The U.S. and Afghanistan agreed this week on the terms for an extended U.S. military presence in Afghanistan after 2014.The Bilateral Security Agreement (BSA), which the Loya Jirga and the Afghan Parliament will have to approve also commits the U.S. government to provide financial and other support to the Afghan National Defense and Security Forces (ANDSF).
The BSA negotiations included several areas of dispute, which threatened to scuttle the deal. But the agreed-upon text appears to settle the most contentious issues, including the question of “jurisdiction,” often referred to as “immunity” for U.S. forces in Afghanistan. But the BSA leaves some issues about the nature and scope of U.S. operations in Afghanistan post-2014 unanswered.
Here are a few key areas:
Exclusive Jurisdiction or “Immunity”: Article 13(1) grants the United States “exclusive jurisdiction” over members of the U.S. armed forces and the civilian component. Often referred to as “immunity,” the question of civil and criminal jurisdiction over U.S. forces in Afghanistan has been perhaps the most controversial element of the BSA. Failure to agree on this issue doomed the SOFA with Iraq, which led to a full withdrawal of U.S. forces. This was a red line for the United States, and the text appears to grant the U.S. exclusive jurisdiction over its personnel.
Under other U.S. Status of Force Agreements (SOFAs), jurisdiction is often shared, meaning that for many crimes the receiving state may have primary jurisdiction. In addition, while many other SOFAs limit U.S. jurisdiction to acts committed in performance of “official duties,” the BSA contains no such limitation. In practice, however, even where there is shared jurisdiction, the use of waivers and interpretation of typical “official duties” provisions mean the United States frequently exercises jurisdiction over its personnel abroad. (The United States currently has over 100 SOFAs with other states).
U.S. jurisdiction in Afghanistan will be somewhat broader, or more definitive than with other states. But the BSA will, in effect, extend the status quo that has existed since a 2003 agreement under which U.S. forces have enjoyed diplomatic immunity equivalent to that granted to its personnel under the Vienna Convention. U.S. contractors and contractor employees will not enjoy such status and will be subject to Afghan law.
Article 2(1) states: “Unless otherwise mutually agreed, United States forces shall not conduct combat operations in Afghanistan.” Article 2(4) states, “The Parties acknowledge that U.S. military operations to defeat al-Qaida and its affiliates may be appropriate in the common fight against terrorism. The Parties agree to continue their close cooperation and coordination toward those ends, with the intention of protecting U.S. and Afghan national interests without unilateral U.S. military counter-terrorism operations.”
One key question is the issue of unilateral U.S. operations, which was a major stumbling block during the negotiations and the subject of a previous agreement. Article 2(1) seems to foreclose the possibility of such operations (this provision was not included in a draft version dated from July 2013 and leaked to NBC News
However, Article 2(4) seems to distinguish combat operations from counter-terrorism operations, noting that the latter “may be appropriate” but emphasizing the need for coordinated rather than unilateral U.S. action. The second sentence of Article 2(4) includes the qualification that operations against al-Qaeda and its affiliates will continue with the “intention” of protecting each state’s interest “without unilateral U.S. military counter-terrorism operations” and further qualifies that such operations will be conducted with the “goal of maintaining ANSDF lead.” Such language suggests joint or consented to operations are the expectation, but only time will tell whether the United States will claim that this language leaves it room to continue conducting unilateral counter-terrorism operations under certain circumstances, as distinct from combat operations.
U.S. forces are also not prohibited from entering Afghan homes, another key sticking point. Article 2(4) requires only that operations are conducted in “full regard for the safety and security of the Afghan people, including in their homes,” though a final hour letter from President Obama to President Karzai stated that U.S. forces will not enter Afghan homes “except under extraordinary circumstances involving urgent risk to life and limb of U.S. nationals.”
Two other factors could impact the nature and scope of post-2014 U.S. operations. The United States could invoke its right to self-defense under international law (explicitly recognized in Article 3(2) of the BSA) to conduct operations without Afghan consent. A broadly defined concept of “imminence” as a matter of jus ad bellum—which some legal experts and human rights groups have criticized—further expand the possible scope of such operations. Second, the Afghan government may consent to independent U.S. counter-terrorism operations, and perhaps without publicly disclosing so.
Though the final language of the BSA appears to significantly restrict the nature and scope of U.S. military operations, time will tell whether these possible exceptions to the end of the U.S. combat role serve as the basis for a wider scope of U.S. operations than is currently portrayed.
Detentions: Notably absent in the BSA is any provision regarding U.S. detention authority after 2014. In the July BSA draft, Article 8 was entitled, “Detention” and contained draft language from both the United States and Afghanistan—and a lot of daylight in between. Afghan language clearly prohibited U.S. detentions and arrests, while the U.S. language reaffirmed a commitment to “placing Afghan detainees under the control and sovereignty of the Afghan government.” As I have noted elsewhere, the dispute over U.S. detention authority is deep and longstanding. It is perhaps no surprise that an agreement could not be worked out on the issue in the BSA. However, once again, ignoring differences may lead to serious problems down the road. The U.S. continues to hold non-Afghan detainees at Bagram—an issue that is entirely ignored by the BSA. Moreover, the question of what will happen to any future captures by U.S. forces, and the legality of such detentions under Afghan law, remain unclear and unresolved (See here for run-down on failure of previous Detentions MOU).
Drone Strikes: As some have noted, the terms of the BSA would appear to restrict the United States’ ability to launch drone strikes in Pakistan from Afghan territory. The preamble to the BSA states: “the United States does not seek permanent military facilities in Afghanistan, or a presence that is a threat to Afghanistan’s neighbors, and has pledged not to use Afghan territory or facilities as a launching point for attacks against other countries.”
However, it is unclear whether U.S. drone attacks targeting non-state actors on Pakistani territory (potentially with Pakistani government consent) would constitute “attacks against other countries,” and therefore prohibited by this provision of the BSA.
CIA: The BSA covers the presence and activities of members of the U.S. armed forces and “the civilian component,” meaning civilian employees of the U.S. Department of Defense. It does not appear to apply to the activities of non-DoD officials, specifically CIA personnel, who engage in operations, and often work with or provide significant support to U.S. military, ANSDF, Afghan intelligence, and militias.
Although questions remain, the BSA itself coupled with U.S. military and financial support it represents, are critical for the future security and stability of Afghanistan. Despite Karzai’s politicization and posturing, it is telling that not one of the current Presidential or Vice-Presidential candidates in Afghanistan has spoken out against the BSA.
In addition, contrary to some media reports, it is also important to note that the BSA is not a new, endless commitment to war in Afghanistan. The BSA was always more than a SOFA, and the commitment to provide support, training, and financial assistance to Afghanistan beyond 2014 is little more than a restatement of the U.S.-Afghan Strategic Partnership Agreement signed in May 2012.
When it comes to the reality of U.S. and Afghan operations on the ground, however, experience has taught that the true meaning of such agreements is often revealed in implementation, and in practice. Time will tell. But for now, all eyes are on the Loya Jirga, and the Afghan Parliament.