Landmark ICC Arrest Warrant Application Seeks to Hold the Taliban Accountable for Homophobic and Transphobic Persecution

[Artemis Akbary is a Co-Founder and Executive Director of ALO: the Afghan LGBT+ Organization, and member of the Gender Persecution in Afghanistan Accountability Working Group.

Kirby Anwar is a Senior Legal Fellow at Human Rights and Gender Justice Clinic, CUNY School of Law, Advocacy Director at MADRE and member of the Gender Persecution in Afghanistan Accountability Working Group.]

“I was beaten and harassed by the Taliban many times just for being gay,” said Azar, a 20-year-old gay man in Kabul, whose name is changed for his safety. In one of those incidents in mid-2023, Taliban members beat him in the street, then arrested and tortured him for days in a hidden, informal holding space. 

Like countless other LGBTQI+ people in Afghanistan, Azar now lives in constant fear for his life, afraid he may be attacked even when going out to buy food. The Taliban have targeted LGBTQI+ people under some of the same sweeping discriminatory rules that are used to persecute women.  

Taliban patrols regularly stop those they feel do not conform to their gendered dress and appearance codes, making LGBTQI+ people especially likely to be targeted. The Taliban subject them to sexual violence and other forms of torture as well as arbitrary detention, in some cases attempting to force them to give up names of other LGBTQI+ people. They also proudly announce online the public flogging of people on charges of homosexuality. 

“I need justice and expect justice systems to protect us against any violation of our rights,” Azar said.

While there currently is no hope for justice for him in Afghanistan, the International Criminal Court (ICC) has taken an important step towards protecting LGBTQI+ people under international law. On 23 January, ICC prosecutors announced they are seeking arrest warrants against Taliban leaders Haibatullah Akhundzada and Abdul Hakim Haqqani, accusing them of the crime against humanity of gender persecution committed against women, girls, and—for the first time in its history—LGBTQI+ individuals. 

LGBTQI+ people have long been targeted during conflicts and atrocities, with crimes documented as far back as World War II, but there has never been justice for this persecution. There are signs the tide is shifting. In 2023, Colombia’s Special Jurisdiction for Peace—a transitional justice body meant to address grave crimes and rights violations committed during its armed conflict—announced charges for gender persecution alongside other crimes committed by guerilla fighters against women, girls and LGBTQI+ people, noting many Afro-descendant and Indigenous victims were targeted based on both gender and ethnicity.

The decision cited a 2022 policy issued by the ICC’s Office of the Prosecutor that clarifies that LGBTQI+ people can be targeted for the crime against humanity of gender persecution. The policy notes that “gender-based crimes are used by perpetrators to regulate or punish those who are perceived to transgress gender criteria that define ‘accepted’ forms of gender expression manifest in, for example, roles, behaviors, activities, or attributes.” The applications for warrants are the beginnings of an effort to make that argument before the ICC’s judges. 

While LGBTQI+ people in Afghanistan have never enjoyed legal protections, the Taliban’s seizure of power dramatically heightened the dangers they face. Prior to the Taliban’s takeover in 2021, the punishment for same-sex acts was lengthy imprisonment. LGBTQI+ people faced widespread discrimination and high rates of violence. As they took power, Taliban members immediately began targeting LGBTQI+ people. 

LGBTQI+ Afghans also report the Taliban’s rise to power made them more vulnerable to violence from their families and communities. In just one example, a young transgender woman was living with other trans friends when the Taliban took Kabul. In October 2021, her family reported her to the Taliban, which sent armed men to the house who arrested and beat her for days. They threatened to send her to her family for further abuse but she managed to escape and ultimately leave the country. 

While subjecting LGBTQI+ people to extreme violence and other fundamental rights deprivations, the Taliban also seeks to erase and deny their existence. Public or even private acknowledgment of LGBTQI+ identity is not allowed. The Taliban’s “Promotion of Virtue and Prevention of Vice” decree announced in August that prohibits women from speaking in public also outlaws same-sex relationships. The decree grants further powers of surveillance and arbitrary punishment to its network of enforcers. Lesbian, bisexual, trans, and queer women and girls as well as transgender men who are misgendered as women, are especially vulnerable. They confront homophobia and transphobia as well as the Taliban’s deprivations of women’s and girls’ rights, including to free movement, education, and work. 

The news that ICC prosecutors are seeking arrest warrants for Taliban leadership should invigorate further international response to the crimes and rights violations the Taliban is committing. The next step is for judges to approve the warrants, at which point states parties to the Rome Statute will be obligated to honor them—a point that should go without saying. Given several states’ disregard of ICC arrest warrants for Netanyahu and Putin, however, it bears stating that for international justice to be effective, including for LGBTQI+ victims, states must honor all ICC warrants. 

The ICC, however, is just one of the tools the international community should use to hold the Taliban accountable and support LGBTQI+ Afghans. Potential uses of universal jurisdiction should be also explored. In addition to robustly supporting the UN Special Rapporteur on Afghanistan’s mandate, states should create an independent international investigative mechanism to collect and preserve evidence of rights violations and crimes, including gender crimes, committed both prior to and after August 2021.

Many governments have moved towards normalizing relationships with the Taliban. The request for warrants at the ICC is a reminder that the international community cannot accept this brutal regime. Given their victimization, LGBTQI+ Afghans must receive a meaningful role in international decision making on Afghanistan’s future—an obligation supported by UN Security Council Resolution 2467, requiring a gender violence survivor-centered approach to peace negotiations and transitional justice. 

States should also ensure that LGBTQI+ people in Afghanistan have access to pathways to seek asylum and resettlement in safer countries. The arrest warrant application confirms what LGBTQI+ people in Afghanistan already know: They face unprecedented risk in Afghanistan and require the world’s solidarity.  

“The Taliban has put me and my friends at risk and created a frightening space to live in. We expect the international community to support LGBTQI+ rights and stop discrimination against us in Afghanistan,” Azar said. 

Photo attribution: “Rainbow in the Arghandab Valley near Jelawur, Afghanistan” by SapperWillie is licenced under CC BY-SA 4.0