A long time ago

“It was an extraordinary moment,” remembered Stephen Lewis, Canada’s ambassador to the United Nations from 1984 to 1988. “I was at the UN for four glorious years. I had never seen anything like it before, and I never saw anything like it afterwards…”

On October 23, 1985, Canadian Prime Minister Brian Mulroney gave an “electrifying” speech to the UN General Assembly, in which he not only denounced the evil of South African apartheid but promised Canada would to do everything in its power to end it:

Canada is ready, if there are no fundamental changes in South Africa, to invoke total sanctions against that country and its repressive regime. More than that, if there is no progress in the dismantling of apartheid, relations with South Africa may have to be severed absolutely.

At the next year’s Commonwealth Conference in Vancouver, Mulroney famously faced down British Prime Minister Margaret Thatcher over her opposition to sanctions, pointedly asking her whether she would respond in the same way “if she was dealing with a country with a population of 25 million whites that was ruled by four million blacks.”

Less than four years after Mulroney threw down the gauntlet at the UN, South African President F.W. de Klerk, under heavy international pressure from sanctions, began to dismantle the odious edifice of apartheid, legalizing the African National Congress and releasing its leader Nelson Mandela after 27 years imprisonment on February 11, 1990.

Mandela and de Klerk jointly won the Nobel Peace Prize in 1993, and Mandela went on to become South Africa’s first democratically elected president in 1994. That did not stop the US listing him as a “terrorist” until a few days before his 90th birthday in 2013, weeks before his death.

“On the 10th anniversary of our democracy,” Mandela wrote in a personal letter to Brian Mulroney in 2004:

one recalls the momentous time of our transition and remembers the people involved both within and outside South Africa. As prime minister of Canada and within the Commonwealth, you provided strong and principled leadership in the battle against apartheid. This was not a popular position in all quarters, but South Africans today acknowledge the importance of your contribution to our eventual liberation and success.

In a galaxy far, far away

A few months after his release, Mandela addressed the Canadian Parliament. Introducing his guest, Mulroney recalled “with pride, the stand taken by Canada’s prime minister, John Diefenbaker, at the Commonwealth Conference of 1961, which resulted in South Africa’s withdrawal from that body”:

Prime Minister Diefenbaker brought the Commonwealth to declare unequivocally that racial discrimination was totally contrary to its fundamental principles and that, if South Africa did not change, Mr. Diefenbaker said then South Africa must leave. He did so against some considerable opposition, but with the strong conviction and the certain knowledge that it was right. Mr. Diefenbaker’s action marked the beginning of international pressure on the apartheid regime.

The opposition came principally from the UK, together with Australia and New Zealand—countries that were once collectively referred to, alongside South Africa, Canada, and Newfoundland, as the British Empire’s “White Dominions.” The US was also not happy with Canada rocking the apartheid boat, since it saw South Africa as an important ally in the global fight against communism and the ANC as dangerously pro-communist. Not for the first or the last time in American history, geopolitics trumped any moral concerns.

Both Diefenbaker and Mulroney were Conservative politicians, and Mulroney had campaigned on a platform of improving relations with the US after the tensions of the Lester Pearson and Pierre Trudeau years—a promise that was to give us NAFTA. But this did not stop either of them from defying the United States when they believed it was necessary. They did not regard Canada’s membership of NATO (or the “Free World”) as requiring automatic deference to Washington’s priorities, or overlooking palpable evils like apartheid in the interests of maintaining a united Western front in the Cold War.

Canada’s Liberal governments, too, agreed on the need for an independent Canadian foreign policy, and were not afraid to break with the “elephant to the south” (as Pierre Trudeau characterized the US) when called for either. This might even be seen as a hallmark of Canadian identity—an essential one, if we must sleep next to the beast.

Diefenbaker refused to station US nuclear warheads on Canadian soil and gave only lukewarm backing to John F. Kennedy during the Cuban missile crisis. Lester Pearson criticized America’s Vietnam War (allegedly leading Lyndon B. Johnson to grab him by the lapels and yell “Don’t you come into my house and piss on my rug!”) and Pierre Trudeau provided sanctuary to American draft dodgers. Jean Chrétien declined to follow the US-led “Coalition of the Willing” into the Iraq War without approval by the UN.

This is not to say that Canada’s conduct on the world stage was above criticism. As Yves Engler and others have pointed out, Canada is a settler colony whose treatment of its Indigenous population—now as well as then—leaves much to be desired. Canada’s pivot to opposing apartheid in South Africa came late in the day, and its enforcement of sanctions was half-hearted. Thousands of Canadians were allowed to enlist in the US military and fought in Vietnam, while Canadian governments of both parties provided the US with multiple forms of covert support even while not officially joining the war effort.

All the same, there is a yawning moral gulf between Canadian policies then and now.

Canada and the ICC—then

The guiding principle of Canadian foreign policy during the latter part of the twentieth century was multilateralism. Governments of both parties portrayed Canada’s role in the world as advancing universal human rights rather than defending narrowly conceived national interests. Their preferred self-image was of Canada as a global peacemaker.

At times—as in the case of apartheid—the human rights agenda called for intervention, and the proper vehicle for this was international organizations like the UN, because they alone could alone provide legitimacy for such actions. The corollary was solid Canadian support for the institutional and legal framework established after the Second World War, above all the UN and its agencies, the Geneva Conventions, and international humanitarian law.

An important addition to this legal framework was the International Criminal Court (ICC), which was established by the Rome Statute in 1998, in part in response to the genocides in Rwanda and Bosnia. The ICC was intended to be “an independent, permanent court of last resort with jurisdiction to investigate and prosecute the most serious crimes of international concern, namely genocide, crimes against humanity, war crimes and aggression.”

Canada played a “pivotal role”—I quote the Canadian government official website here—in the ICC’s foundation.

Canada chaired the “Like-Minded Group,” a coalition of states “that helped to motivate the wider international community to adopt the Rome Statute.” A senior Canadian diplomat, Philippe Kirsch, was chosen to chair the conference in Rome that negotiated and drafted the statute “under Canada’s leadership.” Kirsch was subsequently elected as an ICC judge in February 2003 and served as the ICC’s first president until 2009.

Canada became “the first country in the world to adopt comprehensive legislation implementing the Rome Statute” in the form of the Crimes Against Humanity and War Crimes Act passed by the Canadian parliament in June 2002. This law for the first time “officially criminalizes genocide, crimes against humanity and war crimes based on customary and conventional international law, including the Rome Statute.”

In December 2017 a second Canadian, Kimberly Prost, was elected an ICC judge for a nine-year term. Prost’s previous experience had included 18 years at Canada’s justice department and positions with the Commonwealth Secretariat and the UN Office on Drugs and Crime. In 2006, she was appointed as a judge of the International Criminal Tribunal for the former Yugoslavia in a major trial related to the Srebrenica genocide.

Opposition to the ICC

Not all states welcomed the establishment of the ICC. At the end of the 1998 Rome conference, 120 countries (including almost all of the United States’ allies) voted in favor of the treaty. Seven countries opposed it—the US, China, Libya, Iraq, Qatar, Yemen, and Israel. Twenty-one countries abstained.

One hundred and twenty-five countries have signed and ratified the Rome Statute and as such are legally bound to co-operate with the court, including in arresting and transferring indicted persons or providing evidence and witnesses for ICC prosecutions.

All member states of the EU are ICC members (though Hungary has now signalled its intention to withdraw from the court), as are Australia, New Zealand, and all G7 members—apart from the United States. The US signed but did not ratify the Rome Statute under Bill Clinton, and John Bolton informed the UN in May 2003 on behalf of the George W. Bush administration that “the United States does not intend to become a party to the treaty,” and “has no legal obligations arising from its signature on December 31, 2000.”

Other states that have never signed up to and/or ratified the Rome Statute include Russia, China, and India—existing or aspiring regional superpowers who, like the US, are unwilling to let a multilateral court intrude on their sovereignty—and Israel. Among the reasons Israel gives for opting out is the ICC’s definition of “the transfer of parts of the civilian population of an occupying power into occupied territory” as a war crime.

Bush, Obama and Trump

US relations with the ICC remained fractious during the Bush administration. The American Service-Members’ Protection Act (ASPA) passed in January 2002 prohibited US cooperation with the ICC, blocked US funding of the ICC, and required the US “to enter into agreements with all ICC signatory states to shield American citizens abroad from ICC jurisdiction” under pain of sanctions if they did not comply.

That same year, the US threatened to veto renewal of all UN peacekeeping missions unless its troops were granted immunity from ICC prosecution. It withdrew this demand in 2004, after pictures emerged of US troops abusing Iraqi prisoners in Abu Ghraib.

The Obama administration cooperated with the ICC in various ways, including supporting the UN Security Council’s referral of Libya to the court in 2011 and sharing intelligence on ICC-indicted fugitives. But it never ratified the treaty—or repealed ASPA.

The first Trump administration reverted to hostility. When the ICC prosecutor’s office requested in March 2019 to open a probe into possible war crimes in Afghanistan, the US responded by threatening to revoke visas for any ICC staff seeking to investigate not only Americans, but also Israelis and other US allies.

The ICC wished to “look into methods that the US military and CIA used to interrogate detainees” in Afghanistan, because:

There is reasonable basis to believe that, since May 2003, members of the US armed forces and the CIA have committed the war crimes of torture and cruel treatment, outrages upon personal dignity, and rape and other forms of sexual violence pursuant to a policy approved by US authorities.

The US responded by taking the unprecedented step of individually sanctioning two top ICC officials, prosecutor Fatou Bensouda and head of jurisdiction Phakiso Monochoko.

Biden and the ICJ

On April 2, 2021, US President Joe Biden wrote to Congress announcing that he was ending Trump’s visa restrictions and sanctions on ICC officials. When the ICC issued an arrest warrant against Vladimir Putin in March 2023 for war crimes in Ukraine, Biden commented “Well, I think it’s justified… I think it makes a very strong point.”

Despite these signs of détente, the Biden administration’s “ironclad” defense of Israeli actions in Gaza increasingly brought the US into open conflict again with both the ICC and the International Court of Justice (ICJ)—the principal judicial organ of the United Nations, which is regarded as world’s highest court in matters of international law.

On December 29, 2023 South Africa brought an application to the ICJ charging the State of Israel with committing genocide in Gaza, and requested the court to order provisional measures to “protect against further, severe and irreparable harm to the rights of the Palestinian people under the Genocide Convention.”

On January 26, 2024 the court ruled that the risk of genocide in Gaza was “plausible,” and ordered Israel to take immediate steps to prevent the situation deteriorating further. These and further measures ordered by the ICJ on March 28 and May 24 were flouted by Israel and essentially ignored in Washington and other Western capitals. The US meantime used its UN Security Council veto to forestall any binding ceasefire motion.

Responding to the January 26 judgment, the US State Department emphasized that “Israel has the right to take action to ensure the terrorist attacks of October 7 cannot be repeated” and reasserted its belief that “allegations of genocide are unfounded.”

Canadian Foreign Affairs Minister Mélanie Joly issued a statement that paid lip service to “the ICJ’s critical role in the peaceful settlement of disputes and its work in upholding the international rules-based order,” while emphasizing that “Our support for the ICJ does not mean that we accept the premise of the case brought by South Africa.” Like the US, Joly spent more time discussing “Israel’s right to exist and defend itself” and Hamas’s brutalities on October 7 than addressing the ICJ orders, on which she had little to say.

The ICC arrest warrants

Relations between the international courts and the US reached their nadir on November 21, when the ICC issued arrest warrants for Benjamin Netanyahu and Israeli Defense Minister Yoav Gallant for “the war crime of starvation as a method of warfare” and “the crimes against humanity of murder, persecution, and other inhumane acts.”

Western politicians erupted. “The ICC issuance of arrest warrants against Israeli leaders is outrageous,” thundered Biden. “Let me be clear once again: whatever the ICC might imply, there is no equivalence—none—between Israel and Hamas. We will always stand with Israel against threats to its security.”1

Though he undertook to abide by the ICC ruling, Justin Trudeau found “the sense of an equivalency between the democratically elected leaders of Israel and the bloodthirsty terrorists that lead up Hamas” “troubling.”

The point both seem to have missed was that the equivalency lay in the war crimes both sides were alleged to have committed, which were equally contrary to international law.

0n February 6, 2025, just two weeks after he began his second term as US president, Donald Trump signed an executive order titled “Imposing Sanctions on the International Criminal Court.”

The first person to be individually sanctioned was ICC chief prosecutor Karim Khan, the man who was responsible for preparing the arrest warrants for Netanyahu and Gallant. Four more judges were sanctioned on June 5. Two more judges and two ICC assistant prosecutors were sanctioned on August 20. One of them was Canadian Kimberly Prost.

Canada and the ICC—now

The ICC denounced this latest US move as “a flagrant attack against the independence of an impartial judicial institution which operates under the mandate from 125 States Parties from all regions.” Belgium, Denmark, France, Finland, Estonia, the Netherlands, Norway, Senegal, Slovenia, Spain, and Sweden all condemned the US sanctions, as did Amnesty International, Human Rights Watch, the International Bar Association, and the European Parliament Subcommittee on Human Rights.

But from Canada—crickets. Well, to be precise, on August 20 Canada’s UN ambassador Bob Rae, responding to a CTV News report on the sanctions, angrily posted on X:

In the latest, inexplicable instance of “elbows down,” Canada’s Ambassador to the UN Bob Rae has deleted his tweet condemning the U.S.’ sanctioning of a Canadian ICC judge, and linking it to similar attacks on the court’s legitimacy by Israel and Russia. #cdnpoli https://t.co/bqOjpf7rMc pic.twitter.com/ov6dU8UJKO

— Stuart Benson (@LeftHandStu) August 20, 2025

But for whatever reason—some have suggested that he was pressurized into doing so by the Canadian government—Rae quickly deleted the post. And that was that.

Ten days have passed since the US sanctioned Canada’s senior international judge, and there has been no official response from the Government of Canada.

Mark Carney supposedly had “a productive and wide-ranging conversation” with Trump on August 21 in which “We focused on trade challenges, opportunities, building a new economic and security relationship between Canada and the US, and supporting long-term peace and security for Ukraine and Europe.” Neither his post on X nor the official readout from the call contains any reference to Kimberly Prost. Carney has since made public pronouncements on the economy, Canada–US trade, Ukraine, and a new Canada–Poland Strategic Partnership, but he has remained silent on the issue of the ICC.

Foreign minister Anita Anand, whose brief this surely is, was reported to have expressed disquiet about Prost’s sanctioning in her meeting with Marco Rubio on August 21, but her own account of the meeting makes no mention of it. Her brief X post reads, “Today, I had a productive meeting with Secretary @SecRubio in Washington. We discussed collaboration on shared priorities, including: supporting Ukraine, advancing Arctic security, addressing the security crisis in Haiti and continuing to provide humanitarian aid in Gaza.”

So far as I am aware, no other statement regarding American strongarming of the ICC—the court Canada worked so hard to establish back in the day—or the sanctioning of Kimberly Prost has been issued by any Canadian government agency or senior officials.

Elbows down

On Friday August 22, two days after Marco Rubio sanctioned Kimberly Prost, the Integrated Food Security Phase Classification (IPC), the world’s hunger watchdog, declared a state of famine in and around Gaza City. Its report emphasized that “This famine is entirely man-made, it can be halted and reversed.”

This seems highly unlikely since Israel is now in the early stages of a new offensive to recapture Gaza City, and is in the process of clearing out an estimated 1m inhabitants.

If not yet a truth universally acknowledged, it is certainly a truth that is increasingly recognized that since 1967, Israel has enforced a cruel apartheid regime within the Occupied Palestinian Territories, and that since October 8, 2023, the IDF has been engaged in war crimes, crimes against humanity, and probable genocide in Gaza.

Many Palestinians would argue that the genocide is merely the culmination of a Zionist program of ethnic cleansing that began with the establishment of the state of Israel and the attendant Nakba in wars of 1947-8.

It would be nice, even at this very late stage in the day, if some Western leader were to electrify the UN with a speech calling for total sanctions against Israel and its repressive regime and threatening absolute severance of relations with Israel—or even a UN-led peacekeeping military intervention—if there is no progress in dismantling the apartheid regime or halting the ethnic cleansing and genocide.

Of one thing we can be sure. That leader will not be Mark Carney. We can be equally confident that Anita Anand will not emulate Dutch foreign minister Caspar Veldkamp and several of his cabinet colleagues in quitting the government in protest at its refusal to implement stronger sanctions against Israel.

I hold no particular brief for Brian Mulroney—or John Diefenbaker, or Lester Pearson, or Pierre Elliott Trudeau, or Jean Chrétien. They all had their faults. But they were Titans compared with the moral Lilliputians who govern Canada today. I can’t imagine any of them would have thrown Kim Prost under the bus to get “the best trade deal with the United States… better than that of any country.” Even the language echoes Trump.

Nor, I suspect, would they have stood by for two years while Israel obliterated Gaza and bombed, shelled, and finally starved hundreds of thousands of Palestinian men, women and children to death—whatever the reason. Never again means never again.

Derek Sayer is professor emeritus at the University of Alberta and a Fellow of the Royal Society of Canada. His most recent book, Postcards from Absurdistan: Prague at the End of History, won the 2023 Canadian Jewish Literary Award for Scholarship and was a finalist for the Association of American Publishers PROSE Award in European History.