Technically SSG Robert Bales could be tried in an Afgan Court of Law for the Massacre

Although, the (Status of Forces Agreement) SOFA between the US and Afghanistan does not allow Afghan prosecution, that doesn’t mean the US could not release SSG Bales to the Afghans for trial.

I think the most relevant part reads as follows:

"An agreement exists regarding the status of military and civilian personnel of the U.S. Department of Defense present in Afghanistan in connection with cooperative efforts in response to terrorism, humanitarian and civic assistance, military training and exercises, and other activities. Such personnel are to be accorded “a status equivalent to that accorded to the administrative and technical staff” of the U.S. Embassy under the Vienna Convention on Diplomatic Relations of 1961. 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. In the agreement, the Islamic Transitional Government of Afghanistan (ITGA) explicitly authorized the U.S.
government to exercise criminal jurisdiction over U.S. personnel, and the Government of Afghanistan is not permitted to surrender U.S. personnel to the custody of another State, international tribunal, or any other entity without consent of the U.S. government"

Although the agreement was signed by the ITGA, the subsequently elected Government of the Islamic Republic of Afghanistan assumed responsibility for ITGA’s legal obligations and the agreement remains in force. The agreement does not appear to provide immunity for contract personnel.

It must be noted that the United States is always free to turn over servicemembers to a host nation regardless of the preference in a SOFA. And, potentially, keep the accused in US custody during the host nation trial–as the former US/IRAQ Sofa anticipated under certain circumstances. I think it is important to remember that the jurisdiction is the United States to claim, not a right we have as an individual deployed in a foreign land. I know it is U.S. policy to exercise jurisdiction over its own servicemembers. However, I can also see that depending on the political winds, in the case of a murder, rape, etc., I am sure that our higher political powers could decide those acts are being performed “outside the course of [a servicemember's] duties.” I believe that the biggest reason for it not to happen is the negative precedent it would set.

If there is any In Theater case that may end in a plea agreement this is the case. However, in as much as our Afghan partners may want to see a trial and swift execution, this may not be the case if the mental health issues play out in the direction they currently seem to be heading.

Gwendolyn Lindsay-Jackson,Esq.
www.TVLegalNews.com