The Prosecutor of the International Criminal Court, Karim Khan, has requested arrest warrants for two of the most senior leaders of the Islamic Emirate. Khan said that there were “reasonable grounds” to believe that Supreme Leader Hibatullah Akhundzada and Chief Justice Abdul Hakim Haqqani bear “criminal responsibility for the crime against humanity of persecution on gender grounds.” If the warrants are issued, the two men could be arrested in any ICC member country, although given how reclusive both are, arrests – and trials – are, in reality, a distant prospect. Even so, as Rachel Reid and Roxanna Shapour report, after decades of atrocities and impunity in Afghanistan, this moment has great symbolic importance, and may also increase international pressure on the Emirate.

On 23 January 2025, the ICC prosecutor asked the three judges of the court’s Pre-Trial Chamber II to issue arrest warrants for the Supreme Leader of the Islamic Emirate of Afghanistan (IEA), Hibatullah Akhundzada, and its Chief Justice, Abdul Hakim Haqqani. Prosecutor Khan said that “[a]fter a thorough investigation and on the basis of evidence collected,” he believes there are “reasonable grounds to believe” that these two men “bear criminal responsibility for the crime against humanity of persecution on gender grounds.” Khan noted: “severe deprivations of victims’ fundamental rights,” including “the right to physical integrity and autonomy, education, to private and family life and to free assembly.” For the first time in ICC history, gender persecution has been used to include crimes against humanity against LGBTQ+ people: the warrants of arrest both men alleged that “[a]longside girls and women themselves, the Taliban also targeted other persons whom they considered not to conform with their ideological expectations of gender identity or expression. This included members of the LGBTQI+ community.”^[1]LGBTQI+ refers to lesbian, gay, bisexual, transgender, queer, intersex and other people.

The prosecutor said his action reflected the gravity of the situation in Afghanistan:

These applications recognise that Afghan women and girls as well as the LGBTQI+ community are facing an unprecedented, unconscionable and ongoing persecution by the Taliban. Our action signals that the status quo for women and girls in Afghanistan is not acceptable. Afghan survivors, in particular women and girls, deserve accountability before a court of law.

What’s in the applications?

The ICC prosecutor’s applications for arrest warrants for Akhundzada and Haqqani provide a detailed, albeit redacted, account of the crimes the two men stand accused of. In the filings, the prosecutor asserts that there are “reasonable grounds” to hold the two men responsible for the crime against humanity of persecution on gender grounds “committed by the Taliban and persons affiliated to them across the territory of Afghanistan from at least 15 August 2021,” under Article 7(1)(h) of the Rome Statute.^[2]Article 7 (1) (h) of the Rome Statute defines: 1. For the purpose of this Statute, “crime against humanity” means any of the following acts when committed as part of a widespread or systematic … Continue reading

While the ICC prosecutor has submitted the applications confidentially, they are not sealed (meaning they are not secret). A redacted version of the filings, which removes any references that could identify victims and witnesses, has been publicly released. The victims and witnesses requested that the filing be made public, stating that it would send “a clear sign that the suffering of the civilian population in Afghanistan has not been forgotten.” The Office of the Prosecutor also believed it was important to make this information available as “the alleged crime is ongoing, and even this limited awareness of the application could help the victims and affected communities.”

Even as heavily redacted as they are, these two documents provide a robust account of the Taleban’s alleged crimes, which:

[S]everely deprived the targeted persons of their fundamental rights in two ways: first, through imposing discriminatory rules and prohibitions upon them (which, as such, unlawfully restricted the exercise of fundamental rights, and thus per se constituted a severe deprivation of rights); and, second, where necessary, through the violent enforcement of those discriminatory rules and prohibitions. For many victims, the pervasive coercive environment created by the Taliban – and its tight control over Afghan society – was such that direct force was often unnecessary: there was no real choice but to comply.

The filings go on to enumerate some of the offences committed by the Emirate against Afghan women and girls, which the ICC prosecutor asserts have affected nearly every aspect of their lives:

• ⁠For girls, secular education over grade 6 (aged 12-13) was banned and access to university education severely restricted – both in terms of admission and the types of study permitted.
• Women were excluded from the world of work. Their employment in certain sectors (such as government and law) or by certain entities (such as by NGOs or the United Nations) was progressively prohibited, and male relatives urged to attend work in their place. Businesses owned or primarily used by women, such as beauty and hair salons, were closed.
• Girls and women were removed from the public sphere more broadly. They were prohibited from travelling far without a male guardian (mahram). They were restricted from accessing a wide variety of public places. When they were allowed in public, they were coerced into conforming to highly burdensome restrictions on dress and appearance. Their faces could no longer be shown. The sound of their voices was silenced.

Among the acts listed, the filing also noted that resistance has been “brutally repressed … through the commission of crimes including murder, imprisonment, torture, rape and other forms of sexual violence, enforced disappearance and other inhumane acts.”

In the application, the Office of the Prosecutor attributed these restrictions to “a rigid and reductive conception of gender,” which it said was “central to the Taliban ideology” – one which envisioned a society “divided between females and males, where females are not entitled to the same rights and freedoms as males.” The end result, as shown by the evidence the ICC has received is “a suffocating environment in which women and girls were excluded from all aspects of public life.”

Two decades on the road to (some possibility of) justice

For Afghans, the journey to the request for these arrest warrants may seem relatively short. Mention of the Taleban’s alleged gender persecution appeared, for example, in the former chief prosecutor Bensouda’s 2016 Preliminary Examination, her last before requesting a full investigation the following year.^[3]Bensouda’s 2016 Preliminary Examination said: There is a reasonable basis to believe that the Taliban and their affiliates have committed the crimes against humanity of murder, article 7(1)(a), … Continue reading However, it was one crime among many allegedly committed by the Taleban, and the movement itself was only one perpetrator among many named. The victims and witnesses of those other crimes and other perpetrators are still waiting for the ICC’s work to go beyond the investigation stage (that precedes the possible issuing of arrest warrants) or have already had to face the fact that Khan has effectively dropped even investigating them. (Also, of course, the ICC can only ever adjudicate crimes allegedly committed after Afghanistan ratified the Rome Statute in 2003, so perpetrators of war crimes committed in the two decades preceding this date are free of ICC scrutiny.) It is worth briefly recounting how very long the ICC has been involved in Afghanistan and how little, up till now, it has actioned.

It was in 2006 that the ICC’s Office of the Prosecutor initiated a preliminary examination into possible crimes under the court’s jurisdiction committed in Afghanistan. It was not until 2017 that then-prosecutor Fatou Bensouda asked the judges of the Pre-Trial Chamber for authorisation to start an official investigation into war crimes and crimes against humanity allegedly committed by various parties. They included the United States military and CIA for torture, including torture allegedly committed in Poland, Romania and Lithuania (in CIA black sites where detainees were rendered from Afghanistan),^[4]In Bensouda’s 2016 Preliminary Examination, she reported that members of the CIA and US military had, during interrogations of security detainees and in conduct supporting those … Continue reading Afghan security forces, again for torture^[5]Bensouda named the Afghan intelligence agency, the National Directorate of Security (NDS), the Afghan National Police, Afghan National Army, Afghan National Border Police and the Afghan Local Police … Continue reading and the Taleban and Haqqani network for war crimes including murder and intentionally directing attacks against the civilian population and humanitarian personnel.

Even then, it took another five years for Bensouda to get the go-ahead to launch her investigation: the Pre-Trial Chamber II rejected her request to investigate, a decision only overturned on appeal, with the Pre-Trial Chamber eventually, in November 2022, giving permission to the prosecutor, albeit limiting her to looking into only those crimes allegedly committed before 5 March 2020 (see AAN reporting here).

The then new prosecutor, Karim Khan, appealed this decision in June 2021 and finally, in April 2023, the ICC’s Appeal Chamber ruled in his favour, allowing his office to expand the scope of their investigation to include later crimes and “new actors,” such as the Islamic State of Khorasan (ISKP). However, he had also decided to focus his investigation to the Taleban and ISKP, effectively dropping the CIA, US military and (by now) former Afghan government forces from his purview. As we described it, this put them “beyond ICC justice at least for the foreseeable future” and created a “hierarchy of victims.”

Along the way, there have been many other hurdles, including the last Trump administration making excoriating attacks against the ICC (AAN reporting here) and eventually imposing sanctions on Bensouda and other senior ICC officials (see Human Rights Watch reporting), and attempts by the former government to derail the investigation by filing for it to be deferred, claiming violations were being investigated domestically.

Timeline of the International Criminal Court investigation in Afghanistan

2003 Islamic Republic of Afghanistan ratifies the Rome Statute, giving jurisdiction to the ICC to investigate and prosecute war crimes and crimes against humanity committed on its soil or by its citizens after 1 May 2003.

2006 The Office of the Prosecutor of the ICC begins a preliminary examination of war crimes and crimes against humanity in Afghanistan. It is made public in 2007 (see AAN report).

2017 The then prosecutor, Fatou Bensouda, requests the judges of the Pre-Trial Chamber to authorise an investigation (see AAN report).

April 2019 The judges turn down her request (see AAN report).

September 2019 The prosecution appeals the April 2019 decision of the judges (see AAN report).

March 2020 An appeal ruling finds in favour of the prosecution and an investigation is launched (see AAN report).

March 2020 The former government blocks the investigation by requesting a deferral, arguing that the alleged crimes were already being investigated domestically (see AAN report).

27 September 2021 New prosecutor Karim Khan requests the judges to reject Afghanistan’s deferral request and resume its investigation, but with a narrower focus than Bensouda had asked for – just the Taleban and ISKP – and for other actors (the CIA and US military and the Republic’s armed forces and intelligence agency) to be ‘de-prioritised’ (see AAN report).

31 October 2022 The judges grant Khan’s request, but stress the investigation should be according to the 2017 request (see AAN report).

7 November 2022 The prosecution appeals paragraph 59 of the judges’ decision, which limited the investigation’s scope to alleged crimes before 5 March 2020, and barred the prosecutor from investigating alleged crimes committed by “new parties,” including the Islamic State Khorasan Province.

4 April 2023 the Appeals Chamber issues its Judgment on the Prosecutor’s appeal, amending the Pre-Trial Chamber II’s decision and paving the way for the prosecutor to expand the scope of his investigation.

28 November 2024 A coalition of six countries, Chile, Costa Rica, France, Luxembourg, Mexico and Spain, file a referral of the Situation in Afghanistan, expressing concern over the severe deterioration of the human rights situation in Afghanistan, especially for women and girls and asking the prosecutor to examine the alleged crimes as part of his ongoing investigation.

23 January 2025 The Office of the ICC prosecutor files applications for arrest warrants to be issued for Supreme Leader Hibatullah Akhundzada and Chief Justice Abdul Hakim Haqqani for the crime against humanity of persecution on gender grounds, under Article 7(1)(h) of the Rome Statute.

What’s next?

The request for arrest warrants is highly likely to be approved. In the ICC system, a request for an indictment goes from the prosecutor to judges in a Pre-Trial Chamber only when the prosecutor is satisfied that there is sufficient evidence. Khan noted that his multidisciplinary team had gathered a wide range of evidence, including “expert and witness testimonies, official decrees, forensic reports, statements by the suspects themselves and other Taliban representatives, and audio-visual material.”

However, the ICC does not hold trials in absentia, so victims will not have their day in court unless there are arrests. Neither the supreme leader nor the chief justice are known to travel, and most senior officials confine their travel to neighbouring states or Saudi Arabia for Hajj (places less likely to cooperate with the ICC).^[6]The 125 States Parties to the Rome Statute are responsible for enforcing arrest warrants issued by the ICC. In addition to these states, 29 countries have signed but have not yet ratified the Rome … Continue reading Unlike many in the upper echelons of the IEA, Hibatullah is not listed by the United Nations Sanctions team, so he is not subject to travel bans, having only become leader in 2016, since when the listing process has been mired in high-level politics at the Security Council.

The Chief Justice, Abdul Hakim Haqqani, was added to the European Union’s sanctions list in 2023, a listing that highlighted his role in gender persecution, including shaping “the Taliban’s ideology with regard to gender repression, in particular by issuing guidance for the systematic exclusion of women and girls from public life in Afghanistan.” One primary source of evidence for that could be Haqqani’s 2022 book, The Islamic Emirate and its System of Governance, which includes a lengthy religious justification for women’s exclusion from public life (see John Butt’s review for AAN, ‘A Taleban Theory of State: A review of the Chief Justice’s book of jurisprudence’).

IEA officials are generally quick to dismiss charges of human rights violations. For example, in a tweet on 26 September 2024, deputy spokesman Hamdullah Fitrat said:

The Afghanistan Islamic Emirate is blamed for violation of human rights and gender apartheid by some countries and factions. Human rights are protected in Afghanistan and no one is discriminated against.

Generally, officials dismiss criticism of IEA policies concerning women and girls as foreign interference in domestic and religious matters, while also claiming to protect women’s rights within a framework of sharia. Sometimes, there are blunter statements. For example, the acting Higher Education Minister, Neda Muhammad Nadim, said in 2022 that schooling for women had used a model imported from “Westerners and infidels” which brought “a version of debauchery and obscenity to Afghanistan” and which had been opposed by Islamic clerics, historically, because “it contradicts Islam, Afghanistan and our pride” (see news report here).

Any appeal to religion will not hold legal ground, however, should it ever be made in court, according to a video statement released by Khan: “My office further stipulates that the Taleban’s interpretation of Sharia should not and may not be used to justify the deprivation of fundamental human rights or the related commission of Rome Statute crimes.”

Apart from the request for permission to issue arrest warrants for Akhundzada and Haqqani, Khan stressed he would “file further applications for other senior members of the Taliban soon,” though he did not say whether these additional requests would also relate to gender persecution. He noted that his team was also still investigating crimes by the Islamic State in Khorasan Province (ISKP). His statement gave no reason to assume that he had gone back on this 2021 ‘deprioritisation’ of other alleged perpetrators from the former Islamic republic forces, the US military and the CIA.

Afghan – and other – reactions

The news that the ICC prosecutor was seeking arrest warrants for the two senior Emirate leaders was welcomed by a number of Afghan human rights defenders, relieved to see some concrete action after years of delay from the court. Executive Director of Rawadari and former chair of the Afghanistan Independent Human Rights Commission (AIHRC), Shahrazad Akbar, said in a tweet: “After decades of injustice, an important step towards justice. Congratulations to the people of Afghanistan, to the women of Afghanistan, to the victims.”In an allusion to victims not seeing the possibility of justice in this strand of ICC investigation, Akbar insisted:

This should be a beginning for justice; a first step. Looking forward to more arrest warrants, looking forward to the International Court of Justice, looking forward to the trial and ignominy for all criminals.

UN Special Rapporteur on the human rights situation in Afghanistan, Richard Bennett, in a tweet, called the applications:

Crucial step forward by #ICC for accountability in #Afghanistan. Powerful messages – to Taliban leaders that justice will be pursued for their egregious crimes, and to the people of Afghanistan that their rights have not been forgotten.

Several human rights organisations also released statements welcoming the applications, including the Afghanistan Human Rights and Democracy Organisation (AHRDO), which in an emailed statement said:

After years of anticipation amid prolonged legal proceedings, this marks the first time in history that the ICC has issued arrest warrants against leaders of the de facto regime in Afghanistan. It is a significant moment for generations of Afghans who have endured relentless violence due to decades of armed conflict and underscores the need for further action. We must seize this moment and continue to hold all perpetrators accountable for their crimes, provide reparations to the victim-survivors, and bring an end to the cycle of impunity that has reigned for far too long in Afghanistan.

AHRDO also quoted an Afghan victim who said: “This request has reignited the flame of justice that we have kept alive for years. Now is the time to ensure that this fire does not die out but grows stronger.”

The inclusion of LGBTQI+ people in the application was applauded by the founder of the Afghan LGBT Organisation (ALO), Artemis Akbary, who tweeted that this was a “historic moment because it is the first time in history that the ICC has officially recognized the crimes committed against LGBTIQ+ people” and added that the application “sends a strong message that the international community rejects the gender persecution of LGBTIQ+ people!”

The following day, 24 January 2025, there was an official Emirate response to the ICC request for arrest warrants. In a series of tweets, the foreign ministry decried the move as being “devoid of just legal basis, duplicitous in nature and politically motivated.” The statement accused the ICC of “turn[ing] a blind eye to the war crimes & crimes against humanity committed by foreign forces & their domestic allies during their twenty-year occupation of Afghanistan,” adding, “Such inappropriate behavior further erodes the already non-existent credibility of the said institution, and renders its status & decisions completely meaningless on international level.”

Afghanistan’s domestic media outlets, which are obligated to obtain approval from the relevant IEA authorities before publishing their stories, have, so far, remained silent and have not provided any coverage or commentary on this significant development in Afghanistan’s ongoing case at the ICC.

The road ahead

Afghans have suffered decades of atrocities, but have rarely seen justice. There have been countless victims of torture, rape, disappearance, massacres and murders. Speaking to AAN on 23 January, Shahrazad Akbar commented on the years-long struggle to see ICC indictments issued for at least some of the perpetrators in Afghanistan: “They have been looking into the situation of Afghanistan since 2007, but there were so many obstacles. So, it has taken a long time and it’s insufficient as it is just one of the actors – the Taleban. But still [it is] very welcome, of course.” The ICC purview can only cover crimes committed in Afghanistan after it ratified the Rome Statute in 2003. As to those committed before then, few have been prosecuted, and those almost entirely in European courts. As Kate Clark observed in her September 2024 report, “Instances of accountability for war crimes and human rights violations committed In Afghanistan since 1978 are so few it is possible to list them in a few sentences.”^[7]These include the the Khalqi head of intelligence, Abdullah Sarwary, convicted in 2006 by an Afghan court of mass killing, and a handful of Afghans who have been put on trial in Europe under … Continue reading This makes the prospect of ICC indictments all the more significant.

However, it may be many years before these indictments can be put into effect, if ever, given the reticence of the IEA’s Supreme Leader and Chief Justice to travel. If any warrants remain unacted upon, that will not be for the first time. The ICC currently lists 25 people of various nationalities against whom warrants have been issued that “remain at large.” Even so, for the victims of the Emirate’s alleged gender persecution, this week’s news from The Hague offers a glimmer of hope – an acknowledgement that their suffering has not been forgotten and that the gravity of their experiences is being recognised.

Edited by Jelena Bejlica and Kate Clark

Revisions:

This article was last updated on 26 Jan 2025