Ever since news broke of the massacre of Afghan civilians by Sgt. Robert Bales, the press has told us that, due to “agreements” between the United States and Afghanistan, the U.S. has jurisdiction to try Bales. On March 20th, however, the New York Times was more specific about these “agreements” – claiming that the U.S. has jurisdiction “under a longstanding ‘status of forces agreement’ between the United States and the Afghan government.” Yet the United States does not have a formal “status of forces agreement” with Afghanistan, as it does with Iraq and many other countries. A “status of forces agreement,” or a SOFA, is an agreement, ratified by Congress, that sets out the terms under which foreign service members may operate in a particular country. The United States’ agreement with Afghanistan takes the form of an “exchange of notes” from 2002 and 2003 that gave military personnel the same status as administrative U.S. Embassy staff – which meant, in effect, that U.S. military personnel would be immune from prosecution by Afghan authorities. An “exchange of notes” is one of many informal forms of international “soft” law that, in contrast to a SOFA, do not need legislative approval and which are often more aspirational than strictly regulatory.
Does it matter that the U.S.-Afghan relationship is governed by an “exchange of notes” instead of a SOFA? In my view, it does matter – primarily because it suggests that American jurisdiction in the case is not as hard and fast as the press is making it out to be. While an exchange of notes certainly carries a great deal of diplomatic weight, it is not un-revisable, nor un-amendable, and could certainly be revisited by the two parties to it.
There are other reasons, within the text of the exchange of notes (as reported by R. Chuck Mason in a Congressional Research Brief), to think that American jurisdiction should not be understood as automatic. Mason says that the “exchange of notes” offers the following immunity for U.S. personnel: they “are immune from criminal prosecution by Afghan authorities…except with respect to acts performed outside the course of their duties” (my emphasis, p. 8). While Bales’ crimes may have been deeply linked to his military service, couldn’t one still make the argument that his crimes were “performed outside the course of [his] duties” and thus that immunity should not apply in this case? Indeed, a member of the military makes this same point in a comment on a military justice blog.
The press’ continual insistence that the United States simply “has” jurisdiction obscures the grey areas that govern jurisdiction here and thus portrays the question of jurisdiction as settled. The problem with this tendency of the press is not only that it is misleading; it is also that it forecloses the possibility of a conversation about how to do justice in the Bales case. By simply asserting American jurisdiction, the press – as well as the Obama administration – has forestalled a broad, public, transnational discussion about how to do justice in a case where, allegedly, a foreign service member methodically kills, and then burns, Afghan men, women, and children.
Such a conversation would likely be filled with dogma from both sides of the political spectrum and it might end in disagreement. Yet, in my view, it would nonetheless be well worth having. After all, Americans and Afghanis are already divided over this trial (recall the unheeded demands from Afghanis directly after the attacks that Bales be tried in Afghanistan). If we opened up the question of how to do justice to broad discussion, there might still be division, but such a conversation could be a good in its own right.
At its best, a transnational conversation about how to do justice in the Bales case could prompt exchanges of visions of justice, give attention to the victims of the shooting (which have been extremely under-reported in the press), and perhaps even generate broad discussion of the stakes for Afghani civilian life of the presence of American soldiers in Afghanistan. Such a conversation might also produce unexpected moments of transnational understanding and respect – understanding and respect that is sorely lacking, given ongoing civilian deaths perpetrated by the United States in Afghanistan, as well as disrespectful acts of American soldiers, such as the burning of Korans. Certainly, President Obama’s comment that Americans will treat Sgt. Bales’ crimes as if they were committed against our own children is an example of this.
There would be risks to engaging in this kind of conversation– risks that it would turn Bales’ trial into a “political” one, more about the U.S. presence in Afghanistan than Bales’ alleged crimes. (This is seemingly what American military personnel are worried about when they label Bales a “bad apple” and call the shootings an “individual act.”) Yet haven’t Bales’ alleged crimes already become a symbol of the American presence in Afghanistan? Since news of these crimes broke, I have heard numerous stories relating them to (among other things) the “kill team” crimes of 2010-2011, American night raids in Afghanistan, and the toll taken on service members by repeated deployments.
Rather than trying to pretend that Bales’ trial can be divorced from its enmeshment in the American presence in Afghanistan, perhaps we had better try to have a transnational conversation about how and whether justice can be done in a situation where jurisdiction is grey, the truth is messy, and the power of the two states involved are in deep disequilibrium. Such a conversation may in the end risk justice, but perhaps we had better run this risk than a far greater one: the risk of leaving justice not only undone, but also untried.