Bilateral Security Agreement between US and Afghanistan
Posted on October 15th, 2014

By Afshain Afzal

Washington is trying her best to compel Kabul to sign Bilateral Security Agreement” (BSA), as early as possible. Accordingly, soon after the inauguration ceremony, the newly elected Afghan President Dr Muhammad Ashraf Ghani Ahmedzai authorized BSA. A similar agreement was also signed with NATO authorities. Statement by US President Barack Husssain Obama, issued by White House on 30 September 2014 , said that BSA provides US military service members the necessary legal framework to carryout two critical missions after 2014; targeting the remnants of Al Qaida and training, advising and assisting Afghan National Security Forces. No doubt, all those Afghans who would form part of signing authority would be equally party to this conspiracy against Muslims in general and Afghan nation is particular. Although, the Afghan National Assembly, which is the sole authority to ratify BSA, is likely to resist the signing it but millions of US dollars have been distributed among the key Afghan puppets to convince for a positive vote There are certain groups in Afghanistan, who have been hypnotized by foreign intruders, through a well advertised hope to Afghans their becoming regional superpower in South Asia by acquiring NATO / US standards Armed Forces. However, any sane Afghan leader would never sign this agreement as it amounts to accepting slavery of US and allies for at least another couple of decades.

  In order to comprehend negativity of BSA, some light need to be thrown on the draft agreement, which so far have crossed its forth stage and in second last stage of signing. If we recall, both, the US and Afghanistan have already signed Enduring Strategic Partnership Agreement (ESPA)” on 2 May 2012, which made commitment to strengthen long-term strategic cooperation in areas of mutual interests, including: advancing peace, security, and stability; strengthening state institutions; supporting Afghanistan’s long-term economic and social development and encouraging regional cooperation.  After getting ESPA” signed, the Chicago Summit Declaration on Afghanistan was issued on 21 May 2012 , in which US-led International Security Assistance Force (ISAF) and NATO countries announced their pledges and gave their firm commitment that ISAF’s mission will be concluded by the end of 2014. The declaration also highlighted that the foreign mission will require its legal basis from Afghan government in order to continue close partnership with Afghanistan beyond the end of the transition period to work to establish a new NATO-led Mission to train, advise, and assist the Afghan National Defense and Security Forces (ANDSF).

 Under Chicago summit declaration, Afghanistan will be funded to independently to secure its soil against from internal and external encroachment by terrorists, posing threat to Afghanistan and the world. BSA, however, provides that US and NATO will consider results of neutralizing threats to their interests in executing Chicago Summit obligations. There is an undertaking in the agreement that US would not seek permanent military facilities in Afghanistan and its presence would not be a threat to Afghanistan ’s neighbors or Afghan territory or facilities will not be used as a launching point for attacks against other countries. However, to continue protect foreign interests in Afghanistan, cooperation to elevate security and defense in combating terrorism has been used as tool to compromise sovereignty, security, and territorial integrity of Afghanistan If signed, BSA shall enter into force on 1 January 2015 and remain in force until the end of 2024 and beyond, unless terminated. The  Agreement can be terminated by mutual written agreement or by at least two years written notice. If signed, BSA will supersede the exchange of notes dated 26 September 2002 , 12 December 2002 , and 28 May 2003 , regarding the status of US forces in Afghanistan .

 Interestingly, the draft agreement defines US Forces” as the entity comprising the members of the force, the civilian component employed by DoD (excluding Afghan nationals) and all property including equipment / material present in Afghanistan . The Contractors” have been defined as persons and legal entities who are supplying goods and services in Afghanistan to or on behalf of US forces under a contract or subcontract with or in support of US forces while the US contractor employees” means the employees of US contractors. The important point is that Afghan government is bound to honour right of access of US forces including contractor’s employees and others to facilities and areas in Kabul, Bagram, Mazar-e-Sharif, Herat, Kandahar, Shorab (Helmand), Gardez, Jalalabad, Shindand as well as other facilities and areas which are under the use of US on the effective date of Agreement. All rights and authorities rest with US within these facilities and areas for the conduct of operation, defense, control and undertake new construction works.

 Within these facilities US forces shall be responsible for the construction, development, operations and maintenance costs for However, cost on facilities and areas jointly in use of US and Afghan forces will be shared on the basis of proportionate use. The most disturbing feature of BSA is that US forces and contractors shall retain title to all equipment, materiel, supplies, structures, and other movable property they have installed, imported or acquired within the territory of Afghanistan . It is interesting to note that when US forces include contractors, what can be the reason that contractors have been separately mentioned. The right of carrying out force protection activities at and in the vicinity of these areas also rest with US, subject to US forces’ rules of engagement.

 As regard to Counter Terrorism operations, US military operations to defeat al-Qaida and its affiliates have been declared as appropriate in the common fight against terrorism and will continue with the aim of  protecting US and Afghan national interests. United States forces will be allowed to undertake transit, support, and related activities to support their forces. In addition, US forces would have right of self-defense, consistent with international law. The agreement provides that members of the US force and of the civilian component can possess and carry arms in Afghanistan , if permitted by US authorities. The agreement provides that US – Afghanistan Working Group on Defense and Security Cooperation, established under the Strategic Partnership Agreement, would meet on a regular basis to consult on potential political, diplomatic, military, and economic measures that could form part of an appropriate response in the event of  external aggression or the threat of external aggression against Afghanistan.

 It would be interesting to note that US members of forces including civilian shall be exempted from Afghan law and regulations on registration and control of foreign citizens. They have been allowed to enter or exit from Bagram Airbase, Kabul International Airport, Kandahar Airbase, Shendand Airbase, Herat International Airport, Mazar-e-Sharif Airport, Shorab (Helmand) and land ports including Torkham, Nangarhar, Spinboldak, Kandahar, Toorghundi, Herat, Hairatan, Balkh, Sherkhan Bandar, Kunduz and other official points of embarkation and debarkation without visa or passport on the basis of identity cards issued by US authorities. However, Afghan authorities are bound to grant US contractor or contractor’s employee at least one year Afghan visa for multiple entries and exits, if applied. US contractors and subcontractors have also been exempted from all other Afghan licenses and issuance of a business registration. They will be issued license valid for three years on payment of one-time service charge.

 BSA provides that Afghan laws are not applicable to US forces including contractors and contractor’s employees as they can neither be arrested nor detained by Afghan authorities. They even cannot be surrendered or handed over to an international tribunal or any other state. In case, the Afghan law enforcement authorities arrest them during the commission of crime, they would be immediately handed over to US authorities. Afghan authorities at their best can inform US authorities if they find a member of the US force or the civilian engaged in the commission of a crime. US shall have the exclusive right to exercise jurisdiction over US forces, contractors and contractor’s employees in respect of any criminal or civil offenses committed in Afghanistan . US will be authorized to hold trial or take other disciplinary action, as appropriate. Afghan government can only request US authorities to inform status of any criminal proceedings regarding offenses committed by their members, involving Afghan nationals.

 US forces, contractors and contractor’s employees (excluding Afghan nationals) are allowed to import, export, re-export, transport and use any equipment, supplies, material, technology, training, or services in Afghanistan . These importation, exportation, re-exportation, transportation are exempted from licensing, inspection, verification, taxes and customs duties or other charges. Interestingly, US has exempted its contractor and contractor’s employees, from payment of any tax or similar or related charges on their businesses activities and income, relating to a contract or subcontract with US or in their in support. In a disparity drive, all US forces including civilian contractors and contractor’s employees will be issued valid driving license and permits, without a driving test or fee within Afghanistan . They will also be issued free Afghan vehicle number plates that are indistinguishable from other Afghan number plates.

 In accordance with US regulations, US forces will be allowed to establish directly or through contract service provision activities, including post offices, banking services, military service exchanges, commissaries, recreational service areas, and telecommunications services, including broadcast services. US intends to continue to make available television and radio broadcast services including media and entertainment programmes. These services  will not be subject to any inspection, custom duty, tax or charges.  US forces will be allowed to produce and provide services including water, electricity, and other utilities for the facilities and areas under their use US will also be allowed to use the radio spectrum free of cost. The Afghan side shall allocate Afghan owned frequencies.  US will also be allowed to operate its own telecommunications.

 BSA authorizes US official and civil aircrafts to enter, exit, over fly, land, take off, conduct aerial refueling, and move within Afghanistan , without any inspection, charges, tax or payment. US    government and military aircrafts are exempted from notification requirements regarding their entry and exit from Afghanistan . However, civil aircraft would fulfill this requirement.  The agreement provides that US-Afghanistan Working Group on Defense and Security Cooperation, established under the Strategic Partnership Agreement, to meet on a regular basis to consult on potential political, diplomatic, military, and economic measures that could form part of an appropriate response in the event of external aggression or the threat of external aggression against Afghanistan .

 The constitution of Islamic Republic of Afghanistan states that before assuming the office, the Afghan President shall take oath of allegiance that he swears to Almighty Allah that he will obey and protect the Holy Religion of Islam, respect and supervise the implementation of the constitution as well as other laws, safeguard the independence, national sovereignty and territorial integrity of Afghanistan. However, despite the fact that Allah BSA will act as tool to fulfill strategic aggressive designs against Afghanistan and neighbouring nations, it has been authorized. To conclude, BSA has become a prerequisite for US, NATO or any other foreign mission to operate in Afghanistan , beyond 2014 deadline. Leadership in Afghanistan needs to be extremely careful as signing BSA would not only mortgage Afghan sovereignty and integrity but would compromise regional peace and security. Another pertinent point is that large scale fraud by intruding foreign forces took place during elections, which was also confessed by the Elections authorities in Afghanistan . Neither the Afghan elections were free & fair nor was a large faction of Afghan allowed to vote, only because they held orthodox views about their religion. Under the Article 10 and 90 of Chapter 5 of Afghan Constitution the National Assembly has powers to ratify or abrogate any international treaty.  Hence, the National Assembly or Afghan Supreme Court, which has also powers to review any international treaty, may declare BSA null and void.

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