Symposium on Prosecuting Asia-Pacific Crimes: Universal Jurisdiction – A Platform to Hold the Taliban and Other Actors Accountable for International Crimes

[Azadah Raz Mohammad is a PhD Candidate at the Melbourne Law School where she is completing a PhD in international criminal law at Melbourne Law School.

Karin M Frodé is a Lecturer and Clinical Supervisor at the Monash University Faculty of Law, where she also completed a PhD in international human rights law.]

A well-known statement in international criminal law posits that “the future of international criminal law is domestic.” This proposition reflects the growing recognition that national courts play a crucial role in investigating and prosecuting perpetrators of international crimes, particularly where international mechanisms face jurisdictional, political, or practical limitations. Afghanistan’s context raises an important question as to whether this vision can be realised in circumstances where domestic accountability mechanisms have effectively ceased to function. Universal jurisdiction is a platform still largely under-explored when it comes to Afghanistan, and here, we consider both the potential and challenges of this avenue as one way for international criminal law to be domestic (and international at the same time).

Afghanistan’s contemporary history has been marked by nearly five decades of protracted conflicts and serious allegations of international crimes. Throughout this period, accountability for serious international crimes has remained largely absent, contributing to a persistent cycle of impunity. It is often argued that the failure to address past atrocities undermines prospects for sustainable peace and enables the recurrence of violence and abuse. In Afghanistan, the absence of accountability for alleged international crimes committed during the Taliban’s first time in power (1996 – 2001), arguably contributed to conditions that facilitated the Taliban’s return to power for the second time on 15 August 2021.

Following the Taliban’s takeover in 2021, Afghanistan’s formal judicial and constitutional framework was substantially dismantled and replaced by a system governed through decrees and edicts issued by the Taliban’s Supreme Leader and other so-called “de facto authorities”. In the absence of effective domestic mechanisms capable of investigating and prosecuting international crimes, many survivors have turned to international avenues, including the International Criminal Court (ICC), in search of justice. However, given the practical and legal limitations facing international accountability mechanisms, the principle of complementarity suggests that national courts in third states also have an important role to play through the exercise of universal jurisdiction. Given the gravity of the allegations against Taliban officials in Afghanistan, the use of universal jurisdiction offers an important pathway to try to ensure that such crimes do not go unpunished and thereby uphold a fundamental objective of international criminal justice: combating impunity for the most serious crimes of concern to the international community.

Potential and Challenges of Universal Jurisdiction in the context of Afghanistan

In the absence of investigations and prosecutions of alleged international crimes under Afghanistan’s domestic legal system, and the limitations of existing international criminal institutions noted above, universal jurisdiction offers one of the few remaining avenues for pursuing accountability of alleged international crimes committed in Afghanistan.

The potential of universal jurisdiction is particularly significant given the extensive allegations of international crimes attributed to the Taliban and other actors throughout different phases of conflict. With regards to the Taliban, this includes their first rule as de facto authorities between 1996 and 2001, their insurgency period as a non-state armed group between 2002 and August 2021, and their current position as the de facto governing authority of Afghanistan. 

These allegations include directing attacks against civilians, extrajudicial killings, torture, persecution of women, ethnic and religious minorities (reported by Amnesty International and Human Rights Watch), imposition of gender apartheid, reprisal against former government officials and security forces documented by United Nations officials, and other conduct that may amount to war crimes and crimes against humanity.

In principle, universal jurisdiction allows national courts to investigate these crimes even where neither Afghanistan nor international tribunals can provide effective accountability. Beyond prosecutions, universal jurisdiction investigations can contribute to preserving evidence, recognising survivor experiences, documenting historical abuses, and signalling that perpetrators of atrocity crimes cannot rely indefinitely on political power or territorial borders to shield themselves from justice.

Despite its promise, the application of universal jurisdiction to crimes committed in Afghanistan faces substantial legal and practical challenges.

First, universal jurisdiction is not applied uniformly across national legal systems. In many jurisdictions, the presence of the accused within the prosecuting state’s territory is a prerequisite for investigation or prosecution. Other states require a connection to national interests, survivors, or the alleged perpetrators.

Second, political will remains perhaps the most significant barrier. Universal jurisdiction cases are often politically sensitive, resource-intensive, and diplomatically complex. Governments may be reluctant to pursue investigations that could affect diplomatic engagement, humanitarian access, migration management, or broader regional stability. Such concerns are particularly relevant in relation to Afghanistan, where some states have increasingly pursued pragmatic engagement with the Taliban. These limitations significantly narrow the opportunities for bringing cases against Taliban members, particularly in the Asia-Pacific region, where relatively few states have demonstrated a willingness to exercise universal jurisdiction for crimes committed abroad.

Third, evidence collection remains a formidable obstacle. Investigating crimes committed over several decades of conflict in Afghanistan is inherently difficult. The current political environment severely restricts access to the country, limits cooperation from authorities, and increases security risks for witnesses and human rights defenders. Furthermore, many allegations relating to Taliban conduct between 1996 and 2021 were never properly investigated, resulting in lost or degraded evidence. Investigators are often forced to rely on refugee testimony, open-source intelligence, reports produced by international organisations, and documentation gathered by civil society groups. While such sources may be valuable, they can raise challenges concerning admissibility, authenticity, reliability, and witness protection. To respond to these challenges, the United Nations Human Rights Council established the Independent Investigative Mechanism for Afghanistan to collect, preserve, analyse and consolidate evidence of international crimes and serious violations of human rights committed in Afghanistan since 1979. By systematically documenting violations and collecting evidence, the mechanisms address longstanding challenges in evidence collection and preservation, helping close critical evidentiary gaps and supporting future accountability efforts.

Nevertheless, despite these considerable obstacles, universal jurisdiction remains an indispensable accountability tool. Although it cannot fully substitute for domestic or international justice mechanisms, it offers a meaningful pathway for preserving evidence, recognising survivors, combating impunity, and ensuring that those responsible for the gravest international crimes remain subject to the possibility of legal accountability.

From Impunity to Empowerment: A Survivor-Centric Approach to Universal Jurisdiction

For the potential of universal jurisdiction to be realised and truly serve as a platform for accountability, it must be accessible to affected communities. This principle of survivor-centric justice has been the driving force behind the Ham Diley Campaign’s work on universal jurisdiction in the context of Afghanistan.

The Ham Diley Campaign was founded in 2021 as a direct response to the Taliban’s violent return to power. While our initial efforts were focused on emergency humanitarian response, we have for the past four years focused our work on exploring pathways for accountability for past and ongoing international crimes at the hands of the Taliban (applicable also to atrocities committed by many other actors during the many decades of conflict).

A turning point for our shift of focus came in early 2022 when a Taliban delegation was officially invited to visit Norway. This incident generated urgent questions among members of the diaspora: what exactly is universal jurisdiction, and how can we be ready to act when opportunities present themselves?

While it may be a common perception that Taliban members do not travel to countries where universal jurisdiction may be a possibility due to travel bans and sanctions, this is not the case. For example, the year after the Norway visit, a senior member was spotted in Germany in 2023, and the EU on June 24 of this year officially invited the Taliban to Brussels to discuss technicalities around the Union’s deportation of Afghan refugees. Further, if the case against Afghanistan brought by Australia, Germany, Canada and the Netherlands for violations of CEDAW comes before the ICJ, another official delegation would be invited to Europe.

These instances highlight that opportunities for action are not theoretical. In response to the commission of more information, we developed the Handbook on Universal Jurisdiction: Holding the Taliban Accountable for International Crimes in close consultation with members from different diaspora communities. It is designed as a practical and accessible resource, translated into both Persian and Pashto to ensure that ownership remains with affected communities.

To realise the project, research and drafting under the supervision of the Campaign was provided by students at the Monash Afghanistan Support Clinic, demonstrating the important role of academic institutions working in partnership with community groups to provide additional support where resources are otherwise scarce.

Since its publication in 2024, the Handbook has inspired further action and capacity-building. The Campaign supported the Afghanistan Programme at the Raoul Wallenberg Institute of Human Rights and Humanitarian Law in developing online and in-person learning materials based on the Handbook for workshops with members of diaspora communities seeking to engage more actively with the principle and consider its potential for practical application. Such workshops build the capacity of Afghan diaspora communities to support accountability efforts by improving their understanding of the legal framework and processes required to pursue cases under universal jurisdiction.

Any future universal jurisdiction cases against the Taliban will, like the ICC arrest warrants and potential cases before the ICJ, likely focus on gender-based crimes. The Campaign’s most recent report, An International Law Inquiry into the Taliban’s Edicts Targeting Women and Girls, analyses the hundreds of edicts which institutionalise systematic oppression and subjugation on the basis of gender. The report aims to add to the extensive evidence of gender-based violence, amounting to nothing short of gender apartheid. Edicts continue to be published on a regular basis. Since the report’s publication, the Taliban has, for example, issued a decree which, amongst other things, enables child marriage.

While the legal and practical barriers to universal jurisdiction are significant, embracing a survivor-centric approach is an important step towards transforming a legal process into a collective endeavour informed and driven by affected communities themselves, rather than on their behalf.