Legal Review Of Sovereignty Of Afghanistan Post Afghan-US Bilateral Security Agreement – Analysis



As soon as President Ashraf Ghani took over Kabul, the Bilateral Security Agreement between Afghanistan and the United States of America was signed and was held to remain in force “until the end of 2024 and beyond” unless terminated by either side with a two-year prior notice. Pursuant to this Agreement, thousands of US troops are scheduled to stay in Afghanistan in a non-combat role to advise, assist and train Afghan National Security Forces (ANSF).

Previously, President Karzai denied signing the BSA till his presidential term ended in 2014 claiming that he did not agree with two very important and key issues one of which was mentioned in the BSA while the other was missing from the same; i.e. Immunity granted to the US Forces by the Agreement and lack of instances to denote respect to the Afghan Sovereignty.

This article evaluates whether existence of US Forces in Afghanistan enjoying immunity from Afghan legal and judicial jurisdiction conforms to the legal system of Afghanistan? Also, it tends to examine whether it is possible for Afghan government to practice and protect full sovereignty while BSA is in place and foreign forces are present on the Afghan soil?

Immunity of US Forces on Foreign Land: Lessons Learnt

Following the Opium War of 1839, The United States wrote in its treaty with China that in case a European, American or Japanese citizen, or a person who is a member of, or married to, or the child of a member of the American armed forces committed a crime in China, he/she would be turned over to his/her own consular officials, rather than being tried under the laws of China.

It is commonly held that the Western insistence on extraterritoriality reflected the belief that Asian laws were barbaric, and no ‘civilized’ person deserved to be subjected to it. This belief was incorporated in the Japanese-US Status of Forces Agreement (SOFA) Article 17, section 5, of which stipulated that ‘When US servicemen, and their families commit crimes, they shall be detained by U.S. authorities until Japanese law enforcement agencies file complaints with the prosecutors’ office based on clear suspicion. And even it gave U.S. authorities the right to refuse Japanese investigators’ requests to hand over suspects attached to the military”. 1

There are many countries today in which the US has bases and troops and in which a SOFA exists including Japan, South Korea and Germany. The criminal jurisdiction articles of such security agreements between the U.S. and other countries vary.

Glimpses of the history indicates that immunity from local jurisdiction is a fundamental necessity of the United States. As in every other country in the world where its forces are based, the US insists on trying American soldiers accused of crimes itself.

For the US this is non-negotiable condition as it showed by walking away from Iraq. As far as the dispute of U.S personnel immunity in Afghanistan is concerned, the US expressly declared that there will be no BSA if Afghan government does not ensure immunity for local jurisdiction to the US personnel. The political, economic and security situation in Afghanistan at the time of signing the Agreement was such that the Afghan government was compelled to agree to the immunity contained in the BSA. Article 13 of the same states that:

Members of the Force and of the Civilian Component. Afghanistan therefore agrees that the United States shall have the exclusive right to exercise jurisdiction over such persons in respect of any criminal or civil offenses committed in the territory of Afghanistan. Afghanistan authorizes the United States to hold trial in such cases, or take other disciplinary action, as appropriate, in the territory of Afghanistan.

2. If requested by Afghanistan, the United States shall inform Afghanistan of the status of any criminal proceedings regarding offenses allegedly committed in Afghanistan by the members of the force or of the civilian component involving Afghan nationals, including the final disposition of the investigations or prosecution. If so requested, the United States shall also undertake efforts to permit and facilitate the attendance and observation of such proceedings by representatives of Afghanistan.”

Immunity of US Troops in Afghanistan: View of the US Authorities

Former US Secretary of State John Kerry in a joint conference with former Afghan president Karzai in Kabul stated that wherever our forces are found, they operate under the same standards. We are not singling out Afghanistan for any separate standard. We are defending exactly what the constitutional laws of the United States require. He further added: we can’t send our forces in places because we don’t subject United States citizens to that kind of uncertainty with respect to their rights and lives. It is no comment on any other country. It’s nothing negative. It’s an historical tradition and something that exists everywhere in the world. So that is a very important principle.

In addition to the importance argument, a major concern had about prosecution of its personnel in Afghanistan remained to be a corrupt and inefficient judicial system of Afghanistan — where prosecutors had no capacity or the training to collect evidence, prosecute the defendant, or conduct the defense. The current Afghan criminal justice system was deemed to lack the procedural safeguards guaranteed by the U.S. Constitution to ensure a fair trial. Hence, the US did not want to compromise on the issue of immunity of its personnel.

President Karzai held that granting immunity to US troops and discussing the issue of sovereignty is not the authority of the government. He believed that the traditional Grand Assembly (Loya Jarga) had to decide about granting immunity to US soldiers.

A Consultative Loya Jarga was then conducted and the attendees by a majority of vote approved the BSA with the provision that granted immunity to US personnel. Despite this, President Karzai denounced to sign the BSA claiming that perhaps he should not sign the same when he was leaving the Presidential Palace. He on numerous occasions held that the new elected president was more suitable to decide if he would want to work with US government under the BSA.

The newly elected Afghan President, Dr. Ghani signed the BSA after its approval by the Afghan parliament. By doing so, he indicated to have complied with the constitutional process of ratifying international treaties and foreign policy.

Immunity of Foreign Troops and International Law

Now a very important question arises in the discussion. Whether immunity granted to foreign soldiers in a country remains legal? If so, what are the governing rules?

Foremost amongst the questions raised by the presence of foreign troops in a foreign country is the question of status: what jurisdictional privileges and immunities from local jurisdiction do foreign forces enjoy in another state?

International law does not provide a straightforward answer to this question as no overarching legal framework has been developed in international law to regulate in a comprehensive manner the legal position of foreign armed forces.

Unsurprisingly, this creates uncertainty as to the position of customary international law in this area, reinforcing the preference of states and international organizations to define the status of foreign troops by way of tailor-made international agreements.

Nonetheless, international practice recognizes that the unique composition, responsibilities and nature of the armed forces raise special legal and practical considerations. This is reflected both in customary international law and in international treaty practice. 2

In the light of above discussion, despite the fact that BSA has been approved bay Afghan parliament and endorsed by the President of the Islamic Republic of Afghanistan it shall also be considered that how can a nation be both sovereign and dependent on foreign aid? It means that exercising full fledge sovereignty without having economic independency and where major part of the government is running through foreign aid is creating a sort of impossibility.

*Abdul Wahid Rizwanzai holds LLB degree from International Islamic University, Islamabad. He writes on legal and political issues in Afghanistan.

1. From the Article of Sheila K. Johnson in AlterNet, an anthropologist, an editor for the Japan Policy Research Institute.
2. Research Handbook on Jurisdiction and Immunities in International Law, edited by Alexander Orakhelashvili, University of Birmingham, UK

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