Auguring Afghanistan: Foreign Criminal Jurisdiction of US Service Members

The U.S. and Afghanistan recently initiated formal discussions concerning the continued presence of U.S. troops in Afghanistan after 2014, when Afghanistan is expected to assume full responsibility for its security.

These discussions are often framed by comparison to the U.S’ unsuccessful negotiations with Iraq on the same issue – the status of U.S. forces in Iraq. The critique of the Iraq negotiations focuses on the delayed timing of the talks, a problem the U.S. is seemingly avoiding in the discussions with Afghanistan. Yet while timing may have complicated the Iraq negotiations, it was the inability of the two States to agree to a criminal jurisdiction construct that proved dispositive of failure.

The criminal jurisdiction debate, and I submit whether the U.S. will maintain anything more than a de minimis troop presence in Afghanistan in 2014 and beyond, hinges on whether there is any set of circumstances which would result in Afghanistan having a primary right of criminal jurisdiction over U.S. service members.  The question allows for only a binary answer. From Afghanistan’s perspective the answer must be yes, while, similar to its negotiating position with Iraq, the U.S. answer is almost certainly no.

So regardless of when the talks with Afghanistan began, absent one State altering what is likely a “red line” answer to the FCJ question, there is little reason to believe the negotiations with Afghanistan will end any differently than those with Iraq, where plans for stationing 10,000 or more U.S. service members yielded a reality of less than 150.

To be sure there are hosts of difficult issues in SOFA negotiations – taxes, environmental, postal (yes, postal), to name just a few. And that US service members would likely be using force in Afghanistan is a qualitatively different environment than almost any other where the U.S has concluded a SOFA, and that also poses challenges. But while there can be significant national interests within some of those issues, there are generally gradients or degrees which provide negotiating flexibility. Not so with foreign criminal jurisdiction, at least with the over arching question of whether a receiving state, here Afghanistan, would ever have primary criminal jurisdiction over members of the sending states military, here the U.S.

Currently the foreign criminal jurisdiction construct in Afghanistan is unilateral.  Pursuant to a 2003 exchange of notes between the U.S. and Afghanistan, the U.S. has exclusive criminal jurisdiction over its service members. Thus, when U.S. Army Staff Sergeant Robert Bales allegedly murdered 17 Afghan civilians earlier this year, U.S. jurisdiction was never in doubt.

The question is if, in 2014 and beyond, there were another “Bales” like incident, pre-meditated U.S. service member criminal conduct in Afghanistan with only Afghan civilian victims, would Afghanistan have primary jurisdiction over the offender?

U.S. lawmakers, including Senator Lindsay Graham, are already claiming that any SOFA with Afghanistan must retain the status quo of exclusive U.S. jurisdiction over its service members. The exercise of criminal jurisdiction is one of the most basic indicia of sovereignty.  Its hard to envision President Karzai explaining to the Afghan people how Afghanistan has reclaimed control of its security yet lacks criminal jurisdiction even over individuals who rape or kill Afghans in Afghanistan.

So unless the U.S. or Afghanistan concede on the answer to the threshold FCJ question, starting SOFA negotiations now is little more than a head start on failure and a Iraq redux.