No Comment — March 21, 2012, 4:08 pm

Justice in Afghanistan

Early in the morning on Sunday, March 11, sixteen villagers were killed and five wounded in the Panjwai district of Kandahar Province, Afghanistan. The dead included nine children, four men, and three women, of whom eleven were from the same family. In one home, the bodies of the murdered members of a family had been dragged into a pile and set on fire. Reports about the incident rocked a country that was slowly returning to calm following the demonstrations and riots that had erupted over reports that U.S. military authorities at Bagram Air Base had collected and burned copies of the Koran. American officials quickly stated that the Panjwai incident was the work of a single gunman, whom they subsequently identified as Staff Sergeant Robert Bales from Joint Base Lewis–McChord, Washington.

The American media soon began running stories, apparently fueled by off-the-record statements from military public-affairs officers, that speculated on what caused Bales to go on a homicidal rampage. Remarkably little of the coverage came from the ground level in Afghanistan or offered the Afghan perspective. Media in Afghanistan and Pakistan, meanwhile, has been dismissive of U.S. claims that the crimes were the work of a sole gunman, stressing accounts of villagers who said they saw significant numbers of U.S. troops and a helicopter at the time of the incident (the U.S. insists that its forces were on the scene only in the wake of the killings). Afghan political leaders quickly demanded that the perpetrator be tried in Afghanistan, before an Afghan court, and they have complained that the U.S. is refusing to cooperate with their efforts to investigate the crime. These developments have the markings of another firestorm, which would be a tragic turn of events for Afghans interested in peace and stability, and for Americans and their NATO allies.

I have little doubt that the U.S. military-justice system can deal with an explosive high-profile case like Bales’s, but international media attention will provide the system with a rigorous test. American military and diplomatic leaders in Afghanistan will have a number of competing interests to juggle. One is the safety of U.S. and NATO forces. The recent incidents have badly damaged military–civilian relations in Afghanistan, and have fueled the Taliban’s propaganda mill. Officials will have to deal with the case in a way that sustains the value of the massacred civilians’ lives, and that acknowledges the suffering and grief of the survivors. These exigencies should not translate into a show trial for Sergeant Bales, which would only demean U.S. concepts of justice; rather, it means that the prosecution must be vigorous and well informed. U.S. commanders in Afghanistan should also offer ex gratia payments to the survivors, a practice that accords with Afghan traditional law (diyya), under which the commander of a soldier who does wrong may offer compensation on the soldier’s behalf.

It is not unreasonable for Afghanistan to want to try Bales. This was a heinous crime, it occurred on Afghan soil, and the victims were Afghan civilians. Moreover, as the facts are now understood, it did not occur within the scope of a combat mission. On the other hand, the United States has a reasonable interest, under the Uniform Code of Military Justice, in dealing with its own uniformed military personnel. Normally the question of criminal jurisdiction would be addressed by a Status of Forces Agreement (SOFA), but Washington and Kabul have never succeeded in coming to terms on such a document, so the issue is currently covered only by a vague exchange of diplomatic notes. The United States appears to have acted to preempt the Afghan claims by putting Bales on a jet to Kuwait and then—when the Kuwaitis objected to his presence in their country—to Fort Leavenworth, Kansas. But American authorities in Afghanistan shouldn’t lose sight of the fact that their fundamental mission is to help build a rule-of-law state. By exhibiting their lack of confidence in Afghanistan’s criminal-justice system and courts, they are operating at cross purposes with their mission.

It would be unreasonable to expect U.S. officials to surrender Bales for trial in Kabul, but they should cooperate with the Afghan authorities investigating the crime by sharing crime-scene reports, offering access to forensic evidence, and furnishing key witnesses for interviews. Failure to cooperate will only fuel Afghan suspicions about America’s intentions.

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