In January 2025, the Office of the Prosecutor applied for warrants to arrest Haibatullah Akhundzada, the Supreme Leader of the Taliban and de facto leader of Afghanistan, and Abdul Hakim Haqqani, the Chief Justice of the Islamic Emirate of Afghanistan, for the crime against humanity of persecution on gender grounds under article 7(1)(h) of the Rome Statute (previously discussed here and here). Arrest warrants were subsequently issued on July 8, 2025.
The Taliban regime has long argued that it does not respect the authority of the ICC despite the fact that Afghanistan is a state party to the Rome Statute. It has claimed that it is not bound by the Rome Statute. However, to date, it does not appear to have followed the path taken by some state parties, which, when confronted with investigations or indictments, have formally attempted to withdraw from the Rome Statute (e.g. the Philippines and Burundi). This post considers whether, if in light of the recent arrest warrants, a Taliban withdrawal would be effective as a matter of international law.
Although a withdrawal would not put an end to ongoing prosecutions, it could make future indictments impossible.
Rome Statute Withdrawal Provisions
The Rome Statute permits the withdraw of state parties. Article 127(1) provides that: “1. A State Party may, by written notification addressed to the Secretary-General of the United Nations, withdraw from this Statute. The withdrawal shall take effect one year after the date of receipt of the notification, unless the notification specifies a later date.”
However, were it to attempt such a withdrawal, it is unclear if the Taliban could actually withdraw from the ICC. The problem lies in the fact that the Taliban regime is largely, although not exclusively, unrecognized by states (as discussed in greater detail below). The previous democratically elected government of President Ashraf Ghani, overthrown in 2021, remained recognized by the United Nations until 2022. In November of that year, the United Nations General Assembly adopted resolution A/RES/77/10, “The situation in Afghanistan”, expressing concern over the Taliban’s take over of Afghanistan and calling for the preservation of democracy in the country. Afghanistan’s voting rights were suspended in 2024 for the non-payment of dues. To date, the Taliban government has not been recognized by the United Nations.
Naseer Ahmad Faiq, the chargé d’affaires appointed by the previous government, remains Afghanistan’s representative at the United Nations. Where reference must be made to the Taliban in discussions at the United Nations, it is usually to the de facto authorities (or similar) in Afghanistan. For that reason, the court would have to turn to the rules of general international law and its previous jurisprudence to identify an answer to the question.
Previous ICC Practice
Article 127(1), Rome Statute provides for the withdrawal of a state on notification to the Secretary-General of the United Nations. Unsurprisingly perhaps, neither the Rome Statute nor the VCLT provide specific guidance on situations where the identity of a government is in question, or how such uncertainty might affect the right of a state to withdraw from a treaty. Instead, Article 54, VCLT, provides that: “The termination of a treaty or the withdrawal of a party may take place: (a) in conformity with the provisions of the treaty; or (b) at any time by consent of all the parties after consultation with the other contracting States.”
State practice in this regard is limited. The general view in international law, held since at least the Tinoco Arbitration, is that a government can exercise authority on behalf of a state when it is in effective control of a state’s territory and enjoys the habitual obedience of the population. However, this is distinct, at least in principle, from whether other states are required to engage in diplomatic relations with that government. There is no formal requirement to recognize any particular group claiming to be the government of a state (unless such recognition or non-recognition amounts to prohibited interference in the internal affairs of the state).
Nonetheless, ICC practice points to two potential arguments as to why the Taliban Regime might be able to withdraw from the Rome Statute. Importantly, this is not the first time the ICC has had to consider either the ability of an unrecognized government to bind the state at the international level or the existence of statehood. In its previous jurisprudence, the ICC has adopted two tests to determine the status of governments and states: a formal recognition-based test and an effective control test.
First, the court has made clear in the past that it will not necessarily rely on full membership in the United Nations (although the ICC is not formally part of the United Nations, the Secretary General is the Rome Statute’s depositary), or decisions of the Security Counsel, when determining if it should recognize states (and, by extension, governments). After a protracted series of attempts, Palestine became the 123rd member of the ICC on April 1, 2015. Initial attempts to engage with the ICC had failed. A 2009 referral of the Situation in Palestine to the prosecutor failed, with the Office of the Prosecutor concluding that “it is for the relevant bodies at the United Nations or the Assembly of States Parties to make the legal determination whether Palestine qualifies as a State for the purpose of acceding to the Rome Statute” and that because “the current status granted to Palestine by the United Nations General Assembly is that of ‘observer’, not as a ‘Non‐member State’” it was not eligible to become a state party. The court reversed course, with the Credentials Committee recognizing Palestine as a state party, and the prosecutor finding that the decision of the United Nations to upgrade Palestine to a non-member state meant that it could lodge a declaration accepting the jurisdiction of the ICC.
There can be no doubt that Afghanistan is an internationally recognized state. Several states, including many in the Gulf and Central Asia, have begun to enter into diplomatic relations with the Taliban regime, as discussed below.
Second, the court faced a similar situation with respect to the attempted referral of the situation in Egypt to the court by the deposed government of Mohamed Morsi in 2013. The Office of the Prosecutor examined the declaration submitted to the court on December 13, 2013, and found that it was not submitted by any person with the requisite authority to bind Egypt for the purposes of international law.
That initial referral was submitted on August 10, 2023. The prosecutor found, relying on the VCLT, that it was not submitted by individuals able to act on behalf of Egypt on the international plane. The prosecutor relied on changes to the UN Protocol List, which included the recognition of a new Head of State (Adly Mansour), Head of Government (Hazem El Beblawi) and Minister of Foreign Affairs (Nabil Fahmy), all of whom were appointed by Egypt’s new military government in July 2013. Additionally, a new Egyptian delegation had been seated at the General Assembly without a vote on 5 December 2013. None of the member states, the prosecutor concluded, considered that Mohamed Morsi remained the head of the Egyptian government, notwithstanding the decision of the African Union to suspend Egypt or the decision of some member states to condemn the coup that brought the new government to power.
Additionally, drawing on the “effective control” test, the prosecutor found that it was the Government of President Sisi, rather than the previous government, which enjoyed the habitual obedience of the bulk of the population, and had a reasonable expectancy of permanence (see, in particular, section 4.2.2.4.2), making it able to bind Egypt as a matter of international law. For that reason, the Office of the Prosecutor concluded that President Morsi could not longer exercise government authority on behalf of Egypt.
What is the Status of the Taliban Regime?
Unlike when the Taliban controlled large swathes of Afghanistan prior to 2001 and faced continued resistance from the Northern Alliance, current resistance inside Afghanistan to the Taliban regime appears nominal. The Taliban appear to enjoy the habitual obedience of the population.
States are divided in their willingness to engage with the Taliban. This is unlike the situation in Egypt, when the vast majority of states, if they condemned the coup, still accepted the Sisi government as the ruler of Egypt.
Conversely, many states, including all Western states, have refused to recognize the Taliban government. Recognition is a key criteria (see, in particular, section 3.2.1) through which states and governments agree to enter into treaty relations with other governments. However, all neighbouring countries have now entered into some form of diplomatic relations with the regime. It is arguable that the decisions of neighbouring countries should carry greater weight, as they are the countries which, by virtue of geography, will have the most frequent dealings with the Taliban regime.
Russia was the first country to recognize Taliban rule, which it did in summer 2025. China was the first country to accredit an ambassador appointed by the Taliban. The United Arab Emirates accepted the credentials of Taliban diplomats, beginning as early as 2024. Similarly, Uzbekistan recognized diplomats accredited by the Taliban government in that year. Many other countries have accepted de facto diplomatic ties with the Taliban, including Pakistan, Turkmenistan, Iran, Qatar, Oman, Malaysia, Iraq, Turkey, Azerbaijan, and Egypt (a good list of recognition, accreditation and diplomatic relations is provided here).
Additionally, Turkmenistan and the Taliban government are in discussions for the construction of the so-called TAPI Pipeline on the territory of Afghanistan, which would provide Turkmen gas to South Asia. Similarly, Uzbekistan, Afghanistan and Pakistan are in discussions over the construction of a railway linking Uzbekistan with the Pakistani port of Gwadar. Even India, traditionally an ally of the US-backed government in Afghanistan, has permitted Taliban diplomatic staff to reside in New Delhi. Tajikistan has permitted a Taliban consulate general to operate, even though it maintains ties with the former government.
Crucially, though, of those states, only Tajikistan is a state party to the ICC (Uzbekistan, Iran, Oman, and the UAE have signed, but not ratified, the Rome Statute).
Conclusion
Due to the mixed recognition accorded to the Taliban regime by the international community, it is ultimately difficult to predict what the Prosecutor or the judges might do if the Taliban attempted to withdraw from the Rome Statute. Withdrawal would not prevent current prosecutions for continuing, as noted above, but could prevent future indictments.
As a practical matter, the effect of any withdrawal may be moot. The ICC record of obtaining custody over individuals for whom it has issued arrest warrants is decidedly mixed. Based on publicly available data, 32 of 71 individual indicted by the ICC remain fugitives. If neighbouring states are prepared to recognize the Taliban regime, it is still likely that any indictees will remain beyond the reach of the ICC in The Hague.
