5 October 2026, ICC Pre-Trial Chamber II unsealed four arrest warrants 6/10/26

The ICC Just Said Something Important About Persecution by Policy

On 5 October 2026, the International Criminal Court unsealed four arrest warrants in its investigation into Afghanistan.

All four are accused of responsibility for the crime against humanity of persecution under Article 7(1)(h) of the Rome Statute.

The allegations concern persecution on gender grounds against women, girls and others regarded as failing to conform to Taliban policies on gender, gender identity or expression, and persecution on political grounds against people perceived as “allies of girls and women”.

But there is something particularly significant in the ICC’s reasoning.

Persecution does not have to mean only direct physical violence

The ICC’s Pre-Trial Chamber found reasonable grounds to believe that the Taliban implemented a governmental policy resulting in severe violations of fundamental rights and freedoms.

Some of those rights were taken away through decrees and edicts.

The Chamber then made an important finding about persecution under Article 7(1)(h).

It said gender persecution encompasses not only direct violence but also:

“systemic and institutionalised forms of harm”

including the imposition of discriminatory societal norms.

That matters.

The Court is recognising that the machinery producing alleged persecution can be institutional.

A government policy, rules, decrees and the institutions enforcing them can become mechanisms through which fundamental rights are severely deprived.

And there is another extraordinary passage.

After describing the immediate harm suffered by victims, the Prosecutor states that this harm is also matched by harm to:

“future generations, in lost opportunities and unfulfilled potential.”

The application alleges that the persecution formed part of a broader attack against Afghanistan’s civilian population which was widespread and systematic and carried out pursuant to a State or organisational policy.

These are allegations. Arrest warrants are not findings of guilt, and the suspects are entitled to the presumption of innocence.

But the legal reasoning is important well beyond Afghanistan.

Why this caught my attention

For some time, I have been asking a different question arising from Australia’s treatment of the children and descendants of Vietnam veterans:

Can persecution or serious human-rights harm occur through policy?

My father’s exposure in Vietnam occurred in 1969–70.

That historical conduct predates the International Criminal Court by decades, and the ICC cannot simply exercise retrospective jurisdiction over events occurring before its temporal jurisdiction began.

But that is not the only question I have been asking.

I have been asking what happens when institutional decisions and policies continue in the present.

What happens when an identifiable population says that governmental systems themselves deny recognition, investigation, remedy or fundamental rights?

And at what point do we stop looking only for an individual act of physical violence and start examining what the institution itself is doing?

The Afghanistan warrants do not answer those questions for Australian veterans’ families.

But the ICC has now made something very clear:

Serious international crimes are not necessarily committed only through guns, prisons or direct physical violence.

The Court is examining governmental policy, severe deprivation of fundamental rights, and systemic and institutionalised forms of harm.

And its Prosecutor has expressly recognised that the consequences of such systems can reach future generations.

For anyone examining whether institutions themselves can become instruments of human-rights harm, that is an important development I’m watching.