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The Hazara Case at the ICC: What Is Happening and What Is Not

The International Criminal Court has an open investigation into Afghanistan. It has issued arrest warrants against the Taliban's supreme leader and chief justice. Those two men are internationally wanted criminals under international law. They are also sitting in Afghanistan, showing no sign of going anywhere, and the ICC has no police force to compel otherwise.

That gap - between what the court has done legally and what is likely to happen in reality - is the central fact of the Afghanistan situation at the ICC. And for Hazaras specifically, there is a second, equally important fact: the crimes that shaped Hazara collective memory most deeply - Mazar-i-Sharif in 1998, Afshar in 1993 - are permanently outside the court's reach. Not because of political choices or prosecutorial priorities, but because of when Afghanistan joined the Rome Statute. Those massacres occurred before the court existed in any operational sense. No legal argument, however well made, can change that.

What the court is pursuing - gender persecution against women and girls - is a real and serious charge. What it is not pursuing, at least not yet, is Hazara ethnic persecution as a distinct legal claim. Understanding the difference between those two things, and what it would take to change the picture, is what this article is about. See also our article on what has happened since 2021 for the baseline of what the ICC investigation covers in terms of Taliban conduct on the ground.

Afghanistan and the ICC: The Jurisdictional Foundation

Afghanistan became a member of the Rome Statute - the treaty that created the ICC - when it deposited its instrument of accession on February 10, 2003. The statute formally entered into force for Afghanistan on May 1, 2003. That date is the hard floor for ICC jurisdiction.

What this means, practically: the ICC can examine crimes committed on Afghan territory, or by Afghan nationals, from May 1, 2003 onward. There is one partial extension - for crimes committed at detention facilities outside Afghanistan that were connected to the Afghan armed conflict (the CIA black sites in Poland, Romania, and Lithuania, for example), jurisdiction extends back to July 1, 2002, the date the Rome Statute entered into force globally. But for crimes committed in Afghanistan itself, May 2003 is the start.

There is one further point worth understanding about how the ICC's jurisdiction is structured. The court operates on the principle of complementarity: it only acts when national courts are unwilling or unable to genuinely investigate and prosecute the same crimes themselves. In Afghanistan's case, the complementarity bar is cleared without much argument. The Taliban has no functioning independent judiciary, and Taliban-run courts will not prosecute Taliban commanders. This was formally confirmed in October 2022, when the ICC's Pre-Trial Chamber dismissed a challenge to the investigation's admissibility. The court has the authority. The question is what it does with it.

The Long Road to Investigation: 2007 to 2022

The ICC's path to an active investigation in Afghanistan was neither fast nor straightforward.

The Office of the Prosecutor began a preliminary examination - essentially a determination of whether the evidence was sufficient to seek a full investigation - in 2006, with the examination becoming public in 2007. This phase alone took over a decade. The OTP received 125 communications from individuals and organizations during this period.

In November 2017, then-Prosecutor Fatou Bensouda formally requested authorization from the Pre-Trial Chamber to open a full investigation. Her request covered crimes by three categories of actors: the Taliban and affiliated groups, Afghan national security forces, and US Armed Forces and CIA personnel at detention sites.

In April 2019, the Pre-Trial Chamber rejected the request - not because it doubted crimes had been committed, but because it found that proceeding would not serve the "interests of justice," citing the difficulty of gathering evidence and the lack of cooperation from key states. This decision was widely criticized by legal scholars as a misapplication of that criterion, which is not meant to allow judges to block investigations on practical grounds.

The Prosecutor appealed. In March 2020, the Appeals Chamber unanimously reversed the lower chamber's decision, holding that the Pre-Trial Chamber had exceeded its authority, and authorized the investigation itself.

Then came further delay. In September 2021, newly-appointed Prosecutor Karim Khan announced that his office would focus on crimes by the Taliban and ISIS-K, and would deprioritize investigation of Afghan national security forces and US forces - a decision that drew sustained criticism from Human Rights Watch, Amnesty International, and others as creating a double standard. An admissibility challenge from the former Ghani government (which at that point controlled no territory) caused a further pause. The Pre-Trial Chamber dismissed that challenge in October 2022, authorizing the full investigation to resume.

In practical terms: the investigation was formally authorized in March 2020, went through an administrative pause, and became operationally active in late 2022. The first arrest warrant applications were filed in January 2025 - nearly five years after the investigation was authorized, and eighteen years after the preliminary examination began.

What the Investigation Actually Covers

The formal judicial authorization covers crimes by all parties to the conflict from May 2003. In practice, the active investigation has a narrower focus.

The ICC is examining:

  • Taliban and affiliated armed groups - unlawful killings, enforced disappearances, targeted abuses against perceived opponents and former government officials
  • Islamic State Khorasan Province (ISIS-K) - widespread attacks on civilians, with particular documentation of attacks on Hazara and Shia communities
  • Afghan national security forces - torture, extrajudicial killings (formally in scope but deprioritized by the current prosecutorial strategy)
  • US Armed Forces and CIA - conduct at detention facilities (also formally in scope, also deprioritized)

The categories of crime under examination are war crimes under Article 8 of the Rome Statute (murder, torture, attacks on civilians, executions without due process) and crimes against humanity under Article 7 (murder, imprisonment, persecution on political and gender grounds). Genocide under Article 6 has not been formally charged in this investigation.

ISIS-K's campaign of attacks targeting Hazara neighborhoods, mosques, schools, and hospitals - particularly concentrated in the Dasht-e-Barchi area of western Kabul - is extensively documented by Human Rights Watch and falls within the ICC's scope. Whether it will result in charges that specifically frame Hazara ethnic targeting as the underlying logic is an open question. As of mid-2026, the OTP has not made that argument explicitly.

The July 2025 Arrest Warrants: What They Mean and Don't Mean

On July 8, 2025, the ICC's Pre-Trial Chamber II issued arrest warrants for two individuals: Haibatullah Akhundzada, the Taliban's Supreme Leader, and Abdul Hakim Haqqani, the Taliban's Chief Justice. The warrant applications had been filed by Prosecutor Karim Khan in January 2025.

The charge in both cases is the crime against humanity of persecution under Article 7(1)(h) of the Rome Statute - specifically, persecution on grounds of gender and political identity. The allegations cover the systematic and severe deprivation of rights of women, girls, and gender non-conforming persons: the right to education, to movement, to healthcare, to expression, to family life, and to religious practice. The crimes are alleged to have been committed from August 15, 2021 - the date the Taliban seized Kabul - through at least January 2025.

In November 2024, six states - Chile, Costa Rica, Spain, France, Luxembourg, and Mexico - jointly referred the Afghanistan situation to the ICC specifically highlighting these crimes against women and girls. The OTP noted this confirmed and reinforced its existing investigation rather than opening new ground.

The warrants are real. The charges are serious. Two of the most powerful men in Afghanistan are now internationally wanted criminals under international law. That is not nothing.

What the warrants are not: they are not genocide charges, they are not Hazara-specific ethnic persecution charges, and they have not resulted in any arrests. Akhundzada is known to rarely leave his stronghold in southern Afghanistan. Neither man recognizes ICC jurisdiction. The Taliban administration has declared Afghanistan's accession to the Rome Statute "devoid of legal validity" - a political position that has no legal force, but reflects the complete absence of any cooperation the ICC can expect from the current Afghan authorities.

There is also a further institutional disruption: Prosecutor Karim Khan stepped away from active duties in May 2025 following a UN investigation into allegations of sexual misconduct. He has denied the allegations. The case is being run by his two deputies, Nazhat Shameem Khan and Mame Mandiaye Niang, and the investigation continues.

The Hazara Dimension: What Is and Isn't Being Pursued

For Hazaras, the gap in the ICC's current approach is significant and worth stating plainly.

The arrest warrants target gender persecution. Gender persecution affects Hazara women and girls alongside all Afghan women and girls. But the ICC's current charges do not distinguish between women of different ethnic or religious backgrounds - they do not charge Hazara ethnic targeting as a separate or aggravating element. A Taliban policy of persecuting women as a class and a Taliban policy of targeting Hazaras as an ethnic group are legally distinct claims, even if they overlap in practice.

In January 2026, the New Lines Institute published a comprehensive legal analysis finding a "reasonable basis to believe" that crimes against Hazaras - by both ISIS-K and the Taliban - constitute genocide under the Genocide Convention. The analysis documented 756 killed and 1,702 injured across 67 incidents from 2017 to 2021 alone, and concluded that both the acts themselves (killing, serious harm, imposing conditions of destruction) and the intent element - the specific intent to destroy the Hazara group as such - could be demonstrated. The report recommended explicitly referring the Hazara situation to the ICC.

This is significant legal analysis from a credible institution. It is not an ICC finding, not a UN determination, and not a filed charge. The ICC has not charged genocide in the Afghanistan situation. The distinction matters for accuracy.

The structural reason the worst atrocities in Hazara history cannot be reached is not about will or priority - it is about time. The 1998 massacre in Mazar-i-Sharif, in which at least 2,000 Hazara civilians were killed in systematic, targeted killings of Hazara men and boys as the Taliban took the city, is permanently outside ICC jurisdiction. The 1993 Afshar massacre, in which 700 to 2,000 Hazara civilians died, is likewise beyond reach. These crimes predate Afghanistan's accession to the Rome Statute by five and ten years respectively. No prosecution is possible through the ICC for these events. For that history, other mechanisms - universal jurisdiction claims in national courts, historical documentation commissions, UN bodies with broader mandates - are the only routes. You can read more about how the broader question of formal recognition connects to this legal gap in the genocide recognition article.

What Accountability Would Actually Require

Understanding how the ICC's process works - and where it breaks down - is necessary for realistic expectations.

The process, in plain terms, runs like this:

Investigation - the Prosecutor's office builds an evidentiary case. Given that Afghanistan is inaccessible for direct evidence gathering, this relies on testimony from victims and witnesses collected remotely, open-source evidence, NGO documentation, satellite imagery, and submissions from organizations like Human Rights Watch, Amnesty International, and the network of Afghan human rights defenders that has been collecting testimony since the Taliban's return.

Arrest warrant application - the Prosecutor presents evidence to the Pre-Trial Chamber. The judges must find "reasonable grounds to believe" the named person committed the alleged crimes. This is a lower standard than "beyond reasonable doubt" - comparable to probable cause in a domestic criminal system. This step is complete for Akhundzada and Haqqani.

Warrant issued - the Pre-Trial Chamber issues the arrest warrant. Done, as of July 2025.

Arrest and surrender - this is where the process stops. The suspect must be physically brought to The Hague. The ICC has no police force and no enforcement mechanism. Under the Rome Statute, states that are parties to the treaty are obligated to cooperate - including by arresting suspects on their territory and surrendering them. But the Taliban will not do this. The ICC can refer non-cooperation to the Assembly of States Parties (123 member states) or the UN Security Council. In practice, the Security Council route is blocked by veto dynamics. The Assembly of States Parties can apply political pressure but cannot compel arrests.

What can actually change the picture: the suspect traveling to a cooperating state's territory and being detained there; a change of regime in Afghanistan that produces authorities willing to cooperate; or voluntary surrender. None of these is likely in the near term for either Akhundzada or Haqqani. But they are not impossible. In 2025, the Philippines surrendered former President Rodrigo Duterte to the ICC - proof that the mechanism can work when political circumstances shift.

There is one further procedural point worth noting: the Appeals Chamber has upheld the possibility of conducting a confirmation of charges hearing in absentia in certain circumstances. Meaning a trial-like process, building a formal record, could proceed even without the suspects present. That would produce a judgment. It would not produce imprisonment.

Survivor testimony is legally significant throughout this process, not only at trial. Victim participation is a formal right under the Rome Statute - victims can participate through legal representatives, submit observations, and apply for reparations if a conviction is eventually obtained. Hazara communities in Australia, Canada, Germany, the United Kingdom, and across the world who have documented their experiences and those of family members still in Afghanistan are contributing to a record that can support charges - whether those charges are eventually filed for gender persecution, ethnic persecution, or genocide.

The UN's Parallel Track: The New Investigative Mechanism

On October 6, 2025, the UN Human Rights Council voted by consensus to establish an Independent Investigative Mechanism for Afghanistan - a body separate from the ICC with a different mandate and a broader scope.

This mechanism does not have prosecutorial powers. It cannot put anyone on trial. What it does is collect, preserve, and analyze evidence of international crimes; identify individuals responsible; and prepare files that can be used to support prosecutions in national courts, international courts, and any future accountability mechanisms.

Its scope is wider than the ICC's in two important ways. First, it covers crimes by all actors - Taliban, former Afghan government forces, ISIS-K, warlords, international forces - without the ICC's prosecutorial prioritization decisions narrowing the focus. Second, its geographic and temporal mandate for evidence collection is not constrained by the ICC's May 2003 start date in the same way, meaning it can build a documentary record about patterns of conduct that the ICC cannot prosecute directly.

The mechanism specifically includes gender persecution in its mandate. It has also been identified by legal organizations as a vehicle for building the documentary foundation for potential future genocide charges - collecting and preserving evidence in a form that can be handed off to whatever accountability mechanism eventually has the standing and the political conditions to pursue it.

The HRD+ network - 108 Afghan and international human rights organizations led by Afghan human rights defenders - spent years campaigning for this mechanism. Its creation in October 2025 represents something concrete: a funded, mandated body building a record that will outlast whatever political moment the world is currently in.

An Honest Assessment

The ICC has done something real. Two of the most senior Taliban leaders are internationally wanted criminals. The legal architecture of accountability - warrants, charges, a formal record - exists. If either man ever travels to a country that takes the ICC seriously, the machinery is in place.

What the court has not done is pursue the Hazara case specifically. The warrants are for gender persecution against women broadly, not for the systematic targeting of Hazaras as an ethnic group. The massacres that define Hazara collective memory of Taliban violence are beyond the court's reach by law, not by choice. The genocide charge that legal analysts have argued is supportable has not been filed. There is no prospect of an arrest in the near term.

The honest framing is this: international accountability for crimes against Hazaras is on a long track with an uncertain destination. The ICC investigation, the July 2025 warrants, and the October 2025 UN mechanism together represent genuine progress in building a legal record. None of them, individually or together, represent imminent justice.

What matters, practically, is that the record is being built. The evidence being collected now, the testimony being preserved, the legal analyses being published - these are the materials of accountability in future proceedings that may have more political room to operate than the current moment allows. The New Lines Institute's genocide analysis, the UK parliamentary report, the HRD+ network's evidence submissions - these are not irrelevant to the ICC process. They are the foundation on which future prosecutorial decisions will be made.

The ICC is a slow institution operating in a difficult environment without an enforcement mechanism, led by deputies while its Prosecutor is sidelined, with its most important suspect living in a place no state party can reach. That is the reality. It is also true that the Rome Statute exists, that Afghanistan is a party to it, that two Taliban leaders are now under international warrant, and that a UN body with a broad evidence mandate is now operational. That is the full picture.

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