Both Afghan and United States officials have, until now, been tight-lipped as to what is in the Bilateral Security Agreement (BSA) – which is to be scrutinised by a consultative loya jirga beginning on 21 November. If signed, it will govern the post-2014 deployment of US soldiers in Afghanistan. On Saturday, 16 November 2013, the President’s national security advisor, Rangin Dadfar Spanta, and the chief of the Afghan National Army, General Sher Mohammad Karimi, briefed Parliament on the draft, giving everyone the first solid information of what the two governments have agreed – including the numbers of troops and bases. As AAN’s Kate Clark and Ehsan Qaane report, the officials got a mixed reception from MPs.
Both Parliament and a specially convened, multi-day, consultative loya jirga with 3,000 delegates, due to begin on 21 November, have to ratify the BSA. Understanding what is bound to be a long, dry, legal document is unlikely to be easy for the jirga delegates who will include MPs, senators and many others less involved in day-to-day political affairs. (1) This goes even more for the full implications of what the US and Afghan governments are proposing. Of particular sensitivity to Afghans are the issues of who has legal jurisdiction over US soldiers (often incorrectly reported as their having ‘immunity’ – masuniat) and whether the US would defend Afghanistan against tajawuz (usually translated as ‘aggression’ from outside). The first attempt by the government to explain the BSA came yesterday with the visit by National Security Advisor Spanta and other senior officials (2) to Parliament. The highlights of Spanta’s remarks were:
The BSA is made up of 26 articles and two annexes.
It will be effective for ten years and could then be extended for another ten years. If either country wants to amend or abrogate from the BSA, it must submit a request at least two years beforehand.
10,000 to 16,000 US forces will remain in Afghanistan.
The US will retain independent control of Bagram air base. Small groups of US soldiers will also be deployed to Afghan military bases. Spanta said the US had asked for space for its soldiers in Kabul, Herat, Mazar, Kandahar, Shindand, Jalalabad, Helmand and Gardez. Their mission will mostly be training. (Given the number of US soldiers, practically speaking, the US military would need to be ‘hosted’ by the Afghan National Army anyway.)
The US military will be allowed to come and go from Afghanistan via airbases in Kabul, Bagram, Herat, Mazar and Shindand. US military and their contractors will be able to enter the country on their ID cards; civilian workers will have to get visas.
(As AAN has reported before, the size of any stay-behind US force will be magnified by contractors; currently the Department of Defence alone employs some 85,500 contractors directly (according to SIGAR) – more than it has soldiers on the ground and many more are employed indirectly or by other US government agencies. The number of ‘stay behind’ CIA officers, some of whom also participate in the conflict, will also need to be factored in to come up with an assessment of the real size of any US post-2014 force.)
From January 2015, the US military will conduct no operation on Afghan territory unless the Afghan government requests it.
US soldiers who commit crimes on Afghan soil will be prosecuted according to US law. Spanta said they had tried hard to convince the US not to insist on their soldiers having, as he put it, “judicial immunity” (masuniyat-e qaza’i) (he later corrected himself under an MP’s questioning, saying soldiers would not be immune, but would fall under sole US legal jurisdiction). Afghan attempts to get American soldiers alleged to have committed crimes tried according to Afghan law, he said, had failed and Afghanistan, therefore, had two options: accept this condition and sign the BSA or reject this condition and not sign it.
Spanta said the US had wanted ‘aggression’ – tajawuz – to be only defined as an air, ground or sea assault on Afghanistan from outside, but the Afghans had insisted it must include supporting or giving safe haven to Afghan insurgents who want to bring down the government. This was agreed, he said, along with a guarantee that there would be a joint response to any act of aggression, which could be economic, political or military.
Spanta said Afghanistan had shared the BSA with its neighbours and those in the region and all, except one country which he did not name, backed them in signing it. He mentioned China as especially encouraging and also Russia. (Iran has publicly stated its dislike of US troops staying on Afghan soil (3). However, a source in the Afghan foreign ministry told AAN that, during a recent visit to Kabul by the Iranian Deputy Foreign Minister Ibrahim Rahimpur, there was a noticeably softer line on the BSA.)
The head of the Afghan army, General Karimi, also spoke, telling Parliament he also supported the BSA. In answer to questions from critics among the MPs who wanted to know whether Afghanistan could defend itself if it did not have the BSA, he said it could and that it had the necessary human resources. However, in order to have a sustainable defence force, he said Afghanistan needed to keep improving the ANSF, paying soldiers and police and keeping them equipped. (At the international Afghanistan conference in Tokyo and the NATO summit in Chicago in 2012, the annual cost for the ANSF up to 2017 was put at 4.1 billion dollars annually, the lion’s share of which has been pledged by Western donors, with the US giving two billion; the Afghan government is expected to raise 500 million annually from its own resources. This would still leave a funding gap of 800 million per year.)
Karimi told critical MPs that if they could guarantee this help from other sources, that would be fine; otherwise Afghanistan needed the BSA with the US. Karimi mentioned four areas where the Afghan National Security Forces needed American support:
– the Afghan Air Force
– intelligence: the ministry of defence has the human resources, but lacks equipment and technology to utilise its expertise. It needed upgrading to the level of other countries in the region, Karimi said, in order to be able to compete with them.
– mine disposal
– heavy weapons systems
Karimi said the 4.1 billion dollars pledged at the Chicago summit was not guaranteed unless the BSA was signed. (Spanta also hinted that at least the US part of the billions of dollars of aid committed at the Tokyo Conference was also dependent on the BSA being signed). (4)
The MPs, given the chance to ask questions and give their opinions, were split on the BSA. Two who argued strongly against it on religious grounds were Abdul Satar Khawasi (Parwan) and Mawlawi Shahzada Shahid (Kunar) who both belong to Hezb-e Islami while Shahid is also a senior member of the Ulama Council. Khawasi, in an emotional appeal spoke about honour. He said zina (sex outside marriage) and lawatat (homosexual acts) are not crimes in the US; what would happen, he asked, if the honour of an Afghan family was violated (by a US soldier, as this implies) when the US did not consider such acts a violation of honour? This point is a great deal stronger than it sounds in translation. However, it should be noted that, as far as AAN knows, no allegations of either ‘crime’ have been credibly made against any US soldier; the MP’s outrage was, in that sense, symbolic.
Mawlawi Shahzada Shahid said the BSA might not be against national sovereignty, but it would violate Afghanistan’s religious sovereignty, for example, concerning those crimes classified hudud and their punishments stipulated in the Quran. If committed by a US soldier, they would not be treated by US courts according to the stipulations of Islam, he said, and no-one had the right to compromise religiously mandated punishments.
Other MPs argued for the BSA on grounds of national interest, for example Shukria Barakzai (Kabul), Assadullah Sa’adati (Daikundi) and Zohra Naderi (Kabul) who said she was optimistic about the BSA, believing it would help defend national sovereignty and territorial integrity. Some of the broadly supportive MPs wanted assurances as to how other Islamic countries had dealt with US soldiers coming into their territory while remaining under US legal jurisdiction. Spanta mentioned Turkey as an example of where this was happening without problems.
Several MPs asked about a letter purportedly from the Afghan embassy in Washington sent as part of the BSA negotiations to the US government and leaked and published on an Afghan website (here). “The US,” ran the text of the document, “admits that security and defense cooperation between the two countries will not include CIA activities and drone strikes.” Spanta said the letter had been fabricated by the Taleban and should be ignored. However, it looks too dull to be a forgery and appears more likely to be a genuine but old and superseded document in which the Afghan government had been setting out a previous debating position.
Moreover, even if the letter was a forgery, it raises an important issue: whatever agreements the CIA might be operating under in Afghanistan are unknown. The agency will not be mentioned in the BSA despite it being a key player in the war. The unaccountability of the CIA in Afghanistan is an issue which AAN has written about several times (see for example here). Despite not having combatant privileges under the Laws of War, it participates in the conflict. It supports militias operating outside Afghan state command structures and continues to hand over detainees to facilities which, because of evidence of torture presented by UNAMA, the Afghan Independent Human Rights Commission and others, ISAF had stopped transfers to.
As always, the devil of the BSA will be in the detail. Two precursors to the BSA, the memorandums of understanding (MoUs) on the detention centre at Bagram (March 2012) and night raids (April 2012) showed this very clearly (our analysis here and here). The implications of both MoUs emerged only slowly on the Afghan side. What exactly had been agreed was disputed (would the Afghan state hold its people without trial? were US forces allowed to unilaterally conduct night raids?) and, in the end, the Bagram MoU had to be re-negotiated, but not before months of rancour and with a final (unpublished) agreement which still left room for manoeuvre. (See AAN reporting here, here, here, here and here. Before the loya jirga on Thursday, the full text of the BSA will have to be released to the delegates; then the scrutiny can really begin of what exactly Afghanistan and the United States may be letting themselves in for.
(1) Delegates to the jirga will include, along with members of parliament, provincial councillors and senators, selected to ‘represent’ the nation, ulama, tribal leaders, representatives of the disabled, refugees and civil society.
(2) Deputy Foreign Minister Ershad Ahmadi and a representative of the finance ministry, Gul Maqsud Sabr, also came to the parliament.
(3) The Iranian President Hassan Rouhani, while in the United States for the UN General Assembly in September 2013 and asked about Afghanistan and foreign forces, said rather diplomatically and through a translator: “Unfortunately … US forces intend to stay in some bases in Afghanistan. And this could become an excuse for Taliban and other extremist groups to continue to resorting to, you know, acts that — actively insecurity (sic) of that cuntry, because one aspect here that contributes to the activity of these groups is the presence of foreign forces in the region… We don’t find them useful. We find (foreign forces) detrimental to regional security and peace.”
(4) USAID currently had budgeted 1.8 billion dollars for Afghanistan annually; additionally, the Department of Defence has reconstruction-related funds like the 200 million dollars (2013) Commander’s Emergency Response Program.
This article was last updated on 9 Mar 2020