Symposium on Prosecuting Heads of State for International Crimes: Prosecuting Taliban Leaders for International Crimes

[Pablo Gavira-Díaz is a Spanish lawyer specializing in international humanitarian law and international criminal law. He holds a PhD in public international law from the University of Kiel and currently works as a Project Officer at the International Nuremberg Principles Academy]

Introduction

The Taliban returned to power in Afghanistan in August 2021 following the withdrawal of U.S. forces and other allies from the country. Despite initial assurances of openness and reform, the rights and social visibility of women, girls and LGBTQI+ persons have progressively eroded, rendering these groups invisible under the current Afghan regime. This regression is not wholly unexpected, as the Taliban’s contemporary governance practices largely replicate the modus operandi employed during their earlier period in power (1996-2001). In August 2024, the Taliban’s Ministry of Justice released the “Law on the Promotion of Virtue and the Prevention of Vice”, formally codifying the exclusion of women and girls from public life – an approach the UN High Commissioner for Human Rights described as “utterly intolerable”.

A number of initiatives have sharpened calls for legal accountability: both activating (Independent Investigative Mechanism, Permanent People’s Tribunal) and devising (on gender apartheid, see here, here, here and here) mechanisms to address gender-based discrimination, oppression and exclusion in Afghanistan. In June 2025, the Committee on the Elimination of Discrimination against Women  (CEDAW) reviewed Afghanistan for the first time since the Taliban’s return to power and found that the authorities are systematically violating the Convention (para. 11). The Committee called for a comprehensive accountability strategy, including action before the International Criminal Court (ICC) and the International Court of Justice (ICJ), as well as the use of universal jurisdiction at the national level (para. 10).

International Accountability Mechanisms

In recent years, significant developments have emerged in response to large-scale systematic violations against women, girls and other groups in Afghanistan. In September 2024, Germany, Australia, Canada and the Netherlands announced their intention to initiate proceedings before the ICJ against Afghanistan for breaches of the CEDAW. The complaint invoked Article 29 CEDAW, the Convention’s inter-state jurisdictional clause which prescribes that disputes concerning the treaty’s interpretation or application are to be resolved through negotiation, arbitration or, if “unable to agree on the organization of the arbitration”, by the ICJ. The same provision provides for a six-month period during which states must comply with CEDAW’s negotiation and arbitration requirements before referring a dispute to the ICJ. If the case proceeds, it will mark the first time CEDAW has been invoked as a basis for jurisdiction before the ICJ (Stark, Wigard, Huckerby). 

Most significantly, in July 2025, the ICC Pre-Trial Chamber (PTC) II issued arrest warrants for Haibatullah Akhundzada, Supreme Leader of the Taliban, and Abdul Hakim Haqqani, Chief Justice of the “Islamic Emirate of Afghanistan”, in the context of its investigation into the Islamic Republic of Afghanistan (Jackson). 

ICC Arrest Warrants (as per Press Release)

The two 2025 arrest warrants focus on the crime against humanity under Article 7(1)(h) Rome Statute, concerning persecution on gender grounds against girls, women and other persons who do not conform to the Taliban’s policies on gender, gender identity, or gender expression, as well as persecution on political grounds against individuals perceived as “allies of girls and women”. While the warrants remain under seal, the press release refers to additional acts allegedly committed by the suspects in connection with persecution on gender and political grounds, namely murder, imprisonment, torture, rape and enforced disappearance. Surprisingly, child and forced marriage are not mentioned in the press release, although such offences have been widely reported by civil society actors (Rai, Arwin/Rahimi) and could be characterized as “other inhumane acts” under Article 7(1)(k) Rome Statute (Ongwen, paras. 2741-53).

The Rome Statute confers the Court with jurisdiction over the crime  insofar as persecution takes  place:

“against  any  identifiable  group  or collectivity  on  political,  racial,  national,  ethnic,  cultural,  religious, gender as defined in paragraph 3, or other grounds that are  universally  recognized  as impermissible under international law, in connection with any act referred to in this paragraph or any crime within the jurisdiction of the Court”.

The basis for jurisdiction is complemented by the definition of the crime offered by Article 7(2)(g), which confines its meaning to “the intentional and severe deprivation of fundamental rights contrary to international law by reason of the identity of the group or collectivity”. 

The ICC has previously addressed cases in which persecution on gender grounds was charged (Al Hassan and Abd-Al-Rahman), whereas the ICC Office of the Prosecutor (OTP) has articulated its interpretation of this offence in its Policy on the Crime of Gender Persecution (see also Policy on Gender-based Crimes). The Policy explains that the prohibited act targets “persons because of sex characteristics and/or because of the social constructs and criteria used to define gender”. The same document identifies Afghanistan as an example where gender persecution is being perpetrated (para. 11). In addition, pursuant to Article 7(3) Rome Statute, gender refers to “the two sexes, male and female, within the context of society” (see Oosterveld and Kather/Santos de Carvalho for a broader interpretation of gender in the Rome Statute). Those affected by gender persecution often include women, girls, men, boys and LGBTQI+ individuals.

Of the six required Elements of Crimes (EoC), the most challenging to establish for the case at hand is likely to be the “connection requirement” (see Gavira-Díaz/Martini for reference to the remaining EoC). Persecution as a crime does not stand on its own feet; it must be linked to other acts, which typically accompany a broader discriminatory campaign. For an act to fall under the scope of Article 7(1)(h), the Rome Statute demands a connection or link between the offence, that is taking place on a widespread or systematic basis against any civilian population, and any of prohibited acts listed elsewhere in paragraph 1, which in casu, allegedly relate to murder, imprisonment, torture, rape and enforced disappearance. Accordingly, the conduct cannot qualify as “persecutory” unless and until the connection requirement is established. The press release clarifies that PTC II deemed the alleged underlying acts as part of a “governmental policy that resulted in severe violations of fundamental rights and freedoms of the civilian population of Afghanistan”, which meets the policy requisite demanded by Article 7(2)(a) Rome Statute. Neither the Rome Statute nor the EoC require that connected acts under Article 7(1) meet the contextual elements for crimes against humanity. 

In the January 2025 applications for arrest warrants against Mr Akhundzada and Mr Haqqani, the OTP maintained that “[t]he persecutory conduct of the Taliban was inextricably linked with the commission of acts prohibited by Article 7(1)” (para. 39 in both applications). It further submitted that “there are reasonable grounds to believe” that the suspects committed “numerous acts of persecution on grounds of gender, connected with Article 7(1) acts” (para. 14 in both applications). Should the case proceed, the critical question will be whether the OTP can demonstrate that the widespread gender-based violations are linked to a discriminatory policy and that the alleged underlying offences are neither isolated nor incidental, but rather intertwined with the intentional and severe deprivation of fundamental rights.

Taliban as Representatives of Afghanistan

On the same day of the warrants’ issuance, Taliban spokesperson Zabihullah Mujahid declared that Afghanistan (a State Party since May 2003) no longer recognized the ICC and did not acknowledge any obligations toward it. To date, the UN Secretary-General has not acknowledged receipt of any withdrawal from the ICC by Afghanistan, unlike the formal statement issued in the case of Hungary. A central point of contention is the Taliban’s authority to effectively terminate Afghanistan’s ICC membership, given the regime remains widely unrecognized by the international community. PTC II resolved this issue in February 2022 when, in response to the Prosecutor’s intention to resume investigations in Afghanistan, it held that “changes of governments have no impact on the continuity of States” (para. 15). It further observed that several states and international organizations:

“have officially referred to the group that has seized power as the ‘Afghanistan de facto authorities’ or the ‘de facto government’ of Afghanistan, therefore regarding members of that group as the interlocutors of Afghanistan”

(para. 17)

In July 2025, Russia became the first state to formally recognize the Taliban regime as Afghanistan’s legitimate authority, while other states, including Germany, have accepted Taliban-appointed diplomats for consular functions. 

These developments may affect the Taliban’s capacity to represent Afghanistan in potential proceedings before the ICJ, provided that the conditions set out in Article 29 CEDAW are satisfied. The issue appears to have been resolved in the affirmative (Hasar, Willmer). In a relatively recent instance, the ICJ permitted the military junta to represent Myanmar before the Court in The Gambia v Myanmar case, whereas its President noted that “the parties to a contentious case before the Court are States, not particular governments”.

The fact that the Taliban regime is not widely recognized as the legitimate government of Afghanistan does not affect the exercise of the ICC’s jurisdiction. Even if recognized, Mr Akhundzada and Mr Haqqani, as head of government and a member of government, respectively, would not enjoy immunity before the Court (Article 27 Rome Statute, on “Irrelevance of official capacity”). The issue becomes, however, more complex in horizontal inter-state relations. Before domestic courts exercising universal jurisdiction, recognition may influence whether Taliban officials are entitled to personal immunities under customary international law (see Mimran and Relva/Todeschini). 

Nevertheless, the Taliban regime’s insularity renders the execution of the ICC arrest warrants highly unlikely, unless an improbable governmental crisis or political transition were to occur (as in the case of Rodrigo Duterte). An alternative would be to pursue a strategy similar to the “Kony experiment” – namely, initiating a proceeding in the suspect’s absence (Anderson, Brandon/Gavira-Díaz), which could arguably offer some satisfaction to actors seeking justice, should the charges against Mr Akhundzada and Mr Haqqani ultimately be confirmed.

Conclusion

The situation of women, girls and other groups in Afghanistan evokes Margaret Atwood’s fictional Republic of Gilead, where women endure severe discrimination, are regarded as the lesser sex and compelled to submit to male authority. In October 2024, the Court of Justice of the European Union held that the Taliban’s discriminatory measures against Afghan women, considered “as a whole”, fall within the notion of an “act of persecution” under Article 9(1) of Directive 2011/95/EU (paras. 31–46). This ruling, which arose from challenges to Austria’s refusal to grant refugee status to two Afghan women, confirms that, since at least August 2021, a systematic and repressive program has been implemented in Afghanistan with the deliberate aim of stripping women, girls and other groups of their fundamental freedoms. The thrust of such an intolerable policy is the Taliban government’s discriminatory intent. 

Regrettably, in recent months, some states appear to be establishing forms of engagement with the Taliban regime, as noted above. If such normalization is accompanied by significant, demonstrable and independently verified improvements in the human rights situation, these steps may warrant careful appraisal. This two-way approach should be regarded as a conditio sine qua non for states, such as Germany, that are exploring avenues for cooperation with the Taliban regime. Given that Germany’s apparent tolerance towards the Taliban is closely observed by other states, any expansion of political or diplomatic space that risks perpetuating impunity could ultimately weaken, rather than strengthen, prospects for accountability. 

On a visit to The Hague in February 2026, German Minister of Justice Stefanie Hubig reiterated “Germany’s support for international jurisdiction”, noting that even those in positions of power who attempt to distort or disregard the law ultimately “remain subject to it” (author’s own translation). Although Germany’s engagement with the Taliban could politically be interpreted as expanding room for impunity, proceedings initiated before German courts through universal jurisdiction align with Minister Hubig’s remarks (Polakiewicz, Schlesinger). Moreover, the arrest of a Libyan suspect and his recent surrender to the ICC by German authorities underscore that accountability efforts are progressing alongside political developments.

Note from Author: The author would like to thank Dr Andrea Maria Pelliconi, Elizabet Kakabadze and Matilde Gamba for their valuable comments and suggestions on an earlier draft of this post. The author wishes to clarify that the views expressed in this post are solely his own and do not necessarily represent those of his affiliated institution.