Sanctioned ICC Judge Considering Challenging OFAC Listing
Kimberly Prost, an International Criminal Court judge sanctioned by the Office of Foreign Assets Control last month, suggested that her designation may not meet OFAC sanctions criteria and that she’s considering challenging it. Although the listing has had “serious” financial and psychological effects on her and other ICC judges designated by the Trump administration this year, she said the court will continue its investigations.
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Before joining the ICC, Prost served as the ombudsperson for the U.N. Security Council’s Al-Qaida Sanctions Committee, where she reviewed delisting requests from people and entities looking to be removed from the sanctions list. She said a U.N. listing similar to her OFAC designation would have raised questions.
“It's only been a week and a half, but if I had a factual scenario like this in relation to the criteria when I was ombudsperson, I would have had a significant problem with the listing,” Prost said during a virtual event this week hosted by the Global Sanctions blog. “I think there are significant questions.”
Asked whether she plans to challenge her designation, she said she's “certainly seeking advice and considering my options.”
OFAC sanctioned Prost, along with another ICC judge and two prosecutors, for their involvement with efforts to investigate, arrest or prosecute people from foreign countries without those countries' consent (see 2508200013). Prost said she was specifically sanctioned for an order she issued while temporarily sitting in the ICC’s appellate chamber in 2020. That order authorized a prosecutor to investigate alleged crimes against humanity and war crimes in Afghanistan by the Taliban, the Islamic State Group, Afghan forces and U.S. personnel.
Prost, a Canadian citizen, noted that one year later, an ICC prosecutor announced that the court would be prioritizing only the investigations into the Taliban and the Islamic State group and would be “de-prioritizing” any probe related to the U.S. She said there's currently no active investigation on U.S. officials in Afghanistan.
“Today, that's the only thing I've ever done related to the U.S.,” she said. “I have no involvement in any other case, directly or indirectly,” besides one involving the Central African Republic.
“Obviously there's a fundamental issue here about the propriety, credibility, reasonableness of using sanctions power in relation to international judges and prosecutors,” Prost said. “But that’s a discourse for others. I’m a sitting judge.”
She said her OFAC designation and U.S. sanctions against other ICC officials have had “serious” effects. Although she said U.S. sanctions aren’t legally applicable in Europe, European banks and other Europe-based financial services firms are still wary of doing business with people sanctioned by the U.S.
They “simply don't want to take any risks when it comes to potential U.S. sanctions and American companies’ potential prosecution for providing material support to sanctioned persons,” Prost said. “So, literally, you can end up in a situation where you're devoid of financial services, in particular, and other services as well.”
Prost said she and other officials with the ICC, which is based in the Netherlands, have received “support” from the Dutch government through “basic banking services,” but they can’t use credit cards. Some of her colleagues have children in the U.S. on temporary visas, she added, “and those visas have been revoked.” Other colleagues have had their U.S. assets frozen.
The State Department didn’t respond to a request for comment.
She also said the sanctions have had a "physiological" effect on ICC officials. “Most of us are judges, prosecutors, human rights advocates, sitting here as judges who are listed because of our work, and we're on a list with those accused of supporting terrorism or organized crime,” she said. “That's a huge blow.”
But she also said the sanctions won’t stop the ICC’s work. “None of these measures affect us, in the sense that we stand undeterred and will carry on our functions independently and impartially adjudicating on the cases before us, trying to bring justice for victims around the globe through fair trial processes,” Prost said. “And I can assure you, I give this assurance on behalf of my fellow judges, the work of the International Criminal Court will continue.”