International Criminal Court Opens Glimmer of Justice for Afghan Women

The article was published on Altreconomia

On January 23, 2025, the Chief Prosecutor of the International Criminal Court (ICC) Karim Khan launched a strong indictment against the Taliban: he requested the arrest of the supreme leader, Mullah Hibatullah Akhundzada, and his chief judge, Abdul Hakim Haqqani, because they are held responsible for the crime against humanity of gender persecution.

The documented accusation is in two long and detailed documents that provide an overview of the crimes committed by the Taliban in the last three and a half years and of the direct role of the two accused in planning and supporting the systematic violation of the rights of women and LGBTQI+ people, a persecution committed at least since August 15, 2021 and until today throughout the territory of Afghanistan.

It is a historic decision: for the first time, a request for an investigation by the ICC focuses on the crime of gender persecution as the main crime, and not only for the persecutory actions against women and girls but also for those carried out against LGBTQI+ people

A courageous act, which overcomes the hesitations and contradictory policies of the UN and the so-called democratic states that formally refuse to recognize the Taliban government but in the meantime invite their representatives to international conferences and do business with them.

Finally, something is moving at an institutional level in defense of Afghan women and their right to existence. Someone has noticed their daily unbearable suffering and, going beyond abstract declarations in defense of human rights, has exposed themselves with a concrete act.

Faced with the absolute impermeability of the Taliban government to the injunctions of international institutions that require the withdrawal of measures and the restoration of women’s rights, the answer cannot be to erase the problem from political agendas and withdraw from pressure to curry favor with the Taliban with trade concessions and economic aid. Nor can it be to bet on a division of the Taliban front in order to support its more moderate exponents, because there are no bad Talibans and good Talibans: they are all fundamentalists anyway.

The proven continued oppression of women as a gender and of people who do not conform to the Taliban’s worldview would have been better defined by the term “gender apartheid” (GDA), which is now widely used to refer to the systematic persecution of women that occurs in Afghanistan, and in a less blatant way also in other countries. But the ICC could not use this term because ADG is not a crime under the Rome Statute, which includes apartheid based on ethnic discrimination but not gender.

Although the ICC has tried to update and integrate the crime of gender persecution, ADG remains a broader and more comprehensive definition of all the facets and political aspects that gender differences include. Therefore, there are calls from various quarters to revise the Rome Statute by integrating it with the specific crime of ADG. The Italian Coordination in Support of Afghan Women (CISDA) also joins this request in its “Stop Fundamentalism – Stop Gender Apartheid Campaign” already launched in November 2024.

Last September, Canada, Germany, Australia and the Netherlands, followed later by 20 other nations, announced their intention to refer the Taliban to the highest court of the United Nations, the International Court of Justice, for widespread violations of human rights against women in failure to comply with the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) to which Afghanistan is a signatory. The procedure is ongoing, we will see in the coming months how it will progress.

Meanwhile, on November 28, Chile, Costa Rica, Spain, France, Luxembourg and Mexico urged the ICC prosecutor to investigate the systematic and continuous violations of women’s and girls’ rights by the Taliban.

Granting their request, the prosecutor, who had already announced the resumption of investigations into the situation in Afghanistan after a period of deferral, submitted arrest warrants for the two Taliban in late January.

The ICC judges have three months to decide whether to grant the request. If the warrants are issued, the two men could be arrested in any member state of the Court, although, given their propensity to remain within friendly countries, arrests and trials are in reality a distant prospect.

This may therefore seem to have little practical effect. However, even if these warrants do not lead to the immediate arrest and prosecution of the Taliban leaders, they would still have the effect of damaging their political standing  face to world public opinion. They would represent a significant step in the fight against international recognition of the Taliban government, at a time when many States and the UN itself are working to find humanitarian and economic justifications that would allow the Taliban government to be recognized as having the right to re-enter the international community despite their fundamentalist vision, condemned in words by all States but suffered in reality in the name of pragmatism.

The ICC’s stance forces us to remember that the tragedy of women in Afghanistan is still alive, a country that has disappeared from the media radar due to other more recent catastrophes and the awareness that public opinion often easily forgets tragedies as soon as they leave the immediate present.

But above all, it should make it clear to politicians and world institutions that engaging with the Taliban government, inviting them to international conferences, and mediating with them means giving credibility to a government of criminals.

For women victims of gender persecution, the prospect opened by the ICC represents a hope of recognition of the gravity of their suffering and their courage. But if justice wants to be fair, it must not forget the responsibilities of Western countries. In the twenty years of war and occupation, coalition forces, led by the United States, have committed numerous acts of violence and torture against the civilian population.

Human Rights Watch (Hrw) and Amnesty International rightly point out that all victims are equal and have an equal right to recognition and compensation. Therefore, the ICC must not limit itself to taking into consideration the recent victims of the Taliban government but must instead reconsider the responsibilities of all actors in the field guilty of acts of barbarity, violence, torture and injustice that have caused the numerous civilian victims.

Afghanistan joined the Treaty of Rome in 2003, which established the ICC. It was 2006 when a preliminary examination was launched into the possible war crimes and crimes against humanity committed in Afghanistan by the various parties, namely the US Army and the CIA, the Afghan security forces and the Taliban and Haqqani network. But it was only in 2017 that the then prosecutor Fatou Bensouda asked the judges of the Pre-Trial Chamber to authorize the official investigation.

Years of inaction passed while waiting for a decision to be made on what scope of investigation was allowed to be carried out. And when in 2023 it was allowed to include in the investigations also the recent “new actors” in addition to those responsible for the previous twenty years, Khan decided to focus his investigations on the Taliban and the ISCP, effectively excluding the CIA, the US Army and the forces of the Republic of Afghanistan from his jurisdiction, considering it too onerous to conduct research on cases of such large scale.

A decision that was perhaps realistic but which created a “hierarchy of victims” determined by the identity of the alleged perpetrator, rather than by the scale and gravity of the crimes. “An insult to thousands of victims of crimes committed by Afghan government forces and US and NATO forces,” as an Afghan activist rightly called it.

The ICC is currently facing significant international pressure, which could have consequences on its investigations and its very existence. The States Parties to the Rome Statute that governs the Court, including Italy, should confirm the importance of this institution and concretely support the exercise of its independent mandate, guaranteeing it with support and practical assistance the possibility of expanding its investigations in Afghanistan.