The ICC Should Prosecute Taliban Leaders

The Taliban regime has transformed the Afghan state into a relentless oppressor of the people it is entrusted to protect. Following their return to power, the Taliban have committed crimes of concern to humanity, including the systematic deprivation of women, targeting civilians, and war crimes—hundreds of which have been documented by relevant international organizations.

Under the Rome Statute, such violations of international humanitarian law mandate the International Criminal Court (ICC) in The Hague to investigate and prosecute involved individuals. Justice demands accountability for those who orchestrated and executed these atrocities. Additionally, prosecuting relevant Taliban leaders will also challenge the regime’s perceived sense of impunity.

The Taliban’s rule in Afghanistan is marked by widespread violence against civilians, including the systematic targeting of former government employees, mainly former Afghan security forces, judges and prosecutors. Sources such as the New York Times, Human Rights Watch, and Amnesty International have documented hundreds of cases of violence against civilians, including summary executions, arbitrary detainment, and torture.

The United Nations Mission in Afghanistan released a report in August that documented 218 extrajudicial killings, 14 enforced disappearances, more than 144 instances of torture, and 424 arbitrary detentions committed by the Taliban regime since its establishment in 2021. After the Taliban’s general amnesty following the collapse of Kabul in 2021, violence against former security and government officials violates international humanitarian law, to which Afghanistan is a state party.

Furthermore, collective punishment by the regime, including executions, torture, and unlawful detention, has been reported, mostly in areas with anti-Taliban armed resistance. Human Rights Watch (HRW) and Amnesty International documented incidents of torture inflicted on civilians by the Taliban due to alleged association with the anti-Taliban forces. Amnesty International also documented the summary execution of six family members, including a child, apparently on the basis of guilt by association.

In addition, Taliban fighters have also killed civilians in indiscriminate shooting to quell potential uprisings in Panjshir province. Other cases of civilian violence intentionally inflicted by the regime include killing protestors, detaining and torturing female activists, torturing citizens, and executions during home searches.

The war in Afghanistan has persisted even after the Taliban regained power. The regime has engaged in low-profile wars against the National Resistance Front (NRF) and the Islamic State—Khorasan Province (ISKP). Evidence suggests that the Taliban’s conduct during these hostilities may have violated international humanitarian law, including alleged war crimes such as the unlawful killing of prisoners of war.

In 2021, the U.N. representative to Afghanistan reported that the Taliban’s campaign against ISKP relied heavily on extrajudicial killings. In 2022, HRW reported that the Taliban executed and disappeared up to 100 captured alleged members of ISKP. In eastern Afghanistan, villagers retrieved numerous beheaded, tortured, and disfigured unidentified bodies from canals and other locations. In 2022, a video surfaced on social media showing Taliban fighters executing captured resistance fighters in Panjshir province.

Since the Taliban takeover of Afghanistan, there have been regular reports of extrajudicial killings by the Taliban fighters. These killings appear to be part of a systematic process rather than acts of vengeance. Despite a media blackout, social media has shed light on the gravity of these crimes. As of early November, clips on social media revealed the execution of three unarmed individuals by the Taliban fighters. While the Taliban has claimed that these individuals were associated with the NRF, the latter has vehemently denied any such association.

Under the Geneva Conventions, executing captured armed personnel without proper legal proceedings is a war crime. The Taliban’s conduct of war against ISKP and the NRF involves the execution of captured armed personnel without legal proceedings, which is in violation of international humanitarian law. This act falls under ICC jurisdiction for prosecution.

The Taliban regime has also orchestrated the systematic elimination of women from the public sphere. Since regaining power, the group has enforced more than 50 decrees that curtail women’s fundamental freedoms, including prohibiting education, banning employment, restricting the right to travel, and outlawing recreational and cultural activities. These deprivations are detrimental to the physical and mental health of women.

The U.N. reported a notable increase in female suicides and suicide attempts in Afghanistan following the Taliban takeover. Secondary data from hospitals across the country collected by the Guardian revealed a distressing surge in female suicides and suicide attempts after the Taliban rose to power. According to the report, the Taliban has concealed information about women’s suicide incidents and banned health institutions from disclosing the information.

This gender-based destitution can be classified as a crime against humanity under Article 7 of the Rome Statute. These crimes include severe deprivation of physical liberty, torture, persecution against any group based on gender, and inhumane acts that intentionally cause great suffering or serious injury to the body or mental or physical health. Crimes of such magnitude and gravity fall under ICC jurisdiction, according to Article 8 of the Rome Statute.

It is crucial, both for justice and for challenging impunity, that the ICC pinpoints and prosecutes individuals within the Taliban regime who are responsible for the aforementioned crimes. To achieve this, grasping the regime’s centralized structure driven by dystopian ideals is crucial. The Taliban supreme leader serves as the ultimate authority and the arbiter of the regime’s obligation to enforce its “divine” mission. This moral power enables the leader to guide politics in service of the divine mission and to shape the regime’s ideological stance, including systematic oppression and human rights violations.

The heads of line ministries are responsible for overlooking the formulation and enforcement of sectorial policies. At the ministerial level, they have political and administrative power and the duty to align policies with the regime’s ideals. The Taliban’s eight regional corps commanders hold a monopoly on violence within their designated regions and are directly responsible for any violence that occurs within their sphere, including war crimes and violence against civilians.

The regime’s morality police, called the Ministry for the Propagation of Virtue and the Prevention of Vice, has an overarching moral, administrative, and military authority. It is responsible for enforcing the regime’s ideological and moral code and for ensuring the alignment of social policies and conduct with the regime’s ideals. The ministry’s militarized disposition and its head’s close ties to the Taliban supreme leader give it significant power and influence in enforcing the regime’s dystopian imperatives.

The Taliban regime has committed grave violations of international humanitarian law, including war crimes, violence against civilians, and a campaign against women’s rights. It’s crucial to hold those responsible accountable. The ICC has the mandate to investigate and prosecute the Taliban leaders who committed such crimes against humanity.