international analysis and commentary

Reading the Doha agreement, literally

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The decision by the United States to withdraw its army from Afghanistan has been explained by President Biden on August 16, when the occupation of Kabul by Taliban forces had just taken place, with arguments that on their face value may seem convincing, up to a point. He further stated that the goals with which the US went to Afghanistan in 2001 were simply to “get those who attacked us on September 11th, 2001, and make sure al Qaeda could not use Afghanistan as a base from which to attack us again”. From this statement, it further follows, in the words of the President, that “Our only vital national interest in Afghanistan remains today what it has always been: preventing a terrorist attack on American homeland”. President Biden further declared: “I inherited a deal that President Trump negotiated with the Taliban. Under his agreement, U.S. forces would be out of Afghanistan by May 1, 2021”.

US representative Zalmay Khalilzad (left) and Taliban representative Abdul Ghani Baradar (right) sign the agreement in Doha, Qatar on February 29, 2020.

 

The Biden administration has indeed delivered, with some changes, under the agreement that had been signed by the Trump administration, which did not have any protection built into it for the case of the unfulfillment of the commitments by the Talibans in the interest of the US. Both sides of the agreement have delivered what they had agreed to, and both administrations should take the responsibility for drafting, negotiating, signing, and implementing it.

The “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”, signed at the Sheraton Doha Hotel on February 29th, 2020, by Zalmay Mamozy Khalilzad and Abdul Ghani Baradar, is the pivot of the events which are unfolding in Kabul and at the Karzai Airport since 16 August 2021, and although the Agreement has been published and is frequently alluded to, it seems not to have been read carefully, otherwise certain comments could not be reiterated so candidly and often[1].

In the first place, it should be noted that the agreement was negotiated and signed, for the United States Government, by the Special Representative of the United States for Afghanistan, Mr. Khalilzad (born in Afghanistan and naturalized as US citizen, appointed by Mike Pompeo to that position), on one side; and on the other side by Abdul Baradar, one of the two mullahs who formed the first Taliban movement after the Soviet Union’s defeat, and had his headquarters in Doha. Thus the agreement has been signed between the government of the US and the representative of a non-recognized militarized insurgency force, that was in control of a part of the territory of the Islamic Republic of Afghanistan, a member of the United Nations. Although in the Agreement the other party is repeatedly defined as “the Islamic Emirate of Afghanistan which is not recognized by the United States as a state and is known as the Taliban”, it seems reasonable to say that the US Government, by signing the Agreement, has effectively given de-facto recognition to the (Taliban) “Islamic Emirate of Afghanistan”.

The main obligation assumed by the US is contained in Part One of the agreement, which sets out the commitment to “withdraw 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 supporting services personnel within fourteen (14) months following announcement of this agreement”. The commitment also includes, as in all traditional military armistice agreements, the release of prisoners on both sides (the non-Taliban side being the Government of the Islamic Republic of Afghanistan, not the US). Also, the US has committed to review current US sanctions and the reward list against members of the Taliban organization. Finally, and importantly, the US and its allies have committed to “refrain from the threat or the use of force against the territorial integrity or political independence of Afghanistan or intervening in its domestic affairs”. These are very broad and important commitments for a world power such as the US and for their allies to take with a revolutionary insurgency force.

The main and actually sole obligation in favour of the US is the commitment contained in Part Two of the agreement to “prevent the use of the soil of Afghanistan by any group or individual against the security of the United States and its allies”. There does not appear to be any indication of how the compliance by the Talibans to this provision could be verified. More importantly, it does not even appear that, should they not comply with it, the US and their allies would not be held to respect their own commitment not to intervene or even threaten the use of force against the integrity, political independence or domestic affairs of Afghanistan. The possibility of infringement of specific clauses of the Agreement is not contemplated.

The most important aspect of the Doha Agreement, however, especially to understand the unfolding of events in August, is the political future of Afghanistan, such as it is described and assumed in the Agreement.

In the introductory paragraph of the agreement, under point 3, it is agreed that “After the announcement of guarantees for a complete withdrawal of foreign forces and timeline in the presence of international witnesses, and guarantees and the announcement in the presence of international witnesses that Afghan soil will not be used against the security of the United States and its allies, the Islamic Emirate of Afghanistan […] will start intra-Afghan negotiations with Afghan sides on March 10, 2020”. And, at the end of the introductory section, it is further stated that “The obligations of the Islamic Emirate of Afghanistan […] in this agreement apply in areas under their control until the formation of the new post-settlement Afghan Islamic government as determined by the intra-Afghan dialogue and negotiations”.

It is thus clear that the agreement with the Islamic Emirate of Afghanistan envisions and presupposes that the then existing government of the Islamic Republic of Afghanistan would soon be substituted by a “new post-settlement Islamic government”, to be mutually negotiated between the Islamic Emirate and other, unidentified, “Afghan sides”. The exact procedure for such negotiations, the parties to it, the content of the negotiations are not detailed in the agreement, there is only a date for the commencement of such negotiations, on March 10, 2020.

Part Three of the Doha Agreement is equally important, in that it sets out the commitments of the US government towards the future “new post-settlement Afghan Islamic government”. According to point 2: the US and the Islamic Emirate of Afghanistan “seek positive relations with each other and expect that the relations between the United States and the new post-settlement Afghan Islamic government as determined by the intra-Afghan dialogue and negotiations will be positive”; and according to point 3: the US “will seek economic cooperation for reconstruction with the new post-settlement Afghan Islamic government as determined by the intra-Afghan dialogue and negotiations, and will not intervene in its internal affairs”.

By signing the Doha Agreement with the Islamic Emirate, the US Government has given its explicit consent to the establishment of a new government in Afghanistan, which would replace the then existing official and elected government, recognized by the US as well as the international community, a member of the United Nations, the government of a country that  Secretary of State Hillary Clinton, on July 8, 2012, officially named a Major Non-Nato Ally (MNNA) of the US[2]. The US has thus committed with the Islamic Emirate to have positive relations with the Emirate itself and with the new post-settlement Islamic government, as well as to seek economic cooperation with the latter[3]. The legal nature of these commitments is unclear, given that the Doha Agreement is not a treaty or an executive agreement[4]. However, the essential point is to identify the political intentions that lie behind the agreement.

The implicit assumption of the Doha Agreement is that the US government does not believe that the then existing Government in Afghanistan was a fully legitimate government, truly representing the civil society of Afghanistan, and thus that there was the need for an agreed regime-change involving a more representative government; and  it does not consider the Taliban leaders a political enemy for US national interests. Thus the US government has decided that, in order to end the war and the deployment of its army in the country, it was necessary to reach a pacification of the internal conflict within Afghanistan and to induce the existing government to negotiate a political reorganization of the government itself with the Taliban (or more precisely the Islamic Emirate) forces. This reorganization should be now put in place in Kabul with existing “Afghan sides”, among which, however, the formerly legitimate government of the Islamic Republic of Afghanistan (which, at any rate, was not even mentioned in the Doha Agreement) will no longer be a potential participant.

It is not entirely clear how much of these implied concepts has been shared by President Trump and by President Biden. Consistent with this overall assessment, the main reason for the withdrawal, other than cost in financial resources and casualties, has been indicated by the Biden administration in the behaviour of the Islamic Republic of Afghanistan’s government and military, both prior to and following the US withdrawal. President Biden’s argument – which leads to the core of the Doha Agreement – is expressed as follows: “And here’s what I believe to my core: It is wrong to order American troops to step up when Afghanistan’s own armed forces would not. If the political leaders of Afghanistan were unable to come together for the good of their people, unable to negotiate for the future of their country when the chips were down, they would never have done so while U.S. troops remained in Afghanistan bearing the brunt of the fighting for them”. The President further explained that when he hosted President Ghani and Chairman Abdullah at the White House, in June, and again when he spoke to President Ghani in July, he explained that Afghanistan should be ready to “to fight their civil wars after the U.S. military departed” and that Afghan leaders were to “unite politically”, adding: “I also urged them to engage in diplomacy, to seek a political settlement with the Taliban.  This advice was flatly refused”.

It appears that here lies the heart of the new American strategy with Afghanistan: the fundamental concept that the problem of Afghanistan is essentially an internal problem, a “national conflict” and a civil war between sections (regional, or ethnic, or religious groups) that form the Afghan society, that such national conflict needs to be re-composed through internal negotiations,and that such internal negotiations must include, and actually are dominated, by an agreement with the Talibans. In the absence of such a political internal agreement within Afghan society, it is not the business of the US to devote their energy, armed forces and budget to uphold a government who does not stand up to its national political duty.

And here lies also the fundamental question underlying US policy in Afghanistan: were the Talibans, or rather one should say the Islamic Emirate of Afghanistan, the joint enemy of both the US and the Republic of Afghanistan, or were they one of the political entities that must be included into the government of the country[5]? Were the Afghan armed forces meant to fight against an insurgency that was aimed at substituting the elected government, or were the Talibans just one of the constituencies within Afghan ethnic mosaic and society, which the government should deal with, on an equal-status with itself as an autonomous political entity?

The evolution in the attitude of the Taliban leadership towards appeasement talks dates from immediately after the killing of Osama bin Laden in May, 2011. Indeed, in January 2012 the Islamic Emirate of Afghanistan opened for business their political office in Qatar, and the new policy was inaugurated with the Karzai-Obama meeting on January 11, 2013. On June 22, 2013, President Obama announced the new course: “So as we strengthen the Afghan government and security forces”, he said, “America will join initiatives that reconcile the Afghan people, including the Taliban.  Our position on these talks is clear:  They must be led by the Afghan government, and those who want to be a part of a peaceful Afghanistan must break from al Qaeda, abandon violence, and abide by the Afghan constitution.  But, in part because of our military effort, we have reason to believe that progress can be made”. The Trump and Biden administration have both come to an assessment on this issue, that represents a radical policy shift: given that the direct negotiations between the Afghan government and the Islamic Emirate did not show progress, the decision has been to strike a deal directly between the US and the (unrecognized) Islamic Emirate[6].

But, if the Afghan former government was – as it was invited to do by the Trump and the Biden administrations – to enter peaceful negotiations with the Islamic Emirate, in order to replace itself with a “new post-settlement Afghan Islamic government”, and if the US urged it to enter into such negotiations – then why is it that American citizens need to fly out of Kabul as quickly as possible by August 31st?

It appears clear that until an almost symbolic US military force was still on the ground, supporting the Afghan military, the Taliban forces had been checked and did not occupy most of the territory. The advance of the Taliban commenced after the Biden administration decided and announced, on 14 April, to withdraw all troops from the country.

Following the entry of the Taliban forces into Kabul on Sunday August 15th, the US have started an impressive withdrawal of US citizens and of “SIV”s. President Biden has stated: “As we carry out this departure, we have made it clear to the Taliban: If they attack our personnel or disrupt our operation, the U.S. presence will be swift and the response will be swift and forceful. We will defend our people with devastating force if necessary”. It appears that the August 31st deadline to complete the evacuation is not a self-determined timeline established by the US Government, but rather that any change to such a deadline would have required the acceptance of the effective controlling de-facto government in Kabul; and it the latter declared that it was not prepared to grant any extension.

If we assume that the withdrawal of US troops from the country was to be effected under the umbrella and according to the reciprocal covenants of the Doha Agreement, then it is not understandable why the US needed to negotiate with the de-facto government in Kabul the ways and timing of the departure of their citizens, nor why there is no US Embassy taking care of US citizens. There is an apparent contradiction between the repeated statements by the Biden administration that the evacuation was proceeding according to an agreed procedure and through constant contacts with the de-facto occupiers of Kabul, and further that it was to be seen whether the Talibans would live up to the existing covenant, which up to that moment they were, and the dramatic unfolding of the situation at the Karzai Airport, except – as the Administration has been repeatedly saying – for a slightly faster-than-expected timing, which anyway was the unavoidable consequence of the unexpected failure from the Afghan military and government to defend themselves – and the American civilians.

Iit is further to be noted that, according to the Doha Agreement, the US was committed to withdraw from the territory of Afghanistan all military forces, “including all non-diplomatic civilian personnel, private security contractors, trainers, advisors, and supporting services personnel” within the original time limit of 14 months. It is not clear why such an obligation was not met within the agreed timeline, before handing over Kabul to the new de-facto government.

Indeed, the dramatic situation of the US armed forces and civil personnel in Kabul does not reflect the position of a government who has negotiated an agreement with the present de facto controlling political force. The situation in which the evacuation out of Karzai Airport has taken place appears, rather, that of a an emergency evacuation from a country occupied by a hostile military force and controlled by a hostile de-facto government. So, where are the “positive relations with each other” that the US government and the representative of the Islamic Emirate promised to each other in the Doha Agreement? And how was President Ghani – if he had not stubbornly refused to enter such negotiations, as urged upon him by President Biden – supposed to negotiate a “new post-settlement Afghan Islamic government” with those representatives, had he not decided to seek his own safety by fleeing the country? Indeed these are questions to which the President and the State Department should give some answer to their citizens.

 

 


Footnotes:

[1] It is said that other undisclosed parts of the agreement were signed, but unless these other documents contradict, and prevail on, the disclosed part, and assuming that they don’t, the following analysis should apply equally to the whole.

[2] As provided for in the “Enduring Strategic Partnership Agreement between the United States of America and the Islamic Republic of Afghanistan”, signed at Kabul on May 2, 2012, art. III, section 3: “3. To help provide a long-term framework for mutual security and defense cooperation, the United States shall designate Afghanistan a “Major Non-NATO Ally”. Currently 17 countries are listed as MNNA: Afghanistan, Argentina, Australia, Bahrain, Brazil, Egypt, Israel, Japan, Jordan, Korea, Kuwait, Morocco, New Zealand, Pakistan, the Philippines, Thailand, and Tunisia.

[3] On the same date as the Doha Agreement, the US and the Islamic Republic of Afghanistan signed a Joint declaration, which is similar to, but has contents deeply different from, and even incompatible with, the Doha Agreement signed with the Islamic Emirate: see the text of the Joint Declaration between the Islamic Republic of Afghanistan and the United States of America for Bringing Peace to Afghanistan, February 29th, 2020, https://www.state.gov/wp-content/uploads/2020/02/02.29.20-US-Afghanistan-Joint-Declaration.pdf.

[4]Neither the Agreement nor the Joint Declaration is necessarily binding as a matter of international law. It would be difficult to deem the Agreement to be “concluded between States”as envisioned by Article 2 of the Vienna Convention of the Law of Treaties40 in light of the general lack of recognition accorded to the Taliban—as well as the repeated emphasis in the text of the Agreement itself that the United States does not recognize the Taliban as

the government of Afghanistan”: see United States Signs Agreement with the Taliban, but Prospects for Its Full Implementation Remain Uncertain, in “American Journal of International Law”, Vol. 114 n. 3, July 2020, p. 534.

[5] It is not clear, either in the Doha Agreement, or in President Biden’s statements, whether the Talibans are considered as an unrecognized (de facto recognized) state with effective control over a territory, a civilian political entity, representing a minority group, or a military insurgent organization. The Doha Agreement would appear to follow the first alternative (given the definition used in the Agreement), while President Biden’s statement appears to follow the second.

[6] This decision seems to be inconsistent with Article 2 of the “Security and Defense Cooperation Agreement between the United States of America and the Islamic Republic of Afghanistan”, signed in Kabul on September 30, 2014: “1. The Parties shall continue to foster close cooperation to strengthen security and stability in Afghanistan, counter terrorism, contribute to regional and international peace and stability, and enhance the ability of Afghanistan to deter internal and external threats against its sovereignty, security, territorial integrity, national unity, and its constitutional order. Unless otherwise mutually agreed, United States forces shall not conduct combat operations in Afghanistan”, if the Taliban occupation is to be deemed as an “internal threat” under that clause.