Karim Khan, the Prosecutor of the International Criminal Court (ICC) recently made a significant move by requesting arrest warrants for two Taliban leaders, Haibatullah Akhundzada and Abdul Hakim Haqqani from the Pre-trial Chamber two (II). This request focuses on crimes against humanity, particularly the systematic persecution of women and girls in Afghanistan. These crimes include banning women from education, employment, and public life, as well as enforcing harsh restrictions on their freedoms since the Taliban took control in August 2021.
The ICC has jurisdiction in Afghanistan because it is a State Party to the Rome Statute, having joined in 2003. This gives the ICC the legal permission to investigate crimes committed on Afghan territory. Even though the Taliban now controls Afghanistan, they cannot withdraw from the ICC. This is because the Taliban have not been recognized as the legitimate government internationally. Additionally, even if they were recognized, the ICC would still retain jurisdiction over crimes committed while Afghanistan was a member of the Rome Statute.
This request of the ICC Prosecutor for the arrest warrants highlights crimes committed after the Taliban’s takeover in August 2021. The focus is on policies that systematically oppress women and girls, which the ICC sees as deliberate and widespread violations of international law.
The ICC Prosecutor’s case against Taliban leaders focuses on non-sexual gender-based crimes, unlike earlier cases such as Dominic Ongwen (Uganda) and Al Hassan (Mali), which centered on sexual violence. This case emphasizes actions like banning women from education and public life, demonstrating that systemic, non-sexual oppression can also constitute crimes against humanity under the Rome Statute. Therefore, the Prosecutor’s request holds unique legal significance, relatively setting a precedent. Below, we outline three key reasons for this significance:
One reason is that unlike earlier cases where gender-based crimes were part of broader charges like rape, sexual slavery, murder, torture or forced marriage, the Taliban case centers almost exclusively on policy-driven oppression of women. The crimes include banning education, employment, and movement for women and girls, emphasizing the systematic nature of gender-based violations, which is rare in ICC practice.
Another reason is that the crimes being emphasized in the ICC Prosecutor’s request—such as banning education and employment for women—may expand the interpretation of what constitutes persecution under Article 7(1)(h) of the Rome Statute. This could set a practical precedent for addressing forms of gender-based oppression that are non-sexual in nature but equally severe in their impact on human rights.
Finally, the third important reason why this Prosecutor’s request holds unique legal significance is the state-sanctioned nature of the persecution. The Taliban’s policies represent a formalized, institutional attack on women’s rights, implemented at the state level. While past cases dealt with non-state actors like militias or warlords, this case highlights state complicity in gender-based crimes, broadening the ICC’s approach to holding governments legal accountable for systematic oppression.
There are also reports, primarily non-legal in nature, suggesting that, in addition to the legal aspect of fulfilling justice, the ICC Prosecutor’s request to arrest the two aforementioned Taliban leaders could be interpreted from a non-legal perspective as a signal by the ICC to dissuade the U.S. Congress from passing a bill imposing sanctions on the ICC. However, a detailed analysis of these reports falls outside the scope of our discussion.
Written on: Monday, January 29th, 2025
By: Dr. Mohammad Salimi, Dr. Fereydoon Jafari
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Sources:
- International Criminal Court. “Statement by ICC Prosecutor on Request for Arrest Warrants in Afghanistan.” https://www.icc-cpi.int
- Rome Statute of the International Criminal Court, Article 12(2).
- United Nations Treaty Collection. “Rome Statute Ratification Status – Afghanistan.” https://treaties.un.org
- Amnesty International. “Afghanistan: Systematic Oppression of Women and Girls Under Taliban Rule.” https://www.amnesty.org
- ICC Case Information Sheets: Dominic Ongwen & Al Hassan. https://www.icc-cpi.int
- Rome Statute of the International Criminal Court, Article 7(1)(h).
- “Taliban Policies and Their Impact on Women and Girls.” https://unama.unmissions.org
