerency implies that anti-government or secessionistforces have the right to govern territories under their defacto control. Not surprisingly, the ICRC's draft of commonArticle 3 generated little enthusiasm among governmentrepresentatives to the conference. Governments feared losingterritory and authority to every dissident or secessionistarmed force capable of launching a full-scale civil war. Agranting of quasi-sovereign status to such forces wouldchallenge the sovereign authority of the incumbent regime andopen its modes of governance to international scrutiny. Theregime would then have two choices: to accommodate dissidentdemands within a reformed political system, or to permit thenational territory to be divided up along secessionist lines.By definition, there is no stronger threat to state sovereigntythan secession, though successful secessionist movements arerare (Bangladesh and Eritrea are the most notableexceptions).13To avoid confusion with the successful secessions fromthe former Soviet Union or Yugoslavia, Bangladesh and Eritreaare the only countries that have obtained their independence38The constraints placed on the drafting convention'sdeliberations were thus considerable--and finallyinsurmountable. Common Article 3 of the 1949 GenevaConventions "asks" the parties to a conflict to abide by therules of war; but it does not impose an obligation oncombatants to request humanitarian assistance when civiliansare suffering. The Article also remains vague as to the natureof the conflict in which minimum standards of humanitarianprotection are to be applied. Given the lack of externalscrutiny, therefore, a High Contracting Party can simply denythe existence of a civil war or of civilian suffering, andthereby justify its rejection of foreign aid and internationalinvolvement. No force or authority is assigned the task ofensuring that minimum standards of civilian protection andsecurity are met. Outsiders, third parties, or aidorganizations such as the ICRC have no mandate to monitor thesituation on their own initiative; they are incapable ofenforcing adherence to the laws of the Convention in the faceof opposition by the High Contracting Party. Even when statessubmit to outside scrutiny, they are not obliged--nor can theybe forced--to abide by the minimum standards of protection fornon-combatants.In fact, it is precisely to avoid external involvement, inthe form of investigations, scrutiny, or criticism, that thesignatories of the Geneva Conventions have agreed to banthrough violent and sustained struggle by insurgent groups togain control over the territory they claimed.39outsiders, even the ICRC, from entering a country without adirect invitation by the incumbent government (Abi-Saab 1988,223). The ICRC and other aid organizations can only "offer"their services, and only a High Contracting Party can formallyrequest them. The disincentives to issuing such a request aremanifest in situations where a government seeks to preserve atleast the perception of full sovereign authority by minimizingthe scale of internal conflict or denying its existencealtogether. "This guarded approach, in deference no doubt tothe traditional considerations of sovereignty under conditionsof stress, rendered the application of common article 3 evenmore problematic" (Abi-Saab 1988, 224).Thus the principle of sovereignty remains fundamentallyintact. Each regime is legally permitted to campaignmilitarily against domestic guerrilla or rebel forces, evenwhen the membership or support base of such groups constitutesa large proportion of the country's population. In non-international conflicts, basic human rights need not berecognized by an incumbent regime. Civilians in insurgent-heldterritories are subject to the laws and military policies ofthe government. The incumbent regime can declare illegal awide variety of activities--even those with a strictlyhumanitarian purpose--when it believes that those activitiesfavour the enemy (Meyer 1985, 273). Precisely this fear wasgiven voice in Article 23 of the Conventions:... The obligation of a High Contracting Party to allowthe free passage •.. [of essential goods such as food andclothing] is subject to the condition that this Party issatisfied that there are no serious reasons for fearing40a. that the consignments may be diverted from theirdestination,b. that the control may not be effective, orc. that a definite advantage may accrue to the militaryefforts or economy of the enemy ...... the Power which permits their free passage shall havethe right to prescribe the technical arrangements underwhich the passage is allowed.It is unlikely that the drafters of Article 3 intended toimpose any greater obligation on the parties to a civilconflict than those which Article 23 imposes with respect tointernational conflicts (Ratnaike 1989, 391). The HighContracting Party is clearly granted the right to give citizensaccess to, or deprive them of, essential goods. Theseprovisions arose from the perceived need to balancehumanitarian concerns with the domestic political interests ofmember states, with attention as well to what regimes wagingwar refer to as "military necessity." Taken as a whole, thebody of treaty law has no binding force beyond (a) thewillingness of governments and dissident groups to abide by itsinjunctions, and (b) the international pressure other countriesmay apply to encourage compliance, short of violatinginternational law themselves. Underlying humanitarian law,then, is a "vague mix" of political interests and basic humanneeds (Forsythe 1977, 171). As a result of these conflictinginfluences, the protection of civilians is severely hampered,and "despite the law on the books, efforts to help civilians inarmed conflicts have been largely de facto rather than de jure"(Forsythe 1977, 169). Civilians, then, tend to occupy thelowest rung on the ladder of legal safeguards. When enemysoldiers are caught and interned as prisoners of war, they41often obtain greater protection and more intensiveinternational legal consideration than civilian populations,which are "frequently viewed as nothing" (Forsythe 1977, 173).The Geneva Protocols I and IIIn collaboration with the United Nations and variousgovernmental bodies, the ICRC in the 1970's drafted a set ofProtocols additional to the Geneva Conventions of 1949 whichwere then (between 1974 and 1977) submitted to the DiplomaticConference on the Reaffirmation and Development ofInternational Humanitarian Law (Draper 1979, 143). Governmentsalong with governmental and non-governmental organizations tookpart in discussion of the draft texts, though only governmentdelegates could vote on, sign, and ratify the final drafts.A general concern among some representatives to theConference--particularly the ICRC--was that the 1949 GenevaConventions contained insufficient provisions for theprotection of civilians, particularly in non-internationalconflicts. The need for further development and strengtheningof this body of law was evident in the wake of violent civilconflicts in Vietnam, Cambodia, Nigeria, and the Middle East.Accordingly, Protocol 1 was intended to specifically addressand regulate conflicts with an international or anti-colonialdimension — the traditional concern of humanitarian law — whileProtocol 2, for the first time, clearly addressed theprotection of civilians in non-international conflicts.42Like the Geneva Conventions, Protocol 1 deals with a broadset of concerns surrounding the protection of civilians andprisoners requiring medical attention and other aid. It alsoaddresses the protection of installations vital for thesurvival of the civilian population, and delineates thefunction of humanitarian organizations appointed by incumbentregimes to deliver aid and protection under thesecircumstances. The Protocol focusses on conflicts that occurin an international context or within occupied territories.These consist of, on the one hand, cross-border disturbancesacknowledged as such by incumbent regimes; and conflicts inoccupied areas, that is, across previously established stateborders. This latter situation can also be interpreted asoccurring across cultural or ethnic boundaries within a singlestate because of the potential fluidity of state borders intimes of civil or inter-ethnic conflict and nation-building.It follows that, as with Common Article 3 of the GenevaConventions, the application of the first Protocol has spawneddebate over whether non-governmental combatants should beaccorded a place in humanitarian law. Articles 43, 44, and 96deal with irregular armed forces, and Article 47 discussesmercenaries. All of these forces are held to constitute non-governmental combatants engaged in international conflicts, butclearly, they could theoretically be engaged in fightingagainst the government within a single state. Thus, while theterm "national liberation movements" (NLMs) is not specificallyused, the conflicts described could well amount to that (Allen431989, 4, no.10; Abi-Saab 1991, 120). In order to cover allpossible configurations of international and internalconflicts, Article 1:2 extends the scope of Protocol 1 beyondthe Geneva Conventions. Thus, when conflict situations occurthat do not fall under the aegis of these humanitarian lawtreaties, states are obliged to respect two more sources ofinternational political norms: customary law, on the one hand,and "public conscience," which can be understood as prevailingmoral and cultural values, on the other.In cases not covered by this Protocol or by otherinternational agreements, civilians and combatants remainunder the protection and authority of the principles ofinternational law derived from established custom, fromthe principles of humanity and from the dictates of publicconscience. (Protocol 1, Article 1:2)Other provisions in Article 1 make the following demandson member states:The High Contracting Parties undertake to respect and toensure respect for this Protocol in all circumstances.This Protocol, which supplements the Geneva Conventions... shall apply in the situations referred to in Article 2common to those Conventions.Article 2 of the Geneva Conventions states that in times ofpeace and war, the rules apply to all instances of declared andundeclared war among High Contracting Parties. And, asmentioned in the discussion of Protocol 1, the GenevaConventions are also applicable in all cases of partial ortotal occupation of the territory of a High Contracting Party(Baxter 1988, 97). Protocol 1, Article 1:4 adds the followingto its application:The situations referred to ... include armed conflicts inwhich peoples are fighting against colonial domination and44alien occupation and against racist regimes in theexercise of their right of self-determination, asenshrined in the Charter of the United Nations and theDeclaration on Principles of International Law concerningFriendly Relations and Co-operation among States inaccordance with the Charter of the United Nations.(Protocol 1, Article 1:4).This article thus states, albeit somewhat vaguely, thatpopulations struggling military against colonial domination,alien occupation, or racist regimes are exercising their rightof self-determination. The conflicts in question shouldtherefore be regarded as international conflicts (Rengger 1990,163). No shortage of sensitive questions derives from thisframework. Must fighting against colonial domination, alienoccupation, and racist regimes—particularly the last of these--necessarily be international in character? If so, where aminority group claims it is being subjected to "internal"colonialism or racial-ethnic discrimination by an incumbentregime, it may claim the right to international protection by athird party--a "protecting power." The claim to"internationalization" of the conflict challenges othercountries either to recognize the sovereignty of the incumbentregime and offer support to it; or to recognize the dissidentforce as a quasi-international actor with a legitimate right toself-determination.Such attempts at "internationalization" are of course aprime strategy for most dissident or secessionist forces. TheIbos during the Nigerian civil war, the Eritreans untilrecently, and the Kurds in Iraq have all appealed to othercountries for support and recognition. Recognition of the45legitimacy of a National Liberation Movement is, in turn, apolitical act, guided by the foreign policy interests of otherregimes. Under the Protocol, however, to be considered"eligible" for quasi-recognition as a NLM or belligerent, thenon-governmental armed force must be able to abide by allprovisions and rules of humanitarian law. This requirement isfound in Protocol 1, Article 96:3, and in Protocol 2, article1:1. Article 96:3 provides thatThe authority representing a people engaged against a HighContracting Party in an armed conflict of the typereferred to in Article 1, paragraph 4, may undertake toapply the Conventions and this Protocol in relation tothat conflict by means of a unilateral declarationaddressed to the depositary. Such declaration shall, uponits receipt ... have in relation to that conflict thefollowing effects:(a) the Convention and this Protocol are brought intoforce for the said authority as a Party to the conflictwith immediate effect;(b) the said authority assumes the same rights andobligations as those which have been assumed by a HighContracting Party ...By authorizing non-governmental combatants (NLMs) todeposit a unilateral statement with the depository (the Swissgovernment) in which they declare their intention to be boundby the Protocols, the status of these combatants is "upgraded."Other countries can then view the liberation movements ashaving obtained a quasi-legal position that allows them toengage in international treaty-making. From the perspective ofhumanitarian assistant, the Protocols thus enable NLMs tostrike agreements with donor countries or aid organizations andto officially request the delivery of outside aid to civilians46in dissident-controlled territory. Three major obstacles,however, remain to implementation of this process:(1) The material inequality of the combatants in civilconflicts has yet to allow a dissident armed force to acquirethe military capacity and level of political organization toabide by the treaty regulations in question, and thus to bebound by the Protocol.(2) The status to which a NLM aspires is not grantedmerely by the "declaration" of intent to abide by theProtocols. Rather, it depends on the ratification of theProtocol by the incumbent regime of the state in which the NLMis active, and by other states who recognize the legitimacy ofthe NLM's cause.(3) It is also possible for the High Contracting Partyfighting the NLM to deny that Article 1:4 of the Protocolapplies to the situation in question: that is, to claim that nocolonial domination exists, the regime in power is not racistor engaged in alien occupation, and thus the conflict is notinternational. Final determination of the Protocol'sapplicability is still left to the High Contracting Party onwhose territory the conflict occurs, and to other governmentswho might choose to side with one or the other of thecombatants. As long as the conflict is viewed as a purelydomestic one, the incumbent rêgime remains the sole recognizedauthority (this is discussed further in Protocol 2, Art. 18:2,below).47What realistic options then remain for non-governmentalforces to secure the distribution of humanitarian relief interritories they control? Protocol 1 obliges all parties to aconflict, including non-governmental ones, to consent tohumanitarian aid. Article 70 states thatIf the civilian population of any territory under thecontrol of a Party to the conflict [which includes non-government forces], other than occupied territory, is notadequately provided with the supplies mentioned inArticles 69 [food and medical supplies], relief actionswhich are humanitarian and impartial in character andconducted without any adverse distinction shall beundertaken, subject to the agreement of the Partiesconcerned in such relief actions. Offers of such reliefshall not be regarded as interference in the armedconflict or as unfriendly acts.Article 70 further grants rights and imposes obligations onboth "the Parties to the conflict and each High ContractingParty" to facilitate and control the distribution of relief tonon-combatants. Article 70:2 obliges official governmentforces along with non-governmental ones to respect fundamentalhuman rights and protect non-combatants on both sides of aconflict:The Parties to the conflict and each High ContractingParty shall allow and facilitate rapid and unimpededpassage of all relief consignments, equipment andpersonnel ... even if such assistance is destined for thecivilian population of the adverse Party.This places a direct obligation on national liberation ordissident forces, notwithstanding their tenuous legal status.Once an aid organization has been allowed to deliver aid, theremust be supervision of its activities to ensure that they areimpartial and exclusively humanitarian in nature. Thus,civilians caught up in violent conflict can only be protected48if one of the combatants agrees to take on the role ofprotector, consenting to and overseeing the work of foreignrelief workers in the territory it controls. The difficultyhere, as with so much other humanitarian legislation, is theadvantage granted to incumbent regimes. Only governments arepermitted to invite, consent to, or refuse international aid,while they are usually also seen as much better able tosupervise and offer protection to foreign relief workers.However, regime oversight and protection can hardly be extendedto territories under the control of "enemy" (insurgent ordissident) forces. Furthermore, the Protocol remains notablyvague about the question of aid delivery into territories wherethe controlling parties refuse such aid. To encourage consent,Article 70:3 specifies that the parties to the conflict(a) shall have the right to prescribe the technicalarrangements, including search, under which such passageis permitted; [and](b) may make such permission conditional on thedistribution of this assistance being made under the localsupervision of a Protecting Power.Article 71:1 concerns relief personnel:Where necessary ... the participation of such personnelshall be subject to the approval of the Party in whoseterritory they will carry out their duties.These articles do no more than state the obvious. Theactivities of aid organizations and the distribution of reliefsupplies cannot occur if the combatants are bent on activelyopposing it. But the important point to note in the context ofthe progressive expansion of humanitarian law is that non-governmental forces are now given the right "to prescribe the49technical arrangements" of aid distribution (while alsoassuming the obligation of abiding by the principles ofcivilian protection). However, a non-governmental party to aconflict, whether that conflict be domestic or international innature, is not permitted to consent to, or refuse aid fromforeign countries or foreign aid organizations. Nor is it ableto request that such aid be brought into territory it controls.No provision exists to give humanitarian aid agencies powerover the distribution of relief--power that would override theauthority granted the parties to the conflict. In other words,while all parties to a conflict can allow aid to enterterritories they control, dissident forces or outside actorscannot act as "protecting powers" or override the unwillingnessof a High Contracting Party to permit aid delivery anddistribution.Protocol 2 sets about making much the same points withless ambiguity. It arrives at the same basic conclusion: onlystate governments can request foreign aid. Nonetheless, thisprotocol represents the first humanitarian law provisiondealing straightforwardly with the protection of civilians ininternal conflicts. The treaty "applies to armed conflictsbetween contending parties which are in a position to meet itsobligations" (Draper 1979, 149). As seen thus far, thedifficulty with the 1949 Conventions and the first Protocol wasthe uncertain status of non-governmental combatants. Protocol2 aims at introducing a definition of non-governmentalcombatants which would enable the rules of war to be brought to50bear on them, facilitating the protection of civilians andprisoners. Debate over the definition centred on higher-leveland lower-level internal conflicts. The higher-leveldefinition based itself on full-scale, classical civil warssuch as the Spanish conflict (1936 to 1939) and the Nigeriancivil war (1969 to 1970). The reasons for using such conflictsas a baseline are plain: they render it inherently moredifficult for insurgent forces or NLM's to achieve thenecessary high degree of military power and control over theterritory they claim (Draper 1979, 150). Article 1:1 of thesecond Protocol defines the combatant as follows:This Protocol ... shall apply to all armed conflicts whichare not covered by Article 1 [of Protocol 1] ... and whichtake place in the territory of a High Contracting Partybetween its armed forces and dissident armed forces orother organized armed groups which, under responsiblecommand, exercise such control over a part of itsterritory as to enable them to carry out sustained andconcerted military operations and to implement thisProtocol.To avoid any confusion on this count, Article 1:2 ofProtocol 2 specifies that:This Protocol shall not apply to situations of internaldisturbances and tensions, such as riots, isolated andsporadic acts of violence and other acts of a similarnature, as not being armed conflicts.The obvious implication is that in order to be regarded ashaving a claim to NLM status, with the internationalcommunity's concomitant acceptance of dissident forces'legitimate struggle for self-determination, non-statecombatants must display a capacity to act as full-scalemilitary powers with a potential for independent statehood.These standards are too high for most insurgent groups to meet.51Using the level of conflict intensity (power, violence,sustainability) as the defining criterion for non-governmentalcombatants gives incumbent regimes what they need mostdesperately: maximum freedom and time to suppress domesticinsurgents before they become powerful enough to qualify as afully-fledged dissident force, or worse, a NLM that can advancea claim to be engaged in an international war (under Protocol1, Article 96:3).Why, then, do dissident groups make great efforts to abideby the rules governing protection of civilians? They clearlyhope that their chances of being recognized as a legitimateparty to an internal conflict will increase thereby. Toobserve the rules of war is to demonstrate the power to observesuch rules, with all the implications for internationalrecognition this holds. Thus, secessionist groups such as theBiafrans, the Eritreans, and the Kurds have sought to portraythemselves as deserving a nation-state by showing theircapacity to abide by international law and imitate thefunctioning of an incumbent regime. Biafrans, for instance,managed to establish a Biafran Red Cross, their own "national"bank, and other quasi-autonomous political and economicinstitutions that promoted the image of a de facto newly-independent state (St. Jorre 1972, 224-227). The Kurds used"National Assembly" elections to "set out to show ... they area democratic lot" able to organize themselves independently ofthe Iraqi government (The Economist 1992a, 46). A particularlysalient example here is the Eritrean rebels' painstaking52attention to treatment of prisoners of war. This served tomute the image of the rebels as mere "irregular" forces,demonstrating their capacity to control the actions of theirsupporters on a broad scale, and showing their ability andwillingness to abide by the tenets of international law.Thomas Keneally's Eritrean travel journal includes a vividdescription of this rebel policy:Under blankets and beneath roof logs in a bunker, [theprisoner] awoke without any of the pain which had beenwith him when he ejected [from his Ethiopian militaryjet]. ... This was the very place at which he had aimedhis bombs. ... He said [to his captors] in Amharic, 'Whydon't you show your hand? When do I see the bastinado andthe water torture?' ... 'Don't be anxious on the score oftorture, sir [replied the Eritrean guard] ... 'We do notwant to satisfy your arrogance. We'll subject you tosomething worse than that. We will treat you as if youwere a prisoner of war under the Geneva Convention'.(Keneally 1989, 103)To clarify, while the Eritreans declared their intentionto abide by the principles of humanitarian law, they did notdeposit a statement with the Swiss government declaring theiradherence to the provisions of the Protocols. Given thatEthiopia itself was not a signatory to the treaties, such amove might have been militarily counter-productive (Kooijmans1991, 230 n.9; Ratnaike 1989, 390). Nonetheless, the EritreanPeople's Liberation Front (EPLF) did manage to gain recognitionas a National Liberation Movement outside the framework ofhumanitarian law: it was accorded international mediationprivileges by the United in the late 1970s in an unsuccessfulattempt to end the war by negotiations. The EPLF's failure togain recognition under humanitarian law was grounded onaccusations that, like the Ethiopian Army, it had confiscated53or destroyed aid deliveries and exacerbated the difficulties ofrelief distribution (Stern 1990, 342 n.37; Keneally 1989, 3-4,27-30).In the face of these complexities of status andrecognition, the draft second Protocol sought to eliminateobstacles to rapid and unimpeded emergency relief across stateborders. The ICRC drafted a provision expressing itsmisgivings concerning a governments' ability to deny access tovictims, and suggested:If the civilian population is inadequately supplied, ...the parties to the conflict shall agree to and facilitate,to the fullest possible extent, those relief actions whichare exclusively humanitarian and impartial in characterand conducted without adverse distinction. Relief actionsfulfilling the above conditions shall not be regarded asinterference in the armed conflict.The parties to the conflict and any High Contracting Partythrough whose territory supplies must pass shall grantfree passage when relief actions are carried out inaccordance with the conditions stated in paragraph 1.The parties to the conflict and any High Contracting Partyshall in no way whatsoever divert relief consignments fromthe purpose for which they are intended or delay theforwarding of such consignments. (ICRC draft for Article18 of Protocol 2, in Levie 1987, 565)These measures would have enabled aid agencies to enterterritory held by a combatant without the consent of theincumbent regime. Combatants, meanwhile, would have beenobliged to grant access to all victims in need of aid.However, this proved too much of a challenge to establishedconceptions of state sovereignty. The final version of the1977 protocols, then, failed to incorporate the ICRC'sproposals on this score. Aid organizations, including theICRC, are still dependent on the consent of incumbent regimes54to deliver aid. The ICRC is given the right to initiaterequests for the delivery of such aid, but can only "offer" itsassistance. It should be noted that this restriction appliesno less to aid organizations based in the country in question:Relief societies located in the territory of the HighContracting Party, such as Red Cross ... organizations,may offer their services for the performance of theirtraditional functions in relation to the victims of thearmed conflict.--so specifies Article 18:1; but "The request or at leastconsent of the recipient state remains a sine qua non conditionfor the initiation of international relief assistance" (UNITAR1982, 3). This is expressed in Protocol 2, Article 18:2:If the civilian population is suffering undue hardshipowing to a lack of the supplies essential for its survival... relief actions for the civilian population which areof an exclusively humanitarian and impartial nature andwhich are conducted without any adverse distinction shallbe undertaken subject to the consent of the HighContracting Party concerned.*To summarize, the three treaties examined here, draftedbetween 1949 and 1977, all stress the need for consent byincumbent regimes before international humanitarian relief canbe distributed anywhere on the territory of a country engagedin international or civil war. If and when a non-governmentalmilitary force manages to exercise control over territory andcarry out sustained and concerted military operations, andexpresses its willingness (while demonstrating its ability) toimplement the provisions of humanitarian law (under Protocol 1,Art. 96:3b), then such a dissident force or NLM can be grantedthe right to request that foreign aid be delivered to citizens55in territories under its control as this combatant force thenacquires the same rights as a High Contracting Party.On paper, these provisions give sovereign states most ofthe security provisions they need to survive a civil conflict.Incumbent regimes remain the sole authorities when it comes torelations with other countries or international organizations--until such time as NLMs manage to battle their way to de factoquasi-independence. Thus, dissident forces aspiring tosecession or the overthrow of the established regime must first"prove" they are politically and military capable of fulfillingall the nation state's traditional obligations underhumanitarian law. The problem is that, as the grim history ofcivil conflict in this century demonstrates, tens of thousandsof civilians may die or suffer enormous deprivations before aNLM manages to attain the size and strength necessary forquasi-independent status (with attendant possible recognitionby other countries). It appears now that these "halfway"provisions do an immense disservice to civilians caught betweengovernment and dissident guns.Where else in international law can one seek avenues forthe delivery of emergency humanitarian assistance topopulations ravaged by civil war? A first signpost is offeredby the case brought by Nicaragua against the United States atthe International Court of Justice. The case is indicative ofchanges in customary law that increasingly appear to permit thedelivery and distribution of humanitarian aid without theconsent of incumbent regimes.56V.THE NICARAGUA-USA JUDGMENT:Customary Law and Covert AidOn June 27, 1986, the International Court of Justice (ICJ)issued its decision on the case brought by Nicaragua againstUnited States support for Contra rebels. Apart from thecentral issues of non-intervention and covert military support,the Court also pronounced judgment on questions of human rightsand humanitarian intervention (Teson 1988, 201). In thedocument of decision, the Court expressed a view contrary tothat normally taken in the various treaties of humanitarianlaw, discussed above. The specific issue in the case at handwas whether a third party--the U.S.--had the right to supportnon-governmental forces (Contra rebels) on Nicaraguan soil.This marked a sharp departure from the previously-dominantframework addressing the rights of government versus dissidentforces within a single state.Simply put, the Court's decision was that intervention forthe purposes of offering military assistance is illegal, inthat it contributes to the use of force against a sovereignpower. The Court decided thateach State is permitted by the principle of Statesovereignty to ... [be allowed] free choice of apolitical, economic, social and cultural system and theformulation of foreign policy. Intervention is wrongfulwhen it uses methods of coercion in regards to suchchoices, which must remain free ones. (ICJ Merits 1986,205)However, the Court stated that foreign intervention strictlyfor the purpose of delivering humanitarian aid may be legal, if57that aid is directed not towards a specific group ofcombatants, but towards an entire population in need ofhumanitarian assistance. The ruling was based on customaryconsiderations, that is, the moral claims and precedents ofearlier humanitarian activities recognized as legitimate by thecommunity of states. Thus, "American humanitarian assistanceto the Contras since 1984 ... was lawful according to theCourt" (White 1989, 544), as the U.S. government had allocatedfunds specifically for humanitarian relief. U The Court'sdecision included the claim thatthere can be no doubt that the provision of strictlyhumanitarian aid to persons or forces in another country,whatever their political affiliations or objectives,cannot be regarded as unlawful intervention or as in anyother way contrary to international law ... (ICJ Merits1986, Para. 242)However, the Court noted that[I]f the provision of humanitarian assistance is to escapecondemnation as an intervention in the internal affairs ofNicaragua, not only must it be limited to the purposehallowed in the practice of the Red Cross, namely 'toprevent and alleviate human suffering' and 'to protectlife and health and to ensure respect for human beings,'it must also, and above all, be given withoutdiscrimination to all in Nicaragua, not only contras andtheir dependents. (ICJ Merits 1986, Para. 243)The similarities between the Court's judgment and the ill-fated ICRC draft of Article 18 in Protocol 2 are striking. TheICJ decision constitutes by far the strongest statement inThe US Senate and the House of Representatives adoptedand agreed to an appropriation of US$ 27 million beginningSeptember 30, 1984 solely for humanitarian assistance to theContras. Administration of these funds was taken out of thehands of the CIA and the Department of Defense (ICJ Merits1986, Para. 97).58favour of legalizing foreign aid to victims in territories thatare controlled by dissident armed forces.While no formal provision is made for non-governmentalcombatants to request international aid (at least when thedissident or NLM army is not a party to the Protocols), foreignaid cannot realistically be distributed in a war zone withoutat least the tacit consent of a combatant in the territory itcontrols. If the incumbent government declares itself opposedto such aid distribution, the non-governmental combatants willhave to disregard international treaty law and request foreignaid themselves. From a moral perspective, of course, such a"breach" of law is desirable. Without it, international aidmight never reach the victims of civil conflict, and thisconcern assumes predominance in the ICJ decision: as Whitenotes (1989, 547), "humanitarian assistance is the only lawfulextra-national support for armed opposition groups whetherrecognized national liberation movements or not."15In arriving at its decision, the ICJ placed great emphasison multi-lateral and bi-lateral treaties, as well as on U.N.resolutions and principles of customary international law. Itis worth pausing a moment to examine the nature andsignificance of this latter tradition. Customary internationallaw is based on rules of international conduct arising frompractices and norms that governments have accepted, andadopted, as mutually beneficial standards by which to secureAlthough not discussed here, covert aid is delivered attimes by non-governmental (privately supported) aid agencies inmany countries of the Third World.59their interests. This accumulated body of formal and informalagreements and resolutions is bolstered when evidenced by statepractice and clarified and formulated into precepts by judicialopinion. Together with a diversity of court decisions, suchopinions and resolutions may be considered as binding customaryinternational law (Charney 1988, 16-17, 21-22; Plano 1988, 272-273). Its strength is such that "the Court may not disregardthe essential role played by general practice," and is instead"[b]ound by Article 38 of its Statute to apply, inter a/ia,international custom 'as evidence of a general practiceaccepted as law" (ICJ Merits 1986, para. 184; Statute of theICJ, Art. 38b).While important tenets of customary law are often includedin treaties, the ICJ decision was not enshrined in a treaty. 16Nonetheless, it represents a further maturation of legalprinciples that were already generally accepted, and can now beconsidered part of the corpus of international law. In thewake of the ICJ decision, it is now possible to justify coverthumanitarian intervention in civil conflicts, when suchThis is scarcely surprising, in that most states,especially those already racked by internal conflict, will bereluctant to accept a treaty provision that permits delivery ofinternational humanitarian aid. As we have seen, states willtend to perceive a threat to their sovereignty or support forenemy forces in this instance. Thus, the ICRC's draft forArticle 18 of the second Protocol provoked fears that theauspices of "aid delivery" would be used to smuggle militaryhardware or other contraband materiel to dissident forces.Indeed, this seems to have occurred with the covert aiddeliveries to Biafra during the Nigerian civil war, and bothEthiopian and Eritrean representatives accused each other ofsimilar practices during their long conflict (Forsythe 1977,187-188; Korn 1986, 5; Zeiler 1989, 595).60intervention occurs--by definition--without the explicitconsent of the party or parties in control of a giventerritory. Of course, the ICJ stresses that any aid deliveriesmust fall strictly under the rubric of "humanitarian"assistance. But when an incumbent regime forbids or hampersthe delivery of relief supplies, those attempting to deliverand distribute aid are compelled to subordinate the regime'sobjections and deal directly with the persecuted citizens ordissident forces in question. Clearly, any such situationconstitutes a strong challenge to the principle of statesovereignty that underpins international treaty law.Intervention for Humanitarian PurposesThe discussion so far has traced the lineage of legalthinking and decision on the issue of humanitarian aiddelivery. How has such delivery tended to occur in the realworld, and how does this reflect--and, in turn, shape--thelegal dimension of the issue?One of the earliest covert interventions for delivery ofhumanitarian aid was the United States' dispatching of food aidto Russia in 1919. Under Herbert Hoover, then-Director ofEuropean Relief, and under the auspices of the American ReliefAdministration, the U.S. managed to deliver aid to populationsravaged by famine and civil war without the consent of theruling Bolshevik government. They managed to sidestep theregime's objections by channelling aid through the American61Friends Service Committee and various Quaker organizations onboth continents (Nolan 1993, 29).A number of military interventions, particularly in thenineteenth century, had a visible humanitarian component.However, because most if not all of these interventions wereessentially grounded in perceived political and nationalinterests, they had little or nothing to do with human rightsas such (Humphrey 1973, vii). The best-known recent cases areIndia's military intervention in East Pakistan in 1971, tosupport the East's secession and the founding of an independentBangladesh; India's covert intervention in Sri Lankan air spaceto drop relief supplies to Tamil insurgents in the 1980s (Allen1989, 6); Tanzania's military intervention in Uganda in 1979 tooverthrow the rêgime of Idi Amin; and Vietnam's invasion ofCambodia in 1979 to topple the Pol Pot rêgime (Weller 1991,34).^All these interventions, military and non-military,resolved or helped to resolve large-scale violations of humanrights, and this was often an important part of the statedgrounds for intervention. But in all cases, intervention wasmainly prompted and justified by more traditionalconsiderations, such as the right to self-defence.Doctrines of humanitarian intervention have an impressivelineage in western history, numbering among their supportivevoices such eminent jurists as Grotius, Vattel, Guggenheim,Oppenheim, and Lauterpacht. Such doctrines generally rest onA comprehensive discussion of past interventions withhumanitarian motives or implications can be found in Franck &Rodley 1973, 277-294.62the view that "any state can intervene 'to prevent serious andlarge scale violations of human rights ... by another Stateregardless of the nationality of the victims'" (Ratnaike 1989,392). Critics of this doctrine, however, have been no lessnumerous. They have tended to base their arguments on two mainassertions. First, they contend that loosening the constraintson intervention would provide individual states or groups ofstates with a more ready justification to intervene in theaffairs of other states, i.e., under the pretext of"humanitarian assistance." Second, the critics stress thepractical difficulties of intervening in active civil conflictsagainst the wishes of incumbent regimes and their militaryforces. 18 Only in rare cases, when state institutions havecompletely disintegrated and a regime's military forces havelost the ability to exercise control over territory, can ahumanitarian intervention be mounted with some degree ofsuccess. This was possible, for example, in Somalia at the endof 1992. But a similar intervention in neighbouring Sudan,where civil war has raged for thirty years, would likelyencounter insuperable obstacles. The Sudanese military isbetter equipped and the government it supports still holds swayover large areas of the national territory, as well ascommanding wide recognition from the international community.In such circumstances, direct negotiations with the combatants,C.f., for example, Donnelly 1984, 1989, 260-263.63aimed at securing their consent to humanitarian assistance,seems the only realistic means to deliver aid. 19VI.INTERNAL CONFLICTS AND COVERT AID:Nigeria and BiafraNigeria attained independence in 1960, but was left todevelop its political and economic institutions within highlyartificial state boundaries--the creation mainly of thecolonial Royal Niger Company between 1885 and 1899. AsChamberlain (1985, 35) puts it, "The Yorubas of the WesternRegion, the Ibos of the Eastern Region, and the Moslem emiratesof the North had little in common and sometimes heartilydisliked one another." The difficulty of finding appropriatestructures of political representation for the diverse ethniccommunities led to political breakdown, military coups, and thepersecution and counter-persecution of various ethnic groups.In the mid-1960s, ethnic tensions flared into openviolence in many parts of the country. They combined with anearly perpetual air of political crisis in the nationalcapital, Lagos. Owing to the favourable geographic location oftheir home territories--which included most of Nigeria'spetroleum deposits--and to their noted entrepreneurial skills,the Ibos had succeeded in carving out a comparativelyprosperous niche for themselves in the national economy.For a discussion of the U.N.'s success in deliveringfood aid to insurgents in southern Sudan, via skilfulnegotiations that eventually brought the Khartoum government"on side," see Weiss and Minear 1991.64Eventually, this prosperity encouraged Ibo military leadersunder Colonel Ojukwu to move first for regional autonomy andthen for independence. The leaders initially laid claim tofederal revenues deriving from the eastern (oil-rich) part ofthe country. On March 31, 1967, they went a step further byseizing control of the region's armed forces, governmentalstructures, and economic institutions. Two months after that,the Ibo leaders made a formal bid for secession andindependence (St. Jorre 1972, 105-106; Palmer 1984, 878). Thenew country was to be called Biafra.In justifying their move, the Biafran leadership claimedthe Ibos had for several years been targets of Nigerian statepersecution and victims of a policy of tribal genocide. Butthe ensuing civil war did not generate wide internationalacceptance of Biafra's independent ambitions. Only fivecountries (Tanzania, Zambia, Gabon, Ivory Coast, and Haiti)officially recognized Biafra's sovereign independence--all in1968. Others - France, Portugal, and Sao Tome—together withvarious aid organizations including the French Red Cross, theJoint Church Aid, and Caritas, offered covert support for theBiafran cause (St. Jorre 1972, 238; Frey-Wouters 1974, 468;Forsythe 1977, 192-193). The civil war lasted until 1970 andresulted in some one million casualties before the Nigerianmilitary finally succeeded in crushing the Biafran rebellion.The efforts of humanitarian aid organizations to deliverfood and medicine for the war-afflicted zone spawned a numberof controversies that relate directly to the concept of65sovereignty and the struggle to obtain or maintain it. "Whatbegan as an apparently cut-and-dried humanitarian problem,"states St. Jorre (1972, 235), "finished in an inextricabletangle of politics, personal rivalries and passionatecommitment."Biafra's primary objective was to attain independence andsovereign statehood. Nigeria's goal was to prevent this at allcosts. Because neither side could bring sufficient militaryforce to bear to resolve the issue speedily and in its favour,both parties sought other means of advancing their cause.Humanitarian aid and the international attention it generatedwas perceived, and utilized, to buttress basic politicalinterests. For the Nigerians, starvation among Biafrans wouldweaken the secessionists' commitment to independence and,ideally, bring about their surrender. To Biafrans, meanwhile,the starvation of children translated into internationalconcern and--most importantly--sympathy, which, it was felt,could help prompt international recognition (St. Jorre 1972,236). Towards this end, the Biafrans orchestrated asophisticated publicity campaign, headquartered in Geneva, thatsucceeded in winning many Western governments and aidorganizations to their side--though such support stopped shortof full recognition.Under the Geneva Convention, to which the FederalGovernment of Nigeria was a signatory, the Biafran war was an"internal" conflict into which outside agencies could beintroduced only by the invitation of the incumbent, officially-66recognized government (St. Jorre 1972, 236). Thus, aidorganizations were bound by the regulations of the Conventions--forced to negotiate with the Nigerian government in Lagos inorder to bring relief into the country, in particular thatintended for the population of the eastern region, i.e.,Biafra. The Nigerian government permitted aid organizations towork on both sides of the battle lines, as long as theorganizations respected the regulations and parameters laiddown by the Nigerian authorities. But as the war grew inintensity--as more Biafran children starved, and asinternational media coverage prompted more countries to getinvolved in the conflict--the agencies became increasinglyentangled in political issues, especially whether to support oroppose the cause of Biafran independence. The Nigeriangovernment resented and opposed aid organizations whichstructured their work around Biafran requests or demands. Inthe end, the authorities in Lagos imposed a blockade onoverland aid deliveries to Biafra, thereby exacerbating thefamine in the eastern regions. In this manner, humanitarianaid became a political means by which both parties to theBiafran conflict sought to advance their cause. As noted, thecentral issue was sovereignty. Nigeria insisted on preservingits territorial integrity, while the Biafrans foughtdesperately to establish their right to self-determination andsovereign status. Neither the Nigerian government nor Biafra'sleadership was willing to negotiate or compromise on themechanisms for delivery of aid for fear that any such67compromise would erode their sovereignty over the territorythey claimed. Thousands of Biafrans paid the price for thisintransigence (Mudge 1969, 230).In the face of the Nigerian rêgime's injunctions, most aidorganizations and many western donor states supported effortsto deliver food aid and other relief supplies to Biafra, evenif this meant disregarding the express wishes of theauthorities in Lagos. In the end, many humanitarianorganizations, including the two largest ones (theInternational Red Cross and Joint Church Aid), delivered reliefsupplies without the Nigerian government's consent--violating,as it happened, the terms of the 1949 Geneva Conventions. Onlyin the last year of the conflict did the ICRC halt these"covert" deliveries, while the French Red Cross continued themuntil the final collapse of the secessionist forces.The ICRC thus chose to overlook the precise wording of theGeneva Conventions, and most other aid organizations did thesame. Their general defence at the time was that althoughLagos was granted legal right to control the entry of reliefaid to the country, that right did not give the rêgime a freehand to engage in genocidal practices. "There was someacceptance within the ICRC, perhaps subconsciously, of theBiafran claim that Lagos was engaging in genocide" (Forsythe1977, 193). While benefitting by this unofficial circumventionof the Convention, Biafra's leadership demanded that foreignaid be flown in from outside Nigeria. Their intention was todemonstrate Biafra's independence from Nigerian control,68goodwill, and transportation infrastructure--and to use nightflights as convenient shields for the importation of militaryhardware and other miliary materiel:Thus the [Biafran] gunrunners mingled with thefoodrunners, as both they and the Federal pilots playedhide-and-seek in the dark airspace over Uli and Umbilagoairstrips. Biafra was unwilling to give up this night-time shield, which was important to its military effort,even if a day airlift would bring in more guaranteed food.(Forsythe 1977, 188)The deliveries were possible because the Nigerian air force didnot have the capacity to intercept night flights over Biafranterritory. Whatever capacity it might have had in this areawas further reduced by a reluctance to shoot down reliefflights. Accordingly, the Nigerians accused aid organizationsof covertly helping the Biafran secessionists. The Biafransretorted that Lagos was using the overland blockade and thestarvation of civilians as a genocidal tool of war. The Lagosleadership sought to present the conflict as a domesticconcern, while the Biafrans pinned their hopes on aninternationalization of the conflict.The activities of the ICRC thus acquired a politicaldimension. The organization's relief work was tantamount tosupport for Biafran independence, though it stuck to itsofficial claim of neutrality and impartiality (Forsythe 1977,187). In the final year of the war, friction between the ICRCand the Nigerian military command reached the boiling point.The federal government announced its intention to assertauthority over all the territory it could control, along withall shipments of goods into the entire country. Hoping to put69an end to the night flights into Biafra, the Nigerian air forceshot down a Red Cross plane on June 5, 1969. This forced theICRC to admit it was abiding by a rather loose interpretationof the 1949 Geneva Conventions concerning intervention in theaffairs of a sovereign state. 20 After the downing of the RedCross plane, the President of the ICRC agreed to abide by theletter of the Convention. Covertly, though, the organizationstill arranged for the transportation of relief into Biafra viathe French Red Cross (Forsythe 1977, 193). The French RedCross and the JCA, for their part, did not follow the ICRC'sexample. They continued covert relief flights into Biafra,exploiting the Nigerian government's inability to stop suchactivity. These organizations expressed the belief that theneeds of starving civilians overrode the letter ofinternational law, giving them the right to intervene as"revolutionary humanitarianists" (Forsythe 1977, 193).Recall that Article 23 of the Fourth Geneva Conventionclearly stipulated that "the Power which permits ... freepassage [of aid consignments] shall have the right to prescribethe technical arrangements under which such passage isallowed." The Convention further states that if the HighContracting Party--in this case, the Nigerian government--findsthat consignments are being used for purposes other than thoseintended; that it is unable to control delivery of theconsignments; or that advantages are accruing to the militaryefforts or economy of the enemy, it has the right to imposemeasures to curtail or control passage of the consignments inquestion. Not only did the covert night flights violate thebasic principle of non-intervention, but the ICRC in generalwas not free to deliver aid in any manner to which the Nigeriangovernment objected. The ICRC was bound by the Convention tomodify its activities and follow the directives of theincumbent rêgime, which alone "had the legal right to set theterms of inspection for relief flights into the secessionistarea" (Forsythe 1977, 192).70Ethiopia and EritreaEritrea was first grafted on to Ethiopia as a result ofthe Italian invasion of 1935. In 1936, the Italians finallydefeated Ethiopian forces and combined existing Ethiopianterritory with Italian Somaliland and previously-independentEritrea. In 1941, the Italians were driven out by Britishforces. Ethiopia was handed back its independence, whileEritrea remained under the temporary protection of the British.In 1950, the United Nations General Assembly passed aresolution to unite Eritrea with Ethiopia under a federalconstitutional system. The reasons for the decision werelargely geopolitical. It was held that Ethiopia requiredaccess to the Red Sea coast, and that this would also secureWestern interests in the region (ICJR 26, 1981, 11). AsKeneally points out, "this forced twinning of the two nations"was carried out without a referendum to determine the opinionof Eritreans themselves (Keneally 1989, 126; c.f. Zeiler 1989,591). The situation became more precarious in 1962 when theEthiopian Emperor, Haile Selassie, annulled the federation andtook full control of Eritrean territory.Selassie ruled with a firm military hand until he wasoverthrown in a revolution in 1972. After a period of internalmilitary struggle, Lt.-Col. Mengistu Haile Mariam emerged in1977 as undisputed leader. He guided his regime into the"Soviet camp" and implemented a number of Stalinist-Maoistcampaigns of agricultural collectivization that contributed tothe country's poor food production in the 1980's (Pezzullo711989, 219). With Russian and Cuban troops pouring intoEthiopia, Washington stepped up military support toneighbouring Somalia, along with Sudanese-based aidorganizations near the Eritrean border. From the early 1970s,donations of food aid, medicine, and some military materielwere funnelled to Eritrea through the Sudan. Because of thegenerally Marxist orientation of Eritrean resistance forces,however, Western support gradually decreased until famine inthe region was brought to international attention in 1984(Shepherd 1985; Manning 1985).From 1962 onwards, Eritrean forces waged a protractedstruggle for independence, culminating in their astonishingdefeat of the powerful Ethiopian military in 1992.21 Duringthis epic conflict, Eritrean demands for self-determinationwere consistently ignored by the Organization of African Unity(OAU) and by the United Nations, whose clumsy creation of anEthiopian federation had planted the seeds of the conflict inthe first place (Frey-Wouters 1974, 470). The logisticaldifficulties of links with the outside world promoted a21The Mengistu regime was finally overwhelmed by a combinedassault of regional insurgent forces in May 1992. The militaryleader fled the country on May 21; a week later, Addis Ababawas captured by the joint forces of the Eritrean People'sRevolutionary Democratic Front and the Oromo Liberation Front.After the fall of the regime, these groups disintegrated inface of the general breakdown of law and order throughoutEthiopia (Human Rights Watch 1992). Only in Eritrea did theEPLF remain in control and maintain a semblance of order(Brunold 1992). A referendum on May 24, 1993, showed theoverwhelming majority of Eritreans to be in favour ofindependence, and Africa's newest sovereign state came intobeing shortly thereafter (Prunier 1993, 20). Eritrea becameindependent on May 24, 1993 and was admitted to the U.N. as the183rd member on May 28.72tenacious self-reliance. The Eritrean Liberation Front (ELF),founded in 1960, was the first liberation movement to declareits intention to secede from Ethiopia. It was a mostly Muslim-dominated organization with bases of support in the Sudan andSaudi Arabia; its field of operations was the western lowlandsof Eritrea (Prunier 1993, 20). During the 1970s and early1980s, the movement proved unable to accommodate theaspirations of Eritrea's Christian population, which livedmostly in the highlands of northern and eastern Eritrea. Thelatter formed the Marxist Eritrean People's Liberation Front(EPLF), which eventually assumed predominance among rebelforces.The Eritreans' initial successes in the field werereversed when the Soviets stepped in to support Mengistu'smilitary. But even those opposed to the USSR in theinternational arena had little reason to advance the cause ofEritrean independence:[N]o one seemed to want the Eritreans to win. Neither theAmericans nor the Saudis, who wished to see Mengistu andthe Dergue [the military dictatorship] fall and Ethiopiadrop ripely back into their camp, nor the Russians, whowere supplying military advice and arms. No one wanted anindependent Eritrean republic along that stretch of RedSea shore. (Keneally 1989, 83)A blockade on relief supplies to starving populations andvictims of war had already been implemented in the 1970s in anattempt to suppress the Eritrean resistance. The ICRC wasdenied permission to enter Eritrea. Despite worldwidepublicity accorded the pervasive violence and civiliansuffering in the region, the Ethiopian authorities rejected73outside requests for delivery of aid, claiming that nohumanitarian emergency in fact existed (Forsythe 1977, 170).The prolonged civil war, along with other regionalconflicts and widespread agricultural mismanagement, produced aseries of droughts and, in their wake, the most severestarvation Africa has seen in modern times. The Ethiopianfamine, which actually began in 1982, was brought to theworld's attention only in October 1984, with the airing ofBBC/NBC footage of starvation in the refugee camps scatteredthroughout the northern part of the country (Pezzullo 1989,218). In a matter of days, the news coverage had spawned oneof the largest international relief efforts in history. Mostof the relief flooding into Ethiopia from 1984 onward enteredat the southern coastal ports, actually part of Eritrea butunder the military control of the Addis Ababa regime. In late1984, the U.N. established an office for emergency relief inthe Ethiopian capital. But while the international communitycontributed generous quantities of food and other aid, a moreserious challenge was to distribute it to those in need. Apartfrom the difficulties posed by the country's topography andlack of transportation infrastructure, political obstacleshampered effective distribution of the aid to the Eritreanpopulation (Zeiler 1989, 595; Bazyler 1987, 561). There arenumerous indications that the Ethiopian government sought toachieve by starvation what it could not attain by force ofarms: namely, the weakening of secessionist forces, and thecoercion of civilian populations into abandoning their struggle74for independence and submitting to relocation and agriculturalcollectivization (Korn 1986, 4, 5; Bazyler 1987, 557-558;Ratnaike 1989, 382-383).Several foreign aid organizations had established theirrelief operations in Sudan, either on the Red Sea coast orstraddling the northern and western borders of Eritrea. AsKorn notes (1986, 5):A substantial part of the area hit by the drought was inthe hands of Eritrean ... insurgents. Ethiopiangovernment administration did not reach into these areasand the Ethiopian government had no independent means ofdelivering food there. Estimates of the population ofthese areas ran from 2.5m to 3.5m. There were only twoeffective ways of reaching these people: by trucking foodthrough Ethiopian army lines into rebel-held territory,through a 'food truce' on both sides; or by bringing itinto northern Ethiopia from Sudan. The former could bedone only with Ethiopian government co-operation; thelatter raised no such requirement but was sure to meetstrong Ethiopian objections.Various Western countries, including the U.S., supported cross-border, "back-door" aid programmes through private and semi-private organizations such as the American Catholic ReliefServices and other agencies operating from Sudanese territory(Shepherd 1985, 54; Pezzullo 1989, 220; Human Rights Watch1992, 52). Appeals were made to Ethiopian authorities topermit safer passage to the rebel-held territories, tofacilitate the delivery of aid. But at a meeting with Westerndiplomats in the fall of 1984, Ethiopian Foreign Minister GoshuWolde declared that "food is an element in our strategy" tocombat the insurgents (Korn 1986, 5). Accordingly, theEthiopian government seized numerous aid deliveries destinedfor Eritrea, offering various explanations aimed at soothing75international protests. To take just one example, in 1985 theEthiopian military confiscated the entire cargo of a food-ladenAustralian vessel docked in the port of Assab. Part of theshipment was intended for transport to Port Sudan and thenceoverland into Eritrea and Tigray. Ethiopian officials defendedtheir actions by claiming that such covert aid represented aflagrant violation of the most fundamental principles ofInternational Law, namely [of] non-intervention in theinternal affairs of states and respect for theirterritorial integrity. (Ethiopian Ministry of ForeignAffairs Press Statement, Jan. 16, 1985; cited in Ratnaike1989, 385)A similar requisitioning of transport trucks and food aidby Ethiopian customs officials was reported by the British"Band Aid" charity. The organization had also planned todeliver cargo directly to Eritreans through Port Sudan. But itstopped at Assab en route and was stripped of the aid intendedfor rebel camps along Eritrea's border with Sudan (TheIndependent, November 25 1987; cited in Hancock 1989, 15).Another report of confiscated aid was received from Assab inMay 1986:government troops confiscated 51 tons of medicine,blankets, food, bedding and clothing bound for Eritrea ...Soldiers justified the action on grounds that the goodswere destined for Eritrea, a province of Ethiopia ...Eritrea never saw the confiscated goods ... (in Bazyler1987, 563 n.70).Negotiations continued surrounding aid deliveries, andfinally produced results in June 1985, when donor countries,led by the United States, met with the Ethiopian ForeignMinister in Geneva. In the face of mounting internationalpressure, Addis Ababa agreed to allow freer passage for aid76convoys into Eritrea and Tigray (Pezzullo 1989, 224). In theend, though, of all aid donated through the remainder of 1985,Eritrea received just five percent of total shipments (Ratnaike1989, 396). "Some 90 to 95 percent of all western assistancewent through government-held areas," particularly the ports andairports under Ethiopian control (Bazyler 1987, 561-562; Clay1989, 237; Waal 1992, 395). This meagre quantity of assistanceto Eritrea can be attributed, in part, to the generalunwillingness of donor governments to deal directly with theEPLF or the Eritrean Relief Association (Ratnaike 1989, 396).But this formal respect for Ethiopian sovereignty did little toquell Addis Ababa's harsh allegations of Western support forthe insurgents. Nor did it succeed in halting the regime'spolicy of agricultural collectivization that included theforcible resettlement of thousands of starving civilians(Bazyler 1987, 565-567). The military regime was also accusedof appropriating, for military and resettlement purposes,vehicles marked for transportation of relief aid.22The result of these events was the politicization ofhumanitarian relief--such that international aid organizationswere unwilling participants in the Mengistu regime's efforts toadvance the policy of population resettlement and Maoist-stylecollectivization (Clay 1989, 248-250, 252). Resettlementprograms disturbed the already-fragile state of Ethiopian22 A detailed description of the effects food, hunger,foreign aid, and government policies had on the country and itspopulation under the Mengistu regime can be found in Clay andHolcomb 1986.77agriculture, contributing to the further spread of famine(Zeiler 1989, 594). For the most part, agencies were permittedto distribute food only where the government chose in an effortto speed up the rêgime's resettlement programmes and itsstrategy of weakening Eritreans' and other minorities' claim toterritory (Magistad 1987; Clay 1989, 253-255).It should be acknowledged that the laws of war dorecognize the strategy of blockade as a means of denyingenemies access to military supplies (Mudge in Ratnaike 1989,384). The pertinent question here, though, is whether ablockade on food and medicines intended for starving peopleviolates the terms of treaties to which Ethiopia was asignatory. The Ethiopian government's arguments in this veinproceeded along two main lines. First, it offered the standardclaim that outside interference in the country's internalaffairs was illegitimate. It also regularly accused "thirdparties" of secretly shipping military materiel to theinsurgents. Despite these attempts to sidestep internationalprotests, however, there can be little doubt that theimposition of obstacles to the delivery of aid--for the expresspurpose of causing suffering among "enemy" populations--violated both the Geneva Conventions and the Convention onGenocide, both of which Ethiopia had signed. Under thesetreaties, a High Contracting Party has the right to carry outchecks on the contents of aid shipments. It may also controltransportation and distribution of aid in territories itcontrols, while it is also permitted to stop such shipments if78it finds "that a definitive advantage may accrue to themilitary efforts of the enemy" (1949 Geneva C., Art. 23c).However, the deliberate use of starvation as a policy tool in awar against regionally-based insurgent forces almost certainlyconstitutes genocide (Ratnaike 1989, 389). Common Article 3 ofthe 1949 Geneva Conventions gives at first glance a basis forproviding covert humanitarian relief. Likewise, the obligationof humane treatment of non-combatants, enshrined in the samearticle, seems broad enough to impose a legal duty on HighContracting Parties to allow the free passage of humanitarianaid. But the aid deliveries that were intended or actuallyshipped in "covert" or "clandestine" operations fall outsidethe Geneva Convention's Common Article 3, and of course cannotbe legally defended under the later Protocols either.aThe continuation of the civil war together with dryweather and poor harvests led to more famines in 1988 and 1989.The war again rendered aid delivery from the coast problematic(Pezzullo 1989, 227). "As of April 1988, approximately two anda half million people [were] trapped behind military lines withno access to international relief assistance" (Zeiler 1989,595). By this time, the Ethiopian regime had expelled many aidworkers and international agencies (including the ICRC) andblocked transport of famine relief to Eritrea, claiming thiswas necessary to preserve the unity and territorial integrityWhile Ethiopia is not a member of the Protocols, theMengistu regime's war tactics most certainly are not in linewith the articles that prohibit starvation of civilians andindiscriminate attacks against them or against anyinstallations necessary for their survival.79of the country--and to protect the relief workers.24 Onceagain, starvation was clearly viewed as an instrument to combatdissident forces and re-establish government control over theentire country (Clay 1989, 248; Zeiler 1989; Human Rights Watch1992). Zeiler's appraisal (1989, 589) is emphatic: "Mengistu[was] engaged in a deliberate, genocidal attempt to starve theEritrean people into submission."Iraq and KurdistanThe Kurdish people today number some 20 million, most ofthem in Turkey and Iraq with smaller communities on Iranian andSyrian territory. Their history bears some similarity to thatof Eritreans. While no one doubted the distinctiveness ofKurdish culture, political and economic factors conspired toshare out control over "Kurdistan's" territory among the fourmodern states. Two post-World War I treaties, signed in 1920and 1923 under the auspices of the League of Nations, deniedKurdish nationhood and assigned the largest slice of Kurdishterritory to Iraq.25"On 21 May [1988], Ethiopia ordered the ICRC towithdraw within two weeks 'all the material and food under itscontrol' and threatened to carry out 'alternative measures' ifthis order were not executed ... 'the relief activities inEritrea and Tigray will be implemented once the bandits [i.e.,the EPLF] will have been crushed militarily" (ICJR 1988, number40, 2).25 The Treaty of Sevres on August 10, 1920 urged Turkey toprovide Kurds with the means of "autonomous development," butno provision was made for the implementation of such a policy,and international vigilance quickly lapsed. The Treaty ofLausanne (July 1923) dismissed Kurdish demands for autonomy,and divided what remained of the former Ottoman Empire(including all of Kurdistan) among Turkey, Iraq, Syria, and80After the Second World War, the Middle East emerged fromcolonial control. A central concern of the newly-independentstates was the exploitation of oil deposits on theirterritories. In Iraq, concessions towards Kurdish self-government were blunted by disputes over territorial boundariesand control over oil wells. From the 1960s on, the Kurds haveengaged in violent conflict with a succession of Baghdadregimes (Adelman 1992, 6).In the early 1970s, the Iraqi government forbade both theICRC and the Swedish Red Cross to provide assistance tocivilians in the northern, predominantly Kurdish region of thecountry. Typically, it perceived the Red Cross presence in thenorthern areas as a threat to the regime's control over landand resources. "Despite widespread violence and [the sendingof] supplies of weapons for Kurdish fighters by the UnitedStates and Iran," Iraq sought to limit foreign involvement tothe extent possible. Baghdad "did not admit the existence ofan internal armed conflict," insisting the war was really adomestic campaign against a handful of rebels (Forsythe 1977,170). The greatest violence took place in the post-1970 era,and reached a qualitatively higher level still after the end ofthe first Gulf War. At that time, Kurdish insurgents sufferedfierce persecution, including the indiscriminate use of poisongas against civilians.26 The "violations of human rights whichPersia (Iran).26 It is noteworthy here that Iraq is a party to the 1925Protocol for the Prohibition of the Use in War of Asphyxiating,Poisonous or Other Gases, and of Bacteriological Methods of81have occurred are so grave and are of such a massive naturethat since the Second World War few parallels can be found"(ICJR 48, 1992, 60-61). The atrocities were made known in thewest, but for geopolitical and economic reasons, Iraq wasallowed to conduct its murderous campaign virtually unmolested--so long as it did not spill over into the territory ofneighbouring states.Iraq stepped beyond these bounds with its August 1990invasion of Kuwait, and was duly "punished" by a U.S.-led andU.N.-approved expeditionary force. The Hussein rêgime'signominious defeat in the second Gulf War prompted a wide-scaleuprising of Kurds aimed at toppling the Baghdad government.This was again violently repressed with aerial and artillerybombardments (Adelman 1992, 7). The renewed campaign againstthe Kurds touched off a massive migration of Kurdish civilianstowards the Turkish and Iranian borders in the spring of 1991.Turkey, anxious over the possibility of the influx sparkingrebellion among Kurds in its own eastern territories, appealedfor international help in stopping the exodus. Turkish troopseven crossed into Iraq to force would-be refugees to turn back(Greenwood 1993, 35).There is no doubt that the repression and slaughter ofKurdish civilians was in defiance of Common Article 3 of theGeneva Conventions, as well as other human rights agreement towhich Iraq was a signatory, such as the 1966 United NationsWarfare.82International Covenant on Civil and Political Rights. 27 Theplight of the Kurds attracted significant international mediaattention in the wake of the Gulf War, when Iraqi repressionreached its height. Enormous pressure was brought to bear onU.N. members to provide aid for the refugees. The SecurityCouncil agreed that humanitarian efforts were warranted, thoughit refrained from approving military intervention under ChapterVII (used earlier to legitimize the campaign to free Kuwait).However, allied forces chose to intervene militarily, theirundertaking--dubbed "Operation Provide Comfort"--marked thefirst multi-lateral humanitarian intervention conducted withmilitary assistance and approved by the international communitythrough its representatives at the United Nations.Warning that any military opposition by Iraqi forces wouldbe met with retaliation, allied soldiers established "safehavens" in northern Iraq and in the south of the country (whereanother major rebellion against the regime had broken out)(Hashmi 1993, 57). Legal justification for the humanitarianintervention was found in Security Council Resolution 688,which expressed abhorrence of Baghdad's ill-treatment of Iraqiminority groups (1993, 36). The resolution27 This treaty specified that "Each State Party to thepresent Covenant undertakes to respect and to ensure to allindividuals within its territory and subject to itsjurisdiction the rights recognized in the present Covenant,without distinction of any kind..." (Article 2:1), and that "Inno case may a people be deprived of its own means ofsubsistence" (Article 1:2). Furthermore, the Covenant stressesthat "Every human being has the inherent right to life" andthat no derogation may be made of this and other provisionsthat set out the fundamental rights of all peoples (in Laqueur1990, 217).83Condemns the repression of the Iraqi civilian populationin many parts of Iraq, including most recently in Kurdishpopulated areas, the consequences of which threateninternational peace and security in the region;Demands ... that the human and political rights of allIraqi citizens are respected;Insists that Iraq allow immediate access by internationalhumanitarian organizations to all those in need ofassistance in all parts of Iraq. (Security Council Res.688)Because large numbers of Kurdish refugees had crossed intoTurkey, and because Turkey regarded this as a threat tointernational peace, the intervention could safely be defendedunder the rubric of the U.N. Charter. Allied troops claimedthey were taking effective measures to prevent furtheraggression and to establish peace. These goals were met, butthey had little if anything to do with the Turkish claim ofcross-border transgressions. In fact, the Security Council'sdecision to intervene on the Kurds' behalf marked a strikingdeparture from longstanding conceptions of sovereignty andintervention. Humanitarian intervention without the consent ofthe incumbent régime could now be defended as morallywarranted--at least on those occasions when persecution ofcivilians managed to generate a critical mass of internationalsympathy. And as Iraqj is, like Ethiopia, a party to the GenevaConventions and the Convention on Genocide, and because Iraqtook part in the drafting of the Protocols and expressedsupport for the principles enshrined therein (though it did notactually signm i, t was also possible--indeed, somewhat easier-During the drafting conference, the Iraqis indicatedthat Article 14 (Protection of objects indispensable to thesurvival of the civilian population) was "of great humanitarianvalue, and there was certainly a place for it in Protocol II"84-to invoke the rules of war and those governing protection ofcivilians in the effort to justify covert humanitarian aid.The example of the Kurdish relief operation suggests thatstrategies may be found to deliver desperately-needed aid evenwithout a drastic reformulation of the concepts of sovereigntyand non-intervention. Promoting aid deliveries based onsecurity agreements struck with whichever combatant is willingto sign may ultimately prove more beneficial to thosesuffering. The reverse of this argument, though, is that civilwars will remain as such; regional dissident forces will findit difficult to obtain international (political) recognitionexcept insofar as they work to guarantee foreign aid deliveriesand protect aid personnel in the territory they control. Thismeans the political ambitions of dissidents and their civiliansupporters are likely to be frustrated if the movement provesincapable of seizing full power in the short term. As theKurds discovered, the international community remains willingto offer assistance when calamity strikes; but the politicaldimensions of the insurgents' struggle are likely to be skatedover, and the rebel movement left to its own devices as soon as(Levie 1987, 484). However, with regard to Article 18 (Reliefsocieties and relief actions), the Iraqi delegate followed aline of argument that would be familiar to regimes in Nigeriaand Ethiopia: the issuing of requests for foreign aid by rebelgroups could constitute an infringement of state sovereignty."It would be impossible for a legitimate Government to tolerateany form of acceptance or rejection of relief by a rebelliousparty, since to do so would amount to recognition of thesovereignty of such a group over the areas which it controlled"(Levie 1987, 583). The Iraqi delegation declared itswillingness to reach consensus on Article 18 provided thesovereignty-threatening elements were withdrawn (Levie 1987,597).85the emergency subsides. It is hardly surprising that manyKurds and relief officialsbitterly condemn what they say is Western indifference ...When this operation [Provide Comfort] started, the Westappeared to be giving support to the Kurds to encouragethe refugees in Turkey and Iran to return. We [reliefworkers] came in with the understanding that the West hadmade a commitment to these people, but now we find it wasjust a short-term solution. (Hedges 1993).VII.MULTI -LATERAL HUMANITARIAN AIDThe international community, under U.N. auspices, has nomandate to support the creation of new countries or autonomousregions for groups like the Kurds. The central difficulty hereis that practical obstacles and political interests have lefttheir mark on the Charter, as well as subsequent humanitarianlaw treaties. The sovereign status of states remains theforemost consideration. It is debatable, though, whether thisprimary principle should serve as an excuse to avoid the leastsavoury implications of sovereign statehood, and to promotegreater respect for human rights worldwide. Some, likeHumphrey (1980, 370), feel that primacy should now be accordedto basic rights:It can no longer be argued that violations of human rights'which shock the conscience of mankind' are essentiallywithin [the] domestic jurisdiction [of sovereign states].The difficulty lies rather in the fact that nowhere doesthe Charter authorize the United Nations or any of itsorgans to use force against a State unless there is athreat to the [international] peace, a breach of thepeace, or an act of aggression.In the case of a breach of civil peace, military"[i]nterventionist 'action' by the [U.N.] Organization toredress violations of human rights has not been regarded as86legitimate except in the case of large-scale racialdiscrimination or presumably the threat of genocide" (Schachter174, 408). Without appropriate mechanisms of enforcement,minority groups who aspire to self-determination must strugglerelentlessly to establish control over territory. They canalso generate international attention and concern by crossinginternational borders, and to seek recognition inter alia as adissident force under the terms of the 1977 Protocols, i.e., byobserving the rules of war and respecting fundamental humanrights. An earlier-cited example shows how far some movementsare willing to go: the Biafran leadership was prepared towitness the large-scale starvation of children on its territoryfor the purposes of garnering media attention and arousinginternational compassion.It is undoubtedly difficult for the United Nations (or theICRC) to overcome legal, political, and practical obstacles inmediating among combatants in a civil war for the purpose ofdelivering aid. U.N. peacekeeping forces have tended to besuccessful when they were able to separate combatants andmaintain cease-fires; effective distribution of relief couldthen follow. They have been far less successful, however, inpersuading people to live together rather than fight, or toconstruct federal arrangements that promote trust and mutualaccommodation. But that is now the role the U.N. is beingasked to play in many international conflicts:As a logical extension of peacekeeping and peace-building,the U.N. is invited into country after country as themidwife of political transition... When it is not invited,it sometimes gets its foot into an unwelcoming door87through 'humanitarian' relief. This is what happened innorthern Iraq. (The Economist 1992b, 44).Consider the present situation in northern Iraq. There, theU.N. permitted relief to be sent to the Kurds fleeing SaddamHussein's attacks. While the immediate emergency has subsided,U.S., British, and French forces are still involved in guardinga quasi-safety zone in northern Iraq that is becoming somethingof a U.N. protectorate--a compromise between Kurdish ambitionsfor independence and Iraq's territorial integrity (which fewinternational actors wish to subvert, whatever their distastefor the ruling rêgime).The Security Council's resolution paving the way for thecampaign to expel Iraq from Kuwait points to new possibilitiesfor post-Cold War co-operation among Security Council members.This same co-operation has facilitated aid deliveries tovictimized groups in Iraq, Somalia, and Cambodia. To whatextent, though, do such U.N. activities represent an evolutiontowards protection for people from persecution or genocidewithin their own country? Did U.N. member states cooperate inpursuit of humanitarian principles, or did they merely findcommon ground on which their separate national interests couldbe reconciled? Though doubts remain on this score, they havenot diminished many observers' more optimistic assessment: thatperhaps now the United Nations can become what it wasoriginally intended to be, an organization that works toestablish and maintain peace, promote humanitarian values amongits member states and, by extension, within each of them:88In these past months a conviction has grown ... that anopportunity has been regained to achieve the greatobjectives of the Charter--a United Nations capable ofmaintaining international peace and security, of securingjustice and human rights ... (Boutros-Ghali 1992a, 201).The idea that the U.N. might increasingly use its power tointervene on humanitarian grounds gives hope to those committedto security for all people caught in international or civilconflict. The U.N.'s traditional approach in conflictsituations--bargaining and pleading for cease-fires; placingpeacekeeping forces between the combatants--is no longer theonly strategy available, as recent events in Iraq and Somaliahave demonstrated. The large-scale engagements of U.N.soldiers and affiliated humanitarian organizations (such asUNHCR, WFP, and UNICEF) suggests that the general preferencefor acting with the consent of incumbent regimes may becomplemented by peace-making efforts undertaken in the face ofthe regime's opposition to international involvement.The human suffering associated with military conflictnaturally prompts many concerned observers to take sides.Humanitarian aid, while ostensibly apolitical, nevertheless issubject to be used to advance the political ends of a donor ora combatant. The U.S.'s use of assistance for Contra rebelsand the Biafrans' politicization of foreign aid are vividexamples. But taking sides in a civil war often constitutes athreat to incumbent regimes, while not necessarily promotinggreater protection of civilians. The alternative is anapproach to humanitarian aid and a commitment to its effectivedistribution that challenges but does not threaten state89sovereignty and national security. Instances will no doubtarise where collective military action is required to protectthe fundamental human rights of a given population, such as inSomalia or Iraq. But this does not mean that the incumbentregime in question must be stripped of its sovereign statusentirely (Scheffer 1991, 157). The injunction againstintervention enshrined in the U.N. Charter and various otherresolutions and treaties is "not against the use of coercionper se, but rather [against] the use of force for specifiedunlawful purposes ... A humanitarian intervention seeks neithera territorial change nor a challenge to the politicalindependence of the State involved" (Reisman 1973, 177). Thiswas the conclusion drawn by the International Court of Justicein its deliberations over the Nicaragua-U.S. case, and it is inconformity with Article 2:4 of the U.N. Charter. Theopportunity exists for covert delivery of emergency aid as alegal and realistic means of promoting fundamental humanrights.Collective humanitarian intervention thus acts to modifythe conception of state sovereignty in a limited butprogressive fashion. Sovereignty becomes conditional on howregimes treat their citizens (Weiss 1991, 212-213). For thisre-orientation to prosper, however, international co-operationmust be skilfully organized and efficiently managed. The U.N.remains the best available mechanism for such co-operation(Firmage 1971, 421; Reisman 1973; Gillies 1993). With itsinternational mandate and generally-acknowledged neutrality,90the U.N. is able to apply diplomatic pressure and offerpositive inducements to regimes aimed at the abolition ofinhumane governance and respect for basic human rights.The principal drawback to the U.N.'s operations in thisarea is the fact that "The United Nations, an inter-governmental entity, is necessarily far more attuned to theinterests--political and humanitarian alike--of governmentsthan of groups in armed opposition" (Weiss 1991, 207). Indeed,only a few non-governmental groups and organizations (such asthe Palestinian Liberation Organization, the ICRC, and, priorto Namibian independence, the South-West African People'sOrganization) have obtained formal U.N. recognition. TheU.N.'s best strategy might then be to adopt a neutral stance,stressing that its primary concern is with individual victimsof aggression and their fundamental human rights as enshrinedin treaties and U.N. resolutions and covenants. Theorganization's impartiality could thus be trusted even by non-governmental armed forces and secessionists. Such an approachcould offer some hope of demonstrating that sovereignty andhumanitarianism are not necessarily mutually exclusive. "TheU.N.," Weiss notes (1991, 214), is emerging "as the mostconsistent respecter of ... sovereignty, even while workingquietly behind the scenes to infuse it with a trulyhumanitarian content."The existing treaties--from the Charter to the Protocols--are sufficient to justify multi-lateral humanitarian action(with or without the use of military force) when civilian91suffering has spilled across international boundaries. The ICJdecision on U.S. involvement in Nicaragua, meanwhile, permitsnon-military humanitarian intervention even when the incumbentregime withholds consent. The international community likewisesanctions "interference in the internal affairs of a sovereignstate for humanitarian purposes, including the prevention ofgenocide (the risk of which continues to exist in Kurdistan) orfamine (in Ethiopia and the Sudan) ... we began to see aninteresting evolution away from the time-honoured rule againstsuch interference in the case of Iraq and its treatment of theKurds" (Swing 1991, 177). But no such collective enterprise ispossible if U.N. members find themselves unable to cooperate.A certain harmony of interests and objectives is thus crucial--especially among the permanent members of the Security Council,who have in the past had a tendency to pursue divergentpolitical interests in a given civil conflict.Despite the evolution sketched above, the United Nationshas yet to officially justify intervention on purelyhumanitarian grounds:The reason ... is the apparent challenge that a right ofhumanitarian intervention--supported by military force ifnecessary--presents to the still sacrosanct notion ofsovereignty, [which is] enshrined as the principle ofnoninterference in the domestic affairs of states underArticle 2(7) of the U.N. Charter. (Hashmi 1993:57)Humanitarian interventions have yet to be openlyacknowledged as such by participating states. Perhaps anincreasing number of precedents along the lines of the Somali,ex-Yugoslav, and Iraqi cases will be necessary before thepractice can become an accepted international norm. The U.N.'s92humanitarian activities will no doubt induce a sweeping reviewof state sovereignty's latter-day status as the fundamentalunderpinning of the international political system. But asargued here, state sovereignty itself need not be pushed to thepoint of threatening international security in order formeaningful humanitarian action to take place.VIII.CONCLUSIONActions by third parties to the Nigerian and Ethiopiancivil wars, along with the present quasi-humanitarian securityprovisions in place in northern Iraq, lend support to theproposition that states should be permitted to intervene onhumanitarian grounds when an incumbent government displays anindifference to the fate of its subject population. When aregime actively engages in genocide or some other form ofpersecution of its citizens, other states can justify covert orovert intervention, so long as this is undertaken solely forthe purpose of delivering humanitarian aid in a fair and non-discriminatory manner. When aid delivery to suffering peopleis actively opposed by an incumbent regime or by dissidentforces, then multi-lateral action may be used to pursue covert,possibly military-backed, humanitarian interventions.There can be little doubt that multi-lateral or bi-lateralaid delivery to civilians caught up in civil conflicts willremain the most difficult kind of humanitarian undertaking.Genuine successes have been attained in the past, though, andthere is no reason to expect this positive record cannot be93built on and further expanded. Success is measured in terms ofhuman lives protected, civilians saved from the brink ofstarvation,'and combatants convinced to permit and protect aiddeliveries. Towards these ends, diplomatic efforts to obtainconsent from the parties to a conflict are an essential focus.Without the agreement of at least one of the combatants toprotect relief workers and guarantee aid deliveries, aid cannotreach the victims of war. Even in the worst conflicts, thepossibility may exist to secure the consent and protection ofwarring parties--whether such an agreement is based on narrowtactical considerations (e.g., a mutual interest in a cease-fire), moral compulsion, or political factors (such as theunwillingness of either side to risk alienating internationalpublic opinion) (Cooper 1993, 137).It cannot be denied that the precarious balance ofhumanitarian concerns and military interests, along with thecurrent lack of dependable mechanisms for monitoring andenforcement of corrective actions in the domestic arena, oftenmake it tempting for regimes to violate basic principles ofhumanitarian law. "However, the positive factor ... [thatpromotes an] observance of international humanitarian law, asthe outcome of the interests of the contracting parties, is theenlightened self-interest of those parties, founded on thedesire both for constructive reciprocal treatment and for theavoidance of destructive reciprocity" (Macalister-Smith 1985,33). No legal precedent exists for non-governmental combatantsto request the delivery of outside relief into territories they94control (except inter alia by Protocol 1, Article 96). Butthis does not pose a problem so long as donors themselvesremain willing to seize the initiative. And because the rightof the ICRC and the U.N. to offer humanitarian assistance isnow well-established, even without rêgime consent, it isreasonable to conclude that the means by which aid reachesthose in need--whether those means are legal, diplomatic,political, economic, or even military--is secondary to theoverriding desirability of its delivery.95BIBLIOGRAPHYAbi-Saab, Georges 1988. 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