Finally, “Rainbow Jurisdiction” at the International Criminal Court?

On 23 January 2025, the International Criminal Court (ICC) Prosecutor Karim A. A. Khan KC has filed the first two applications for arrest warrants in the situation in Afghanistan. These are directed against the Supreme Leader of the Taliban, Haibatullah Akhundzada, and the Chief Justice of the “Islamic Emirate of Afghanistan”, Abdul Hakim Haqqani. The Prosecutor alleges them of being criminally responsible for the crime against humanity of persecution on gender grounds according to article 7(1)(h) of the Rome Statute. With this historic decision the Prosecutor for the first time explicitly included alleged crimes against sexual and gender minorities, i.e., in particular lesbian, gay, bisexual, transgender, queer and intersex (LGBTQI+) persons.

The Taliban’s Gender Persecution in Afghanistan

For several years, the Office of the Prosecutor of the ICC (OTP) has examined alleged crimes committed in Afghanistan, in particular by members of the Taliban and the Islamic State – Khorasan Province.

In the recently published applications for arrest warrants, the OTP established there are reasonable grounds to believe that Akhundzada and Haqqani are criminally liable for the crime against humanity of persecution on gender grounds under article 7(1)(h) of the Rome Statute committed by the Taliban in Afghanistan, carried out from at least 15 August 2021 until at least 20 January 2025. However, the OTP not only alleged criminal liability with regard to the persecution of Afghan girls and women as well as persons whom the Taliban perceived as allies of girls and women. The OTP also – for the first time in the ICC’s history – referred to the persecution of LGBTQI+ by including persons whom the Taliban “perceived as not conforming with their ideological expectations of gender identity or expression” (para. 2 of the application for a warrant of arrest against Akhundzada and Haqqani) as victims of gender persecution. The perpetrators reportedly violated several fundamental rights of their victims including the right to physical integrity and autonomy, to free movement and free expression, to education, to private and family life, and to free assembly. At the same time, the perpetrators committed crimes such as murder, imprisonment, torture, rape and other forms of sexual violence, enforced disappearance, and other inhumane acts. The Taliban are said to repress perceived resistance or opposition by committing these crimes. The OTP has clarified that the Taliban’s interpretation of Sharia cannot act as justification. The gender persecution has been part of a broader widespread and systematic attack against the civilian population of Afghanistan creating a “deep climate of fear” and exercising complete control over their lives (para. 3 of the application for a warrant of arrest against Akhundzada and Haqqani). Afghan civilians were very aware of the fact that potential resistance would lead to immense violence and aggression against them by committing the already mentioned crimes, such as murder.

Persecution of LGBTQI+ Persons

The OTP explicitly describes how the Taliban have also persecuted LGBTQI+ persons (paras. 88 et seq. of the application for a warrant of arrest against Akhundzada and Haqqani): They have violently imposed upon the Afghan civilian population their view according to which “gender is defined by a strictly biological binary between heterosexual cisgender males and heterosexual cisgender females” (para. 89). They have persecuted persons perceived as not confirming to this strict view – including lesbians, gay men, transgender, queer, non-binary and gender non-conforming people – by having committed the crimes described above. Consequently, many LGBTQI+ persons were subjected to extensive use of violent or harassing behavior on the street and in detention. Moreover, some forms of homosexuality have recently been prohibited as such. Finally, the Taliban as the de facto national authority punished conduct between LGBTQI+ persons by way of corporal or capital punishment including by stoning or crushing under a 2-3m high wall, intentionally collapsed onto the victim. The OTP sees this also as a violation of the right not to be punished without a trial. Moreover, these punishments were discriminatory and arbitrary. Indeed, as also seen by the OTP, the prohibited conduct is specifically protected by the fundamental right to private and family life.

Meaning of the Applications for Gender Justice

The Rome Statute is the first international law document explicitly criminalizing the crime of persecution on gender grounds (Bedont, p. 210). The OTP charged this crime for the first time in the Prosecutor v. Al Hassan case, which was confirmed by the ICC Pre-Trial Chamber on 30 September 2019. However, the Trial Chamber acquitted the accused of gender-based persecution in its judgment on 26 June 2024 (for an evaluation of this see Grey and Oosterveld Part 1 and 2). By filing the first two applications for warrants of arrest regarding persecution on gender grounds only, the OTP now reaffirms that it takes its commitment to make the prosecution of gender-based crimes a top priority seriously. Indeed, the OTP issued a 90-page Policy on Gender-based Crimes only in December 2023 and a Policy on the Crime of Gender Persecution in December 2022.

Article 7(3) of the Statute contains an odd definition of the term gender, which has often led to more confusion about that term than its clarification, in particular regarding LGBTQI+ persons. Consequently, it has been suggested in literature to see persecution of LGBTQI+ persons as gender-based persecution (see, e.g., Grey, Suhr, Oosterveld), while others have contested such a reading (see, e.g. Bohlander, Duric ́ et al). However, both just mentioned gender policies explicitly consider LGBTQI+ persons on various occasions. For example, the Policy on the Crime of Gender Persecution clarifies that gender persecution is not only “committed against persons because of sex characteristics” but also “because of the social constructs and criteria used to define gender”, which includes “sexual orientation, gender identity and gender expression” (p. 3). In this progressive paper, the OTP also acknowledges that “[b]y definition, gender-based crimes target groups such as […] LGBTQI+ persons […]. [They] are used by perpetrators to regulate or punish those who are perceived to transgress gender criteria that define “accepted” forms of gender expression […]” (p. 4).

Groundbreakingly, in the current applications for arrest warrants, the OTP for the first time puts these papers into practice regarding LGBTQI+ persons by including crimes specifically directed against them as part of the Taliban’s regime of gender persecution. This is revolutionary because the Rome Statute’s definition of the crime of persecution does neither explicitly name the ground of sexual orientation nor of gender identity in its Article 7(h). Together with the policy papers, this applications for arrest warrants show that persecution of LGBTQI+ persons really should be seen as gender-based persecution.

Concluding Remarks

The OTP’s decision to file applications for arrest warrants because of the crime against humanity of persecution on gender grounds and the inclusion of sexual and gender minorities is groundbreaking in itself and the first step for the ICC to perform a “rainbow jurisdiction”. However, it has to be remembered that the ICC – first, the Pre-Trial Chamber – has to consent with the OTP on legal and factual grounds to issue the warrants of arrest for the proposed crimes. If the judges decide to perform jurisdiction and the accused are brought before the ICC, this Court has the historic opportunity to clarify that crimes directed against LGBTQI+ persons can amount to the crime against humanity of persecution and therefore belong to the “most serious crimes of concern to the international community as a whole”, as stated in the Rome Statute’s preamble. This is also crucial considering that some ICC member states themselves still criminalize sexual behavior between consenting adults of the same sex.