Here is a thought provoking piece over at Foreign Policy from Morwari Zafar. It argues for a different approach to negotiating criminal jurisdiction over US Servicemembers in the Bilateral Security Agreement with Afghanistan.

Is compromise possible?
Afghanistan’s informal justice mechanisms, while dramatically unlike those of the United States, reinforce local governance structures in Afghanistan. From an Afghan perspective, this system promotes equality and justice in a way that the American system does not. In terms of jurisprudence, even shadow governments like that of the Taliban, though regarded as problematic and oppressive, promote a rule of law that is more consistent with traditional customs than Western ideologies. Furthermore, because years of international developmental support, both pecuniary and technical, have failed to create corruption-free formal governance and justice systems with the capacity to address crimes in Afghanistan, it is understandable that Afghans have more faith in their own informal methods than formal institutions of dispute mediation — particularly those of a foreign government. . . . Thus, the opportunity for a proper, shared dialogue about the criminal jurisdiction of foreign troops operating in Afghanistan provides motivation for the Afghan government to strengthen its formal judicial sector by implementing the impartial, representative mechanisms for which the international community has advocated — processes that would allow Afghans like Wazir to have a voice, reflect the cultural and religious values of Afghan society, and adhere to international human rights standards.

The deal is currently stalled as Afghan President Karzai refuses to sign the deal negotiated by his representatives and US representatives and threatens to release some 80 prisoners from Bagram prison that the US says are responsible for Afghan and Coalition forces murders, see NBC News coverage here.

2 Responses to “Alternative Thoughts on Criminal Jurisdiction Over US Servicemembers in Afghanistan”

  1. Kim Jong-Un says:

    Yowza.
    It’s a little unclear what the author is calling for here because she offers no concrete suggestions.  However, it appears that the Bales court-martial was somehow insensitive to the Afghan “sense of justice” because, among other things, (1) he was sentenced to life in prison without parole (the most severe possible punishment in the 100+ countries that ban the death penalty), a result that one Afghan quoted in the article called “unjust” [“we wanted the murderer to be executed, but did not get our wish”], (2) Bales wore his uniform at the CM and was allowed to “look like a general,” (3) Bales wasn’t tried by a council of elders within two days of his arrest, and (4) he simply had too many of those pesky things called rights.
    I’m not sure why we would want to conform our system in any way to this “sense of justice.”

  2. RKincaid3 says:

    I am amazed at how many people seem to equate “justice” with a satisfactory result.

    “We wanted this murderer to be executed, but we did not get our wish,” Wazir told the Tacoma News Tribune at the conclusion of the trial. “We came all the way to the United States to get justice, but we did not get that.”

    While I can forgive such sentiments in those who don’t know better than what little they know, such thoughts are unforgivable in supposedly modern societies and their leaders.
    At least now we know what justice concepts motivated those in Congress who authored the recent “convict ’em all at all costs” amendments to the NDAA.