Auguring Afghanistan: Foreign Criminal Jurisdiction of US Service Members

by Chris Jenks

[Chris Jenks is an assistant professor of law at SMU Dedman School of Law. He previously served as chief of the US Army’s international law branch where his responsibilities included foreign criminal jurisdiction (FCJ) over 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.

http://opiniojuris.org/2012/11/25/auguring-afghanistan-foreign-criminal-jurisdiction-of-us-service-members/

4 Responses

  1. Chris, very interesting and important – thanks for posting.  I agree with Bobby’s points at Lawfare on this.  I’d add that there’s another question – this pushes for a continuing and perhaps even expanded (at least relative to the drawdown of other US forces over time) for the CIA in its paramilitary role.  The basic “deal” for the CIA is different than for military personnel when it comes to domestic law, but Afghanistan might be seen as a special case where the CIA is not truly covert, but in the form of advisory roles closer to those played by military advisers.  Quite apart from the Bales-type cases by uniformed personnel, it seems likely that future Afghan governments, or persons in them as central authority erodes, might want to grab known CIA personnel and accuse them of various things.  Will the protections, such as they are, be purely political, or will the US seek to negotiate some perhaps secret arrangement with the Afghan government?

  2. Perhaps a better option for U.S. persons accused of war crimes, genocide, or other crimes against humanity would be a face-saving agreement to render U.S. accused to the International Criminal Court where there would be no question regarding rights of the accused to due process under international law.  Afghanistan is a party to the Rome Statute of the ICC, so one of the circumstances in Art. 12 has been met and any party to the Rome Statute can render a U.S. accused to the ICC with respect to such crimes having been allegedly committed in Afghanistan — whether or not the U.S. becomes a party to the Rome Statute.
    This would also help the U.S. to fulfill its obligation under customary and treaty-based international law aut dedere aut judicare — which the U.S. generally fails to adhere to, especially with respect to former members of the Bush-Cheney administration (some of whom have admittted to criminal behavior as perpetrators or complicitors).  Some textwriters (check on Westlaw) indicate that the U.S. military record of initiation of prosecution of all persons who are reasonably accused is wanting (esp. re: art. 32 hearings, witnesses, evidence abroad, etc.) — so U.S. prosecutions of even U.S. military personnel in courts-martial is not functioning properly in order for the U.S. to comply with its international obligations.  Furthermore, there have been NO prosecutions of anyone of any nationality (even Nazi accused!) for war crimes in U.S. federal district courts for many decades (under either of two sets of federal legislation that allows fors such) and there are NO U.S. prosecutions of anyone of any nationality in U.S. federal district courts for genocide or other crimes against humanity.
    President Obama should initiate a “transformative” experience in that regard!  

Trackbacks and Pingbacks

  1. […] Over at OJ, Chris Jenks (SMU Law) contends that US-Afghan negotiations for a post-2014 SOFA are likely in the end to come apart over the question of Afghan criminal jurisdiction over U.S. servicemembers.  This is a critical point, and one well-worth bearing in mind anytime one encounters the claim that the United States will maintain a significant ground presence in Afghanistan beyond 2014.   Should Chris’s prediction pan out, I think the U.S. role in Afghanistan circa 2015 will look much like its current role in Yemen (some airstrikes and a lot of Foreign Internal Defense activities).    Note that such a result would seem to run with the grain of the administration’s preference for light-footprint, in-the-shadows forms of counterterrorism, not to mention enabling the President to claim the mantle of having extracted the U.S. from not just one but two overseas wars.

  2. […] Read it all here. […]