It’s tough to keep up with the news these days, so many readers might have missed that the State Department announced that it was certifying five countries – Iran, North Korea, Syria, Venezuela, and Cuba – as “not cooperating fully” with U.S. counterterrorism efforts in 2019. The notification to Congress and certification are annual events, but it was unusual for the State Department to issue a press release to go along with them. Why such a decision was made is unclear. It could have been motivated by a desire to signal impending policy shifts toward one or more of these countries or it could have been a refreshing dose of transparency from the Trump administration. Or, perhaps it was something even more quotidian like the desire to show activity at a time when the coronavirus pandemic is throwing sand in the gears of government. In any event, it is clear that the certification does not reflect the realities of counterterrorism cooperation and it is unlikely to help increase it.
The not fully cooperating countries (NFCC) certification was developed as part of an iterative process that led to the creation of several different tools for holding States accountable on counterterrorism. The process arguably began in 1976, when Congress amended the Foreign Assistance Act to cut off assistance to “any government which aids or abets, by providing sanctuary from prosecution, to any group or individual which has committed an act of international terrorism.” Three years later, the Export Administration Act authorized the State Department to designate governments that “provided support for actions of international terrorism.” This export-control list, which was initially intended to prevent the U.S. from exporting arms or other military equipment to states that supported terrorism, evolved into the list of state sponsors of terrorism. In 1989, Congress passed the Antiterrorism and Arms Export Amendments Act, requiring sanctions on countries designated as State sponsors of terrorism (SST designation). SST sanctions have broader impact, to include requiring that the U.S. vote against most loan requests made by a designated country to international bodies, such as the International Monetary Fund.
The consequences of certifying that a country is “not fully cooperating with United States antiterrorism efforts” are narrower in scope. Congress created the authority for this certification in April 1996, with the passage of the Antiterrorism and Effective Death Penalty Act. In that legislation, Congress amended section 40A of the Arms Export Control Act (AECA) to provide the Secretary of State the legal authority to determine and certify countries “not fully cooperating with United States antiterrorism efforts.” Pursuant to section 40A(a) of the AECA, “no defense article or defense service may be sold or licensed for export during this Act in a fiscal year to a foreign country.” This is similar to the set of punitive measures applied to countries by the 1976 amendment to the Foreign Assistance Act. In addition to a more lenient set of punitive measures, taking a country off the NFCC list is also easier than the process of removing them from the State sponsor’s list. Theoretically, this should enable the U.S. government to use the NFCC certification in a somewhat more flexible manner. In reality, its binary nature has meant that it is primarily employed in the same way as the SST designation, which is a relatively blunt instrument not particularly well-suited to dealing with the ambiguous relationships between terrorism and some of America’s most consequential counterterrorism partners.
The Cold War origins of the State sponsor designation derives from a time when most of the major terrorist groups, along with many smaller ones, benefited from State support from Moscow, Soviet-bloc countries, and Soviet client states. Arab countries’ efforts to exert more control over major Palestinian groups also contributed to the growing number of State-sponsored organizations at the time. The U.S. was growing increasingly concerned about jihadist groups, and remained focused on State-supported Palestinian organizations when Congress amended the Arms Export Control Act in 1996 to create the NFCC certification. The first set of NFCC determinations – made by Acting Secretary of State Strobe Talbott in May 1997 – reflects these concerns, and included: Afghanistan, Cuba, Iran, Iraq, Libya, North Korea, Sudan, and Syria. Most of these countries met the criteria for designation as State sponsors, and the fact that not all of them were designated suggests the signaling value that U.S. officials may have hoped the NFCC certification would provide.
International cooperation was an important component of U.S. counterterrorism before 9/11, but it became considerably more critical thereafter. The range of ways in which States may help or hinder U.S. counterterrorism efforts is not reflected in the factors that the State Department considers when it comes to exploring a country’s potential inclusion on the NFCC list. These include, inter alia, whether countries are:
- party to key United Nations counterterrorism conventions,
- engaged in ensuring terrorists cannot raise finance by implementing key, recommendations of the Financial Action Task Force, and
- adopting and implementing robust domestic laws that criminalize terrorism and those who provide support to terrorism,
The State Department will also review whether a country is cooperating with U.S. counterterrorism efforts, such as by extraditing terrorists who have carried out acts against the U.S. or sharing terrorist threat information. As the State Department considers whether a country should be added or removed from the list, it also engages in a wide array of consultations, most important of which is with the U.S. Intelligence Community. Upon evaluation of all-source information regarding a country’s level of counterterrorism engagement and whether it implicitly or explicitly is providing support to terrorists, the State Department’s Counterterrorism Bureau submits a report to the Secretary of State regarding the countries to be included on the NFCC list. Then, no later than May 15, Congress receives the State Department’s certification of countries not cooperating with U.S. antiterrorism efforts.
No country, even a close ally, fully cooperates on counterterrorism all the time, but some partners are more problematic than others. The type of review described above typically will not account for the fact that, as one of us has written on at length, many partners simultaneously help and hinder U.S. counterterrorism efforts. Pakistan was a critical counterterrorism partner for years after 9/11, while simultaneously supporting the various terrorist groups, in including the Haqqani network and Lashkar-e-Taiba, as well as the Taliban. Other consequential partners, such as Saudi Arabia, have pursued domestic policies that foster a supportive environment for terrorism such as fundraising, recruitment, or propagandizing. Emirati forces reportedly made unauthorized transfers of U.S.-origin defense equipment to groups with ties to al-Qaeda in the Arabian Peninsula (AQAP) and supplied them with training and salaries. Beyond these more egregious activities, various partner nations have used the capacity building and support that the U.S. provides for counterterrorism to pursue their own agendas in ways that are unhelpful and sometimes harmful to U.S. counterterrorism interests. This includes a lengthy list of partners who have used the power of the State to violently suppress internal dissent, contributing to conditions that fuel terrorist recruitment and radicalization.
It is clear that any certification that labels countries as not cooperating fully on counterterrorism and includes only the five listed is less about counterterrorism than political calculation. As with the SST designation, the objective of a NFCC listing will vary depending on context, time, and country targeted. For some, as with Cuba, it could represent a signal that the Trump administration is dissatisfied with Cuba’s interventions in propping up Venezuela. Meanwhile, de-listing or re-listing North Korea as a state sponsor of terrorism has little to do with counterterrorism, and instead, may be seen as a way to exert leverage on it to end its nuclear weapons and missile programs. In another context, lifting the NFCC sanction could be part of an inducement for a country to continue its positive behavior. For instance, Sudan was removed from the NFCC list as a reward for its cooperation against al-Qaeda. The U.S. kept Sudan on the SST list, however, as a way to maintain leverage in order to secure additional cooperation. This approach might make sense in the micro, but judging a country to be cooperating on counterterrorism while simultaneously continuing to designate it a state sponsor of terrorism highlights the capricious way that both the NFCC and SST instruments are being used.
This brings us back to the countries recently certified as “not cooperating fully” on counterterrorism. Because all of them are U.S. adversaries, the actual consequences will be quite limited. After all, the U.S. is unlikely to sell or license for export any defense article or defense services to Iran, North Korea, Syria, Venezuela, or Cuba. The U.S. has other tools in its sanctions toolbox that it could use. So, what is behind the inclusion of these five countries? In the case of Iran, North Korea, and Syria, these are designated State sponsors of terrorism and so certifying them as not cooperating fully may be pro forma. Indeed, if both instruments were used appropriately, the NFCC list would include all SST designees. What is more troubling in this case is that the inclusion of Cuba and Venezuela – and the Trump administration’s press release highlighting this – might be a signal to both countries that an SST listing might be forthcoming. At best, this would reinforce the misuse of counterterrorism instruments in pursuit of other geopolitical objectives. At worst, it could suggest a bid by Trump to curry favor with voters in key battleground states such as Florida.
If the NFCC certification were applied more judiciously, it could provide a mechanism for taking a more nuanced approach to dealing with problematic partners. One possible step to make it more useful would be to create a sliding scale of potential punitive measures. Consequences of certification that may be minute for an adversary like Iran might be considered by policymakers to be too extreme for a country that cooperates with U.S. counterterrorism efforts, but also hinders them. Creating a sliding scale with levels of non-cooperation and commensurate penalties could provide U.S. officials with a more flexible instrument they could use in relation to a range of countries, as opposed to simply with those that are adversaries or one step away from designation as a State sponsor of terrorism. This would provide the U.S. with more leverage in problematic counterterrorism partnerships, and provide important partners with the time and space needed for reform in order to avoid more punitive actions.