OTTAWA — The Canadian government has not announced whether it will support Kimberly Prost, a Winnipeg-born judge of the International Criminal Court (ICC), as she seeks to overturn the sanctions imposed by U.S. President Donald Trump. These sanctions have severely limited her ability to engage in everyday activities, such as using credit cards and accessing major online services.
Prost has faced these sanctions for almost a year due to her involvement in cases against American military officials in Afghanistan. Despite the serious implications of these sanctions on her personal and professional life, Canada has remained silent, in contrast to France, which has condemned the U.S. government's actions.
Sabine Nolke, a former senior Canadian diplomat with a focus on international law, commented on the situation, highlighting that while Canada possesses solid human rights credentials, it could be more vocal on such issues. Nolke, who previously represented Canada at The Hague, believes that the government should consider filing an amicus brief to formally support Prost in her legal battle.
Prost has expressed that the sanctions have not only hampered her ability to travel but have also stripped her of simple joys in life, such as using technology like an Amazon smart speaker or buying theater tickets. She views the sanctions as a direct assault on judicial independence, asserting that they will not deter her commitment to achieving justice for victims of serious crimes.
In a legal response, Prost and two other judges have initiated a lawsuit against the Trump administration. The judges argue that Trump overstepped his authority and failed to ensure due process under U.S. law. James Goldston, the executive director of the Open Society Justice Initiative, is representing Prost and states that the President lacks the authority to infringe upon international law in this manner. He argues that the sanctions are arbitrary and an abuse of discretion.
The lawsuit asserts that Trump has exceeded the emergency powers granted to him by Congress and highlights the absence of any legitimate emergency that would justify the invocation of the International Emergency Economic Powers Act. Goldston emphasizes that the judges are being penalized for improper motives, effectively pressuring them to align their future judicial decisions with the U.S. administration's interests.
As of now, Washington has not responded to the initial complaint filed on June 24 in a U.S. district court in New York. To expedite the process, Prost's legal team also requested a preliminary injunction on July 2, which allows the government until July 30 to respond, and gives Prost’s team until August 20 to reply. This injunction could potentially freeze the sanctions while the legal proceedings are ongoing.
Nolke insists that Canada should actively support Prost's case, recalling instances when Canada previously filed amicus briefs in critical legal matters. For example, Canada intervened in a 1992 case regarding a U.S. extradition treaty with Mexico and also joined the European Union’s submission in a 2005 case that led to the abolition of the death penalty for young offenders, motivated by concerns for Canadian citizen Omar Khadr, who was detained at Guantanamo Bay at that time.
Global Affairs Canada has not confirmed whether it is considering supporting Prost’s case through an amicus brief. However, a spokesperson, Thida Ith, reiterated Canada’s longstanding commitment to the ICC and its mandate, highlighting the importance of protecting the independence of ICC judges as critical for the court's effectiveness. Citing the ongoing legal proceedings, the department refrained from offering additional comments.
Nolke pointed out that while preparing an amicus brief can require significant resources, the Canadian government has various options to support Prost. She suggests that at the very least, Canada should express its support for Prost, as it aligns with the country's commitment to uphold the rule of law and support for the ICC.
Goldston emphasized that it is ultimately up to Canada to decide whether it wants to participate in the case through an amicus brief and would welcome any contributions from parties with relevant information or arguments that could assist in resolving the legal issues in this case.
