Corn and Glazier on the US-Afghanistan SOFA and Jurisdiction to Prosecute SSG Bales

Staff Sergeant (SSG) Robert Bales, suspected of killing 17 Afghan civilians during an unauthorized nighttime foray, is now at Fort Leavenworth awaiting court-martial.  The decision to remove Bales from Afghanistan raises important questions about the exercise of criminal jurisdiction over U.S. military and civilian personnel who commit misconduct while serving abroad.  These questions are most complex when the misconduct violates both U.S. and host-nation law.  While Afghan demands that Bales be handed over for trial in their courts are understandable, the decision to exercise military jurisdiction pursuant to the Uniform Code of Military Justice (UCMJ) is consistent with the legal jurisdictional framework applicable to U.S. forces in Afghanistan.  This framework reflects the longstanding U.S. policy of maximizing the exercise of criminal jurisdiction over U.S. service-members accused of engaging in criminal misconduct abroad, even when the misconduct results in harm to local nationals. Historically, military forces abroad enjoyed complete sovereign immunity and were subject to local criminal or civil liability only with the consent of their government.  In essence, the “law of the flag” they served under followed these forces at all times.  When, however, long-term peacetime presence of armed forces in foreign territory became the norm following World War II, this traditional exclusive jurisdiction model evolved to accommodate the legitimate interests of both the “sending” and “receiving” states to respond to criminal misconduct based on both nationality and territorial principles.  Status of Force Agreements (SOFAs) emerged as the framework to balance these competing assertions of criminal jurisdiction (and many other issues related to the long-term presence of foreign armed forces within the territory of another state). The North Atlantic Treaty Organization (NATO) SOFA, negotiated between the alliance states in 1951, is representative of typical jurisdictional arrangements.  It recognizes exclusive jurisdiction on the part of the parent nation (sending state) for service-unique offenses 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.  Most offenses committed by service-members, however, fall into a category of concurrent jurisdiction: they violate both U.S. military law (and sometimes federal civilian law), and host nation law.  Criminal homicide by a U.S. service-member is such an offense.  In these cases, SOFAs establish a framework for allocating primary jurisdiction over the offender.  The NATO 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. However, even when the receiving state is granted primary concurrent jurisdiction, U.S. policy is to maximize the exercise of jurisdiction over U.S. personnel.  Accordingly, the U.S. routinely requests waiver of receiving state primary concurrent jurisdiction. These requests are routinely granted in locations where the U.S. military maintains a long-term presence (such as Germany,  South Korea, and Japan).  These waiver requests and jurisdiction negotiations are normally conducted between JAG officers supporting the U.S. command and host-nation prosecutorial authorities.  In many cases, the host-nation initiates the waiver process, considering the exercise of U.S. jurisdiction preferable to prosecuting U.S. personnel in its own courts. Jurisdiction arrangements related to operational deployments are very different.  During combat operations, the U.S. always asserts exclusive jurisdiction pursuant to the law of the flag.  During stability and support operations, the U.S. places a high priority on securing maximum jurisdictional authority over U.S. military and associated civilian personnel.  This is often accomplished through an exchange of diplomatic notes. Afghanistan is illustrative of the challenge of defining jurisdictional lines in the context of a mission that has transitioned from full-on combat deployment to a stability operation in support of the host nation.  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 DOD civilians legal privileges and immunities 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 one 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.  It effectively provides the U.S. with exclusive criminal jurisdiction. 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.  However, the reality is that the Afghan SOFA is hardly unique in operational settings.  Securing A&T privileges and immunities for U.S. personnel is common practice to maximize the authority of U.S. commanders to address misconduct by members of the force.  This authority is essential to maintaining good order and discipline during ongoing military operations, an objective facilitated by the broad scope of the Uniform Code of Military Justice.  Operational deployments normally do not involve the normal non-duty related activities associated with a permanent presence in a non-operational environment (such as the day to day off duty activities of U.S. personnel living in Germany or Japan).  As a result, A&T status is considered logically consistent with the nature of the presence, the needs of the command, and the anticipated activities of the U.S. personnel. The A&T status approach of the Afghan SOFA is also responsive to the reality of the less than fully developed state of Afghan legal institutions.  Historically, the U.S. has only agreed to concurrent jurisdiction relationships in locations with mature legal systems considered adequate to protect the fundamental rights of U.S. personnel. Retaining exclusive jurisdiction during an operational mission 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. Of equal significance is the resilience of the Uniform Code of Military Justice to address misconduct of U.S. personnel during operational missions.  The U.S. military has historically prosecuted its own personnel for offenses arising in foreign nations during such missions.  While the recent incident is undoubtedly of a magnitude to trigger intense interest, the reality is that the UCMJ has been an effective tool to ensure criminal accountability for U.S. personnel in all environments, ranging from the decades long presence in Germany, to peacekeeping missions in places like the Balkans and Haiti, to all out combat operations in Iraq, Afghanistan, and Panama. Furthermore, expansion of U.S. military and civilian criminal jurisdiction over civilians associated with the armed forces has gone a long way to ensure that accountability is viable for all participants in these missions. Holding SSG Bales to account in our military courts is consistent with the ultimate objective of the UCMJ: to enhance good order and discipline within the force by ensuring a just resolution of allegations of criminal misconduct.