By Professor David Glazier
The U.S. government's decision to move Staff Sergeant Robert Bales, accused of killing 17 Afghan civilians during an unauthorized nighttime foray, out of Afghanistan raises questions about criminal jurisdiction over American military personnel abroad. While popular Afghan demands for his local trial are understandable, the U.S. military's actions seem consistent with its legal obligations.
Historically military forces abroad enjoyed complete sovereign immunity and were subject to local criminal or civil liability only with the consent of their government. Traditional concepts of sovereign immunity started to break down in the twentieth century, however, and during a time of expansion of permanent overseas bases, nations began negotiating "status of forces agreements" (SOFAs) to clarify legal jurisdiction over their military personnel in foreign territory.
The North Atlantic Treaty Organization (NATO) SOFA, negotiated between the alliance states in 1951, is representative of typical modern treaty provisions. It recognizes exclusive jurisdiction on the part of the parent nation (sending state) for offenses which are service-unique, such as desertion or disobedience of orders, as well as for conduct which is only a crime under the law of the sending state. Conversely, it recognizes exclusive jurisdiction of the host nation (receiving state) over offenses which violate its laws, but not the law of the sending state. There is concurrent jurisdiction over all other offences. The SOFA addresses this overlapping authority by assigning primary jurisdiction to the sending state in cases involving offences against its security, property, or its own nationals; as well as offences arising out of acts "done in the performance of official duty." The receiving state is given the primary right to exercise jurisdiction in all other cases, although it is not uncommon for foreign countries to agree to U.S. military trials even where the SOFA gives them primary jurisdiction.
The legal situation in Afghanistan is quite different, however. The 2003 U.S.-Afghan SOFA, which takes the form of an exchange of diplomatic notes between the two governments, grants U.S. military and civilian Department of Defense personnel legal status equivalent to that provided "administrative and technical staff" under the Vienna Convention on Diplomatic Relations. "A&T status," as this protection is commonly known, is just a step below the full diplomatic immunity enjoyed by foreign service officers, providing complete exemption from local criminal jurisdiction along with civil immunity for official acts.
The Afghan people may perceive this as offensively reminiscent of the unequal treaties imposed on Asian states in the nineteenth century which granted western nationals "extraterritorial" status -- complete immunity from local laws. In part, the Afghan SOFA likely recognizes U.S. concerns about the less than fully developed state of Afghan legal institutions and their failure to meet recognized international legal standards. But it also reflects the reality of an ongoing armed conflict as well. International law grants military personnel the "combatant's privilege;" legal immunity from prosecution under domestic law for their conflict-related acts of violence which are judged for compliance with the law of armed conflict rather than ordinary criminal law. Giving the U.S. military full jurisdiction over its personnel immensely simplifies the challenges of making case-by-case decisions about which conduct is official and which is not, and whether a particular act is subject to foreign domestic law or may be judged only against the law of armed conflict. The U.S. military has historically prosecuted its own personnel for any war-time crimes in foreign nations, so the Afghan SOFA is hardly unique in a conflict setting.
Moreover, standing U.S. policy is to request jurisdiction from local nations even when dealing with traditional allies in situations where a SOFA would give them primary jurisdiction. So the exercise of foreign jurisdiction over U.S. personnel is actually a much more infrequent occurrence than might otherwise be expected. The U.S. exercise of jurisdiction over Staff Sergeant Bales is thus consistent both with U.S. legal obligations and historical practice.