By 1 May 2013, the United States and Afghanistan should have finalised a Bilateral Security Agreement and associated Status of Forces Agreement (SOFA) for governing a post-2014 US military deployment. There is, as yet, no sign yet of any deal. These new agreements are supposed to supersede the Status of Forces Agreement ratified in May 2003 which currently delineates the legal status of US forces on Afghan soil, including giving immunity for American soldiers from Afghan courts. The US domestic authorisation for the president to use force in Afghanistan is even older – it dates back to a Congressional resolution passed a week after the 9/11 attacks. In this far-ranging piece, AAN senior analyst, Kate Clark, looks at the legal basis for the current US military intervention in Afghanistan and what impact ‘2014’ will have on the legal landscape, not only for any US military operations in Afghanistan, but also for its global ‘war on terror’.
A two page diplomatic note dating back to May 2003, signed on the Afghan side by the then foreign minister of the interim administration, Dr Abdullah, is still what demarcates the legal status of US troops on Afghan soil. This is the Status of Forces Agreement (SOFA), a short, innocent-looking document, dealing with what appears at first glance to be bizarrely mundane matters – driving and pilot licenses, parking tickets, import and export duties, taxes and radio band width.(1)
Some of those innocent-looking technical matters – which are all actually aimed at sorting out inter-state liability issues – have explosive political consequences, in particular, that Department of Defence civilian and military personnel will be, ‘accorded a status equivalent to that accorded to the administrative and technical staff of the Embassy of the United States of America under the Vienna Convention on Diplomatic Relations of April 18, 1961.’ This bland little sentence guarantees that DoD personnel cannot be prosecuted in Afghan courts.(2)
The terms of the SOFA resemble, not only other SOFAs reached between troop deploying nations and Kabul, but also the more than one hundred SOFAs which the US has negotiated elsewhere. Only with the strongest and most trusted allies does Washington ever waive even the smallest aspect of immunity for its forces. Subjecting US soldiers suspected of wrong-doing to the Afghan courts has been a repeated demand of Afghan parliamentarians and pundits. For Washington, though, it is a deal-breaker: if there is no immunity, there will be no troops deployed and no Bilateral Security Agreement (BSA).
In the current negotiations, immunity has become a bargaining chip, along with allowing the US to use bases on Afghan soil, a concession that Kabul may give in exchange for such benefits as US training and support for Afghan National Security Forces, military equipment and money. All these issues, not just the aim of the mission, but how many troops, how many bases, how much military aid, immunity or not – are bundled together in both negotiations and media reporting. However, if a deal is reached, expect two or more separate agreements, with a fresh SOFA as a stand-alone document.
The US Congress Authorisation of Force
The SOFA refers to the conflict only as if in passing – ‘ongoing military operations by the United States’(3), but as the US Congressional Research Service (CRS) explains: ‘A SOFA… does not constitute a security arrangement… Rather, it establishes the rights and privileges of US personnel present in a country in support of the larger security arrangement.’ For the US, domestically, authorisation to use force still stems from the 18 September 2001 Congressional resolution, which, citing self-defence, authorises the president to use ‘…all necessary and appropriate force’ against an extremely loosely defined enemy – nations, organizations, or persons whom the president determines planned, authorized, committed, or aided the 9/11 attacks, or who harboured ‘such organizations or persons’, all this in order to ‘prevent any future acts of international terrorism’. Congress put no sunset clause on this authorisation.
Legal Justifications for Going to War in 2001
Just over a fortnight later, the US launched Operation Enduring Freedom. From the perspective of the international law concerned with going to war, Washington either had to have got a UN Security Council resolution authorising force or argue that it was exercising its ‘inherent right of individual or collective self-defence’ in the face of an armed attack. Like its junior partner, Britain, it opted for the latter, informing the Security Council that it had, ‘initiated actions designed to prevent and deter further attacks on the United States’ and saying it was targeting ‘al-Qaida training camps and Taleban military installations’ in order to ‘prevent and deter further attacks on the United States’. It also asserted that, ‘we may find that our self-defence requires further actions with respect to other organizations and other States.’(For a look at the various resolutions and letters to the Security Council, see this UK Parliament briefing paper on the legal basis of the 2001 intervention.)
While no Security Council resolution was sought for the attacks on Afghanistan, implicit recognition of the United States’ right to self defence came in two Security Council resolutions passed in the wake of the 9/11 attacks.(4)
The other military mission in Afghanistan, the International Security Assistance Force (ISAF) (which also has its own separate SOFA(5)) was specifically mandated by the UN Security Council, under Chapter VII of the UN Charter, in a resolution issued on 20 December 2001. Its implicit recognition of Operation Enduring Freedom(6) would later become explicit in the Security Council’s yearly extensions of the mandate, most recently, in October 2012.(7)
It is worth mentioning here that the CIA also got a new authorisation on 17 September 2001, in the form of a top secret, 14 page directive from the president ordering it, in the words of Tim Weiner, ‘to hunt, capture, imprison and interrogate suspects around the world… sett[ing] no limits on what the agency could do.’(8) The CIA would take on various military roles, but covertly, in the ‘global war on terror’ – funding and arming proxy forces in Afghanistan, using lethal force in various countries through its drones programme and setting up a huge, global detention and rendition programme (for details of the torture and associated abuses that were perpetrated, see this Open Society report); this programme was eventually closed down by Obama when he came into office in 2009.
Post-2014: war ending/continuing war and the Bilateral Security Agreement
The agreements and resolutions underpinning the war in Afghanistan and the presence of foreign troops on Afghan soil has been stable for over a decade. However, change will be coming. With troops – both ISAF and Enduring Freedom – pulling out and Inteqal in full swing, the US and Afghanistan are negotiating a Bilateral Security Agreement which, says their 2012 Strategic Partnership Agreement. will ‘supersede’ the 2003 SOFA and ‘other such related agreements and understandings that are mutually determined to be contrary to the provisions of the Bilateral Security Agreement.’
Curiously, the US speaks about the end of the war in 2014 and continuing the war beyond 2014.(9) For example, after his January meeting with President Karzai in Washington, President Obama said:
… by the end of next year, 2014, the transition will be complete – Afghans will have full responsibility for their security, and this war will come to a responsible end.
Yet he also referred to two long-term tasks, which he described as ‘very specific and very narrow’:
Number one, to train, assist, and advise Afghan forces so that they can maintain their own security; and number two, making sure that we can continue to go after remnants of al Qaeda or other affiliates that might threaten our homeland. That is a very limited mission, and it is not one that would require the same kind of footprint, obviously, that we’ve had over the last 10 years in Afghanistan.
The successor to the ISAF mission, incidentally, is definitely slated by NATO to be a non-combat, training mission and, indeed, will only go ahead, according to NATO officials speaking to AAN, if the US secures its Bilateral Security Agreement.
What sort of mission the US has after 2014 will have legal implications. If there is an end to combat operations – an end to the war, as Obama appears to say – military detainees should be released. Hostilities against ‘al-Qaeda or other affiliates’ gives military planners plenty of room for manoeuvre, but it does not appear that continuing war against the Taleban per se is in their sights. The Taleban held in Guantanamo Bay could become an anomaly if the post-2014 mission becomes officially focussed on al-Qaida. Then there are the fifty or so foreign detainees still in American hands at Bagram. Currently they are excluded from the agreement to hand over the detention facility. Post-2014, the US would not only need sufficient troops to maintain detention facilities if it wanted to carry on holding them, but also the continuing agreement of the Afghan government – ie it will face practical, political and legal considerations.
As the US found when it pulled out of Iraq, handing over local prisoners to the Iraqi authorities was relatively straightforward, but deciding what to do with a Lebanese Hezbollah detainee, Ali Musa Daqduq, whom the US accused of helping to orchestrate the killing of five US soldiers, was trickier. With an end to combat operations and the withdrawal of troops, the military could no longer detain him in Iraq, but taking him out of the country, to Guantanamo Bay or to be tried in a criminal court in the US, were both politically unpalatable and anyway, without Baghdad’s agreement, the transfer would have been rendition rather than extradition (for reporting, see here). In the end, Daqduq was handed over to the Iraqi state which eventually released him.
Post-2014 and the Global War on Terror
The changing nature of the war in Afghanistan after 2014 may also have legal consequences for the US’ global war on terror. The war has already morphed in ways no-one could have predicted in 2001. The US has come to target groups which did exist when Congress authorised the president to use force, including those with very domestic (although jihadist) aims and no record of targeting Americans. The US military and CIA-run drone programmes have expanded to Pakistan, Somalia and Yemen and possibly elsewhere, with American citizens killed in targeted attacks and a recent assertion that such attacks could even be authorised on American soil.(10) Despite all these changes, US Professor of Law, Robert Chesney(11) argues the US has seen unusual stability in the ‘legal architecture’ surrounding the state’s use of military detentions and lethal force – seen in a bipartisan consensus on security policy and in legislation and judicial decisions. He says, however, that this stability has been based on two certainties which are now morphing: ‘a relatively-identifiable enemy’ in the shape of al-Qaida and ‘an undisputed armed conflict in Afghanistan… to which the law of armed conflict clearly applies’:
…the overt phase of the war in Afghanistan is ending. At the same time, the US government for a host of reasons places ever more emphasis on what we might call the ‘shadow war’ model (ie, the use of low-visibility or even deniable means to capture, disrupt, or kill terrorism-related targets in an array of locations around the world). The original Al Qaeda organization, meanwhile, is undergoing an extraordinary process of simultaneous decimation, diffusion, and fragmentation, one upshot of which has been the proliferation of loosely-related regional groups that have varying degrees of connection to the remaining core al Qaeda leadership.
These shifts, he says, will make it, ‘far more difficult (though not impossible) to establish the relevance of the law of armed conflict to US counterterrorism activities, and they raise exceedingly difficult questions regarding just whom these activities lawfully may be directed against. All this means that, even if Washington and Kabul negotiate a new BSA and a new SOFA to mandate a continuing US military presence in Afghanistan, one should expect more judicial challenges in the US courts on a whole range of issues as 2014 looms, many not overtly linked with the war in Afghanistan.
New Congressional Oversight?
In Congress and the Senate, dissent over the status quo is also already picking up, including from those who generally support how the war on terror has developed. The senior Republican in the Senate Foreign Relations Committee, Bob Corker (quoted here) has said Congress had failed to fully exercise its constitutional responsibility to authorize the use of military force. He wants the Senate Foreign Relations Committee, to put in place:
… specific policy guidance for how and when the president can use these authorities, including lethal action and the use of drones, in regular consultation with Congress, so we can restore the appropriate balance of power between the legislative and executive branches of government while maintaining flexibility for the president to respond swiftly under threat of attack.
The second most senior Democrat in the Senate, Dick Durbin, asked in a recent interview with the Wall Street Journal (quoted in the Huffington Postarticle referenced above) whether the president was actually mandated to use lethal force against anyone anywhere:
I don’t believe many, if any, of us believed when we voted for that – and I did vote it – that we were voting for the longest war in the history of the United States and putting a stamp of approval on a war policy against terrorism that, 10 years-plus later, we’re still using,’ Durbin said …
War in Afghanistan with or without a BSA?
In Afghanistan, getting a new BSA and SOFA is proving immensely difficult. Hostile remarks by President Karzai about the US presence and conflict over US detentions and Special Operations Forces have slowed up negotiations – and some are now arguing they should just be put on hold until after a new Afghan leader is elected. Others think that, even if a new BSA cannot be agreed – as it was not in Iraq – US military operations could continue anyway. Former US Commander in Afghanistan, General Barno, for example, has argued that even if there are no troops on the ground, drones and intelligence assets could carry on the war. Practically speaking, this seems like a wild over-estimation of US intelligence capabilities (see here for one AAN investigation into how intelligence failures can lead to dead civilians), but legally, how might it work?
There are no sunset clauses on the current agreements,(12) but, in Barno’s scenario, if Afghanistan objected to continuing US operations on its territory (something Pakistan, which has CIA-operated drones attacking its territory, has chosen officially not to do), Washington would be back in a scenario similar to 2001 where it would have to argue self-defence and assert that the Afghan government was unable or unwilling to deal with terrorist threats to US interests. Continuing war might be possible without a BSA, but hardly attractive – far easier for the US to get an agreement, so that it can carry on making use of the good relationships, military facilities and infrastructure which it has spent so much money and effort building up – if, that is, it wants to keep fighting on Afghan soil after 2014.
(1) Department of Defence personnel, says the SOFA, will be treated as if they were ‘administrative and technical staff at the US embassy’ according to the Vienna Convention on Diplomatic Relations of April 18, 1961. According to the Congressional Research paper on SOFAs, the convention establishes classes of personnel, each with varying levels of legal protections. Administrative and technical staff receive, among other legal protections, ‘immunity from the criminal jurisdiction of the receiving State.’
(2) The DoD personnel can enter and leave Afghanistan using US IDs, drive using US driving licenses, wear uniforms while on duty and carry weapons if ordered to. The Afghan government will not levy landing fees, tolls, transit fees or parking tickets on vehicles and aircraft owned or leased by US armed forces. It will not charge taxes to the US government, its personnel and contractors, including on what they import, use or export any property needed to implement the agreement. Contracts awarded by the US government will be in accordance with US law and again, will not be subject to tax. The US government is allowed to operate its own telecommunication systems and has the right to use ‘all necessary radio spectrum’, again free of charge. Neither government will make claims for any damage done by the other.
(3) It also refers to the military and civilian personnel of the US Department of Defence ‘who may be present in Afghanistan in connection with cooperative efforts in response to terrorism, humanitarian and civic assistance, military training and exercises, and other activities.’
(4) Resolution 1368 (12 September 2001) said that, ‘Recognizing the inherent right of individual or collective self-defence in accordance with the [UN] Charter,’ the Security Council was, ‘Determined to combat by all means threats to international peace and security caused by terrorist acts.’
States’ inherent right to self-defence was also referred to in Resolution 7158 (28 September 2011) which obligated states – using Chapter VII of UN Charter – to revise their national laws on a whole range of anti-terrorist measures (read an analysis of why UNSC Resolution 7158 was a unique expansion of UNSC powers here).
(5) ISAF has its own status of forces agreement with the Afghan government in the form of an annex to a Military Technical Agreement entitled ‘Arrangements Regarding the Status of the International Security Assistance Force.’ The agreement provides that all ISAF and supporting personnel are subject to the exclusive jurisdiction of their respective national elements for criminal or disciplinary matters, and that such personnel are immune from arrest or detention by Afghan authorities and may not be turned over to any international tribunal or any other entity or State without the express consent of the contributing nation. In 2003, NATO, rather than individual countries assumed command of ISAF in Afghanistan.
(6) The resolution mandating ISAF said that:
Supporting international efforts to root out terrorism, in keeping with the Charter of the United Nations, and reaffirming also its resolutions 1368 (2001) of 12 September 2001 and 1373 (2001) of 28 September 2001
(7) The October 2012 UN resolution on the ISAF’s mandate says:
Reiterating its support for the continuing endeavours by the Afghan Government, with the assistance of the international community, including ISAF and the Operation Enduring Freedom (OEF) coalition, to further improve the security situation and to continue to address the threat posed by the Taliban, Al-Qaida and other violent and extremist groups and illegal armed groups, and stressing in this context the need for sustained international efforts, including those of ISAF and the OEF coalition.
(8) Tim Weiner Legacy of Ashes: The History of the CIA (2007) Penguin pp 555-6
(9) The mixed messages as to the nature of any post-2014 mission can be seen, for example, in remarks by the commander of the US/NATO air war over Afghanistan, Major General H D Polumbo, who said drones would remain in Afghanistan for ‘force protection’. Compare also General Allen’s press briefing in May 2012 when it is really not clear who ‘we’ is – ISAF or ISAF plus Operation Enduring Freedom or US forces:
We will continue to train and equip and ultimately to field the entire ANSF by the end of 2013. So we’ll be approaching a key crossover point in the campaign in 2013 – what’s known as the Milestone 2013 where the ANSF will move into security lead in the context of the counterinsurgency campaign and where ISAF forces will be supporting that move into the lead, recognizing and noting, however, that combat will continue — combat operations will continue in the country throughout the period of the remainder of the ISAF mission, which will conclude on the 31st of December 2014.
(10) This assertion, by the Attorney General to Senator Rand Paul, led the senator to question, in a 13 hour filibuster, John Brennan as Obama’s choice for director of CIA (see reporting here).
(11) Beyond the Battlefield, Beyond al Qaeda: the Destabilising Legal Architecture of Counterterrorism August 2012 (read Robert Chesney’s paper here).
(12) The Strategic Partnership Agreement provides for, ‘ongoing military operations continuing under existing frameworks until superseded by the BSA or other agreements, as mutually determined.’
Photo: courtesy of ISAF, here
This article was last updated on 9 Mar 2020