No Time to Lose - Oxfam

tion/prosecution, in practice this takes place at the commander’s discretion.
111 Most cases adjudicated by military courts are traffic offenses,
and the prosecution of senior officers is exceptionally rare. 112
Under Afghan law, military courts have concurrent jurisdiction with
civilian criminal courts over offences that violate both military and
civilian criminal law 113 - meaning that if the military justice system
fails to investigate/prosecute a case, the case can be pursued in the
civilian criminal courts. But this concurrent jurisdiction is not recognised
in practice. As described by one ISAF official, ‘the monster we
created is a self-contained military justice system which the strongmen
at the top can turn on or off.’ 114
The past couple of years have seen a number of positive developments.
The latest version of the Military Criminal Procedure Code,
passed last June, imposes a check on the power of the Corps Commander
by empowering the Chief of the General Staff Legal Department
(‘GS Legal’) to authorise investigations where the Corps Commander
fails to do so. 115 Further, in a structural change recently approved
by the Ministry of Defence, the ANA regional legal offices are
to be removed from the Corps Commands and made directly accountable
to GS Legal. And lastly, the new ANA Code of Structure
and Authority for CID and Military Prosecutors (‘CID Law’) stipulates
that commanders are responsible for referring cases to the CID and
the prosecutor for investigation/prosecution, that ‘no military authority
is entitled to interfere or influence the duties and authorities of
CID members and military prosecutors’, and that the CID and military
prosecutors are directly responsible to GS Legal. 116 The legislation
has been languishing in parliament since 2008, but once passed
will be an important step towards credible, independent investigation
and prosecution. As stated by one ISAF official, ‘you can’t install rule
of law if you don’t have honest, objective, independent investigators
who can’t be subjected to commander influence’. 117
Minimising ‘Collateral Damage’
Finally, some significant steps have been taken by international military
forces to minimise civilian harm caused during the course of military
operations, and to improve the international response to civilian
casualty incidents. Recent ISAF initiatives include tactical directives
restricting ‘close air support’ for ground troops in populated areas;
tactical directives regarding the conduct of night raids (including the
requirement that compensation claim forms and contact details be left
at the site); the issuance of standard operating procedures on the escalation
of force and the investigation of civilian casualties; ‘non-binding
guidelines’ on ex-gratia payments and in-kind assistance following
civilian casualty incidents or damage to civilian property; and the
creation of a civilian casualty tracking cell. 118 While far from perfect,
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