By signing long-delayed security agreements with the US and NATO on the second day of its existence (30 September 2014), the new Afghan leadership has hit at least three birds with one stone. It has projected an image of itself as reliable to Afghans and to its international partners, and it has secured an important financial lifeline for the country. The latter is particularly important as, in addition to its generally projected budgetary gap, the country is facing a current liquidity crisis and, most importantly, without external assistance, it cannot pay the salaries of the soldiers and police fighting the Taleban in the long run. AAN’s Thomas Ruttig and Kate Clark have been examining the texts of the agreements looking at what difficulties it has relieved, but also where bones of contention may still be lying.
On the first working day after the presidential inauguration, Afghanistan’s new government signed two long-delayed security agreements: the “Security and Defence Cooperation Agreement” with the US (formerly and still better known as the Bilateral Security Agreement, BSA – read the text here; see also the Annex at the end of this analysis) and a Status of Forces Agreement (SOFA) with NATO (read the text here). For ISAF troop-contributing nations other than the US, the NATO SOFA is a prerequisite for further engagement in Afghanistan in Mission Resolute Support (MRS), starting in 2015.
Former president Hamed Karzai had adamantly refused to sign the BSA, mistrusting American motives and suspecting it and Pakistan of being behind the insurgency. With the new government in place, its dual leadership – president Ashraf Ghani and quasi-prime minister Abdullah – have both fulfilled the promise they gave to voters (and Afghanistan’s international supporters) that, if elected, they would sign the BSA and SOFA.
Since 2001, there have been two international military missions in Afghanistan, ISAF and the US counter-terrorism Operation Enduring Freedom that were later merged under one command. From what NATO and the Americans have said, there will be some sort of dual mission again, the (US-led) NATO Resolute Support, involved in supporting the Afghan National Security Forces (ANSF), and a separate US counter-terrorism mission against the “remnants of al-Qaeda” or “al-Qaeda and its affiliates” (the latter a catch all phrase used to cover other groups including the Taleban). (1) However, the scale and aims of the post-2015 will be considerably different.
The American perspective, set out in May 2014 by President Barack Obama is that: “America’s combat mission will be over by the end of this year” and, he said, from 1 January 2015, it will be “training Afghan forces and supporting counterterrorism operations against the remnants of al Qaeda.” To do this, he said, the US would station just under 9,800 troops in Afghanistan, drawing them down completely by the end of 2016.
These US troops will be part of the up to 12,000-men strong NATO mission ‘Resolute Support’ which replaces ISAF. According to the alliance, it is specifically a “non-combat mission in Afghanistan,” aimed at working to “help train, advise and assist Afghan security forces”. The German commander of NATO HQ in Brunssum, General Hans-Lothar Domröse, has said 1200 to 1400 trainers and advisors will be deployed; the rest (and bulk) of the personnel will be involved in logistics, including medical support, force protection and flying helicopters. He added that the mission’s personnel will still include some combat troops, in its protection element, although this does not mean that these troops will bet involved in combat, except possibly in their protection function.
According to official NATO figures, ISAF currently still has 41,124 soldiers from 48 countries, in Afghanistan, almost two thirds of them Americans. (2) Around 40 countries have indicated to participate in the follow-up mission.
Why the need for new agreements?
Legally, NATO had to get a new legal agreement to stay in Afghanistan when the UN Security Council mandate for ISAF expires at the end of 2014. Politically, and given that the US is the major NATO contributing nation in Afghanistan, it also needed the BSA to be signed first.
The US position is different (for a detailed look at this, see here and here). Its legal mandate to deploy to Afghanistan (aside from its role in ISAF) has come, domestically, from the rather wide-ranging 2001 Congressional Authorization of Force for the president to use force against “those nations, organizations, or persons he determines planned, authorized, committed, or aided the [9/11 attacks], or harboured such organizations or persons, in order to prevent any future acts of international terrorism…”
There is no sunset clause on this authorisation. There is also no sunset clause in the SOFA signed by the two countries in 2003 (Dr Abdullah, as foreign minister, for the Afghans). However, again, politically, for both Afghanistan and the US, a fresh agreement was needed, given the changing relationship, the withdrawal of the bulk of foreign troops, the changed mission and the changing nature of the war. As AAN has reported the conflict is now overwhelmingly Afghan versus Afghan. Yet Afghanistan, the US and NATO wanted the continuing international military support to continue. They now have the basis for this to go ahead.
What is in the agreements?
The texts of the US and NATO agreements – both of which last until 2024 and can be amended or annulled with two years’ notice – are largely the same. (This analysis largely cites the US agreement.) Both contain the normal Status of Forces issues that appear at first glance to be bizarrely mundane – to do with driving and pilot licenses, parking tickets, import and export duties, taxes and radio band widths. In this category, we also find what was for Karzai (and for former President Maliki in Iraq), the problematic issue of Afghan courts not having jurisdiction over those suspected of crimes among US servicemen and women and those in the “civilian component”, ie contractors employed by the US ministry of defence (article 13 in the BSA; cf article 11 in the SOFA). (The US always insists that it has jurisdiction over its people, although that has resulted in many cases where justice has not been done.) (3)
All these typically SOFA articles are to do with sorting out inter-state liability. As the US Congressional Research Service explained: “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.” Both the US and NATO, however, agreements are much more than SOFAs; they also set out the aims and limits of the missions themselves.
The BSA repeatedly stresses the supportive nature of the US mission: US forces shall undertake “supporting activities, as may be agreed, in close cooperation and coordination with Afghanistan to assist the ANDSF [Afghan National Defence Security Forces]” (art.2.2). It acknowledges that “US military operations to defeat al-Qaida and its affiliates may be appropriate,” but specifies that there will not be “unilateral US military counter-terrorism missions” and that US counter-terrorism operations are “intended to complement and support ANDSF’s counter-terrorism operations, with the goal of maintaining ANDSF lead” (art 2.4). (4) Diplomats told The Wall Street Journal on the margins of the September 2014 NATO summit that finalised post-2014 NATO planning that “such a force could range from 2,000 to 4,000 American troops, including special-operations teams that would work alongside Afghan special forces to hunt and kill wanted al Qaeda and Taliban militants.”
The NATO mission has a specifically ‘higher-level’ focus – “training, advising and assistance” will be delivered “at the security and national institutional level.” ANDSF advising would be extended only “to the Corps and Corps-equivalent Police headquarters.” In other words, NATO soldiers will not be in the field advising with one exception: “the non-combatant training, advising and assistance by NATO forces could be extended to the tactical level in the case of Afghan Special Operations Forces” on the “request and invitation” of the Afghan government (art 2.2). The current commander of ISAF, the American General John Campbell, speaking to reporters on 2 October 2014, has reiterated that US forces are already “not out on patrol with the Afghans.” The post-2015 mission, he said, would be fundamentally different from the current one, with training and advising at the corps and ministerial levels.
The agreements also spell out where US and NATO forces will be based. Article 7 of the BSA, for example, concerns US troops “access and use” to a number of agreed “facilities and areas” in Kabul, Bagram, Mazar-e Sharif, Herat, Kandahar, Shorab in Helmand, Gardez, Jalalabad and Shindand. US forces will “control access” to facilities where it has indeed “exclusive use”, although “upon request,” the US “shall provide to relevant authorities of Afghanistan” access to these facilities too. The possibility of establishing new or temporary ‘bases’ in certain allocated “areas” if this is “agreed and authorized by the [Afghan] Minister of Defence” is also in this agreement.
Combat or support?
Many have come to be cynical about US and Afghan statements as to who is actually in charge of any mission or operation, given the weaselly way terms like ‘Afghan-led’ have been used, sometimes even when no Afghans were involved. The provision for self-defence in both agreements, could conceivably be a get-out clause to allow combat. However, with the US intent on leaving at the end of 2016, its genuine goal would seem to be getting Afghan forces able to defend their own territory. Also 9,800 troops (and many of them in support roles) is a very small number to try to carry out much pre-emptive combat. This is even though there will be a large civilian component supporting the mission (when AAN last looked at ratios, we found more contractors than troops on the ground, even then only counting those directly employed by the Department of Defence. The latest US CENTCOM Quaterly Contractor Census Report (for July 2014) gave the figure of 51,489 contractors working for the US Department of Defence in Afghanistan plus 14,634 on other CENTCOM locations, some of which might be Afghanistan-related. Most of them went under logistics, base support, translators and such, while 3,177 (6%) were categorised as “security” and 3,628 as “others”, defined as working for the “Defense Logistics Agency, Army Materiel Command, Air Force External and Systems Support contracts, Special Operations Command and INSCOM [the U.S. Army Intelligence and Security Command].”
The possibility of combat would be highest with those, presumably special forces out, at the “tactical level” with Afghan forces, although they are specified as providing “non-combatant training, advising and assistance.” As we also reported in January 2013, a unique joint multi-national special forces structure has been established, the Special Operations Joint Task Force – Afghanistan (SOJTF-A); at that time, Afghan forces fell under US command, something which we felt “would enable the US to maintain direct influence over Afghan SOF [special operations forces], while still withdrawing troops.”
It should also be noted that the US agreement does not cover the CIA, which has had a secretive paramilitary role in Afghanistan, working with NDS paramilitaries and irregular ‘combat forces’. Nor does it allude to the way US special forces have cooperated with Afghan militias in the past. AAN and others have reported on the abuses committed in both circumstances and how the lack of Afghan chain of command and, in the case of the CIA, any accountability in Afghanistan has facilitated those abuses. (See also Matt Aikins reporting in “The A-Team Killings” from Wardak province, published in the Rolling Stone magazine last year in November.) This, however, will be up to the new government to sort out, to bring all forces under an Afghan command, something the Karzai government failed to do.
Some sensitive issues
Some issues get particular attention in the agreement, most of them attempts at soothing Afghan concerns over practices which have particularly upset people (for example, night raids, civilian casualties and detentions). They also include some protection for US soldiers and contractors.
US forces “shall not arrest or imprison Afghan nationals, nor maintain or operate detention facilities in Afghanistan.” (art 3.3) From this we understand the US side of Bagram detention facility which houses foreign nationals will close. Karzai had already been hammering away at the US to end all involvement in detentions, including initial screening and interrogation. This trend looks set to continue.
In carrying out force protection, US forces “shall not target Afghan civilians, including in their homes” (art 7.3) Targeting civilians, anyway, is a war crime, so this clause is there for show, presumably because of concerns about civilian casualties.
US forces “shall not enter Afghan homes for the purposes of military operations and searches except under extraordinary circumstances involving the urgent risk to life and limb of US nationals” (art 3.3). So, there will be no house searches or night raids, but a raid on a house to secure a US hostage would be allowed. US forces also shall not enter mosques (art 14.1).
Afghanistan will not surrender members of the US armed forces or its civilian component to an international tribunal (art 11.5). This protects them, from example, from the International Criminal Court if there were accusations of war crimes. (Afghanistan is an ICC signatory, the US is not.) However, many European contributors to ISAF, also signatories to the Rome Statute which set up the court, also insisted on this clause in their military agreements with Afghanistan.
While both parties “strongly oppose aggression and use of force by “foreign states and externally based or supported armed groups” including provision of sanctuary or arms” (a clear nod to Pakistan’s support for the insurgency), the BSA gives Afghanistan no right for US forces to protect it from external aggression; the US will “regard with grave concern” any aggression or threat of aggression and both parties shall cooperate on strengthening Afghan defences (art 6).
What will the agreements achieve?
The signing of the two military agreements, on 30 September, was a step hugely symbolic and with major practical consequences. It hit three birds with one stone.
Bird no 1: international relations
With the signatures, the Ghani-Abdullah government has indicated to the West that it wants to act swiftly on urgent matters. It has projected reliability and an intent to leave behind the unpredictable ups and downs of the last Karzai years. The upset between Karzai and his international partners, particularly the US, was, of course, never one-way; the unhelpful blame game was on both sides. Nevertheless, by the end, the relationship had broken down irretrievably, with Karzai saying he did not trust the Americans and indeed blaming them for the insurgency. It remains to be seen whether the good mood will last or if this is just a post-election, post-inaugural honeymoon. After all, there are still enough potential bones of contention that could lower the mood in the future.
There was an important element of symbolism in how the agreements were signed – on the Afghan side the new chairman of the National Security Council, Hanif Atmar, signed, for the US, its Kabul ambassador James Cunningham and for NATO, its civilian representative, the Dutchman, Maurits Jochems. The Afghan signature did not come from the president, as the US had demanded when Karzai was still in power (presumably because they did not trust his intentions if it did not). However, as the whole new leadership from both ‘camps’ – including Ghani and Abdullah – were lined up in the background, as well as the head of the supreme court and some former mujahedin leaders (Mojaddedi, Gailani), to provide legal, ‘historical’ and religious cover for the government, this was no longer an issue.
Bird no 2: the home audience
Secondly, the new government has aimed at projecting the same reliability to Afghans, at least to those who believe a complete withdrawal of western troops would have jeopardised the military and economic stability and sustainability of the country. Most importantly, wages will now be paid to the Afghan army and police for the next years. (The NATO summit in Wales committed financial support up to, and including, 2017.). If this had not been forthcoming, one’s mind would inevitably return to the fate of the Najibullah government after Moscow ended financial support in 1992. Many feared that, without western and other support, the Taleban might take over again, or at least try to do so with more fervour after ISAF ended its mission on 31 December.
The Taleban have already increased their activity this year and changed the modus in which they operate. Although official statistics on this have not been available for some years (since NATO/ISAF handed over responsibility to the Afghan side for reporting), the intensification of the fighting is obvious from reporting in Afghan and international media, from UNAMA’s six monthly reporting on civilian casualties (see AAN commentary), statements of Afghan ministries and AAN’s own reporting. In Kunduz, Faryab, the east and northern Helmand (see also here), we have seen the Taleban making forays near to district and provincial capitals and taking over some district centres, albeit temporarily. They have been massing in greater numbers in ways not seen since 2006 and there have been more ground engagements. In some cases, the ANSF, still with ISAF air support, have succeeded in pushing the Taleban back. In others not. The toll, however, on the ANSF of the intensification of the fighting has been grievous. According to ISAF commander, General Campbell, about 7000-9000 Afghan police and soldiers have been killed and wounded, so far this year (equal to his numbers for the whole of 2013).
The Taleban, who have announced time and again that their fight will only end when the last foreign soldier has left, have reacted with violence and harsh rhetoric to the agreements with NATO and the US: rejecting them as “treason” committed by a “slave [or stooges’] government” (terms used for the Karzai government and now transferred to the new one). They also launched attacks on the day of the inauguration in Kabul, killing at least seven and injuring 21 people on the day following the signing ceremony. Since then, they have blown up Afghan army buses in the capital three days running.
In this context, the two signed documents also mean continuity in the confrontation between the Afghan state and the Taleban. (This confrontation was there also under Karzai, despite his controversial appeals to the Taleban as ‘brothers’.) Many Afghans may feel relief about this. One scenario that has figured prominently in discussions on ‘reconciliation’ in recent years (as, for example, explained in this article by Ahmed Rashid or here) now seems less likely, given the presence of strongly anti-Taleban forces in Abdullah’s team being also in the government (and Dostum’s presence on the Ghani ticket), that Kabul would take a shortcut to a ‘sell-out deal’ with the insurgents, creating an ‘all-Pashtun and anti-North’ coalition’.
Continuing war has consequences, however. There is the continual bloodletting, with thousands of Afghan army and police killed and injured, along with civilians and the insurgents themselves. As Ghani pointed out to AAN, “the cost of the war is being bourn by the poor,” not only those living in areas of conflict, but also the poor communities which send disproportionate numbers of men to the ANSF (especially Badakhshan, Takhar and Nangrahar). Conflict makes it easier for neighbouring and regional countries to continue their interference in Afghanistan. It also drains and distorts the economy. It depletes non-security sectors of urgently necessary resources through constantly high military spending (although mainly covered by external resources; the annual minimum USD four billion needed to sustain the ANSF would already use up all domestic Afghan revenues, as the US government has confirmed. It should be noted also that the BSA commits Kabul to maximise its own military spending. The World Bank projects (here, pp 17, 18) that Afghan security spending will be “more than 15.2 percent of GDP in fiscal [year] 2022 (about as much as total projected domestic revenue in that year)” Already now, security swallows 60 per cent of the operating budget. At the same time, some actors have done well out of the fighting – getting lucrative contracts for guarding, supplies and logistics and, as Ghani also pointed out, “for our political-economic elite, the war was cost free because the massive international presence made it cost free.” This, however, he said, would now change. “… with the BSA, it becomes our conflict. We’re the lead and [we have the] responsibility.”
Securing the continuation of western military and financial support has not relieved the new government of coming up with a convincing and united strategy on the question: what to do with the Taleban (and other insurgents)? Ghani, after his inauguration, has repeated his offers of discussions, inviting the Taleban and Hezb-e Islami to say what their problems are” and enter into “a political negotiation”. However, it does give it some breathing space to consider options and also makes it stronger vis-à-vis the Taleban for either negotiating or fighting.
During his inaugural speech, Ghani promised to deal with “those who are fighting, those who are killing our children and elders” and to “use all legal measures to protect citizens’ rights.” The military option is still, very much on the table. However, Ghani and Abdullah also had other (similar) messages. “The point is that everything we are struggling for – legitimacy of the state institutions, justice and delivery of services, fighting against corruption,” Abdullah told AAN ahead of the second round “[we] will create circumstances that would isolate those who would like to continue fighting the war.” Compare this with Ghani’s assertions in his inaugural speech that corruption was feeding instability. Both men have also spoken about the need to deal with the regional context of the war.
For the Taleban, any foreign troop presence remains a casus belli, as they will do their utmost to present such operations as continuing ‘occupation’. Particularly, when civilians are harmed by foreign armies, as during a recent airstrike in Khost province, they might even be able to convince some people of their standpoint. (There is also a small but vocal internal opposition to any foreign military presence bases among the political forces in the country, see our reporting here.) Already, however, there are far fewer foreign troops visible in Afghanistan. From 2015, with their largely high-level support, they will largely be invisible to the average Afghan.
Bird no 3: A financial lifeline
The third point goes beyond symbolism and self-presentation – the continuation of western financial aid has been secured. This is still the Afghan government’s lifeline, with domestic revenues that have shrunk by 25 per cent this year (although blamed on the months-long election standstill, see here) and declining foreign aid; there has also been mismanaging of the budget and some withholding of tax. The USAID budget for the country had already shrunk from 4.5 to 1.8 billion dollars between 2010 and 2012, and overall humanitarian aid dropped by half in 2012 (see here and here). This comes on top of an annual “financing gap” projected in a World Bank report (here, p 57) of 33 per cent currently, dropping to 25 per cent till 2021/22. The World Bank adds: “To put these figures in context, the financing gap that triggered Greece’s current fiscal crisis was close to 13 percent of GDP.” According to a US government report (here, p3), “donors funded about 90 per cent of Afghanistan’s estimated total public expenditures from […] 2006 to 2010” representing a donor dependency the World Bank calls “almost uniquely high globally“ (here , p 27).
Of course, not all of the aid decline is a loss, as much of the money went into private coffers or straight back to donor countries; the World Bank says that “only 38 cents of every aid dollar spent in Afghanistan actually reaches the [Afghan] economy.” There are no guarantees yet that this will change – although president Ghani, may be better equipped, as a former minister of finance, to extract the maximum from aid for the state. His linking of corruption with instability in his inaugural speech was also followed swiftly with a practical measure, a decree ordering a fresh investigation into the Kabul Bank scam through which one billion dollars found their way into private pockets.
How urgent sorting out the country’s finances was shown by the recent request, in mid-September, for a financial bailout of USD 537 million which the Afghan government has sent westward; the state has faced acute liquidity problems and was unable to pay government employees or give food allowances to all 350,000 soldiers and policemen. Sigar, meanwhile, has already asked for more clarification, so no deal is yet done. Yet it is much more likely now that the government has shown its commitment to its international partners and a desire to improve relationships.
The fight against corruption has the potential to alienate powerful political elements, as Ghani’s remark at his inauguration on corruption in the judiciary and the reaction to it, has already shown. Although everyone in Afghanistan knows how right the president is (despite those many honest judges, prosecutors and policemen), the immediate rebuttal by the Supreme Court showed he has stepped on someone’s toes. Now, what will happen if he starts looking into land and other property grabbing, or the Sherpur case in Kabul, or at least starts taxing that land?
The new government has started ambitiously, with some sharp warnings to those who enjoyed lucrative positions in the old state, among them judges, MPs, police and prosecutors. The BSA and NATO SOFA, by hitting those “three birds” has strengthened the new government. Even so, given the problems Afghanistan faces, none of them will be easily solved.
(1) This is not a defined term, however, at least not in government documents. Official lists like the list of Foreign Terrorist Organizations (FTOs) of the Bureau of Counterterrorism (CT) in the US State Department, the US Treasury’s “Specially Designated Nationals and Blocked Persons List”, the EU sanctions list or the list of “Proscribed terrorist groups” of the UK Home Office do not use the term “affiliates”. But it can be found in State Department CT country reports that, again, do not provide a list or definition (for example here). It also makes a difference between “affiliate”, “link-minded” and “allied” groups. Affiliates mentioned are ISIL (now known as IS), the Syrian Nusra Front and al-Qaida in the Arabian Peninsula; also groups in Punjab are mentioned without naming them. The Afghan and Pakistani Taliban TTP) and the Haqqani network are called “like-minded groups“. This 2012 Brookings paper lists and categorises and discusses different degrees of affiliation.
(2) 20 countries still have more than 100 soldiers in Afghanistan, including four – the US, the UK, Germany and Italy – with four-digit numbers. 28.970 come from the US.
(3) Art. 1.3 and 1.6:
3. “Member of the civilian component” means any person employed by the United States Department of Defense (DoD) who is not a member of the force. However, “member of the civilian component” does not mean persons who are permanently resident in Afghanistan or Afghan nationals who normally reside in Afghanistan. […]
6. “United States contractor employees” means the employees of United States contractors.
(4) ANDSF is a new acronym. It stands for Afghan National Defence and Security Forces. So far, ANSF was used.
Annex: Text of the US-Afghan “Security and Defence Cooperation Agreement”
SECURITY AND DEFENSE COOPERATION AGREEMENT BETWEEN THE ISLAMIC REPUBLIC OF AFGHANISTAN AND THE UNITED STATES OF AMERICA
Preamble
The Islamic Republic of Afghanistan (hereinafter, “Afghanistan”) and the United States of America (hereinafter, “the United States”), referred to collectively as “the Parties” and singularly as a “Party;”
Recognizing the Enduring Strategic Partnership Agreement between the Islamic Republic of Afghanistan and the United States of America, signed May 2, 2012, (the “Strategic Partnership Agreement”) and reaffirming that, as recognized in that Agreement, the Parties are committed to strengthen long-term strategic cooperation in areas of mutual interest, including: advancing peace, security, and stability; strengthening state institutions; supporting Afghanistan’s long-term economic and social development; and encouraging regional cooperation;
Confirming the recognition in the Strategic Partnership Agreement that cooperation between the Parties is based on mutual respect and shared interests;
Emphasizing also the Strategic Partnership Agreement’s recognition that the Parties will go forward in partnership with confidence because they are committed to seeking a future of justice, peace, security, and opportunity for the Afghan people, as well as the reaffirmation of the Parties’ strong commitment to the sovereignty, independence, territorial integrity, and national unity of Afghanistan;
Recognizing the enduring partnership between Afghanistan and the United States, and affirming the mutual intent of the Parties to
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expand, mature, promote and further elevate their security and defense cooperation based on this Agreement;
Desiring to continue to foster close cooperation concerning defense and security arrangements in order to strengthen security and stability in Afghanistan, contribute to regional and international peace and stability, combat terrorism, achieve a region which is no longer a safe haven for al-Qaida and its affiliates, and enhance the ability of Afghanistan to deter threats against its sovereignty, security, and territorial integrity; and noting that 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;
Recalling the Chicago Summit Declaration on Afghanistan, issued on May 21, 2012, by the Heads of State and Government of Afghanistan and Nations Contributing to the North Atlantic Treaty Organization (NATO)-led International Security Assistance Force (ISAF), and specifically, the participants’ renewed firm commitment to a sovereign, secure, and democratic Afghanistan and acknowledgment that ISAF’s mission will be concluded by the end of 2014 and that their close partnership will continue beyond the end of the transition period including through NATO and Afghanistan’s mutual commitment to work to establish a new NATO-led Mission to train, advise, and assist the Afghan National Defense and Security Forces (ANDSF), and noting here that such a mission will also need to be provided with the necessary authorities, status arrangements, and legal basis;
Reaffirming the continued support of the Parties for regional cooperation and coordination mechanisms, with a goal of increasing security and stability by reducing tensions, uncertainty, and misunderstanding;
Recalling the 2013 Consultative Loya Jirga’s recognition that this Security and Defense Cooperation Agreement between Afghanistan and the United States is important for the security of Afghanistan;
Desiring to develop further the means of defense and security cooperation between the Parties, based on the principles of full respect for the independence, sovereignty, and integrity of their territories,
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and non-interference in the domestic affairs of each other, in order to promote security and stability in the region, and to combat terrorism;
Agreeing on the importance of cooperative relationships between Afghanistan and its neighbors conducted on the basis of mutual respect, non-interference, and equality and calling on all nations to respect Afghanistan’s sovereignty and territorial integrity, and to refrain from interfering in Afghanistan’s internal affairs and democratic processes; and
Affirming also that the Parties’ cooperation is based on full respect for the sovereignty of each Party, the purposes of the United Nations Charter, and a shared desire to provide a framework for defense and security cooperation between the Parties; and reaffirming their strong commitment to the sovereignty, independence, territorial integrity, and national unity of Afghanistan, as well as respect for Afghan laws, customs, and traditions;
Have agreed as follows:
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ARTICLE 1
Definitions
1. “United States forces” means the entity comprising the members of the force and of the civilian component, and all property, equipment, and materiel of the United States Armed Forces present in the territory of Afghanistan.
2. “Member of the force” means any person belonging to the land, sea, or air services of the United States Armed Forces.
3. “Member of the civilian component” means any person employed by the United States Department of Defense (DoD) who is not a member of the force. However, “member of the civilian component” does not mean persons who are permanently resident in Afghanistan or Afghan nationals who normally reside in Afghanistan.
4. “Executive Agent” means Ministry of Defense (MoD) for Afghanistan and DoD for the United States. The Executive Agent serves as the principal contact for its respective Party for the implementation of this Agreement.
5. “United States contractors” means persons and legal entities who are supplying goods and services in Afghanistan to or on behalf of United States forces under a contract or subcontract with or in support of United States forces.
6. “United States contractor employees” means the employees of United States contractors.
7. “Agreed facilities and areas” means the facilities and areas in the territory of Afghanistan provided by Afghanistan at the locations listed in Annex A, and such other facilities and areas in the territory of Afghanistan as may be provided by Afghanistan in the future, to which United States forces, United States contractors, United States contractor employees, and others as mutually agreed, shall have the right to access and use pursuant to this Agreement.
8. “Afghan National Defense and Security Forces” or “ANDSF” means the entity comprising the members of the security forces under the Ministry of Interior and the MoD of Afghanistan and, as
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appropriate, the National Directorate of Security, and other entities as mutually agreed.
9. “Taxes” means all taxes, duties (including customs duties), fees, and similar or related charges of whatever kind, imposed by the Government of Afghanistan which, for the purposes of this Agreement, means by governmental authorities of Afghanistan at any level, including provincial and district levels, and by the agencies of such governmental authorities.
ARTICLE 2
Purpose and Scope
1. The Parties shall continue to foster close cooperation to strengthen security and stability in Afghanistan, counter terrorism, contribute to regional and international peace and stability, and enhance the ability of Afghanistan to deter internal and external threats against its sovereignty, security, territorial integrity, national unity, and its constitutional order. Unless otherwise mutually agreed, United States forces shall not conduct combat operations in Afghanistan.
2. To that end, the United States shall undertake supporting activities, as may be agreed, in close cooperation and coordination with Afghanistan, to assist ANDSF in developing capabilities required to provide security for all Afghans, including as may be mutually agreed: advising, training, equipping, supporting, and sustaining ANDSF, including in field engineering, countering improvised explosive devices, and explosive ordnance disposal; establishing and upgrading ANDSF transportation and logistics systems; developing intelligence sharing capabilities; strengthening Afghanistan’s Air Force capabilities; conducting combined military exercises; and other activities as may be agreed. The Parties will continue to work on the details of ANDSF development as set forth in the Afghan Program of Record, adopted at the Chicago Summit in 2012, and in the context of the Afghanistan-United States Bilateral Security Consultative Forum.
3. The Parties recognize that ANDSF are responsible for securing the people and territory of Afghanistan. The Parties shall work to enhance ANDSF’s ability to deter and respond to internal and external threats. Upon request, the United States shall urgently determine
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support it is prepared to provide ANDSF in order to respond to threats to Afghanistan’s security.
4. 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. U.S. military counter-terrorism operations are intended to complement and support ANDSF’s counter- terrorism operations, with the goal of maintaining ANDSF lead, and with full respect for Afghan sovereignty and full regard for the safety and security of the Afghan people, including in their homes.
5. In furtherance of the activities and operations referred to in this Article and for other purposes and missions as may be mutually agreed, and consistent with the authorizations as detailed in this Agreement, United States forces may undertake transit, support, and related activities, including as may be necessary to support themselves while they are present in Afghanistan under the terms of this Agreement, and such other activities as detailed in this Agreement, or as may be mutually agreed.
6. This Agreement, including any Annexes and any Implementing Agreements or Arrangements, provides the necessary authorizations for the presence and activities of United States forces in Afghanistan and defines the terms and conditions that describe that presence, and in the specific situations indicated herein, the presence and activities of United States contractors and United States contractor employees in Afghanistan.
ARTICLE 3
Laws
1. It is the duty of members of the force and of the civilian component to respect the Constitution and laws of Afghanistan and to abstain from any activity inconsistent with the spirit of this Agreement and, in particular, from any political activity in the territory of Afghanistan. It is the duty of United States forces authorities to take necessary measures to that end.
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2. The Parties’ respective obligations under this Agreement, and any subsequent arrangements, are without prejudice to Afghan sovereignty over its territory, and each Party’s right of self-defense, consistent with international law. Cooperation and activities relating to implementation of this Agreement shall be consistent with the Parties’ respective commitments and obligations under international law.
3. United States forces shall not enter Afghan homes for the purpose of military operations and searches except under extraordinary circumstances involving the urgent risk to life and limb of U.S. nationals. United States forces shall not arrest or imprison Afghan nationals, nor maintain or operate detention facilities in Afghanistan.
ARTICLE 4
Developing and Sustaining Afghanistan’s Defense and Security Capabilities
1. With full respect for Afghanistan’s sovereignty, the Parties recognize Afghanistan’s current requirement for continued international security assistance, and share the goal of Afghanistan taking increasing and, ultimately full, responsibility for funding its defense and security needs and sustaining ANDSF.
2. Afghanistan shall make, consistent with its political and economic stability and its general economic condition, the full contribution permitted by its manpower, resources, and facilities to the development and sustainment of its own defense and security forces. Afghanistan shall take all necessary measures to develop and sustain its defense and security capacities.
3. So long as the Strategic Partnership Agreement so provides, and guided by the pledges set forth at the Chicago Summit in 2012, the United States shall have an obligation to seek funds on a yearly basis to support the training, equipping, advising, and sustaining of ANDSF, so that Afghanistan can independently secure and defend itself against internal and external threats, and help ensure that terrorists never again encroach on Afghan soil and threaten Afghanistan, the region, and the world. The United States shall consult with Afghanistan regarding the amount of funding needed to accomplish the purposes of this Agreement, keeping in mind pledges made in Chicago, and shall take the results of those consultations into
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consideration in executing this obligation. Taking into account Afghanistan’s annual priorities, the United States shall direct appropriate funds through Afghan Government budgetary mechanisms, to be managed by relevant Afghan institutions implementing financial management standards of transparency and accountability and procurement, audit, and regulatory oversight in accordance with international best practices.
4. The Parties recognize the importance of ANDSF having the necessary equipment and materiel to secure Afghanistan. To that end, the United States shall continue to cooperate with Afghanistan on providing equipment and materiel for ANDSF.
5. Afghanistan and the United States may cooperate and coordinate with other countries to strengthen ANDSF, as may be mutually agreed, including on equipping ANDSF.
6. In order to contribute effectively to the security of Afghanistan and the region, the United States agrees to cooperate with Afghanistan to continue the development of ANDSF capabilities consistent with Afghanistan’s status as a Major Non-NATO Ally.
7. The Parties recognize the benefits for Afghanistan’s defense and security to be derived from developing defense capabilities and systems that are consistent with NATO standards and that promote interoperability with NATO. The Parties shall coordinate in the development of Afghanistan’s defense and security forces, equipment, materiel, facilities, operational doctrine, and institutions to achieve standardization and interoperability with NATO, in order to promote further the effective utilization and maintenance of defense and security assistance provided to Afghanistan, and to maximize the benefits of cooperation between ANDSF and United States forces. This coordination shall not preclude Afghanistan from procuring independently equipment and materiel for ANDSF from non-NATO countries with its own resources.
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ARTICLE 5
Defense and Security Cooperation Mechanisms
1. The Parties agree to direct the Afghanistan – United States Working Group on Defense and Security Cooperation, established under the Strategic Partnership Agreement, to:
a. Develop appropriate measures of effectiveness for the analysis and strengthening of Afghanistan’s use of available defense and security resources, consistent with the purpose and scope of this Agreement;
b. Complete semi-annual assessments of actual performance against these measures to inform the Parties’ respective resource allocation decisions and their cooperation in developing and sustaining Afghanistan’s defense capabilities;
c. Develop a process consistent with the purpose and scope of this Agreement, for making timely, accurate, and effective cooperative assessments of internal and external threats to Afghanistan; and
d. Make specific recommendations on enhancing information and intelligence sharing and evaluation.
2. The Parties share the objective of continuing to improve their ability to consult on such threats, including considering how to establish secure or dedicated channels of communication.
ARTICLE 6
External Aggression
1. Afghanistan has been subject to aggression and other uses of force inconsistent with the United Nations Charter by foreign states and externally based or supported armed groups. In the context of this Agreement, the Parties strongly oppose such uses of armed force or threats thereof against the territorial integrity or political independence of Afghanistan, including in this regard provision to armed groups of support, such as sanctuary or arms, by any state or other armed groups. The Parties agree to cooperate to strengthen Afghanistan’s
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defenses against such threats to its territorial integrity, sovereignty or political independence.
2. The United States shall regard with grave concern any external aggression or threat of external aggression against the sovereignty, independence, and territorial integrity of Afghanistan, recognizing that such aggression may threaten the Parties’ shared interests in Afghanistan’s stability and regional and international peace and stability.
3. On a regular basis, the Parties shall consult on potential political, diplomatic, military, and economic measures that could form part of an appropriate response in the event of such external aggression or the threat of external aggression against Afghanistan. Consultations shall seek to develop a list of political, diplomatic, military, and economic measures.
4. In the event of external aggression or the threat of external aggression against Afghanistan, the Parties shall hold consultations on an urgent basis to develop and implement an appropriate response, including, as may be mutually determined, consideration of available political, diplomatic, military, and economic measures on the list developed pursuant to paragraph 3, in accordance with their respective constitutional procedures.
5. The Parties shall develop comprehensive procedures to promote the effective accomplishment of such regular and urgent consultations.
a. Such comprehensive procedures shall recognize consultations involving the participation of the Afghanistan Foreign Minister and the United States Secretary of State, the Afghanistan Defense Minister and the United States Secretary of Defense, and respective Ambassadors in Kabul and Washington, D.C., as primary channels to initiate urgent consultations in the event of external aggression, or threat of external aggression.
b. Such comprehensive procedures shall not, however, limit or prejudice the Parties’ ability to consult each other in other channels or through other mechanisms, as urgency or exigency may require.
6. The Parties agree to direct the Afghanistan – United States Working Group on Defense and Security Cooperation to promote the
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effective implementation of this Article, including development of such comprehensive procedures, and review on a regular basis the list of measures developed pursuant to paragraph 3.
ARTICLE 7
Use of Agreed Facilities and Areas
1. Afghanistan hereby provides access to and use of the agreed facilities and areas, as defined in paragraph 7 of Article 1, solely to implement the purpose and scope of this Agreement, taking into account locations of ANDSF and the local Afghan population. Access to and use of such agreed facilities and areas for other purposes shall be as mutually agreed by the Parties.
2. Under this Agreement, Afghanistan hereby authorizes United States forces to exercise all rights and authorities within the agreed facilities and areas that are necessary for their use, operation, defense, or control, including the right to undertake new construction works. United States forces may carry out such construction works with members of the force and the civilian component or by contract.
3. Afghanistan hereby authorizes United States forces to control entry to agreed facilities and areas that have been provided for United States forces’ exclusive use, and to coordinate entry with Afghan authorities at joint-use agreed facilities and areas, for the purposes of safety and security. Upon request, the United States shall provide to relevant authorities of Afghanistan access to any agreed facility or area that has been provided for United States forces’ exclusive use. The Parties shall establish mutually agreed procedures regarding Afghan authorities’ access to any agreed facility or area that has been provided for United States forces’ exclusive use. Such procedures and access shall be established with due respect for United States forces operations and security requirements. Acknowledging that United States forces may conduct force protection activities at and in the vicinity of agreed facilities and agreed areas as are necessary, the Parties agree to coordinate and integrate their respective plans for force protection to ensure the safety of United States forces, with full respect for Afghan sovereignty and with full regard for the safety and security of the Afghan people. In furtherance of this objective, United States forces shall not target Afghan civilians, including in their
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homes, consistent with Afghan law and United States forces’ rules of engagement.
4. In pursuit of the purpose and scope of this Agreement, in particular United States efforts to train, equip, advise, and sustain ANDSF, Afghanistan shall provide all agreed facilities and areas without charge to United States forces.
5. United States forces shall be responsible for the construction, development, operations, and maintenance costs for agreed facilities and areas provided for their exclusive use, unless otherwise agreed by the Parties. Construction, development, operations, and maintenance costs for agreed facilities and areas provided for joint use, or otherwise used jointly by United States forces and ANDSF or other entities, shall be shared on the basis of proportionate use, unless otherwise agreed.
6. The United States confirms its commitment to respect relevant Afghan environmental and health and safety laws, regulations, and standards in the execution of its policies. United States forces operations and activities on agreed facilities and areas shall be conducted with due regard for the protection of the natural environment and human health and safety, with due respect for applicable Afghan laws and regulations, and in accordance with applicable United States laws and regulations and applicable international agreements.
7. United States forces operations and activities on agreed facilities and areas shall be conducted with full respect for Afghan laws and regulations for the protection of sites or artifacts of historic and cultural heritage. United States forces shall notify and consult immediately with appropriate Afghan authorities through the Joint Commission when sites or artifacts of historic and cultural heritage are discovered on an agreed facility or area.
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ARTICLE 8
Property Ownership
1. United States forces shall return to Afghanistan any agreed facility or area, or any portion thereof, including buildings, non-relocatable structures, and assemblies connected to the soil, including those constructed, altered, or improved by United States forces, when no longer needed for United States forces’ use. United States forces shall keep the requirement for such agreed facilities and areas under periodic reassessment with a view toward such return. The Parties or their Executive Agents shall consult regarding the terms of return of any agreed facility or area. The Parties agree to pursue a preventative rather than reactive approach to environmental protection and human health and safety. The Parties recognize that the policies and practices of the United States are designed to avoid such damage and endangerment and to apply the more protective of either Afghan or United States standards. In accordance with United States forces policy, United States forces shall take prompt action to address a substantial impact to human health and safety due to environmental contamination that is caused by activities of United States forces and is located on an agreed facility or area.
2. All buildings, non-relocatable structures, and assemblies connected to the soil at the agreed facilities and areas, including those constructed, used, altered, or improved by United States forces, are for the exclusive use of United States forces, United States contractors, and United States contractor employees, and for others as mutually agreed. All such buildings, non-relocatable structures, and assemblies connected to the soil built by United States forces or provided to United States forces for their access and use may be modified by United States forces, and United States forces may use them exclusively until they are no longer required by United States forces.
3. United States forces and United States contractors shall retain title to all equipment, materiel, supplies, relocatable structures, and other movable property they have installed in, imported into, or acquired within the territory of Afghanistan in connection with the presence of United States forces and United States contractors in Afghanistan. The Parties shall consult regarding the possible transfer to or purchase by Afghanistan of equipment determined to be excess, as may be authorized by United States laws and regulations.
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ARTICLE 9
Positioning and Storage of Equipment and Materiel
1. Afghanistan authorizes United States forces to position the equipment, supplies, and materiel of United States forces within agreed facilities and areas, and at other locations as mutually agreed. United States forces shall maintain title to and control over the use and disposition of such equipment, supplies, and materiel that are stored in the territory of Afghanistan and shall have the right to remove such items from the territory of Afghanistan.
2. The United States confirms its commitment to respect relevant Afghan safety laws, regulations, and standards. United States forces shall take all necessary measures to protect and safely store equipment, supplies, and materiel of United States forces that are of a hazardous nature in accordance with applicable United States laws and regulations. In accordance with United States forces policy, United States forces shall take prompt action (1) to clean up