THE BLOG
05/16/2014 06:25 pm ET Updated Jul 16, 2014

U.S. Law Limits Options for Nonviolent End to Nigerian Girls Nightmare

Headlines are full of the tragic story of 276 Nigerian schoolgirls kidnapped by extremists in mid-April, with many reportedly sold into slavery or forced into "marriages." A growing international chorus is calling for their return and for action by both the Nigerian government and international community. The U.S., UK, China and other countries are providing support to the Nigerian government.

Yet so far there is no apparent progress in freeing the girls. Instead the situation appears to be getting worse. At least two girls are reported to have died from snakebites while in captivity, eight more girls were kidnapped on May 6 and about 300 were people killed in an attack on a local market the day before that. The Nigerian government's response has been inept and at times appears deliberately negligent. Parents searching for the girls discovered their location in an armed camp soon after the kidnappings, but the Nigerian army declined to go after them. Nigerian First Lady Patience Goodluck went so far as to claim there were no kidnappings at all and ordered the arrest of a leader of protesters seeking action to return the girls. The credibility of the Nigerian military is already low. It has an abysmal human rights record, with more than 600 extra-judicial killings this year alone and 950 known deaths in military custody in the first half of 2013, according to a March report by Amnesty International.

Media reports in the weeks following the kidnappings indicate that the girls may have been taken to remote areas in Nigeria and across the porous borders into Cameroon, Chad and Niger. This makes the logistics of search and rescue particularly difficult. Even if the Nigerian government is able to determine the locations of all the girls, using force to secure their return is very dangerous. Boko Haram, the armed group that has taken responsibility for the kidnappings, has a track record of harming its kidnap victims when force is used in rescue attempts. For example, in May 2012 two European construction workers kidnapped by a faction of Boko Haram in 2011 were killed during a rescue attempt by Nigerian and British forces. This raises concerns that Boko Haram will harm the girls of Chibok if there is any rescue attempt.

Someone Needs to Talk to Boko Haram - But that's Illegal.

So what options remain? The alternative to force is a negotiated resolution. This is far from impossible. A negotiator with experience dealing with Boko Haram told a UK news outlet that "They want a way out," having succeeded in embarrassing the government and terrorizing the population.

It is clear from press reports that intermediaries are in touch with Boko Haram. Could these or other intermediaries establish dialog with Boko Haram that could end with the girls' return? Given the practical limitations of rescue by force and the political dangers of involving foreign militaries, this looks like the best hope. And given how ineffective the Nigerian government and armed forces response has been to date, there is little to lose.

Non-governmental actors are best placed to carry out any dialog or negotiations with Boko Haram. They are free of political agendas and have the credibility to go back and forth between contacts on both sides. They can be focused solely on the goal of freeing the girls, and not driven by foreign policy, electoral or military objectives.

But contact with Boko Haram is not legal, even for the purpose of freeing the girls or ending Boko Haram's campaign of terror. That is because the U.S. put Boko Haram on the list of Foreign Terrorist Organizations (FTO) in November 2013. That means any form of support, including expert advice or assistance, to a group on the list is considered material support of terrorism and is illegal. In 2010 the Supreme Court upheld this prohibition in the case of the Humanitarian Law Project, which wanted to provide human rights and conflict resolution training to FTOs in Turkey and Sri Lanka. Even non-U.S. persons and organizations are impacted, since the law applies outside the U.S. That means anyone who has such contact with a FTO could be arrested in the U.S.

This prohibition reflects a strategy of isolation. The theory is that bad actors will wither away over time from lack of resources. But experience shows that this does not work well. Other FTOs, like the FARC in Colombia, the PKK in Turkey and Hamas in Gaza are still operating after years of being on U.S. terrorist lists. In fact, experts say FTO designation can enhance the status of an armed group among its supporters, and Boko Haram is likely to view it as a badge of honor.

While Nigerian based intermediaries may not worry about being arrested if they ever come to the U.S. the prohibition discourages U.S. support or coordination for negotiation efforts. With the U.S. advising the Nigerian government on the crisis, the prohibition on talking to Boko Harm pushes resources and attention away from a nonviolent resolution of the crisis and toward a military one.

Give Talk a Chance

The bottom line is that U.S. law limits the potential for a negotiated release of the Nigerian schoolgirls, just as it would in other contexts for negotiating release of child soldiers, arranging access to civilians in need to humanitarian assistance or pursuing peace negotiations. This nonsensical and counterproductive situation has been recognized as a problem by many experts.

The legal barrier to dialog in U.S. limits U.S. policy options. The decision the Secretary of State makes in listing groups like Boko Haram or the Taliban is not about whether or not they use terror as a tactic. It is about whether or not the sanctions triggered by listing do more good than harm. By including a ban on dialog with other sanctions U.S. law can effectively limit the tools available to deal with terrorist groups.

That is why, in 2012, a group of 24 experts on Nigeria sent then Secretary of State Clinton a letter advising against naming Boko Haram as a FTO. It noted that FTO status would not just limit chances of negotiated peace, but also validate the views of Boko Haram's radical faction, link the U.S. to the human rights abuses of Nigerian security forces and make it difficult of aid groups to reach civilians in need. The experts concluded that "properly addressing the issue of Boko Haram will require a diplomatic, developmental, and demilitarized framework."

A bill pending in Congress - the Humanitarian Assistance Facilitation Act - would permit speech and communications aimed at "reducing the frequency and severity of armed conflict...and its impact on the civilian population." This is not likely to pass in time to help the schoolgirls in Nigeria but under current law the administration could issue an exemption for talks aimed at freeing them. It should do so immediately.

Given Boko Haram's track record of violence against civilians it is not easy to picture how talking to them could help. But there are reasons to believe potential for progress exists:

• First, Boko Haram was not always focused on violence. A May 6, 2014 blog by the Brookings Institution points out that "There is a fair consensus that, until 2009, the group conducted its operations more or less peacefully and that its radicalization followed a government clampdown in 2009, in which some 800 of its members were killed." This included the death of its leader, Mohammed Yusuf, in what Human Rights Watch said was an extra-judicial killing that was captured on video.

• Second, in recent years there have been sporadic attempts at dialog aimed at a political settlement. The contacts made in these processes, even if they did not succeed, could be helpful now. But the Nigerian government will have to take it seriously. That would require a change in past practice. In 2012 Reuters reported that a Muslim cleric attempting to broker peace talks quit because leaked information caused him to doubt the good faith of the government. In 2013 Shehu Sani, President of Nigeria's Civil Rights Congress, described how President Goodluck scuttled attempts for a negotiated settlement.

● Third, Boko Haram's structure is decentralized, as reflected by the fact that the group did not take responsibility for the kidnappings until weeks afterwards. This may create flexibility. Gen. Andrew Azazi, national-security adviser to President Goodluck Jonathan told the press in 2012 that "Under the circumstances, if you look hard enough, you can find moderate elements you can communicate with." Interfaith peace programs operating in northern Nigeria may provide a network of contacts that would facilitate dialog. For example, on April 5, International Golden Rule Day, 33 leading clerics, both Muslim and Christian, joined tribal and civic leaders in a one day face-to-face process aimed at bringing communities together.

● Fourth, Boko Haram may have something to gain. Its goals are complex, not simply establishment of an extreme form of Islamic law. According to a House Homeland Security Committee report the group originally organized to address political repression and extreme poverty in northern Nigeria, which has a majority Muslim population. Its community support is said to derive from reaction to the Nigerian government's human rights abuses. Negotiation for them may be as much about politics as it is about ransom.

First Do No Harm

Rescue attempts through force may not only further endanger the Chibok girls, but also fuel the conflict in the long term. Although President Obama ruled out sending in troops and said the U.S. is providing intelligence and other, unspecified help, other countries have not ruled out force in assisting the Nigerian military. A statement from the British Foreign and Commonwealth office made it clear they have a larger agenda in offering help: defeat of Boko Haram.

This could very well be counterproductive. The International Crisis Group's Africa Director told Al-Jazeera that military intervention could have an adverse effect, noting that when the military killed the wives and daughters of Boko Haram members in a 2009 crackdown it only escalated the violence.
In the long run military intervention is unlikely to work. A study by the Rand Corporation found that military force is by far the least likely way for terrorist groups to end. The full force of the U.S. military through a decade of occupation was unable to eliminate the Taliban from Afghanistan and insead saw them expand into Pakistan. That is not the kind of outcome needed in Nigeria.

Conclusion

The Obama administration and Congress should make it clear that dialog is needed to free the girls of Chibok. It should actively discourage all parties from using the tragedy of the schoolgirls as a wedge for larger, long term military presence in Nigeria. And it should show its commitment to dialog by removing legal restrictions on engagement with Boko Haram that is aimed at nonviolent means of securing the girls' release.

The author wishes to thank Kevin Cunningham of Oakland, CA for his valuable assistance in researching this article.