[Chris Jenks is an assistant professor of law and directs the criminal justice clinic at the SMU Dedman School of Law. He previously served as Chief of the U.S. Army’s International Law Branch, where he was responsible for the Department of Defense’s foreign criminal jurisdiction program. This post expands and revises comments published by Al Jazeera America.]
Beware the U.S. expressing “great respect” for a State’s sovereignty. You’re likely to find what follows more akin to the opposite -- of both respect and sovereignty.
Such is the case with U.S. Secretary of State John Kerry and his recent misstatements on foreign criminal jurisdiction over U.S. service members and the US Afghan Bilateral Security Agreement (BSA). Under the terms of the BSA, the U.S. would retain exclusive jurisdiction over any and all criminal offenses U.S. service members commit in Afghanistan. Secretary Kerry claimed on more than occasion that this is the same jurisdictional framework utilized wherever U.S. forces operate. It is not.
On October 12th, Sec Kerry, at a press conference in Afghanistan and while standing next to President Karzai,
made a series of statements concerning the BSA’s criminal jurisdiction. Among them,
[w]ith respect to the jurisdiction issue, we have great respect for Afghan sovereignty. And we will respect it, completely. And that is laid out in this agreement. But where we have forces in any part of the world, and we unfortunately have them in a number of places in the world – in Japan, in Korea, in Europe, in other parts of the world, Africa. Wherever our forces are found, they operate under the same standard. We are not singling out Afghanistan for any separate standard. We are defending exactly what the constitutional laws of the United States require.
Despite valiant Department of State attempts to “clarify” the Secretary’s remarks, the Washington Post initially awarded Sec Kerry
“two Pinocchios”, meaning his statements at the Afghanistan press conference contained significant omissions and/or exaggerations.
Kerry then stripped away language which could be mistaken for accurate in an October 17th National Public Radio interview, claiming that “[There] is the question of who maintains jurisdiction over those Americans who would be [in Afghanistan]. Needless to say, we are adamant it has to be the United States of America. That’s the way it is everywhere else in the world.” This streamlined version of untruth prompted the Post to elevate Sec Kerry to a
“three Pinocchios” award for “significant factual errors and/or obvious contradictions.”
Why Sec Kerry’s misstatements matter
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Sec Kerry’s false jurisdictional equivalency claims undermine his, and the U.S’. credibility, as well as Afghan President Hamid Karzai’s ability to explain the BSA to an upcoming Loya Jirga, whose approval is needed if U.S. troops are to remain in Afghanistan after 2014. Successfully concluding the BSA now depends on the Loya Jirga not realizing that any reliance on representations by the U.S. Secretary of State is misplaced. This bodes poorly for the agreement, and the strategic partnership between the two countries.
