The American soldier who is accused of killing 16 Afghan civilians is under the legal jurisdiction of the U.S. government and is immune from prosecution under Afghan law, says a newly updated report from the Congressional Research Service.
Afghan officials had said they wanted the soldier to be tried in Afghanistan, not in an American military court, the New York Times and other press outlets reported.
But according to CRS, the Status of Forces Agreement (SOFA) between the US and Afghanistan dictates otherwise.
“In the case of Afghanistan, the SOFA, in force since 2003, provides that U.S. Department of Defense military and civilian personnel are to be accorded status equivalent to that of U.S. Embassy administrative and technical staff under the Vienna Convention on Diplomatic Relations of 1961,” the CRS report said.
“Accordingly, U.S. personnel are immune from criminal prosecution by Afghan authorities and are immune from civil and administrative jurisdiction except with respect to acts performed outside the course of their duties. The Government of Afghanistan has further explicitly authorized the U.S. government to exercise criminal jurisdiction over U.S. personnel.”
“Thus, under the existing SOFA, the United States would have jurisdiction over the prosecution of the servicemember who allegedly attacked the Afghan civilians.”
A copy of the CRS report was obtained by Secrecy News. See Status of Forces Agreement (SOFA): What Is It, and How Has It Been Utilized?, March 15, 2012.