Defence`s Feeds

One of the recurrent themes around the US-Taleban negotiations to end the Afghan war (so far without participation of the Afghan government) is the demand of Afghan women for “meaningfully participation” in the preparations for inclusive peace talks. This expectation also figured at a national consensus gathering (ejma) in Kabul in late February this year. The ejma – shortened from a two to a half day event – fell short of being an actual consultation. Nevertheless, the women’s broader campaign has influenced the Afghan and US’s messaging, although so far this has not resulted in any concrete steps. AAN’s Thomas Ruttig, who observed the ejma’s proceedings, looks back at the gathering and summarises the arguments (with input from AAN’s Rohullah Sorush who participated in the event and Sari Kouvo).

Demands for “meaningful participation”

Around 3,000 women came together after months of preparations for the National Women’s Consensus for Peace (Ejma-ye Melli-ye Zanan bara-ye Solh, or ejma for short) held in Kabul’s Loya Jirga tenton 28 February. 700 of them – according to President Ashraf Ghani (the original text of his speech alternating between Pashto and Dari can be found here) – attended from the provinces. (1) The event was a response to widespread demands – from within government and outside – for “meaningful participation” of women in the hoped-for peace talks with the Taleban (for the demands, see, for example, this statement by AWN; for background about Taleban, US and Afghan government politicking around the talks, read this AAN dispatch).

The notion of meaningful participation goes beyond merely being consulted about, or having token representation in, possible peace negotiations. As stated by Afghanistan Independent Human Rights Commission (AIHRC) chairwoman Sima Samar, when launching AIHRC’s ongoing survey on the peace process, Afghan women need “a meaningful and greater participation at all stages of the peace efforts.” She warned against continuing “the system of impunity” (for media reporting about the AIHRC’s survey, see here and here).

The Afghan Women’s Network’s six point statement published before the so-called intra-Afghan dialogue meeting held in Moscow in February 2019 (more about the meeting here), provides further guidance about the concrete demands of Afghan women, asking to:

• bring Afghan women to the table
• not choose peace without human rights
• be direct about women’s rights
• not change the political order
• not compromise law and order in the country and
• not cut it off from the international community.

The statement appreciated the participation of “some women” in talks like those in Moscow, but made it clear that this was not yet what they considered “meaningful” participation of “all strata of society.” It further said that “Afghan women would not accept peace bought at the cost of their hard-gained freedoms and rights” and that “temporary restrictions on women’s rights in the name of peace and security [were] utterly unacceptable.” The latter is a reference to the often-heard Taleban claim (during their 1996-2001 rule and in some areas currently under their control) that the suspension of girls’ education, for example, was due to the security situation and could be lifted once conditions allowed. (Read also this recent AAN guest dispatch about the discussion about the Afghan constitution in the context of the peace talks.)

So far, Afghan women have been under-represented in all key peace-related meetings and bodies. In the November 2018 Moscow conference on Afghanistan (see AAN background here), only one Afghan woman sat at the table. She was Habiba Sarabi who, as deputy of the High Peace Council (HPC), was one of its four-member delegation. At the February 2019 ‘intra-Afghan dialogue’, also in Moscow, only two women were invited, out of a total 70-100 participants (numbers varied from day to day). They were former members of parliament, Fauzia Kufi, and HPC member, Hawa Nuristani, who is now head of the Independent Electoral Commission. Women’s participation in the HPC when it was newly composed in 2018 by President Ashraf Ghani has been expanded. However, since the council has now been tasked with mainly focussing on consensus building within Afghanistan by the president – who also appoints its members –,  it has lost its role as an active participant in potential negotiations (AAN analysis here and here). (2)

The current government team for future negotiations with the Taleban includes three women among its 12 members: Hasina Safi, Minister of Information and Culture; Dr Alema (one name only), Deputy Minister of Refugees and Repatriation and Shahgul Rezayi, a former member of parliament (see media report on the team here and AAN analysis here). This one quarter representation is a better-than-usual percentage, but is lower than the quota for women in parliament (one third). It is considerable lower than the 50 percent demanded by women activists in the run-up to the ejma gathering, as women comprise half of the population. When President Ghani discussed peace efforts with a group of ‘prominent political leaders’ on 3 April, and, on the same day, US chief negotiator Zalmay Khalilzad also discussed with Afghan top politicians, as he tweeted, “the necessity of an inclusive #Afghan negotiating team”, women were entirely missing at the table, as photos showed (on Ghani’s meeting here, and here in Khalilzad’s tweet).

It is important to note that, even if there were women’s representation at all stages of the peace process and, even if efforts were made to collect women’s views, this, in itself, is insufficient to guarantee that compromises are not made on women’s rights in any peace agreement. The ejma fell short on all counts, as will be shown below. It did not ensure women would be meaningfully represented in a peace process, or that the government would consult with them, or that it would ensure their rights would not be compromised and their interests taken into account.

Who organised the ejma and who participated?

The organisers of the National Women’s Consensus for Peace, or ejma, were the Office of the First Lady, Rula Ghani; the Ministry for Women’s Affairs; the High Peace Council, with Habiba Sarabi, its deputy chair and one of the country’s most high-ranking women in a central role; and, the Afghan Women’s Network (AWN), one of the most well-connected and influential umbrella organisations in Afghan civil society. These organisations had joined hands under an umbrella called Afghan Women for Peace(AWP) (on social media here). Government presence in the AWP campaign was strong with Hasina Safi, the former head of AWN and current acting minister of culture and information; Dr Alema, deputy ministry of refugees; Marjan Matin, deputy minister of education; and Shafiqa Qadiri and Aseya Akhundzada, two more members of the government-appointed HPC.

The first gathering was held in Kabul on 24 Assad 1397 (15 August 2018), according to the speech of Rula Ghani at the ejma. She said “we went to the provinces, held meetings with women and listened to them (…) because the situation in provinces and villages is different from that in Kabul city. (…) We collected the ideas from all the provinces.” HPC member Malalai Shinwari, one of the organisers, was quoted by the New York Times as saying that “delegations of women” from Kabul had spoken with 15,000 women across the country in preparation for the event.

Zohra Yosuf, media advisor to Rula Ghani and the ejma’s announcer, reported a total of 3,000 women participated in the gathering. This means the 700 provincial representatives were outnumbered by over 2,000 other women, many of whom, as participants confirmed to AAN, had been personally invited by the organising bodies and, in particular, the First Lady’s office.

The ejma had been preceded by a large gathering the week before at the presidential palace, with 1,300 participants from women’s organisations and other sectors of civil society. According to Negina Yari from Maidan-Wardak province, head of the non-governmental organisation Afghanistan for Tomorrow (A4T) who attended: “We were told that it was a meeting of civil society activists and youth [to] collect women’s demands and submit them to the government, after which the government would consider those demands in negotiations with the Taleban. (…) There were 1,300 people, but only few from civil society. Most of the [participating] women were from the Office of Administrative Affairs, the Ministry of Finance and other government employees. (…) Certainly, such women [alone] cannot represent civil society and all women in Afghanistan.” At the end, Yari said the president joined the meeting but he “emphasised more on the intra-Afghan talks and that the government should have a delegation to talk to the Taleban.” (Rula Ghani was not present.) Yari added that she felt that the duplication of meetings – by both the palace and the Afghan Women for Peace – reflected a lack of organisation between the Arg and those who were on the ejma’s consultative board.

The ejma: a two-day consultation becomes an event of speeches

The ejma had originally been planned as a two-day event on 25-26 February, but it ended up being both delayed and cut short to a mere three-and-a-half hour event. This obviously seriously limited the time and opportunities for the women gathered to express themselves. The choice of a Thursday for the event was also poor (possibly deliberately so). As AAN’s researcher at the scene witnessed, most of those present were keen to have lunch quickly after the morning session and leave for the weekend. This was somewhat surprising given the importance of the subject and the number of usually dedicated women activists present, but it may have been as a result of the responsibilities many women faced with the weekend just around the corner.

The ejma’s proceedings were framed by the speeches of Rula Ghani, who opened with brief remarks, and her husband, the president, who closed with a longer speech in which he switched between his Pashto mother tongue and Dari, a practice established by his predecessor, Hamed Karzai. After the speech, there was a final photo op for the president with prominent women activists in uniform wearing peace-blue headscarves. However, crucially, his speech fell short of giving any assurances that the women would get meaningful participation in the negotiations with the Taleban – what was their main demand. Instead, he repeated the promise that women would make up 30 per cent of the representatives of the planned consultative loya jirga on peace (originally scheduled before the Persian/Afghan new year, Nawruz, on 21 March, but now delayed until late April 2019).

Although Ghani said in his speech that the women would sit together with representatives of 26 other “social groups” (aqshar) in the jirga, there was no mention of how they would be selected. There was no attempt to use the opportunity provided by the ejma to choose them from among the participants (a Kunar delegate, among others, told AAN she had thought that would happen). The selection for the peace loya jirga remains in the hands of the organising committee which former interior minister Omar Daudzai leads. Deputy finance minister, Nahid Sarabi, among others, was added to the committee as head of political affairs in late March 2019.

In between the presidential speeches, there was a role-play by women about peace, some poetry and a video with scenes of pre-mujahedin and pre-Taleban Afghanistan with some women dressed in the then latest fashions, juxtaposed with a recent image of the bloody aftermath of a suicide bombing. In what was expected to be the main part of the agenda, only six participants spoke. Most of them were from Kabul and all of them were preselected. There was no opportunity for spontaneous contributions.

The first was a lengthy speech by Zainab Movahed, a university lecturer with religious education, a member of Jamiat-e Islami party and an unsuccessful candidate in the 2018 parliamentary elections. She spoke about women’s roles in politics, economy and peace during the life of the prophet and their historical role in peace-making in Afghanistan. (3) The other speakers were deputy minister of justice, Dr Zakia Adeli (also a writer and poet); journalist and well-known women activist, Shafiqa Habibi; Gita Said, a former high school teacher and head of women’s affairs in Almar district in Faryab province (she also ran in the 2018 parliamentary elections and is close to Jombesh-e Melli party); and two lesser known women, Shafiqa Sadat, and Atefa Nuristani.

In all the speeches, starting with Rula Ghani, the Quran was much quoted – clearly an attempt to bolster the government’s Islamic credentials and demonstrate to the Taleban that the women’s demands were not ‘un-Islamic.’

There was also ample reference to the constitution, which the Taleban reject and want to change. Announcer Zohra Yosuf insisted on the constitutionally equal rights of women and insisted, “I am a citizen of Afghanistan and I have my own role to play for peace in my country.” Roshan Tseran of the Afghan Women‘s Human Rights Study Centre (AWHRSC) summarised the argument most clearly to AAN: “We do not demand more than what the law and Islam give us.”

Apart from the main speakers, five representatives of war victims’ families were given the floor. They all spoke of their suffering and highlighted that, in the words of one, women and girls were “more tired of the war than anybody else.” But they also said they wanted “a peace in which women’s rights and the rights for war victims are not lost … not at any cost … and not at the cost of sacrificing justice.” They demanded that perpetrators should at least apologise to the people. One woman who tried to speak outside the schedule was cut short by the announcer when, according to the New York Times, she “spoke sharply” to President Ghani before his speech urging him to “put killers in prison, not make peace with them.” The Times gave her name as Narges Qurbani, 48, and said the Taleban had killed her husband in 1997 and later wounded her son, a soldier. As the Times wrote, president Ghani did not respond.

Announcer Zohra Yosuf was later quoted by the Kabul-based Afghanistan Times as criticising leading male politicians for not attending the ejma, despite being invited. She particularly singled out Qiamuddin Kashaf, the head of the ulema council, senate chairman, Fazl Hadi Muslimyar, attorney general, Farid Hamidi, and peace jirga organiser, Omar Daudzai.

The gathering’s final declaration

The ejma’s final declaration (full text here) was not as strongly worded as the February AWN statement. The declaration was largely a reiteration of the government’s position on peace and peace talks. This is not surprising, given the way the gathering proceeded and the fact that the statement had been pre-drafted by the organisers, who were mostly government bodies. The only new demand in the statement was for an immediate “unconditional ceasefire” to be announced by all warring parties.

Moreover, the draft statement had not been distributed during the meeting and participants told AAN it had merely been read out to the audience. There was no time to suggest amendments and, although there was a vote, this was only symbolic.

The declaration supported “a peace process led by the Afghan government [and] in compliance with the [current] Constitution” and demanded that negotiations between Afghans must be “under the leadership of the government.” This is a reflection of the fact that the government feels – and has so far been – excluded from the US-Taleban talks and the intra-Afghan dialogues. The declaration’s authors also took the government’s position in condemning any plans to establish an interim government.

The initial key demand of activists – for meaningful participation of women in all future talks – did not make it into the final declaration. There was not even any reference to the promised ‘guaranteed’ participation in the peace jirga. The statement only urged the international community – not the Afghan government – to protect the country’s democratic, civil and human rights and requested the government negotiating team to “prevent any type of compromise that undermines the achievements of women.”

So far, President Ghani has given regular assurances that “basic” rights will be protected (see, for example, here). But he has also repeatedly signalled to the Taleban that he is open to debating constitutional changes with the Taleban (see AAN reporting here).

Expectations, criticism and defiance

Not many people in Kabul (including AAN) had heard about the ejma, until just a week before it started. There had been no reports or announcements in the Afghan or international media or on relevant websites. The first public sign that is was to be held was an open letter signed by 600 Afghan women and other activists published in The Guardian two days before the gathering. In the letter, the signatories voiced their “concerns” about a peace deal being negotiated between the US and the Taleban that could lead to the loss of gains from their “battles (…) to bring women’s voices and interests into Afghanistan’s political, social and cultural institutions.” It was co-signed by three Nobel Peace Prize winners who declared their support – Jody Williams, Shirin Ebadi and Tawakkol Karman – as well as well-known artists and activists, such as Margaret Atwood, Khalid Hosseini, Ken Loach, Arundhati Roy, Kamila Shamsie, Gloria Steinem and Roger Waters.

Women from the provinces who had been part of the preparations complained to AAN, during the ejma or over the phone, that many of the participants had been “handpicked” or directly invited and that the large number of invitees from Kabul had crowded out delegates from the provinces. Negina Yari from Maidan Wardak, who was one of the few who was prepared to go on record (4), told AAN that “mostly female government employees participated [in the pre-meetings in her province] and the women who were introduced for the working committees of the ejma were selected via the office of the first lady and the president’s office.” Yari also said that her organisation, and around 350 other groups, who are part of their khana-ye solh (house of peace) initiative, had not been consulted about the agenda, nor did they get the chance to contribute ideas for the ejma.

Sozan Behbudzade, a long-standing women’s activist in Herat, head of the local Madar (Mother) Social Association and candidate in the 2018 parliamentary elections, told AAN in her office that she thought the Herat selection was relatively representative, but (indirectly) admitted that urban women were over-represented. Another woman from Herat working in government said that, to her surprise, many of those who had originally been chosen to travel to the ejma in Kabul, had not received a ticket. An ejma participant from Kunar, and another who did not want her province to be mentioned, told AAN that the women attending the ejma “are the same women who always attend meetings. There should be other women from remote areas and districts. Women from remote areas also have the right to attend such gatherings.”

Yari remarked that, in general, the Palace does “not allocate enough time for an issue to allow everybody to speak.“ This echoed the experiences AAN had heard from many political and civil society activists who had been invited to the Palace ‘for consultations’ on other issues over past years.

Roshan Tseran, who runs her own NGO – the Afghan Women‘s Human Rights Study Centre (AWHRSC), also an AWN member organisation – defended the composition of the gathering in a lengthy interview with AAN in Kabul. She said, “it was problematic for many rural women to come to Kabul for the gathering, due to security problems and because their families would not let them travel.” She said she was “confident that those who attended could also speak for the rural women, as they had been extensively consulted beforehand.”

The dominance of educated urban women in the meeting is also reflected by the fact that the main initiatives in the follow-up to the ejma seemed to concentrate largely on social media campaigns, such as “#AfghanWomenWillNotGoBack“ and “#MyRedLine.” Although studies have found a “growing number of internet users in rural areas,” (see two from 2017 and 2018 here  and here), “areas and entire provinces (Nuristan, Nimruz, Ghor, Daykundi, and Uruzgan) are still isolated” and “[r]ural, older, and illiterate Afghans are left out of conversations happening online.” (The same will surely be the case for poor rural women.)

Despite the limited participation and concrete results, there was still hope, even among those participants who were critical, that the ejma could have a positive effect. One participant told AAN:

To be honest, I am not hopeful with regard to such Jirgas [a reference to the planned ‘consultative’ loya jirga on peace] and ejmas. It is somewhat organised [top down], more like a presidential election campaign. You know for the presidential election; they want to see the women’s presence. However, I still think because women have been deprived so much, it can be somewhat useful.

Behbudzada from Herat told AAN before the gathering: “I want this women ejma not to be a project and a show. I demand it to act differently and have achievements for more women’s presence in politics, the peace talks and then in high ranking government positions.” One woman from Bamian told AAN off the record, “I want women to have an active and diverse presence in peace talks, but I am not optimistic that the government will have us represented in the peace talks.”

Negina Yari stated that “all women (…) said they were not ready to lose anything for peace.”

Possible direct talks and follow-up activity

Before the ejma, women participants – including from AWN, but also others – had announced that they would, if needed, seek their own access to the Taleban, if the government did not give them a significant place at the negotiating table. Afghan women have held direct meetings with Taleban representatives earlier: for example, female members of parliament and other women talked to them during meetings in Oslo in 2016 (see here) and, as AAN heard from them, found it useful to convey their message directly to them.

Recently, there has been another concrete attempt to do so, when AWN and other civil society groups attempted to send a delegation of 40 to the US-Taleban talks in Doha that took place between 25 February and mid-March 2019 (see an Afghan media report here). The group finally did not go; it seems for two reasons (although all sides remain relatively tight-lipped about the episode and everyone AAN talked to did so on the condition of strict confidentiality). First of all, there were difficulties in obtaining visas, as Qatar has no embassy in Afghanistan and the Afghan foreign ministry apparently did not facilitate the obtaining of visas elsewhere (this, in turn, might have been driven by government concerns over uncoordinated initiatives and fears that some participants might have wanted to discuss the establishment of an interim government, even though ejma organiser, acting minister Hasina Safi, explicitly had condemned such a plan – see here). There was also, apparently, a problem that the members of the prospective group had not informed the negotiating sides of their wish to meet them.

Calls for separate meetings between women and civil society activists and the Taleban have continued since the ejma, including by the AWN’s Wazhma Frogh (see her 12 March tweet here). Other activists continued deliberations about the peace process in other fora, such as during a “National Civil Society and Media Conference on Peace Negotiations” held on 2 April 2019 in Kabul and attended both by President Ghani and Chief executive Abdullah. Organised by the Salah Peace Consortium that brings together five established NGOs working on peace building, it gathered “400 Afghan men and women (young and old) from across Afghanistan” and established a Media/Civil Society Advocacy Group (see their 19-point declaration linked in the annex).

At the same time, the women activists’ publicity offensive has forced diverse actors, such as the US and the Afghan government, to react to their demands. US special representative for Afghanistan reconciliation Zalmay Khalilzad was quoted as saying after meeting “Kabul and provincial representatives of the Afghan Women’s Network” in Kabul in early April that “while Afghans alone would decide the composition of their delegation for talks, women must be at the table during all negotiations about peace and Afghanistan’s future.” This was echoed by the UN Secretary-General’s Special Representative for Afghanistan, Tadamichi Yamamoto, in a speech when visiting Helmand on 7 April where he reminded the Afghan government of its obligation as a UN member and under various international human rights treaties. In particular, he referred to the UN’s Resolution 1325 that “has placed women’s meaningful participation at the core of peacebuilding, conflict prevention and recovery.” He emphasised that “many studies show that when women are included in peace processes, peace agreements are more likely to be more durable, [… the] UN strongly believes in an inclusive [peace] process” and that “[w]omen’s rights, and indeed all human rights, must not be traded away in any peace process.” The Afghan government reacted indirectly. The Chief Executive’s office rejected a report by the US Special Inspector General for Afghanistan Reconstruction that had expressed concerns over women’s rights in the peace process. It said, “No right would be violated in the peace process and achievements that were gained in the recent years, will not face challenge or annihilation. These achievements and women’s rights are important to us.”

Conclusion

The women’s peace ejma did not become the two-day, nation-wide consultation it was originally meant to be. Instead, it became a much more ambivalent gathering. Still, it was a chance for educated and organised women to, through their representation, emphasise the importance of women’s representation in the peace process and peace talks. The main message – that peace with the Taleban should not be achieved at the cost of women’s and human rights were reflected in all speeches and in the final declaration, but not much more.

The meeting did not deliver the desired assurances by the president and government that there will be meaningful women’s participation in the negotiations. President Ghani did not mention this in his speech, nor did the ejma outcome document demand this.

The ejma was not fully representative, given the obvious dominance of urban and educated women. Urban and educated women do, of course, represent an important segment of Afghan women and society overall. However, women from rural and remote communities may have very different experiences and concerns and as of yet, these have not been expressed in any national consultation. Issues that may have come up in a broader consultation are the widespread rural poverty and the lack of (safe) access to services, particularly of women, as a rights issue. Women in rural areas suffer disproportionally from conflict-related diminishing access to health, education and other services (this was underlined again by a recent Afghan government report about multidimensional poverty (see media report here, and also this AAN analysis from 2014 ).

The event seemed a missed opportunity, given its potential for discussion and debate. Although a well-known non-governmental umbrella body (the Afghan Women Network) was among the organisers, the governmental institutions had set the agenda, handpicked most speakers and participants, and had dominated the proceedings. The preparations seemed almost secretive, as was reflected in the negligible media reporting in its run-up, while the ejma itself was clearly choreographed and had its time span reduced. This did not leave room for spontaneity, and many participants appeared uninspired, having seemingly lost the urge for a debate. This made the ejma more of an event than an open forum – an outcome most probably by design. The government’s fear of dissent, even if only in the details, was difficult to overlook.

The top-down steering of the ejma seems to reflect a broader government style of trying to control public voices. Consensus had been declared ex ante. There had been no room for discussion of where ‘red lines’ might lie and where there could be room for compromise in any possible future talks between the Afghan government and the Taleban (or women’s representatives and the Taleban). If the ejma had kept to its initial two-days format, there would have been space to discuss such issues in more depth and in a wider and more representative circle, through working groups or other smaller formats. In this sense, the ejma provided an indicator of what probably can be expected for the rescheduled consultative Loya Jirga on peace in terms of government pre-cooking and massaging the outcome.

At the same time, women like Roshan Tseran make an important point when they ask: “Why should it always be us women to pay the bill?” Although peace negotiations require compromises, they do not need to be one-sided and they do not need to come at the expense of the rights, safety and livelihoods of such a large part of the population.

Edited by Sari Kouvo and Martine van Bijlert

 

(1) Initially organisers had said that 25 women had been ‘elected’ in each pre-gathering in every of the country’s 34 provinces. If there were indeed 25 women per province, the total number should have been 850.

(2) The HPC played a certain role in the negotiations that led to the peace deal with Hezb-e Islami in 2016, although not in the lead (AAN analysis here and here).

(3) The US Institute of Peace (USIP) has published figures about the current role of women in Afghan society. These include:

 As of 2019:

• Millions of women have voted in local and national elections. Of parliament’s 320 members, 63 are women, while women hold 18 seats as ministers or deputy ministers and four serve as ambassadors.
• Schools and universities employ more than 68,000 women instructors including 800 university professors in both private and public institutions.
• More than 6,000 women serve as judges, prosecutors, defence attorneys, police and army personnel.
• Government data counts about 10,000 women among the country’s doctors, nurses and health professionals.
• Female journalists number 1,070, working throughout Afghanistan.
• Some 1,150 women entrepreneurs have invested $77 million in their businesses, providing job opportunities for 77,000 Afghan women and men.

(4) It also brings to mind what a leading civil society activist told AAN earlier this year – that s/he and colleagues had received warnings over the phone from the NDS and the NSC to refrain from publicly criticising the government.

 

Annex: links to ejma-related documents

• Dari version of the ejma’s final declaration:

http://www.afghanpaper.com/nbody.php?id=157621

• Afghan Women Six Point Agenda for Moscow Peace Talks (4 February 2019; the meeting was officially called “intra-Afghan dialogue not ‘peace talks’)

http://awn-af.net/index.php/cms/press_detail/1500/12

• AWN statement on Doha peace talks (not dated; Feb. 2019)

http://awn-af.net/index.php/cms/press_detail/1506/12

• President Ghani’s speech at the ejma:

https://president.gov.af/fa/1/3/2/19 (no English version available)

• 19-Point Joint Declaration of Afghan Civil Society and Media on the Afghan Peace Negotiations

20190402 final decl Nat CivSoc and Media Conference on Peace Negotiations

 

 

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The International Criminal Court (ICC) has decided not to investigate war crimes and crimes against humanity that have allegedly taken place on Afghan soil. The Court’s Chief Prosecutor, after finding that there was evidence of the Taleban committing a range of crimes, including murder and intentionally attacking civilians, and of Afghan government forces and the United States military and CIA carrying out torture, had requested permission to investigate in November 2017. A few months later, more than 6,000 individuals, along with, collectively 1,690 families and 26 villages voiced their support for an investigation. However, the judges of the ICC’s Pre-Trial Chamber II have today decided that, “at this stage,” an investigation “would not serve the interests of justice.” Their decision, reports AAN’s Kate Clark, comes after the US threatened the court and its personnel with sanctions if they went ahead with an investigation.

If the Pre-Trial Chamber II had authorised an investigation, the ICC would now be preparing to put together a team of investigators to begin the task of collecting victim and witness statements and other evidence, with the aim of building cases against specific individuals leading to their prosecution. This would have been necessary as the ICC can only prosecute individuals, not governments, groups or institutions. Instead, the judges of the ICC’s Pre-Trial Chamber II have unanimously decided to reject ICC Chief Prosecutor Fatou Bensouda’s request to investigate. A press release from the ICC, says the judges believed an investigation “into the situation in Afghanistan at this stage would not serve the interests of justice.”

The judges said they had considered Bensouda had established on a reasonable basis that crimes within the Court’s jurisdiction had been committed in Afghanistan. They had also considered that potential cases would be admissible before the Court. However, they noted:

…the lack of cooperation that the Prosecutor has received and which is likely to go scarcer should an investigation be authorized hampering the chances of successful investigation and prosecution, as well as the need for the Court to use its resources prioritizing activities that would have better chances to succeed.

The judges believed that “notwithstanding the fact [that] all the relevant requirements are met as regards both jurisdiction and admissibility,” Afghanistan’s current circumstances are such as to “make the prospects for a successful investigation and prosecution extremely limited.” They felt that pursuing an investigation would not meet “the objectives listed by the victims favouring the investigation” and therefore concluded that an investigation “at this stage would not serve the interests of justice…”

In other words, the problem is not that war crimes have not happened, or that the crimes were not grave enough to merit the Court’s attention or were inadmissible or that there was a lack of evidence. The problem lay in the prospect of carrying out an investigation in a country where lack of cooperation would make a successful prosecution unlikely. Given, as will be seen below, that more than 6,000 individuals responded, along with, collectively 1,690 families and 26 villages – and victims’ views are usually fundamental to what the Court understands by the phrase ‘the interests of justice’ – the judges’ conclusion must surely be considered controversial.

Initial reactions to the Pre-Trial Chamber II decision have focussed on those who have suffered war crimes. Chairwoman of the Afghanistan Independent Human Rights Commission (AIHRC), Sima Samar, told AAN that victims would be terribly disappointed and that she was “really concerned about the continuation of the culture of impunity in the country.” Human Rights Watch’s Param-Preet Singh called the judges’ decision “…a devastating blow for victims who have suffered grave crimes without redress.” She said:

The judges’ logic effectively allows states to opt out on their obligation to cooperate with the court’s investigation. This sends a dangerous message to perpetrators that can put themselves beyond the reach of the law just by being uncooperative.

As hinted at by Singh, the concern must be that it was the threats and bullying by the United States, as well as the Afghan government’s lack of cooperation with the Court, that were behind the Pre-Trial Chamber II decision not to authorise an investigation.

In this dispatch, before looking at the implication of the judges’ decision in more detail, the author will detail events starting from 2003 when Afghanistan ratified the Rome Statute, giving the ICC jurisdiction over war crimes on its soil, to the Court’s recent decision not to prosecute. It looks at the crimes the Prosecutor hoped to investigate, victims’ views, the uneasy way Kabul has dealt with the Court – legally bound to cooperate, but absolutely reluctant to do so – and the bullying of the US. It has been a long road that has eventually led to the Pre-Court Chamber deciding not to investigate war crimes in Afghanistan.

1 May 2003: Islamic Republic of Afghanistan ratifies the Rome Statue, giving jurisdiction to the ICC to investigate and prosecute war crimes and crimes against humanity committed on its soil or by its citizens after this date.

2006: the ICC’s Office of the Prosecutor (OTP) began preliminary investigation into alleged war crimes in Afghanistan.

20 November 2017: Bensouda requested authorisation to carry out an investigation with the aim of building cases against individuals accused of war crimes or crimes against humanity. Details about the crimes Bensouda said she had credible evidence of, that were grave enough and of a scale to merit the Court’s attention and that domestic courts were either unwilling or unable to take action against, had come in the Office of the Prosecutor’s (OTP) November 2016 annual report (see AAN reporting here). It had said there was a reasonable basis to believe that, “at a minimum,” the following crimes within the Court’s jurisdiction had taken place:

• Crimes against humanity and war crimes by the Taliban and their affiliated Haqqani Network;

“[M]urder; intentionally directing attacks against the civilian population, humanitarian personnel and protected objects; conscripting children; and killing or wounding treacherously a combatant adversary – all of which, it said, “were committed on a large scale and as part of a plan or policy”) and crimes against humanity (murder; imprisonment or other severe deprivation of physical liberty and persecution against any identifiable group or collectivity on political grounds and on gender grounds, all “allegedly committed as part of a widespread and/or systematic attack…” – for full quote, see paragraphs 206 and 207 of the report.)

In terms of admissibility, the Office of the Prosecutor said that the Taleban and Haqqani network’s crimes passed the gravity threshold. As to whether domestic courts are dealing with suspected war criminals, the OTP pointed to the almost complete lack of any investigation or trial of alleged war criminals in Afghanistan (1) and to the 2008 Amnesty Law (the OTP report mistakenly refers to the 2009 Amnesty Law; the Amnesty Law in Afghanistan had been passed in 2008) which provides amnesty to everyone who committed war crimes, including those who, in the future, reconcile with the Afghan government (see also this AAN report). Significantly, the government also granted immunity to Gulbuddin Hekmatyar and his armed men in the context of the peace agreement signed with Hezb-e Islami on 29 September 2016. (2)

• War crimes of torture and related ill-treatment by Afghan government forces, in particular the intelligence agency (National Directorate for Security) and the Afghan National Police;

In 2016, the OTP stated that multiple sources, including the Afghanistan Independent Human Rights Commission (AIHRC), UNAMA, and a presidential fact-finding commission in 2013, had reported on the prevalence of torture in Afghan government detention facilities. The OTP estimated 35 to 50 per cent of conflict-related detainees “may be subjected to torture” and says there is a “state of total impunity.”

The OTP said there was a reasonable basis to believe that Afghan authorities had committed the war crimes of: torture and cruel treatment; outrages upon personal dignity; and (this is new in the OTP’s reports) sexual violence. Naming the National Directorate of Security (NDS), the Afghan National Police, Afghan National Army, Afghan Border Police and the Afghan Local Police (ALP), it said available information suggests the alleged crimes were committed on a “large scale.”

• War crimes of torture and related ill-treatment, by US military forces deployed to Afghanistan and in secret detention facilities operated by the Central Intelligence Agency, principally in the 2003-2004 period, although allegedly continuing in some cases until 2014.

The information available, said the OTP, provided a reasonable basis to believe that during interrogations of security detainees, and in conduct supporting those interrogations, members of the US armed forces and the CIA:

… resorted to techniques amounting to the commission of the war crimes of torture, cruel treatment, outrages upon personal dignity, and rape… Specifically:

Members of US armed forces appear to have subjected at least 61 detained persons to torture, cruel treatment, outrages upon personal dignity on the territory of Afghanistan between 1 May 2003 and 31 December 2014. The majority of the abuses are alleged to have occurred in 2003-2004.

Members of the CIA appear to have subjected at least 27 detained persons to torture, cruel treatment, outrages upon personal dignity and/or rape on the territory of Afghanistan and other States Parties to the Statute (namely Poland, Romania and Lithuania) between December 2002 and March 2008. The majority of the abuses are alleged to have occurred in 2003-2004.

Crucially, the OTP says these “alleged crimes were not the abuses of a few isolated individuals,” but rather were part of a policy. In its 2016 report, the OTP said:

The Office considers that there is a reasonable basis to believe these alleged crimes were committed in furtherance of a policy or policies aimed at eliciting information through the use of interrogation techniques involving cruel or violent methods which would support US objectives in the conflict in Afghanistan.

It notes the use of these methods ended when the authorities decided to stop using them, indicating the alleged crimes were ordered, rather than being the work of random individuals acting on their own initiative.

In the OTP’s 2016 report, Chief Prosecutor Bensouda said there were “no substantial reasons to believe that the opening of an investigation would not be in the interests of justice.” She called on the judges of the Pre-Trial Chamber III to authorise an investigation.

20 February 2018: the Court reported on the views and experiences of the more than 6,000 individuals responded, along with, collectively 1,690 families and 26 villages to the Court’s call for their input. In “overwhelming” numbers, they said they wanted an investigation (read the ICC report here and AAN reporting here). The victims reported having suffered the following crimes:

[M]urder; attempted murder; imprisonment or other severe deprivation of liberty; torture; rape; sexual violence; persecution; enforced disappearance of persons; other inhumane acts; attack against civilian population; attack against protected objects; destruction of property; pillage; forced displacement; outrages upon personal dignity; and denying a fair trial.

This consultation was crucial, as the Court has to find out whether an investigation would be in the ‘interests of justice’ – which is usually understood by the Court as in the ‘interests of victims’. (1)

Since February 2018, everyone has been waiting for the Pre-Trial Chamber II decision to authorise an investigation or not. The decision was expected in spring 2018 but was delayed after a new panel of judges took over in April. The new panel had to consider the case from scratch.

Objections from the Afghan Government and United States

After the Prosecutor’s 2017 request for an investigation, the Afghan government stressed that it would cooperate with the Court, but at the same time, underlined that its primary concern – while also seeking justice – is national stability. In practice, the Afghan government has been slow and reluctant to cooperate; it only really started communicating with the ICC in the final stages of the Preliminary Examination, and then mainly to ask the Court to delay its decision on whether to investigate or not (see here and here). Kabul has also taken several legal measures intended to show that it was willing and able to itself take action against the perpetrators of war crimes, especially torture. (2) However, these moves were belied by UNAMA’s most recent report, published in April 2017 (read AAN analysis here), which found that the use of torture against security detainees had increased since its previous report in 2015 (39 per cent of security detainees interviewed had been tortured, compared to 31 per cent in 2015) and that victims faced a “pervasive culture of impunity” with little likelihood of torturers facing even disciplinary action, let alone prosecution.

The Afghan government’s attempts to show the ICC it was willing and able to prosecute alleged war criminals in domestic courts were further undermined by the lack of prosecutions and by the Amnesty Law still being on the statute books. This law gives an amnesty to anyone who perpetrated war crimes before 2001 and any perpetrator since who reconciles with the government.

In recent months, there have also come a series of threats against the Court and its personnel by the United States.

10 September 2018: US National Security Advisor John Bolton made a withering attack on the Court (read his speech here and AAN reporting here), threatening prosecutions against personnel and retaliation against any country cooperating with the Court if it ‘went after’ America. Bolton called the court a “supranational tribunal” that trampled national sovereignty, a “free-wheeling global organization claiming jurisdiction over individuals without their consent.” The aim, he said, of its “most vigorous supporters,” was to “constrain the United States.”

4 April 2019: the US revoked the US visa of Chief Prosecutor Bensouda

12 April 2019: the Pre-Trial Chamber II rejected an investigation into the situation in Afghanistan

What will the ICC’s decision not to prosecute mean?

In some ways, the difficulties of carrying out an investigation in Afghanistan cannot be underestimated and must be taken into account when considering the judges’ decision. Afghanistan is embroiled in a brutal conflict involving all three parties that the ICC Prosecutor had hoped to investigate. The protection of ICC personnel, any Afghan staff, as well as victims and witnesses, would be immensely difficult to secure, particularly in areas of conflict or in territory controlled by the Taleban.

Without the active cooperation of the Kabul government, the ICC’s investigation would have been even trickier to carry out. For the Afghan government, caught between its legal obligation to cooperate with the Court and its utter dependence on goodwill from an American government implacably opposed to the Court, the prospect of an ICC investigation was horrible. It is therefore difficult to envisage that Kabul would have given the prosecutors the active support they would have needed.

Despite these practical difficulties, the likelihood remains that the judges gave in to US bullying. AIHRC Chairwoman Sima Samar thought this might have been the case, as does Human Rights Watch. The prestige of the Court, already suffering from accusations that it only prosecutes suspects from poor countries, especially African ones, and bows to big state pressure, has been further diminished.

Meanwhile, the Afghan government must be breathing a collective sigh of relief, and the Trump administration may well be feeling triumphant that its threats have worked and that US personnel will not be subject to the Court’s scrutiny and judgement.

As for the victims, their views have yet to be heard, but some quoted in the ICC’s report on their views and experiences, published in February 2017, point to their likely feelings:

Attempts in the country to ensure justice have not been successful, so it is better to give ensuring justice by the international mechanism.

We have not seen the central government of Afghanistan create a fair and independent court or prosecuting warlords or Mujahedeen for the international crimes they have committed against innocent victims.

The current government of Afghanistan cannot overpower the warlords in Afghanistan and there are a lot of crimes happening, but no one can raise their voices because of fear.

Most people in Afghanistan and our bereaved families are not highly educated and do not have access to the internet and facilities and just because they have not been able to file or register this form, please do not disregard their feelings and do not forget them and listen to them so that the continuation of bloody and painful incidents like this is prevented.

The section of the ICC which heard from the victims, the Victims Participation and Reparations Section Registry said it would be informing those who had made representations of the judges’ decision in the coming days

Dr Samar, Chairwoman of the AIHRC, told AAN that she hoped “the security of the victims will not deteriorate.” Amid the deep disappointment that victims have, yet again, been sidelined, she took one crumb of comfort from the ICC press release. The Pre-Trial Chamber II has said there are cases to answer, but an investigation would be too difficult “at this stage.” Samar told AAN that, “at least, they have not said [their decision] will be forever.”

Chief Prosecutor Bensouda has also given her initial, very brief reaction, hinting that this story may not yet be over. She pointed to the fact that the Pre-Trial Chamber II had based its decision “on its assessment of the interests of justice,” pointing to what seems to this author to be its controversial nature. Bensouda also said her office “will further analyse the decision and its implications, and consider all available legal remedies.”

Edited by Christian Bleuer

 

(1) A section of the ICC called the Registry, tasked with hearing from victims, gave people two months (December 2017 and January 2018) to respond. The message from those who responded was clear. Almost all who contacted the Court said an investigation was necessary. Out of a total of 695 submissions – which could be from individuals or collectives, such as a village or family or families – 680 said they wanted an investigation, while just 15 said they did not.

(2) Although torture was already illegal in multiple ways in Afghanistan, including under the constitution, the government adopted several new measures in March 2017, including a new Torture Law and adding the crimes listed in the Rome Statute, word for word, into its newly approved Penal Code. It makes the perpetrators of war crimes, crimes against humanity and genocide punishable by prison terms of up to 30 years, execution and/or compensating victims.

Russian SPG-9 Anti-Tank Recoilless Gun

The multinational exercise saw the participation of assets from Greece, Israel, UAE, Italy and the U.S. Exercise “INIOCHOS” is a yearly medium-scale exercise hosted by the Hellenic Air Force at the facilities of the ATC [...]

U.S. Joins Search Operation for Missing JASDF F-35 Lost in 10,000 Feet of Water. Sections from the left and right rudders of a Japanese Air Self Defense Force (JASDF) F-35A Lightning II, serialled 79-8705, the [...]

The European Defence Agency (EDA) and the European Commission (DG GROW) today jointly held a successful Information & Brokerage Day to inform potential applicants on the Preparatory Action on Defence Research (PADR) and the details of the 2019 calls for proposals published on 19 March.

Almost 300 participants representing a wide variety of companies (including SMEs), research centres, universities, Ministries of Defence, European institutions, regional/local authorities and defence related organisations joined in Brussels to attend the event.

In his keynote speech, EDA Chief Executive Jorge Domecq said it was “of utmost importance that EU funded defence research leads to real products that can enhance European capabilities.” He added: “The Pilot Project which EDA managed was successfully concluded and follow-up activities to exploit the results from it are already under discussion. It is therefore very encouraging to see downstream activities from the Pilot Project that should encourage further uptake of the results from the Preparatory Action on Defence Research.”

In her opening remarks, Sylvia Kainz-Huber, Head of Unit Defence 2 in the European Commission (DG GROW), thanked EDA for the fruitful collaboration. She added that “the European Union should not substitute Member States’ efforts in defence, but it can encourage their collaboration, for instance in developing and acquiring the technologies and equipment needed to address common security and defence challenges". 

The PADR 2019 work programme includes the following calls/topics:

• Electromagnetic Spectrum Dominance: Combined radar, communications, and electronic warfare functions based on European Active Electronically Scanned Arrays for military applications (PADR-EMS-03-2019).

• Future Disruptive Defence Technologies 

1. Emerging Game-changers (PADR-FDDT-EMERGING-03-2019)
2. Challenging the future (PADR-FDDT-OPEN-03-2019).

• Unmanned systems: Interoperability standards for military unmanned systems (PADR-US-03-2019).

During the Information & Brokerage Day, participants received detailed presentations and played an active role in interactive information sessions on the three PADR calls for proposals. The Brokerage event which took place in the afternoon provided participants with plenty of opportunities for networking with partners interested in forming consortia. More than 250 bilateral meetings have been held.

Published on 19 March 2019 in the Funding & Tender Opportunities Portal on the European Commission website, the calls will be implemented through grants with a deadline for submission set to 28 August 2019.
 

Background information:

The Preparatory Action on Defence Research is the first substantial EU funded Action through which the European Commission, supported by EDA, is making an important contribution to European defence, as set out in the 2016 EU Global Strategy and its Implementation Plan. 

The PADR follows a Pilot Project managed by EDA and successfully concluded in November last year. With a total budget of €90M over three years (€25M in 2019), the PADR is implemented through three work programmes with different calls and topics. EDA published the first PADR calls for proposals on 7 June 2017 and the second on 15 March 2018. A total of 24 proposals were received involving some 190 different entities from 25 countries in 2017 (24 Member States plus Norway), and 8 proposals were received in 2018 involving 85 different entities from 20 countries. 

The 2019 PADR calls for proposals are the third and final call published. Five projects (OCEAN 2020, Pythia, ACAMS II, GOSSRA and VESTLIFE), selected and funded following the 2017 Calls for Proposals, are already ongoing. The three projects of the 2018 Calls will be signed in the near future. EDA, as the entrusted implementing Agency is strongly committed to the PADR objective of testing the added-value of the EU budget supporting defence research, in view of a potential EU programme in the next EU Multi-annual Financial Framework.
 

More information:

• Jorge Domecq - Opening remarks PADR Infoday 2019
• PADR Info Day (EDA page)
• PADR project page
• PADR Calls for Proposals

 

Americas

The Navy awarded $33.4 million to Raytheon to supply the Naval Warfare Center in Philadelphia with up to 28 electronic throttle control units (ETCU) and auxiliary components in support of the Virginia Class program. The deal has Raytheon provide replacement ETCU hardware, which is currently obsolete and can no longer be efficiently supported. The Virginia Class are attack submarines. The Navy’s newest undersea warfare platform is designed to seek and destroy enemy subs as well as surface ships. Virginia Class boats can carry up to 24 torpedoes and Tomahawk cruise missiles. They can be deployed for a wide range of operations including anti-submarine warfare, anti-surface ship warfare, strike warfare, special operations forces support, intelligence, surveillance and reconnaissance, irregular warfare, and mine warfare missions. According to the DoD, the proposed contract includes the hardware fabrication for new construction platforms and all back-fit systems to mitigate parts obsolescence, update and maintain the ETCU technical data package, and design verification testing on limited production units for quality assurance. Work is scheduled to be completed by April 2024.

BAE Systems won an $8.1 million contract modification from the Navy for USS Wichita (LCS 13) post-shakedown availability (PSA). The Wichita is a Freedom Class Littoral Combat Ship. The 378-foot highly maneuverable lightweight combatant features a steel monohull with a draft of only 13 feet allowing access to more ports and locations than other ship designs. LCS warships are designed to perform humanitarian aid and rescue, anti-submarine warfare, minesweeping, defending against piracy and drug trafficking, small assault transport and deterrence, while operating in shallow coastal waters known as the littorals. The Navy commissioned the ship in January this year. The PSA encompasses all of the manpower, support services, material, non-standard equipment and associated technical data and documentation required to prepare for and accomplish the PSA. The work to be performed will include correction of government-responsible trial card deficiencies, new work identified between custody transfer and the time of PSA and incorporation of approved engineering changes that were not incorporated during the construction period. BAE Systems will perform work in Jacksonville, Florida, and is expecting to be finished by March 2020.

Middle East & Africa

The US Navy contracted Al Qabandi United with $30 million for vehicle lease services. According to the DoD, the deal provides for non-tactical vehicles for transportation purposes in support of the Ali Al Salem Air Base in Kuwait as well as surrounding tenant units. Al Qabandi United Company is a private General Trading, Supplying, and Contracting firm established in 1993. The company will perform work at the Ali Al Salem Air Base. Fiscal 2019 operations and maintenance funds in the amount of $16,000 are being obligated on a task order at the time of award.

Raytheon won $47.4 million from the US Navy to procure 62 LAU-115 and 68 LAU-116 guided missile launchers for the government of Kuwait to enable the F/A-18 aircraft to carry and launch AIM-120 and AIM-9X missiles. This deal also includes 99 LAU-115 and 100 LAU-116 guided missile launchers for the US Navy. The LAU-115 and LAU-116 provide the structural and electrical interfaces that allow the F/A-18 aircraft to carry and launch missiles such as Sparrow, Sidewinder and the Advanced Medium-Range Air-to-Air Missile (AMRAAM). The LAU-115 are rail launchers designed for carry and launch AIM-7 missiles from the F/A-18 aircraft. The launcher is suspended from the BRU-32 bomb rack on wing stations. The LAU-7 launchers or LAU-127 launchers may be attached to the sides of the LAU-115 to carry AIM-9 or AIM-120 missiles. The LAU-116 provides for the launch of the AIM-7 series Sparrow missile from the F/A-18A aircraft. The LAU-116A/A is also capable of launching the AIM-120 AMRAAM missile. Two launchers, one on the left hand and one on the right hand, are installed in the underside of the aircraft fuselage at stations 4 and 6.

The US Air Force awarded Textron Aviation Defense a $15.4 million modification for the completion of the reconstitution of 15 T-6A aircraft. According to the DoD, the deal provides for a schedule extension to complete the reconstitution of 15 T-6A aircraft and procure cartridge actuated devices and propellant actuated devices. The contract is a Foreign Military Sale to Iraq. The T-6A military trainer provides performance and handling characteristics that will safely lead the student from ab-initio through primary and well into advanced training curricula. The Iraqi Air Force awarded HBC with a contract for eight T-6A trainers in August 2009. A second contract for seven more was awarded in September 2009, bringing the total to 15. The first four T-6A trainers were delivered to Iraqi Air Force in December 2009.

Europe

Thales announced that Switzerland selected the company for an Image Intelligence System. Thales will supply elements of an Image Intelligence (IMINT) Center built around the Thales MINDS / SAIM system. The MINDS / SAIM platform is designed to digitally process real-time data feeds from all types of sensors using advanced processing tools to address issues arising from the volume of data and diversity of sources. According to Thales, MINDS / SAIM will enable the Swiss Armed Forces to precisely target the data they need to process and to identify threats, thanks to a set of highly sophisticated tools based on AI and other technologies. MINDS (Multisensor image Interpretation and Dissemination System) is described by Thales as a combat-proven solution providing real-time digital acquisition and processing of raw data from all EO/IR sensors including wet films, SAR and MTI radars. Deliveries of the Image Intelligence System will begin in early 2020.

Asia-Pacific

The State Department approved a possible Foreign Military Sale to Japan regarding 56 Standard Missile-3 (SM-3) Block IB missiles for an estimated cost of $1.2 billion. Also included are missile canisters, US Government and contractor representatives’ technical assistance, engineering and logistical support services as well as other related elements of logistics and program support. Prime Contractor for the Missile System will be Raytheon. For the canisters BAE Systems will be the prime contractor. The supersonic SM-3 Block IB interceptor is an upgraded variant of the original SM-3 missile fitted with an enhanced two-color infrared seeker and features an upgraded steering and propulsion capability. The SM-3 Block IB, first flight tested in 2011, is designed to destroy incoming short- to intermediate-range ballistic missile targets in midcourse. The weapon system became first operational with the Navy in 2014.

Today’s Video

Watch: This Is the Iconic European Fighter Jet That Can Operate Anywhere

Virginia Block I-II
(click for SuperSize)

“GDEB Receives $148M as Virginia Class Lead Yard” described changes to the Virginia Class submarine’s design that are expected to reach 20% of the $200 million savings goal by the time orders for the versatile sea attack/ land attack/ special forces submarines rise to 2 per year, in 2012.

The bow changes cover the FY 2009-2013 ships, referred to as Block III. SSN 774 Virginia – SSN 777 North Carolina are Block I, and SSNs 778-783 will be Block II. Block III begins with the 11th ship of class, SSN 784. Long lead time component orders began May 22/08, and the submarine is expected to be ready for delivery around 2015. A fuller explanation of Block III’s extensive bow changes, and an accompanying graphic, may be found below – along with contract updates that include additional improvements and sonar development.

The Virginia Class Program: “2 for 4 in 12”

SSN 777 costruction
(click to view full)

The SSN-774 Virginia Class submarine was introduced in the 1990s as a Clinton-era reform that was intended to take some of the SSN-21 Seawolf Class’ key design and technology advances, and place them in a smaller, less heavily-armed, and less expensive platform. The resulting submarine would have learned some of the Seawolf program’s negative procurement lessons, while performing capably in land attack, naval attack, special forces, and shallow water roles. In the end, the Seawolf Class became a technology demonstrator program that was canceled at 3 ships, and the Virginia Class became the naval successor to America’s famed SSN-688 Los Angeles Class.

The Virginia Class program was supposed to reach 2 submarines per year by 2002, removing it from the unusual joint construction approach between General Dynamics Electric Boat and Northrop Grumman Shipbuilding – but that goal has been pushed back to 2012 in progressive planning budgets.

In FY 2005 dollars, SSN-21 submarines cost between $3.1-3.5 billion each. According to Congressional Research Service report #RL32418, and the Navy is working toward a goal of shaving FY05$ 400 million from the cost of each Virginia Class boat, and buying 2 boats in FY2012 for combined cost of $4.0 billion in FY 2005 dollars – a goal referred to as “2 for 4 in 12”. In real dollars subject to inflation, that means about $2.6 billion per sub in 2012, and $2.7 billion in 2013. The Navy believes that moving from the current joint construction arrangement will shave FY05$ 200 million from the cost of each submarine, leaving another FY05$ 200 million (about $220 million) to be saved through ship design and related changes.

Block III: The Changes

Block III bow mods
(click to view full)

The most obvious change is the switch from 12 vertical launch tubes, to 12 missiles in 2 tubes that use technology from the Ohio Class special forces/ strike SSGN program. The Virginia’s hull has a smaller cross-section than the converted ballistic missile SSGNs, so the “6-shooters” will be shorter and a bit wider. Nevertheless, they will share a great deal of common technology, allowing innovations on either platform to be incorporated into the other submarine class during major maintenance milestones. Net savings are about $8 million to program baseline costs.

The other big change you can see in the above diagram is switching from an air-backed sonar sphere to a water-backed Large Aperture Bow (LAB) array. Eliminating the hundreds of SUBSAFE penetrations that help maintain required pressure in the air-backed sonar sphere will save approximately $11 million per hull, and begins with the FY 2012 boats (SSNs 787-788).

The LAB Array has 2 primary components: the passive array, which will provide improved performance, and a medium-frequency active array. It utilizes transducers from the SSN-21 Seawolf Class that are that are designed to last the life of the hull. This is rather par for the course, as the Virginia Class’ was created in the 1990s to incorporate key elements of the $4 billion Seawolf Class submarine technologies into a cheaper boat.

The SUBSAFE eliminations, plus the life-of-the-hull transducers, will help to reduce the submarines’ life cycle costs as well by removing moving parts that require maintenance, eliminating possible points of failure and repair, and removing the need for transducer replacements in drydock.

The bow redesign is not limited to these changes, however, and includes 25 associated redesign efforts. These are estimated to reduce construction costs by another $20 million per hull beginning with the FY 2012 submarine.

With the $19 million ($11 + 8) from the LAB array and Vertical Payload, and the $20 million from the associated changes, General Dynamics is $39 million toward the $200 million baseline costs goal of “2 for 4 in 12”. While the changes themselves will begin with the FY 2009 ship, the savings are targeted at FY 2012 because of the learning curve required as part of the switch. Recent discussions concerning an earlier shift to 2 submarines per year would result in faster production of the Block III submarines, but would be unlikely to make a huge difference to that learning curve.

Contracts and Key Events

Tomahawk launched

April 11/19: ETCU The Navy awarded $33.4 million to Raytheon to supply the Naval Warfare Center in Philadelphia with up to 28 electronic throttle control units (ETCU) and auxiliary components in support of the Virginia Class program. The deal has Raytheon provide replacement ETCU hardware, which is currently obsolete and can no longer be efficiently supported. The Virginia Class are attack submarines. The Navy’s newest undersea warfare platform is designed to seek and destroy enemy subs as well as surface ships. Virginia Class boats can carry up to 24 torpedoes and Tomahawk cruise missiles. They can be deployed for a wide range of operations including anti-submarine warfare, anti-surface ship warfare, strike warfare, special operations forces support, intelligence, surveillance and reconnaissance, irregular warfare, and mine warfare missions. According to the DoD, the proposed contract includes the hardware fabrication for new construction platforms and all back-fit systems to mitigate parts obsolescence, update and maintain the ETCU technical data package, and design verification testing on limited production units for quality assurance. Work is scheduled to be completed by April 2024.

March 20/19: Long Lead Time Material The US Navy awarded General Dynamics a $2 billion contract modification to provide additional materials required to build the Virginia Class submarines from fiscal 2019 through fiscal 2023. The deal includes additional Long Lead Time Material and Economic Ordering Quantity items for SSN-802 to SSN-811 underwater vessels. The SSNs 802 -811 Virginia Class submarine hull numbers have not been named yet. The Virginia Class is the Navy’s newest undersea warfare platform. Attack submarines are designed to seek and destroy enemy submarines and surface ships, project power ashore with Tomahawk cruise missiles and Special Operation Forces, carry out Intelligence, Surveillance, and Reconnaissance (ISR) missions, support battle group operations, and engage in mine warfare. The modification falls under a previously awarded sole-source contract. General Dynamics is the lead contractor of the Virginia Class submarine program. In February 2017, General Dynamics won an initial $126.5 million contract by the US Navy for long lead time material for the first two Block V Virginia Class submarines, SSN-802 and SSN-803. The Block V submarines built from 2019 onward will have an additional Virginia Payload Module (VPM) mid-body section, increasing their overall length. Work under the contract modification will take place within the USA.

February 27/19: Universal Modular Mast The US Navy awarded L-3 KEO a $19.3 million contract modification for the production of the Universal Modular Mast, which serves as a lifting mechanism for the Virginia class mast payloads. The Universal Modular Mast is standard equipment for above-water sensors on U.S. and international submarines. It is a non-hull penetrating mast for Navy Virginia-class fast-attack submarines and Ohio-class guided missile submarines that can host five different sensor configurations: the photonics mast, the multi-function mast, the integrated electronic mast, the high-data-rate-mast, and the photonics mast variant. The Virginia class or SSN-774 class are nuclear powered fast attack submarines. The submarines form the Navy’s new undersea warfare platform designed to seek and destroy enemy submarines and surface ships as well as project power ashore. Work under the contract will take place in Italy as well as Massachusetts and is scheduled to be finished by August 2021.

April 02/18: Post-delivery work General Dynamics Electric Boat Corp, is being contracted for the provision of post-delivery work on the USS Colorado (SSN 788). The awarded contract is valued at over $14 million. The USS Colorado is the 15th Virginia Class submarine delivered to the US Navy. She was delivered on September 21, 2017 and was commissioned on March 17, 2018. The SSN 788 is part of a 5-year, $17 billion deal to strengthen the USA’s nuclear submarine fleet. The SSN 788 belongs to Block III submarines that took a big step forward by replacing the 12 vertical launch tubes with a more flexible “6-shooter” approach, and swapping a water-backed, horseshoe-shaped LAB sonar array for the existing air-backed spherical array. Electric Boat Corp. will perform planning and execution efforts, including long lead time material procurement, in preparation to accomplish the maintenance, repair, alterations, testing, and other work on USS Colorado. Work will be performed in Groton, Connecticut and is expected to be completed by September 2018.

Jan 5/09: Goodrich in Charlotte, NC received a $49 million contract from Northrop Grumman Shipbuilding to provide composite components for the next 8 Virginia Class nuclear fast attack submarines referred to as Block III.

Goodrich’s Engineered Polymer Products team in Jacksonville, FL is building components to support the construction of 1 ship per year in 2009 and 2010, rising to 2 ships per year from 2011 through 2013. The components include the bow dome, and sonar and weapons equipment.

Dec 22/08: The US Navy signals its a href=”/Early-Xmas-Big-Virginia-Contracts-for-GDEB-NGC-05218/”>approval of the Virginia Class’ progress, and of the new Block III design, with a $14.011 billion contract to fund 8 Virginia Class block III submarines. Work on these boats will run until 2019.

Dec 12/08: General Dynamics Electric Boat Corp. in Groton, CT received a $16.8 million cost-plus-fixed-fee material order to fund the Block III Common Weapon Launcher (CWL) design, and includes the total scope associated with the vendor portion of the inboard electronics design as well as the scope required for in-house (Electric Boat) tasks. The CWL will sit in the Block III bow’s “six shooter” holes, and is so named because that space can be used to launch a wide variety of items besides UGM-109 Tomahawk cruise missiles; aerial UAVs and underwater UUVs are the most obvious.

GDEB services will include engineering support, Engineering Development Model (EDM) hardware, continued development of the CWL for use with SSN 784 VPT, development of interface documents, and defining changes to support interfaces to the Weapon Control and Payload Tube Control Panels. Work will be performed in Manassas, VA, and is expected to be complete by 2013. This contract was not competitively procured by the supervisor of Shipbuilding Conversion and Repair in Groton CT (N00024-09-C-2101).

Dec 12/08: Lockheed Martin Maritime Systems and Sensors in Manassas, VA received a $38.3 million modification to previously awarded contract (N00024-04-C-6207) for engineering services in support of the Acoustic – Rapid Commercial off The Shelf (A-RCI) program. The 550,000 additional engineering services hours will be used on TacLAN tasking related to Special Operations support, and to complete the new “BSY-2 Wrap Around Antenna (WAA),” which is listed as being a Virginia Class sonar.

DID requested clarification, and got it. BSY-2 is a Seawolf class system only. WAA is the Wide Aperture Array, and on the SSN-774 Virginia Class it evolved to the L-WAA (Lightweight Wide Aperture Array). The Virginia Class Block III bow has been redesigned to save money beginning with SSN 784; it will use the Large Aperture Bow (LAB) Array.

It turns out that the DefenseLINK release should read “technology insertions for the USS Jimmy Carter’s [SSN 23 Seawolf Class] BSY-2 WAA, and USS North Carolina [SSN 777 Virginia Class] LWAA TI-08 integration.” The exact work involved is technology insertion, integration, and modernization on USS Jimmy Carter and USS North Carolina, as well as the completion of the existing TI-08 effort and the Virginia Class Block III TI-10 Large Aperture Bow (LAB) Array effort for SSN 784.

Work will be performed in Manassas, VA (90%) and Syracuse, NY (10%) and is expected to be complete by June 2009. This contract was not competitively procured by US Naval Sea Systems Command.

Nov 5/08: The Virginia Class nuclear fast attack submarine Program Office Virginia Class Sub Program Wins Acquisition Awardreceives the 2008 David Packard Excellence in Acquisition Award during a ceremony at Fort Belvoir, VA. This marks the third time (1996, 1998, 2008) that the Virginia Class Program Office has earned the award. The Virginia Class Program was recognized for excelling in 4 specific areas: reducing life-cycle costs; making the acquisition system more efficient, responsive, and timely; integrating defense with the commercial base and practices; and promoting continuous improvement of the acquisition process.

SEDE organised a public hearing on 'Joint Parliamentary Scrutiny on EU Defence Affairs' on Tuesday 2nd April, from 14.30 to 16.00, with external experts
Further information
Programme
Poster
Presentation on "Democratic accountability and parliamentary control in foreign and security policy" by Kolja Raube, KU Leuven
Presentation on "Parliamentary practices in providing parliamentary oversight in security and defence policy – role of some national parliaments" by Hans Born, DCAF
Source : © European Union, 2019 - EP

The airliner had lost contact with the Air Traffic Control, sparking the alert launch of two Eurofighters in QRA (Quick Reaction Alert). On Apr. 9, 2019, two Eurofighter Typhoon jets belonging to the 36° Stormo [...]

Americas

The Air Force awarded Boeing a $91.3 million contract modification for a super high-speed computer intended to improve the F-15’s electronics warfare capability. The modification provides for the production and integration of the Advanced Display Core Processor II (ADCPII) boxes into the F-15 platform. The ADCP II is also known as Suite 9. According to Boeing, it is the world’s fastest flight mission computer, capable of processing up to 87 billion instructions per second. In 2016, the F-15E tested the flight computer during a flight on July 8 at Florida’s Eglin Air Force Base. The ADCP II is part of a wider $12 billion modernization program taking place across the range of Eagle types being flown in the USAF inventory. The F-15 Eagle is a twin-engine, all-weather tactical fighter aircraft. It is the Air Force’s primary fighter jet aircraft and intercept platform. The Eagle’s air superiority is achieved through a mixture of unprecedented maneuverability and acceleration, range, weapons and avionics.

DRS Laurel Technologies won a $53.7 million supply contract in support of the guided-missile destroyer (DDG) modernization program. The deal includes cost reimbursable services for the repair station console (RSC). According to the DoD, the RSC installation is accomplished in whole or in phases that minimize interruption in ship operating schedules while maximizing the capacity of type Commander and Naval Sea System Command agencies to upgrade and modernize hull, mechanical as well as electrical and electronic systems. DRS Laurel will deliver supplies to various Navy bases, shipyards, repair and contractor facilities. The DDG program commenced with the USS Arleigh Burke (DDG 51) in mid-2010, to provide comprehensive mid-life upgrades that will ensure Arleigh Burke class ships maintain mission relevance. With an expected life of 35 years or more, the sustained maintenance and modernization of these ships is crucial to their continued role as an essential component of surface warfare. The Navy modernization program provides a full spectrum of technical support encompassing all phases of the alteration/installation process. DRS Laurel Technologies will perform in Virginia and various other places and expects to be finished by April 2024.

The Navy contracted Hamilton Sundstrand with $11.1 million for repair of the processor signal utilized on the Super Hornets. The F/A-18 Super Hornet Block III or Advanced Super Hornet is the newest highly capable, affordable and available tactical aircraft manufactured by Boeing. The Super Hornet Block III comes equipped with Distributing Targeting Processor Network (DTP-N) and Tactical Targeting Network Technology (TTNT). These are a computer and a big data platform that work together to aid in even more efficient movement and management of data within assets. The Block IIIs sensors along with the APG-79 AESA Radar coupled to DTP-N and TTNT systems plots information on the Advances Cockpit System making it easy for aircrews to view and manage information. A key capability of the aircraft is the installation of the Raytheon AN/APG-79 multimode AESA tactical radar which has passive detection, active radar suppression modes of operation to provide air-to-air, air to ground, targeting, tracking and self-protection. This radar provides critically important data. Work will take place in Windsor Locks, Connecticut and is scheduled to be completed by April 2024.

Middle East & Africa

Local media reports that the French Army started to withdraw its troops from Iraq. According to officials, the French artillery group, which was deployed on the Iraqi-Syrian border against the Islamic State (IS) group, has completed its mission. The 150-strong Task Force Wagram, an artillery battle group armed with three Caesar 155 mm howitzers, was deployed in Iraq since September 2016 alongside the anti-jihadist coalition. French Army Caesars participated in the liberation of the Iraqi city of Mosul from the Qayarah Forward Base. They then were deployed along the Iraqi-Syrian border, near the Iraqi city of al-Qaim, in support of the Syrian Democratic Forces (FDS).

Europe

Finland shortlisted Saab as a Combat System provider for the Finnish Squadron 2020 program. The potential contract would have Saab provide and integrate the Finnish Navy’s four new Pohjanmaa Class corvettes within the Squadron 2020 program. The program is a project by the Finnish Navy. Its aim is to replace the seven vessels the Navy will decommission. Four modern corvettes will be procured to replace the vessels to be decommissioned. All of the Finnish Navy’s current vessels feature at least one system from Saab, with the majority of vessels operating several systems from Saab. According to the company, Saab has not yet signed any contract or received an order relating to Squadron 2020.

Asia-Pacific

Thales announced, that the company together with the Kalyani Group have formalized a new collaboration for the design, development and manufacture of next generation weapons systems for the Defense and Law Enforcement sectors in India and abroad. The two companies have inked an agreement for the joint venture. According to the company, the collaboration will leverage Thales’s more than 100 years of experience in the design, development and manufacture of the world’s leading defense systems. The agreement was signed onboard the HMAS Canberra.

The Australian Army successfully tested its new Sensor-fused Munition for Artillery (SMArt) 155mm round. The projectile was tested during Exercise Chimera, conducted on 24 and 25 March, at the Shoalwater Bay Training Area near Rockhampton, Queensland. The SMArt 155 is a fire and forget artillery round that is very effective in GPS denied environments and against targets with large target location errors (TLE). It uses high performance explosively formed penetrator (EFP) technology and a multi-mode sensor suite to provide predictable and precise lethal areas of effects in all weather and environments. According to the Australian Department of Defense, the SMArt 155 projectile will provide the army with the ability to effectively engage and destroy heavy armored fighting vehicles, such as main battle tanks, at operationally significant ranges, in all weather and terrain.

Today’s Video

Watch: China Third aircraft carrier taking shape in Shanghai

Ricocheting bullets can be extremely dangerous. A Royal Netherlands Air Force F-16 was damaged during live fire training exercises at Vliehors Range on the island of Vlieland in the northern Netherlands, on Jan. 21, 2019. [...]

The aircraft has disappeared at around 19.27LT. The status of the aircraft and its pilot is unknown. According to several Japanese media outlets, an F-35A Lightning II belonging to the Japan Air Self Defense Force [...]

Americas

Leidos won a $19.4 million ceiling cost-reimbursement contract for system integration and field testing of a laser weapon system at Kirtland Air Force Base in New Mexico. Specifically, the deal is for the advancement of laser weapon system technology through research and development of systems as well as evaluating performance in relevant operational environments. The Air Force Research Laboratory Directed Energy Directorate at Kirtland Air Base develops technologies in laser systems, high power electromagnetics, weapons modeling and simulation as well as directed energy and electro-optics for space superiority. With its laser programs the lab is trying to achieve a laser weapon system that can operate in all flight regimes against targets that are approaching at supersonic speeds, which must be intercepted at significant range, according to a report. By 2021, the Air Force plans to test laser weapons from fighter jets to destroy high-value targets, conduct precision strikes and incinerate enemy locations from the sky. Work is scheduled to be finished by April 2022.

Lockheed Martin contracted Saab to deliver Sea Giraffe AMB 3-D surveillance radars to the Royal Canadian Navy’s two new Protecteur Class Joint Support Ships. According to a press release by Saab, the Sea Giraffe AMB will form part of the command management system for the new ships. The Sea Giraffe Agile Multi Beam (AMB) is a C-band maritime 3D mid-range multifunction radar. The radar provides airspace reconnaissance and simultaneous target tracking, weapon system targeting and high-resolution navigation. The Sea Giraffe AMB has been optimized for use on the Swedish Visby Class corvettes and the Independence Class US Coast Guard. The AMB contains a number of independent elevation-angle antenna beams. Saab will perform work in Gothenburg, Sweden and Halifax, Canada with deliveries scheduled between 2020 and 2022.

Middle East & Africa

Israeli Weapons Industries (IWI) introduced a new assault rifle during the LAAD 2019 exhibition in Brazil, local media reports. The so called Carmel is a conventional configuration rifle, which is offered in four different barrel lengths: 267mm, 305mm, 368mm and 406mm. The rifle features special steels, aviation grade aluminum and high impact polymers for high performance in small unit operations across a wide range of environments and different combat scenarios. It has a rotating bolt system and is equipped with picatinny rails on all sides to allow 100 percent compatibility with any available sights, devices or accessories. The weight of the rifle without a magazine or sight is 3.3 kg.

Europe

Britain will send its F35B aircraft on their very first overseas deployment this year. According to the British government, the aircraft will make their way from Royal Air Force home station Marham in Norfolk to Cyprus. This marks an important milestone for the F35B’s journey to become fully operational. The deployment will see personnel from the Royal Air Force as well as the Navy gain vital experience in maintaining and flying the aircraft in an unfamiliar environment. Britain currently owns 17 F-35B aircraft, and plans to procure 138 over the life of the program. The country plans for the jets to hit targets in Syria as soon as this summer, the Times reported last December.

German defense company Rheinmetall won a $122.8 million contract from the German Bundeswehr to deliver 32,000 rounds of artillery ammunition. The deal includes an option for a further 11,000 for $41.7 million. The ammunition ordered by the Bundeswehr is the 155mm DM121. At the end of March, the German parliament approved $28 million in funding for procurement of 155 mm ammunition for the Panzerhaubitze (PzH) 2000 self-propelled howitzer. The DM121 can attain ranges of up to 30 kilometres and can also be used in training as well as field exercises. According to Rheinmetall, the DM121 is capable of penetrating a several-centimeter-thick wall of reinforced concrete before detonating in controlled fashion on the opposite side. Rheinmetall Waffe Munition will produce the 155mm artillery ammunition for the five-year-contract in Unterlüß, Germany.

Asia-Pacific

According to Jane’s, South Korean company Korean Aerospace Industries started ground-based engine trials of the Light Attack Helicopter (LAH) it developed for the Republic of Korea Army. The LAH, developed around the Airbus H155 twin-engined platform, features a turreted 20 mm Gatling-gun under its nose, stub wings provisioned to carry rocket pods as well as a nose-mounted electro-optical/infrared (EO/IR) sensor, fuselage- and tail-mounted missile warning receivers, and upwards-directed exhausts for a reduced IR signature. The 214 LAHs that are currently being produced are scheduled to enter into service in 2022/2023.

Today’s Video

Watch: Here’s How F-35 Technology Would Be Compromised If Turkey Also Had the S-400 Anti-Aircraft System

https://www.youtube.com/watch?v=UAV8dMtc1A8

HMCS Protecteur
(click to view larger)

As part of its spate of military modernization announcements issued just before Canada Day (July 1) 2006, the Canadian government issued an RFP that began the process of defining and building 3 “Joint Support Ships.” The aim was to deliver 3 multi-role vessels with substantially more capability than the current Protecteur Class oiler and resupply ships. In addition to being able to provide at-sea support (re-fueling and re-supply) to deployed naval task groups, the new JSS ships were envisioned as ships that would also be capable of sealift operations, as well as amphibious support to forces deployed ashore.

This was expected to be a C$ 2.9 billion (USD $2.58 billion) project. This article describes the process, the industry teams participating, and some of the issues swirling around Canada’s very ambitious specifications. Specifications that ultimately sank the whole project, twice, in a manner that was predictable from the outset. Leaving Canada’s navy with a serious problem, as its existing ships were forced into retirement. Will another go-round in 2012-13 help any? And what will Canada do in the meantime?

Take 2: Lessons, Process, and Contenders

Berlin Class
(click to view larger)

The 24,700t Canadian oiler and supply ships HMCS Protecteur (T-AOR-509, commissioned 1969), and HMCS Preserver (T-AOR-510, commissioned 1970) have contributed to humanitarian aid missions in Florida and the Bahamas, peace-making off Somalia and East Timor, and have been poised for the evacuation of non-combatants from Haiti, to name but a few of their recent endeavors. In the end, both HMCS Protecteur (fire) and HMCS Preserver (corrosion) were forced into “early” retirement in September 2014, after 45 and 44 years of respective service time.

Canada picked the 20,240t Berlin Class as its follow-on supply ships in June 2013, but hasn’t managed to issue a build contract. Current projections involve an expected cost of C$ 2.6 billion, for ships that Canada is unlikely to receive before 2020 at the earliest.

This outcome wasn’t necessary, but it was predictable. Meanwhile, interim leases of much larger 49,600t American ships are being considered as a bridge-buy option.

JSS Procurement Plan #1

Dutch JSS concept
(click to view full)

The ship’s requirements were unveiled in June 2006. they included the ability to carry liquid and bulk supplies, amphibious support roles, a hangar for multiple helicopters, and a strengthened hull for operations in ice. August 2008 saw the predictable demise of that JSS program (vid. Appendices A & B), but Canada’s Protecteur Class still faced all of the same issues with maintenance, and still had a limited lifespan left.

Canada’s DND was still thinking things over in January 2010 when the Dutch made a move of their own, ordering their own “Joint Logistic Support Ship” with specifications that closely matched Canada’s stated JSS needs and requirements.

Canada made no move. Its government remained stuck considering what it wanted to do, and JSS discussions became intertwined with a proposed national shipbuilding strategy that added more complexity and delay. Some countries like Australia have shifted toward a single preferred shipbuilder approach, in order to keep their defense shipbuilding industrial base alive despite limited orders. Regional politics make that a perilous option for any Canadian government, so in June 2010 Canada opted for a dual preferred shipbuilders approach. Their National Shipbuilding Procurement Strategy (NSPS) would build their future combat ships in one shipyard, and their future support and non-combatant ships at a second location.

With that step out of the way, July 2010 saw the JSS program’s re-start announcement, this time at C$ 2.6 billion instead of $2.9 billion. With the Canadian dollar close to par with the US dollar, currency shifts made up some of that difference. The other difference involved cutting the planned order to just 2 ships instead of 3, after previous program experience showed that it wasn’t possible to buy 3 ships that do all of the things that Canada wanted, for the money it was prepared to spend.

JSS Procurement Plan #2

A15 Cantabria
(click to view larger)

October 2010 saw the final piece of the puzzle fall into place. A dysfunctional political and procurement system has led Canada’s government to use ACAN buys for big defense purchases, almost all of which have been organized as rigged sole-source decisions instead of competitions. The JSS program looked to pick one of 2 existing designs that were already in service with NATO allies.

The Dutch multi-role JSS, which isn’t in service yet, wasn’t one of the 2 choices.

Contender #1 was ThyssenKrupp Marine’s 20,240t Berlin Class, with 3 examples serving in the Germany Navy. These ships are mostly conventional oiler and replenishment ships, with storage for 9,330t of fuel oil, aviation fuel and fresh water, and 550t of mixed cargo. They can carry light armament and up to 2 medium helicopters, with an on-board hospital that can handle up to 43 patients.

Contender #2 was Navantia S.A.’s Cantabria Class, an enlarged 19,500t version of the Patino Class replenishment ship. Cargo specifications for the smaller Patino are 8,480t fuel capacity (6,820t diesel and 1,660t aviation), and 500t of mixed cargo. The Cantabria carries a crew medical center with 10 beds, including a operating facilities equipped for telemedicine by videoconference, an X-ray room, dental surgery, sterilization laboratory, medical surgery and gas containment center.

While each of these ships has some minor capabilities beyond the basic fleet replenishment mission, the most striking thing about these choices is their signal that Canada had effectively abandoned its attempt to make the JSS a multi-role amphibious operations ship.

JSS Procurement Plan #3

TKMS concept
(click to view full)

Discussions were held with each firm concerning Canada-specific modifications to their designs, and the terms under which they’d be willing to hand over their designs to a designated Canadian shipbuilder. Those discussions reportedly didn’t go well, and other reports surfaced that BMT Fleet Technology of Kanata, ON near Ottawa might offer an design if those negotiations failed.

The report turned out to be true, and in March 2012, Canada gave design contracts to BMT and to TKMS. BMT would offer a custom JSS design for Canada, while TKMS would offer a modified version of the Berlin Class. Canada would pick a design between the 2 once the teams were done, arrange license production in Canada at Vancouver Shipyards per the NSPS selections, then contract with the shipyard.

Adding a new design that is not in service would vastly increase the program’s risks. On the other hand, their parent company has an Aegir family of ships that were designed from the outset to be built in “local country” shipyards, and will form the basis for the UK’s new MARS fleet tankers.

Canada’s conclusion? The entire competitive structure had been a waste of time. Implementation costs would be 15% less with an off-the-shelf design, so that was the only contender offering enough contingency funding for an executable project. TKMS’ modified Berlin Class was picked in June 2013, but construction isn’t expected to begin until at least “late 2016,” and delivery isn’t expected until 2020 at the earliest.

Supply Ship Cost Comparison: Canada vs. Britain

BMT’s MARS Tanker
(click to view full)

Canada isn’t the only country looking to reinvest in supply ships. As noted above, the Dutch are fielding a 28,000t multi-role supply and amphibious JSS support ship that’s similar to Canada’s original requirements, at a coat of around $500 million. Changing specifications in Canada have made that a poor comparison.

When it comes to simpler oiler/ supply vessels, Britain is a much better comparison. In 2002, Britain began a Military Afloat Reach and Sustainability (MARS) program to replace 11 supply ships in the Royal Fleet Auxiliary. Their program also went through a great deal of internal turbulence, including a program split in 2007. In early 2012, however, the Royal Navy placed its first MARS contract for 4 double-hulled oiler ships, which would also have the ability to transport and transfer other supplies.

While the 20,240t Berlin Class would certainly qualify for this role, Britain ended up choosing the option Canada didn’t: BMT’s Aegir design, albeit in a larger 37,000t ship. This makes for a very interesting comparison, and Britain added one more major difference: their ships would be built abroad, because even the UK’s shipbuilding facilities weren’t deemed ready, or good value for money. Instead, they chose one of the world’s leading shipbuilders, with a commercial and military history of on-time, on-budget delivery: Daewoo Shipbuilding and Marine Engineering in South Korea. The 1st ship, RFA Tidespring, is expected to enter service in 2016.

The cost differential is stunning.

Canada’s JSS program is budgeting C$ 2.6 billion for 2 ships of 20,240t each. Which means that each ship costs $1.3 billion. We’ll assume that rough parity with the US dollar continues throughout the project. We’ll also assume that the JSS project doesn’t end up with major cost overruns, even though this is a significant risk given Seaspan Vancouver’s lack of experience.

Britain’s 4 x 37,000t Tide Class MARS replenishment ships cost GBP 602 million total, or about $950 million equivalent. Which means that each ship costs $237.5 million. Their builder has a long record of solid performance, so this amount is fairly reliable.

The difference per ship = 5.47x, in order to build ships with just 2/3 the individual tonnage, and much greater risk of cost overruns or late arrival.

JSS: Contracts and Key Events 2019

Fire on board Protecteur; Both existing ships forced to retire; Lease of retiring US MSC Supply Class T-AOEs?

At-sea emergency

April 9/19: Sea Giraffe for Protecteur Lockheed Martin contracted Saab to deliver Sea Giraffe AMB 3-D surveillance radars to the Royal Canadian Navy’s two new Protecteur Class Joint Support Ships. According to a press release by Saab, the Sea Giraffe AMB will form part of the command management system for the new ships. The Sea Giraffe Agile Multi Beam (AMB) is a C-band maritime 3D mid-range multifunction radar. The radar provides airspace reconnaissance and simultaneous target tracking, weapon system targeting and high-resolution navigation. The Sea Giraffe AMB has been optimized for use on the Swedish Visby Class corvettes and the Independence Class US Coast Guard. The AMB contains a number of independent elevation-angle antenna beams. Saab will perform work in Gothenburg, Sweden and Halifax, Canada with deliveries scheduled between 2020 and 2022.

2014

Sept 23/14: Rent a T-AOE? CBC reports that Canada is considering a lease of the 49,600t Supply Class fast combat support ship USNS Bridge [T-AOE-10], which was recently inactivated by the US Navy because it costs $75 million per year to keep it in operation.

Older oilers cost about $40 million, and the new T-AKE dry supply ships cost aout $50 million, but they limit the speed of any naval group using them to under 20 knots. Carrier Strike Group transits are often 20-24 knots, and 25-26 knots is not uncommon; the Supply Class are the ships that can keep up. USNS Rainier [T-AOE-7] is scheduled to be held in reserve for another year, but current plans would also remove her from the fleet, over strenuous objections from fleet commanders.

A Canadian lease could help solve the US Navy’s problem by transferring the operating costs, while helping Canada at the same time. For the USA, the question is whether to give up control over the ships’ future usage, such as it is. If they believe the Canadians will send their T-AOEs and frigates to accompany US Navy strike groups often enough, it could still be a net plus. For the Canadians, the size difference is a big deal, because it affects required infrastructure. The USD $75 million per year operating cost could also be an issue to a military that may not have enough funds for operations under planned budgets. The good news is that crewing won’t be a big problem, since the 1960s-era Protecteur Class required almost twice as many crew as the late-1990s era Supply Class do. Sources: CASR, “The JSS Project: Delays, delivery dates, urgency, and alternatives” | CBC, “Canada’s navy looks to fill fleet gap with purchase from U.S.” | Defense News, “Canada To Seek NATO, US Support For Naval Air Defense, Resupply” | Defense News “Big Supply Ships May Get Reprieve – For Now” (July 2014).

Sept 19/14: Retired. Both HMCS Preserver and HMCS Protecteur are forced into retirement. HMCS Protecteur has never recovered from its engine fire (q.v. Feb 27/14) and collision with the destroyer HMCS Algonquin (q.v. Aug 31/13), which will also be scrapped. HMCS Preserver was found to have serious corrosion problems, and the destroyer HMCS Iroquois was scheduled for retirement in 2015 anyway, after 43 years of service.

Sources: CTV News, “Navy sending four Cold War era ships into retirement” | Nanaimo Daily News, “Navy to drop four ships, including Protecteur and Algonquin”.

Both T-AORs retire

Feb 28/14: Fire. As if its recent crash wasn’t bad enough (q.v. Aug 31/13), HMCS Protecteur suffers an engine room fire en route to Pearl Harbor, Hawaii. She is taken under tow by the American destroyer USS Chosin, but the tow line breaks in rough seas. HMCS Protecteur is eventually towed into Pearl Harbor on March 6/14 by the fleet ocean tug USNS Sioux [T-ATF 171].

About 20 crew suffered minor injuries, but the damage to the ship is more serious. the engine room and propulsion control machinery is badly damaged, and there’s fire and smoke damage to adjoining compartments. Some doubt the ship will ever sail again, and she has to be towed back to Canada after the damage assessment is complete. Sources: CBC, “Line towing fire-damaged HMCS Protecteur to Hawaii breaks” | CBC, “HMCS Protecteur towed into Pearl Harbor” | US Navy, “HMCS Protecteur, Crew Arrive Safely to Pearl Harbor” | CBC, “HMCS Protecteur too badly damaged to sail home on her own”.

Protecteur fire

2013

Berlin Class picked for JSS, but no contract; Inflation mismatch risks shortfalls; 2012 saw both existing oilers out of service; Collision with destroyer damages Protecteur.

HMCS Protecteur
(click to view larger)

Oct 11/13: More delays. There isn’t even a contract for the JSS ships yet, and the government is already admitting to reporters that Canada’s existing supply ships will need to be retired before the new Berlin Class variants can enter service over the 2019-2020 time frame. This is a new admission, and it’s so even though the polar icebreaker project will be deferred in JSS’ favor.

Senior officials are already talking about a service gap of “at least 18 months,” without even a contract in place to offer an notional end date. Shipbuilding isn’t even expected to start before “late 2016,” despite the use of a licensed design as the base Meanwhile, making JSS the yard’s first major military shipbuilding project sharply raises the odds of industrial mistakes and rework, cost overruns, and schedule failures.

Any delays will have costs and implications beyond even the JSS project, because Seaspan Vancouver doesn’t have the capacity to run both projects in parallel. Meanwhile, CGCS Louis St. Laurent will need at least $55 million in refits in order to keep operating until 2021 – 2022. Further JSS delays would force Canada to either spend more, or to field a navy with no supply ships and no icebreaker. Sources: Canadian government, “National Shipbuilding Procurement Strategy Secretariat announces Vancouver Shipyards to build the Joint Support Ships in 2016” | CBC, “Arctic icebreaker delayed as Tories prioritize supply ships” | Postmedia, “Shipbuilding schedule conflict to cost taxpayers extra $55 million”.

Aug 31/13: Crash. HMCS Protecteur collides with the Tribal Class destroyer HMCS Algonquin during a west coast training exercise. The towing exercise certainly went “dramatically wrong”, but that’s almost a tangential point. Until the damage is fixed, Canada’s Pacific Fleet has no replenishment ship – a situation that can be repeated at any time with JSS, given that there are only 2 ships planned.

The same amount of money could build 4 or more similar ships abroad, as countries like Britain have done. The difference illustrates the non-monetary cost of Canada’s chosen approach. The Globe and Mail, “Canadian Pacific navy fleet severely hampered without damaged ships.”

Collision

June 2-10/13: Calling Berlin. Canada chooses ThyssenKrupp Marine Systems’ “proven, off-the-shelf” design, based on the German Navy’s double-hulled Berlin Class Einsatzgruppenversorger (EGV – Task Force Support Ship), over a variant of BMT Fleet Technology’s Aegir that was picked as the base for Britain’s forthcoming Tide Class support tankers.

It wasn’t a features contest. Ultimately, TKMS won because Canada believed that implementation costs would be 15% less with an off-the-shelf design, so that was the only contender offering enough contingency funding for an executable project. First Marine International was used to validate construction cost estimates.

The TKMS design can carry 2 CH-148 (S-92) medium helicopters, and has less fuel capacity than the Protecteur Class, but useable fuel is closer. It seems that the Protecteurs can’t transfer their full payload without creating stability challenges, and their single-hull design’s days are numbered by maritime rules. ThyssenKrupp Marine Systems designs show a pair of MK-15 Phalanx systems mounted for defense, 1 forward and 1 aft.

TKMS will prepare the detailed design package for Vancouver Shipyards Co. Ltd to review in preparation for actual production, and part of that process will involve definition contract negotiations between Vancouver Shipyards Co. Ltd. and the Canadian government. Once these steps are complete, Canada will acquire the license for the ship design, allowing in-country production and support. Canada DND | Canada DND added background | Navy Recognition | TKMS concept: ship 3-view.

TKMS Berlin Class picked

Feb 22/13: The Canadian government offers a C$ 15.7 million trickle of contracts to Seaspan’s Vancouver Shipyard, in British Columbia. The money will be used to assess the Joint Support Ship design options, review the future CCGS John G. Diefenbaker polar icebreaker’s design, refine the design and specifications for the offshore fisheries science vessel, and produce plans for construction, material, subcontractors and labor. STX Marine is acting as the shipyard’s design partner. Public Works Canada | Seaspan Shipyards [PDF] | MarineLog.

Seaspan study contracts

Feb 13/13: JSS & inflation. Opposition parties draw attention to the 2.7% inflation rate being used to cost the “C$ 2.6 billion” Joint Support Ship project, and to an internal DND audit that cites 3.5% – 5.0% as the norm for the shipbuilding industry. American defense planners have been known to use even higher figures. Public Works Minister Rona Ambrose defends the estimate as coming from their usual process, but doesn’t explain the deviation from industry norms.

Over the course of a long project, the difference can add up to tens or even hundreds of millions of dollars. Which means either higher defense spending, cuts to the project, or cancellation of other projects. Higher defense spending is unlikely any time soon, and it’s hard to cut a 2-ship project. The situation could become even worse if other NSPS projects pick up the same flawed estimate, but the inflation rate issue is likely to surface again later in 2013, when the Parliamentary Budget Office tables their report on the JSS program. Canada.com

Feb 13/13: Out of action. Canada.com reports:

“National Defence reported late last year that biggest challenge facing the navy in 2012 was when its two support ships, the HMCS Protecteur and Preserver, went into maintenance at the same time…. because of their absence in late 2011 and early 2012, the navy was forced to turn to allies for help replenishing other Canadian vessels at sea until the re-supply ships came back online.”

Both oilers down

2010 – 2012

Canada launches 2nd JSS attempt, which sinks. Try plan #3?

HMCS Preserver
(click to view full)

Dec 6/12: PBO denied. Parliamentary Budget Officer Kevin Page is denied when he asks to see the winning NSPS shipyard bids, as part of a study examining the financial implications of the Joint Support Ship, and a similar effort focused on Canada’s project to build Arctic patrol vessels. From Canada.com:

“Public Works has provided PBO with some information related to the national shipbuilding strategy, including a number of agreements and reports related to Seaspan’s Vancouver Shipyards for the resupply ship study…. In a letter to Page dated Dec. 3, d’Auray indicated the winning bids were not relevant to the PBO study because they “do not stipulate awarding contracts, and the bidders were not asked to submit cost estimates for any of the vessels.”

Oct 19/12: Infrastructure. Part of the NSPS involved meeting a “target state” level of efficiency, as set by First Marine International standards. The ability to reach this state, and to finance the required upgrades, was an important part of the bidding process. Along those lines, Vancouver Shipyards holds a ground breaking ceremony as part of their C$ 200 million infrastructure investment: 4 new fabrication buildings, a shipbuilding gantry crane, and a load out pier.

While the government touts the investment as having “no cost to Canada,” Costs will be passed through one way or another. Especially when the shipyards in question are now sole-source bidders. The more likely result is that they’ll soak the provincial government for most of the funds, as their east coast counterparts at Irving did. Government of Canada

March 8-12/12: JSS Plan #3. Canada has moved forward with a new JSS approach, awarding relatively small design contracts for a custom JSS design from BMT, and a modified off-the-shelf Berlin Class design. Canada intends to pick a winner, and then license the design for construction in Canada.

BMT Fleet, who designed Britain’s new 37,000t MARS fleet tankers and supply ships, is awarded a 12-month, C$ 9.8 million design project to further develop their Contract Design as a JSS option. They have already done a JSS Preliminary Design under earlier contracts, and have been supporting the JSS project since December 2002 through a series of individual taskings issued under an Engineering, Logistics, and Management Support (ELMS) Services Contract. These have included a broad range of engineering and design studies.

At the same time, ThyssenKrupp Marine Systems has won an undisclosed contract to modify their Berlin Class Task Group Supply Vessel (EGV) to meet Canadian requirements. The modified design will be developed by ThyssenKrupp Marine Systems Canada (TKMSC) and TKMS subsidiary Blohm + Voss Naval. If the modified Berlin Class EGV design is chosen, it would be followed by a functional design contract, and those designs would be licensed for construction by a Canadian shipyard. This design contract includes initial provisions for a licensing agreement to that effect. Blohm + Voss | BMT Fleet.

New JSS approach, initial design contracts

Nov 4/11: HMCS Preserver crash. As it prepares to return to service following a C$ 44.7 million refit, HMCS Preserver hits the floating drydock at Irving’s shipyard in Halifax, NS. The drydock now has a hole, and the ship’s hull is reportedly dented above the water line.

The incident underscores the vulnerability of Canada’s fleet to problems with existing supply ships, and the importance of the future JSS. Until HMCS Preserver is returned to service, HMCS Protecteur will remain Canada’s only supply ship. Which it did – until it had to go in for repairs in 2012, leaving Canada with nothing. CBC | Global TV News | Ottawa Citizen’s Defence Watch.

HMCS Preserver crash

Oct 19/11: Trouble. The National Post reports that the JSS program has hit a major block:

“Defence sources said it is in trouble because two companies competing to design the new ships – ThyssenKrupp Marine Systems of Germany and Navantia S.A. of Spain – are backing away from the bidding process. It is understood that the government is not prepared to pay their asking price and is likely to turn to a domestic Canadian design being prepared by engineering support contractor BMT Fleet Technology of Kanata, Ont. None of the competing companies responded to requests for comment Tuesday… One Defence insider said the JSS problems reflect a lack of experienced procurement staff. “This is so depressingly Canadian – you go out to bidders, you indicate an interest in designs, you load on extras and then say ‘no, thank you.’ It could set us back another five years,” he said. The new supply ships were due to be in service by 2017 but sources say that deadline is unlikely to be met now.”

Bidders not playing

Oct 19/11: NSPS. Tim Colton’s Maritime Memos was right, it took just over a year from Canada’s government to announce the obvious. In their partial defense, there was a May 2011 election in between, and at least they didn’t pick an obviously disastrous political choice for the 20-30 year, C$ 33 billion program.

On the west coast, Seaspan subsidiary Vancouver Shipyards Co. Ltd. in North Vancouver, BC wins the C$ 8 billion non-combat portion. They will build the 2-3 Berlin or Cantabria derivative JSS support ships, 4 off-shore science vessels for the Coast Guard, and a new polar icebreaker, for a total of 7-8 ships, worth about C$ 8 billion. Despite the JSS’ long-running competition, and the fleet’s need, the 3 off-shore fisheries and 1 oceanographic science vessels will be the first ships built. Other team members include and Alion Canada (design), CSC (logistics), Imtech Marine (ship systems), STX Canada Marine (design), and Thales Canada (ship systems).

There are 2 caveats worth noting. One is that the projects will involve 100% value industrial offsets, which matters because many ship systems and components, especially combat-related equipment, will come from outside Canada. The other is that the government can take over the shipbuilder if it signs up for NSPS, and then defaults on contractual obligations (vid. Part 3, Section 5.2). Read “Canada’s National Shipbuilding Strategy” for full coverage.

NSPS shipyards designated

Oct 8/10: NSPS. Public Works Canada announces the results of their initial shipbuilding strategy Solicitation of Interest and Qualification. One yard will be selected to build combat vessels, while a 2nd yard will build non-combat vessels. Five Canadian shipyards have been short-listed. Read “Canada’s National Shipbuilding Strategy” for full coverage.

Oct 8/10: RFI. Canada’s MERX government procurement board posts solicitation W8472-115312/A. It says the government has approved a new approach, restricted to “adapting the designs of recently built naval fleet replenishment ships that are operating with other NATO Navies.”

It then narrows the contenders down to ThyssenKrupp Marine Systems’ Berlin Class, and Navantia S.A.’s Cantabria Class. The process will begin by ordering risk reduction studies to cover adapting these designs to meet Canadian requirements, provide historical costs of building, and deliver a proposal that includes a data package and technology transfer agreement so a Canadian shipyard can build and support the ships. If one of these designs is selected for the JSS, Canada will amend the contract with that designer to implement its proposal.

RFI for v2.0

July 14/10: JSS, Take 2. Canada’s Department of National Defence (DND) issues background materials concerning a second attempt at the JSS project. Specifications are very, very thin. The second go-round is listed as a C$ 2.6 billion project, though currency strength would offset some of the $300 million reduction. So would the revised plan of buying 2 ships, with an option for a 3rd.

Canada’s proposed shipbuilding strategy fits into the plan, but a construction bid can’t be expected before 2012 at the earliest. The mission description is close to meaningless, and will remain so until tradeoffs are specified among these capabilities, and exact requirements become clearer:

“The primary role of the JSS will include supply of fuel, ammunition, spare parts, food, and water. The JSS will also provide a home base for the maintenance and operation of helicopters, a limited sealift capability, and logistics support to forces deployed ashore… the [current] definition phase, will involve the assessment of both new and existing designs. Existing ship designs are those already built, operating, and meet key specific Canadian requirements. A new ship design is being developed by government and industry officials working side-by-side… The design is expected to be available in approximately two years, at which time a Canadian shipyard, selected as part of the National Shipbuilding Procurement Strategy, will be engaged to complete the design of and build the Joint Support Ships.”

See: Backgrounder | Release.

2nd JSS procurement attempt begins

June 3/10: NSPS. Canada announces a new shipbuilding strategy:

“Two shipyards will be selected to build the large vessels (1000 tonnes displacement or more)… process, led by Public Works and Government Services Canada (PWGSC)… will result in the signing of formal agreements establishing a long-term relationship between each yard and the Government of Canada. The negotiation and signing of umbrella agreements with the successful shipyards is expected to occur in the 2011-2012 timeframe.

One shipyard will be selected to build combat vessels. This will enable the procurement of the Canadian Surface Combatant [CSC frigate/destroyer replacement] and Arctic/Offshore Patrol Ships (AOPS)… Another competitively selected shipyard will build non-combat vessels, such as the Joint Support Ships (JSS)… Shipyards among those not selected for the building of large vessels may be engaged in the building and support (maintenance, refit, and repair) of the approximately 100 smaller vessels included within the strategy. Maintenance, refit, and repair of the Navy’s fleet represent some [C$] 500 million annually.”

Now it has to start picking winners, and approving programs. Major ministry participants include Defense, Public Works, and Fisheries & Oceans. Plus Industry Canada. Not a recipe for speed. DND release | Public Works | Coast Guard.

National shipbuilding strategy announced

Jan 18/10: Dutch JSS. The Dutch go ahead with their own multi-role “Joint Logistics Support Ship” program, with a budget of EUR 385.5 billion for 1 ship. Could this represent a JSS contender if the project resurfaces?

2006 – 2009

JSS program launched, contracts signed, then program canceled.

JSS v1.0
(click to view larger)

April 13/09: Rust-out. Canadian Broadcasting Corporation News obtains copies of the Canadian Forces’ 2009-2010 Maritime Staff Capability Plan, in which navy Commodore Kelly Williams warns that maintaining the Navy’s existing 40 year-old supply ships will be problematic:

“Maintaining the obsolescent tankers is costly and will put further pressure on the already constrained [repair budget] and further delays in the mid-life refit for Halifax class [frigates] which will lead to rust-out…”

“Rust-out” is caused by repeatedly sanding warships, which leads to hulls becoming thinner and more fragile. CBC News quotes Liberal Party (official opposition) Senator Colin Kenny, who chairs the Senate’s standing defence committee, is highly critical of the program, which was begun under one of his own party’s governments:

“The navy only asked for three [ships] when it knew it needed four,” he told CBC News. “But the costs have come in that there’s only enough money for two. And if Mr. MacKay thinks things are on track, he really doesn’t know what’s happening.”

April 2/08: The Ottawa Citizen publishes an op-ed, “Celebrating a robust navy with an uncertain future.”

Aug 22/08: JSS – The End. Canada’s Ministry of Public Works and Government Services announces the termination of the JSS program:

“After receiving and evaluating the mandatory requirements for the Joint Support Ship Project from the bidders, the Crown has determined that the proposals were not compliant with the basic terms of the Request for Proposals (RFP). Among other compliance failures, both bids were significantly over the established budget provisions… The Department of National Defence and the Department of Fisheries and Oceans are currently considering the next steps. The government is committed to procure, repair and refit vessels in Canada according to the government’s Buy Canada policy.”

The Hill Times was blunt, as it offered more background details:

“According to industry insiders, both design teams were unable to come up with a ship design under-budget. Although details are tight, officials say one team submitted a blueprint for two vessels [instead of 3], while the other sent in a plan for three, which was way over budget. In other words, industry has sent a strong signal to Ottawa – either increase the funding or scale down the project.”

The government’s decision left the Canadian navy’s future ability to operate independently at risk. HMCS Preserver and HMCS Protecteur were expected to reach the end of their service life between 2010- 2012, but the failure of the JSS concept means that it will be very difficult to build replacement ships before that date. Meanwhile, HMCS Preserver is headed into dock to have its boiler system repaired, just 2 years after the last repair. Those systems are an ongoing risk, as the Canadian Press explains:

“An undated briefing note, leaked to The Canadian Press over the weekend, show the navy was bracing for the blow… “If the Protecteur and Preserver are going to be needed longer than expected, we will also determine what needs to be done to keep our supply ships safe, operational and available until they can be replaced… Many of their systems are nearly obsolete, such as the boilers they use to generate steam for main propulsion. As you might expect, it’s becoming increasingly difficult and costly to maintain these ships. Spare parts are no longer readily available, and the skills needed to operate and maintain systems that were already mature in the 1960s are becoming increasingly rare.”… Beyond basic mechanics, marine engineering designs and environmental laws have become more complex over the last 40 years. The navy’s two supply ships are single hull designs…”

See also: The Hill Times | Globe & Mail | Canwest News Service | Canadian Press | CBC.

JSS terminated

Aug 3/08: The National Post reports that discussions have begun with Dutch shipbuilders, in the wake of serious problems with the JSS bid. The Netherlands builds the highly-regarded Rotterdam Class LSDs – but political friction is building around the prospect of contracting for shipbuilding outside Canada. Even though…

“This year, the federal government determined that proposals from two Canadian consortiums earmarked to build the new fleet were “noncompliant.” Defence officials were told the Joint Support Ship budget was not enough to build the three vessels envisioned and attempts to obtain more funding from the government have been unsuccessful.”

See Apendix A, which discusses why this outcome could have been, and was, predicted long in advance. Meanwhile, Conservative Party Defence Minister Peter MacKay’s press secretary Jay Paxton is attempting to douse the flames of controversy regarding the Netherlands visit:

“Although the director-general of major project delivery land and sea was in Europe on other business, he had a chance to meet with government representatives from the Netherlands who are undertaking a similar project and they compared best practices in the context of an update on their project.”

May 19/08: The Ottawa Citizen reports problems with the JSS program:

“The $2.1 billion set aside for buying three Joint Support Ships is not enough, defence officials confirm. They point out that part of the problem is the new vessels would conduct missions far beyond the scope of re-supplying warships at sea, the role now done by the decades-old Protecteur-class ships… There is no similar type of ship in the world, as most navies use two types of vessels to perform the distinct roles.

Defence officials have heard from industry that the money set aside by the government might be enough for two ships, not three.”

Nov 24/06: Phase 2 contracts. The Phase 2 Project Definition contracts have been awarded. Teams led by ThyssenKrupp Marine Systems Canada Inc. and SNC-Lavalin ProFac Inc. were selected, receiving identical contract of C$ 12.5 million (US$ 11 million). Irving Shipbuilding and BAE were eliminated. Each team will now have 14 months to develop a preliminary system specification, and a proposal for project implementation. A winner will be selected in 2008, and delivery of the first ship is planned for 2012. See MarineLog report.

Phase 2 definition contracts

June 26/06: JSS announced. Liberal Party Minister of National Defence Gordon O’Connor, Minister of Public Works and Government Services Michael Fortier and Chief of the Defence Staff General Rick Hillier announce the C$ 2.9 billion Joint Support Ship project for Canada’s Navy. This project includes a base cost of C$ 2.1 billion, plus an estimated C$ 800 million in contracted in-service support over 20 years. DND Backgrounder | DND Release.

Joint Support Ship program announced

Appendix A: The JSS v1.0 Procurement Process

JSS concept
(click to view larger)

Here’s how the three-step process announced by Paul Martin’s Liberal Party government in 2006 was expected to work:

Four industry teams were pre-qualified to compete for the contract. A request for proposals, to be issued shortly, will trigger the process to select two industry teams for the project definition phase.

The second phase, Project Definition, would see 2 qualified consortia selected from among the qualifying proposals. These two consortia will each be awarded a C$ 12.5 million contract to produce and deliver an implementation proposal consisting of a preliminary ship design, a project implementation plan, and an in-service support plan. These proposals will be evaluated on the basis of compliance and the proposal demonstrating the best value, taking into consideration technical merit and total ownership cost, will be selected as the winner.

The final phase, Project Implementation, will see the winning bidder awarded two separate but inter-related contracts. The first will be for the completed design for and construction of the Joint Support Ships. The second will be for the in-service support for the life of the vessels. Delivery of the first ship is targeted for 2012.

The expected overall project cost for the JSS includes a base cost of C$ 2.1 billion (USD $1.87 billion), plus an estimated C$ 800 million (USD $712 million) in contracted in-service support over 20 years. Industry teams were led by:

• Irving Shipbuilding
  
• BAE Systems (Project) Limited (BAE Systems Naval Ships)
  
• ThyssenKrupp Marine Systems AG
  
• SNC-Lavalin Profac Inc.

A list of the required capabilities could be found in the Canadian government’s detailed 2006 release. Supply functions, medical care, repair facilities, self-defense, roll-on roll-off, lift-on lift-off helicopter operation, ice capabilities, deck space for vehicles… the list goes on. All in a 200m/ 28,000t ship:

• The provision at sea of fuel, food, spare parts, and ammunition. Goal is to enable a Naval Task Group to remain at sea for up to 6 times longer than would be possible without these ships;
  
• Afloat support to Canadian forces deployed on shore;
  
• The ability to navigate in first-year arctic ice up to 0.7 m thick;
  
• 20 knots sustained speed;
  
• A covered multi-purpose deck space for vehicles and containers with space for additional containers on the upper decks. Total of 1,000 – 1,500 lane meters desired on upper and lower decks;
  
• Ability to carry 7,000t – 10,000t of ship fuel,650 – 1,300t of JP-5 naval aviation fuel, and 1,100 square meters of ammunition.
  
• The operation of 3-4 maritime helicopters per ship, with rapid reconfiguration possible should the ship wish, for example, to use its hangars for evacuated disaster survivors;
  
• Roll-on Roll-off (RO-RO) of cargo;
  
• Lift-on Lift-off (LO-LO) of cargo.

Other capabilities would include:

• The ability to function as a Joint Task Force HQ
  
• Work and living space for additional personnel, over and above the standard crew of up to 165 people;
  
• Modern medical and dental care facilities, including an operating room for urgently needed operations;
  
• Repair facilities and technical expertise to keep aircraft and other equipment functioning; and
  
• The ship will be configured with both active and passive self-defence systems

The new Conservative Party government kept the JSS program, and followed the competition procedure to narrow the contest down to just 2 bidders: ThyssenKrupp Marine Systems AG, and SNC-Lavalin Profac Inc.

In the end, however, the specifications, design, and budget simply could not be made to agree. The JSS project is currently in limbo. A solution is required, and soon, but successfully executing one demanded a rethink of the project’s main premises.

Surprisingly, the project got exactly that. The next iteration featured an overarching national shipbuilding strategy, and a specification set that scrapped the multi-role requirement in favor of a slightly-modified variant of a serving NATO support vessel.

Appendix B: DID Op-ed/Analysis (June 30, 2006)

HMAS Collins launch
(click for alternate view)

Candidly, the record for small to mid-size powers attempting to develop new military technologies is not all that good. Engineering is a challenging art at the best of times, and military projects are more demanding than most because of the myriad of parts to integrate and the advanced (and hence often new and unproven) nature of the technologies. Add local unfamiliarity into the mix, and the result is inevitably schedule slips and cost overruns – often significant slips, and major cost overruns.

Given the limited procurement resources of small to medium powers, such projects can easily threaten to swallow entire service procurement budgets. Cancellation means millions or even billions of dollars has been flushed down the toilet. On the other hand, continuing the program may break one’s military as other areas are starved to pay for it – all with no guarantee of success.

Australia’s Collins Class subs, for instance, are excellent vehicles. Yet cost overruns have measured in the hundreds of millions, remediation is not yet finished, and the schedule for full deployment has slipped by years. All for vessels of a well-understood ship type, based in part on a pre-existing class (Sweden’s Gotland Class), and built in cooperation with an experienced, world-leading firm in submarine technology.

Overall, the Collins Class is an example of a successful local to medium power project to develop an advanced military platform despite previous inexperience.

Canada’s Joint Support Ships, in contrast, conform to no known ship type in their breadth of required functions, and are based on no pre-existing class. The firms competing for the design are not world leaders in similar ship classes like amphibious assault ships or LPDs. Nor does the depth of Canadian design and build experience in related efforts give cause for optimism; quite the reverse. Indeed, the JSS’ breadth of functions alone suggests a difficult project for any entity or country to undertake, and little hope of much beyond mediocrity in all functions due to the required trade-offs.

The Canadian Forces may succeed in the end, and if DID would be happy to apologize. Indeed, we would be pleased to run an article here explaining why they believe they can succeed, and what steps they have taken to address their approach’s inherent risks and performance trade-offs.

For the project’s critics appear to have the high ground when they suggest that JSS is set up to become a budget-eating failure, and recommend that Canada replace the unwieldy JSS idea with a conventional oiler or two plus a few HSV rapid deployment vessels like the ones the USA is gravitating toward. Or recommend the LPD-17 San Antonio Class amphibious support ship as an alternative. Or even recommend a larger number of smaller Dutch/Spanish Rotterdam Class LPDs, plus the USA’s versatile new T-AKE supply ships.

Those kinds of risk reduction strategies would leverage successful R&D efforts, and spend more money on cutting steel and floating boats. As opposed to pursuing paper visions that risk sucking up vast resources and producing inferior products – or no products as all.

Additional Readings Canada’s NSPS and the JSS

• DID – Canada’s National Shipbuilding Strategy.

• Canada DND, via WayBack – Joint Support Ship (JSS).

• Canada DND, via WayBack – Internal Audit of Joint Support Ship (JSS) Project.

• Canada DND, via WayBack (July 14/10) – Canada Begins Joint Support Ships Procurement for the Canadian Forces.

• Canada DND (July 14/10) – Government of Canada to Acquire New Joint Support Ships.

• Canada DND, via WayBack (June 26/06) – Backgrounder: ‘Canada First’ Defence Procurement – Joint Support Ship.

• Canada DND, via WayBack (June 3/10) – The Department of National Defence and the Government of Canada’s National Shipbuilding Procurement Strategy.

• Seaspan for NSPS – Promo by the company, which eventually won the non-combat portion.

• Naval Technology – Berlin Class Fleet Auxiliary Vessels, Germany.

Related Ships

• Royal Canadian Navy – Supply ships; see also Tech Data. Protecteur Class, now retired; 2014 snapshot.

• Wikipedia – Protecteur class auxiliary vessel.

• BMT Defence – Aegir: A family of naval task force support ship designs. The alternative to the Berlin Class for JSS.

• DID Dutch Order Multi-Purpose Support Ship. A 28,000t JSS, similar to Canada’s original multi-role conception, and ordered in 2010. The Netherlands was going to sell it on completion, but decided that it was too valuable; HNLMS Karel Doornan is expected to be commissioned in 2015, at a cost of around $500 million.

• DID – Britain’s Tide Class: Supplies are From MARS. Britain ordered a larger 37,000t Aegir Class variant, built in South Korea, which will cost about 1/5 as much per ship as Canada’s smaller vessels.

• Navantia S.A. – AOR Cantabria. Was in the mix at one point, alongside the Berlin Class.

• Naval Technology – Patino Class Auxiliary Oiler and Replenishment Ship, Spain.

• Naval Technology – LPD Rotterdam Class Landing Platform Dock, Netherlands. A less ambitious, less expensive, and much more successful effort to create an amphibious forces ship.

• New Zealand Navy – HMNZS Canterbury – L421. New Zealand has its own, smaller multi-role ship design, which combines transport and some minor patrol tasks. The vessel was built by Merwede Shipyard in the Netherlands, under subcontract to Tenix. Unfortunately, it has stability issues.

News & Views

• CASR, via WayBack – BG Comparison – Joint Support Ship (JSS) Project – AOR or LPD. Includes an excellent comparison of the proposed JSS specifications with several existing ship classes – including the Dutch Rotterdam Class LSD.

• CASR (July 2014) – Bailing out NSPS: A National Shipbuilding Procurement Strategy Fix. Part of which is simply contracting JSS abroad.

• CASR (December 2011) – Backgrounder: Joint Support Ship ( JSS ) Project – Now an AOR. Includes a table with the Berlin Class, Cantabria Class, JSS 2006 specs, and Aegir 26R.

• Frontline Defence (April 2010) – Canada’s JSS: Trendsetter …Follower …or Trap?

• Canadian Forces College (May 27/09) – Partnership, Balance and Flexibility: A Model for A Sustainable Naval Shipbuilding Sector in Canada. By Lieutenant-Commander John Charlebois.

• National Post (June 20/08) – J.L. Granatstein: Canada needs a navy that can do the job.

• Canadian Conference of Defence Associations (Nov 19/08) – Military/Naval Procurement in Canada: A Flawed Process [PDF] by Commander (Ret’d) Ken Bowering.

• Ottawa Citizen: David Pugliese Defence Watch Blog, via WayBack (Sept 2/08) – Navy Talking Points for Joint Support Ship.

As talks between the US and the Taleban move forward, we are starting to see the contours and obstacles to peace in Afghanistan. One of the possible obstacles to reaching an agreement is the Taleban’s view that Afghanistan’s current constitution is unsuitable and unacceptable. Ghizaal Haress, a prominent Afghan lawyer and a member of the Independent Commission for Overseeing the Implementation of the Constitution, takes a closer look at the Taleban’s position and discusses how this relates to the realities of Afghanistan’s constitution and how it was arrived at.

During the February meeting in Moscow, Taleban representative Sher Mohammad Abbas Stanikzai highlighted the constitution of Afghanistan as a major impediment to peace. He labelled it “the constitution of the Kabul Administration” and dismissed it as invalid, copied from the West, imposed on a Muslim society, and arbitrarily implemented. According to the Taleban, for the constitution to be acceptable to them it must be based on Islamic principles, national interests and historical achievements. It must also ensure human dignity, national values, social justice and human rights, as well as guaranteeing Afghanistan’s territorial integrity. The draft of such a constitution, he added, should be prepared by autonomous Afghan scholars in an atmosphere of freedom.

As a commissioner on the Independent Commission for Overseeing the Implementation of the Constitution, I would be the first to acknowledge that Afghanistan’s constitution has numerous shortcomings and challenges to its implementation. However, I believe, the Taleban are wrong on multiple counts regarding the Afghan constitution. I will argue below that the constitution is in fact a constitution of the Afghan People, that Islamic principles have been written into the very fabric of the document, and that what the Taleban consider its vagueness, in fact provides necessary flexibility for interpreting and adapting the document. I finally make the case that rather than discarding this historical achievement, it would be much better to find ways to bridge our political differences within the framework of the current constitution.

A constitution of the Afghan people

The constitution of 2004 is in many ways unique compared to all its predecessors. With the exception of the constitution of 1964, all previous Afghan constitutions were drafted as a result of regime change, and were used to consolidate the power of the new ruler. Public participation was a missing element in the formulation of all these constitutions, with the Jirgas that approved them being mostly appointed. These constitutions were thus made and endorsed by a circle of people close to their rulers, without the involvement or consensus of the wider population. Therefore, these constitutions did not endure when these regimes changed, as the people – often disillusioned – saw them as the tools of failed administrations, rather than a constitution by and for the people.

In this long view, the 2004 constitution cannot simply be seen as “of the Kabul Administration”, since its formation between 2002-2003 was the most rigorous and consultative in the history of Afghanistan. The process, outlined in the Bonn Agreement, was led by Afghans. The process took 18 months and was led by two commissions – the Constitutional Drafting Commission and the Constitutional Review Commission – comprised of Afghan experts (with 9 and 35 members respectively) that drafted and reviewed the draft constitution. It included travel to the then-32 provinces, and two neighboring countries (Iran and Pakistan) to consult with the Afghan diaspora and an electoral college of 19,000 people. They, in turn, elected 502 Loya Jirga members who discussed and approved the constitution. This makes it one of the earliest and biggest achievements of the post-2001 generation.

An informal men’s caucus at the 2003/04 Constitutional Loya Jirga. Photo: Thomas Ruttig/2003

The Constitutional Review Commission, over the course of two months, managed to run an unprecedented public consultation. As described in this UN Report, the commission initiated the public consultation after a month-long awareness campaign on the role and importance of the constitution. The report indicates that “178,000 Afghans, 19 per cent of whom were women, participated in more than 556 meetings to discuss the draft. In addition, over 50,000 written surveys were submitted.” According to the International Crisis Group, the commission solicited views of people from various backgrounds and walks of life, including “elders, ulema (Islamic scholars), women, business groups, youth groups, Afghan employees of NGOs and international organisations, and former Emergency Loya Jirga delegates.”

The public consultation process also included institutions and individuals taking the initiative to present their recommendations and concerns to the constitution-making entities. In 2003, hundreds of institutions and associations, as well as numerous individuals, presented written submissions to the Commission. I remember how my office at the time, Global Rights, facilitated a process whereby a group of 40 judges, lawyers and prosecutors held several discussions, and then presented their collective views to the Constitutional Review Commission.

Public participation has many strategic advantages. I would, however, like to focus on two in this piece. First, participation and consultation reinforce the legitimacy of the constitution as “the people’s constitution.” Second, they lay the foundations for the acceptance and respect of the prospective constitution by citizens. Thus, public consultation empowered the Afghan people to engage in the making of their constitution and allowed them to participate in the public affairs of their war-torn country. This enhanced the legitimacy of the document, ensured its broad consensus and endurance and left less space for grave disagreements in the years to come.

The implementation of the public consultation faced a number of challenges (as described in the ICG report), including inadequate public education, the absence of a draft constitution during the consultations, and uncertainty around the use and incorporation of the comments into the final draft. Nevertheless, despite minimal experience, resources and the availability of technological facilities, the process was kept open to recommendations and submissions, and the commission reached out to a vast number of Afghans, as well as the diaspora in Iran and Pakistan, and brought back common insights and concerns to the commission in Kabul. The Commission may not have had time to process all the data or to systematically use it in the final draft, but the fact that the commission reached out to people, and was accessible to all citizens, made it an inclusive and participatory process that was broadly hailed by the Afghan people.

Islam in the Afghan constitution

The Taleban claim that the constitution is not based on the principles of Islam; however, Islamic principles and values are written into the fabric of the constitution. The very first two articles of the constitution define Afghanistan as an Islamic Republic and recognize Islam as its religion. Article 3 proscribes laws that contravene the tenets and rulings of Islam in Afghanistan. (1) Articles on education require the state to focus on developing religious teachings, regulate and improve religious institutions, including mosques, and devise educational curricula that includes the tenets of Islam. (2) The constitution requires presidential, and vice-presidential candidates to be Muslim, and to obey and protect the religion of Islam. (3)

On the judicial front, the constitution requires members of the Supreme Court to ensure justice in accordance with the tenets of Islam. It also obligates judges to apply provisions of Hanafi or Shi’a jurisprudence (as applicable) while deciding on cases, in the absence of relevant provisions in the Constitution or other laws. (4) The constitution guarantees the right to form political parties, but prohibits their manifesto or charter to contravene the religion of Islam. (5) The combination of these provisions enshrines Islam as the bedrock of the state.

An Afghan or a western document?

The Taleban’s claim that Afghanistan’s constitution has been copied from the West is part of a wider view that often dismisses the progress of the last fifteen years as “western” in nature. This argument is often presented without much rigour and, for the 2004 constitution in particular, the argument does not hold. The 2004 constitution drew heavily on the 1964 constitution, so much so that it created disputes within the drafting and review commissions, with some arguing that Afghanistan should adopt more modern constitutional provisions, rather than going back to a constitution adopted 40 years before. The structure and powers of judiciary and parliament, as well as the fundamental rights provisions, all have strong similarity in content and wording with the 1964 constitution.

Western influence and cooperation

While I claim that the constitution was Afghan-made and led, it can be argued that this was offset by the fact that there was considerable international influence and cooperation in the process. Decades of war and political turmoil in the country, particularly between 1992 and 2001, had left Afghanistan devastated. The state’s institutions and infrastructure were largely destroyed, poppy had become the main cash crop and a major driver of the nation’s economy, formal legal and judicial institutions became dysfunctional, and women were systematically denied their basic human rights.

Given how the country was left shattered in 2001, there was great need for international support, as recognized by both Afghans and the administration of the time, to rehabilitate state institutions and begin processes for social and political development in the country. Without international support, the broad-based constitution-making process would never have been realised. While in an ideal situation, Afghans would have wished to see the process solely handled by Afghans, dependency on foreign aid left Afghanistan reliant on donor countries.

Notwithstanding the claims of intervention in the process, there is little evidence of direct international influence in the substance of the constitution, particularly none that goes against accepted social and religious norms. For instance, during the drafting of the Afghan constitution there were international technical advisors, but their role was minimal. The Afghan members paid little attention, if at all, to their international and comparative expertise, as they wished to maintain Afghan ownership of the process. One of the advisors, Professor Yash Pal Ghai, an internationally renowned constitutional lawyer from Kenya, who I met in 2015 in Budapest, told me how underutilized he had been at the commission. The commission and its leadership largely ignored the discussion papers that were written by Ghai and his international colleagues.

Fundamental rights

One of the issues that the Taleban particularly tend to associate with the influence of the international community is the issue of human rights. It is true that there were efforts by the international community to ensure that the new constitution would safeguard fundamental rights. However, in view of the widespread violations of human rights and women’s rights in the period before 2001, this was obviously not a purely international concern. A large number of national organisations, including the members and secretariat of the Constitutional Review Commission, were heavily involved in demanding better protection of fundamental rights, particularly those of women and minorities. It would be unjust to argue that human rights were only a concern of the international community and that Afghans did not voice their concerns after decades of violations of their rights.

Women delegates sat separately during the the Constitutional Loya Jirga of 2003/04 (left to right: Suraya Parlika, unknown, Massuda Jalal). Photo: Thomas Ruttig/2003

One should also look back at the previous constitutions of Afghanistan, and assess the scope of fundamental rights. Starting from the constitution of 1923, every subsequent constitution in Afghanistan has had provisions with regard to fundamental rights. For instance, the constitution of 1923, among others, upheld the equal rights and obligations of Afghan citizens, guaranteed human liberty and abolished slavery, guaranteed freedom of the press, and prohibited torture. Furthermore, Afghanistan, as a member state of the United Nations, had international obligations with regards to the rights and liberties of its citizens.

Listing the specific rights enshrined in the constitution and discussing how they reflect the realities, history and obligations of Afghanistan with regard to its international commitments, is beyond the scope of this article. However, it is noteworthy, that these fundamental rights were not imposed on Afghans, but were rather reinforced, in response to past systematic violations and breaches.

It is also important to note that constitutions serve as the guarantors of fundamental rights, and not as the imposers. It is for citizens to decide how they wish to enjoy and practice these rights. In other words, the constitution guarantees citizens’ rights, but does not inflict them on them. As an example, a citizen’s right to vote is guaranteed by the constitution, to ensure that the government does not deprive the person of this right. However, the citizen has the freedom to choose whether to exercise this right or not.

On the other hand, the Afghan constitution explicitly recognises its own supremacy over international treaties and covenants, and requires their conformity with the constitution. (6) International scholars as well as a body of literature have repeatedly pointed out the constitution’s weakness of provisions on international law, and its lack of strong provisions to ensure Afghanistan’s commitments to its international obligations. The Islamic provisions of the constitution, in contrast, are much stronger than those on international law and human rights: where the former has received extensive attention, the latter has not. The constitution thus presents moderate language on international treaties and human rights documents, and requires the state to ‘observe’ them, as compared to Islamic provisions that ‘obligate’ the state.

Vagueness or flexibility?

Where the Taleban claim there is vagueness in the constitution, I would argue that there is necessary flexibility. When constitutional drafters write constitutional provisions, they leave gaps and ambiguities, both intentionally and unintentionally. The latter is due to the inability of the drafters to foresee all possible scenarios that may arise in a constitutional regime. The former is to leave room for innovations and reforms; providing law makers with the ability to adapt to needs of the time. Constitutions also prescribe methods for amendments to be made where provisions are unclear, contradictory, need further details, or need to be changed.

There are indisputably ambiguities and gaps in the constitution of 2004. But it is not unique to Afghanistan. When the current constitution of the United States was drafted, it did not include any provision on fundamental rights. The rights of citizens were included in the US constitution through amendments.

The Afghan constitution describes three categories with respect to amendments. First, provisions that cannot be amended: the principles of Islam and Islamic Republicanism. Second, provisions that can be amended conditionally: amending fundamental rights of the citizen, on the condition that the intention is only to strengthen them. Third, the amendment of anyother provision with respect to new requirements of the time. (7) The constitution also presents the mechanisms for constitutional amendments, which would allow for the refinement of outstanding and significant ambiguities or points of contention.

A constitutional amendment process can be initiated at the proposal of the president or a majority of National Assembly members. In order to process the amendment, a commission will be established to prepare a draft proposal. The commission will have members from the government, National Assembly and Supreme Court. At the third stage, the Loya Jirga will be convened to approve the amendment (with a two-thirds majority). The amendments come into force after endorsement by the president.

Conclusion: Better to bridge political differences without discarding the constitution

The constitution making process was not perfect. There were flaws and shortcomings. Likewise, there are gaps and limitations in the substance of the constitution that have posed challenges to its implementation during the last 15 years. There have also been instances of violations and extra-constitutional acts. However, given how shattered the country was at the time, it was arrived at through an imperfect but democratic process. Like all other constitutions, the Afghan constitution reflects an ambition for its society to struggle towards, for its government to uphold, and for its citizens to be able to hold their governments to account. What matters most is the political will to uphold the constitution. In the absence of any commitment to the rule of law and constitutionalism, no constitution, however well-drafted, can help a government succeed.

A constitution may be written in the best way possible, but still not be implemented. The constitution of North Korea is a perfect example of a constitution that protects the rights of its citizens on paper, but not in practice. On the other hand, a constitution may be written with shortcomings and gaps, but if there is a political will to uphold the principles of constitutionalism, it can be best practiced.

What makes the Afghan constitution of 2004 different and worth retaining, is its inclusiveness. It combines and reconciles Islam, democracy, pluralism, human rights and social justice; a combination that is unprecedented in Afghanistan.

The Taleban say they envision a constitution based on Islamic principles, national interests, historical background, social justice, human dignity, and human rights. While these principles and values are explicitly enshrined in the Afghan constitution, the Taleban claim they are not. It is understandable that the Taleban would like to see changes in the constitution; however, the current constitution is open for amendment, in order to remain a living document and one that can respond to the emerging needs and demands of society.

There will remain deep ideological divisions within Afghanistan, regardless of our constitution. Our history shows that creating a new constitution will not solve this. It is important to note that people of different political backgrounds came together and agreed on this law, endorsed it, accepted it, and respected its provisions. In doing so, they built broad consensus and vested the highest level of legitimacy in the constitution, more than any legal document ever has in Afghanistan. Therefore, rather than throwing out this constitution and creating a new one, it would be better to find ways to bridge our political differences without discarding this truly historic achievement.

Ghizaal Haress is a commissioner of the Independent Commission for Overseeing the Implementation of the Constitution

 

(1) Article One. Afghanistan shall be an Islamic Republic, independent, unitary and indivisible state.

Article Two. The sacred religion of Islam is the religion of the Islamic Republic of Afghanistan. Followers of other faiths shall be free within the bounds of law in the exercise and performance of their religious rituals.

Article Three. No law shall contravene the tenets and provisions of the holy religion of Islam in Afghanistan.

The full text of the constitution can be found here:

(2) For articles on education see articles 43-46, in particular: Article Forty-Five. The state shall devise and implement a unified educational curricula based on the tenets of the sacred religion of Islam, national culture as well as academic principles, and develop religious subjects curricula for schools on the basis of existing Islamic sects in Afghanistan.

For religious education, see: Article Seventeen. The state shall adopt necessary measures to foster education at all levels, develop religious teachings, regulate and improve the conditions of mosques, religious schools as well as religious centers.

(3) Article Sixty-Two. The individual who becomes a presidential candidate shall have the following qualifications:

1. Shall be a citizen of Afghanistan, Muslim, born of Afghan parents and shall not be a citizen of another country;
2. Shall not be less than forty years old the day of candidacy;
3. Shall not have been convicted of crimes against humanity, a criminal act or deprivation of civil rights by court.

No individual shall be elected for more than two terms as President. The provision of this article shall also apply to Vice-Presidents.

Article Sixty-Three. Before assuming office, the President shall take, in accordance with special procedures set by law, the following oath of allegiance:

“In the name of God, Most Gracious, Most Merciful, I swear by the name of God Almighty that I shall obey and protect the Holy religion of Islam, respect and supervise the implementation of the Constitution as well as other laws, safeguard the independence, national sovereignty and territorial integrity of Afghanistan, and, in seeking God Almighty’s help and support of the nation, shall exert my efforts towards the prosperity and progress of the people of Afghanistan.”

(4) Article One Hundred Thirty. In cases under consideration, the courts shall apply provisions of this Constitution as well as other laws. If there is no provision in the Constitution or other laws about a case, the courts shall, in pursuance of Hanafi jurisprudence, and, within the limits set by this Constitution, rule in a way that attains justice in the best manner.

Article One Hundred Thirty-One. The courts shall apply the Shia jurisprudence in cases involving personal matters of followers of the Shia sect in accordance with the provisions of the law. In other cases, if no clarification in this Constitution and other laws exist, the courts shall rule according to laws of this sect.

(5) Article Thirty-Five. To attain moral and material goals, the citizens of Afghanistan shall have the right to form associations in accordance with provisions of the law. The people of Afghanistan shall have the right, in accordance with provisions of the law, to form political parties, provided that:

1. Their manifesto and charter shall not contravene the Holy religion of Islam and principles and values enshrined in this constitution;
2. Their organizations and financial resources shall be transparent;
3. They shall not have military or quasi-military aims and organizations; and
4. They shall not be affiliated with foreign political parties or other sources.

Formation and operation of a party on the basis of tribalism, parochialism, language, as well as religious sectarianism shall not be permitted. A party or association formed according to provisions of the law shall not be dissolved without legal causes and the order of an authoritative court.

(6) Article One Hundred Twenty-One. At the request of the Government, or courts, the Supreme Court shall review the laws, legislative decrees, international treaties as well as international covenants for their compliance with the Constitution and their interpretation in accordance with the law.

(7) Article One Hundred Forty-Nine. The principles of adherence to the tenets of the Holy religion of Islam as well as Islamic Republicanism shall not be amended. Amending fundamental rights of the people shall be permitted only to improve them. Amending other articles of this Constitution, with due respect to new experiences and requirements of the time, as well as provisions of Articles Sixty-Seven and One Hundred Forty-Six of this Constitution, shall become effective with the proposal of the President and approval of the majority of National Assembly members.

Article One Hundred Fifty. To process the amendment proposals, a commission comprised of members of the Government, National Assembly as well as the Supreme Court shall be formed by presidential decree to prepare the draft proposal. To approve the amendment, the Loya Jirga shall be convened by a Presidential decree in accordance with the provisions of the Chapter on Loya Jirga. If the Loya Jirga approves the amendment with the majority of two thirds of its members, the President shall enforce it after endorsement.

 

 

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