Muzhgan Wahaj is a final-year law student at SOAS University of London (School of Oriental and African Studies) and was an intern with the International Justice Program at Human Rights Watch.
In October 1992, under the dim glow of a sun rising behind the Hindu Kush mountains of Afghanistan, my father found himself surrounded by mujahedeen. His traditional black perahan tumban, flat pakol hat and long beard likened him to the executioners who stood before him.
"Professor, is that you?"
The weathered face of a young man emerged from within the ranks of these mujaheds, his rifle slung on his shoulder as he approached my father with the same respect as when he would enter his classroom as a student at Kabul University. I cannot imagine the emotion that might have consumed my father at that moment, or my mother, who watched the events unfold from a small truck at the junction of the road, two small children and an infant clinging to her side. At just over a year old, I was the youngest.
This chance encounter between a professor and his former student ensured our safe passage at the Torkham border into Pakistan, and shielded us from the crosshairs of Kalashnikovs that had framed the final moments of so many lives. Under the command of rival warlords, the mujaheds had littered the streets of Kabul with the bodies of our friends and neighbours, vying for control of a city they had reduced to ash.
When factions of these fighters later formed the Taliban, many joined the movement in resistance against local warlords, while others were forcibly conscripted. The difficult truth is that the Taliban are the Afghan people, as are the civilians subdued under their rule, and as is the diaspora that watches from afar the decimation of our culture and history. Afghans need no more than one or two degrees of separation to find themselves in the company of a talib, a mujahed, or a warlord, who were in the years prior simply neighbours, shopkeepers and promising engineering students.
In the decades that have followed the Soviet invasion of Afghanistan, continued foreign intervention in domestic political affairs has weakened confidence in national institutions. Concessions of amnesty to known warlords under current justice schemes have undermined the government, which has entirely disregarded the national desire for justice by appointing these ruthless warlords to office. While tactical support by regional powers such as Saudi Arabia, Pakistan and, more recently, Iran continues to bolster the Taliban in their war with domestic and international forces, government corruption has inadvertently seeded legitimacy for the talibs once more.
The Taliban and the warlords in office are woven into the fabric of Afghan society in such a way that domestic accountability in any meaningful sense is impossible. Restoration of local faith in the institutions of justice requires an initiative that is independent of this web, and the International Criminal Court prosecutor's request to open an investigation into the country is a step in that direction. The court has the capacity to investigate and prosecute the world's worst crimes when the country involved cannot or will not pursue justice for the victims.
Afghanistan is struggling now to step out from the shadow of war and mass atrocities, with a near-impossible task of identifying victims and perpetrators in a society marred by cyclical abuse. The potential for an ICC investigation into grave crimes committed in Afghanistan by members of the Taliban, Afghan forces and U.S. forces offers unprecedented hope for accountability. With a focus on those in positions of command, an ICC investigation would allow the Afghan people to find recourse against those at the highest echelons of the militaries that have orchestrated these grave abuses. That the investigation reaches foreign militaries is an integral and legitimizing element of this justice.
An impartial ICC investigation could be an opportunity to give a voice to the Afghan people, to hear honest and undiluted accounts of the atrocities that have been committed on land that has long been the graveyard of justice. This opportunity should not be missed, and it should not be overshadowed by any potential hostility of the United States over the inclusion of its personnel in the scope of the investigation. An independent investigation that looks squarely at all parties to the conflict is a necessary assurance against sham proceedings and shady dealings that Afghanistan needs to set its national conceptions of law on a new trajectory, one that undoes the normalization of violent retribution and vigilante justice in the country.
The International Criminal Court, bound by its own institutional limitations, is by no means a panacea, but it is uniquely suited to offer Afghanistan some momentum for change – one baton among many that I hope to see the Afghan people carry forward themselves. Afghanistan should use this opportunity to find some resolution in its past, to hold abusers to account, and to begin to reconcile within itself a deeply traumatized and deeply divided people.