Published online by Cambridge University Press: 20 January 2017
On September 30, 2014, Afghanistan signed agreements with the United States and NATO providing for U.S. and NATO military presences in Afghanistan following termination in December 2014 of the post-9/11 U.S. “Operation Enduring Freedom” (OEF) and NATO-led International Security Assistance Force (ISAF) military missions.
* This text was reproduced and reformatted from the text available at the North Atlantic Treaty Organization (visited March 23, 2015), http://www.nato.int/cps/en/natohq/official_texts_116072.htm?selectedLocale=en.
* This text was reproduced and reformatted from the text available at the Afghan Ministry of Foreign Affairs (visited March 23, 2015), http://mfa.gov.af/Content/files/BSA%20ENGLISH%20AFG.pdf.
1 ISAF was initially headed on a rotating basis by a series of different states participating in the mission; NATO assumed command in August 2003 and retained it until the end of the mission in late December 2014. See U.N. Secretary-General, Letter dated Nov. 28, 2014 from the Secretary-General addressed to the President of the Security Council, Enclosure to Annex, U.N. Doc. S/2014/856 (Nov. 28, 2014).
2 OEF and ISAF have been jointly commanded by a U.S. general since NATO assumed responsibility for ISAF. It is anticipated that the same will be true for the U.S. and NATO presences under the BSA and SOFA.
3 Security and Defense Cooperation Agreement Between the Islamic Republic of Afghanistan and the United States of America, U.S.-Afg., Sept. 30, 2014 [hereinafter BSA].
4 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, NATO-Afg., Sept. 30, 2014 [hereinafter SOFA].
5 See id. art. 24. Article 24 of the SOFA provides that the terms of the BSA, as well as those of any other relevant bilateral agreements between Afghanistan and any RSM 2015] INTRODUCTORY NOTE TO U.S.-AFGHANISTAN BSA & NATO-AFGHANISTAN SOFA 273 participating state, will take precedence over those of the SOFA.
6 Id. art 25(1), (4); BSA, supra note 3, art. 26(1), (4). Under Article 26(1) and (4) of the BSA and Article 25(1) and (4) of the SOFA, the agreements will remain in force “until the end of 2024 and beyond, unless terminated” upon two years’ notice.
7 S.C. Res. 1386, U.N. Doc. S/RES/1386 (Dec. 20, 2001) established the ISAF mission, the authorization for which was regularly renewed until expiring at the end of 2014.
8 See, for example, the 2003 Agreement Regarding the Status of United States 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, U.S.-Afg., Sept. 26, 2002–May 28, 2003, 2002 U.S.T. LEXIS 100 (entered into force May 28, 2003), affording OEF personnel the status of administrative and technical personnel under the 1981 Vienna Convention on Diplomatic Relations, tax-free status and exemption from taxes or inspection of import or export of goods. See also the status agreement negotiated by ISAF shortly following its establishment, the Military Technical Agreement Between the International Security Assistance Force (ISAF) and the Interim Administration of Afghanistan (‘Interim Administration’), Jan. 4, 2002, 41 I.L.M. 1032 (2002). Under the MTA, ISAF personnel were afforded the diplomatic immunities of experts on mission set forth in the 1946 UN Convention on the Privileges and Immunities of the UN, ISAF was not subject to tax and enjoyed full freedom to conduct its activities virtually without reference to Afghan authorities, and the ISAF commander had final authority to interpret the MTA’s terms. In both cases, contractors were afforded the same status as military forces.
9 RSM potentially includes any of the twenty-eight NATO Allies, as well as other “operational partners “ such as Australia which must be “agreed and accepted “ as such by both Afghanistan and NATO’s North Atlantic Council. RSM participating states apply their own laws in implementing certain obligations; the SOFA thus on occasion refers to NATO policies and practice (e.g., in Article 5(6)), or to participating states’ national laws and regulations (e.g., in Article 9(1)), where the comparable BSA provision accepts the application of U.S. law or regulation. In addition, the internal process of coordinating twenty-eight Allies and several potential operational partners in developing text, identifying redlines or deciding whether to make concessions, and, finally, obtaining the necessary approvals of all relevant states was far more cumbersome and time-consuming than was the case for the bilateral U.S.-Afghan negotiation.
10 The U.S. non-combat mission is initially to be conducted within the NATO context and might therefore in principle have been governed by the terms of the SOFA; it was essential to the United States, however, that all U.S. personnel enjoy the full protections of the BSA. In this regard it may be noted that Article 13(5) of the BSA explicitly precludes any transfer of U.S. military or civilian personnel to the custody of an international tribunal (such as the International Criminal Court) without express U.S. consent, while no parallel provision is contained in the otherwise essentially identical SOFA Article 11.
11 To ensure legal status for ISAF personnel and equipment not yet withdrawn from Afghanistan by the end of the ISAF mandate, Article 2(3) of the SOFA also provides that its terms apply to such personnel and equipment pending their redeployment out of Afghanistan.
12 Among the few specifics is that, with the exception of tactical training for special operations forces if so requested, training will take place only at the national or corps rather than lower levels. SOFA, supra note 4, art. 2(2). Such a request for special operations forces training was made in October 2014.
13 In the SOFA, the parties agree to the presence of NATO forces to carry out its post-2014 non-combat training, advising and assistance mission. SOFA, supra note 4, art. 2(2). The BSA refers to training activities to be undertaken by the United States, acknowledges that U.S. military operations against Al Qaeda and its affiliates “may be appropriate, “ and states that U.S. combat operations will take place only as mutually agreed. BSA, supra note 3, art. 2(1), (2), (4). S.C. Res. 2189, U.N. Doc. S/RES/2189 (12 Dec. 2014) states that the BSA and Afghanistan’s invitation to NATO to conduct the RSM mission provide a “sound legal basis “ for the RSM mission.
14 BSA, supra note 3, art. 3(4); SOFA, supra note 4, art. 4(3).
15 BSA, supra note 3, art. 13(6); SOFA, supra note 4, art. 11(5).
16 BSA, supra note 3, art. 14(2); SOFA, supra note 4, art. 12(2).
17 See BSA, supra note 3, art. 17; SOFA, supra note 4, art. 15.
18 BSA Article 14(1) and SOFA Article 12(1) preclude entry into mosques during services for military purposes and acknowledge the sensitivity of carrying weapons in public places. Both the BSA (art. 16(3)) and, in less specific terms, the SOFA (art. 14(3)) contain undertakings to ensure that alcohol, pornography, and certain other items will not be imported by U.S. and NATO forces or contractors.
19 BSA, supra note 3, art. 13(1); SOFA, supra note 4, art. 11(1).
20 BSA, supra note 3, art. 7(3); SOFA, supra note 4, art. 5(3). U.S. and NATO agreed not to “target Afghan civilians, including in their homes, “ but not to the absolute bar on entering Afghan homes sought by President Karzai.
21 See BSA, supra note 3, art. 6.
22 See BSA, supra note 3, art. 26(1), (4); SOFA, supra note 4, art. 25(1), (4).