In January 2025, the Workplace of the Prosecutor utilized for warrants to arrest Haibatullah Akhundzada, the Supreme Chief of the Taliban and de facto chief of Afghanistan, and Abdul Hakim Haqqani, the Chief Justice of the Islamic Emirate of Afghanistan, for the crime towards humanity of persecution on gender grounds below article 7(1)(h) of the Rome Statute (beforehand mentioned right here and right here). Arrest warrants had been subsequently issued on July 8, 2025.
The Taliban regime has lengthy argued that it doesn’t respect the authority of the ICC although Afghanistan is a state celebration to the Rome Statute. It has claimed that it’s not certain by the Rome Statute. Nevertheless, to this point, it doesn’t seem to have adopted the trail taken by some state events, which, when confronted with investigations or indictments, have formally tried to withdraw from the Rome Statute (e.g. the Philippines and Burundi). This put up considers whether or not, if in mild of the current arrest warrants, a Taliban withdrawal can be efficient as a matter of worldwide legislation.
Though a withdrawal wouldn’t put an finish to ongoing prosecutions, it might make future indictments unattainable.
Rome Statute Withdrawal Provisions
The Rome Statute permits the withdraw of state events. Article 127(1) gives that: “1. A State Get together might, by written notification addressed to the Secretary-Normal of the United Nations, withdraw from this Statute. The withdrawal shall take impact one 12 months after the date of receipt of the notification, until the notification specifies a later date.”
Nevertheless, had been it to try such a withdrawal, it’s unclear if the Taliban might truly withdraw from the ICC. The issue lies in the truth that the Taliban regime is essentially, though not completely, unrecognized by states (as mentioned in better element beneath). The earlier democratically elected authorities of President Ashraf Ghani, overthrown in 2021, remained acknowledged by the United Nations till 2022. In November of that 12 months, the United Nations Normal Meeting adopted decision A/RES/77/10, “The scenario in Afghanistan”, expressing concern over the Taliban’s take over of Afghanistan and calling for the preservation of democracy within the nation. Afghanistan’s voting rights had been suspended in 2024 for the non-payment of dues. Thus far, the Taliban authorities has not been acknowledged by the United Nations.
Naseer Ahmad Faiq, the chargé d’affaires appointed by the earlier authorities, stays Afghanistan’s consultant on the United Nations. The place reference have to be made to the Taliban in discussions on the United Nations, it’s normally to the de facto authorities (or related) in Afghanistan. For that purpose, the courtroom must flip to the foundations of common worldwide legislation and its earlier jurisprudence to determine a solution to the query.
Earlier ICC Follow
Article 127(1), Rome Statute gives for the withdrawal of a state on notification to the Secretary-Normal of the United Nations. Unsurprisingly maybe, neither the Rome Statute nor the VCLT present particular steerage on conditions the place the identification of a authorities is in query, or how such uncertainty would possibly have an effect on the appropriate of a state to withdraw from a treaty. As an alternative, Article 54, VCLT, gives that: “The termination of a treaty or the withdrawal of a celebration might happen: (a) in conformity with the provisions of the treaty; or (b) at any time by consent of all of the events after session with the opposite contracting States.”
State observe on this regard is restricted. The overall view in worldwide legislation, held since not less than the Tinoco Arbitration, is {that a} authorities can train authority on behalf of a state when it’s in efficient management of a state’s territory and enjoys the routine obedience of the inhabitants. Nevertheless, that is distinct, not less than in precept, from whether or not different states are required to interact in diplomatic relations with that authorities. There isn’t any formal requirement to acknowledge any specific group claiming to be the federal government of a state (until such recognition or non-recognition quantities to prohibited interference within the inside affairs of the state).
Nonetheless, ICC observe factors to 2 potential arguments as to why the Taliban Regime would possibly be capable to withdraw from the Rome Statute. Importantly, this isn’t the primary time the ICC has needed to think about both the flexibility of an unrecognized authorities to bind the state on the worldwide degree or the existence of statehood. In its earlier jurisprudence, the ICC has adopted two assessments to find out the standing of governments and states: a proper recognition-based take a look at and an efficient management take a look at.
First, the courtroom has made clear up to now that it’ll not essentially depend on full membership within the United Nations (though the ICC just isn’t formally a part of the United Nations, the Secretary Normal is the Rome Statute’s depositary), or selections of the Safety Counsel, when figuring out if it ought to acknowledge states (and, by extension, governments). After a protracted collection of makes an attempt, Palestine grew to become the 123rd member of the ICC on April 1, 2015. Preliminary makes an attempt to interact with the ICC had failed. A 2009 referral of the State of affairs in Palestine to the prosecutor failed, with the Workplace of the Prosecutor concluding that “it’s for the related our bodies on the United Nations or the Meeting of States Events to make the authorized willpower whether or not Palestine qualifies as a State for the aim of acceding to the Rome Statute” and that as a result of “the present standing granted to Palestine by the United Nations Normal Meeting is that of ‘observer’, not as a ‘Non‐member State’” it was not eligible to grow to be a state celebration. The courtroom reversed course, with the Credentials Committee recognizing Palestine as a state celebration, and the prosecutor discovering that the choice of the United Nations to improve Palestine to a non-member state meant that it might lodge a declaration accepting the jurisdiction of the ICC.
There may be little question that Afghanistan is an internationally acknowledged state. A number of states, together with many within the Gulf and Central Asia, have begun to enter into diplomatic relations with the Taliban regime, as mentioned beneath.
Second, the courtroom confronted an identical scenario with respect to the tried referral of the scenario in Egypt to the courtroom by the deposed authorities of Mohamed Morsi in 2013. The Workplace of the Prosecutor examined the declaration submitted to the courtroom on December 13, 2013, and located that it was not submitted by any individual with the requisite authority to bind Egypt for the needs of worldwide legislation.
That preliminary referral was submitted on August 10, 2023. The prosecutor discovered, counting on the VCLT, that it was not submitted by people capable of act on behalf of Egypt on the worldwide airplane. The prosecutor relied on adjustments to the UN Protocol Listing, which included the popularity of a brand new Head of State (Adly Mansour), Head of Authorities (Hazem El Beblawi) and Minister of Overseas Affairs (Nabil Fahmy), all of whom had been appointed by Egypt’s new navy authorities in July 2013. Moreover, a brand new Egyptian delegation had been seated on the Normal Meeting with out a vote on 5 December 2013. Not one of the member states, the prosecutor concluded, thought-about that Mohamed Morsi remained the top of the Egyptian authorities, however the choice of the African Union to droop Egypt or the choice of some member states to sentence the coup that introduced the brand new authorities to energy.
Moreover, drawing on the “efficient management” take a look at, the prosecutor discovered that it was the Authorities of President Sisi, somewhat than the earlier authorities, which loved the routine obedience of the majority of the inhabitants, and had an affordable expectancy of permanence (see, particularly, part 4.2.2.4.2), making it capable of bind Egypt as a matter of worldwide legislation. For that purpose, the Workplace of the Prosecutor concluded that President Morsi couldn’t longer train authorities authority on behalf of Egypt.
What’s the Standing of the Taliban Regime?
In contrast to when the Taliban managed giant swathes of Afghanistan previous to 2001 and confronted continued resistance from the Northern Alliance, present resistance inside Afghanistan to the Taliban regime seems nominal. The Taliban seem to benefit from the routine obedience of the inhabitants.
States are divided of their willingness to interact with the Taliban. That is in contrast to the scenario in Egypt, when the overwhelming majority of states, in the event that they condemned the coup, nonetheless accepted the Sisi authorities because the ruler of Egypt.
Conversely, many states, together with all Western states, have refused to acknowledge the Taliban authorities. Recognition is a key standards (see, particularly, part 3.2.1) by which states and governments comply with enter into treaty relations with different governments. Nevertheless, all neighbouring international locations have now entered into some type of diplomatic relations with the regime. It’s controversial that the selections of neighbouring international locations ought to carry better weight, as they’re the international locations which, by advantage of geography, could have essentially the most frequent dealings with the Taliban regime.
Russia was the primary nation to acknowledge Taliban rule, which it did in summer season 2025. China was the primary nation to accredit an envoy appointed by the Taliban. The United Arab Emirates accepted the credentials of Taliban diplomats, starting as early as 2024. Equally, Uzbekistan acknowledged diplomats accredited by the Taliban authorities in that 12 months. Many different international locations have accepted de facto diplomatic ties with the Taliban, together with Pakistan, Turkmenistan, Iran, Qatar, Oman, Malaysia, Iraq, Turkey, Azerbaijan, and Egypt (an excellent checklist of recognition, accreditation and diplomatic relations is offered right here).
Moreover, Turkmenistan and the Taliban authorities are in discussions for the development of the so-called TAPI Pipeline on the territory of Afghanistan, which would offer Turkmen gasoline to South Asia. Equally, Uzbekistan, Afghanistan and Pakistan are in discussions over the development of a railway linking Uzbekistan with the Pakistani port of Gwadar. Even India, historically an ally of the US-backed authorities in Afghanistan, has permitted Taliban diplomatic employees to reside in New Delhi. Tajikistan has permitted a Taliban consulate common to function, though it maintains ties with the previous authorities.
Crucially, although, of these states, solely Tajikistan is a state celebration to the ICC (Uzbekistan, Iran, Oman, and the UAE have signed, however not ratified, the Rome Statute).
Conclusion
As a result of combined recognition accorded to the Taliban regime by the worldwide group, it’s in the end tough to foretell what the Prosecutor or the judges would possibly do if the Taliban tried to withdraw from the Rome Statute. Withdrawal wouldn’t forestall present prosecutions for persevering with, as famous above, however might forestall future indictments.
As a sensible matter, the impact of any withdrawal could also be moot. The ICC report of acquiring custody over people for whom it has issued arrest warrants is decidedly combined. Based mostly on publicly out there knowledge, 32 of 71 particular person indicted by the ICC stay fugitives. If neighbouring states are ready to acknowledge the Taliban regime, it’s nonetheless doubtless that any indictees will stay past the attain of the ICC in The Hague.
