Concerning an Afghanistan Status of Forces Agreement

BY Herschel Smith
5 years, 1 month ago

We have previously dealt with the apparent desire for an Afghanistan SOFA (Status of Forces Agreement) on par with the Iraq SOFA.  Bad idea, said we.  It has made U.S. forces in Iraq virtually impotent to conduct missions, even when their own force protection is involved.

U.S. officials told the Post there have been numerous disagreements between the two forces. The newspaper reported one clash in which a U.S. unit wanted and failed to get permission to send out a patrol to trap insurgents allegedly planning a mortar attack on a U.S. base from an adjacent Iraqi neighborhood named Amiriyah. “I understand you have your orders,” the Iraqi commander told the American commander, “but I have my orders, too. You are not allowed to go inside of Amiriyah.” Iraqi soldiers have blocked American convoys, U.S. officials said.

The campaign in Iraq is at a more advanced stage than in Afghanistan, and a SOFA for Afghanistan would have literally disastrous consequences for the campaign.  A recent Congressional Research Service Report details considerations and history for both the SOFA in Iraq and “agreements” thus far in Afghanistan.  For Afghanistan, the SOFA Study notes (lengthy quote):

An agreement exists regarding the status of military and civilian personnel of the U.S. Department of Defense present in Afghanistan in connection with cooperative efforts in response to terrorism, humanitarian and civic assistance, military training and exercises, and other activities. Such personnel are to be accorded “a status equivalent to that accorded to the administrative and technical staff” of the U.S. Embassy under the Vienna Convention on Diplomatic Relations of 1961.  Accordingly, U.S. personnel are immune from criminal prosecution by Afghan authorities, and are immune from civil and administrative jurisdiction except with respect to acts performed outside the course of their duties. In the agreement, the Islamic Transitional Government of Afghanistan (ITGA) explicitly authorized the U.S. government to exercise criminal jurisdiction over U.S. personnel, and the Government of Afghanistan is not permitted to surrender U.S. personnel to the custody of another State, international tribunal, or any other entity without consent of the U.S. government. Although the agreement was signed by the ITGA, the subsequently elected Government of the Islamic Republic of Afghanistan assumed responsibility for ITGA’s legal obligations and the agreement remains in force. The agreement does not appear to provide immunity for contract personnel.

The agreement with Afghanistan does not expressly authorize the United States to carry out military operations within Afghanistan, but it recognizes that such operations are “ongoing.”  Congress authorized the use of military force there (and elsewhere) by joint resolution in 2001, for targeting “those nations, organizations, or persons [who] planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001…. ” The U.N. Security Council implicitly recognized that the use of force was appropriate in response to the September 11, 2001, terrorist attacks, and subsequently authorized the deployment of an International Security Assistance Force (ISAF) to Afghanistan. Subsequent U.N. Security Council resolutions provide a continuing mandate for ISAF , calling upon it to “work in close consultation with” Operation Enduring Freedom (OEF—the U.S.-led coalition conducting military operations in Afghanistan) in carrying out the mandate. While there is no explicit U.N. mandate authorizing the OEF,
Security Council resolutions appear to provide ample recognition of the legitimacy of its operations, most recently by calling upon the Afghan Government, “with the assistance of the international community, including the International Security Assistance Force and Operation Enduring Freedom coalition, in accordance with their respective designated responsibilities as they evolve, to continue to address the threat to the security and stability of Afghanistan posed by the Taliban, Al-Qaida, other extremist groups and criminal activities…. ”

In 2004, the United States and Afghanistan entered an acquisition and cross-servicing agreement, with annexes. An acquisition and cross-servicing agreement (ACSA) is an agreement providing logistic support, supplies, and services to foreign militaries on a cash-reimbursement, replacement-in-kind, or exchange of equal value basis. After consultation with the Secretary of State, the Secretary of Defense is authorized to enter into an ACSA with a government of a NATO country, a subsidiary body of NATO, or the United Nations Organization or any regional international organization of which the United States is a member. Additionally, the Secretary of Defense may enter into an ACSA with a country not included in the above categories, if, after consultation with the Secretary of State, a determination is made that it is in the best interests of the national security of the United States. If the country is not a member of NATO, the Secretary of Defense must submit notice, at least 30 days prior to designation, to the Committee on Armed Services and the Committee on Foreign Relations of the Senate and the Committee on Armed Services and the Committee on Foreign Affairs of the House of Representatives.

On May 23, 2005, President Hamid Karzai and President Bush issued a “joint declaration” outlining a prospective future agreement between the two countries. It envisions a role for U.S. military troops in Afghanistan to “help organize, train, equip, and sustain Afghan security forces” until Afghanistan has developed its own capacity, and to “consult with respect to taking appropriate measures in the event that Afghanistan perceives that its territorial integrity, independence, or security is threatened or at risk.” The declaration does not mention the status of U.S. forces in Afghanistan, but if an agreement is concluded pursuant to the declaration, it can be expected a status of forces agreement would be included. In August 2008, shortly after U.S. airstrikes apparently resulted in civilian casualties, President Karzai called for a review of the presence of all foreign forces in Afghanistan and the conclusion of formal SOFAs with the respective countries. However, to date, it appears that formal negotiations have yet to begin between the United States and Afghanistan.

The lack of restrictive framework for our engagement in Afghanistan suits The Captain’s Journal just fine.  But Hamid Karzai keeps pressing for such an agreement with the U.S.

The language is veiled and cloaked, but it’s there.  Karzai wants a SOFA.  It is imperative that the U.S. reject such a notion outright, no matter what stage of the campaign the current administration wishes we were in or what stage they believe exists.  Again, an agreement would effectively mean the end of the campaign as we know it.

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You are currently reading "Concerning an Afghanistan Status of Forces Agreement", entry #3498 on The Captain's Journal.

This article is filed under the category(s) Afghanistan,Afghanistan SOFA and was published August 2nd, 2009 by Herschel Smith.

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