The text of this agreement can be accessed georgewbush-whitehouse.archives.gov/news/releases/2007/11/20071126-11.html (the “declaration of principle”). A historical perspective on U.S. operations in Iraq and issues related to Iraqi governance and security can be found in the report CRS RL31339, Iraq: Post-Saddam Governance and Security, by [author name scrubbed] and CRS Report RL33793, Iraq: Regional Outlook and U.S. Policy, coordinated by [author name scrubbed]. Following the terrorist attacks of September 11, 2001, the United States launched Operation Unchangeable Freedom to fight Al Qaeda and prevent the Taliban regime in Afghanistan from providing them with refuge. Shortly thereafter, the Taliban regime was overthrown by U.S. and allied forces, and the United States then concluded a series of security agreements with the new Afghan government. In 2002, the United States and Afghanistan entered into an agreement on economic subsidies under the Foreign Assistance Act of 1961,38 as amended, by changing obligations37. In addition, the agreement allows for the provision of defence, defence and related training items, in accordance with the U.S. Military Training and Education Program (IMET)39, from the U.S. government to the Interim Administration of Afghanistan (AIA).
As we have already discussed, Congress has approved pacts that change the status of the Marshall Islands, Micronesia and Palau of the former territories and possessions in independent states (FAS) 143.143 The language of the pacts requires the conclusion of a SOFA between the parties concerned. The Marshall Islands and Micronesia closed SOFAs with the United States in 2004.144 Palau closed a SOFA with the United States in 1986.145 In the case of Afghanistan, SOFA, in force since 2003, provides that the U.S. Department of Defense grants military and civilian personnel the same status as the administrative and technical personnel of the U.S. Embassy under the 1961 Vienna Convention on Diplomatic Relations. As a result, U.S. personnel are immune from prosecution by the Afghan authorities and are immune to civilian and administrative jurisdiction, except for acts performed outside their duties. The Afghan government has also expressly authorized the U.S. government to exercise criminal responsibility for U.S. personnel.
Thus, according to the existing SOFA, the United States would have the responsibility to prosecute the serving member who allegedly attacked Afghan civilians.