On October 22 this year, an Afghan soldier shot three Czech troops in a “green-on-blue incident”, killing one.  Afghan security forces captured the shooter and handed him over to the Czechs, who beat him to death.  This was an understandable and in fact morally acceptable alternative to turning the prisoner over to a legal system that has lost the trust of those it ostensibly serves through its inability to deliver justice.

What would have happened had the Czechs turned the man, Wahidullah Khan, over alive to the proper authorities?  He would have been interrogated; the interrogation would determine whether Khan acted on behalf of others or — often happens — for personal reasons.  The problem is what happens next.

Keep in mind that this man is, at the very least, guilty of perfidy in assuming the uniform of an adversary in order to conduct an attack.  He is a traitor to the Afghan government unless he acted out of purely personal motives, in which case he may simply be a murderer.  At any rate, the man who shot the Czechs has committed an offense involving some combination of treason, murder, and perfidy.

The natural punishment for such a crime is death.  An ideal military justice system would extract any needed intelligence from him, confirm that the man in custody was the man who committed the crime, ensure that no extenuating circumstances (such as self-defense) existed, and execute him.  Given the particularly egregious nature of the crime, such a prosecution would be given high priority and therefore carried out relatively quickly.  Can the American military justice system provide such a result?  It cannot.  Nidal Hasan will still live on the tenth anniversary of his own treasonous murders.

The Afghan government is somewhat more efficient in this regard, and given the low likelihood of reforming “civilized” justice systems to deal correctly with crimes of the sort committed against the Czech soldiers might have been the best option.  The NATO Status of Forces Agreement states that “NATO Forces shall not arrest or imprison Afghan nationals”.  Unfortunately, little has been done to build confidence in this system among foreign soldiers, even aside from several highly publicized prison breaks.  If ISAF  expects its troops to turn men like Khan over to “authorities”, they need to explain how such men will actually be dealt with.

Ensuring that green-on-blue shooters aren’t taken alive offers the best solution to this morass of ineffectual legal systems.  This is usually easy enough given the typical circumstances of such shootings; probably the American Special Forces soldiers who are “under investigation” made comments along these lines at the time.

The article notes that the United States evacuated a Special Forces team back to the United States over their possible involvement in the incident.  Clearly in the expert opinion of their chain of command, whatever value they produced via their work and presence in the country was overshadowed by the fact that they were in the same grid square as some foreign troops deciding they didn’t much like the odds of Khan getting a fair trial.  Perhaps the Americans should have burst in on their allies, rifles up, and used any means necessary to prevent them from killing their captive.

To their credit, I have not found any statements from ISAF about the necessity of removing the Special Forces soldiers from the country out of concern for the sensibilities of Afghans.  Some years ago, an atheist American soldier complained about the presence of a cross on the makeshift steeple of a field chapel on the base on Orgun-E.  Lawyers had it taken down, but not before the local command promulgated a lie through both public affairs and IO channels that this was done out of concern for the locals.  The reason for this falsehood was that knowledge among the locals that the cross was removed at the demands of an atheist would have been far more damaging to the local hearts and minds efforts.  As far as capital punishment, the Taliban have no reservation about executing traitors and murderers, and their hold on local sensibility appears little attenuated.

The delegation of justice to a legal system is not a moral law but depends on the effectiveness of the system in question.  If that system does not reliably function, then it is not reasonable to expect anyone to entrust them with matters of justice — and they won’t.