Michael Hughes
January 25, 2025

Restrictions on gender expression are, sadly, a daily occurrence in most countries around the world, including the United States. President Donald Trump, in fact, in an executive order on his first day in office declared the U.S. government would only recognize the sex assigned to a person at birth. Tragically, this is where many Americans and the Taliban can find common ground.

Hence, I was disappointed with the over-emphasis of “gender” in the ICC’s impractical arrest warrants against Taliban leaders. I think alluding to gender in general as an area that needs improvement would have sufficed. But the term is mentioned seven times in the statement issued by ICC prosecutor Karim Khan, a British lawyer, who unveiled the warrants on January 23.

The ICC accused the Taliban of persecuting Afghan girls and women, “as well as persons whom the Taliban perceived as not conforming with their ideological expectations of gender identity or expression.” The ICC should have largely focused on the specific abusive acts, outlined in one paragraph, that every human being with any sense of morals would condemn.

“Perceived resistance or opposition to the Taliban was, and is, brutally repressed through the commission of crimes including murder, imprisonment, torture, rape and other forms of sexual violence, enforced disappearance, and other inhumane acts,” the ICC’s statement said.

Evidence against the Taliban for physical torture and refusal of basic human rights like education are the most powerful weapons in the court’s hands. There are fundamental human rights that all but a few on our planet agree upon. But the ICC instead has perhaps overreached. I suspect, but I could be wrong, that a large swathe of conservative Afghan society does not share Khan’s progressive views on what he refers to as the “LGBTQI+” community. I would be surprised if many understand the terminology. According to polling, 80% of Americans don’t.

Nearly all ICC arrest warrants prove problematic when it comes to enforcement and moral consistency. To channel Noam Chomsky, if we applied international law equally, just about every U.S. president should have been hung. But even with these typical challenges, the warrants – if done properly – could have served as a strong symbolic gesture denting the Taliban’s shield of impunity. 

To be sure, the ICC is unlikely to inconvenience the two officials named in the warrants – Taliban leader Haibatullah Akhundzada and Supreme Court chief Abdul Hakim Haqqani, both of whom I am willing to bet did not have plans to travel beyond Afghan borders anytime soon. However, a precedent could have been set that would give Taliban officials pause.

Some of the most sinister Taliban members are hoping for sanctions relief and look forward to building goodwill abroad – including efforts to boost cooperation across the region with major actors like China and Russia. However, even the Taliban’s closest allies have refused to officially recognize the regime, largely due to the Taliban’s mistreatment of women. These arrest warrants could have placed the Taliban depravity at the forefront of the global consciousness, making world leaders and diplomats even more reluctant to be seen as lending the regime any legitimacy.

Yet the approach the ICC used has potentially taken the sting out of the warrants. Even worse, it provides the Taliban the opportunity to deflect the charges as an attempt to impose Western cultural norms on the people of Afghanistan. One could easily see, for example, the Taliban leaders pointing out the progressive acronyms in the statement while claiming Afghanistan’s traditional value system is under attack.

Which raises the question: who were the “experts” referred to in the statement that advised the ICC on this warrant? The second question is: did any of them live in Afghanistan? I should not be surprised but it is still hard to fathom such a cultural disconnect and lack of pragmatism. The court sacrificed practicality in service to the most advanced precepts of a cosmopolitan ideology many liberals even struggle with.

The Taliban movement and its extremist brethren have sent Afghan society spiraling into the Dark Ages with rules imposed on women ripped right from the sixth century. And now, we want to pull Afghanistan forward – not even to the present, but to a utopia yet to exist. That being, a world in which every country has equal legal protections for any and all forms of gender expression.

Let’s start with small steps like preventing Afghan women from getting flogged for eloping. And ensuring Afghan girls can attend school. Afghanistan – and the world for that matter – have a long struggle ahead in fully securing LGBTQI+ freedoms.

And, if we are issuing arrest warrants over gender identity issues, there are scores of officials in governments worldwide that should be on the receiving end. But, what are the odds the ICC targets Riyadh next?