On January 23, 2025, the Prosecutor of the International Criminal Court (ICC) issued a formal statement concluding that the Supreme Leader of the Taliban, Haibatullah Akhundzada, and the Chief Justice of the Taliban, Abdul Hakim Haqqani, bear criminal responsibility for the systematic persecution of women and girls in Afghanistan, announcing that the Office of the Prosecutor (OTP) had filed two applications for arrest warrants for the crime against humanity of persecution on gender grounds. The first part of this blog discussed the background and context of these applications for arrest warrants. This second part discusses the challenges and obstacles of the OTP’s actions.

Challenges and Obstacles

While the Prosecutor’s action is a significant step toward accountability, it faces several obstacles that may hinder its effectiveness.

First, Article 86 of the Rome Statute obliges States Parties to cooperate fully with the ICC in the investigation and prosecution of crimes. Both Akhundzada and Haqqani have rarely been seen in public and have no known international travel records. Their limited mobility within Taliban-controlled Afghanistan complicates efforts to execute potential arrest warrants. If they remain within Taliban-controlled territory, apprehending them would require significant cooperation from external actors or entities willing to intervene, which is highly unlikely given the current geopolitical context.

The ICC lacks its own police force to enforce arrest warrants and must rely entirely on the cooperation of State Parties to execute them. The ICC has faced similar challenges in other cases. For instance, on November 21, 2024, Pre-Trial Chamber I issued arrest warrants against Israeli officials, including Prime Minister Benjamin Netanyahu and former Defense Minister Yoav Gallant, for war crimes and crimes against humanity. Similarly, on March 17, 2023, Pre-Trial Chamber II issued arrest warrants for Russian President Vladimir Putin and Maria Lvova-Belova, Russia’s Commissioner for Children’s Rights, for alleged war crimes in Ukraine. Despite these warrants, the suspects remain in power with no changes in circumstances. Additionally, France has indicated that it would likely not take immediate action to arrest Israeli Prime Minister Benjamin Netanyahu if he entered French territory, citing immunity-related concerns. Likewise, Italy recently failed to fulfill its obligations under the Rome Statute by declining to surrender Ossama al-Masri to the ICC, despite an active warrant accusing him of grave crimes, including murder, torture, and rape. Instead, Italy repatriated him to Libya. These instances exemplify the significant challenges faced by the ICC in ensuring compliance with its arrest warrants, particularly in the absence of full cooperation from states.

Second, the arrest warrants against the Taliban leaders are still in their preliminary stages. The issuance of warrants depends on judicial approval following an evaluation of the evidence gathered during the OTP’s investigation. Judges must determine whether reasonable grounds exist to believe the accused have committed crimes within the Court’s jurisdiction. Arrest warrants are issued not only to ensure the suspect’s appearance at trial but also to prevent obstruction of investigations or the continuation of the alleged crimes. However, the legal threshold for issuing warrants requires substantial evidentiary support. This process is particularly challenging given the limited access to Afghanistan under the Taliban rule and the necessity of accurately interpreting evidence within complex historical, cultural, and contextual frameworks. Judges may navigate these intricacies to ensure that the evidence meets the requisite legal standards. Furthermore, the Taliban have recently rejected the ICC’s jurisdiction, asserting that they do not recognize any legal obligations under the Rome Statute and deeming the previous administration’s accession to the treaty as legally invalid. This position appears to be inconsistent with Article 127 of the Rome Statute, which requires a state seeking to withdraw to submit a formal written notification to the UN Secretary-General, followed by a one-year waiting period. However, even if such a withdrawal were formally initiated, it would not absolve the state of its obligations under the Statute, nor would it preclude the Court from exercising jurisdiction over crimes committed while Afghanistan was a State Party. Nevertheless, this development is likely to further complicate the situation, potentially resulting in an impasse.

Third, even after the issuance of arrest warrants, the prosecution and trial of suspects can take years, particularly given the difficulty in apprehending individuals. The ICC relies on its member states to execute warrants, and procedural complexities, extensive investigations, and the gravity of international crimes contribute to delays. Therefore, the Court’s decision may not have an immediate or tangible effect on the situation of women and girls in Afghanistan. Prolonged delays in prosecuting suspects could undermine the impact and relevance of justice, potentially eroding the faith of the women and girls—who are the primary victims of these crimes—in the judicial process if they do not see timely accountability.

A Landmark Step for Justice

The OTP’s actions mark a pivotal moment in the pursuit of justice for gender-based crimes under international law, offering a beacon of hope for women and girls in Afghanistan who continue to endure systematic persecution. Nevertheless, the path to accountability remains riddled with significant challenges, including the enforcement of arrest warrants, procedural complexities, and political resistance. Despite these hurdles, the ICC’s unwavering commitment to addressing such egregious crimes sends a resounding message that impunity for gender-based persecution will not be tolerated. While the immediate impact on victims may be limited, the precedent set by these actions reinforces the fundamental principle that crimes of this magnitude demand accountability. By seeking to hold the Taliban leadership responsible, the international community reaffirms its dedication to justice and the protection of human dignity, even in the most challenging circumstances. For the women and girls of Afghanistan, this development underscores their resilience and the strength of their advocacy in demanding justice. It is both a recognition of their struggle and a call to continue shaping a more equitable and just future for Afghanistan.