10.02.2021

The (legal) future of NATO's military presence in Afghanistan

In a new series of policy briefs, our YLFees discuss current political challenges and recommendations

One of the most significant spheres of cooperation between Afghanistan and the international community, the United States at the head, is the military cooperation, which is legalized and framed by the Bilateral Security Agreement (BSA) with the U.S. and Status of Forces in Afghanistan (SOFA) with NATO. With ongoing peace talks in Doha, withdrawal of U.S. troops, and Joe Biden becoming president of the U.S., there are various possible scenarios regarding the BSA and SOFA's fate. Thus, the Afghan government should be prepared and predictive about each of the following scenarios.

Both the BSA and SOFA were signed in 2015, and they shall remain in force until the end of 2024 and beyond. In both agreements, it is embodied that "This agreement may be terminated by mutual written agreement or by either Party upon two years' written notice to the other Party through diplomatic channels." Thus, neither the Afghan government nor the U.S. can unilaterally decide to terminate the agreement without prior notice. According to Article Seven of the Constitution of Afghanistan, the state shall preserve inter-state agreements. Based on this, the Afghan state is responsible for fulfilling all the BSA and SOFA commitments, including providing military bases for the foreign troops until 2024.

The Taliban describe themselves as Mujahidin – a term used for those who engage in Jihad. They believe that foreign forces have occupied Afghanistan, and they should fight for the country's freedom. After many years of fighting, the Taliban signed an agreement with the United States of America on February 29 2020.

The U.S. committed to withdrawing from Afghanistan all military forces of the United States, its allies, and coalition partners, including all non-diplomatic civilian personnel, private security contractors, trainers, advisors, and support services personnel within fourteen months. Likewise, The Taliban committed to starting peace talks with the Afghan government. Now that twelve out of fourteen months have passed, based on the U.S. Department of Defense statements, there are 2500 U.S. troops in Afghanistan.

As one of the most considerable spheres of cooperation, military cooperation between Afghanistan and the international community is legitimized by the BSA with the U.S. and SOFA with NATO. As Afghanistan's peace talks are going on in Doha – Qatar, and U.S. troops are withdrawn from Afghanistan, one big question arises: what will be the BSA's future status and the SOFA? With all the importance it has for Afghanistan's security at this crucial juncture, having a clear perspective about BSA and SOFA's future is of the utmost significance for this country.

Scenarios:

Although the timeline for withdrawal of the forces is agreed upon by the United States and the Taliban, bearing in mind the subjection of withdrawal to the fulfilment of commitments by the Taliban and the change of administration in the U.S., it still cannot be said with confidence that the U.S. will withdraw all of the forces from Afghanistan. On the one hand, it is not clear whether the Taliban will fulfil its commitments or not. On the other, it is not certain whether the new U.S. president, Joe Biden, withdraw all of its forces from Afghanistan. Therefore, the fate of BSA and SOFA and the commitments of the U.S. made in Article 4 and Article 6 of the BSA are vague and unspecified.

Will the BSA remain in force until 2024 or be terminated after the possible withdrawal of forces from Afghanistan? If not terminated, will the new post-settlement government of which the Taliban might be part of, accept the BSA with the perspective they have about foreign troops in Afghanistan? Each of these questions produces a different possible scenario for which the current Afghan government should be prepared.

First Scenario: The Taliban have made some commitments in the Doha Agreement, including starting peace talks with the Afghan government. Despite starting negotiations with the Afghan government, the Taliban have not shown any alacrity in peace talks. In case the Taliban fail to fulfil their commitments, there will be no further withdrawal of the forces from Afghanistan as it is clearly stated in the agreement that the withdrawal of the forces is subject to fulfilment of commitments by the Taliban. Since the legal bases for the presence of the foreign troops in Afghanistan are the BSA and SOFA, they will most likely remain in force.

Second Scenario: Another possible scenario is that in Stars and Stripes interview, published on September 10 2020, Joe Biden has expressed his willingness to keep a small number of forces in Afghanistan as he said that "conditions in Syria, Afghanistan, and Iraq are so complicated that he cannot promise full withdrawal of troops soon." He also added that "there should be a maximum of "1,500 to 2,000"[troops] on the ground." Based on these statements, it can be claimed that Biden's policy will be not to withdraw all troops from Afghanistan. Given that, he will need to maintain the BSA and SOFA for troops' legitimacy.

Third Scenario: In another case, the Taliban fulfil their commitments and reach an agreement with the Afghan government on a settlement, but the U.S. decides to keep some troops in Afghanistan, contrary to the Doha Agreement. As the Taliban have fought for many years to take foreign forces out of this country, will they accept America's military presence in Afghanistan? This will add to the complexity of the issue. In case the United States wants a peaceful solution for this issue, they will have to renegotiate with the Taliban to persuade them to accept their military presence and maintain BSA. But, if the U.S. thinks they do not need anyone's permission to stay in Afghanistan, they will risk the peace with the Taliban. In this case, the Afghan government will have to take the initiative and convince both sides for a peaceful settlement that will maintain stability in Afghanistan and allow foreign troops to be in the country.

Conclusion:

The United States, the Afghan Government, and the Taliban have agreed to the withdrawal of foreign troops from Afghanistan within fourteen months. But, the withdrawal of the forces is subject to fulfilment of the commitments by parties. Suppose any of the parties does not fulfil their obligations. In that case, the withdrawal of the forces will produce diverse scenarios, which means that the BSA and SOFA's fate, as legal frames for the existence of the foreign troops in Afghanistan, will change. Therefore, the Afghan government needs to have a distinct perspective on the future of these security agreements with its international allies. 

Recommendations:

  • The Islamic Republic of Afghanistan should talk in details about the fate of the BSA and Sofa with the United States of America and another NATO member states;
  • Talking about the BSA and SOFA should also be on the peace negotiations agenda with the Taliban, and the Afghan government should try to convince the Taliban for the post-settlement government to maintain military cooperation with the U.S. and NATO;
  • In case of the termination of BSA and SOFA, the government should think of alternatives to fill the strategic gap in Afghanistan that will come up after the total withdrawal of the foreign troops;
  • The Afghan government should have a Think-tank do in-depth research about the pros and cons of maintaining the BSA and SOFA so that the government could use the research's outcome in peace talks with the Taliban.

 

Bibliography:

Afghanistan Analysts Network. (2020, November 12). Retrieved November 2020, from www.afghanistan-analysts.org

Bilateral Security Agreement. (2014, September 30). Defence and Security Agreement between the United States of America and the Islamic Republic of Afghanistan. Kabul, Afghanistan: photos.state.gov/libraries/afghanistan/231771/PDFs/BSA%20English.pdf.

Doha Peace Agreement. (2020, February 29). Agreement for Bringing Peace to Afghanistan between the Islamic Emirate of Afghanistan which is not recognized by the United States as a state and is known as the Taliban and the United States of America. Doha, Doha, Qatar: www.state.gov.

Joint Declaration between the Islamic Republic of Afghanistan and the United States of America for Bringing Peace to Afghanistan. (2020, February 29). Kabul, Kabul, Afghanistan: www.presdent.gov.af.

Oxford Islamic Studies Online. (n.d.). Retrieved November 2020, from www.oxfordislamicstudies.com/article/opr/t125/e1593

SOFA Agreement. (2014, September 30). Agreement between the North Atlantic Treaty Organization and the Islamic Republic of Afghanistan on the Status of NATO Forces and NATO personnel conducting mutually agreed NATO-led activities in Afghanistan.

The Constitution of Afghanistan. (2004, January 26). Kabul, Kabul, Afghanistan: Ministry of Justice.

U.S. Department of Defense. (2020, September 22). Retrieved November 2020, fromhttps://www.defense.gov/Explore/News/Article/Article/2473884/us-completes-troop-level-drawdown-in-afghanistan-iraq/

Mohammad Mansoor Ishaqzoi is a member of the 2020/21 Young Leaders Forum.

The views expressed in this publication are those of the author and not necessarily those of Friedrich-Ebert-Stiftung.

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