A First in Global Justice

In January 2025, the International Criminal Court (ICC) issued arrest warrants for two senior Taliban leaders, Haibatullah Akhundzada and Abdul Hakim Haqqani, on charges of gender persecution. It marked the first time in the Court’s history that gender-based discrimination has formed the central charge in a case. According to ICC’s prosecutor’s office, the Taliban’s treatment of Afghan women constitutes a “widespread and systematic attack” on half the population. Legal scholars argue that cases like this redefine how international law conceptualizes persecution, expanding the definition beyond physical violence to include oppression.

A Few Examples of the Taliban’s Policies

The case against the Taliban centers on their creation of a state-enforced system of gender apartheid. Since seizing power in 2021, the Taliban have implemented sweeping gender-based discrimination. Afghan girls have been banned from secondary education, women have been excluded from working in most government offices, and new rules prohibit women from traveling more than 45 miles without a male guardian. Already within 24 months after NATO’s withdrawal from the country in 2021, over 1.1 million girls were out of school.

In July 2023, beauty salons were banned. That alone deprived over 60,000 women of employment. Public parks and gyms are now off-limits, and healthcare access for women has become restricted unless accompanied by a male guardian. In some provinces, biometric checkpoints have been introduced to prevent unaccompanied women from boarding buses. Those who resist face harassment, detention, or worse.

The Legal Case

These policies and many more, ICC lawyers argue, are not isolated acts but an orchestrated strategy to erase women from public life. Similarly, the United Nations, which the ICC is not a part of, has repeatedly warned that the Taliban’s edicts constitute gender apartheid, violating international human rights law. The ICC’s decision to treat the Taliban’s edicts as crimes, not customs, represents a fundamental shift in the interpretation of international law. The case aligns international legal standards with the lived realities of women under authoritarian regimes, where identity rather than action is the basis for persecution.

The Basis for Prosecution

The ICC’s legal foundation lies in the Rome Statute of 1998. It defines persecutions “against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender” as crimes against humanity. However, despite being recognized by international law for over two decades, gender oppression has never before been the central basis of a case at the ICC. Complicating matters, the Court’s jurisdiction is limited. It can prosecute crimes only when they are committed by nationals of a state party, on the territory of a state party, or when referred by the UN Security Council. While Afghanistan ratified the Rome Statute in 2003, the Taliban regime declared its withdrawal in early 2023, calling the Court’s claims illegitimate. Still, the ICC pressed forward on the basis of the Taliban’s conduct up until that point.

What Constitutes Persecution?

Its 2022 Policy on Gender Persecution clarified that persecution does not require acts of physical violence. Instead, systematic denial of education, employment, or mobility rights can constitute crimes against humanity. Past cases also laid important groundwork. In 2021, the ICC convicted Dominic Ongwen, a Ugandan militia leader, of war crimes including forced marriage and sexual enslavement. However, in that case, gender-based violence was treated as an extension of violent conflict rather than a standalone form of systemic oppression.

Enforcement Challenges

Despite the legal breakthrough, formidable barriers to enforcement remain. The ICC has no police force and relies on member states to arrest suspects. With the Taliban in control of Afghanistan and no willingness to cooperate, the likelihood of Akhundzada or Haqqani standing trial remains low for now. This situation is by no means unprecedented. When the ICC issued an arrest warrant for Sudanese President Omar al-Bashir in 2008, he remained in power for a decade and traveled internationally without arrest. This enforcement gap led many to question the ICC’s effectiveness. Others have raised concerns that the ICC’s actions risk overstepping when engaging non-member states, like Afghanistan now is. A Yale Journal of International Law article notes that “legitimacy traps” where bold legal action is met with diplomatic defiance may weaken the Court’s authority.

Legal Infrastructure in The Hague

Around the ICC has evolved a dense local ecosystem in The Netherlands, primarily in The Hague and next-door Leiden, with the latter housing the oldest university in the country. Leiden University’s Grotius Centre provides rigorous analysis of ICC jurisprudence and procedure. The Asser Institute, based in The Hague, supports research on international human rights law and often contributes expertise to proceedings. These academic centers help legitimize legal arguments around systemic oppression as crimes against humanity. Advocacy organizations play a crucial role as well. The Hague-based Women’s Initiatives for Gender Justice has spent years documenting gender-based human rights violations and pressing for stronger ICC action. Another local institution, The Hague Humanity Hub fosters collaboration among NGOs, legal researchers, and policymakers to strengthen global justice initiatives. The prison where convicted international felons will ultimately be accommodated is likewise situated in The Hague, specifically in its borough of Scheveningen.

Implications for Global Justice

The case against the Taliban may redefine how international law responds to oppression cloaked in legal and bureaucratic systems. If successful, it could create a precedent for recognizing systemic gender-based discrimination as a crime against humanity; not only when it leads to violence, but also when it systematically extinguishes the freedom of women. Yet, challenges around the warrant’s enforcement remain and the ICC’s credibility hinges on outcomes, not on strong declarations. Still, by pursuing charges of gender persecution, the ICC is sending a message: oppression by law is still oppression. In a world where discrimination often hides behind national legal frameworks, this case could mark a critical turning point.