International Law

More Willing, More Able - But No Time Soon

By Ashley Deeks
Sunday, June 1, 2014, 1:00 PM

One new policy proposal contained in the President’s West Point speech from Wednesday was a Counterterrorism Partnerships Fund, which would facilitate counterterrorism training for U.S. partner countries where terrorist groups seek footholds. But as Eric Schmitt at the Times notes, the U.S. government for years has been pursuing the strategy of helping to train up foreign militaries---particularly elite counter-terrorism forces---both so that those forces can better address their own domestic security challenges and so that those forces can help the U.S. Government fight al Qaeda and its associated forces.

For many, including those who are cautious about putting large contingents of U.S. forces on the ground to various troubled states, this idea will seem sound. Yet the announcement comes in the face of a variety of developments that reveal the difficulty in execution. In September 2013, suspected terrorist organizations or militias in Libya reportedly stole sensitive U.S. military equipment stored at a training camp run by U.S. Special Forces to train 100 Libyan counterterrorism forces. Indeed, the rebels/terrorists may even have taken control of the camp, creating a “denied area” for U.S. forces. The United States pulled its Special Forces trainers from Libya as a result.

In Mali, another place where U.S. training already is happening, U.S.-trained commanders of elite army units defected to the Islamist rebels’ side. Malian forces have been implicated in human rights abuses, making it difficult under U.S. law to train those so implicated.

News from Nigeria more recently is not much better. While the United States is not actually training Nigerian forces to help them locate the school girls kidnapped by Boko Haram, the United States (and other states) are attempting to provide surveillance and related assistance to the Nigerian military. Yet a senior official at the Defense Department testified Thursday before the SFRC that Nigeria’s military force “is, quite frankly, becoming afraid to even engage.” The United States also is inhibited in the assistance it can provide because it is concerned about the Nigerian military’s reputation for committing human rights abuses. (Keep in mind, of course, that Nigeria is the fifth largest troop contributing country to U.N. peacekeeping missions. It has participated in 25 of the 51 UN missions that have taken place since 1948 and also has provided forces to AU and ECOWAS regional peace-keeping missions. U.S. concerns about Nigerian forces’ rights abuses and basic competence to conduct military missions makes these statistics somewhat troubling.) All this is not to say that there are many other good options to helping to train up elite foreign forces, but it does indicate some of the severe challenges these programs will continue to face.

Whether these programs fail or succeed has implications in international law. Most notably, the programs effectively represent an effort to render other countries more willing and more able to defeat imminent threats to the United States that may emerge from those states. As most readers will recall, the United States has made clear that it will not use force in another state against a member of al Qaeda who poses an imminent threat of attack where that state is willing and able to suppress the threat. When foreign counterterrorism forces are strong and capable, we will see fewer “unwilling or unable” situations and thus fewer situations in which the United States could determine that it was lawful to breach the sovereignty of another state in order to use force against non-state actors operating therein. Recent events illustrate how hard that goal will be to achieve, and suggest that an easier path in the short to medium term will be for the United States to continue to obtain consent from host states to use force where such threats render that necessary.