Professor Chris Jenks, the former Army international law branch chief, argues that the issue of Afghanistan jurisdiction over U.S. military members could be the major barrier to reaching a security agreement about post-2014 forces in Afghanistan:
The criminal jurisdiction debate, and I submit whether the U.S. will maintain anything more than a de minimis troop presence in Afghanistan in 2014 and beyond, hinges on whether there is any set of circumstances which would result in Afghanistan having a primary right of criminal jurisdiction over U.S. service members. The question allows for only a binary answer. From Afghanistan’s perspective the answer must be yes, while, similar to its negotiating position with Iraq, the U.S. answer is almost certainly no.
So regardless of when the talks with Afghanistan began, absent one State altering what is likely a “red line” answer to the FCJ question, there is little reason to believe the negotiations with Afghanistan will end any differently than those with Iraq, where plans for stationing 10,000 or more U.S. service members yielded a reality of less than 150.
To be sure there are hosts of difficult issues in SOFA negotiations – taxes, environmental, postal (yes, postal), to name just a few. And that US service members would likely be using force in Afghanistan is a qualitatively different environment than almost any other where the U.S has concluded a SOFA, and that also poses challenges. But while there can be significant national interests within some of those issues, there are generally gradients or degrees which provide negotiating flexibility. Not so with foreign criminal jurisdiction, at least with the over arching question of whether a receiving state, here Afghanistan, would ever have primary criminal jurisdiction over members of the sending states military, here the U.S.
Read it all here.
Charles A. Blanchard
United States Air Force