ICC Prosecutor Cites Anti-Trans Abuse, a ‘Groundbreaking’ Move in International Law
While LGBTQI+ people have long faced discrimination and brutal oppression, international law has typically failed to recognize it as a crime. Until now.
by Molly Quell
In a historic first, the top prosecutor of the International Criminal Court has sought arrest warrants based in part on allegations of “unconscionable” abuse of trans and gender nonconforming people.
The accusations are included in warrant applications filed last week against two Taliban leaders in Afghanistan. While the focal point of the case is the Taliban’s mistreatment of women and girls, the prosecutor, Karim Khan, also pointed to abuse of people who don't adhere to gender norms.
“These applications recognize that Afghan women and girls as well as the LGBTQI+ community are facing an unprecedented, unconscionable and ongoing persecution by the Taliban,” Khan said in a statement.
The ICC is the world’s only permanent criminal court for grave crimes of worldwide concern, including genocide and crimes against humanity. Founded in 2002, the court has never before considered charges based on gender nonconformity.
The prosecutor, a Briton and veteran of international law, asked a panel of judges to issue arrest warrants for the Taliban’s supreme leader, Hibatullah Akhundzada, and the head of Afghanistan’s Supreme Court, Abdul Hakim Haqqani. A three-judge pretrial panel will now decide if he has provided sufficient evidence for arrest warrants to be issued.
The move was heralded by LGBTQI+ rights groups. “It is truly groundbreaking for the International Criminal Court to recognize our communities among the victims and survivors of the most heinous crimes and their consequences, and to acknowledge gender identity and gender expression among the drivers of human rights violations,” one leader, Julia Ehrt, said in a statement.
Ehrt is executive director of ILGA, a U.K.-based group that advocates worldwide on behalf of lesbian, gay, bisexual, trans and intersex individuals, and supports the rights of people with diverse gender expressions and sexual orientations.
While LGBTQI+ people have long faced discrimination and, in some situations, brutal oppression, international law has typically failed to recognize that mistreatment as a crime.
“International criminal law does not have a history of engaging with crimes against gender diverse persons, but we are finally seeing the emergence of action on these crimes,” Melanie O'Brien, an associate professor at the University of Western Australia, told Assigned Media.
The Rome Statute of 2002, which created the court, describes gender as male or female. Thus, those seeking protection for trans and gender non-conforming people have had to be creative.
Rather than confronting the issue of a gender binary directly, Khan’s arrest warrant request focuses on the perception of gender in Afghanistan. The filing argues the Taliban persecute women, girls and those “not conforming with their ideological expectations of gender identity or expression.”
“It’s a smart approach,” David Eichert, an international justice scholar at the American University of Paris, told Assigned Media. According to Eichert, advocates for gender justice — including the prosecutor’s special adviser on gender and other discriminatory crimes, Lisa Davis — have been working for more than two decades to find ways to prosecute the abuse of LGBTQI+ people in line with the Rome Statute.
ICC actions are seen as having great moral weight, if often limited practical application. Even if the court agrees to issue the warrants, it is unlikely the Taliban officials will be seen in the dock at the court’s headquarters in The Hague anytime soon. The ICC does not have its own police force and relies on member states to arrest suspects.
The Taliban-led government in Kabul has sought to brush aside the prosecutor’s move. “It is unfortunate that such unfounded claims are being made against the respected leaders of the Islamic Emirate at a time when Afghanistan enjoys nationwide peace,” its foreign ministry said in a statement.
The case against Taliban leaders has a long back story. In 2007, the ICC prosecutor Fatou Bensouda asked judges to open an investigation into Afghanistan, citing grave human rights abuses. The request was rejected, with the pre-trial panel citing lack of cooperation with stakeholders.
Bensouda persisted, eventually convincing an appeals chamber to give her the go-ahead. That investigation could have included crimes committed by U.S. troops and Central Intelligence Agency personnel.
In response, the first Trump administration slapped her and a deputy with sanctions. “We will not tolerate its illegitimate attempts to subject Americans to its jurisdiction,” U.S. Secretary of State Mike Pompeo said at the time.
The investigation was shelved after the Afghanistan government indicated it would pursue its own inquiries. But following the Taliban takeover in 2021, the current ICC prosecutor, Khan, moved to reopen the investigation with a focus on crimes committed by the Taliban and the Islamic State.
The ICC’s pre-trial chamber has no deadline for issuing warrants, but decisions typically take four months.
Molly Quell is a Dutch-American journalist based in The Hague, Netherlands, where she covers international law for Courthouse News Service.