On January 23 2025, the International Criminal Court’s (ICC) chief prosecutor applied for arrest warrants for the Taliban’s supreme leader and Afghanistan’s chief justice, charging them with the persecution of women, a crime against humanity. It was a long overdue decision.
The ICC is a Hague-based court with the power to prosecute war crimes, crimes against humanity and genocide. Today, it explicitly recognises sexual slavery, enforced prostitution, forced pregnancy, enforced sterilisation and gender-based persecution as distinct crimes.
But the recognition of gender-based abuses as distinct crimes under international law is relatively recent. The ICC has been widely criticised for its slow and lengthy processes, with an abysmal rate of convictions.
In its 23-year history of operation, only 11 ICC cases have resulted in convictions. Just two of those, relating to crimes in Congo and Uganda, included successful convictions for sexual and gender-based crimes.
Currently, 50% of judges at the ICC are women but having women judges does not automatically mean they hold feminist perspectives, or possess a specific gender expertise.
This month, the US State Department announced new sanctions on four ICC officials, including two judges and two prosecutors, claiming they were instrumental in efforts to prosecute Americans and Israelis. The US is not a member of the ICC. The court has denounced these sanctions as a “flagrant attack against the independence of an impartial judicial institution”.
War exacerbates previously existing gender inequalities. Around 110 instances of armed conflict are underway around the world; Africa and the Middle East are the most affected regions.
Many of these conflicts are intractable, dragging on for decades. With technology in warfare rapidly evolving, the growing application of AI and machine learning in weapons has gendered impacts. Attacks by explosive weapons in residential areas, for instance, disproportionately affect women and girls, since they often have primary responsibility for buying household goods or food at markets. Wars are also becoming less likely to be resolved politically.
With no meaningful recourse for women to Afghan courts and only limited access to courts of other states, the ICC remains the only viable judicial venue in which to prosecute the Taliban leaders for gender persecution.
However, the chances of seeing these leaders appear before the ICC are slim. They depend on arresting the defendants, who have publicly denounced the ICC warrants for their arrest. And the ICC has never conducted a trial in absentia. The court’s governing framework, known as the Rome Statute, states: “the accused shall be present during the trial”.
Almost 50% of individuals accused by the ICC are not brought to justice.
The court hopes charges confirmed in their absence could perhaps bring some redress to victims. Despite the absence of the accused, victims would still have an opportunity to finally speak out before a court – and the evidence would be examined, presented and documented for future reference.
Source: How can the International Criminal Court achieve justice for women?