Sanctioned Judge Speaks: A Conversation with ICC Judge Kimberly Prost

ICC Judge Kimberly Prost reflects on the sanctions imposed on her by the United States, the practical consequences for judges carrying out their duties, and the broader implications for judicial independence and international courts.

Judicial independence is a foundational principle of the rule of law. Yet in recent years, judges serving on international courts have found themselves confronting an unusual form of pressure: targeted sanctions imposed by governments in response to judicial decisions. Among those affected is KIMBERLY PROST, a judge of the International Criminal Court (ICC), who was sanctioned by the United States after participating in a judicial decision authorizing an investigation that included potential conduct by U.S. personnel.

“I believe this attack on the court is part of a broader attack on international law,” said Judge Prost.

In this interview for Judicature International, New Zealand Court of Appeal Justice DAVID COLLINS, chair of Judicature International’s editorial board, speaks with Judge Prost about the origins and structure of the ICC, her path to the international bench, and the practical and institutional consequences of sanctions imposed on judges performing their judicial duties. She reflects on what such measures mean for the independence of international courts and for the broader project of maintaining the rule of law in international affairs.

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JUSTICE COLLINS: Judge Prost, thank you so much for joining us. Could you please provide readers with a background of the International Criminal Court, or as it’s known, the ICC? I understand you were actually present when the Rome Treaty was signed or adopted?

JUDGE PROST: I was indeed. Backtracking from that moment, it’s important to note that the ICC is the first permanent international criminal court adjudicating individual criminal responsibility for war crimes, crimes against humanity, genocide, and aggression. After World War II, there were so many steps forward from the tragedies of that war in international law, the United Nations, the Universal Declaration of Human Rights, the International Court of Justice . . . but what could not be achieved, what could not be reached agreement on was a permanent international criminal court because it’s a very difficult subject area, individual responsibility. There was a period of time when we sort of went backwards from the trials at Nuremberg and Tokyo, and it took a combination of circumstances around the late 1980s, 1990s, when there started to be renewed attention because there was atrocity crime and no prospect of justice. We began negotiations in earnest. The most important factor was that the political atmosphere was such that it was a small window of opportunity.

Negotiations in the mid-90s leading up to, yes, that hot night in Rome on the 17th of July, 1998, when the Rome Statute was adopted by 120 states, thereby recognizing the statute. It still needed 60 ratifications for the court to actually come into existence. And interestingly, at the time, nobody in the room thought this would happen quickly. We thought 10 years, maybe 15 years, but just four years later, we had all the necessary ratifications. And so the statute took effect.

What I always like to emphasize, though, is that what we did at Rome and what the statute is about is not creating a super court. And that is one of the unfortunate expectations: that this court is supposed to try all the cases arising out of all the situations, which, of course, is impossible. The idea was to create a system, the Rome Statute system, whereby states are encouraged, cajoled to take up their responsibility to investigate and prosecute these crimes, to work individually or together to bring these cases forward.

And the ICC is part of that system, but it’s only a court of last resort where there is no state, doesn’t even have to be a state party, but no state that is willing and able to genuinely investigate and prosecute. And in that way, it is a motivation to have these cases investigated and prosecuted. I think it’s really important to understand that we are not interfering in any way in national jurisdiction. To the contrary, we all agree these cases are best tried nationally, but unfortunately, there are many situations in the world where there is no one investigating and prosecuting. So the ICC investigates and prosecutes in those scenarios.

JUSTICE COLLINS: Thank you for that excellent overview. Could you please tell us about your background? How did you end up being a judge on the ICC? 

JUDGE PROST: Well, I always joke that my background seems to suggest I can’t hold down a job. I’ve had quite an eclectic path to the court. It’s not necessarily a normal path. I mean, a number of my colleagues have been judges their entire lives in a national context, perhaps doing some international work. Others have come from the criminal law stream more generally, having served, for example, as prosecutors or defense counsel. In addition, there are two streams: criminal law and international law. As a result, some judges have worked as diplomats or academics.

I’ve had a whole mix of experience. I did not work as a judge in Canada, but I was a prosecutor. That was my grounding. And basically, I was in the courtroom day in and day out for a number of years in my hometown of Winnipeg. And then I worked in international cooperation. I became the head of Canada’s first international cooperation central authority dealing with extradition and international evidence gathering.

And that gave me this interesting background on different legal traditions. I also, in that context, was on the Canadian delegation to the negotiations of the Rome Statute. Plus, I had served for a couple of years in Canada’s first War Crimes Unit. That’s where I got exposed to international criminal law. And then mid-career, I just took a real pivot and went to London to work at the Commonwealth Secretariat, doing capacity building with states, again on cooperation, international matters, and then to the UN Office on Drugs and Crime in Vienna for the same type of work on a global scale, at which point I was asked by Canada if I would run for election as an ad litem judge of the International Criminal Tribunal for the former Yugoslavia (ICTY).

That was my first appearance as a judge on a tribunal. I was elected and served four years as a judge at the ICTY on the [Vujadin] Popović et al. case and on the largest trial the court held concerning Srebrenica, involving seven accused.

And from there, I went on to do a sanctions job, of all things, in New York, and ultimately returned to the court as chef de cabinet to the president of the court and was subsequently elected as a judge. It’s a bit of a long journey to arrive at this point. But I think I have, as a result, quite an interesting mix of experience that’s quite helpful for the role.

JUSTICE COLLINS: That is most fascinating, thank you. Could you give us a brief overview of how the court functions? How does it discharge its responsibilities?

JUDGE PROST: Well, it’s based on the statute. With the statute, we were literally creating this independent legal system because it’s a hybrid system that mixes different legal traditions worldwide. And as a result, you see some variations from what a civil law court might look like or what a common law court looks like. Basically, the court has jurisdiction over the crimes I mentioned only in two situations, because it is a treaty-based court. We have 125 states parties. We will have jurisdiction if the allegations are against nationals of a state party; the states have consented to our jurisdiction in that context. And also, our states parties have a protection, such that we will have jurisdiction if the alleged crimes, even committed by non-states parties, are alleged to have occurred on the territory of a state party. That is the basis on which we sometimes have cases involving non-states parties, and in my view, that’s a perfectly legitimate basis of jurisdiction.

 And, as I said, we only have jurisdiction where no one else is handling the case; the case can come to the Office of the Prosecutor (OTP), which is part of the court but operates independently. And so, cases can be referred by a state party, a situation can be referred by the UN Security Council, or the prosecutor can investigate a situation proprio motu. But if she or he does that, they must obtain the authorization of a pretrial chamber because that’s a check and balance on the prosecutor.

Once the situation is under investigation, the prosecutor can seek arrest warrants. He does that in the pretrial chamber as well. We have three chambers: pretrial, trial, and appeals. And the pretrial chamber is then responsible for issuing those warrants, confirming investigations, and confirming charges, which is one of its most important functions. For example, this week was the confirmation hearing in the [Former Philippine President Rodrigo] Duterte case.

And then if the pretrial chamber confirms the charges, the cases proceed to trial. That’s where I sit, and that’s where I’ve sat throughout my time at the court, as a trial judge, albeit I have done temporary work in the appeals chamber. We then proceed with a trial, which is very interesting because it’s a mix: we have a sort of evidence system from the civil law tradition, but an adversarial system in the courtroom, basically with judges much more active than you will see in a lot of common law courts. And from there, we can enter convictions and acquittals. And, in addition, we will usually sentence in a separate proceeding. It’s part of the trial, but usually a separate hearing. But the most recent case in [Alfred] Yekatom and [Patrice-Edouard] Ngaïssona [of the Central African Republic], they did it together. So they issued a conviction and a sentence. And then the sentences can be up to 30 years or life imprisonment in exceptional circumstances.

That was a hard point to negotiate, as well as fines and forfeiture orders. And we also have reparation proceedings that take place at trial. From there, as is typically the case across all systems, the case could be appealed by either the prosecutor or the defense.

JUSTICE COLLINS: And the appeal is heard by the full chamber?

JUDGE PROST: Yes. There are five judges who sit on appeals unless someone has a conflict, in which case a substitute sits.

JUSTICE COLLINS: Turning to the sanctions against you, could you tell us your understanding of the reasons why the United States has issued sanctions against you and other judges and officials of the ICC?

JUDGE PROST: As a sitting judge, I never speculate on what the reasoning is behind the decision of the United States government to impose these sanctions. What I refer to is what they have said.

Basically, they’ve issued an executive order, and under that order, anyone involved in cases related to the United States or its allies — and, in particular, the current factual circumstances, Israel — will be subject to sanctions by the U.S. for participating in those investigations and prosecutions. The reason that a number of the judges who have been sanctioned have been speaking out is because we interpret that to mean that they have an expectation that we either won’t do those cases or we will decide those cases the way that the United States wishes, and that’s the purpose of the sanctions, to get us to either not do the cases or to decide the cases the way the U.S. says we should, which as I think anyone reading this would see immediately is an outrageous and blatant attack on the independence of the judiciary and on the rule of law. It is fundamental that judges decide on the evidence, the facts, and the law, and not on such extraneous pressures being brought to bear.

So that’s my understanding of what these sanctions are about.

JUSTICE COLLINS: How did you personally come to be the subject of the sanctions? What did you do that triggered this event?

JUDGE PROST: My case is probably the most extreme in my view, simply because I worked on sanctions for five years. I was the Ombudsperson for the Security Council, Al-Qaeda Sanctions Committee. It was my job to bring fair process to the UN list. And the purpose of sanctions, which I spoke to all the time, was to deter conduct, to change conduct, and to stigmatize. It is not a punishment.

In my case, five years ago, I sat temporarily in the appeals chamber, replacing a judge. And in that, in the case of the request of the prosecutor to authorize the investigation in Afghanistan, that was an investigation writ large: the Taliban forces, the Afghan forces, or the other forces who were present, and it included a component related to United States authorities, but it was certainly not the centerpiece of the request of the prosecutor.

That request for, well, you can read the decision to understand, had been refused at the pretrial chamber level for various reasons. We unanimously overturned that decision, and all five of us authorized the investigation to proceed. A year later, the prosecutor said very clearly, “I’m deprioritizing the United States portion. I’m not looking at that. I’m prioritizing Taliban and other matters, and that’s what we’ve seen in the charges brought.” And so it’s not even an active investigation. That’s why I’m sanctioned. I have nothing else to do with any case, not Israel-Gaza, not Afghanistan, no U.S. cases. So to me, that’s a punishment, but there we are.

JUSTICE COLLINS: Could you please explain what the sanctions against you involve?

JUDGE PROST: Well, it’s interesting because I, of course, had interviewed a number of people subject to UN sanctions in my prior role, and I had an understanding. And with UN sanctions, it’s even more severe because it is globally binding. These sanctions are not globally binding. They’re binding only on Americans and in the United States, but there’s widespread compliance worldwide. But I never really appreciated it until I was dealing with it personally, the extent of the effect of the sanctions. So immediately all your credit cards are canceled because it doesn’t matter where they’re issued, whether they were issued in Netherlands or Canada, the systems, the companies, Visa, MasterCard, Amex, etc., and the SWIFT system, whether legally or not, they are under the influence and control of the United States. So that’s an immediate effect. And, in this day and age, it’s quite a shocking development because you don’t appreciate how much you use them.

Just things like ordering an Uber, booking a hotel, all of these things, you need a credit card. Then you could have the banks withdraw banking services. In my case, I have some limited banking services, both in Europe and in Canada, and I have a debit card, but it’s unpredictable when it’s going to work. And the example I’ve been giving, I came here to New Zealand, assured that it would work across the board, like doing transactions. But I went to order my breakfast one morning, and the first morning, of course, it was declined, and I had no cash. So I wasn’t having breakfast that morning, but that’s just an example.

And then you have this array of uncertainty anytime you try to transfer money. My banks will transfer the funds, no problem, but the receiving banks, some of them just bounce the transaction, or worse yet, I’ve had money just blocked, which, given it is outside of the United States, handled by a European bank, is in my view clearly illegal.

It’s very frustrating. It’s every day. And then you add to that all those American companies that we’re all so dependent on. Amazon account gone. My famous story: Alexa won’t talk to me!

Some of my colleagues can’t access their iCloud, but it’s random. Who’s going to cancel what? It’s things you just do naturally, and you have to start finding other solutions.

And the other things I would mention, because, well, I’ve worked in the sanctions world, so perhaps it’s less hard, although it’s still hard for me, but I have colleagues who have spent their whole lives in criminal justice, who have worked on the bench domestically, some at the Rwanda Tribunal, and they are now on a list with those implicated in terrorism and organized crime, and you’re treated just the same. Psychologically, that’s really difficult to accept.

And then there’s the very painful situation for some of my colleagues who have children, for example, in the United States, and their visas are canceled. So a whole range of implications arise from the sanctions.

JUSTICE COLLINS: Is there any form of legal redress that you as an individual might have in the United States against the sanctions?

JUDGE PROST: Well, funny you ask that because, of course, I have a bit of a sanctions background, and I participated in an online blog for the sanctions world just about a week or so after I was sanctioned. It was such an interesting story. And I said then, and I continue to say, I think there are some real issues with my sanctioning as well as with the whole process. I am considering my options very seriously, but it’s a complicated matter. Of course, these sanctions can always be challenged in U.S. courts, so I continue to actively consider my options. That’s all I’ll say for the moment.

JUSTICE COLLINS: Could you elaborate on what these sanctions mean for judicial independence — that fundamental golden thread that runs through all judicial activities?

JUDGE PROST: Well, this is where I make the point every time I speak, and I make it very clearly on behalf of myself and my colleagues: I can assure you that, while we clearly see this — adversely affecting our judicial independence — as the intention, it has no impact whatsoever. These sanctions are futile in trying to destroy our independence.

We continue to assess our cases objectively in accordance with the law and to render justice fairly and for the victims. So these efforts to coerce us, to intimidate us, these are not successful, and that’s the same for the prosecutors. And that will be the same should they impose sanctions on the court itself, which they have yet to do, though there has certainly been mention of it. The court will find ways to deal with it. It will be difficult, but we will be resilient and find ways to ensure the work of the court continues, because it’s such imperative work.

But the reason, as I said, that we’re speaking out is because people should know that this is going on, that the court is being threatened in this way, that the rule of law is being threatened in such a blatant way. But as I say, it will not affect how we continue to do our business.

JUSTICE COLLINS: And it’s had no negative impact upon the court’s functioning today?

JUDGE PROST: It has made things difficult, of course, because the court is trying to assist us, and the court has also had to try to put in place measures anticipating potential sanctions on the ICC. So that involves redirecting resources that should be used for other things, to trying to check how our technical systems are going to work, our dependency on Microsoft, or other American companies.

And, of course, it has a real effect on staff because you’ve got all these really dedicated people working in all sorts of fields, interpretation, investigators, our chamber staff across the board, and this is a frightening thing to have happen.

And finally, the one thing that is concerning, though, is whether this will have a chilling effect. I mean, there are the judges who are there; we accepted the role, and we take it as it comes, but you choose whether you want to run. You have to be elected.

It’s a terrible process. It’s a very scary process for judges, but will judges now think, well, actually, I have kids who want to study in the U.S., or I have too many connections there? I just don’t want to deal with this. Will this have a chilling effect in terms of people applying for the positions at the court, and in particular the judicial and prosecutorial positions? We are in an election year — there will be an election at the end of the year. We are seeing candidates, which is very good, but we’ll have to see whether the numbers will be as they usually are. And so that’s very concerning, but that’s part of the intent here — to have a chilling effect — but I’m confident there will be enough people out there. I spoke to one candidate who said that the possibility of sanctions made them want to do this even more.

JUSTICE COLLINS: Just on a broader level, how do you think these tensions between a non-state party like the United States and the court affect general perceptions of international law?

JUDGE PROST: I look at it in context. I believe this attack on the court is part of a broader attack on international law. We see all of the progress we have made, all of the agreements, treaties, institutions, they’re all under threat. We’ve seen treaties just being ignored, and withdrawal from treaties. So there is a real sense that this is part of a general pushback on international law. And I know some people speak about it in very dramatic terms — that we’re seeing the death of international law. I don’t see it that way.

Every time I speak, I say that international law is really hard to develop and maintain because there’s no legislature and no universal enforcement. So there will always be periods, particularly when the world’s politics are in a difficult phase. There will always be periods when international law suffers, particularly in terms of enforcement. But for me, that’s the time when we really have to pick things up. We have to fight even harder to preserve the achievements that we’ve made. And that’s certainly the case with the court.

This is a serious assault, but this court has survived other situations and will continue to survive. But I think it is really, again, the reason to speak out about it is that it’s a warning call, and we really have to. Everyone has a role to play, particularly the younger generation, who must carry on this work.

So I think it’s really important that we see it in that light, but that we see it optimistically. We will get through this, and we will have better times.

JUSTICE COLLINS: Looking forward, what do you see as the most important thing to ensure the continued strength in credibility of the ICC?

JUDGE PROST: One of the challenges, and this is not just due to this time period, but one of the challenges for the ICC has always been that we do not have our own police force, obviously. We cannot go into states and grab suspects or evidence. And so we are entirely dependent on our states parties to assist us with those arrests and with evidence gathering. And we do get, I must say, a lot of assistance that’s never talked about much, that goes on every day, particularly in evidence gathering. It’s quite remarkable. But where we obviously have challenges is in executing arrest warrants because we have 30, I think it’s 32 outstanding arrest warrants at the moment that we know of. The prosecutor may have sealed some as well. And there’s a whole array of reasons. Not all of it is just unwillingness.

There are people we can’t find, or the situation on the ground is too difficult, etc. So we really have to pay attention to that side. How can we make it practically better? How can we, the court, assist our states, give them more information that we gather tracking? We can do that, but states really have to do it themselves. This is their court. I always emphasize. It’s not the prosecutor’s court. It’s not the judges’ court. It’s their court. So they really have to look at their obligations. And of course, we’ve had the whole issue of state immunity. We really have to see states accepting decisions; they may not like some of the decisions of the court, but when you’re a state party, you’ve obligated yourself to cooperate. I think that’s the most important thing: that we see commitment on the part of our states. We’re seeing that we had a very good assembly, and the states really created an atmosphere of support for the court.

And I hope that translates into actual action on the cooperation issue, particularly.

JUSTICE COLLINS: Is there anything else you’d like to add?

JUDGE PROST: The only thing I would emphasize, and I mentioned it, but in this debate, there is a legal issue that the United States has always raised about the Rome Statute and the jurisdictional provisions. Its position is that jurisdiction should rest with national states. I’ve explained why we have jurisdiction, and I don’t agree with the U.S. interpretation.

But the one point that I think should be emphasized is that everyone agrees with the position of those critics of the court who say this should be a national matter. That’s the whole idea of the court. It’s not to force but rather to cajole; it’s to recognize that. And I think one of the things for states that don’t wish to join the court or for those who take that position, we should put more emphasis on the fact that we need to build up capacity in states to do these national prosecutions.

In all the discussions going on in the political context surrounding this, not enough emphasis is placed on that. If you’re so interested in national states taking up these responsibilities, meaning those states that criticize the court, then demonstrate that by turning some resources towards building national capacity. We are seeing some great developments; we’re seeing the use of universal jurisdiction, but there are a lot of states out there that really need support.

Given that this is a wonderful opportunity to reach a really interesting audience, I did want to mention that, because I find it a bit hypocritical to simply say, “We don’t like the court. National states should do this.” Well then, put some effort into achieving that because no one would be happier than those of us working for the court if we didn’t have any cases because the matters were being addressed at the national level.

JUSTICE COLLINS: Can you point to any instances where you have seen improvements at the state level that could serve as a model moving forward?

JUDGE PROST: The Central African Republic Court, which I’ve heard presentations on, has done some really remarkable work with minimal resources, and they’re struggling for funding. There are also other countries that would be similarly interested in doing their own cases. So it’s looking at those special projects of countries that have had or are having conflicts and how to build up their judicial systems in order to do this work.

JUSTICE COLLINS: Does the ICC do any capacity building?

JUDGE PROST: There’s long been a controversy about that with the states. I mean, our budget is so limited as it is. Basically, the states have said, no, leave capacity building to us. Although we do it naturally, if you’re doing constant evidence-gathering with a state, for example, there is a natural “training” effect. For example, I think the Democratic Republic of the Congo has one of the best international cooperation sections in the world because of the work it has done with the court. So there’s a natural way, but we can’t expend any special resources, and the assembly hasn’t focused on this issue sufficiently in my view. It really is something that I think needs attention.

JUSTICE COLLINS: This has been a wonderful interview. Thank you so much for making time.

JUDGE PROST: Thank you very much. I really appreciate this opportunity to reach your readership.