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'Zero Chance' That U.S. Soldier Will Be Tried In Afghanistan, Expert Says

Afghans shout anti-U.S. slogans during a demonstration on March 13 in Jalalabad Province against the killings of 16 Afghans, allegedly by a rogue U.S. soldier.
Afghans shout anti-U.S. slogans during a demonstration on March 13 in Jalalabad Province against the killings of 16 Afghans, allegedly by a rogue U.S. soldier.
There have been numerous calls in Afghanistan from both citizens and lawmakers for the U.S. soldier accused of killing 16 civilians -- including nine children and three women -- to face justice in Afghan courts. Afghan President Hamid Karzai described the shootings as the "intentional killing of innocent civilians" and said they cannot be forgiven.

The soldier in question has been flown to Kuwait and, while U.S. military officials have said that his transfer does not preclude a trial taking place on Afghan soil, the United States has a long history of trying its soldiers in its own military courts.

RFE/RL correspondent Heather Maher asked Eugene Fidell, who teaches military justice at Yale Law School and is on the board of the International Society for Military Law, to explain the U.S. military's judicial process.

RFE/RL: Afghan politicians and citizens are calling for the U.S. soldier accused of killing 16 villagers on March 11 to be prosecuted by the Afghan justice system. What are the chances of that happening?

Eugene Fidell:
The chances are zero. We have an agreement with the Afghan government -- I think a prior iteration of the Afghan government -- under which military personnel are treated as administrative and technical staff of the U.S. Embassy for purposes of the Vienna Convention on Diplomatic Relations. The result is that there's no Afghan government criminal jurisdiction over their conduct.

Eugene Fidell
Eugene Fidell
RFE/RL: The United States has military personnel stationed in some 150 countries around the world. Does it have the same kind of immunity agreements with all of them?

They do vary to some extent from country to country as a reflection of the relative strength, for lack of a better word, between the United States and other country, and the deepness and robustness of the relationship.

For example, we have an agreement with Japan, which has figured in a number of incidents, particularly arising out of rape charges in Okinawa. And the Japanese courts have, in fact, prosecuted a number of U.S. military personnel in the Japanese courts. And indeed some of those people have served time in what I understand is a separate wing of a Japanese prison. So it really depends on the country.

The Status of Forces Agreement, as these things are called -- or SOFAs -- has some variation, but the general drift is to try to maximize the opportunity for the U.S. to be responsible for criminal punishment for those of its personnel who misbehave.

RFE/RL: Are there really that many crimes committed by U.S. military members abroad that the U.S. needs to have these agreements everywhere?
It's not that hard to understand why the United States would be really, really concerned not to subject its military personnel to a foreign trial."
Eugene Fidell

Fidell: It's not really a question of numbers. Even a single case could really be a nightmare if you had a country with an unreliable justice system. And I think it's fair to say that of Afghanistan, as much as we'd prefer it be a better system. Or if you have a country that is likely to be swept by strong emotions that might get in the way of a fair trial.

So it's not that hard to understand why the United States would be really, really concerned not to subject its military personnel to a foreign trial.

RFE/RL: Is the United States unique in asking for immunity for its military personnel serving abroad, or do other countries ask for and get the same thing for their troops?

I think this is a common practice on the part of sending states -- that is, states whose armed forces serve elsewhere.

RFE/RL: During negotiations for a new status-of-forces agreement, Iraq refused to grant immunity to U.S. military personnel who remained in the country after the last combat troops withdrew. Washington is now negotiating a strategic partnership with Kabul that will no doubt ask for the same consideration. Is Iraq's pushback a sign that the atmosphere for these kinds of immunity deals -- either in general -- or with the U.S. specifically -- has chilled?

I think it's difficult to generalize too broadly. The relationship between the United States and each of these countries is somewhat different. It may be very different from Country A to Country B. Whether Iraq versus Afghanistan falls into the "very different" category I'm not in a position to say. But what I can say is both countries are dealing with an effort to reorganize their political life -- or organize their political life -- in a way that garners local support and makes it loud and clear that they are not a puppet of the United States.

And it's clear that the Iraqi government under [Prime Minister Nuri al-] Maliki was not going to be in a position politically to agree to the kind of terms that we would have preferred for the security of our personnel.

As far as the Karzai government in Afghanistan, it's such a complicated chess board in terms of his government's relations with [the United States], with other nations in NATO, with neighboring countries such as Iran and Pakistan, that it would be very, very surprising if he was in a position to agree to the kinds of terms that Mr. Maliki in Iraq was not in a position to agree to.

U.S. troops guard the entrance of the base in Kandahar Province where the accused U.S. soldier was serving.
U.S. troops guard the entrance of the base in Kandahar Province where the accused U.S. soldier was serving.
So the long and the short is, even though circumstances in the two countries may be very different, they may come out in exactly the same place in terms of resistance to U.S. aspirations for immunity for our military personnel.

RFE/RL: The alleged shooter's identity has not yet been revealed, but we do know that he did two tours of duty in Iraq before being deployed to Afghanistan, and reportedly suffered a traumatic head injury not too long ago. Do you expect his multiple deployments and injury to be presented as mitigating factors in his case?

Yes, but there are factors, and factors. You could have, for example, a good military record that might tend to raise reasonable doubt, because we have such a doctrine in the United States -- it's called "the good soldier defense." Or it might be something that would soften the blow in terms of potential punishment. Or you might have a particularly moving story of injury sustained in battle that suggests to jurors that they shouldn't throw the book at the individual in the sense of giving the maximum punishment.

RFE/RL: In terms of compensation, what does the United States government do in these kinds of cases, when one of their own citizens has inflicted pain and suffering on foreigners?

There is provision for making what are called "ex gratia" payments, or "solatia" payments, to salve their wounds. These are relatively modest in size; nobody's going to get rich on this. The real thing, I think, [is] what steps will the United States take to afford to those foreign victims or victim dependents the kind of participatory rights that we give to victims in the United States?

For example, military prosecutors, like other prosecutors, are supposed to keep the victims informed of the case, to facilitate their attendance at the trial if possible, to provide counseling in some circumstances. So it will be interesting to see what, if anything, we end up doing.

My suspicion is the Afghan families aren't going to want to have anything to do with us in those terms. We'll have to see how that unfolds. But you can tell that this case is going to present some real challenges, not surprisingly, given the really explosive atmosphere within which it's going to play out.

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