The International Criminal Court on Jan. 23 for the first time recognized LGBTQ people as victims of gender persecution under international criminal law. 

Karim Khan, the ICC’s chief prosecutor, announced a request for arrest warrants against Taliban officials accused of targeting women and others perceived as defying the group’s strict gender norms in Afghanistan. It is the first time LGBTQ people have been explicitly named as victims in a gender persecution case before the court.

Since the Taliban’s takeover of Afghanistan in August 2021, there has been a significant escalation in the repression of LGBTQ people and women. A report that Human Rights Watch released in 2022 documented nearly 60 cases of targeted violence against LGBTQ people in the months following the Taliban’s return to power.

The Washington Blade in October 2022 reported the Taliban have frequently used the contents of seized cell phones to track and target LGBTQ people, further intensifying the climate of fear, and violence against the community in Afghanistan.

In its February 2023 report, “A Mountain on My Shoulders: 18 Months of Taliban Persecution of LGBTIQ Afghans,” Outright International detailed how Taliban security officials systematically targeted LGBTQ people, especially gay men and transgender women, subjecting them to physical and sexual assault as well as arbitrary detention. The report also noted Taliban authorities had carried out public floggings for alleged same-sex relations, with the Taliban Supreme Court publicly defending these punishments on social media at the time.

The report indicates Taliban officials had escalated their efforts to target LGBTQ people, making it a greater priority. They collected intelligence on LGBTQ activists and community members, hunted them down, and subjected them to violence and humiliation as part of their systematic campaign of repression.

Khan has sought charges against the Taliban’s Supreme Leader, Haibatullah Akhundzada, the Taliban’s supreme leader, and Chief Justice Abdul Hakim Haqqani for crimes against women, girls, and LGBTQ people. Khan said there are reasonable grounds to believe that Akhundzada and Haqqani orchestrated systematic violations of fundamental rights, including physical integrity, autonomy, free movement, free expression, education, private and family life, and free assembly.

Khan further detailed that the Taliban’s persecution was committed in connection with other crimes under the Rome Statute, including murder, imprisonment, torture, rape and other forms of sexual violence, enforced disappearance, and other inhumane acts.

Reports indicate the Taliban has banned education for girls beyond sixth grade, severely restricting their access to education and limiting employment opportunities in health and education sectors. Taliban members have also beaten, detained, and tortured women who participated in protests in support of their rights, and have carried out violent attacks against LGBTQ people.

Khan’s requests have been submitted to a pretrial chamber comprising three ICC judges, who will decide whether to issue the warrants. The ICC initially authorized the Afghanistan investigation in March 2020, following a preliminary examination that began in 2007. The investigation, however, was paused for several years as the prosecutor and ICC judges considered a request by Afghanistan’s former government to defer ICC proceedings in favor of domestic prosecutions the government claimed to be pursuing.

The judges noted any cases pursued by the former Afghan government represented, at most, a “very limited fraction” of those falling within the scope of an ICC investigation. They also observed that the current government displayed no interest in upholding the deferral request. The ICC, as a result, authorized the resumption of the investigation in October 2022.

“This is a historic moment since it is the first time in history that the ICC has officially recognized the crimes committed against LGBTIQ+ people. This application for an arrest warrant sends a strong message that the international community rejects the gender persecution of LGBTIQ+ people,” said Artemis Akbary, executive director of the Afghanistan LGBTIQ Organization. “LGBTIQ+ people in Afghanistan need our support and solidarity more than ever, and we must ensure that they have access to justice and accountability.”

Outright International in its press release stated this development marks a significant step toward addressing the unique vulnerabilities of LGBTQ people in conflict and crisis situations.

“The Taliban’s reign of terror over women and LGBTIQ people has been based on the assumption that gender persecution can persist with impunity. The ICC’s recognition of LGBTIQ victims challenges that presumption by recognizing the humanity of our communities,” said Outright International Senior Director of Law, Policy, and Research Neela Ghoshal. “Once arrest warrants are issued against Taliban officials, member states should support the court’s efforts to swiftly bring them to justice.”

Human Rights Watch International Justice Director Liz Evenson also welcomed Khan’s announcement.

“The ICC prosecutor’s request for arrest warrants against two senior Taliban leaders for the crime against humanity of gender persecution should put the Taliban’s oppression of women, girls, and gender nonconforming people back on the international community’s radar,” said Evenson. “With no justice in sight in Afghanistan, the ICC warrant requests offer an essential pathway for a measure of accountability.” 

She added the “international crimes committed in Afghanistan are vast, but a broad approach to accountability is needed to break cycles of impunity that have led to more abuses.”

“ICC member countries should ensure the court has the backing and practical assistance it needs to expand its Afghanistan investigations,” said Evenson.

The Afghan Justice Ministry has not responded to the Washington Blade’s request for comment.

“It is truly groundbreaking for the International Criminal Court to recognize our communities among the victims and survivors of the most heinous crimes and their consequences, and to acknowledge gender identity and gender expression among the drivers of human rights violations,” said ILGA World Executive Director Julia Ehrt. “These warrants of arrest highlight human rights violations that civil society has long documented and that the world can no longer ignore.”