Should soldier accused of Afghan killings be tried in Afghanistan?

By Maria Balinska

An Afghan man looks over the dead bodies of people killed in massacre of civilians (Reuters/Ahmad Nadeem)

The army staff sergeant accused of killing 16 Afghan civilians, including 9 children, is on his way from Kuwait to Fort Leavenworth, KS.

There has been a lot of coverage in the US media of how this senseless killing could have happened.  The soldier’s lawyer, John Henry Browne, has been talking about the soldier not wanting to be deployed a fourth time and about the traumatic brain injuries he sustained while serving in Iraq. The decorated career soldier could face the death penalty if he’s found guilty.

This case, however, is not just a legal one. As Browne acknowledged:

“It’s not just a normal criminal case that we deal with, and we understand that. We understand our government’s concern about it, and we certainly understand the concern of Afghanistan and its people. This (is) a pretty huge case from the standpoint of ramifications.”

One of the questions Afghans and other people outside the U.S. are asking is why the sergeant is not going to be tried in Afghanistan by Afghans.

Practical or arrogant Americans?

South Africa TV reporter Isaac Mangena doesn’t mince his words. Here’s how he starts his op-ed piece in South Africa’s Mail and Guardian:

“My colleague Sokhu Sibiya recently said to me that American children are always taught from a young age in their living rooms that they are superior to any other nation in the world…They watch movies, which are made in the US. Every movie shows them that they kill one American and we kill twenty terrorists, mostly un-American and Muslim-like,” she added. This caught me off-guard, but I believe she is right.”

Mangena goes on to argue that if American troops are not subject to the laws of the country they are serving in it makes it harder for Americans to win hearts and minds.  “[It makes] it difficult for the locals to trust the forces; it makes the Taliban heroes and it will complicate US efforts to reach an agreement with the Afghan government on post-2014 security arrangements.”

It’s a piece that packs a punch. See what you make of the argument.

Coming to America

Over at Radio Free Europe/Radio Liberty (the U.S. funded broadcaster targeted at audiences in Eastern Europe, Central Asia and Afghanistan)  it’s as though they read Mangena’s piece and decided to respond. They interviewed Professor Eugene Fidell, who teaches military justice at Yale Law School  and is the  President of the National Institute of Military Justice.

Fidell has an unequivocal answer to Mangena. There are “zero chances” that the sergeant will be tried in Afghanistan given an agreement signed between the American and Afghan governments.

“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.”

There are, however, a number of countries that DO have jurisdiction over American soldiers accused, for example, of rape.  As Fidell points out, a number of US military personnel have served time in Japanese jails.

For the expert take on this subject, click on the “Straight to the Source” link below.

Straight to the Source

  • Sammy C

    YES HE DEFINITELY SHOULD

  • Djeendjeen

    This is a very important question that has not been covered at all by other media sources. Thank you!