Features No 1: Adherence to the Rule of Law in African Militaries - The Judge Advocate General's Legal Center & School
The Army Lawyer
Adherence to the Rule of Law in African Militaries
|Brigadier General Yosef Shalangwe, TJAG, Nigerian Armed Forces, addresses the fifth Africa Military Law Forum with Ms. Sandra Franzblau facilitating, at the International Institute for Humanitarian Law, Sanremo, Italy, 12 September 2019. (Photo courtesy of Sandra Franzblau)|
Nations must create a military its people run to, not run from.1
There is a relationship between a military that abides by the rule of law and governance consistent with democratic values. New democracies most plainly illustrate this relationship. Africa best illustrates this dynamic and offers an incredible opportunity for growth toward stronger governance consistent with democratic values. For this very reason, the U.S. Department of Defense (DoD) recognized early in developing its newest geographic combatant command,2 the U.S. Africa Command (USAFRICOM), that a rule of law division was essential in working with African militaries. United States Africa Command supports good governance and democratic values by promoting military adherence to the rule of law through its Office of Legal Counsel. The Office of Legal Counsel structures security cooperation activities with African militaries using a roadmap with three interrelated lines of effort: soldier accountability; command adherence to the law; and military professionalism.
In 1985, very few of Africa’s fifty-four countries could be categorized as democratic in orientation.3 By 2015, a majority of African nations4 had introduced political reforms which were either democratic or in the process of becoming so.5 While representational government has increased, and Africa’s potential is boundless, peace and security remain elusive and even absent in many sectors of the continent. There are those who use its vast ungoverned space to train extremists, or who exploit underfunded or non-existent security forces to engage in a variety of illicit activities. All have the same result of destabilizing regions and threatening other countries at a significant cost to their citizenry. The result is that countries in Africa often must turn to those outside Africa to confront problems from within.
In the hope of finding the right prescription for achieving peace and security, African countries working alone—and with a variety of international organizations and other countries—have tried multiple strategies with varying degrees of success.6 Identifying the correct methodology for security assistance7 to work with African partners to improve the professionalism and capability of their armed forces is a strategic imperative for the United States and its allies.
There can be no lasting peace if citizens are frightened of their own military. This leads to a well-documented and never-ending cycle of insecurity and conflict. The United Nations has estimated that up to fifty percent of post-conflict societies slip back into violence.8 That statistic speaks to the relationship between the rule of law and the military, and the importance of this roadmap in securing a lasting peace.
A government’s legitimacy to govern is tied directly to its ability to respect the rule of law.9 Logically, a military’s respect for the law is integral to a government’s legitimacy. It has been our experience at USAFRICOM that countries struggling to strengthen their governance often have militaries as their most developed agency.10 Thus, through respect for the law, militaries are essential in modeling good governance.11 Simply stated, peace and security are not attainable for those countries with unaccountable soldiers, rogue commanders, and unprofessional militaries.
The Roadmap: Accountability, Command Adherence to the Law, and Military Professionalism
Good governance is a tall order for any country. The competing interests of governance make this extraordinarily complex and challenging. Although complex, a country can measure its capability to govern; its capacity to do so; and its political will to govern well.12 Capability and capacity will vary among countries, but the most important factor in establishing good governance is a country’s political will to do so.13 Without it, any reform is notional, at best.
If political will exists, improvements are possible through the careful identification as to what capability or capacity gaps exist—and what methods could be used to address those gaps. There are no exclusive pathways to achieving peace and security. Numerous factors play into a country’s ability to establish peace and security—such as geography, natural resources, population, and its unique history. One factor directly in the hands of a country’s leaders, however, is governance. One pathway to good governance is to improve militaries by applying a roadmap which lays a solid foundation to focus efforts in three key areas: soldier14 accountability; command adherence to the law; and overall professionalism in the military ranks.
This is an area of interest for USAFRICOM which was, in part, established to assure that relations with African countries would endure.15 The strategic vision was to work as partners with African countries to improve their security forces capacity with the goal that, eventually, Africa’s strengthened democratic institutions could solve their own challenges.16 A few years after USAFRICOM was operational, President Barack Obama emphasized this point in his address at the University of Cape Town: “Now America has been involved in Africa for decades. But we are moving beyond the simple provision of assistance, foreign aid, to a new model of partnership between America and Africa—a partnership of equals that focuses on your capacity to solve problems, and your capacity to grow.”17 This philosophy is foundational to USAFRICOM’s approach.
The focus on soldier accountability, command adherence to the law, and overall military professionalism provides an analytic framework for working with willing partner militaries to improve gaps in capacity and capability. Resourcing decisions to improve each of those lines of effort can be made more competently by carefully assessing the capability, the capacity, and the political will of individual governments to address shortcomings. This ensures investments and resources are used strategically, precisely, and effectively to improve identified outcomes.
The conceptualization of a roadmap for adhering to the rule of law originated at the Office of Legal Counsel, Legal Engagements Division. This office is dedicated to working with African military partners to improve military operational adherence to the rule of law.18 While all U.S. Combatant Commands have legal offices, no other Command has a division that is solely focused on partner military adherence to the rule of law. The reasons for having a Legal Engagements Division in a Combatant Command focused on African security should be somewhat self-evident. Given the trajectory of democratic change in Africa, and its importance to global security, partner militaries that adhere to the rule of law19—and are professional and accountable—are the militaries USAFRICOM seeks to partner with.20
What is not self-evident is how we get there. Focusing on soldier accountability, command adherence to the law, and overall military professionalism is an effective means to promote overall adherence to rule of law. Historical efforts to do so can be reviewed within this framework, resulting in best practices and a clearer understanding of practical next-level engagements to facilitate improvements.
Before taking specific action, USAFRICOM must first determine which partners have the political will to effect positive change. United States Africa Command first looks to those partner countries who request security force assistance. Fundamental to that request is that the call for positive change originate with the African partner. To gauge which countries desire this, USAFRICOM relies upon the Department of State (DoS), which sets U.S. Government foreign policy to include security assistance priorities. The DoS identifies country priorities through consultation with other U.S. governmental agencies. Those experts understand the particular challenges individual countries face in establishing good governance.21
United States Africa Command also works with the DoS, to include individual U.S. Embassies, and the African partner to develop individual country cooperation plans. These yearly, updated, non-binding agreements describe the type of security assistance, force, and cooperation activities each individual country desires and that the U.S. Government would support in achieving strategic military objectives within the next one to three years.22
These comprehensive processes ensure our activities can achieve both short- and long-term strategic goals. Military expertise, the theater campaign plan, and the input of other U.S. Government agencies result in a robust interagency process that is nested in national security and defense policy.23 These processes yield many benefits, most notably collaboration and de-confliction. It is in this environment that USAFRICOM seeks to enable those countries that desire improvement to their military institutions.
The Roadmap: Accountability
The roadmap to facilitate positive change begins with soldier accountability because it is a foundational principle that the military must serve its people.24 This requires two things: 1) commanders must enforce discipline and 2) the systems of discipline must be fair and resourced. When a soldier engages in misconduct or commits a crime, the credibility of the military is at stake. If there are enough failures in accountability, the very legitimacy of the government can come into question. Thus, the stakes are high. A credible investigative procedure that is consistently employed after allegations of criminality or misconduct, and a resulting fair and transparent prosecution, establishes the overall credibility of the force. For governments that understand what is at stake and respond accordingly, the legitimacy of the military is preserved and even enhanced.
Over the last decade, the Legal Engagements Division has learned about its African partners and their civilian and military legal traditions through participation in activities and meetings. Before making any recommendations when addressing accountability, the Office of Legal Counsel Legal Engagements Division fully understands that Africa is incredibly diverse. Africa is comprised of fifty-four countries, and they each have their own unique legal system. Some countries have legal systems modeled on the Napoleonic Code, while other countries’ legal systems developed along a common law framework. The differences in Africa’s legal systems argue against one-size-fits-all approaches to legal engagements and against efforts to impose American military frameworks onto African landscapes.
In the United States, “military justice” is a term that encompasses a range of disciplinary options: from the most formal of trials for serious crimes—a court-martial—to informal, command-controlled tribunals that balance efficiency and disciplinary prerogatives like non-judicial punishment.25 In America, military commanders retain jurisdiction over U.S. military personnel. In contrast, the term “military justice” in many African countries is more limited to criminal cases investigated and adjudicated by a magistrate.26 Other types of misconduct are handled non-judicially, outside of the magistrate system.27 Those militaries would not consider the term military justice to include military misconduct.28 Further, many countries’ military justice cases are adjudicated in civilian courts within their Ministry of Justice. These arrangements may be for convenience (e.g., there are not enough military offenders per year to justify staffing and resourcing military prosecutors and courts) or for ideological reasons (i.e., military subordination to the citizenry is reinforced and the development of an elite military culture is discouraged by sending all criminal cases involving soldiers to civilian courts).29
Drawing from this base of expertise, Legal Engagements has identified three factors that, regardless of the legal system, are necessary for soldier accountability to its citizens: 1) the commitment of adequate resources to those justice mechanisms (capability); 2) laws that clearly articulate offenses and the mechanisms for their investigation and adjudication (capacity); and 3) the political will at all levels to allow justice to run its course.
First, countries need to have legislation and regulations that ensure soldier—and hence military—accountability. Drafting legislation that creates a comprehensive military justice system, and which amends loopholes in the law that are antithetical to accountability, can be difficult and time-consuming. Reaching the right balance between military control over minor disciplinary infractions, and military and civilian responses to serious criminal misconduct by military members, is certainly difficult.
Second, there must be resources to ensure that soldiers who engage in misconduct or commit crimes are held accountable. There must be properly trained personnel in the systems of accountability who have the correct resources and equipment to do their jobs, whether magistrates, investigators, or court personnel. When the prosecution and adjudication responsibilities are carried out by civilians, military legal advisors play a critical role in the process. Through close relationships with their commanders, military legal advisors become aware of soldier misconduct, make recommendations as to the appropriate level and forum for handling the misconduct, and when a formal criminal process is recommended, liaise with the appropriate military or civilian prosecutors’ offices. All militaries benefit by having astute and well-trained military legal advisors, given their multiple roles in soldier accountability.
Third, there must be political will—both inside and outside of the military—to hold soldiers accountable. The political sensitivities can be fraught when those who possess the nation’s weapons of war are asked to lay them down to submit to civilian or even military review and censure. Where military leadership does not support accountability, an inflexion point is created for civilian leadership: they must risk challenging military authority while seeking to establish a strong and independent justice system. This is where only those with strong political will have a chance at success, and where choosing partners who are willing to put forth the effort is imperative.
Of the three factors required to ensure soldier accountability to its citizens, the greatest challenge is political will. This is because political will is essential to ensuring legislation is comprehensive, and that justice and misconduct systems are properly resourced. While no two countries are alike, political will is the essential predicate. Country prioritization occurs after a comprehensive interagency process that assesses all factors and determines relative political will before allocating U.S. resources.
To identify capacity and capability gaps in accountability, USAFRICOM engages directly with African military legal advisors and magistrates, the experts on their own systems of accountability. The Legal Engagements Division has determined the best opportunity to engage with African military legal advisors and magistrates is the Africa Military Law Forum (AMLF). The AMLF is the only professional forum for military legal professionals in Africa. This forum has the overarching goal of promoting the rule of law through soldier adherence to the law of armed conflict, international human rights law, and relevant domestic laws.30 The Legal Engagements Division hosts the AMLF annually with ever-increasing numbers of African militaries sending delegates; most recently, thirty-five African countries were represented. Most importantly, African delegates have invested in the AMLF by electing their own representative leadership to develop topics of focus, to represent the interests of four geographic areas within Africa, and to network with each other to mentor and discuss best professional practices in advising their militaries through their moderation of chat groups.
Many delegates and current AMLF leadership represent the highest level of legal officer within their own militaries—that is, The Judge Advocate General or the equivalent. It is within this forum that the experts on African military systems of accountability can mentor one another and focus attention on improving military justice capability.
“[The] AMLF gives us a chance, for example today at our round table, to talk about the different legal systems and military justice systems,” said Brigadier General Paul Dikita Ilunga, the Chief of the Legal Service of Land Forces in the Democratic Republic of the Congo.31 “We also talked specifically about challenges to each of our respective countries at the level of the armed forces and the military justice systems in those different countries. This [(the AMLF)] is really very valuable,” said Ilunga.32 He also noted that:
It gives us an opportunity to sit together as legal advisors, to exchange information, to share expertise and best practices. The AMLF really helps us to reinforce our capabilities and to better understand the legal systems and services of our partner nations and other countries . . . being able to learn from one another helps to reinforce our capabilities. This way, we become closer and stronger. It is an extremely interesting opportunity and not only that. We get a better appreciation of the system that is provided by the United States, and we are able to see the different mechanisms that are in the works as far as support of our and neighbouring countries.33
Institutions that support soldier accountability must include the participation of legal professionals. They provide guidance to the criminal investigator or serve as the investigator, prosecute the crime, serve as defense counsel, or adjudicate the crime.
The previously described systems often have a magistrate only, which is essential when an allegation of criminality must be investigated and prosecuted; however, commanders need legal guidance from their own advisors—a job description that is different from that of magistrate. Few African militaries had this capability until recently.34
Legal advisors35 can help the commander with both military justice and the tone of command. Having access to legal expertise allows the commander to ensure command actions are, at a minimum, consistent with the rule of law. While this is crucial in military operations, access to legal advice reinforces accountability because military legal advisors can assist the commander with what is appropriate and acceptable behavior of subordinates. Holding someone accountable is necessary after laws or regulations are broken. Making a military lawyer part of the commander’s team helps inform the commander of what the law or regulations require and, in the process, could help the commander avoid making a decision that is contrary to the law or regulations.
With the counsel of a legal advisor, the commander sets a tone and establishes that prohibited behavior will not be tolerated. This creates deterrence. From the soldier’s perspective, knowing that he or she will be treated fairly creates confidence in the military justice system. This, in turn, promotes good order and discipline within the ranks and lends legitimacy to the institution.
The Legal Engagements Division, working with the International Institute for Humanitarian Law,36 reached out to African military commanders and legal advisors for their assessment of the primary challenges their commanders confront in accessing legal guidance.37 Three areas of concern were identified:
- A dearth of legal advisors within countries after a long period of armed conflict. This resource constraint naturally influences the military’s ability to recruit and staff legal advisors.
- Institutional and structural impediments to command access to legal advisors. This is particularly relevant within magistrates-only militaries, or where legal advisors are only found at the Headquarters.
- Beyond constrained resources, or institutional and structural challenges, there remains a failure to use standard processes when issues of accountability arose. In particular, these African military commanders and military legal advisors identified that justice was neither swift (a slow or absent response) nor sure (an absence of doctrine mandating standard operating procedures for investigations) when allegations of misconduct or criminality arose.38
The Roadmap: Command Adherence to the Law
The roadmap goes beyond individual soldier accountability and moves into command adherence to the rule of law—a commander’s leadership responsibility. Many African military leaders recognize the importance of ethical and accountable militaries that follow the rule of law. During his keynote address, Major General (Dr.) E. Z. Mnisi, the Adjutant General of the South African National Defence Forces, stated, “A Commander’s understanding of legal concepts is imperative to combating our current challenges.”39
The Accountability Colloquium, co-hosted by USAFRICOM and a different African military each year, brings African military commanders and military legal advisors and magistrates together to discuss current challenges in military operations and their adherence to the rule of law.40 This annual event is a means of addressing military capability in adhering to the rule of law in operations. It is the only event that brings African military commanders and their legal advisors together in one venue. Topics discussed at the Colloquium have historically included soldier accountability, the law of armed conflict in peacekeeping operations, preventing gender-based violence in armed conflict, and command adherence to the rule of law.
Bringing African military members together to discuss challenges and potential solutions is the key to improving capability and capacity to adhere to the rule of law, as African military members are the experts at identifying both the problem set and potential solutions. Explaining the importance of African military collaboration, Lieutenant Colonel Joseph Biomdo, Legal Services, Kenya Defense Forces, stated that:
[T]he Accountability Colloquium is a good forum, where parties share ideas on the challenges they face. They look at possible solutions that they’ve had, and they also share ideas on how to go about the different challenges that they identified. Some of the challenges that we face as a nation are almost identical to other countries, and by sharing ideas, you are able to get solutions, or at least ideas, on how to resolve the conflicts.41
Legal advisors are defined by and embrace the following overarching principles: the more complex modern armed conflict becomes, the more nuanced the application of the law; and, a country must entrust its military commanders to properly use and manage the use of force in armed conflicts. Between the complexity of modern conflict, and the potential for incorrect application of state-sanctioned force, stands the military legal advisor as the most capable staff advisor to guide the commander through this complicated terrain.
Military operations for different countries take place in a wide variety of contexts. Armed conflicts within Africa take place between countries; within the country’s own borders; or in discrete joint operations across borders in cooperation with neighboring states, where there is no state-on-state conflict. Since inception, USAFRICOM has discovered that most African military operations are designed to assist law enforcement, whether police or gendarme, with threats that are too great for law enforcement to confront alone, such as terrorism.42
The law that the commander must follow in peacetime, when militaries are assisting law enforcement, is different from the law which applies during international armed conflict.43 Most African military operations are in support of law enforcement. The ultimate goal for those military operations should be to stop the criminal activity and develop a prosecutable case.44 Those military operations should be planned with very different considerations than a military operation that takes place during an international armed conflict.
For all military operations, military commanders must first know what authority they have. When the operation is in support of law enforcement, there should be a whole-of-government process established which identifies the scope of the military’s involvement. This should include their use of force measures and the authority to detain personnel. It should be clear who would investigate and adjudicate the crime, and what the standard procedure is for the transfer of evidence from the site of criminal activity secured during the military operation to the appropriate investigative agency. Procedures should have a goal of building a prosecutable case so that justice will be served.
On the other hand, during armed conflict between countries, the goal is to secure peace by applying military force against valid military targets. At all times, and for all military operations, military lawyers are essential for providing advice. They help commanders understand their legal responsibilities and, in turn, what risks they need to mitigate. This advice could be as varied as the appropriateness of targeting an individual; the use of certain munitions; the scope of a soldier’s right of self-defense; the appropriate application for the rules of engagement; or the appropriate handling of a captured enemy belligerent.
Command access to military lawyers is a legal requirement grounded in Article 82, Additional Protocol I of the Geneva Conventions, which mandates that:
[T]he Parties to the conflict in time of armed conflict, shall ensure that legal advisors are available, when necessary, to advise military commanders at the appropriate level on the application of the Conventions and this Protocol and on the appropriate instructions to be given to the armed forces on this subject.45
Military legal advisors must understand the military and the law. “Would you rather have a lawyer with legal knowledge but no military experience, or an uninformed lawyer with military experience?” asked Brigadier General B. Mkula, South Africa National Defense Force.46 “Because one will get you killed, and one will get you arrested.”47 Access alone to a military legal advisor does not ensure that a commander understands how to incorporate legal guidance into operations. Incorporating legal guidance into an operation requires a relationship between commander and legal advisor, one that builds upon mutual respect and trust. Brigadier General Dan Kuwali, Chief of Legal Services for the Malawi Defense Forces, explained48:
[T]he relationship between military commanders and legal advisors: military commanders are supposed to lead their troops in the barracks as well as on the battlefields. Whereas legal advisors are supposed to guide commanders on making informed decisions so that combat operations are in accordance with the law. The commander wants to accomplish the mission efficiently. He needs to understand legal advice. In so doing they can professionally and efficiently achieve their mission.49
The Roadmap: Military Professionalism
The third line of effort on the roadmap is to improve overall military professionalism within the ranks. In even the most difficult situations, institutional structures that ensure soldier accountability and command adherence to the rule of law will fail if the military members are not professionals.50 There must be an understanding within the ranks that there are legal, moral, and ethical restrictions on the military. Accepting those restrictions is the building block of professionalism.
Professionalism starts with trust;51 within the ranks, this means the trust among fellow soldiers and in their commander. Second is the trust soldiers hold between themselves and the citizenry they serve, thereby making soldiers public servants. Citizen trust of the military must be the core of the military’s legitimacy. Establishing this trust requires a dedication to career-long training. This transforms a soldier from a civilian to a member of the profession of arms.
What is essential and most challenging to the profession of arms is a sense of shared ethos. A lack of ethos within the military manifests itself in a variety of self-defeating behaviors: promotions that are not meritorious; insufficient basic resourcing; blatant corruption; and an absence of the concept that military members are public servants with the unique attribute that they may lawfully use lethal force on behalf of the State.
“The challenges of professionalizing Africa’s militaries are innumerable but not insurmountable.”52 This is the thesis of Dr. Emile Ouédraogo’s53 article, Advancing Military Professionalism in Africa. Dr. Ouédraogo summarizes the challenges of inculcating a professional ethos in many African militaries:
A majority of African states have duly adopted these democratic values and basic principles of military professionalism in their various constitutions and military doctrines. They are shared and accepted by the majority of African countries that have transitioned or are in the process of transitioning to a democracy. Moreover, many military leaders have been exposed to these values and principles through trainings in Western military academies and staff colleges. It is important, too, to note that these values are rooted in African culture. Protection of the kingdom, submission to the king, loyalty, and integrity vis-à-vis the community were core values of African ancestral warriors. It was only during the colonial and neo-colonial eras that this civil military relationship foundered and these values eroded. The newly created African states set up armies to symbolize their nations’ independence, but these militaries essentially provided security just to the new regimes. Since then, we have witnessed an ongoing struggle to recapture the historical values of military professionalism.54
Professionalization is incrementally developed throughout a military career. Starting at the tactical level, a soldier is inducted into the military. Tactical training includes the basics of how to shoot a weapon, build a fighting position, and evade an enemy. Because the soldier is being entrusted to use force on behalf of the state, this training must include the law of armed conflict and international human rights law concepts. This should be provided to soldiers using vignettes.55 These real-world problem sets help the soldier understand the rationale behind why they should respond a certain way in any operation, to include best practices and what is forbidden.
Military leadership must provide strategic training and military doctrine56 to develop competency and instill in a soldier a sense of responsibility to the country served, unity, and pride to be a soldier. Tactical training instructs soldiers on how to conduct themselves when engaging in operations. The training on doctrine is based on the rules imposed by the State. Finally, the training must culminate in military exercises that are built around real-world operations to build a ready, capable, and professional fighting force able to succeed on real battlefields.
These foundational requirements must be part of the military’s doctrine, institutionalized from the highest level to the newly inducted private. This must become part of a military’s culture. Without it, the military is nothing more than a cadre of individuals with lethality. Some militaries shun this type of training or provide it to their senior ranks but not their enlisted soldiers; however, there are more foot soldiers than generals, and training to be a member of the profession of arms is at least as important for the private as it is for a general.
Some militaries in Africa were formed from former militias whose allegiance is not to the nation as a whole.57 For a military to attain a high level of professionalism, every soldier must be inculcated with the notion that they are part of the profession of arms on behalf of the country. Training and education must emphasize that soldiers serve a unique role: on behalf of the state, they are given the unique authority to use force, and on occasion, lethal force. This license to use force, however, comes with heavy responsibilities. Training and military doctrine should expose soldiers to what it means to be part of the profession of arms.
The best way that USAFRICOM models this professionalism is through joint exercises with our African partners. United States Africa Command sponsors nine multinational military exercises on the African continent, and is the largest military exercise sponsor there. The exercises train U.S. Forces while also promoting interoperability with African partner militaries and maritime elements.58 Each exercise concludes with an assessment of each participating military’s skills and their ability to operate consistent with applicable law. The exercises are executed by USAFRICOM’s components: U.S. Army Africa, Naval Forces Africa, and Special Operations Command Africa.59
Since 2016, USAFRICOM’s military exercises have included rule of law objectives. Prior to 2015, no African military legal advisors would normally attend any of USAFRICOM’s exercises. Since 2016, almost all exercises have at least one, and often several, partner military legal advisors in attendance—a change brought about by assigning one member of the Legal Engagements Division to support the joint exercise program and develop rule of law objectives.
The rule of law objectives require that an African military or maritime legal advisor attend the exercise and be incorporated into the trained audience. They serve in a command legal advisor capacity in the operations center or headquarters element. Prior to the commencement of the exercise, and within the operations center or headquarters, the African military or maritime legal advisor provides the legal framework applicable to the exercise to their fellow staff officers and commander. They are incorporated into the operations or headquarters staff during the exercise. A U.S. judge advocate (JA) is also assigned to the exercise. They assist their African military legal counterpart in integrating into the staffing process and mentor them as they serve as a command legal advisor. They also work collaboratively on the numerous legal problem sets faced by the exercised command.
The final rule of law objective is for the U.S. JA to 1) assess African partner units on their adherence to applicable law in the trained operations; 2) evaluate their African colleagues’ ability to identify legal issues and provide accurate guidance; and 3) gauge the staff and commander’s ability to incorporate legal guidance into their decisions. These short assessments are provided to the Legal Engagements Division, the command’s exercise branch, and the U.S. Embassy country teams to facilitate future dialogue with partner militaries on addressing legal capability and capacity gaps.
For context, it is helpful to review the multinational military exercise, Shared Accord 2019, which took place in and around the Rwanda Defense Force Gabiro Training Center in Rwanda from 14-18 August 2019. The exercise is modeled after the United Nations Multidimensional Integrated Stabilization Mission in the Central African Republic—also known as MINUSCA. Peace operations-based exercises are critical because African countries are the largest troop-contributing force providers for peacekeeping operations, and the African continent has the most peacekeeping missions globally.60 Therefore, peace operations-based exercises like Shared Accord provide a valuable opportunity to exercise the interoperability of both U.S. and African militaries.
Approximately 1,000 military members from 26 countries, including the United States, participated in Shared Accord 2019. “It was very interesting to work with the U.S., Rwandan, and Moroccan legal advisors,” Captain Baboucarr Sanneh said.61 “It builds experience. We’re able to learn from one another and it prepares us for future engagements.”62 Lieutenant Methode Ndizeye, the Legal Staff Officer for the Rwandan Defense Forces Headquarters said, “Incorporating legal advisors into the mission-analysis aspect of the exercise was having real-world benefits . . . I have seen improvement for legal advisors within the African militaries as the militaries develop.” 63
There are numerous training and engagement opportunities by USAFRICOM that help African soldiers better understand their profession of arms. Training and engagements focused on the soldier’s expertise in the use of force, sense of responsibility to the country’s citizenry through following the rule of law, and sense of soldierly unity, are essential to professionalism.
In March 2020, U.S. Ambassador R. Clarke Cooper64 spoke in Nouakchott, Mauritania, at the conclusion of “Flintlock,” the largest special operations exercise on the continent. He acknowledged the incredible importance of military exercises in working toward the rule of law.65 With more than 1,600 service members from thirty African and Western nations attending, as well as U.S. Special Operations soldiers, Ambassador Cooper made the following remarks:
Today our forces are engaged in the defeat of violent extremism from the shores of the Red Sea to the coast of the Atlantic; together, we are combating piracy and countering illicit trafficking from the Mediterranean Sea to the Gulf of Guinea; across the Sahel, we are cementing security, and pursuing peace. . . . The United States has an unwavering and longstanding commitment to Africa. We support good governance, security, the rule of law, opportunities for economic growth, and anti-corruption efforts.66
A nation whose soldiers are accountable, whose commanders adhere to the rule of law, and who has a professional military, promotes security and peace. Following this roadmap can more effectively help willing partner nations build militaries that garner the trust and confidence of their citizens. If the past thirty years’ trajectory of increasing truly representational governance continues, the future could see hard-won gains. Those gains, however, will only be possible with soldiers who are accountable, whose commanders follow the law through reliance on their legal advisors, and whose ranks exemplify a profession of arms. Along the way, USAFRICOM will be there to help, assist, and mentor those countries who desire such a military—a military grounded in the rule of law. TAL
The authors would like to thank the Office of Legal Counsel attorneys for their edits and recommendations. The authors would like to dedicate this article to their friend and colleague, Colonel André Retief for his sage and unvarnished perspective, keen intellect, and relentless pursuit of educating commanders and legal advisors on the law of armed conflict. He will be missed.
1. This concept is attributed to Ambassador Alexander M. Laskaris, LinkedIn, http://www.linkedin.com/in/laskaris-alexander-4103b35 (last visited Dec. 15, 2020). Ambassador Laskaris is also the Deputy to the Commander for Civil-Military Engagement at USAFRICOM. See Press Briefing with U.S. Africa Command Senior Leaders: Special Briefing via Telephone, U.S. Dep’t of State (May 30, 2019), https://2017-2021.state.gov/press-briefing-with-u-s-africa-command-senior-leaders/index.html.
2. Within the U.S. Government, geographic combatant commands serve as a single focal point for security cooperation activities and operations in any one area. See Joint Chiefs of Staff, Joint Pub. 1, Doctrine for the Armed Forces of the United States (25 Mar. 2013) (C1, 12 July 2017).
3. Max Roser, Democracy, Our World in Data, Univ. Oxford Eds. & Global Change Data Lab Pub., https://ourworldindata.org/democracy (June 2019).
4. The use of nation, country, and state are interchangeable in this article, even though the authors recognize that there is a legal distinction.
5. Roser, supra note 3.
6. African countries work alone, and with other organizations on a wide variety of security force assistance initiatives. For example, they work with the African Union, regional organizations such as the Economic Community of Western African States (known as ECOWAS), the European Union, the United Nations, and individual countries bilaterally, to include the United States. For a contextual summary of the complex security force landscape in Africa, see Jahara Matisek, International Competition to Provide Security Force Assistance in Africa: Civil-Military Relations Matter, Off. Deputy Assistant Sec’y Army for Def. Exports & Cooperation (Oct. 21, 2020), https://www.dasadec.army.mil/News/Article-Display/Article/2390283/international-competition-to-provide-security-force-assistance-in-africa-civil/.
7. Security assistance, security force assistance, and security cooperation are terms of art which are inter-related. Security assistance is a broad term used to encompass programs authorized by the Foreign Assistance Act and Arms Export Control Act, in which the United States provides defense articles, military training, and other services: those authorities reside with the Department of State. Security Force Assistance are Department of Defense (DoD) activities that contribute to unified action by the United States Government to support the development of the capacity and capability of foreign security forces and their supporting institutions. Finally, security cooperation activities are undertaken by the DoD to encourage and enable international partners to work with the United States to achieve strategic objectives. This includes all DoD interactions with foreign defense and security establishments that build defense and security relationships, develop allied and friendly military capabilities, or provide service members with peacetime and contingency access to host nations. See U.S. Dep’t of Def., Instr. 5000.68, Security Force Assistance (SFA) (27 Oct. 2010).
8. See Graciana del Castillo, Building Peace and Stability Through Economic Reconstruction, U.N. Inst. for Disarmament Rsch., https://unidir.org/files/publications/pdfs/building-peace-and-stability-through-economic-reconstruction-en-417.pdf (last visited Nov. 2, 2020).
9. It is interesting to note the importance of this core truth, illustrated by the rogue acts of certain nations pretending to follow the rule of law in attempts to appear legitimate. For example, Russian-aligned forces did not wear their military uniforms in the Ukraine occupation and annexation, in contravention of the law of war. See Sam Sokol, Russian Disinformation Distorted Reality in Ukraine. Americans Should Take Note, Foreign Pol’y (Aug. 2, 2019, 4:40 PM), https://foreignpolicy.com/2019/08/02/russian-disinformation-distorted-reality-in-ukraine-americans-should-take-note-putin-mueller-elections-antisemitism/. China insisted on building artificial islands in the South China Sea, destroying its rich coral beds for construction, and then claimed exclusive economic zone rights under the Law of Sea. These positions were rejected in the Hague’s Permanent Court of Arbitration. See Press Release, Permanent Court of Arbitration, The South China Sea Arbitration (The Republic of the Philippines v. The People’s Republic of China) (July 12, 2016), https://pcacases.com/web/sendAttach/1801.
10. This point was previously explored in The Public Lawyer. Jeremy Greenwood et al., Rule of Law Development at the U.S. Africa Command: Moving from the Rule of Personality to the Rule of Law, Pub. Law. 1, 2 (2015).
11. See id.
12. “Strategies and tactics must be fashioned that create a match—not a mismatch—between aims and the means available for acting on those aims.” Dennis Ross, Statecraft and How to Restore America’s Standing in the World 22 (2007). In other words, every state will have different ways and means to accomplish their desired end state. Id.
13. Political will is an oft discussed precursor to a government’s ability to address a perceived problem. It is frequently invoked as a baseline requirement for change, while simultaneously remaining difficult to ascertain and for some, to even define. A most excellent treatment of the concept can be found online. See Lori Ann Post et al., Defining Political Will, 38 Pol. & Pol’y 653 (2010).
14. We use the term soldier, but the concept of accountability embraces all uniformed service members, whether Navy, Marine, Air Force, Coast Guard, or for some African militaries, Gendarmerie.
15. Jeff Schogol, AFRICOM Shaping Up as Model of Support, Stars & Stripes (Mar. 27, 2007), https://www.stripes.com/news/U.S. Africa Command-shaping-up-as-model-of-support-1.62055.
17. J. Peter Pham, President Obama’s Legacy in Africa is A State of Mind, Newsweek (Aug. 28, 2016, 2:10 AM), https://www.newsweek.com/president-obamas-legacy-africa-state-mind-493774.
18. The Office of Legal Counsel Legal Engagements Division is currently comprised of a U.S. Coast Guard Judge Advocate General (JAG) Division Chief, a civilian attorney serving as its Deputy, a Department of Justice attorney from the Overseas Prosecutorial Development Assistance and Training Program, and a U.S. Army Judge Advocate. The Legal Engagements Division supplements its staff with Reserve and National Guard JAs and paralegals when possible.
19. Congress has included mandatory rule of law considerations built into security cooperation authorizations. They can be more effectively addressed with a legal engagements division focused on partner military ability to adhere to the rule of law. Examples include human rights vetting requirements found within a series of laws widely known by the name of the Senator who sponsored them, the Leahy laws, which apply to both the Department of State and the Defense of Defense. There are also congressionally-mandated human rights training requirements for other authorizations, addressed later in this article under professionalism. See Training with Friendly Foreign Countries: Payment of Training and Exercise Expenses, 10 U.S.C. § 321 (2016); Prohibition on Use of Funds for Assistance to Units of Foreign Security Forces That Have Committed a Gross Violation of Human Rights, 10 U.S.C. § 362.
20. Partner forces abiding by the rule of law enable U.S. Forces to work by, with, and through them. The “by, with and through” doctrine originated in U.S. Central Command, but has applicability globally and is used by USAFRICOM. Stated conversely, partner militaries which fail to abide by the rule of law constrain U.S. Force ability to work by, with, and through them. For more on the formation of this doctrine, see Joseph L.Votel & Eero R. Keravuori, The By-With-Through Operational Approach, 89 Joint Force Q. 40 (2018).
21. It should be noted that the primary U.S. Government agency responsible for international development, to include addressing issues of good governance, is the U.S. Agency for International Development (USAID). Further, USAID is prohibited from working with foreign militaries. Thus, the Department of State (DoS) and the DoD work with militaries is complementary to USAID programs. The United States Agency for International Development works to support the rule of law by promoting legal and regulatory frameworks that improve order and security, legitimacy, checks and balances, and equal application and enforcement of the law. The United States Agency for International Development rule of law programs focus on three goals of increasing democratic legal authority; guaranteeing rights and the democratic process; and providing justice as a service. See Mission, Vision and Values, USAID, https://www.usaid.gov/who-we-are/mission-vision-values (Feb. 16, 2018).
22. See Joint Chiefs of Staff, Joint Pub. 3-20, Department of Defense Security Cooperation ch. 3 (23 May 2017).
23. Ensuring security force assistance and cooperation activities are consistent with National Security and Defense polices. The interagency process used by USAFRICOM includes: the DoS, USAID, the Department of Justice Overseas Prosecutorial Development Assistance and Training Program, the Federal Bureau of Investigation, the Department of Homeland Security, the Department of the Treasury, and many others. This interagency process resides at USAFRICOM through the inclusion of representatives of these agencies within the command. United States Africa Command also works with NATO allies and other foreign partners who provide liaison officers within the command, who often have their own bilateral security force assistance projects in Africa, to obtain a comprehensive perspective of the international security assistance landscape impacting individual African countries.
24. It is broader than that found within DoD Dictionary of Military and Associated Terms. See Off. of the Chairman of the Joint Chiefs of Staff, Department of Defense Dictionary of Military and Associated Terms (Dec. 2020).
25. UCMJ art. 15 (2016); UCMJ art. 18 (2016).
26. Since inception, all legal engagements with partner militaries generate an after action report or assessment. Over time, this information has enabled Legal Engagements to learn the differences and nuances of individual military institutions. As both Africa military institutions change and understanding their systems takes time and resources, this work is ongoing. Those reports are on file with the Office of Legal Counsel.
30. Captain Franziska Hesse, AFRICOM Hosts Annual Africa Military Law Forum, U.S. Afr. Command (Mar. 13, 2018), https://www.africom.mil/Story/30485/africom-hosts-annual-africa-military-law-forum.
34. For example, Rwanda went from a magistrates-only system to one which includes command legal advisors. See 39 Rwanda Ministry of Defense Official Gazette No. 39 Summary, Article 49, at 31 (24 Sept. 2012). Cameroon is reviewing similar changes.
35. Conceptually, there are two broad classes of military legal advisors: those who focus on military operational law and command guidance, and those who focus on military justice. While the aspirational goal is to develop an effective blend of the two, that may be a reach for many developing militaries. Although there are some African militaries that have military legal advisors who can provide full spectrum guidance for its commanders, most militaries are still developing this capacity; however, what is critical is that most of USAFRICOM’s African partners recognize the need for legal advisors who know both the law and the military.
36. The International Institute for Humanitarian Law is a non-governmental organization with staff and leadership from the International Criminal Law Tribunal, U.S. Army and NATO allied legal advisors, and other experts in humanitarian law. The Institute’s mission is to train professionals in international humanitarian law, refugee law and migration law, and disseminates developments in international humanitarian law through publishing, conducting research, and holding workshops and conferences. This includes promulgation of the Sanremo Handbook on Rules of Engagement. See The Foundation, Int’l Inst. for Humanitarian L., http://iihl.org/the-foundation/ (last visited Nov. 5, 2020).
37. While working with the International Institute for Humanitarian Law, the Legal Engagements Division hosted a military-to-military event in 2015 on the issue of command access to legal advice. Participating African military commanders and their legal advisors participated in a table-top exercise called Brave Resolve, identifying their military’s primary challenge to accessing legal advice. The resulting report was provided to participants for validation, is unpublished, and remains on file at the Office of Legal Counsel, Legal Engagements Division.
39. The keynote address took place at the Accountability Colloquium VII in Pretoria, South Africa from 3 to 5 March 2020. See Sandra Franzblau, Legal Colloquium Strengthens Relationships Between African Commanders and Legal Advisors, U.S. Afr. Command (Apr. 21, 2020), https://www.africom.mil/article/32710/legal-colloquium-strengthens-relationships-be.
40. Office of Legal Counsel Engagements use the term “African military legal advisors” for magistrates and, depending on the military, any professional that the military uses to obtain legal guidance.
41. Specialist Apolonia Gaspar, AFRICOM Hosts Accountability Colloquium, U.S. Afr. Command (Mar. 6, 2019), https://www.africom.mil/article/31599/africom-hosts-accountability-colloquium.
42. See generally Cornelius Friesendorf, International Intervention and the Use of Force: Military and Police Roles, Geneva Ctr. for the Democratic Control of Armed Forces (2012), https://www.peacepalacelibrary.nl/ebooks/files/383260469.pdf. Professor Friesendorf’s article is an excellent model of when police forces lack the capacity to handle a national security crisis and must turn to the military; however, he outlines pitfalls of the military overreaching and potential human rights considerations. There are also a wide variety of professional organizations who have made the same observations. For example, “Today, in many contemporary armed conflict situations, armed forces are increasingly expected to conduct not only combat operations against the adversary but also law enforcement operations in order to maintain or restore public security, law and order.” Gloria Gaggioli, Legal Advisor, Int’l Comm. of the Red Cross, The Use of Force in Armed Conflicts: Interplay Between the Conduct of Hostilities and Law Enforcement Paradigms (2020), https://www.icrc.org/en/doc/assets/files/publications/icrc-002-4171.pdf.
43. This article is not a law of war treatise. But see U.S. Dep’t of Def., DoD Law of War Manual (12 June 2015) (C2, 13 Dec. 2016).
44. The Posse Comitatus Act prohibits the U.S. Army and Air Force from assisting law enforcement within the United States, with the DoD restricting the Navy and Marines through regulation. See Use of Army and Air Force as Posse Comitatus, 18 U.S.C. § 1385; U.S. Dep’t of Def., Instr. 3025.21, Defense Support of Civilian Law Enforcement Agencies (27 Feb. 2013) (C1, 8 Feb. 2019). Not including the U.S. Coast Guard, which operates as both a law enforcement agency and a member of the U.S. Armed Forces, the only exception to the deployment of the regular military on U.S. soil is found in the Insurrection Act, which authorizes the President to deploy the regular U.S. military in cases of insurrection and rebellion. See Use of Militia and Armed Forces to Enforce Federal Authority, 10 U.S.C. § 252. This is in stark contrast to partner militaries in Africa, which regularly assist law enforcement within their own borders in a wide variety of endeavors to include border patrol, wildlife protection, anti-trafficking, and counter-terrorism.
45. Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (Protocol I) art. 82, June 8, 1977, 1125 U.N.T.S. 3.
46. See Franzblau, supra note 39. The quotes and notes from the Colloquium were taken by Captain Kelly A. Borders, USAF, Office of the Command Judge Advocate, Combined Joint Task Force, Horn of Africa, and are on file at the Office of the Legal Counsel.
48. The remarks from the Accountability Colloquium VI, held on February 26-28, 2019, were released online through the Defense Media Activity Europe Africa. See Interview by Sergeant Edward Salcedo, U.S. Army, with Brigadier Gen. Dan Kuwali, Chief of Legal Servs., Malawi Def. Force, in Lilongwe, Malawi, Accountability Colloquium VI, Def. Vis. Info. Distrib. Serv. (Feb. 28, 2019), https://www.dvidshub.net/video/664164/accountability-colloquium-vi.
50. The history of African militaries is the subject of treatises, not this article. However, it must be acknowledged that following many African Union member states’ independence, too many militaries seized political power, ruled dictatorially, and corrupted their armies with catastrophic victimization of their citizenry. As those countries move toward a democratic orientation, their governments and militaries redefine who they are. They do not need to look far in finding historical precedence of honor within their armies. Before colonialism, soldiers often fought honorably. “These armed men—and sometimes women—fought for territorial expansion, tribute, and slaves; they also defended their families, kinsmen, and their societies at large with their cherished ways of life. And when they fought, they typically did so with honor, sparing the elderly, women, and children.” Robert B. Edgerton, Africa’s Armies: From Honor to Infamy, A History from 1791 to the Present (2002) (emphasis added).
51. See Colonel Charles D. Allen & Colonel William G. Braun III, Trust: Implication for the Army Profession, Mil. Rev., Sept.-Oct. 2013, at 73.
53. Dr. Émile Ouédraogo earned a PhD with honors from the Center for Diplomatic and Strategic Studies in Paris, France, on security sector reform and governance in the ECOWAS Region and has an extensive resume. He is an adjunct professor at the Africa Center for Strategic Studies; a member of the African Security Sector Network; the founding President of the Fondation pour la Sécurité du Citoyen of Burkina Faso; and a retired Colonel with the Burkina Faso Army. He served with the African Union as a security sector reform and governance expert for Madagascar and, from 2008 to 2011, he was a Minister of Security of Burkina Faso. As a Parliamentarian in the National Assembly of Burkina Faso and the ECOWAS Parliament, he sat on the Political Affairs, Peace, Defense, and Security Committees.
54. Emile Ouédraogo, Advancing Military Professionalism in Africa, Afr. Ctr. for Strategic Stud. (July 31, 2014), https://africacenter.org/wp-content/uploads/2016/06/ARP06EN-Advancing-Military-Professionalism-in-Africa.pdf.
55. Foreign Security Sources: Authority to Build Capacity, 10 U.S.C. § 333. For certain types of security cooperation and assistance, such as at 10 U.S.C. § 333, Congress requires that the United States also train the partner force on human rights law, as well as other professional trainings. Id. Those authorizations are executed by the DoD lead for global legal engagement and capacity building, the Defense Institute for International Legal Studies (DIILS). All DIILS activities are planned, coordinated, and conducted in support of geographic combatant commands such as USAFRICOM. The Office of the Legal Counsel routinely supports the DIILS programs in Africa by providing adjunct training staff and coordinating with DIILs on rule-of-law-related events. See Nancy Parvin, DIILS Charter, Def. Inst. Int’l Legal Studs. (Jan. 10, 2017), https://globalnetplatform.org/diils/diils-charter.
56. Military doctrine is the fundamental set of principles that guides military forces as they pursue national security objectives. The Rand Corporation gives an insightful understanding into the matter. See generally Military Doctrine, RAND Corp., https://www.rand.org/topics/military-doctrine.html (last visited Nov. 5, 2020).
57. Ending civil war and conflict through the inclusion of former militias or at least militia members into the nations’ armed forces is not unusual, but it has significant challenges. Vanda Felbab-Brown gives an instructive understanding of the problem set using Somalia as its subject. See Vanda Felbab-Brown, Report: The Problem with Militias in Somalia: Almost Everyone Wants Them Despite Their Dangers, Brookings (Apr. 14, 2020), https://www.brookings.edu/research/the-problem-with-militias-in-somalia-almost-everyone-wants-them-despite-their-dangers/.
58. Training with Friendly Foreign Countries: Payment of Training and Exercise Expenses, 10 U.S.C. § 321.Congress authorizes funding for joint international military exercises through 10 U.S.C. § 321. This authority also requires rule-of-law-related objectives be considered: “Elements of training.—Any training conducted pursuant to paragraph (1) shall, to the maximum extent practicable, include elements that promote— (A) observance of and respect for human rights and fundamental freedoms; and (B) respect for legitimate civilian authority within the foreign country concerned.” Id. § 321(a)(4).
59. U.S. Africa Command’s components are U.S. Army Africa, U.S. Naval Forces Africa, U.S. Marine Forces Africa, U.S. Air Forces Africa, and U.S. Special Operations Command-Africa.
60. As of 21 March 2020, Ethiopia is the largest troop-contributing country to peacekeeping operations in the world. Of the top twenty contributors, twelve are African nations during the same time period. Troop and Police Contributors, U.N. Peacekeeping, https://peacekeeping.un.org/en/troop-and-police-contributors (last visited Nov. 5, 2020).
61. Captain Baboucarr Sanneh, legal staff officer from the Gambia Armed Forces Headquarters, was one of three African partner nation military legal advisors who participated in the multinational military exercise Shared Accord 2019, executed by U.S. Army Africa. See Off. of Legal Counsel, U.S. Afr. Command, Shared Accord 19 Emphasis, Rule of Law, U.S. Afr. Command (Nov. 1, 2019), https://www.africom.mil/article/32204/shared-accord-19-emphasis-rule-of-law.
64. Ambassador Cooper is the Assistant Secretary of State for Political-Military Affairs.
65. R. Clarke Cooper, Assistant Sec’y, Bureau of Political Affs., U.S. Dep’t of State, Remarks to Multinational Forces and VIPs Upon Conclusion of Flintlock 2020 (Feb. 28, 2020), https://2017-2021.state.gov/remarks-to-multinational-forces-and-vips-upon-conclusion-of-flintlock-2020/index.html; Jim Garamone, Africom’s Exercise Flintlock 2020 Strengthens Partnerships, U.S. Dep’t of Def. (Mar. 3, 2020), https://www.defense.gov/Explore/News/Article/Article/2100743/africoms-exercise-flintlock-2020-strengthens-partnerships-security/#:~:text=17%2C%202020.,annual%20special%20operations%20forces%20exercise.
66. Cooper, supra note 65; Garamone, supra note 65.