In about a month and a half it will be 2014. As far as U.S. policy in Afghanistan is concerned, 2014 is a big year. When President Obama announced the military surge in 2009, he mapped out a so-called “withdrawal” plan and the date for the official end of the surge has always been 2014. But here we are, a month or so from the beginning of this long-awaited date, and the details of the withdrawal plan are still not known.
Two things have effectively staved off agreement on the details. First, the surge has failed. The Afghan insurgency is alive and well, the Kabul government is in danger of collapsing without outside support, and the U.S.-trained Afghan security forces can’t provide security in most of the country.
The second issue forestalling specific post-2014 details is the fact that the U.S. and Kabul can’t agree on them. The sticking point, as has been widely reported, is whether or not remaining U.S. forces (numbering in the thousands) will be subject to Afghan law or U.S. law. Incidentally, this is the same sticking point that stalled U.S. negotiations over a status of forces agreement with Iraq in 2011. In that case, the Obama administration gave up and withdrew completely, preferring to pull out instead of have U.S. troops subject to Iraqi law. President Obama is reportedly considering such a “zero option” in Afghanistan too.
Americans might wonder why it’s so important to Kabul that they have jurisdiction over remaining U.S. forces. Other than it being an issue of sovereignty, there are practical reasons for this. If you look at this clearly, it seems everyone expects U.S. forces to commit crimes post-2014. If they’re subject to Afghan law, they’re likely to be punished. If they remain under U.S. jurisdiction, they will in all likelihood get off scott free, as I’ve written.
The Afghanistan Analysts Network (AAN) meticulously documents numerous cases in which U.S. forces have been credibly accused of war crimes or abuses and do not face punishment. In this excerpt, AAN sums up the debate about jurisdiction:
From the US point of view, it is unthinkable that it would allow its forces to be put in harm’s way by exposing them to the courts of any country, let alone those in Afghanistan where the justice system is deeply flawed. In the Afghan and often the international press, this demand is frequently presented as their being ‘immune’ from prosecution and US officials are keen to argue why this is not the case, for example US ambassador, James Cunningham in a recent press conference (the text was emailed by the embassy to AAN):
Our approach, to be clear, so there’s no misunderstanding, is not that American military personnel have immunity from punishment if they do something wrong, it’s that they will be punished, if it’s required that they will be punished, under American law by the American legal authority.
Yet claims by the US that it takes the crimes of its soldiers seriously are simply belied by the record. Afghanistan might still decide that, on balance, continuing to give up the right to legal jurisdiction over US forces is worth accepting for the benefits the Bilateral Security Agreement might bring. However, the way the US military has gone about addressing the serious allegations made in Nerkh gives little confidence that any crimes committed by US forces after 2014 would be properly investigated, let alone prosecuted. Moreover, indicators suggest this is likely to get worse. The international media has played a major role in uncovering crimes since 2001 and is already reducing its presence in Afghanistan. Also, after 2014, the planned US counter-terrorism force would be most probably be made up of Special Operations Forces and the CIA, who are both much more secretive than conventional forces. If the Bilateral Security Agreement is signed and US troops stay on after 2014 still under US criminal jurisdiction, it is likely to become even more difficult for Afghans to get justice.
Withdrawing most troops might lead one to believe crimes are less likely to occur. But the kinds of troops sticking around (JSOC) have proven much more apt to commit crimes with impunity and secrecy than ordinary military forces, and the withdrawal of human rights groups and journalists will provide less accountability.
The question of jurisdiction will be taken up at an Afghan loya jirga later this month. But many Afghans think the loya jirga is a joke that does not represent the opinions of most of the country.