The ongoing negotiations between the United States and Afghanistan regarding the future U.S. military presence in Afghanistan revolve around the crucial issue of immunity of American soldiers from prosecution. The issue of immunity actually stems back directly to the March 2012 Memorandum of Understanding (MoU), an agreement that required the United States to transfer its Afghan detainees to the control of the government of Afghanistan.
The issue of immunity has been historically important to the U.S. military. Traditionally, the U.S. negotiates a Status of Forces Agreement (SOFA) with a host country to determine “what laws govern the troops and who has legal jurisdiction over various issues.” The MoU, signed on March 9, 2012, “was one of two pacts that were key to a broad but vague strategic partnership agreement … that set forth an American commitment to Afghanistan for years to come. The second pact covers ‘special operations’ such as certain American air raids and other conduct on the battlefield. A third detailed pact … is now under negotiations, and covers logistical and legal questions such as … the immunity of U.S. forces from prosecution.”
However, the September 9, 2012 deadline set by the MoU for the U.S. to transfer its detainees to Afghan custody passed, with many detainees still not handed over. It appears that progress stalled between the two nations. The primary reason for the stalled progress revolved around disputes as to the exact interpretation of the MoU. President Karzai believes that U.S. actions regarding the detainee transfer process “‘are completely against the agreement that has been signed between Afghanistan and the U.S. president.’”
But according to journalist Rahim Faez, this third detailed pact also remains a source of conflict between the two nations. It seems that Karzai’s stance on the detainee issue, and now the immunity issue, stems from “pressure to give an appearance of upholding Afghan sovereignty.” In late 2012, Karzai’s spokesman, Aimal Faizi, commented that, “The most important issue for Afghanistan is its national sovereignty.” For its part, the U.S. “has said that it needs to maintain sole legal jurisdiction over its forces in Afghanistan as part of the agreement for forces that will stay after 2014.” The U.S. government’s stance on troop immunity has been non-negotiable, especially after a failure to obtain troop immunity in Iraq “[led] to the full withdrawal of all American troops.”
While the issue of immunity remains contentious, President Karzai began softening his stance on the issue towards the end of 2012. In a speech given in December, President Karzai said:
Afghanistan is willing to consider immunity for them and I, as the president of Afghanistan, am willing to go to the Afghan people and put that case forward and try to argue for it.
But before I do that, I must make sure that the U.S. respects Afghan sovereignty – that it doesn’t keep prisoners in Afghanistan in violation of agreement with us ….
A meeting between President Karzai and President Obama on January 11, 2013 appeared to move the negotiations forward. After this meeting, President Karzai made clear that “it was important that the U.S. now puts into practice the agreements reached in Washington, in particular the full transfer of Bagram prison to Afghan authority and any delay, otherwise, may raise suspicion among the people of Afghanistan.” President Karzai again stressed the importance of the national sovereignty of Afghanistan, but also stressed the safety of American soldiers from the laws of another nation, and “appeared to be trying to strike a conciliatory note, in sharp contrast to the harsh rhetoric and demands ahead of his U.S. trip.” On January 14, President Karzai stated that “he expect[s] the U.S. to restart the process of transferring Afghan detainees to Afghan custody … within two weeks.”
President Karzai implied in his December 2012 statement that the decision on U.S. immunity would be placed in the hands of the Afghan people. However, in his January 2013 speech, Karzai said that the decision on immunity would not be made by his administration, but rather by a loya jirga, a “national assembly of elders.” According to Karzai, “‘It is the decision of the people of Afghanistan. So a loya jirga of the people of Afghanistan should decide.’”
While there are those within Afghanistan who do not wish to see American troops obtain full immunity from Afghan laws, at least one member of the loya jirga has expressed his concerns about Afghanistan’s justice system. Journalists Eltaf Najafizada & Terry Atlas spoke with Abdul Ahad Helmandwal, a senior tribal elder, who said, “‘I personally don’t agree that U.S. troops should have immunity from Afghan law, as this will let their troops commit more crimes in Afghanistan …. But we also have a weak and corrupted justice system to prosecute U.S. troops.’” This fear of a weak and corrupted justice system is one of the reasons the U.S. is so insistent on immunity for its troops who may be accused of crimes.
Finally, the U.S. may find itself unable to comply with its obligations to hand Afghan detainees over to Afghanistan due to concerns about Afghan authorities’ treatment of their prisoners – and that in turn may frustrate the negotiations over immunity. The U.S. suspended detainee transfers beginning at least January 16, 2013, based on concerns of ongoing torture. Days later, a United Nations report released on January 20 claimed that “Afghan authorities are still torturing prisoners.” This report was confirmed on February 11, 2013, after an Afghan government panel acknowledged the widespread torture of detainees. The news of tortured Afghan detainees implies that Afghanistan has been in violation of Section 2, Article 5(b) of the MoU, which states that “Afghanistan affirms that it has established an administrative detention regime under its domestic law which is: … (b) in compliance with Afghanistan’s international obligations with respect to humane treatment and applicable due process.” Moreover, it’s also worth noting that, in the absence of immunity, U.S. troops could theoretically face prosecution for turning over detainees who were later tortured by Afghan authorities. This concern over prisoner treatment could continue to stall negotiations for immunity in this third pact of a strategic partnership agreement between these two nations for quite some time.
The latest development in this ongoing saga, a new MoU, whose text has not been released, was announced on March 24, 2013. In this new, secret MoU, it appears that the U.S. has finally ceded control of almost all detainees to Afghanistan, although it remains unclear whether Afghanistan has entirely abolished detention without trial. While the status of detention without trial remains unclear, the new handover agreement should have been seen as a welcome and necessary step in advancing the negotiations between the U.S. and Afghanistan. In fact, in President Karzai’s December 2012 speech, he made it clear that before American immunity would be considered, he wanted to make sure that Afghan sovereignty was respected, and specifically referenced the control of prisoners in Afghanistan. Unfortunately, this development has not done much to change the negotiation process between the U.S. and Afghanistan. Perhaps the reason for the continued delay is the remaining issue regarding detention without trial. Another reason for the delay may be the U.S.’s inability to comply completely with any handover agreement if there are ongoing concerns regarding torture in Afghan prisons. Whatever the reasons are, it was expected that a bilateral security agreement and new SOFA should have been reached by May 1, 2013. To this date, there has been no evidence to suggest that any security deal has been made.
 Rahim Faez, Hamid Karzai, Afghanistan President, Accuses U.S. Forces of Violating Detainee Pact, Huffington Post (Nov. 19, 2012, 8:41 A.M.), http://www.huffingtonpost.com/2012/11/19/hamid-karzai-afghanistan-detainee-pact-accusations_n_2156904.html.
 Memorandum of Understanding Between The Islamic Republic of Afghanistan and The United States of America on Transfer of U.S. Detention Facilities in Afghan Territory to Afghanistan, US-Afg., Mar. 9, 2012 [hereinafter “MoU”], http://mfa.gov.af/en/news/7671.
 Kal Raustiala, Are We Really Pulling out of Afghanistan?, Huffington Post (Feb. 7, 2013, 3:05 P.M.), http://www.huffingtonpost.com/kal-raustiala/afghanistan-status-of-forces-agreement_b_2625907.html.
 Faez, supra note 1.
 Byron Zinonos, When Are Afghan Detainees Captured After March 9, 2012 Being Transferred? Part I, Detained By U.S. (Dec. 31, 2012), http://www.detainedbyus.org/when-are-afghan-detainees-captured-after-march-9-2012-being-transferred-part-i/.
 Faez, supra note 1 (quoting Karzai statement).
 Emma Graham-Harrison, US Opens Afghan Talks on Long-Term Troop Presence After 2014, Guardian (Nov. 19, 2012), http://www.guardian.co.uk/world/2012/nov/19/us-opens-afghan-talks-immunity. .
 Heidi Vogt & Amir Shah, Afghanistan Immunity for U.S. Troops Should Be Decided by Loya Jirga, President Hamid Karzai Says, Huffington Post (Jan. 14, 2013, 12:02 P.M.), http://www.huffingtonpost.com/2013/01/14/afghanistan-immunity-us-troops_n_2471230.html.
 Joshua Hersh, Afghanistan Strategic Partnership May Hinge on Immunity for U.S. Troops, Huffington Post (May 4, 2012, 12:42 A.M.), http://www.huffingtonpost.com/2012/05/03/afghanistan-strategic-partnership-immunity_n_1474628.html.
 Julian Pecquet, Afghanistan Hints at Conditional Immunity for U.S. Troops After 2014, The Hill (Dec. 8, 2012, 3:13 P.M.), http://thehill.com/blogs/global-affairs/asia-pacific/271809-afghanistan-hints-at-conditional-immunity-for-us-troops-after-2014 (quoting President Karzai).
 President Karzai: Time to Implement Agreements Reached Between Kabul and Washington, Embassy of Afghanistan, Washington, D.C., http://www.embassyofafghanistan.org/article/president-karzai-time-to-implement-agreements-reached-between-kabul-and-washington.
 Vogt & Shah, supra note 10.
 Pecquet, supra note 12.
 Vogt & Shah, supra note 10.
 Id. (quoting President Karzai).
 Eltaf Najafizada & Terry Atlas, Karzai Faces Opposition to Giving U.S. Troops Immunity, Bloomberg (Jan. 15, 2013, 6:00 P.M.), http://www.bloomberg.com/news/2013-01-15/karzai-faces-opposition-to-giving-u-s-troops-immunity.html (quoting Mr. Helmandwal).
 Rod Nordland and Thom Shanker, U.S. Military Stops Sending Detainees to Some Afghan Prisons on Rights Fears, N.Y. Times (Jan. 16, 2013), http://www.nytimes.com/2013/01/17/world/asia/us-military-stops-sending-some-detainees-to-afghan-custody.html.
 Heidi Vogt, Afghanistan Prison Torture Still Happening, U.N. Says, Huffington Post (Jan. 20, 2013, 8:05 P.M.), http://www.huffingtonpost.com/2013/01/20/afghanistan-prison-torture-un_n_2516531.html?utm_hp_ref=tw. For a detailed breakdown of the U.N. Report’s findings, see Mike Yang Zhang, Systematic Torture Continuing in Afghanistan, Detained by U.S. (May 26, 2013), http://www.detainedbyus.org/systematic-torture-continuing-in-afghanistan/.
 Douglas Schorzman, Government Panel in Afghanistan Confirms Widespread Torture of Detainees, N.Y. Times (Feb. 11, 2013), http://www.nytimes.com/2013/02/12/world/asia/afghan-panel-confirms-torture-of-detainees.html?ref=asia&_r=1.
 MoU, supra note 2, at § 2, art. 5(b).
 Pecquet, supra note 12.