Early reports suggests that the United States may have placed some restrictions on the use of the newly acquired A-29 Super Tucano light attack and trainer aircraft for the Nigerian Air Force (NAF).
According to an October 19 report by the Punch Newspaper, a Nigerian dailies, “the Armed Forces told the National Assembly, through its committees, that the agreement signed with the Government of the United States was that the A-29 Super Tucano fighter jets procured from the country would be deployed against terrorists and insurgents, and not bandits.”
The Punch reported that for the A-29 Super Tucanos to be allowed to fight bandits and other criminals, they’ll need to be designated as terrorists, – a move that is currently being demanded by the service chiefs to the Senate and the House of Representatives.
The A-29 Super Tucano
The EMB 314 Super Tucano, (export name A-29), is a turboprop light attack aircraft designed and built by Brazil’s Embraer as a low-intensity combat aircraft designed to be a low-cost system capable of a variety of missions including ground strikes, aerial interdiction, intelligence, surveillance and reconnaissance (ISR) roles, as well as limited air defense duties (against helicopters and light turboprop aircraft).
In November 2018, SNC was awarded a $329 million Foreign Military Sales contract from the US government to build 12 A-29 Super Tucanos for the Nigerian Air Force.
Delivery of all twelve A-29B Super Tucanos to the Nigerian Air Force was complete when the last six aircrafts touching down in Kano on 29 September.
64 NAF pilots and maintainers were subsequently trained in the US by the USAF 81st Fighter Squadron at Moody Air Base in Georgia, United States.
Part of the training included the Law of Armed Conflict and civilian casualty mitigation.
Nigeria’s A-29 Super Tucanos and bandits
Apparently, the NAF according to an unnamed lawmaker, cannot deploy the A-29 Super Tucano in the fight against bandits due to the possible human rights restrictions placed on the aircraft.
Also, the lawmaker stated that the aircraft is “meant for the war against terrorists and insurgents and since these are bandits, they cannot be deployed.”
“He actually told us that once the bandits have been designated as terrorists, they would be wiped out. Don’t forget that the bandits today are not different from Boko Haram, looking at their activities and the gravity of attacks by them. Now that both chambers of the National Assembly have called for the declaration, we urge the President to implement our resolutions.”
Another reliable source in the security committees, who was asked to confirm the information from the first source, said it was true. “We have done what we ought to do, so the ball is no longer in our court,” he stated.
U.S. arms sales restrictions
Placing some sort of restriction on weapon sales isn’t really strange as the United States always insists on maintaining a level of oversight on how it’s weapons can be used by foreign nations.
Like all United States defence contracts, the weapons sales contracts, known as “Letters of Offer and Acceptance” (“LOA”), are confidential between them and the buyer, and there is no way for the media to know the contents given their confidential and bilateral nature.
Per its policy, the US is unlikely to share such information with any third party, including the media.
In this circumstance, how the Punch newspaper was able to access the terms of contracts is quite controversial.
According to the Nigerian newspaper, … “a top source in one of the security committees in the National Assembly said the Armed Forces, especially the Nigerian Air Force, had not been able to decimate the bandits due to the conditions attached to deployment of the fighter jets.”
The Super Tucano deal itself wasn’t without its own issues, in 2015, the Nigerian Air Force leadership decided to replace or complement the aging Alpha jet aircraft which have been one of the major air asset in the fight against insurgency with the newer A-29 Super Tucano, but the United States initially vetoed the deal, citing human rights issues with the military.
Leahy Law
The US had earlier blocked former President Goodluck Jonathan from acquiring Boeing CH-47 Chinook heavy transport helicopter and Bell AH-1Z dedicated attack helicopters from Israel in January 2015.
The US cited an act known as “Leahy Law” which prohibits the US defence sector from providing military assistance to countries involved in human rights violations. The US Government at the time stated that it was not pleased with Nigeria’s measures adopted against those accused of human rights abuse in the operational areas of the North-East.
However, the Leahy Law do not affect sales agreement that is concluded but can affect weapons not yet delivered even if the sales agreement is concluded.
The Leahy Law can also prevent the long-term support of weapons systems already delivered and can even target the sustainability and operational viability of the weapon by preventing its maintainance, upgrade, and operators training.
Confirming this stance, the acting Public Affairs Counselor, Jeanne Clark, explained to the Punch that the use of the weapons would be subject to the Leahy vetting, and that even though Nigeria is a strategic partner of the US, the US would ensure monitoring to ensure that the weapons are used for their intended purpose.
She said, “We have direct and open communication with the Government of Nigeria regarding our expectation that all security forces be held accountable for protecting civilians and respecting human rights. All Nigerian military personnel trained by the United States are subject to Leahy vetting.
“All potential US defence sales are carefully assessed under the US government’s Conventional Arms Transfer Policy to examine issues, including human rights, regional security, and non-proliferation concerns, to determine whether a sale is in the best foreign policy and national security interests of the United States.
“Review and monitoring are integral components of the process for any US-origin defence articles delivered to any recipient nation. This helps ensure that those articles are used by the intended recipient in the manner intended and consistent with the provisions of the agreement for the foreign military sale.”
Arms Export Control Act of 1976 (“AECA”)
The US laws that govern the sale and use of US-made armaments to foreign governments are the Foreign Military Sales Act of 1968 (“FMSA”) and the Arms Export Control Act of 1976 (“AECA”) respectively. Both laws are applicable on the US Government, the concerned Foreign Government (in this case, the Pakistan Government), and the US arms manufacturers whose weapons are being sold (in this case, Sierra Nevada Corporation (SNC), and Embraer, the A-29 Super Tucano manufacturer).
Although, The A-29 Super Tucano deal according to the U.S. Department of Defense, is the largest single arms purchase in sub-Saharan Africa, according to Gen. Jeff Harrigian, the U.S. Air Forces Europe-Air Forces Africa commander disclosed this during the A-29 Super Tucano induction ceremony.
Nigeria purchased the A-29s through the Foreign Military Sales programme, which follows the Department of Defense’s “Total Package Approach” model and includes spare parts for several years of operation, contract logistics support, munitions, and a multi-year construction project to improve Kainji Air Base infrastructure.
It is highly likely that the US-Nigeria A-29 Super Tucano sales contracts are standard contracts but may contain certain country-specific restrictions and even more restrictive end-user monitoring mechanisms as contained in the AECA.
Sometimes, the end-use monitoring requirements for most U.S. arms are usually not stringently enforced.
Section 4 of the AECA pertains to the purposes for which military sales or leases by the United States are authorized. The relevant excerpt of Section 4 reads: “Defense articles and defense services shall be sold or leased by the United States Government under this Act to friendly countries solely for internal security, for legitimate self-defense…” (emphasis added)
Section 40A of the AECA provides for end-use monitoring of defence articles and services. In case of violation of conditions of sale, the US Secretary of State is authorised to suspend any defence contract under Sections 2(b), 42(e)(1), and 42(e)(2) of AECA. AECA also permits the US to suspend defence contracts under “unusual or compelling circumstances if the national interest so requires”.
If the A-29 Super Tucano were deployed for what the US considers a “legitimate self-defense” as provided by Section 4 of AECA and there will be no violation of AECA clause.
Pakistani AECA F-16 case
US arms sales agreement are usually conducted on a case by case basis. A notable and most recent instance occured when a top State Department diplomat Andrea Thompson, the then-undersecretary of State for Arms Control and International Security Affairs in a document reprimanded Pakistan for misusing it’s Lockheed Martin F-16s.
The document detailed American concerns about how Pakistan fielded fighter jets during a skirmish with India over Kashmir, in ways that may have violated the terms of the two countries’ agreement.
“While we understand from you that these aircraft movements were done in support of national defense objectives,” Thompson wrote in the letter, “the U.S. government considers the relocation of aircraft to non-U.S. government authorized bases concerning and inconsistent with the F-16 Letter of Offer and Acceptance.”
Pakistan had used the F-16s against India in violation of the contractual sales agreements with the US. Apparently Pakistan cannot use the F-16s, or any of its US-made armaments like the AMRAAM, against any country. Which implies that Pakistan’s F-16s can only be used in internal anti-terror operations.
In this scenario, Washington declined to comment on the issue, “As a matter of policy, we don’t publicly comment on the contents of bilateral agreements…involving US defence technologies” the US State Department Deputy Spokesperson Robert Palladino stated on 5 March 2019.
Apparently, the U.S. decision to deliver advanced versions of the F-16 as well as targeting and electronic warfare equipment to Pakistan did not come without strings.
Washington had required Pakistan to accept and pay for the deployment of a U.S. technical security team at the Shahbaz and Mushaf air force bases — the two locations where the advanced F-16s were to be deployed.
The mission of the technical security teams is to ensure that the Pakistan Air Force uses its F-16s as intended, does not modify them or the weapons they carry, deploy them against some targets, and does not share the technology with unauthorized parties. The presence of technical security teams allows the United States to monitor how Pakistan uses these jets.
For what’s worth, the US construes the term “self-defence” widely and liberally to include retaliatory offensive defence, nevertheless, the United States has consistently voiced it’s concerns about human rights violation in Nigeria, and has even repeatedly blocked several key weapon systems to the country over the same reasons.
Therefore, it is expected that Washington will impose strict measures on the use of the A-29 Super Tucanos to prevent it from being used against unarmed civilian populace. Particularly in the backdrop of the accidental bombing of Rann IDP camp on 17 January 2017, that left 115 people killed.
In Pakistan case, the US deployed a technical security team made up of four to five U.S. Air Force personnel and some 30 contractors who keep a round-the-clock watch on Pakistan’s F-16s, and how they’re used operationally.
While for Nigeria, the A-29 Super Tucano may not be used against some targets deemed of low-threat value by the United State, or against targets that constitute an unacceptable loss to civilian lives and infrastructure.
UAE F-35 Lightning II case
In another instance, the United States made it clear that the recent acquisition of the highly sophisticated F-35 Lightning II stealth fighter by the United Arab Emirates would pose no threat to Israel, and that should the U.S. object to how UAE employs the F-35, it could essentially cripple the aircraft by denying access to their networked computers and maintenance services.
This implies that in a conflict situation with Israel, the Emirati $23 billion F-35s are essentially useless.
Furthermore, the UAE F-35 stealth jets can never be based in a third country for expeditionary combat operations and can only ever leave Emirati territory temporarily for participation in peacetime military exercises with friendly countries.
Likewise, any attempt to modify the stealth aircraft by Abu Dhabi would most likely violate the conditions under which it was sold.
This instances highlights a limitation on all U.S. oversight of military equipment it sells to foreign partners, not just Nigeria.
Bandits and Terrorism: two peas in a pod
Nigeria at the moment faces a plethora of security challenges including terrorism, banditry, secessionist movement, piracy at sea, farmer-herder crises, and kidnapping.
In late September, the House of Representatives and the Senate had on asked the President Muhammadu Buhari to designate bandits and their sponsors as terrorists.
Bandits are usually considered lightly armed than terrorists and other sub-state forces, however in Nigeria, the bandits ravaging the northern part of the country are notorious for abducting hundreds of school children and travellers for ransom.
However, in Nigeria, the word bandit that does not quite do justice to what are in fact a networks of sophisticated insurgents operating in a large area on North Western and Central Nigeria, and which possess sufficient firepower to shoot down an Air Force Alpha jet.
Reports of these bandits receiving training from Boko Haram have since surfaced.
Over the past four years, Nigeria military and security forces have not been able to get a handle on the situation, which seems to be spiralling quickly out of control.
According to the Punch report, the Chairman of the House Committee on Army, Abdulrazak Namdas, stated that the bandits had ticked all the boxes on the indices of terrorism.