So, can the NZ SAS soldiers apparently responsible for killing two civilians in a botched raid in Kabul on Friday be prosecuted? Not by the Afghans, they can't. The SAS in Afghanistan are working as part of the "International Security Assistance Force", and their presence there is covered by a one-sided Military Technical Agreement [DOC] imposed on the provisional government of Afghanistan by their occupiers. This states that all ISAF personnel will be immune from arrest and detention and will
under all circumstances and at all times be subject to the exclusive jurisdiction of their respective national elements in respect of any criminal or disciplinary offences which may be committed by them on the territory of Afghanistan.Or, in English, "Afghan law does not apply to them". They'll also be immune to any claims for damages to property caused by their actions. So, they can kick in your door, shoot your employees, smash up your factory, and there is nothing anyone in Afghanistan can legally do about it (which is why they join the Taliban - when the law fails, people seek extra-legal solutions).
However, those soldiers are subject to New Zealand law. And we have an obligation to ensure they follow it. They've killed people in circumstances which suggest a prima facie case for manslaughter on behalf of the people pulling the triggers and the people planning the operation. That case must be investigated, and if evidentially supportable, must be prosecuted. We cannot allow New Zealand soldiers to just kill civilians and then walk away as if nothing has happened. If we do, we are not just looking the other way on a crime, we're also inviting our army to start behaving like Americans. And that is something we cannot allow to happen.