Holding Power to Account: The ICC’s Step Toward Justice for LGBTIQ+ Rights in Taliban-Controlled Afghanistan

Author: Irem Cakmak, LLM

April 2, 2025

Image by PradeepGaurs

1. Introduction

Afghanistan has experienced prolonged periods of instability, influenced by both internal strife and external interventions. The situation worsened dramatically when the Islamic militia group Taliban regained control in August 2021, following the withdrawal of U.S. forces. The reestablishment of the Taliban regime led to significant shifts in the country's political, social, and legal frameworks, particularly concerning the rights of marginalized communities. Among the most vulnerable groups are LGBTIQ+ individuals, who face intensified persecution under the Taliban's strict interpretation of Sharia law.

In a significant development for international justice, the International Criminal Court (ICC) Prosecutor, Karim Ahmad Khan, requested arrest warrants for two senior Taliban leaders, Hibatullah Akhundzada and Abdul Hakim Haqqani, for crimes against humanity, specifically gender persecution on 23 January 2025. This request, which includes persecution of LGBTIQ+ individuals, could represent an important moment in the legal recognition of the rights of sexual minorities within international law.

For the first time, the ICC's investigation recognizes the persecution of LGBTIQ+ individuals as part of a broader pattern of gender-based violence, marking a crucial step in strengthening legal protections for marginalized groups under international law.

Under the Taliban regime, women and LGBTQ+ individuals face a shared struggle against a system that enforces gender norms and limits personal freedom. The Taliban's interpretation of gender roles relegates women and LGBTQ+ people to positions of vulnerability and exclusion, both of which are central to the power dynamics in this oppressive system.

For both women and LGBTIQ+ gender nonconformity is forbidden. Solely being an LGBTIQ+ individual is by itself considered a deviation from Taliban’s gender norms and deemed worthy of punishment. And women must adhere to gender roles by being in positions of submission and domesticity.

As a result, both women and LGBTQ+ individuals are oppressed because they fail to fit into the narrow definition of what is considered acceptable by the Taliban. Women, because they are excluded from power and public life, and LGBTQ+ individuals, because they challenge the rigid gender and sexual roles prescribed by the regime. Their struggles are interconnected, as both groups face erasure, violence, and punishment for defying the strict power dynamics upheld by the Taliban.

Therefore, recognizing the persecution faced by both women and LGBTIQ+ individuals is a crucial step by the ICC, paving the way for a more inclusive and effective system of gender-based protection in international law.

2. Afghanistan under Taliban

   
   

Mothers and sisters: What about personhood?

The Taliban regime has systematically stripped women of rights and legal personhood by imposing over 100 decrees since they regained power in 2021, that severely restrict their freedoms. These include bans on education after 6th grade, prohibitions on most forms of employment, and extreme measures such as banning buildings from having windows that might allow a woman to be seen from the outside. Women are left largely confined to their homes, barred from public life and essential services.

Moreover, under Taliban rule, women are not recognized as independent legal persons. Instead, they are treated as dependents of their male relatives by law. As Taliban Deputy Prime Minister Abdul Salam Hanafi stated, “Women are our mothers, sisters, we respect them a lot, when their sons are in the gathering it means they are also involved in a way, in the gathering.” The Taliban have also enforced strict dress codes and mandated male guardianship for women traveling distances over 72 kilometers.

These oppressive policies systematically erased women and girls from public life. The Taliban institutionalized this repression by replacing the Ministry of Women with the Ministry for the Promotion of Virtue and the Prevention of Vice, granting men direct authority over women’s lives.

Against Sharia, will not be protected

Afghanistan has never been a safe country for LGBTIQ+ individuals, even prior to Taliban-rule. They live under threat of persecution primarily due to the establishment interpretation of Sharia, the criminalizing provisions in the new Penal Code, and–even if not prosecuted under these laws–the arbitrary decisions of local authorities. It was made clear numerous times by Taliban officials that LGBTIQ+ rights are against their interpretation of Sharia; therefore, they will not be respected.

Afghanistan follows a pluralistic legal system that integrates multiple sources of law, as outlined in Article 130 of its Constitution. Among these, Sharia plays a dominant role in shaping criminal law. Although Article 29 of the Constitution outlaws  ‘punishment contrary to human dignity,’ the pluralistic system and the influence of Sharia law makes it possible to prescribe corporal punishments. There is a broad consensus that same-sex acts are considered sexual contact outside of marriage (adultery) under Sharia law making them punishable by death by stoning.

Consensual same-sex relationships were previously penalized under broader provisions like Article 427 of the former Penal Code, which carried sentences of up to 20 years for ‘pederasty.’ However, the revised Penalty Code, entered into force in 2018, particularly Sections 645-650 of Book 4, defined homosexuality as a crime explicitly for the first time. Therefore, the situation for LGBTIQ+ individuals in Afghanistan has become increasingly dangerous. Moreover, in 2024, the Taliban escalated oppressive and discriminatory policies  against LGBTIQ+ individuals with the Propagation of Virtue and Prevention of Vice Law, which criminalizes acts such as ‘lesbianism’ and ‘anal sex,’ intensifying the risks faced by LGBTIQ+ people in Afghanistan.

The evidence suggests that de facto authorities have imposed severe penalties such as imprisonment, public flogging, and even capital punishment,  based on perceived or known sexual orientation, gender identity, or expression. For instance, the Taliban allegedly executed a gay man after a checkpoint search revealed LGBTQ-related material on his mobile phone. The Guardian reported claims that the Taliban attempted to entrap gay men through social media by offering escape routes from Afghanistan.

A report from Human Rights Watch and OutRight Action International indicates that many LGBTIQ+ Afghans have faced direct threats and violence from Taliban members due to their sexual orientation or gender identity. The report additionally notes that some have suffered abuse from family members and acquaintances who, aligning with Taliban ideologies, feel compelled to act against LGBTIQ+ individuals to protect themselves.

International Response

The Taliban sought international recognition and support to prevent a humanitarian and economic crisis in Afghanistan. While no country officially recognized them, the United Nations referred to the Taliban as the ‘de facto’ authorities, yet six states, including China, Pakistan, Russia, Iran, and Qatar, maintained their embassies in Kabul and engaged with the interim government.

Against this backdrop of escalating repression, in January 2025, the ICC's Prosecutor, Karim Ahmad Khan, took a historic step by requesting arrest warrants for senior Taliban leaders, including Hibatullah Akhundzada and Abdul Hakim Haqqani, on charges of gender persecution,  marking the first time the ICC recognized crimes against the LGBTIQ+ community in its proceedings.

3. ICC Investigation & Key Legal Debates

   
   

International Criminal Law and International Criminal Court

International criminal law is a branch of law that focuses on holding individuals accountable for serious crimes that affect the global community. It’s development truly begin with post-World War II trials, particularly the International Military Tribunal at Nuremberg, to address violations like war crimes, genocide, and crimes against humanity, which involve gross abuses of human rights. While it primarily aims to protect individuals from large-scale atrocities, the crime of aggression is an exception, as it focuses on conflicts between states.

The ICC is a permanent judicial institution established based on the Rome Statute in order to prosecute individuals responsible for the most serious crimes of international concern, including genocide, crimes against humanity, war crimes, and the crime of aggression. The definitions of crimes under ICC’s jurisdiction are outlined in detail to avoid judicial overreach. This ensures that only the ICC will only trial the gravest offenses.

In accordance with the Preamble of the Rome Statute, ICC’s jurisdiction is complementary, meaning that states themselves are under the positive obligation to prosecute crimes. The Court will investigate and prosecute the most serious of international crimes when national judicial systems are unwilling or unable to do so. To ensure compliance with the principle of complementarity, the ICC Prosecutor must notify all relevant states.

ICC investigation and arrest warrant requests against Taliban

Afghanistan acceded to the Rome Statute in 2003, accepting ICC’s jurisdiction over the most serious international crimes defined in the Statute. Following a preliminary examination in 2007, the Prosecutor requested authorization to investigate alleged war crimes and crimes against humanity committed since 1 May 2003, in 2017.

In March 2020, the Afghan government, invoking the principle of complementarity, requested a deferral under Article 18(2) of the Rome Statute, pledging to conduct its own investigations. However, after concluding that Afghanistan had not carried out a genuine investigation, the ICC resumed the investigation on October 31, 2022 a year following the Taliban’s return to power. Further, on 28 November 2024, six ICC States Parties formally referred the situation to the Court pursuant to Article 13(a) and 14(1) of the Rome Statute, reinforcing the ongoing investigation.

Most recently, on 23 January 2025, Prosecutor Khan filed applications for arrest warrants against Taliban Supreme Leader Haibatullah Akhundzada and Chief Justice Abdul Hakim Haqqani for crimes against humanity, particularly persecution on gendered grounds. The applications are currently pending review by  Pre-Trial Chamber II.

Overview of gender persecution under the Rome Statute and ICC jurisprudence

Gender-based crimes like wartime rape have been dismissed by the international legal community as inevitable consequences of conflict, allowing perpetrators to act with impunity. However, over time, the gravity of these crimes were increasingly recognized by the international courts, most significantly by the International Criminal Tribunal for Rwanda’s Akayesu case (2001). Moreover, the Rome Statute, establishing the ICC explicitly categorizes gender-based persecution as a violation of international law.

The recognition of gender-based crimes within international law took significant strides with the inclusion of rape as a crime against humanity in the statutes of both the International Criminal Tribunal for the former Yugoslavia and the International Criminal Tribunal for Rwanda. A major milestone was reached during the Rome Conference, where states agreed to explicitly incorporate provisions addressing various forms of sexual and gender-based violence within the ICC’s Rome Statute. Articles 7(1)(g), 8(2)(b)(xxii), and 8(2)(e)(vi), expanded the legal scope to include gender-based crimes, now defined as "crimes against humanity."

Consequently, the Rome Statute recognizes gender as a ground for persecution alongside race, ethnicity, and religion. Gender-based persecution is severe deprivation of fundamental rights, due to the individual’s sex and/or socially constructed gender roles on the grounds ‘universally recognized as impermissible under international law’. Such persecution can manifest through both physical and non-physical acts. Article 7(1)(k) functions as an open-ended provision, allowing inclusion of other forms of inhumane acts in its scope using international conventions and treaties to determine whether specific conduct qualifies.

In understanding gender-based persecution, intersectionality is essential. Gender-based crimes often stem from underlying inequalities compounded by religious, political, ethnic, national, and economic factors. Recognizing persecution based on intersecting factors, such as combined gender and religion, impacts how prosecutors consider multiple potential factors to frame criminal charges. For instance, in the Al Hassan case (26 June 2024), the ICC Prosecutor charged members of Islamist groups with persecuting civilians on religious grounds while specifically targeting women and girls on gender grounds, subjecting them to sexual violence, forced marriage, movement restrictions, and other oppressive measures.

Men may also be a targeted group by gender persecution alongside women. For instance, in the Abd-Al-Rahman case (9 June 2021), the ICC Pre-Trial Chamber acknowledged that the victims' gender and ethnicity combined with their perceived political affiliation as rebels made them targets for victimization. Moreover, the Prosecutor v. Mahamat Said Abdel Kani case (9 December 2021) involves war crimes and crimes against humanity charges stemming from the alleged systematic detention and mistreatment of men and boys based on their perceived political, ethnic, and gender identities.

Image by Koca Vehbi

Gender persecution and LGBTIQ+

On the other hand, the heightened risk faced by LGBTIQ+ individuals has not been addressed directly among the most serious crimes by the Rome Statute or ICC. Although not explicitly mentioned, discussions have arisen  among legal scholars, human rights advocates, and international law experts, on whether the Rome Statute can be interpreted to encompass protection for sexual orientation and gender identity.

The Rome Statute defines gender in binary terms—'male and female within the context of society.' While this wording suggests that gender roles are socially constructed, Article 7(3) strictly adheres to a binary framework, leaving non-binary and transgender individuals in a legal gray area. Consequently, individuals who fall outside, between, or beyond this binary definition are left unprotected under the strict interpretation of this framework.

In 2023, the Office of Prosecutor’s Policy on Gender-based Crimes explained that a gender-competent analysis is an intersectional approach that considers not only gender, but also factors such as age, nationality, and ethnicity, in evaluating the experiences of violence and oppression. Furthermore, while gender, gender expression, and sexual orientation are recognized as distinct grounds by the international community, they often intersect, shaping individuals' vulnerabilities and experiences of persecution.

In cases of gender-based persecution, the intent of the perpetrator is often more relevant than the self-identification of the victim. This is especially critical when considering persecution against LGBTIQ+ individuals, as gender, gender expression, and sexual orientation frequently intersect in the perpetrator's view. These overlapping identities add complexity to the nature of the persecution. For example, non-binary, queer, and intersex individuals may be targeted not just for their sexual orientation, but for failing to conform to the rigid binary gender norms imposed by the perpetrator.

An illustrative example is the Taliban’s enforcement of strict gender norms, which punish individuals who do not conform. This enforcement blends physical sexual characteristics, gender expression, and sexual orientation into a single framework. For instance, attraction to women is viewed as an inherently male trait, reinforcing the idea that sexuality is intrinsically tied to gender or gender expression. As a result, a lesbian woman may be persecuted not only for her sexual orientation but also for her failure to adhere to traditional gender norms.

Prosecutor Khan, in his request for an arrest warrant, highlighted the intersection of gender, sexual orientation, and gender expression, demonstrating the layered nature of persecution against LGBTIQ+ individuals. By framing the Taliban’s actions as targeting individuals who did not conform to their ideological expectations of gender identity and expression, Khan’s statement aligns with an evolving legal interpretation of gender-based persecution. As noted in the request:

‘Alongside girls and women themselves, the Taliban also targeted other persons whom they considered not to conform with their ideological expectations of gender identity or expression. This included members of the LGBTQI+ community, who were singled out for certain types of persecution and connected criminal acts, including for corporal and/or capital punishment for so-called ‘morality crimes’ within the framework of the de facto criminal justice system.’ (para. 13)

While the increasing recognition of gender persecution by the international community is a positive development—particularly in securing stronger protections for women—LGBTIQ+ individuals have historically been excluded from such legal advancements. The Rome Statute does not explicitly list sexual orientation or gender identity as protected grounds under the crime of persecution, but the evolving interpretation of gender in ICC jurisprudence offers a potential pathway for broader inclusion. In this regard, Khan’s acknowledgment that both women and LGBTIQ+ individuals face persecution for failing to conform to rigid gender norms marks a significant step toward a more holistic and effective approach to gender-based protection under international law.

4. Implications and Outlook

The inclusion of LGBTIQ+ persons in the ICC’s charge for gender persecution serves as a significant step toward broader legal recognition and protection for sexual orientation and gender identity. The ICC's investigation into the Taliban explicitly highlights the persecution of LGBTIQ+ persons, framing their mistreatment as a part of a broader pattern of gender-based violence. Such recognition limits impunity for regimes that target marginalized groups like LGBTIQ+ individuals and affirms the responsibility of State Parties to hold perpetrators of gender-based violence accountable.

The recent arrest warrant requests on the grounds of gender-based persecution could affirm that such persecution is as serious as other crimes outlined in the Statute. It would also reinforce that acts targeting LGBTIQ+ individuals constitute a violation of Article 7. Moreover, the focus on gender-based persecution, including against LGBTIQ+ individuals, might set a pivotal precedent for similar cases in countries like Iran and Syria, where consensual same-sex relations are criminalized, and women and LGBTIQ+ individuals face state-sanctioned violence and discrimination. Notably, it is also fostering discussions on evolving legal concepts, such as gender apartheid, which may shape broader interpretations of international criminal responsibility.

Additionally, this case could prompt a re-examination of gender definitions within international law, facilitating stronger protections for sexual minorities and offering a legal avenue for pursuing justice for LGBTIQ+ persons facing persecution.

Despite progress in international justice, enforcing rulings remains difficult due to political resistance and structural constraints. The ICC also lacks its own enforcement mechanism, relying on member states for arrests. If arrest warrants are issued, State Parties must detain and transfer Taliban leaders to The Hague upon their entry. Therefore, the warrant for Taliban leaders, if issued, would likely have little effect unless they travel abroad. While 125 states have joined, cooperation remains inconsistent. For instance, Italy recently detained an ICC suspect but failed to extradite him.

Meanwhile, there are renewed calls for the ICC to address crimes committed during the United States invasion of Afghanistan. Amnesty International has urged the Prosecutor to reconsider his 2021 decision to deprioritize investigations into alleged war crimes by U.S. forces, the CIA, and allied troops. Critics argue that failing to pursue these cases risks reinforcing perceptions of selective justice, shielding powerful states while prosecuting others.

Despite challenges, the request for an arrest warrant is deemed a clear positive development. Zalmai Nishat of Mosaic Afghanistan notes that the request for arrest warrants further erodes the Taliban’s international reputation.

5. Conclusion

   
   

Consequently, the growing recognition of gender-based persecution, including the targeting of women and LGBTIQ+ individuals, holds the potential to increase accountability at the international level. The International Criminal Court's investigation into the Taliban's actions marks a critical shift in the global legal framework, emphasizing that gender-based crimes are not only an inevitable byproduct of conflict but also serious violations that demand justice.

However, securing justice for LGBTIQ+ individuals requires sustained international pressure, legal reform, and accountability mechanisms to ensure that crimes of gender persecution do not go unpunished.

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Glossary

• LGBTIQ+: An acronym representing lesbian, gay, bisexual, transgender, intersex, queer, and other identities that do not conform to traditional gender and sexual norms. In this text, this term is used to refer to individuals whose gender, gender expression or sexual orientation differs from the norms set by the society or authority.

• Yogyakarta Principles: A non-binding but widely recognized international human rights standards that outline the application of existing human rights laws to issues of sexual orientation, gender identity, gender expression and sexuality.

• Gender expression: The way individuals present their gender through appearance, behavior, and mannerisms. This includes clothing, hairstyles, accessories, speech, and self-references. It may or may not align with a person's gender identity (Yogyakarta Principles +10, preamble).

• Gender Identity: A person’s deeply held sense of their gender, which may or may not align with the sex assigned at birth. (Yogyakarta Principles, preamble).

• Sexual Orientation: A person's enduring emotional, romantic, and sexual attraction to individuals of the same, different, or multiple genders. (Yogyakarta Principles, preamble).

• Capital punishment: Death penalty.

• Complementarity: A principle in international law, putting the primary responsibility to investigate and prosecute crimes on national courts. Therefore, an international court, such as the ICC, can intervene only when the national courts are unwilling or unable to do so. This principle is stated under Rome Statute Article 17.

• Crimes Against Humanity: Serious violations of human rights committed as part of a widespread or systematic attack against civilians, including acts such as murder, enslavement, torture, forced displacement, and persecution. Such crimes are defined under Rome Statute Article 7.

• De facto: Existent in reality, even though it might not have been acceptable, lawful, or intended.

• Flogging: A form of corporal punishment in which a person is beaten with a whip, cane, or other means. It is an act of torture and cruel, inhuman, or degrading treatment or punishment: therefore, a human rights violation. If flogging is part of a widespread or systematic attack against civilians or occurs in the context of an armed conflict, it could be classified as a crime against humanity under Rome Statute Article 7 or a war crime under Rome Statute Article 8, respectively.

• Genocide: The deliberate act of destroying, in whole or in part, a national, ethnic, racial, or religious group through killing, forced displacement, or other means intended to eradicate the group.

• Intersectionality: A framework for understanding how various aspects of a person’s identity (such as gender, race, or sexual orientation) interact and contribute to experiences of discrimination or privilege (Yogyakarta Principles +10, preamble).

• Jurisdiction: The legal authority of a court or institution to hear and decide cases within a specific geographic area or concerning particular types of offenses.

• Jurisprudence: The study, theory, and application of law, including the principles and interpretations that guide legal decision-making.

• Open-ended Provision: A legal clause that is broad or flexible in wording, allowing for interpretation and adaptation based on different circumstances or evolving legal contexts.

• Precedent: A legal decision or principle established in a previous case that influences future rulings on similar matters.

• Pederasty: A sexual relationship between an adult man and a youth.

• Positive Obligation: A duty imposed on states or institutions to take active steps in protecting and ensuring rights, such as safeguarding individuals from harm or providing access to essential services.

• Rome Statute: The treaty that established the ICC, outlining its jurisdiction, structure, and legal framework for prosecuting crimes.

• Repression: The use of force, intimidation, or restrictive measures by a government or authority to control or suppress political opposition, dissent, or specific groups within a society.

• Sharia Law: A system of Islamic law derived from religious texts, interpretations, and traditions, which varies in application across different countries and legal systems.

• Victimization: The act of harming, exploiting, or discriminating against someone, often through violence, abuse, or unfair treatment, which can occur on an individual or systemic level.

• War Crimes: Serious violations of the laws of war, including targeting civilians, mistreating prisoners of war, and using prohibited weapons, as defined under international humanitarian law.