Complying with international law with troops in Africa

Since the deadly ambush of four U.S. soldiers in Niger, questions have swirled about the extent and nature of US military involvement there. What were U.S. soldiers doing there, and why? Is the United States at war in Niger? And what rules govern U.S. operations there?

At the same time, the Pentagon has been indicating it intends to expand its use of lethal force in Africa. And the New York Times reported Saturday that Trump has signed new rules loosening previous restrictions on the use of drones and commando raids outside war zones. (Already, some 6,000 troops are engaged on the continent.) But under what authority?

Some U.S. senators on Monday said they didn’t know the US military even had troops in Niger, although the U.S. Africa Command, or AFRICOM, says it told the Senate Armed Services Committee in March about its presence there. Still, it’s not clear what the troops who were ambushed were doing there or what role they’re playing.

In response to the slew of questions, AFRICOM put out a statement last Friday explaining:

The U.S. military does not have an active, direct combat mission in Niger. AFRICOM provides training and security assistance to the Nigerien Armed Forces, including support for intelligence, surveillance, and reconnaissance to facilitate their efforts to target violent extremist organizations in the region. This training includes advising and assisting the Nigeriens to increase their organic ability to bring stability and security to their country.

On the same day, Defense Secretary James Mattis reportedly told senators that the U.S. military plans to expand its ability to use lethal force against “suspected terrorists” in Africa. It’s not clear whether that would be done through regular U.S. troops, through Special Forces missions or by air strikes, although NBC reported on Thursday that the administration is pushing forward with a plan to arm the Reaper drones that already fly over Niger.

Whatever the logistics, such expanded use of force would be unlawful unless the United States is actually a party to an armed conflict. Sen. Bob Casey (D-Pa.) told CNN on Monday that he wasn’t aware the U.S. had troops in Niger. And AFRICOM has insisted that the vast majority of its 800 servicemembers are there merely assisting Nigerien Armed Forces. That does not sound like the U.S. military is engaged in an armed conflict in Niger. Outside an armed conflict, U.S. actions must comply with international human rights law, which forbids the use of lethal force unless necessary to respond to an imminent threat to human life. (Within armed conflict, the United States must comply with International Humanitarian Law, or the laws of war, which are more permissive when it comes to lethal targeting, but still aim to protect civilians, and require the U.S. to presume civilian status when it’s not clear.)

Sen. Lindsey Graham (R-S.C.) said last week that Defense Secretary Mattis told the Senate Armed Services Committee that the Pentagon plans to adopt a “status-based targeting” system in the region, which would allow troops to shoot to kill a suspected member of an armed group even if that person does not pose an immediate threat. Outside the battlefield of an active armed conflict, such targeting is unlawful.

At the same time, the U.S. military is insisting this is all authorized under the 2001 Authorization for Use of Military Force, which authorized military action “against those nations, organizations, or persons [the president] determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons.” While there may well be extremist armed groups operating in Mali and across the Sahel region, those are not the same individuals or groups that attacked the United States on Sept. 11, 2001.

There’s nothing wrong with the United States trying to help other countries counter human rights abuses by armed groups and individuals in Africa. But it must do so within the bounds of both U.S. and international law. Loosening limitations on the use of lethal force will only lead to more civilian casualties, more questioning of the wisdom of U.S. strategy, and more claims that the United States is flouting the law. None of which will help counter terrorism.

Eviatar is Security and Human Rights Program Director at Amnesty International USA.