On 23 January 2025, the International Criminal Court’s Office of the Prosecutor (OTP) issued arrest warrants for Taliban leaders Haibatullah Akhundzada and Abdul Hakim Haqqani, citing gender persecution as a crime against humanity under Article 7(1)(h) of the Rome Statute. This marks a significant moment as it highlights the criminal responsibilities tied to gender persecution beyond just women and girls, stretching it to include LGBTQI+ individuals who resist Taliban views on gender.
Historically, Afghanistan has faced scrutiny from the OTP since 2017, culminating in a 2020-approved investigation. The warrants requested in January 2025 followed referrals from multiple countries in late 2024. This ongoing investigation underscores the grave human rights violations occurring under the Taliban’s regime, acknowledging the need to protect all, especially the more vulnerable LGBTQI+ community.
The OTP’s case reveals how the Taliban systematically deprived women, girls, and LGBTQI+ people of their fundamental rights—banning girls from education and forcing women out of public life. Notably, over 1.4 million girls are prohibited from secondary education, while women are barred from work without a male guardian and subjected to severe restrictions on their autonomy. This environment of oppression extends to boys and men who advocate for gender equality, indicating a widespread agenda rooted in control.
Furthermore, the Taliban has enforced severe punishments against LGBTQI+ individuals, including corporal punishment and forced displacement. Documented abuse includes harassment and torture, evidencing a systematic persecution of those who don’t subscribe to Taliban’s rigid gender norms. The OTP provides chilling details of brutal actions taken against LGBTQI+ persons, showcasing a climate of fear created by the regime against any deviation from its strict gender ideology.
The OTP’s widening interpretation of sexual and gender-based violence (SGBV) now comprehends sexual orientation as part of gender persecution, marking a historic potential shift in international law. The nuanced definition allows for the protection of diverse gender identities, inclusive of allies of women’s rights. This interpretation diverges from traditional notions, emphasising that gender encompasses broader identities and experiences of discrimination.
Through its policies released over the years, the OTP has consistently acknowledged that GBV against LGBTQI+ individuals should fall under the purview of persecution within the Rome Statute. Their unique perspective focuses on the oppressive societal structures established by the Taliban, framing an understanding of gender that challenges traditional binaries and uplifts human rights as defined globally.
The OTP is pushing boundaries in international criminal law by combing gender persecution with LGBTQI+ rights, advocating for comprehensive protection against all forms of gendered violence. The implications of this are profound, as they set the stage for an inclusive interpretation of international laws that have traditionally excluded LGBTQI+ concerns, thus encouraging a more holistic approach to human rights protection in future.
The article discusses the ICC’s OTP’s filing of arrest warrants against Taliban leaders for gender persecution as a crime against humanity. This marks a groundbreaking interpretation that includes LGBTQI+ rights under gender-based violence. The Taliban’s systemic denial of rights to women, girls, and LGBTQI+ individuals is detailed, showcasing severe human rights violations in Afghanistan. The OTP’s approach could redefine how sexual orientation is protected under international law, promising a significant shift in perspectives on gender in legal contexts.
The OTP’s broadened interpretation of gender-based persecution, which now encompasses LGBTQI+ rights, represents a pivotal moment in international criminal law. By framing the Taliban’s actions within this new understanding, the OTP highlights the necessity for inclusive human rights protections. As the world awaits the Pre-Trial Chamber II’s decision, this case could significantly alter the landscape for the acknowledgement and protection of LGBTQI+ persons within international law, possibly ending their marginalisation.
Original Source: www.ejiltalk.org
