Gender Persecution at the International Criminal Court: The ICC Issues Arrest Warrants against Taliban Leaders for Crimes against Humanity

On 8 July 2025, Pre-Trial Chamber II of the Worldwide Prison Courtroom issued arrest warrants towards two senior Taliban leaders within the State of affairs in Afghanistan. The Workplace of the Prosecutor (OTP) hailed the warrants as an ‘necessary vindication and acknowledgement of the rights of Afghan ladies and women’, with their issuance receiving intensive media consideration and supportive commentary from civil society. The Taliban, for its half, condemned the issuance and said that it doesn’t acknowledge the authority of the ICC.

As to specifics, the criminality alleged is persecution as against the law towards humanity below Article 7(1)(h) of the Rome Statute (RS). Specifically, on the core of the case is the crime of gender persecution. The suspects are Haibatullah Akhundzada, Supreme Chief of the Taliban, and Abdul Hakim Haqqani, Chief Justice of the Taliban. The warrants stay below seal. Drawing on the Courtroom’s public statements, this publish offers an outline of sure points of the warrants.

Procedural Background

The procedural background is advanced. Briefly, Afghanistan acceded to the Rome Statute on 10 February 2003. After a protracted preliminary examination, the OTP requested authorisation of an investigation pursuant to Article 15 RS on 20 November 2017. This request was rejected by Pre-Trial Chamber II on 12 April 2019, a choice overturned unanimously by the Appeals Chamber on 5 March 2020. The Appeals Chamber amended the PTC’s resolution with the impact that the:

Prosecutor is authorised to begin an investigation ‘in relation to alleged crimes dedicated on the territory of Afghanistan within the interval since 1 Could 2003, in addition to different alleged crimes which have a nexus to the armed battle in Afghanistan and are sufficiently linked to the state of affairs and had been dedicated on the territory of different States Events within the interval since 1 July 2002.

Thereafter, on 26 March 2020 Afghanistan filed a request for deferral of the investigation below Article 18(2) of the Statute, pursuant to which ‘the Prosecutor shall defer to the State’s investigation of these individuals until the Pre-Trial Chamber, on the applying of the Prosecutor, decides to authorize the investigation.’ On 27 September 2021, the Prosecution requested authorisation to renew its investigation, with the Prosecutor asserting publicly a revised focus of the investigation and the de-prioritisation of different crimes (and potential perpetrators):

In making ready to renew my investigation, if authorisation is granted, I’m cognizant of the restricted assets out there to my Workplace relative to the dimensions and nature of crimes inside the jurisdiction of the Courtroom which might be being or have been dedicated in numerous components of the world. I’ve subsequently determined to focus my Workplace’s investigations in Afghanistan on crimes allegedly dedicated by the Taliban and the Islamic State – Khorasan Province (“IS-Ok”) and to deprioritise different points of this investigation.

The Prosecution’s request for resumption was granted by the PTC on 31 October 2022, although not with out touch upon the de-prioritisation resolution (para 58):

The Chamber emphasises that, however the Prosecutor’s 27 September 2021 assertion to the media wherein a modified focus was referred to, the current authorisation pertains to all alleged crimes and actors that had been topic to the Prosecution’s ‘Request for authorisation of an investigation pursuant to article 15’, for which the Appeals Chamber has granted authorisation.

After clarification of the PTC’s resolution by the Appeals Chamber on 4 April 2023, the OTP additionally acquired a referral from six State events—Chile, Costa Rica, Spain, France, Luxembourg, and Mexico—below Articles 13 and 14 of the Statute. The referral explicitly drew consideration to crimes towards ladies and women dedicated because the Taliban took energy. The Prosecutor introduced the submitting of two purposes for arrest warrants on 23 January 2025. These are the warrants issued by the Chamber earlier this week.

Crimes inside the Jurisdiction of the Courtroom and Modes of Legal responsibility

As famous above, the warrants are below seal, however the Courtroom’s public assertion offers a brief abstract:

The Chamber has discovered that there are cheap grounds to consider that Mr Haibatullah Akhundzada and Mr Abdul Hakim Haqqani have dedicated by ordering, inducing or soliciting the crime towards humanity of persecution, below article 7(1)(h) of the Rome Statute, on gender grounds towards women, ladies and different individuals non-conforming with the Taliban’s coverage on gender, gender identification or expression; and on political grounds towards individuals perceived as “allies of women and girls”. These crimes are believed to have been dedicated on the territory of Afghanistan because the Taliban seized energy on 15 August 2021, and have continued till at the least 20 January 2025.

To recall, the Statute defines persecution in Article 7(2)(h) as ‘the intentional and extreme deprivation of elementary rights opposite to worldwide regulation by cause of the identification of the group or collectivity’, which should be dedicated in reference to one other act below Article 7(1)(a) or one other crime inside the Courtroom’s jurisdiction. At problem, particularly, is gender persecution. The Courtroom’s assertion notes that the PTC thought of that ‘the Taliban severely disadvantaged, by decrees and edicts, women and girls of the rights to training, privateness and household life and the freedoms of motion, expression, thought, conscience and faith’, and focused others due to their expressions of sexuality and/or gender identification. It additionally refers back to the persecution, on political grounds, of ‘allies of ladies or ladies.’

As to modes of legal responsibility, the related provision is Article 25(3)(b) RS, which offers for the person prison duty of an individual who ‘orders, solicits or induces the fee’ of against the law inside the jurisdiction of the Courtroom.

Some Points of the Warrants

The issuance of those warrants follows from the OTP’s de-prioritisation resolution talked about above and re-focusing of the investigation on criminality by the Taliban regime. On this respect, the Fall of Kabul in August 2021 seems to be a elementary break within the investigation within the State of affairs in Afghanistan. To recall, this de-prioritisation resolution acquired criticism from civil society and in scholarship, and, as famous above, provoked passing remark by the Pre-Trial Chamber. Nonetheless, these warrants stand to easily verify the importance and scope of prosecutorial alternative below the Statute.

As to the crimes themselves, the importance is at the least three-fold. First, the warrants point out continued consideration on the ICC to the crime of gender persecution, which has been topic to intensive scholarly consideration within the aftermath of the Hassan case. On the core of the Prosecution’s utility is the Taliban’s imposition of a coercive and discriminatory system of management on ladies and women in Afghanistan.

Second, the PTC additionally discovered, encompassed inside the crime of gender persecution, the focusing on of people for ‘expressions of sexuality and/or gender identification … considered inconsistent with the Taliban’s coverage on gender.’ On this respect, Professor Lisa Davis, the OTP’s Particular Advisor on Gender and different Discriminatory Crimes, tweeted: ‘That is the primary time in historical past a global tribunal has confirmed LGBTQI+ victims of crimes towards humanity, specifically gender persecution.’

Third, and extra technically, the warrants are necessary of their recognition that worldwide prison regulation does seize what the Courtroom’s assertion describes as ‘systemic and institutionalised types of hurt.’ To recall, the rights violations had been imposed, particularly, by decrees and edicts, and concern systematic violations of rights to training, privateness, household life, motion, expression, thought, conscience and faith. That’s, the warrants give attention to acts that don’t relate, in a slender sense to the safety of life and bodily integrity. It’s true that there stays a statutory requirement of a linked act or crime, however their issuance entails additional acceptance, of potential significance in different conditions below investigation, of the criminalization of systemic types of discrimination that destroy freedom.

Lastly, two further factors come up—one referring to modes of legal responsibility and one referring to the identification of one of many defendants. As to modes of legal responsibility, the arrest warrants are primarily based on Article 25(3)(b) – duty for ordering, soliciting, or inducing. As plenty of students have famous, the primary different below 25(3)(b) – ordering – is curiously positioned within the Statute provided that Article 25(3)(a) explicitly refers to fee ‘by one other individual’, and that ordering appears qualitatively completely different from the opposite two alternate options. In any occasion, it’s hanging to see the issuance of warrants for senior State officers – the Supreme Chief and Chief Justice – for core regime insurance policies utilizing a mode of legal responsibility apart from Article 25(3)(a). On this respect, it’s tough to supply additional remark, provided that the related sections on particular person prison duty within the Prosecution’s Purposes are redacted and the warrants stay below seal.

As to the defendants, one of many two suspects—Abdul Hakim Haqqani—is known as by the Courtroom because the Chief Justice of Afghanistan. That is hanging in itself, as it’s tough to seek out situations within the historic document of the prosecution of judges for worldwide crimes. The Justice Trial (1947) in proceedings earlier than the Nuremburg Navy Tribunal is the plain instance, however more moderen tribunals don’t seem to have pursued judicial defendants. It’s true, on one hand, that sure advanced questions of legal responsibility might come up in such circumstances, which scholarship has solely began to grapple with. Then again, for sure sorts of worldwide crimes in sure sorts of political system, judicial participation is crucial to the execution of the general prison scheme. (For a wider reflection in relation to the authorized order in apartheid South Africa, see David Dyzenhaus’ Judging the Judges, Judging Ourselves).

Conclusion

In fact, the issuance of warrants is one factor; arrest and give up is one other. Furthermore, it isn’t easy to evaluate potential political and diplomatic results on the Taliban and wider state of affairs. Nonetheless, their issuance does stand as a major act of condemnation of the regime’s ‘systematic try and erase all ladies from public life.’