I wrote the following article for The National Interest.
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The Zapad-2017 military exercise that will take place in September in Russia and Belarus has already begun to draw attention in the Western press. In recent days, media outlets have published somewhat panicked accounts about the unprecedented numbers of Russian troops conducting drills on the borders of vulnerable eastern European countries like Poland and Lithuania. Others are arguing that once Russian troops enter Belarus to participate in the exercise, they are likely to stay behind “in order to give Moscow a more-advanced forward base in Europe” or, in the less carefully chosen words of some Ukrainian officials, to occupy Belarus possibly as a prelude to an invasion of Ukraine from the north. Given this level of excitement about a military exercise still six weeks away, it may be useful to analyze what we actually know about the upcoming exercise and its predecessors.
The Zapad exercise is a regularly scheduled event that has been held quadrennially since 1999. What’s more, it is part of an annual rotating series of large scale exercises that serve as the capstone to the Russian military’s annual training cycle. The series rotates through the four main Russian operational strategic commands (Eastern, Caucasus, Central and Western) that give name to the exercises. Similar major strategic operational exercises were held in the fall throughout the Soviet period as well. In other words, everyone has known that this exercise would be held in the early fall of 2017 since at least four years ago. The only uncertainty was regarding the scope and exact parameters of the exercise.
These aspects remain uncertain at the present time. Official Russian sources have indicated that the total number of troops involved in the exercise will not exceed 13,000, while Western officials and analysts have been quoted as sayingthat as many as 100,000 Russian personnel may be involved. Previous Zapad exercises have been on the larger side, with Zapad-2013 involving approximately 75,000 troops and personnel. Part of the discrepancy in numbers may stem from a disagreement over who should be counted. The highest Western numbers usually include not just members of the Russian armed forces, but also personnel from security agencies and civilian officials who may be involved in parts of the exercise. Furthermore, the Russian military may choose to conduct other related exercises that are not technically part of Zapad-2017 and would therefore not be included in the official declaration on the number of troops involved.
What we do know is that the total number of Russian troops on Belarusian territory is not expected to exceed 3,000 personnel. … <To read the rest of the article, click here>
The temporary capture of Janikhel district centre by Taleban forces in late July 2017 stands out in the relatively static, mountainous and geographically and tribally fractured region of eastern Paktia and Khost. There, most district centres continue to be in government hands, while many areas outside of them are more or less under Taleban control. However, the situation has become more fluid over some time. Although the capture was a raid and show-of-force, rather than an attempt to seize and hold a district centre, it seems to reflect a more aggressive approach on the part of the insurgents in that area. As AAN Thomas Ruttig and Fazal Muzhary find, the Taleban’s increased footprint in and stronger hold on parts of this area close to the border with Pakistan is also the outcome of a long-term neglect of an area that, for a long time, has been taken for granted as being pro-government.
What happened in Janikhel?
Early on 25 July 2017, after two days of fighting, a large group of Taleban fighters overran the centre of Janikhel district. The district itself is a small, mountainous strip of land at Paktia’s border with Khost province, close to Pakistani Waziristan and with a number of important local roads running through it. On 5 August 2017, government officials reported they had recaptured the district centre (media report here). Local observers based in the region and in Kabul told AAN that a large government force was deployed and this convoy made it to and retook the district centre. Later, Afghan officials were flown in to see the success.
This followed some days of ANSF fighting their way up to Reshpegi Kandao, a pass about three kilometres away from the district town on a winding route leading uphill through forested and mountainous area that had been heavily mined by the Taleban. Fighting seems to have finished now (ie as of 7 August 2017) and the insurgents returned to their previous positions. They are mainly in Kotkai, a plain towards neighbouring Musakhel district (in Khost province), where they have established several bases over recent years. They might have left the district centre, the observers believe, in order to avoid attracting airstrikes to the area.
The exact number of casualties of the fighting on both sides is not clear. Both the Afghan government and the Taleban have claimed to have inflicted considerable casualties on each other. Government sources, after the recapture of the district centre, claimed 140 insurgents were killed and over 120 more wounded. Provincial police spokesman Sardar Wali Tabasum said that at least sixteen ‘Pakistani militia forces’ were among those killed during the initial days of the fighting. The Taleban claimed they only lost one killed. According to Abdullah Hasrat, the spokesman for Paktia’s governor, five Afghan security forces were killed and another four wounded, but local people told Azadi Radio (see here) that they saw dead bodies of 12 security forces one day after the fall of the district centre to the Taleban. The Taleban claimed 15 ANSF killed and 15 more were captured alive – a fact earlier denied by Hasrat. In a video released on 30 July 2017, they were shown sitting in a semi-circle being questioned about their provinces of origin and whether they had been treated well (which all of them said was the case). The video also showed some dead bodies of ANSF fighters.
According to the observers, the Taleban carried away large amounts of weapons, including a number of US-made Humvee military vehicles. (Such vehicles are sometimes used as car bombs during attacks, such as that on 20 July 2017 in Gereshk, see here, probably because the Taleban lack the means to keep them operational.)
The district centre fell to the Taleban on the second day after the fighting broke out. On the first day, the pro-government defenders had beaten back the attackers. They set up additional security posts around the centre, which is located high in the mountains, and, as the local observers confirmed, apparently did not see the second wave of attackers coming and were surprised by it. (That there was a surprise effect is surprising in itself, but not unprecedented, as AAN has reported, for example, from Kunduz province – see here.)
The Taleban had pulled together fighters from several districts of Paktia and Khost, as well as from Waziristan on the other side of the Afghan-Pakistani border, local observers told AAN. Waziristan is where most of their bases still are. The comparatively small, closely knit local tribes of Paktia and Khost on the Afghan side have been reluctant to allow them to operate permanently on their territories, and due to the short distances, cross-border raids are effective enough. But there are also areas held by the Taleban inside Afghanistan, for instance, Janikhel’s Kotkai plain, about ten kilometers away from the district centre that has been under Taleban control for several years. According to one local journalist, who did not want to be named for reasons of personal security, the Taleban fighters mainly came from the Haqqani and the Mansur networks, the two traditional Taleban sub-groups in the Afghan southeast (more background on them here).
A member of the provincial council told the German news agency dpa that the fighting has displaced 250 families.
The run-up to the events
It appears the attack was a raid and show-of-force, rather an attempt to seize and hold territory. It reflects a more aggressive approach on the part of the insurgents, particularly in the eastern, mountainous parts of Paktia and Khost, but also in the two provinces’ capitals, Gardez and Khost. (1) For many years, the situation has been relatively static in this mountainous, geographically and tribally fractured region. Most district centres continue to be in government hands, while many areas outside of them are more or less under Taleban control. (As local journalists pointed out to AAN, there is also an economic factor behind the Taleban control of the area, which exports locally gathered pine and walnuts to Pakistan. The Taleban levy taxes on these to generate one important local source of income for their fighters.) This has changed slowly over a number of years with a growing number of significant incidents.
On 20 May 2017, there was an assault by three attackers, one of them being a suicide bomber, on a bank branch office in Gardez, the Paktia’s provincial capital. This caused the death of three people and injured 30 more. Almost simultaneously, a suicide bomber with a very strong explosive device hit a convoy of the Khost Protection Force (KPF) – a local US-run private militia that is not part of the regular government forces – that had stopped in Khost city for shopping. The attack killed 18 people and was claimed by the Taleban. After the withdrawal of most US forces from the region and the closure of a number of their forward bases, the 4-6,000 strong KPF is the Taleban’s main local adversary. They have been effective in pushing back the Haqqani network’s influence in the three Dzadran districts of Paktia (Waza Dzadran, Shwak and Gerda Tserai). (2) This was followed on 18 June 2017 by a coordinated attack on the police headquarters in Gardez. This reduced much of the compound to rubble and killed at least nine people. Gardez, and its outskirts, has been the scene of string of smaller attacks, such as assassinations, often with the use of magnetic bombs. The latest of these incidents happened on 2 August 2017 against a vehicle of a local intelligence official killing two people.
There was also new fighting in Dand-e Pattan in June and Dzadzi Aryub in July 2017, two border districts that, for many years, were known as staunchly pro-government and safe areas, but where conditions have deteriorated over the past years. Taleban activity has also been registered closer to Gardez, as fresh AFP photos of armed insurgents in Ahmad Aba district show (see one here). This increased presence has been met by frequent drone and other air strikes, for example, on 8 July 2017 in Mamozai, Zurmat district, also close to Gardez and a traditional Taleban stronghold (see this news article as well as 2016 AAN reporting about that area) and in Waza Dzadran on 1 August 2017.
The surprise factor of the attack on Janikhel is astonishing because its district centre has fallen to the Taleban at least once before, almost a year ago, on 27 August 2016 after a siege of almost two weeks. People in Baghlan province had then protested (see here) and demanded that the government send additional forces to rescue the besieged soldiers, who were mainly from their province. After the rescue, the district fell to the Taleban.
The Taleban left after ten days, pushed out by air attacks, but torched the district governor’s office building, the houses of government employees and local policemen, as well as other administrational buildings as they retreated (read here). At the time of this latest Taleban attack, the buildings were almost reconstructed, but then destroyed again, as a demonstration of the incapacity of the government to defend the place.
Furthermore, Janikhel has had a pattern of regular Taleban attacks going back in time to at least as early 2007. (3) The Taleban claimed to have captured the district centre first in late 2008. In a 2009 pre-election assessment, UNAMA counted the district as one of three “high risk districts” in Paktia, together with Zurmat and Gerda Tserai, the home village of the Haqqani family. It is, incidentally, since 2001 the only district centre in Paktia that was ever captured by the Taleban, and one of only a few in Loya Paktia (all the others are in Paktika, such as Omna that was taken in September 2016, and Wurmamay that was held for around two weeks in October 2016). [Corrected 8 August 2017: Three districts in Paktika, Naka, Dila and Omna, are the only districts in the region fully, ie including the district centre, controlled by the Taleban.]
Why now, and why Janikhel?
Janikhel, although small and not very populous (official statistics estimate around 100,000 inhabitants), is of strategic importance for the region of eastern Paktia and Khost. The first reason is that the second-largest road connecting the two provincial centres, which the local population mainly uses, runs through the district. (There is also a more direct main road, further to the south.) Second, it is the junction of a number of smaller roads – and insurgent routes, including the one over the Reshpegi Pass – leading to other hotspots in the region, for example, to Waza Dzadran (Paktia), which is controlled by a local rival of the Haqqanis, and Sabari (Khost) districts. Sabari, with its old, madrassa-based ideological Hezb-e Islami and later Taleban networks (the former often under the latter’s command) is another geographical origin of the insurgency in Loya Paktia, which started with the anti-Soviet resistance in the 1980s.
Even more importantly, Janikhel connects – through mountain passes in the border district of Dand-e Pattan – the Haqqani network’s logistic bases over the border in Parachinar (4) with the areas on the Afghan side of the border that are already widely under Taleban control (Dand-e Patan and Janikhel in Paktia; Sabari, Musakhel and Qalandar; the latter three being in Khost province) with other areas further inland, where the Taleban have lesser influence, but is showing an increased activity, such as Ahmad Aba and Sayyed Karam districts near Gardez and further on to Logar and Kabul. Janikhel may also have been chosen for the July raid because its centre sits on a forested mountain range (with even higher mountain tops around it) that is more difficult to defend and further out of reach of the KPF, than the other three districts.
Government neglect, tribal fragmentation…
Local politicians claim that they had seen the attack coming. Mujib Rahman Chamkani, a member of parliament from Paktia province, told AAN that he and his fellow MPs from the province had been telling the government to block the flow of the Taleban from the adjacent districts, which he said had destabilised Janikhel for the last five years, but no action had been taken. The last time he raised the issue, he said, was two weeks before the district fell. He said that they visited “all four security branches: the National Security Council (NSC), Ministry of Defence, National Directorate of Security (NDS) and the Ministry of Interior.” But local intelligence operatives, he claimed, told the central government that their information was incorrect. Chamkani added: “We got a call from the president’s office, who told us a day after our meeting that the situation in Janikhel was normal and the district was not in danger of falling to Taleban.”
According to Chamkani, there are Afghan National Army (ANA) soldiers, Afghanistan National Civil Order Police (ANCOP), Afghan National Police (ANP) and Afghan Local Police (ALP) forces deployed to this district. Altogether, he estimated this to total some 300 to 500 men. (Provincial spokesman Hasrat told AAN he could not disclose the number of the deployed forces.) Chamkani, local residents and observers told AAN that the Taleban had clearly outnumbered the government forces.
Chamkani further told AAN that ALP members from his home district (also called Chamkani) told him that they had wanted to come to the rescue of Janikhel, but ran out of fuel half-way there. The local officials, he added, did not give the ALP “enough food, ammunition and fuel for the vehicles or motorbikes.” The governor spokesman rejected these claims as baseless. Other observers also spoke of poor coordination between the various regular and irregular pro-government forces in the area.
As AAN has reported previously from other parts of Afghanistan, what is seen locally as government neglect often leads to theories about possible collusion between government officials and the insurgents. As Chamkani put it: “This [the lack of supplies and coordination] makes one doubt the security officials, [and suspect] that they might have a cooperation with the Taleban or may not have the serious intention to prevent the Taleban from attacking this district.”
However, this is only the latest manifestation of the area’s strained relations with the central government, the origins of which reach back to the first years after the overthrow of the Taleban regime by the US-led 2001 military intervention. This is particularly true for the Pashtun tribe of the Mangal that constitutes almost 100 per cent of the population of Janikhel, Musakhel, Qalandar and Lajja Mangal districts, as well as large parts of Dand-e Pattan, Chamkani and Mirzaka. In the early years, the Mangal and most other tribes of Loya Paktia professed an open pro-government position. The Mangal were particularly well-organised under a central tribal council that resided in Janikhel centre. In 2003, the council decided unilaterally to stop growing poppy (which was not a major, but a visible crop, locally) in response to the anti-narcotics policies adopted by the donors and the new Afghan central government, and in exchange demanded development projects for their area. The decision was committed in writing to the UN mission in Afghanistan. However, neither donors, nor the central government of then President Hamed Karzai, responded to this initiative; the UK – as lead nation for the international community’s anti-narcotics drive – concentrated its funding almost entirely on Nangrahar, which then was a larger growing area.
Another political decision of the Mangal Central Shura very likely contributed to the tribe’s neglect by the Afghan government. During the 2003 ‘constitutional consultation’ in the run-up to the Constitutional Loya Jirga over the turn of 2003 to 2004, the tribe unanimously opted for a restoration of the Afghan monarchy; a decision that clearly angered Karzai. The Mangal council also complained that they were ‘consulted’ about a constitution, the draft of which the government refused to publish.
The failure of the Mangal council to attract projects and funds led to its delegitimisation within the tribe and to the fragmentation of the Mangal tribal leadership in general (and, also, to the resumption of poppy production). By 2009, there were around a dozen Mangal shuras each claiming to represent the entire tribe. Local observers also point to the frequent changes of the Paktia provincial governor (two alone since November 2016), leading to discontinuity and ever-changing realignments and intrigues among the provincial and district administrations and the MPs from the province.
Tribal fragmentation, Taleban gains…
Janikhel district, and the wider Mangal-populated areas of Paktia and Khost illustrate how weak administration, neglect by the central government (even if partly only in local perception) and disintegration of the tribal structure turned an area with a pro-government population into a recruiting ground for the local Taleban, particularly the Haqqani network. According to observers, the Haqqani network has seen an influx of young Mangal men in recent years, motivated largely by joblessness and lack of perspectives. The fact that no Mangal has risen up to the Haqqani network’s leadership, and that the network continues to be dominated by the clan that has given it its name (from the Mezai subtribe of the Dzadran), has not prevented this trend.
The temporary fall of Janikhel illustrates how vulnerable many district centres in Loya Paktia are, even though the Taleban rarely make any serious attempts to capture them. The attack, though ultimately repelled, was a successful show-of-force that had both propaganda (the video that was released) and material value (the military hardware that was captured). It also showed that the Taleban have the initiative and are able to force the government into a reactionary mode. On the other hand, it also illustrates that the insurgents are still not strong enough to keep and hold a district centre in this part of Loya Paktia.
For the time being, the fighting in Janikhel seems to have been more about control over the insurgency supply routes, than over the actual district centre itself. However, it does indicate a more aggressive approach and comes on the back of a slow spread of territorial control of the Haqqani network in eastern Paktia and Khost. This spreading control has been fostered by the slow, long-term fragmentation of institutions of tribal leadership that had earlier guaranteed a considerable degree of tribal unity and, at least a tacit support for the central government. This might be the most concerning development in the region, as it might be irreversible.
(1) Together with Paktika, further south, Paktia and Khost used to be one province until the 1970s (called Paktia); Khost and Paktika were established as separate provinces under President Daud (1973-78). Therefore, to this day, these three provinces are often referred to as Loya (Greater) Paktia (or P2K in NATO language). Provincial borders between them do not count for much with the local population, nor the insurgents, particularly for those tribes now spread over several provinces. As a result of the breakup of the original province, several tribes were split, including the Dzadran (to which the Haqqani family belongs; they now live in three districts each in all three provinces) and the Mangal (the main population of Janikhel) were split. This spread the central government’s dealings with them over three different provincial administrations, thus making it more difficult.
(2) The KPF is, according to different sources, between 4,000 and 6,000 strong and run by the CIA and operates across the provincial boundaries of Loya Paktia. In late 2015, the Washington Post, in an investigative report described severe human rights violations committed by the force (read here).
(3) The earliest attack was reported by Pajhwok News Agency on 3 April 2007 (not online; in the author’s archive).
(4) According to independent Pakistani media reports (see, for example, here), the Haqqani network leadership relocated to Parachinar before the 2014 Pakistani anti-Taleban military operations. Jalaluddin Haqqani, the founder of the Haqqani network (the remnant of the 1980s Loya Paktia network of the Hezb-e Islami/Khales mujahedin party), is known for his long-standing relationship with the Pakistani intelligence service ISI (more AAN background here).
The Afghan government has found itself in a complicated legal tangle again. After the Independent Commission for Overseeing the Implementation of the Constitution (hereafter, Constitutional Oversight Commission) dismissed its chair, the president ordered an evaluation of the Commission’s performance in a move that looks designed to curtail its independence. Although the legal basis for the Commission’s dismissal decision does look shaky, there are concerns that the president’s move might have been prompted by the Commission’s critical stance on, inter alia, the constitutionality of the peace deal with Hekmatyar, and a report it prepared on cases of violation of the Constitution. AAN’s Ali Adili and Ehsan Qaane (with input from Sari Kouvo) look at the details and find that it is another example of the confusion on who has the legal last say in the Afghan state, and of how that can be used politically.
Why did the president decide to evaluate the Constitutional Oversight Commission and what are the pitfalls?
On 16 May 2017, President Muhammad Ashraf Ghani issued decree number 747 (a copy of which has been obtained by AAN) establishing a government committee to evaluate the work of the Constitutional Oversight Commission and to examine “existing problems” for the period that it had been operating in its current composition, 1394 to 1396 (2015-2017). The government committee is led by Nasrullah Stanakzai, head of the Presidential Advisory Board for Judicial and Legal Affairs and includes members from the High Office of Oversight and Anti-corruption (HOOAC), National Directorate of Security (NDS), Attorney General’s Office, the Independent Joint Anti-corruption Monitoring and Evaluation Committee (MEC) and the Administrative Office of the President (AOP).
The evaluation was prompted by the decision of the Constitutional Oversight Commission (a copy of which was obtained by AAN) to remove Mohammad Qasem Hashemzai from the chairmanship of the commission and to deprive him of its membership. The decision was taken by the other six members in a meeting on 16 April 2017; Hashemzai himself was not present. (1) The decision was submitted to the president’s office, the office of the chief executive and both houses of the Parliament, for their information. In the decision the commissioners alleged that Hashemzai had failed to ensure the independence of the commission, had not upheld its good reputation, had lacked in leadership, and moreover for health reasons (old age and weak memory) was no longer fit to head the commission.
President Ghani did not accept the decision and instead established a governmental committee to investigate both the decision and the work of the commission. On 20 May 2017, the committee’s head Stanakzai sent a letter (a copy of which was obtained by AAN) to the Constitutional Oversight Commission asking it to send the evaluation committee all documents related to its “professional, administrative and financial performance” of the years 1394-1396 (2015-2017).
The remaining members of the commission perceived the intervention as a challenge to their independence, arguing that a governmental committee has no right to demand documents related to the professional performance of an independent commission. On 24 May 2017, they sent a response to Stanakzai’s letter and issued a recommendation (a copy of which was obtained by AAN), in which they welcomed a review of the commission’ financial and administrative affairs, but challenged the president’s order to evaluate its substantive work. They argued that the “holding to account (pasokh-gu) of the Commission’s members by any other body for its professional affairs (opinions and decisions) harms the principle of independence which is necessary for the proper fulfilling of their duties.” They also suggested that, should the president find it agreeable, he could appoint a higher-ranking committee to mediate between the six commissioners and their (former) chairperson. This committee could comprise of the Attorney General, two members of the National Assembly and the head of the High Office of Oversight and Anti-corruption, under the supervision of the second vice-president.
In discussion with AAN, one of the commissioners noted that the Constitutional Oversight Commission understands ‘independence’ in its professional affairs to mean that no outside institution has the right to probe or investigate their decisions, or how they decide. This relates to their legal opinions, advice and interpretations. Additionally, according to the Commission, neither the Constitution, nor the Commission’s law make the members responsible to the President or MPs. Based on this logic, the Commission also does not appear in the questioning sessions of the Wolesi Jirga (it, for instance, refused to show up in the Wolesi Jirga to answer questions on its 3 August 2016 legal opinion about the electoral law (see AAN’s reporting here, even though they were summoned by the MPs.)
With regard to the Commission’s seeming willingness to accept mediation and possibly walk back on their previous decision, a member of the Commission told AAN that “Legally we can change our previous decision [to deprive Hashemzai of his chairmanship and membership], if the President does not support Hashemzai and Hashemzai resigns from the Commission in light of article seven of the Commission law.” The commissioners then still seem set to make sure that Hashemzai does not continue, but they are providing other options for his removal. This may be because they do want to keep themselves on the right side of the president, but it also seems to indicate that they are no longer convinced about the legality of their own decision.
On the other hand, while the president does have reason to be concerned about the Commission’s move to go beyond their mandate by removing Hashemzai (more on that below), establishing a government committee to evaluate the work of an independent commission does raise important questions. The unresolved question of who has the last say when it comes to reviewing the constitutionality of laws and interpreting the Constitution has been a point of contention since the Constitutional Loya Jirga and the subsequent adoption of the Constitution in 2004. The ensuing legal ambiguity has provided ample room for political manoeuvring (in disputes with the parliament, for instance, previous president Karzai tended to count on the Supreme Court for rulings in his favour, while the Wolesi Jirga often looked to the Constitutional Oversight Commission).
There is also a view that the current president holds a grudge against the Constitutional Oversight Commission and that the broad mandate he has given to the government’s evaluation is aimed at discrediting the Commission and undermining its decisions – or at least bringing it back into line. In the recent past the Commission has in particular angered the president with its opinions on the peace agreement with Hekmatyar and a report it prepared on violations of the Constitution (more on that below). A source within the Commission told AAN that it seemed that the president wanted to ensure an “obedient commission.”
Why was the chairperson of the Constitutional Oversight Commission removed in the first place?
As discussed above, the commission members in their decision claimed that, among other problems, Hashemzai was suffering from old age and weak memory which rendered him unable to lead the commission. They argued based on paragraph one of article six of the Commission’s law – which states that an incurable disease preventing the performance of duty can lead to the depriving of membership – that “old age and the [ensuing] inability to perform duty is a disease that cannot be cured” and should therefore cause the loss of membership. They also argued that, since based on paragraph three of article four of the Commission’s law, the deputy chairperson and the secretary can be dismissed in circumstances of incompetence and inability to perform their duty or to perform their duty on a timely basis, “it can be inferred that this is [also] applicable to the inability of the chairman in performing their duties, as these are more important.”
The commission members in their decision also accused Hashemzai of the failure to observe “the principle of impartiality and independence of the commission” (more on this below).
Privately, a commission member talking to AAN accused Hashemzai of corruption, including selling the Haj quota and doling out the scholarships allocated to the commission to his relatives, and that when it was disclosed, Hashemzai had claimed that his signature had been fabricated.
Hashemzai responded to these allegations by accusing the other members of corruption. On 17 April 2017, he told the BBC that he considered the decision by the commission members illegal, arguing that article six of the Commission’s law stipulated the conditions under which members could lose their membership and that none of these conditions applied to him. In an interview with Kabul News television on 20 April 2017, Hashemzai claimed that the six members had formed an “unholy alliance” and had launched an “internal coup.” He provided a detailed account of the disputes that had arisen between him and the other members, for instance due to his strict attitude with regard to attendance. He noted that some of the commission members, due to conflicting engagements, rarely showed up to the meetings – for example, his deputy (now the acting chairman), he said, was a PhD student in Germany and taught in several universities in Afghanistan and rarely came to the commission. He had also, he said, rejected demands from the commission members that he considered excessive, for instance to receive rent allowances of one hundred thousand Afghanis (around fifteen hundred dollars) per member on top of the high salaries they already received, the appointment of their relatives to well-paid jobs, and the provision of armoured vehicles and police escorts (which were unnecessary, he said, since they rarely came to work). He concluded by saying that the members had acted against him because he had stood against corruption: “It is corruption. When you stand against corruption, you face a coup. This is the reason for it.”
How did the Parliament respond to the Commission’s decision?
The decision to remove Hashemzai from his chairmanship and membership of the Constitutional Oversight Commission was submitted to the Wolesi Jirga (Lower House) and Meshrano Jirga (Upper House) on the same day as it was sent to the president’s office. The Houses did not discuss the decision in their plenary sessions, but their administrative boards both sent letters to the Commission separately. In the letters, they made a distinction between the commission’s decision to dismiss Hashemzai from the chairmanship and its decision to expel him from the Commission. They approved the former, but called for “legal processing” of the latter.
On 23 Saur 1396 (13 May 2017), Muhammad Alam Ezadyar, first deputy chairman of the Meshrano Jirga, in a letter (451/25) (a copy of which was obtained by AAN) wrote to the State Ministry for Parliamentary Affairs, that the Meshrano Jirga considered the commission’s decision to dismiss Hashemzai from his position as the head of the commission to be “within the Commission’s authority.” However, it said that the commission’s decision to deprive him of his membership of that commission altogether needed to be processed according to legal provisions. The Meshrano Jirga, in its letter, also mentioned an analytical opinion submitted by its Commission for Legislative and Judicial Affairs on 12 Saur 1396 (2 May 2017), saying that this was not the official view and position of the Meshrano Jirga and that any official position of this house had to be issued through the administrative board (AAN was unable to obtain a copy of the analysis, but the mention suggests a difference of opinion within the Meshrano Jirga).
Similarly, on 22 Jauza 1396 (12 June 2017), Abdul Qader Zazai, the secretary of the Wolesi Jirga, in a letter (493/466) (a copy of which was obtained by AAN) to the State Ministry for Parliamentary Affairs said that the Wolesi Jirga’s Commission for Legislative Affairs had discussed the issue (based on the instruction of the administrative board of the Wolesi Jirga) and was of the opinion that the dismissal of Mr Hashemzai as head of the commission was “within the internal authorities of that commission” and that this decision of the commission members was considered “plausible and legal.” He added that “regardless of the reasons provided by the commission members for their decision, the chairmanship of one member without consultation with other members disrupts and even renders impossible the operation of the bodies where decisions are taken collectively and based on the principle of equality (every member has one vote).” This seems to refer to complaints by the commission members that Hashemzai did not believe in teamwork and tried to impose his views on others and that he controlled all six specialised departments of the commission, each of which, according to the rule of procedure, should have been led by one of the members.
Regarding depriving Hashemzai of his commission’s membership altogether, the Wolesi Jirga’s secretary also stated that this required that the “clarity of laws be taken into consideration” and that the issue should be processed based on that (without clarifying who should do this ). It also recommended that the Commission prepare draft amendments to its law to clarify the issues relating to the suspension of membership and to propose them as the government’s draft law to the National Assembly.
What about the commissioners’ claim that the president’s move was driven by a grudge?
There have been a few moves by the Constitutional Oversight Commission that have angered the president. The first one was on 29 May 2016 (9 Jauza 1395), when the Commission issued a legal opinion about the final draft peace agreement between the Afghan government and Gulbuddin Hekmatyar’s Hezb-e Islami Afghanistan (see an AAN’s previous reporting about the draft agreement here). The peace agreement was signed on 29 September 2016 (see AAN reporting here and Hekmatyar returned to Kabul on 4 May 2017. In its legal opinion, the Commission argued that articles eight (last line) and eleven (part 1) of the agreement were against the Constitution. The last line of article eight stipulated that the presence of Hezb-e Islami would be ensured in the electoral structures in accordance with the law. The commission argued that the paragraph was against article 156 of the Constitution and was “invalid” because based on the Constitution the electoral bodies should be “impartial and not be traded off in political bargaining.”
The Commission was also critical of the government’s commitment to guarantee the judicial immunity of Hezb-e Islami’s leader and members (article 11) and said that this guarantee should not include Haq-ul Abd (the victim’s right to pursue a case – see AAN discussion here). Finally, the Commission called for clear mechanisms under the agreement “to demilitarise and stop the military and paramilitary activities of Hezb-e Islami, including the collecting of weapons and the disarming of the party’s forces, so that article 35 of the constitution is respected.”
Later, a member of the evaluation committee told the remaining Constitutional Oversight Commission that the president had been furious about their opinion regarding Hezb-e Islami and that they would be made to pay for it.
A member of the commission also told AAN that the president had also been angered by a report (a copy of was been obtained by AAN) that the commission had prepared on cases of violation against the Constitution that it had meant to publish during Constitution Week (from 21 to 27 January 2017):
We had prepared a report on cases of violation of the Constitution. We held a meeting with the president. He told us to send him the report so he could read it. The report also includes cases of violation of the Constitution by the president. After that, the president summoned the chairman of the commission. The chairman told the president that the deputy chairman and members had prepared the report. The president then reprimanded the deputy chairman in the presence of second Vice-President Muhammad Sarwar Danesh. We said that we had not [yet] published the report. Danesh then intervened and asked us not to publish the report. After the Constitution Week, Hashemzai refused to issue approvals.
The member mentioned this incident as an example of Hashemzai’s failure to observe the impartiality and independence of the Commission, saying, “When President Ghani critically asked Hashemzai about the report, instead of defending the work of the commission he told the president that he [Hashemzai] was not involved in the preparation of the report.”
The report in question documents fourteen cases in which the Commission believes certain articles of the Constitution have been violated. For instance, in case study three, the report says that the delay in holding the Wolesi Jirga elections in accordance with the calendar specified in article 83 of the Constitution, and the failure to hold district council and village council elections according to article 140, and municipal and municipal assembly in accordance with article 141, not only violates the abovementioned articles of the Constitution, but also harms the future of the political system based on the people’s vote and undermines the legitimacy of the system. It also described the failure to complete the quorum of the Meshrano Jirga, as enshrined in article 84 of the Constitution (which stipulates that one third of the Meshrano Jirga should be elected from amongst the district councils – which do not yet exist; instead these members have been elected from the provincial councils), and to convene the Loya Jirgas according to article 110, as obvious violations. The report lists the government, the Independent Election Commission (IEC) and other relevant agencies as violators.
In case study four, the report states that the failure to specify the fundamental lines of the country’s policy violates paragraph two of article 64 of the Constitution which lists the president’s authorities (including: “determine the fundamental lines of the policy of the country with the approval of the National Assembly”). The report then notes that “the failure to specify the fundamental lines of the policy of the country by the president and to have them approved by the National Assembly not only is a violation of the provision of paragraph 2 of article 64 of the Constitution, but is also a failure to ensure people’s participation through their representatives in specifying fundamental policies of the country.” It lists the former president and current president, and the National Assembly as violators.
In case study 13, the report lists articles one, two, six and eight of the October 2015 Dand-e Ghori Memorandum of Understanding – an agreement between the government and local elders, assuring them that no military operation would be conducted without prior consultation with the elders in that district of Baghlan province – as violating the Constitution. It says that these articles first of all “restrict and undermine the sovereignty of the government of Afghanistan in Dand-e Ghori area, which is part of the territory of Afghanistan. In addition, it can pave the ground for the disintegration of the territory and the division of the sovereignty of the state of Afghanistan. In this case, it is considered a violation of article one of the Constitution of Afghanistan.” (For more background on the events in Dand-e Ghori, see here).
What are the legal complications of the case?
Afghanistan’s Constitution was drafted in the Constitutional Loya Jirga (CLJ) over several days in late 2003 and early 2004. In the last days of the CLJ, a possible source of conflict was introduced into the Constitution. Article 121 already provided the Supreme Court with the task to, at the request of the Government or the courts, “review the laws, legislative decrees, international treaties and international covenants for their compliance with the Constitution and their interpretation in accordance with the law.’ Article 157, which was later added (to placate opposition to the strong constitutional role of the president), called for the establishment of a Constitutional Oversight Commission, without specifying its tasks. (3) On 31 August 2008, more than four years later, the Parliament approved a law establishing the Commission, its mandate and rules of procedure. The new law, in article eight paragraph one, gave the Commission, among other tasks, the authority to “interpret the provisions of the Constitution” which up till then had been the mandate of the Supreme Court. (4)
President Hamed Karzai sent the law to the Supreme Court to review its compliance with the Constitution. On 14 April 2009, the Supreme Court issued a judicial decision, declaring that parts of the Commission mandate (the right to interpret the Constitution) conflicted with the Supreme Court’s mandate (art 121), and that the mechanism for removing members from the commission was inappropriate. From its argument it could be inferred that the Supreme Court considered the Commission part of the executive branch and that its members could be dismissed only by the president. (5) When the Commission’s law was finally gazetted in July 2009, it was published together with the Supreme Court’s opinion, without clarification as to whether or not the judicial decision now superseded the law.
As a result of the history of the Commission’s law, there is now a legal gap on how its members can be dismissed. Although the commission members accept that the Supreme Court’s 2008 judicial decision overrides some articles of the law, they also believe that the part of the Supreme Court’s judicial decision that implies that it is the president’s authority to remove members of the commission does not have legal weight. And indeed, the Supreme Court can issue its opinion about the compliance of laws with the Constitution, but it cannot act as a legislator and give authority to the president when the Constitution is silent about it.
What is the relevance of these legal conflicts?
On 30 April 2017, the six commission members issued “justifying reasons” for their decision to deprive Hashemzai of his membership (AAN has obtained a copy). In these justifying reasons, they argued that they could not invoke article seven of the Commission’s law, because of the Supreme Court’s 2008 judicial decision, but they could also not invoke the reasoning of the Supreme Court’s decision, as the Supreme Court’s opinion was issued solely to provide an explanation for the cancellation of article seven in this case, but had no legal weight of its own.
The six commission members acknowledged that as a result the Commission “faced a legal silence and gap in implementing articles six and seven of its law.” They then argued that in their decision to oust Hashemzai as a member they had followed a practice established by the Supreme Court, namely that in the absence of a relevant law guiding its work, the Supreme Court still compared laws with the Constitution and solved conflicting issues through judicial decisions. The Commission could have questioned the jurisdiction of the Supreme Court to, at the time, review the compliance of the Commission’s law with the Constitution, which might have been an easier path. Article 121 of the Constitution states that Supreme Court’s reviewing of laws for their compliance with the Constitution has to be based on a law, but that law did not exist at the time (and still does not exist). But instead of rejecting the Supreme Court’s legal decision, the Commission chose to argue that if the Supreme Court can issue legal decisions based on no law, the Commission can do the same.
Hashemzai, on the other hand, unsurprisingly, believes that the Supreme Court’s judicial decision overrides article seven and that the authority to dismiss a commission member rests with the president. For instance, in his interview with Kabul News following his dismissal by the members, he said:
We have a law called the law of the Commission for Overseeing the Implementation of the Constitution, which is effective since six years ago. There was one article in this law, article seven. Article seven stated that under certain circumstances – the circumstances were also specified – members, the majority of the members, can together oust [a member]. When the law went to the Supreme Court, the Supreme Court provided a special explanation about this and rejected three articles of the law. You understand that the Supreme Court is the final authority for disputes and conflicts. No one can say anything after it. The Supreme Court said that instead of giving the members a chance to oust each other, it is not a business corporation to grant some members a right to remove each other, that is why it [the Supreme Court] rejected it [article seven]. This also casts shadow over article six. Article seven was never included into the law.
He called the decision to dismiss him an infringement on the president’s authority and provided an analogy saying that just like the speaker of the Wolesi Jirga cannot be dismissed [from parliament] by the members after he/she is elected, the head of the commission also cannot be dismissed by the members. He argued that giving such authority to the members could cause hostilities and disputes, which in turn could lead to “an internal coup.” (6)
What might happen now?
The lack of a specific provision on who has the power to remove or approve the dismissal of a commission member has created a space for the President to stand against the decision of an independent commission. On the other hand, although the decision was unanimous, the commission members are now struggling to find a legal basis to back up the decision to both depose Hashemzai as chairman and to divest him of his membership of the commission altogether.
The president tasked the review committee he established to submit its findings within one month, but they have been unable to do so, largely because of the Commission’s refusal to accept the evaluation, especially of its substantive decisions.
Meanwhile, the commission members have been meeting the second Vice-President Danesh to discuss the proposal of an internal reconciliation, as well as Chief Executive Abdullah. One member, in conversation with AAN, claimed that they had not been able to meet the president, despite their repeated requests for a meeting.
So far, the commission members have agreed to a ‘reconciliation’ on the condition that Hashemzai, after he is reinstated as member and head of the commission, would within two weeks resign from his position as the head of the commission (privately, a commission member told AAN that they hoped that his resignation as chair would lead him to leave the commission altogether).
Two things seem to have prompted the commission’s members to accept this compromise. First of all, although they have put forward a legal basis for their decision to deprive Hashemzai of his membership, it does not seem to have been very convincing. Even the two houses of parliament, who are usually more on the side of the Commission, issued letters affirming the Commission’s internal authority to dismiss the head of the commission, but questioning its decision to also deprive him of his membership.
Second, after the intervention by the president and the decision to launch a review, the members seem concerned about possible actions that could be taken against them personally. One member expressed suspicion to AAN that the real objective behind the review committee could be to compile dossiers against the six members of the commission. They also fear that the legal gap could be exploited to further undermine the Commission’s authority. Hashemzai, in the meantime, seems to be counting on the president. In his earlier interview, he said that whatever the president or the law said, he would obey.
Edited by Martine van Bijlert
(1) According to Article 10 of the Commission’s Law the quorum for the commission’s meetings is complete with presence of five of the commission members; decisions shall be taken by majority votes of the present members. The commission’s normal meetings shall be held once a week.
(2) Theoretically it could be argued that this line of article eight does not violate the Constitution as it also contains the provision “in accordance with the laws” as a condition, which precludes the implementation of anything that goes against the Constitution or any other law. Incidentally, the new election law, as a presidential decree issued on 1 August 2016 (a month and half before the signature of the peace agreement), banned members of the electoral commissions from being a member of any political party while serving in the electoral commissions. It is possible that the President Ghani included this article as a tactical move – to promise a privilege that the applicable laws prevent him from providing. It is also possible that he intended to find ways to fulfil his promise. Either way, the whether the article itself violates the Constitution or not, its implementation probably would.
(3) Article 15 of the Constitution reads:
The Independent Commission for supervision of the implementation of the Constitution shall be established in accordance with the provisions of the law. Members of this Commission shall be appointed by the President with the endorsement of the House of People.
(4) The Commission’s law, as approved by the Wolesi Jirga, in article eight, gave the Constitutional Oversight Commission the authority to:
(5) The mechanism in article seven of the Commission’s law to remove commissioners and deprive them of their membership was that the proposal should come from at least five members of the commission and should be approved by the Wolesi Jirga; the president would then appoint a new member within one month after the resignation or dismissal date. This mechanism was considered “inappropriate” by the Supreme Court.The Supreme Court argued that:
The Commission is not a business corporation or organisation so that one member can be dismissed by a majority of the members. The Wolesi Jirga is not the executive branch to approve the dismissal of members of a commission that is part of the executive branch. The constitutional method is clear even about the dismissal of ministers; despite the fact that their appointment is endorsed by the Wolesi Jirga, the authority to dismiss them directly rests with the president. The mechanism, based on which members of the Commission [can] propose depriving a member of membership and the Wolesi Jirga approves it, is a strong blow to the independence of the Commission and it is feared that the Commission will be strongly influenced by the Wolesi Jirga.
(6) Article 2 of the Commission’s law foresees it as an independent body. With regard to the possible authority of the president to dismiss members of independent bodies, it is useful to look at similar institutions. The Constitution contains two more independent commissions: the Independent Election Commission (IEC) and the Afghanistan Independent Human Rights Commission (AIHRC). While the president has a greater say in the appointment of the members of the IEC and AIHRC – they are appointed by the president, while the members of the Constitutional Oversight Commission are introduced by the president to the Wolesi Jirga for a vote of confidence – the laws governing the AIHRC and the IEC do not allow the president to evaluate their professional work or to remove members of these commissions by his own initiative. Moreover, comparing the Constitutional Oversight Commission with these two other independent commissions, the Constitution predicts a greater limitation to the president’s authority in the appointment of its members. With regard to the review of the Commission, if the president cannot intervene in the professional work of the IEC and the AIRHC, it will also not be easy to convince the members of the Constitutional Oversight Commission to be evaluated by a governmental committee.
EDA has opened a call for papers from defence industry, academia and research institutes on the topic of Remotely Piloted Air Systems (RPAS). The call for papers is focused on the RPAS Air Traffic Integration (ATI) in European airspace in the timeframe 2025-2030. This call is in response to the EDA’s revised approach towards establishing a structured dialogue and enhanced engagement with industry based on a set of priority actions, supported by the EDA Ministerial Steering Board on 18 May 2017. In the RPAS ATI context, and in line with the coordinated approach amongst the main European stakeholders, EDA has set up an Industry Exchange Platform on RPAS Air Traffic Integration.
The purpose of this Exchange Platform is:
The present call for papers aims at selecting the initial scope and membership of this Exchange Platform, which will hold its next meeting beginning of November 2017. Participation in this call for papers is open to companies of any size as well as academic, research institutes and associations or grouping of industrial suppliers. All proposals must conform to the eligibility criteria set out in this call for papers.
Juan Ignacio DEL VALLE
Project Officer Air Programmes
juanignacio.delvalle@eda.europa.eu
T+32 2 504 29 26
The European Defence Agency’s 5th Helicopter Tactics Instructors Course (HTIC), which ran over several weeks at Royal Air Force (RAF) base in Linton-on-Ouse (North Yorkshire, UK) and Arvidsjaur Airfield in Lapland (Sweden), was successfully completed in July.
The course began in May with a four-week classroom phase, which included simulator exercises at Linton-on-Ouse, followed by a three week deployment to Arvidsjaur Airfield in Lapland/Sweden where participants engaged in live flying exercises. Supported by personnel from No 1 Helikopter Skvadron in Lulea, the flying phase included a complex operational scenario employing: dissimilar formation flying, evasion training against a range of airborne threats, Electronic Warfare (EW) against both ground-based and airborne systems and a variety of additional tasks such as Helicopter Assault, Convoy Escort, Mutual Support and Vehicle Check Points.
The Staff Instructors came from Sweden, Austria and the UK with several supporting air assets: Hawks from 100 Sqn (UK), Gripens from 211 and 212 Sqn (Sweden) and Alca Jets from the Czech Air Force (212 Sqn). In addition, EW assets and personnel was provided by RAF Spadeadam.
In total, 10 Bronze, 6 Silver and 3 Gold Badges were awarded ensuring that the international cadre of Helicopter Tactics Instructors has once again been strengthened and grown for the 5th year in a row.
Background
EDA’s Helicopter Tactics Instructors Course (HTIC) provides aircrew from participating nations with the skills and knowledge to teach advanced tactics to front-line aircrews from within their own national organisations and to assist in delivering the EDA’s Helicopter Exercise Programme (HEP), the Helicopter Tactics Course (HTC) and the future HTIC. Successful graduates from the course are awarded a qualification recognised by other Member States. HTIC development courses run over two years: in the first year, prospective instructors refine their own knowledge of advanced helicopter tactics to the maximum degree. In the second year, the emphasis shifts to develop the participants’ ability to teach those tactics. In turn, Instructors who have demonstrated above average abilities in delivering the course will be individually selected to come back a third time and teach alongside the existing instructional staff to finally achieve their Gold instructor qualification to become supervising instructors for future HTIC.
The three main elements of HTIC include Evasion Training, Electronic Warfare and advanced Operations. They are initially taught as stand-alone skills before being brought together in a complex, non-permissive environment in the framework of the planning and execution of Composite Air Operations (COMAO).
Several of EDA’s thematic ‘factsheets’ explaining in more detail some of the topics and domains in which the Agency is working have been updated recently, for instance the one on the Capability Development Plan (CDP), the Preparatory Action on Defence Research (PADR), Governmental Satellite Communications or the European Advanced Airlift Tactics Training Course.
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