Mar 13, 2012
Center for Democracy and Civil Society

The Case for Afghan Justice

Like many others, I was shocked and ill when I heard about the massacre of 16 Afghan villagers by an American soldier on Sunday. While the horrific details have certainly been everywhere, little is known publicly about the killer, and even less about the military’s timeline for justice.

According to the AP, the suspect, a 38 year old unnamed Army sergeant, will “definitely” be tried in a U.S. military court. This is because of the bilateral status of forces agreement (SOFA) the U.S. has with Afghanistan. Per this SOFA, American forces are immune from arrest and detention by Afghan authorities and instead fall under the jurisdiction of U.S. military codes and the U.S. judicial system.

SOFAs are fundamentally important and necessary things. They’re part of a comprehensive security arrangement and can certainly be considered diplomatic agreements–in many cases breakthrough ones. They make occupation or operations within a country clear to both parties, and they establish specific rights to protect foreign personnel. They’re also commonplace, used by countries with a foreign presence like France, Australia, and Germany. It would be foolish to paint SOFAs in an imperialist light; they’re simply part of the rules of engagement.

But blanket immunity from arrest and detention granted by SOFAs are dangerous. The Army sergeant should be tried by an Afghan court, not a U.S. military court within Afghanistan. Relying on an immunity provision to ensure he is tried by Americans only aggravates the wounds of a paining government and populace; turning him over to the Afghan people would demonstrate American faith in Afghan institutions and grant the country a closure they could not achieve otherwise.

Handing over criminal American soldiers to host countries is not unheard of. Last year, after public outrage resulting from the acquittal of soldiers facing negligent homicide charges, American military authorities began allowing Korean courts to pursue litigation against U.S. soldiers. Three rape and arson cases have resulted in convictions; these soldiers are currently in Korean jails. Surely our relationship with South Korea is vastly different than our relationship with Afghanistan–I needn’t remind you that a certain one of these countries is among world’s most dangerous conflict zones–but the practice is far from incomprehensible.

Immunity provisions in SOFAs, by and large, are effective means to deal with the realities of occupation. But it is a shame that the military, by its nature, does not allow itself the opportunity adapt to complex judicial situations in different ways. In a war where we have so loudly proclaimed that we are out to win “Hearts and Minds,” why are we preventing ourselves from making strategic political decisions that could benefit us in the long run?

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2 Comments

  • The SOFA mentioned above only refers to acts which could possibly refereed to ICC, as this happened outside a military operation, it could be argued the crimes which occured do not fall within its scope as they were not war crimes but ordinary criminal acts.
    furthermore this SOFA does not prohibit the US to voluntary surrender American persons to Afghanistan, only forbids Afghanistan to surrender Americans to ICC or third countries which might surrender said US persons to the ICC .

  • That is useful information, thank you. I had read about the civil/military differentiation before and how that can impact who has jurisdiction over the accused. Contractors, for example, and military personnel not on duty (though most of them in Afghanistan are technically 24/7) would default be tried by local courts. It seems though, from nearly all of the initial reports, that the suspect will be prosecuted by the U.S. Unless they do actually invoke this, I will be curious to hear the reasons put forth by the U.S. government and military about it.

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Founded in 2004, Democracy and Society is a biannual print journal published by the Center for Democracy and Civil Society at Georgetown University. The D&S Blog provides web-only content, including special reports and investigative series, on issues relating to democracy and development.

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