posted: 09-04-2012 by: Kate Clark

Afghanistan and the United States have signed a Memorandum of Understanding (MoU) on ‘Special Operations’, ensuring that night raids will continue – with Afghans ordering and conducting them and US forces acting only in support. The agreement is a victory for President Karzai who has long insisted – up till now in vain – that night raids must be in Afghan hands or cease. This gain in sovereignty also puts him and the Afghan government much more at the forefront of the anti-Taleban struggle, politically and militarily. Karzai will have to take greater ownership of the war, both for what goes well and what goes badly. As for Afghan citizens, their rights should be better protected by the obligation that a judge issues a warrant before a home can be searched. At the same time, warns AAN senior analyst, Kate Clark, the MoU also envisages Afghan special forces arresting people who can then be held without trial.

The MoU sets out, in the context of ‘combating international terrorism and extremism and stabilising Afghanistan’, a new chain of command for ordering and conducting ‘special operations’; these are defined as ‘operations approved by the Afghan Operational Coordination Group (OCG)’, an all-Afghan body, and ‘conducted by Afghan Forces, with support from US Forces in accordance with Afghan laws’. (For the text of the MoU see the end of the blog.)

There is some vagueness as to what precisely the MoU covers. Certainly, operations which involve entering people’s homes, including night raids, are subject to the MoU. According to an ISAF spokeswoman, its remit is wider, covering all special operations, including the so-called kill/capture missions – the latter are currently ordered and run by the non-ISAF, US Joint Special Operations Command (JSOC) out of Bagram air base. Later, she specified that the MoU covers:

“All special operations/counter terrorism missions that are expected to result in the possible detention of an individual or individuals, not just those where there is a search of a residential house or private compound.”

 When asked if the MoU also covered airstrikes, such as, for example, the targeted killing of a suspected insurgent leader in his car, she did not know. Later, she said:

“Individual components or specific actions of a special operations mission are not individually addressed by the OCG. Once a special operations mission is underway, it is the Afghans in the lead and the US is in support and will provide whatever support is requested by the Afghans… If the Afghans require and request close air support than that is covered by the MOU.”

This suggests that targeted killing by air strike may not be covered. The agreement also does not cover conventional operations (unless they involve entering people’s homes) or special operations carried out by non-US special forces. Whether the CIA will consider itself bound by the agreement remains to be seen (it did not appear to restrict its detention policy, for example, as ISAF/US Special Operations Forces have done following allegations by UNAMA in October 2011 of torture in particular police and NDS facilities (for detail, see this blog).

As to the nitty gritty of the MoU, it mandates an ‘Afghan Operational Coordination Group’ or OCG, a fully Afghan coordination body, staffed by officers from the police, army and NDS, to review and approve all special operations missions. Operating nationally and regionally, the OCG will also, ‘participate in ‘intelligence fusion’, notify provincial governors of operations and report back to ‘senior Afghan command authorities’. No mention is made of US support to the OCG, although in a separate section, it says the US will continue to assist with ‘intelligence and analysis’, as well as fire power (close air support), air transport, medical evacuation and ‘security’ – all elements which need high-level coordination to provide.

Operations will be carried out by the ‘Afghan Special Operations Unit’, staffed by Afghan army, police and NDS officers, and known by its Pashto and Dari acronyms KAQ/QKA (short for Khasa Amalyati Qeta/Qeta-e-Khas-e-Amalyati). It will work with US forces’ support. However, only KAQ/QKA forces will be allowed to enter and search houses and private compounds and arrest individuals inside. US forces will only be involved in this if ‘required and requested’.

The MoU says special operations will be conducted within a constitutional framework, specifically referring to articles that call for the respect of the multi-ethnic nature of the country, the UN Charter and Universal Declaration of Human rights, democracy and the rights of foreigners living in Afghanistan. Most importantly, the MoU reiterates the legal requirement for judges to issue a warrant before Afghan forces can enter homes. Although this can take place after a raid if there is ‘evident crime’, the presidential spokesman, Aimal Faizy, said post-raid warrants would no longer be done routinely, as is currently done following joint raids.

The MoU envisages the KAQ/QKA detaining Afghans either for prosecution (under Afghan criminal law) or without trial (under Additional Protocol II to the Geneva Conventions). This is a reinforcement of last month’s MoU on handing over Bagram Prison which said security prisoners would be detained under Additional Protocol II (for detail on this, see this previous blog). As recent reports by the Afghan Independent Human Rights Commission/Open Society Foundations and UNAMA have made clear (see blogs here and here), security detainees are already the most vulnerable in the Afghan justice system, suffering torture and lack of due process. Removing their most basic legal right to habeas corpus, to have their day in court, is worrying.

As to the US role, there has already been a trend in ISAF and among US Special Forces to involve Afghans more in night raids, whether operating as joint forces, providing intelligence or as authorities to be notified (see for example, last December’s Tactical Directive on Night Operations by General Allen, Commander of ISAF and US forces here). According to General Allen, speaking in Washington in March, in the previous five months 89 per cent of the total conventional operations had been partnered with Afghan forces and 42 per cent had been Afghan led. The Associated Press reckons that 97 per cent of night raids are now joint operations with Afghan forces, with 40 per cent being Afghan-led.

Exactly what is meant by ‘Afghan-led’ varies – from Afghans ordering and conducting operations, with international support, to just having an Afghan first through the door. At the moment, the term is occasionally completely devoid of meaning; to take an extreme example, the raid that led to the killing of the Afghan journalist, Omaid Khpulwak, in July 2011 in Tirin Kot, which ISAF Public Affairs described repeatedly as ‘Afghan-led’, involved only US forces, with no Afghans, whether as soldiers, advisors or in command. (This incident will be looked at in detail in a forthcoming AAN report).

The US will continue to be vital for special operations and not just because of its enabling forces, such as intelligence, transport, MEDEVACing and fire power. It has also promised to continue supporting the ‘Afghanization’ of special operations in order to develop an ‘enduring and capable special operations force’. It will help increase the size and capacity of KAQ/QKA squads, in particular developing platoon-sized strike forces with Afghan enabling forces to reduce the number of US strike forces and provide technical assistance. For the near future we should still expect a lot of US involvement in special operations because of the shortage of Afghan special forces. 

The Afghan government is delighted with the MoU, rightly seeing it as a huge gain for Afghan sovereignty. President Karzai is now, at least nominally, in charge of one of the most politically and militarily significant and controversial aspects of the war and will probably continue to insist that US forces take a back seat. How far the Afghan government actually achieves sovereignty however remains to be seen: one can imagine ‘US support’, for example, meaning US forces and advisors remaining in de facto command, with Afghan colleagues being deferential to their wishes and expertise. However, the MoU does give Afghans the means to actually take some sort of command and control.

Along with security prisoners (which was the subject of an MoU which was signed last month), the contentious issue of night raids has been a major stumbling block to getting a strategic partnership deal between the two countries. To secure this MoU, the US has conceded a great deal, while Karzai has gained ground.

At the same time, from the international side, the agreement may help address the enduring complaint of the US and its allies that the president does not sufficiently ‘own’ the war: that he criticises his allies and international forces while occasionally speaking sympathetically about the Taleban, as if he sat above and outside the conflict. In the future, if civilians are killed in raids, or there is alleged theft of valuables or if homeowners feel dishonoured by fellow Afghans or their invited US allies, barging into their houses, it will now be his responsibility. He will no longer be able to behave as if this is a conflict he has no part in.

Text of the MoU (Source: UN)

The Government of the Islamic Republic of Afghanistan (hereinafter “Afghanistan”) and the Government of the United States of America (hereinafter “United States”), hereinafter known collectively as “Participants” and represented respectively by the Minister of Defense of the Islamic Republic of Afghanistan and the Commander, U.S. Forces-Afghanistan;

Recognizing the principles and provisions of the Constitution of the Islamic Republic of Afghanistan;

Recognizing the progress already made in their partnership aimed at combating international terrorism and extremism and stabilizing Afghanistan;

Building on the progress of the ongoing Transition of lead responsibility in the security sector to the Afghan National Security Forces (ANSF) in accordance with the principles of the Lisbon Declaration;

Highlighting the United States’ full respect for Afghanistan’s sovereignty;

Recalling the recommendations of the November 2011 Traditional Loya Jirga, with particular focus on the recommendation that "night operations conducted by the American forces must be Afghanized as soon as possible";

Taking note of the progress that has already been made on the Afghanization of special operations;

Have reached the following understandings:

Section One

Definitions

1. For the purpose of this Memorandum of Understanding (MoU), special operations are operations approved by the Afghan Operational Coordination Group (OCG) and conducted by Afghan Forces with support from U.S. Forces in accordance with Afghan laws.

2. The Khasa Amalyati Qeta/Qeta-e-Khas-e-Amalyati, or Afghan Special Operations Unit, hereinafter referred to as the KAQ/QKA, is comprised of Afghan National Army, Afghan National Police, and National Directorate of Security personnel. The KAQ/QKA leads special operations with support from U.S. Forces to provide security and stability in Afghanistan.

3. The OCG is an Afghan entity manned by Afghan personnel from security and law enforcement agencies. Among its responsibilities, the OCG reviews and approves special operations missions, participates in intelligence fusion, monitors mission execution, makes notifications to Provincial Governors, and makes reports to senior Afghan command authorities. Regional OCGs are being established and are expected to have responsibilities similar to the headquarters OCG.

4. In the context of special operations temporary holding means the holding of a person by Afghan authorities for such time as is consistent with Afghan laws, including Additional Protocol II of 1977 to the Geneva Conventions of 1949 (AP II), to determine if the person meets the criteria for prosecution or detention consistent with international humanitarian law.

Section Two

Terms of Afghanization of Special Operations

5. The Participants affirm their intent to ensure that special operations are conducted within the framework of the Constitution of Afghanistan, including in particular articles 4, 5, 7, 38 and 57 of the Constitution. To that end, the Participants affirm their intent as follows:

a. special operations that are expected to result in detention or the search of a residential house or private compound are to be authorized in accordance with Afghan laws;

b. residential houses are to be searched only if necessary, and as part of the conduct of special operations, only Afghan Forces should search residential houses and private compounds;

c. the KAQ/QKA can enter private compounds, residential houses, and other areas for the purposes of search and arrest, in accordance with Afghan laws, with support from U.S. Forces only as required or requested; and

d. Afghan Forces are to protect any women, children, or culturally sensitive places.

6. Afghanistan affirms that it is to put into place the necessary arrangements and capacities to ensure that special operations are conducted within the framework of the Constitution of Afghanistan, in order to permit the Participants to fulfill their intent under paragraph 5 above. This is to include, but not be limited to:

a. establishing judicial, prosecution, and investigative mechanisms capable of issuing timely and operationally secure judicial authorizations to conduct special operations missions against persons who are reasonably suspected of meeting the criteria for prosecution or detention under Afghan laws, including AP II; and

b. assigning vetted and cleared personnel within the OCG to facilitate the application and issuance of the above described authorizations.

7. In support of the full Afghanization of special operations, and in order to develop an enduring and capable special operations force for Afghanistan, the United States affirms that it is to continue to assist in:

a. increasing the size of KAQ/QKA squads and developing the capacity of the squads to continue to take the lead in special operations missions;

b. developing platoon-sized KAQ/QKA strike forces with key Afghan enablers in order to reduce the number of U.S. strike forces;

c. providing technical assistance as requested by Afghan authorities during temporary holding; and

d. developing the full range of Afghan capabilities required to conduct special operations.

8. U.S. Forces are expected to continue to support such operations and the relevant Afghan participating institutions with the full range of support necessary for those operations and institutions to be successful. This may include but is not limited to providing intelligence and intelligence analysis to the KAQ/QKA in order to give them full operational capability, as well as helicopter and fixed-wing lift, fires support, MEDEVAC, and security.

Section Three

Final Provisions

9. Any Afghan nationals detained by U.S. Forces outside special operations are to be released or transferred to Afghan authorities to be prosecuted or held in accordance with Afghan laws, including AP II.

10. The Participants, upon signing this MoU, are to establish a Bilateral Committee on Special Operations. Co-chaired by the Minister of Defense and the Commander, U.S. Forces — Afghanistan, or their designees, the Committee is to be responsible for the following tasks, among others:

a. overseeing the full Afghanization of special operations;

b. resolving any issues that arise from the coordination and conduct of special operations as described in this MoU; and

c. coordinating cooperation between the Participants in the development of Afghanistan’s capacities as described in this MoU.

11. The understandings of the Participants reflected in this MoU are without prejudice to existing arrangements and understandings on issues outside the scope of this MoU.

12. All cooperation under this MoU is to be consistent with the Participants’ respective rights, obligations, and commitments under international law, and subject to applicable laws and regulations of the Participants.

13. This MoU is intended to commence upon signature.

14. Any disputes with respect to cooperation under this MoU are to be resolved, in the first instance, in the Bilateral Committee on Special Operations established in paragraph 10 above, and may be settled through diplomatic consultations if not so resolved.

15. This MoU was signed on the 8th of April 2012 in the city of Kabul. The English, Pashto, and Dari versions carry equal weight.

For the Islamic Republic of Afghanistan; For the United States of America

General Abdul Rahim Wardak; General John R. Allen

Minister of Defense; Commander, U.S. Forces — Afghanistan