International Criminal Court Prosecutor Karim Khan declared on Thursday, January 23, 2025, that his office is requesting arrest warrants for Abdul Hakim Haqqani, the Chief Justice of the Islamic Emirate of Afghanistan, and Haibatullah Akhundzada, the Supreme Leader of the Taliban, for the crime against humanity of gender persecution (Rome Statute, Art. 7(1)(h)). Given the well-known persecution of women and girls in Afghanistan, the charges are not shocking. Since the Taliban regained control, women and girls have been gradually excluded from all facets of public life and prohibited from attending secondary and university education. The Taliban has prohibited women from revealing their faces or even speaking in public under so-called morality restrictions. LGBTQI groups have also been singled out. The announcement by the ICC Prosecutor is at least one indication that an international actor is still concerned about the misery of those living under Taliban control. However, the accusations are made at a time when U.S. senators are getting ready to vote on the Illegitimate Court Counteraction Act (ICCA), which was just passed by the House of Representatives.
The International Criminal Court (ICC) is prohibited from bringing prosecutions against U.S. citizens or those of its allies, such as Israel, who have not joined the Court by the ICCA. The idea that the ICCA can accomplish this objective has two issues. First, if the ICC Prosecutor were to cease pursuing cases against some accused criminals but not others based only on their ties to the United States or its allies, he would be violating the Court's own mandate to pursue "the most serious crimes of international concern." In fact, the Court would lose the support of the 125 nations that currently make up its membership if the ICC prosecutor began to take such an overtly political stance, effectively writing its own death sentence (for the most recent statement from the Assembly of States Parties highlighting the value of the Court's impartiality, click here).
Second, even if the Court's own mandate is disregarded, the ICCA's provisions forbid the Court from selectively stopping its work in cases like Gaza that the US does not want to see pursued while still looking into cases like those against the Taliban. This is due to the fact that the ICCA casts a wide net of individuals and organizations that could face sanctions from the US, hence the law will unavoidably end up impeding or preventing the Court's operations in general. For a thorough explanation of the various ways this could transpire, refer to this previous piece written by Adam Keith.
The very existence of the ICC may be threatened by the ICCA. The announcement made today puts the U.S. Senators who are about to vote in favor of the measure in the awkward position of opposing an organization that is working to hold the Taliban accountable for their atrocities. Therefore, it could be argued that the ICC Prosecutor's announcement on Thursday was more about attempting to keep his job than it was about carrying out his mission.
Without a doubt, the political environment in which prosecutors work affects them. The ICC Prosecutor's discretion in deciding when to make the public aware of an arrest warrant application is frequently and undoubtedly exercised deliberately in this instance. However, it takes time to put together an investigation into an international crime. Furthermore, the substance of these charges falls well within the Court's mandate; it is carrying out its intended function of pursuing the most serious international crimes when national court systems are unable or unwilling to take action, regardless of any strategic planning that may be going on regarding the announcement's timing.
It is difficult to fathom a member of the U.S. Congress who does not believe that the Taliban commanders should be prosecuted for the atrocities they have been committing against women and girls. But too many of these lawmakers—and undoubtedly US President Donald Trump as well—do not realize that the law is more than just another political weapon to use against one's adversaries. Whether the alleged offenders are U.S. allies or foes, the Court's authority to seek accountability for international crimes remains applicable. This is what the rule of law is all about.
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