Over 2,500 members of Afghanistan's grand council are meeting in Kabul to confer over the future of South Asian nation. The Loya Jirga has come together to discuss a controversial bilateral security agreement with the US, which contains the legal framework and requirements for US combat and training units to remain in the country after the scheduled withdrawal of NATO-led troops in 2014.

US Secretary of State John Kerry said on Wednesday, November 21, that he and Afghan President Hamid Karzai had agreed on the final language of the bilateral security agreement after months of negotiations. "As we sit here tonight and we have agreed on the language that would be submitted to the Loya Jirga, but they have to pass it," Kerry said of the draft plan which will be voted on by Afghan elders. Kerry added the US role in Afghanistan after the NATO drawdown would be "limited," but he did not say exactly how many troops would remain in the country.

Najibullah Amin, the deputy director general of the Office of Administrative Affairs, explains: "The agreement with the US will be on the agenda of the Loya Jirga. The delegates will be divided up into 50 working groups to discuss the document. At the end, the Afghan president will be presented with a decision."

Two years ago, the Loya Jirga also discussed the future presence of US forces. Back then, Afghan politics was divided over the subject. "Members of the Jirga are against a permanent US presence in Afghanistan. But there is nothing wrong with having foreign military forces in the country until Afghanistan is able to defend its territory on its own," the assembly's concluding communiqué read. However, multiple discussions on the sovereignty of the Afghan army, the legal system and codes of conduct regarding cooperation with the Americans made clear that there are still issues which remain unresolved.

The 2012 agreement did not pertain to legal rights of US troops in Afghanistan

The so-called strategic partnership agreement signed by US President Barack Obama and his Afghan counterpart Hamid Karzai in May 2012 did not include any mention of military cooperation or military presence beyond 2014. Based on that deal, NATO approved billions of dollars in annual financial help to the Afghan army after 2014.

Legal rights for US soldiers

Aspects pertaining to the rights and tasks of the US military were meant to be drawn up in an ensuing bilateral security agreement. The US and Afghanistan have been negotiating these issues for months now. But during the discussions, differences of opinion have become apparent. The main points of contention are questions related to the legal jurisdiction for US soldiers, for example, in the case of raids on civilian houses and mosques, and how far US guarantees of protection for their soldiers should go, for example in the case of attacks carried out by extremists operating from Pakistan.

Afghan National Security Advisor Rangin Spanta and Army Chief of Staff Shir Mohammad Karimi informed the Afghan parliament on Monday, November 18, for the first time about a number of details in the bilateral security agreement. The deal outlines that between 10,000 and 16,000 US soldiers should remain at the US military base in Bagram, where the US would have sole jurisdiction, or be distributed among various Afghan army bases.

This figure does not include agents working for private security firms or intelligence agencies. Furthermore, "family members and contractors of the US army" should be able to travel to and from Afghanistan without a visa. Regarding the controversial issue of legal jurisdiction over members of the US military, Spanta's solution is in favor of the Americans: he believes US soldiers should be under the sole legal jurisdiction of the US. Should the Loya Jirga reject this proposal, in the end, Spanta noted, an agreement would fail to be negotiated. The agreement would be valid for 10 years.

Loya Jirga

The Afghans, on the one hand, demand respect for their sovereignty, and, on the other hand, they know that they are dependent upon support from US security forces and fear the return of the Taliban. According to Hamidullah Farooqi, a political scientist at the University of Kabul, the Loya Jirga is tasked with exactly that: putting an end to these fears. "Signing the security pact will help the Afghans find a way out of the chaos and confusion. That's why the Loya Jirga has to approve the agreement and put an end to the uncertainty of the country's future."

The agreement, if signed as is, will give the US complete control over its Bagram Air Base

Farooq Bashar, legal expert at the University of Kabul, on the other hand, criticizes the "40-million-US-dollar meeting." For one, he says, Karzai has the constitutional right to use his authority to close such a deal on his own. He also points out that the Loya Jirga already gave its basic approval in 2011 for military cooperation with the US beyond 2014.

Bashar says the Loya Jirga is a fig leaf for Karzai, so that later on, he cannot be blamed for being too willing to make concessions to the US. The security agreement, the expert adds, is of vital importance: "Should the US completely withdraw, a civil war will break out and Afghanistan will be divided."

Government gives direction

Najibullah Amin defends the council, saying it is a mechanism for showing the government what the people want. "In the Jirga, we have very influential people, experienced leaders and representatives of women and civil society. Afghans from Europe and the US as well as from Iran and Pakistan - where the most Afghan refugees are - all come [to negotiate]."

Kate Clark of the Afghan Analysts Network, however, says that the delegates from abroad are chosen by the government and are thus not independent. The decision the Loya Jirga will make, therefore, is already obvious: "I suspect the delegates will concur with the government. The fact that they are hand-picked gives the government a huge amount of influence."