For many LGBTIQ+ people in Afghanistan, the discovery of a relationship, a message on a phone, or a difference in dress or behaviour can put their lives at risk. The Afghanistan LGBTIQ+ Organization (ALO)’s 2023 report, In the Shadow of the Taliban, documented the accounts of 16 survivors who reported sexual violence at the hands of the Taliban. These testimonies show that behind the legal debates stand human beings who have experienced violence and who want justice.
The significance of the International Criminal Court’s recent decision must be seen through the eyes of those who are forced to hide in order to survive. On October 5, Pre-Trial Chamber II of the International Criminal Court (ICC) made public four arrest warrants: those for Haibatullah Akhundzada and Abdul Hakim Haqqani, issued on July 8, 2025, and those issued on September 9, 2025 for Habibullah Agha and Neda Mohammad Nadim, the Taliban officials responsible for education and higher education, respectively. (The first two warrants had already been announced.) The publication of the public versions of the warrants’ full text now makes the Pre-Trial Chamber’s legal reasoning on the crime of gender persecution available to the public.
These warrants mark a historic development in international criminal justice. These are the first ICC arrest warrants to explicitly recognize the persecution of LGBTIQ+ people as falling within the crime against humanity of persecution on gender grounds. The process began with the ICC prosecutor’s applications on January 23, 2025. It took on judicial force with the issuance of the first two arrest warrants in July of that year. Its legal basis has now become clearer with the publication of the text of the arrest warrants. Now, the suffering of LGBTIQ+ people is being examined along with the suffering of women and girls who have also been deprived of their fundamental rights in Afghanistan.
At the legal heart of the decision is the Pre-Trial Chamber’s interpretation of Article 7(3) of the Rome Statute. In defining gender, this provision refers to male and female “within the context of society.” The judges made clear that this phrase requires an interpretation that goes beyond a purely biological understanding. That interpretation must also take into account the roles, behaviours, expectations, and social hierarchies attributed to sex. To understand the crime, then, one must ask what conception of womanhood and manhood is held by the perpetrators, and how they punish those who do not conform to it.
This interpretation is neither an amendment to the Rome Statute nor the adoption of a new definition by states. Its significance lies in the judicial application of the concept of gender. In its 2022 Policy on the Crime of Gender Persecution, the ICC Office of the Prosecutor had already recognized that LGBTIQ+ people can be victims of this crime. That approach has now found a place in the Pre-Trial Chamber’s judicial reasoning regarding crimes in Afghanistan.
In my view, the significance of this achievement extends beyond Afghanistan’s borders. This reasoning can pave the way for identifying and prosecuting gender persecution against LGBTIQ+ people in other situations. It can also show documenters and prosecutors how to examine the criminalization of relationships and the imposition of gender norms when analyzing crimes against humanity. Such a path does not, by itself, extend the ICC’s jurisdiction to every country. Each case still requires that jurisdiction, the elements of the crime, as well as individual responsibility be established. Its historic importance lies in providing a clearer basis for demanding justice.
In paragraph 30 of the warrant concerning Akhundzada, the judges specifically address the targeting of lesbian women and gay men, as well as people whose gender identity or expression does not conform to the Taliban’s expectations, including trans men. Sexual orientation and gender identity are two different concepts. What links them legally in this case is the punishment of people for their real or perceived defiance of the Taliban’s gender norms.
In other words, a man who loves another man may be targeted for violating the Taliban’s expectations of “masculinity.” A woman who chooses a relationship with another woman challenges the system the Taliban impose on women’s emotional and sexual lives. A trans person may be punished for refusing the role imposed on them. This analysis shows why protection against gender persecution must also encompass the distinct experiences of these individuals.
In explaining the warrants, the ICC Office of the Prosecutor has also emphasized the Taliban’s perception of people’s gender identity or expression. The consequence of this approach is that legal protection should not depend on whether a victim’s identity is publicly known or whether they use particular labels to describe themselves. Someone whom the Taliban believe to be gay or trans may also be the target of the same repression. Justice must examine the motives and conduct of the alleged perpetrators. It must not require victims to make their identity public in order to be heard.
The legal characterization of the charge also matters. “Persecution” as a crime against humanity under Article 7(1)(h) of the Rome Statute has a specific meaning: the intentional and severe deprivation of fundamental rights, contrary to international law, by reason of the identity of a group. To constitute a crime against humanity, this conduct must form part of a widespread or systematic attack directed against a civilian population, with knowledge of that attack. Under the Rome Statute, persecution must also be connected to one of the acts listed in Article 7(1) or to another crime within the International Criminal Court’s jurisdiction. The legal claim, therefore, is not merely that discrimination exists. It concerns repression that meets specific conditions for international criminal responsibility.
In paragraph 20 of the Akhundzada arrest warrant, the judges explained that structural and institutionalized harm resulting from the imposition of discriminatory norms can constitute gender persecution when it severely violates fundamental rights. This holds even if those norms are formulated or justified as cultural or religious rules. This reasoning is vital for Afghanistan. Labeling violence as the enforcement of law or morality does not shield it from legal scrutiny. The text of the decrees, the manner of their enforcement, and their consequences for victims must all be examined.
Our organization’s recent report, Punished in Public reveals the scale of this repression through analysis of the Taliban’s own announcements. Between December 2022 and April 2026, we identified 102 incidents of public flogging across 28 provinces in which the announced charges included alleged same-sex sexual conduct. In 38 of these incidents, imprisonment was also announced. These figures do not represent the number of LGBTIQ+ people punished. The announcements sometimes list several charges together, and one cannot infer a person’s identity or sexual orientation from a Taliban accusation.
The importance of these records lies in the fact that they were recorded and published by the authorities carrying out the punishments. In our view, this pattern must be included in any examination of the Taliban’s gender policy and the responsibility of its decision-makers. Being flogged in front of a crowd harms the individual. It also warns others to hide their relationships and identities in order to avoid such punishment. The effect of the repression extends beyond the body of the person punished and constrains the social life of an entire community.
The warrants also rely on responsibility for ordering, soliciting, or inducing the commission of crimes under Article 25(3)(b). To examine the responsibility of a senior official, it is not necessary to show that the official personally carried out the punishment. Their role and intent in the commission of the crime must be established through evidence.. This path also directs investigative attention to those who design, communicate, and enforce the rules of repression.
Nor is the danger limited to flogging. The Punished in Public analyzes how the Taliban’s “Penal Principles for Courts” prescribe imprisonment for what they call liwat (sodomy) and the death penalty for repeated instances of certain sexual acts. These provisions should not be presented as proof that executions have been carried out in any specific case. But they create a legal threat to people’s lives that requires urgent action.
In my view, placing women, girls, and LGBTIQ+ people within a shared framework of gender persecution gives a more precise understanding of this repression. Their experiences are not the same. A lesbian woman simultaneously faces the restrictions imposed on women and the danger arising from her sexual orientation. Accountability must recognize these differences. It must not allow any group to be excluded from investigations, protection, or public narratives in the name of prioritizing another.
The unsealing of the arrest warrants does not, in itself, create safety. States parties must act in accordance with their obligations under the Rome Statute, including Articles 86 and 89, to cooperate with the ICC and execute requests for arrest and surrender. At the same time, investigations into gender persecution against LGBTIQ+ people must also cover events after January 20, 2025, the date until which, at minimum, the warrants allege the crimes were committed.
The significance of the Pre-Trial Chamber’s decision for LGBTIQ+ Afghans is that it makes more concrete the prospect of holding accountable those responsible for these crimes. It is now the responsibility of states, international bodies, and civil society to turn that prospect into action. Justice will have meaning for our community when we can live without fear of punishment, and when we are not forced to hide our existence in order to prove our right to live.
Artemis Akbary is the executive director of the Afghanistan LGBTIQ+ Organization (ALO).
