The truth about criminal jurisdiction over US troops in Afghanistan

SMU Assistant Law Professor Chris Jenks writes about Secretary of State Kerry jeopardizing the US-Afghan security agreement with a misstatement.

By Chris Jenks

Christopher JenksDuring an Oct. 12 press conference in Kabul, U.S. Secretary of State John Kerry said that under the pending U.S.-Afghan security agreement, the United States would retain exclusive jurisdiction over its service members for any crimes they commit in Afghanistan.

Kerry unfortunately misstated U.S. law, policy and practice. What's worse, he did so at a critical juncture in the negotiations for an agreement to enable American troops to remain in Afghanistan after 2014. And he did this while standing next to Afghan President Hamid Karzai. Kerry's misstatements undermined Karzai's ability to explain and advocate for the jurisdiction provisions at an upcoming loya jirga, or political assembly.

Here is what Kerry said:

"We have great respect for Afghan sovereignty. And we will respect it, completely … But where we have forces in any part of the world … in Japan, in Korea, in Europe … 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."

Returning to the U.S., Kerry repeated his misstatement, claiming that there is "the question of who maintains jurisdiction over those Americans who would be (in Afghanistan after 2014). 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 led The Washington Post to award Kerry "three Pinocchios," for statements containing "significant factual errors and/or obvious contradictions."

The secretary may, in fact, have doomed the very security agreement he was in Afghanistan to save. His comments are also strategically counterproductive on a larger scale: They perpetuate the myth that the U.S. does not "allow" the courts of another country to prosecute U.S. service members for their criminal actions in that country.

Variety of standards

Foreign countries prosecute and imprison U.S. service members each and every year under the terms of security agreements — which, contrary to Kerry's claim, apply very different standards than the U.S.-Afghan agreement. Since Kerry is a lawyer and former district attorney, his false contention that the U.S. Constitution requires that the U.S. and only the U.S. prosecute its service members is perplexing.

The criminal jurisdiction sections of security agreements between the U.S. and other countries vary. But for a foreign country in which a large number of American service members are stationed, such as Japan, South Korea and Germany, that country has primary jurisdiction over U.S. service members in the vast majority of cases.

The only crimes for which the U.S. retains primary jurisdiction under those agreements are offenses that arise from service members' official duties (think convoy vehicle accident or military aircraft incident) or from crimes in which the victims are exclusively American. In all other instances in which the offense violates laws of both the U.S. and the foreign country, the foreign country has primary jurisdiction to prosecute U.S. service members.

American policy is to maximize U.S. jurisdiction over its service members. For foreign countries that have a primary right of jurisdiction over U.S. service members, the United States requests that those countries waive their right so the American military may take appropriate action. And in the overwhelming number of cases, countries such as Germany, Japan and South Korea do waive their right, because they know from decades of experience that the U.S. does in fact hold its service members accountable.

In the small number of cases in which the foreign country declines to waive its jurisdiction — generally in high-profile offenses such as rape and murder — the U.S. provides its service member a foreign attorney at no charge to the service member; another representative to ensure that the foreign country respects the rights and privileges the agreement affords the service member; and a dedicated military lawyer to observe, monitor and report on the proceedings.

Under the current U.S.-Afghan arrangement, Afghanistan waives jurisdiction over U.S. service members regardless of the crime. Thus, when U.S. Army Sgt. Robert Bales sneaked out of a forward operating base in the middle of the night on March 11, 2012, and slaughtered 16 Afghan civilians, mostly women and children, Afghanistan did not have criminal jurisdiction. Had Bales committed his offense in Japan, South Korea or a NATO country, that country could and would have prosecuted him.

The jurisdictional scheme in the pending U.S.-Afghan security agreement would lead to the same outcome as in the Bales case. If, in 2015, a U.S. service member stationed in Afghanistan commits wanton criminal misconduct against Afghan civilians, Afghanistan would still not have primary jurisdiction over the offender.

Kerry was right to push back on the claim that the agreement results in immunity. It does not. That the U.S. Army court-martialed Bales, convicted him of murder and sentenced him to life in prison without the possibility of parole is anything but immunity.

But the proposed criminal jurisdiction arrangement is fundamentally different from the arrangement the U.S. has with other countries, including those the secretary mentioned. Kerry undermines American credibility by falsely claiming the U.S. is not singling out Afghanistan for a separate criminal jurisdiction standard. In fact, there are legitimate reasons for that separate standard. For instance, the current Afghan criminal justice system lacks the procedural safeguards guaranteed by the U.S. Constitution to ensure a fair trial.

Making that point is diplomatically delicate, if not awkward — especially when President Karzai is standing next to you. But if Afghanistan is to be treated as a partner, now and moving forward, the U.S. cannot afford such careless statements by its top foreign-affairs official.

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