Exclusive reporting from Middle East Eye (MEE) has uncovered a landmark decision by International Criminal Court (ICC) pre-trial judges, who have ordered prosecutors to launch a fully standalone investigation into accusations of systematic gender persecution at the hands of the Taliban. The order splits this inquiry from the court’s decades-old overarching Afghanistan war crimes probe, which previously included allegations against United States nationals.
Court documents acquired by MEE via independent channels confirm that a three-judge panel from Pre-Trial Chamber II issued the formal directive to the ICC Office of the Prosecutor in mid-July 2025. If prosecutors move forward with the order, the investigation into Taliban conduct will be formally separated from the broader Afghanistan inquiry, which has examined alleged war crimes dating back to 2003 involving multiple parties: the former Afghan National Security Forces, U.S. military and CIA personnel, the Taliban, and the Islamic State-Khorasan Province (IS-K).
Legal observers note the move is almost certain to fuel speculation that the court is seeking to de-escalate tensions with Washington, signaling a potential end to active pursuit of allegations against U.S. forces and their Afghan former allies. The judicial directive comes just days after U.S. Secretary of State Marco Rubio publicly threatened to “dismantle the ICC, brick by brick” in remarks criticizing the court’s 2020 decision to greenlight the full Afghanistan investigation.
Since February 2025, the U.S. has enforced retaliatory financial and visa sanctions against multiple ICC officials linked to the Afghanistan and Palestine investigations, justifying the measures as a response to efforts to prosecute U.S. nationals or U.S. allies. The first high-profile target was Karim Khan, the ICC’s former chief prosecutor, who was controversially removed from office by ICC member states last month following an 18-month misconduct investigation. Eight additional ICC judges have also been sanctioned, including three members of the 2020 Appeals Chamber that authorized the full Afghanistan investigation: Kimberly Prost, Solomy Bossa, and Luz Ibanez.
These U.S. sanctions were imposed even after Karim Khan’s 2021 decision to deprioritize the segment of the Afghanistan probe focused on U.S. military and CIA personnel, as well as forces of the former Afghan government, in order to refocus investigative resources on the Taliban and IS-K. A year ago, the ICC issued high-profile arrest warrants for Taliban Supreme Leader Hibatullah Akhundzada and the group’s Chief Justice Abdul Hakim Haqqani, charging both with the crime against humanity of gender persecution against Afghan women and girls. Those warrant applications were drafted by a legal team led by Deputy Prosecutor Nazhat Shameem Khan, who oversees the overall Afghanistan investigation, and Professor Lisa Davis, the court’s Special Adviser on Gender Crimes and the author of the prosecutor’s office policy on gender-based violence. Both officials have faced U.S. pressure: Nazhat Shameem Khan is among the sanctioned ICC leaders, while Davis successfully won a court case in New York to block potential punitive action from the U.S. administration.
MEE previously reported in December 2024 that diplomats attending the ICC’s annual Assembly of States Parties meeting in The Hague revealed the Trump administration had pressured the court to abandon both the Afghanistan and Palestine investigations as a precondition for lifting U.S. sanctions. The U.S. also demanded ICC member states amend the court’s founding document, the Rome Statute, to block prosecution of nationals from non-member states including the U.S. and Israel. In a rebuke of these demands, the assembly issued a public declaration rejecting calls to amend the Rome Statute, resisting U.S. pressure without explicitly naming the country in the final text.
The ICC’s involvement in the Afghanistan situation traces back to November 2017, when then-Prosecutor Fatou Bensouda first requested authorization to investigate alleged crimes committed after 2003 across all involved parties. The request was initially rejected by a differently composed pre-trial chamber in 2019, but the Appeals Chamber overturned that ruling in March 2020 and authorized the full investigation to move forward. Just months later, Bensouda was sanctioned by the U.S. government for her efforts to bring Americans under the court’s jurisdiction.
The probe was suspended later in 2020 following a deferral request from the then-sitting Afghan government, and only resumed in late 2022, with that decision upheld on appeal in April 2023. In November 2024, six ICC member states—Chile, Costa Rica, Spain, France, Luxembourg, and Mexico—submitted a joint referral detailing allegations of widespread crimes against women and girls committed after the Taliban retook control of Afghanistan in August 2021, asking prosecutors to incorporate these claims into the existing Afghanistan investigation. Weeks later, in January 2025, then-Prosecutor Karim Khan applied for arrest warrants, arguing the gender persecution allegations already fell within the scope of the 2020 investigative authorization. The warrants for Akhundzada and Haqqani were issued shortly after.
In the latest judgment obtained by MEE, Pre-Trial Chamber II found that the Taliban’s post-2021 conduct is “materially different” from the armed conflict-related violence that formed the core of the original 2020 conflict-linked investigation. The panel, led by presiding judge Rosario Salvatore Aitala alongside members Sergio Gerardo Ugalde Godinez and Haykel Ben Mahfoudh, directed prosecutors that if they determine the legal threshold for an investigation is still met, they must open a fully separate probe rooted in the 2024 state referral, and formally notify the ICC Presidency of the referral—a step that had not yet been taken as of the court’s order.
“The Referral concerns allegations of gender and political persecution through the adoption, implementation and enforcement of discriminatory decrees, policies and restrictions made possible by the Taliban’s exercise of de facto governmental authority, rather than conduct allegedly committed by the Taliban as an insurgent armed group during the armed conflict,” the judges wrote in their ruling. They echoed a prior recognition from the prosecution that after seizing power in August 2021, the Taliban’s actions did not center on armed attacks against civilian populations, but instead on imposing “discriminatory rules and prohibitions on the population directly” and punishing people who “did not conform” to the group’s policies.
“The allegations in the Referral therefore arise in a materially different factual and institutional context, involve distinct alleged modes of commission, do not appear to be related to any armed conflict, and concern conduct occurring after the Taliban’s assumption of governmental de facto authority,” the ruling continued. “In light of the above, the Chamber considers that the conduct identified in the Referral constitutes a sufficiently distinct subset of alleged events that, in the interests of the proper administration of justice and the orderly management of the Court’s proceedings, warrants a separate investigation.”
The judges also drew attention to the fact that the original overarching Afghanistan investigation, which nominally covers alleged crimes by all parties, has remained dormant for years. They directed prosecutors to a newly implemented court procedure that allows for formal closure of inactive situation records. In a footnote, the chamber noted: “Considering that more than three years have elapsed since the Chamber authorised the resumption of the investigation into the Situation in Afghanistan and that no proceedings are presently pending in relation to the conduct covered by that authorisation, the Chamber draws the Prosecution’s attention to the recently implemented regulation 66 ter of the Regulations of the Court, which allows the Prosecution to request the closure of a situation record when it does not anticipate any further investigatory or prosecutorial activities in relation thereto.”
As of the publication of MEE’s reporting, the Office of the Prosecutor has not yet announced a decision on either closing the original Afghanistan investigation or opening the new standalone probe into Taliban gender persecution. When contacted by MEE for comment, a court spokesperson stated the office “does not comment on investigations.”