On Thursday, Jan. 23., 2025, International Criminal Court Prosecutor Karim Khan announced his Office is seeking arrest warrants for the Supreme Leader of the Taliban, Haibatullah Akhundzada, and the Chief Justice of the Islamic Emirate of Afghanistan, Abdul Hakim Haqqani, for the crime against humanity of gender persecution (Rome Statute, Art. 7(1)(h)). The charges are unsurprising given what is widely known about the persecution of women and girls in Afghanistan. Since the Taliban returned to power, women and girls have been banned from both secondary school and higher education, and have been progressively removed from all aspects of public life. Under so-called morality laws, the Taliban has banned women from showing their faces, or even using their voices in public. LGBTQI populations have also been targeted. For those suffering under Taliban rule, the ICC Prosecutor’s announcement is at least one sign of an international actor remaining engaged with their plight. The charges do, however, come at an awkward time for U.S. senators preparing to vote on the Illegitimate Court Counteraction Act (ICCA) passed recently in the House of Representatives.
The stated goal of the ICCA is to stop the International Criminal Court (ICC) from pursuing cases against the nationals of the United States or its allies, like Israel, that have not joined the Court. There are two problems with imagining that the ICCA can achieve this goal. First, the ICC Prosecutor would be defying the Court’s own mandate to pursue “the most serious crimes of international concern” if he were to stop pursuing cases against some alleged perpetrators and not others, simply on the basis of the relationship those individuals have to the United States or its allies. Indeed, if the ICC prosecutor were to start pursuing such an explicitly politicized approach, the Court would lose the support of the 125 countries which are currently members of the Court, thereby writing its own death sentence (see here for the Assembly of States Parties latest statement defending the importance of the Court’s impartiality).
Second, even setting aside the Court’s own mandate, the provisions of the ICCA itself preclude the possibility of the Court selectively abandoning its work in situations like Gaza, which the United States does not want to see pursued, while continuing to investigate cases like those against the Taliban. That’s because the ICCA casts the net of people and entities who risk being sanctioned by the United States so broadly that the legislation will inevitably end up hampering or disabling the Court’s work across the board. (See this earlier article by Adam Keith for a comprehensive account of the many ways in which this could play out).
The ICCA potentially threatens the ICC’s very survival. With today’s announcement, the U.S. Senators who are poised to vote for the legislation are placed in the uncomfortable position of opposing an institution that is pursuing accountability for Taliban crimes. One might argue then, that the ICC Prosecutor’s announcement on Thursday was less about pursuing his mandate, and more about trying to save his job.
Certainly, no prosecutor is immune to the political context in which they operate. The discretion that the ICC Prosecutor has to determine when to go public with the announcement of an arrest warrant application is often used strategically, and surely has been in this case. But investigations of international crimes cannot be put together overnight. Moreover, regardless of whatever strategic work is going on with respect to the timing of the announcement, the substance of these charges is squarely within the Court’s mandate; it is doing what it was designed to do – pursuing the most serious of international crimes when national court systems are unable or unwilling to act.
It is hard to imagine anyone in the U.S. Congress disagrees that the leaders of the Taliban merit criminal prosecution for the horrors they have been inflicting on women and girls. Yet what too many of these representatives (and certainly U.S. President Donald Trump also), fail to understand, is that the law is not simply another political tool through which to attack one’s enemies. The Court’s mandate to pursue accountability for international crimes applies regardless of whether the alleged perpetrators are U.S. allies or adversaries. This is the very meaning of the rule of law.