On 23 January 2025, the Office of the Prosecutor (OTP) before the International Criminal Court (ICC) filed two arrest warrants before the Pre-Trial Chamber II (PTC II), one for the Supreme Leader of the Taliban, Haibatullah Akhundzada, and the other for the Chief Justice of the “Islamic Emirate of Afghanistan”, Abdul Hakim Haqqani.
The OTP filed the warrants of arrest due to their criminal responsibility for the crime against humanity of gender persecution, under Article 7(1)(h) of the Rome Statute.
In both requests, the crime of persecution has been based on gender grounds (Article 7(3) of the Rome Statute). However, the sexual and gender-based violence ( SGBV) was not only committed against girls and women but also against LGBTQI+ persons and those who were allies of women because the victims did not conform to the Taliban’s ideology on gender.
Interestingly, the OTP examined Article 7(3) of the Rome Statute to extend protections to sexual orientation and non-conforming gender identities (transgender and intersex persons) within the concept of gender. At the ICC, this is the first concrete application of the OTP’s interpretation of gender-based persecution despite the Colombian Special Jurisdiction for Peace having asserted this possibility back in 2021.
The situation in Afghanistan
The Islamic Republic of Afghanistan has been under the examination of the OTP since 20 November 2017. In 2020, the Appeals Chamber of the ICC authorised the investigation, which was followed by a deferral granted by the PTC II in 2022. In November 2024, Chile, Costa Rica, Spain, France, Luxembourg, and Mexico referred the Afghan situation before the OTP, which responded by confirming that there was an active investigation. On 23 January 2025, the OTP requested those two warrants of arrest against the Supreme Leader of the Taliban, Haibatullah Akhundzada, and the Chief Justice of the “Islamic Emirate of Afghanistan”, Abdul Hakim Haqqani.
Facts of the case: The Taliban’s persecution of girls, women and their allies, and LGBTQI+ persons.
For the first time in an ongoing investigation, the OTP applied its interpretation of SGBV to include the protection of non-conforming gender expression and sexual orientation, which syllogistically protects LGBTQI+ persons.
The warrants of arrest detailed how Taliban leaders deprived women, girls, and LGBTQI+ individuals of fundamental rights, including the rights to education, to free movement and free expression, to private and family life, to free assembly, and to physical integrity and autonomy.
Regarding girls, the Taliban progressively banned girls over the age of 12-13 from attending school and prohibited their university enrollment. According to the United Nations Office for the Coordination of Humanitarian Affairs, more than 1.4 million girls have been prohibited from accessing secondary education.
Women have been consistently deprived of public life and excluded from working. The Taliban replaced the former Ministry for Women’s Affairs with the Ministry for the Promotion of Virtue and the Prevention of Evil (PVPE), which the name itself confirms how women are situated in a gendered and reductive framing. According to UN Women, in 2021, a decree mandated that all women must be accompanied by a male relative or guardian (mahram) when travelling, and in 2022, the Taliban imposed a ban on women working for national and international NGOs, which was followed by a much more restrictive ban in 2023 that prohibited women from owning beauty salons. Women are not allowed in public spaces, not even to celebrate their religions, like attending Eid celebrations or going to public parks. Taliban also targeted boys and men who were considered allies to women and in favour of women’s rights.
The Taliban instituted “morality crimes” to punish members of the LGBTQI+ community. The de facto criminal justice in Afghanistan perpetrated corporal and capital punishments against LGBTQI+ persons. The Human Rights Watch demonstrated that the Taliban has committed persecution not only to LGBTQI+ persons but also to their families, which has led to the forced displacement of many persons. The OTP showed evidence that the Taliban’s persecution consisted of targeting lesbian women, gay men, queer, transgender or intersex persons through harassment, beatings, detainment, torture, or subjection to sexual violences (§90). The OTP describes horrible scenes of “stoning or crushing under a 2-3m high wall, intentionally collapsed onto the [LGBTQI+] victim” (§96).
Finally, to prove the crime against humanity of persecution, the OTP provided evidence that the Taliban systematically targeted those groups of victims (girls, women, their allies and the LGBTQI+ persons) through depriving fundamental rights of those victims as a collectivity by imposing discriminatory rules and prohibitions (the element of organisational policy); and then enforcing violent and coercive punishments against those civilians who breached the Taliban’s ideology on gender. According to the OTP, the Taliban created a “deep climate of fear” in Afghanistan for those who did not conform to their policies (§3).
This widespread gender-based persecution focused on three main groups: girls and women, their allies and the LGBTQI+ community. However, how did the OTP insert the protection of sexual orientation under gender-based persecution?
The OTP’s diagonal protection of sexual orientation and non-conforming gender identities through gender.
Sexual and gender-based violence (SGBV) has been under the radar of the OTP for a while. In 2014, the OTP released its first Policy Paper on Sexual and Gender-Based Crimes, which was followed by the 2022 and 2023 Policy on Gender-Based Crimes. In all those policy papers, the OTP understood that sexual orientation and LGBTQI+ persons are protected under the Rome Statute. For example, in the 2023 Policy, gender is “a social construct” that “refers to social constructs and criteria about roles, expressions and behaviours used to define maleness and femaleness in a given context” (§17 and §19). From this concept of gender, the OTP defines gender perspective as
“the understanding of differences in status, power, roles, and needs between men and women, including/and LGBTQI+ persons, and how gender inequality and discrimination on the basis of sex, gender identity or sexual orientation may impact people’s opportunities, interactions, and experiences in a given context”. (§20)
Therefore, the OTP’s interpretation of gender, while it does not equate gender to women’s rights, enables the protection of other grounds, like sexual orientation, and other gender identities, like cisgender male allies of women, under the framework of gender-based expressions and persecution.
This inclusive interpretation of gender provides diagonal protection for other grounds, extending safeguards to individuals based on sexual orientation and non-conforming gender identities. Article 21(3) also dictates that internationally recognised human rights must be used when applying and interpreting the Rome Statute. This is why the OTP, in those two warrants, used the jurisprudence of the Inter-American Court of Human Rights and the European Court of Human Rights to assert the baselines for gender protection.
Under the concept of gender perspective, Article 7(1)(h) of the Rome Statute is interpreted to incorporate SGBV against LGBTQI+ persons as a crime against humanity of persecution.
The OTP construes the concept of gender persecution from the perpetrator’s point of view. Taliban’s ideology on gender is rigid and reductive, according to the OTP (§29). The gendered dimension of the Taliban’s persecution demonstrates that “society is and must be strictly divided between females and males, and females are not entitled to the same rights and freedoms as males” (§29). Also, the Taliban’s ideological expectations are circumscribed to persons being either heterosexual cisgender males or heterosexual cisgender females -nothing apart from that. Thus, the persecution of LGBTQI+ persons is not because they are part of a specific group but because the organisation policy and widespread targeting committed by the Taliban was focused on civilians who did not fit into the gender binary. According to the OTP:
Members of the LGBTQI+ community in Afghanistan were often perceived by Taliban members as not conforming with their ideological expectations of gender identity or expression—either because the person concerned did not identify as belonging to the gender which the Taliban assumed to be correct for them, or because the persons did not otherwise act in a way the Taliban considered appropriate for that gender (§92).
Concluding remarks
It is thought-provoking how the OTP encompassed sexual orientation through gender-based persecution, especially by framing how the Taliban’s own binary construction of gender goes against internationally recognised human rights and the gender concept in Article 7(3) of the Rome Statute. This diagonal protection of LGBTQI+ persons from SGBV is a pioneer and remarkable threshold in international criminal law.
The OTP’s interpretation of gender persecution as inclusive of LGBTQI+ rights marks a groundbreaking development in international criminal law. If upheld, it could set a precedent for addressing gender and sexuality-based persecution worldwide.
The following step is to wait for the PTC II’s decision on whether to include in the concept of gender-based persecution the protection of sexual orientation and non-conforming gender identities. Hopefully, the Court may end the ongoing marginalisation of LGBTQI+ persons in international criminal law.
