Ilhan Omar call for U.S. to join International Criminal Court raises concerns about targeting Israel

ICC has been accused of bias against Jewish state, of which Omar is a harsh critic.

Updated: April 18, 2022 - 11:25pm

Led by Rep. Ilhan Omar (D-Minn.), many of the most progressive and anti-Israel voices in the U.S. Congress are pushing for the U.S. to join an international court which has targeted the Jewish state with war crimes investigations critics have decried as erroneous and politically motivated.

Omar introduced a resolution calling on the U.S. to become a full member of the International Criminal Court (ICC), a judicial body based in The Hague, Netherlands. The ICC is the first and only permanent court with international jurisdiction to prosecute individuals for war crimes, genocide, and crimes against humanity.

Omar's resolution was cosponsored by fellow progressive Democratic Reps. Jamaal Bowman (D-N.Y.), Cori Bush (D-Mo.), Andre Carson (D-Ind.), Chuy Garcia (D-Ill.), Sara Jacobs (D-Calif.), Barbara Lee (D-Calif.), Ayanna Pressley (D-Mass.), and Rashida Tlaib (D-Mich.).

Omar also introduced a bill to repeal a 2002 law that limits U.S. support for ICC investigations and a bill to codify into law the State Department's Office of Global Criminal Justice, which would help prevent and respond to the same crimes the ICC seeks to prosecute.

The measures received support from the same lawmakers and came after a group of bipartisan senators introduced a resolution last month that "encourages member states to petition the ICC and the ICJ [International Court of Justice] to authorize any and all pending investigations into war crimes and crimes against humanity" committed by Russia in Ukraine.

Omar similarly framed her measures as necessary to prosecute Russian President Vladimir Putin and others responsible for Russia's alleged war crimes in Ukraine over the past two months.

"Like many of us, I have recoiled in horror at reports of massacres, targeting of civilians, mass graves, and rapes by Russian forces," Omar said in a statement last week. "Vladimir Putin and anyone responsible must be held accountable. Sadly, the U.S. is not party to the International Criminal Court, the principal body responsible for investigating and prosecuting these crimes.

"Our refusal to join the court is antithetical to our commitment to human rights, accountability, and the rule of law. Now is our opportunity to lead the fight against human rights abuses and support international criminal justice."

The U.S. has refused to ratify the Rome Statute, the treaty that established the ICC.

In an op-ed for the Washington Post, Omar argued that Washington not ratifying the statute — a move that would likely only happen with a yes vote from two-thirds of the Senate — undermines the ability of the U.S. to seek accountability for Putin and other alleged war criminals.

However, while framing her legislative push as an effort to target Russia, Omar and some of her cosponsors have also been vocal critics of Israel, routinely accusing it of committing war crimes against the Palestinians and expressing support for ICC probes against the Jewish state.

Last February, for example, Omar lambasted the U.S. for objecting to an ICC probe of alleged war crimes by Israel against the Palestinians.

Three months later, Omar described Israeli airstrikes targeting Hamas, a U.S.-designated terrorist group that was launching thousands of rockets into Israel at the time, as "crimes against humanity."

Omar has also defended a tweet from 2012 in which she called Israel "evil" and said the Jewish state "has hypnotized the world."

On Friday, Omar spread misinformation and accused Israel of attacking Palestinians on the Temple Mount in Jerusalem, the holiest site in Judaism and one of the holiest sites in Islam. She didn't mention that Palestinian rioters began throwing stones at Jewish worshippers, causing police to attempt to quell the violent crowd.

Omar's office didn't respond to a request for comment on whether Israel factored into her push for the U.S. to join the ICC.

However, her legislative campaign would, if implemented, make it more difficult for the U.S. to oppose ICC investigations, according to Jeremy Rabkin, a law professor at George Mason University.

"I think it will be harder for the U.S. to condemn or dismiss ICC judgments if it is a member," Rabkin told Just the News. "There is no legal obligation for members to speak respectfully of the ICC, but it undercuts our claim that it's unserious if we have thought it serious enough to join."

The U.S. hasn't joined the ICC over concerns that the court violates U.S. sovereignty and could target Americans. Other reasons for not joining include concerns about politicized prosecutions, unaccountable prosecutors, the usurpation of the role of the United Nations Security Council, and a lack of guarantee of due process.

Some critics have also argued joining the ICC would make U.S. military commanders and the White House officials authorizing military action more risk averse, out of fear of being accused of war crimes and subjected to prosecutions, perhaps politically motivated, as a result.

Supporters of the ICC counter it can hold war criminals accountable in a way that unites global efforts to defend human rights.

The Biden administration has so far stuck by years-long bipartisan opposition to joining the ICC, but Russia's invasion of Ukraine has reportedly caused the administration to debate how and whether it can support the ICC in prosecuting Putin and Russian military leaders.

The State Department didn't immediately respond to a request for comment on whether it's having discussions about changing its position toward the ICC.

Rabkin noted the Rome Statute says the ICC's jurisdiction "shall be limited to the most serious crimes of concern to the international community as a whole."

The ICC previously had a prosecutor investigate a 2010 incident in which Israel intercepted a Turkish ship trying to deliver aid to Gaza, in violation of the Israeli blockade meant to prevent weapons from getting to Hamas, which rules Gaza. Ten people died when the Israeli military tried to take control of the ship and met resistance by armed crew members.

The prosecutor thought the incident was either not a sufficiently clear-cut violation of standards or not important enough to pursue, but the ICC insisted the prosecutor look again, since United Nations resolutions deemed it was "of concern to the international community."

"The ICC's preoccupation with Israel is disturbing," said Rabkin. "The ICC is not likely to be much more dispassionate than the U.N. General Assembly when it comes to judging Israel."

Despite Israel being a democracy and a small country, roughly equal in size to New Jersey, the U.N. General Assembly introduces and adopts more resolutions against Israel than against all other countries combined.

Israel, like the U.S., is not a member of the ICC.

Beyond an alleged anti-Israel bias, Rabkin noted the ICC hasn't been effective at prosecuting alleged war criminals.

"Each of the two dozen or so cases the ICC has brought to trial have gone on for years and more often than not the prosecutor's claims have been rejected by the court, and even convictions have usually brought light sentences (of less than 10 years), casting doubt on the notion that these were 'the most serious crimes of concern to the international community as a whole,'" said Rabkin, who added most people haven't heard of a single case before the ICC.

"It's very, very unlikely any senior Russian commanders or officials will fall into ICC custody for trial," he added. "So, the most likely outcome of ICC action (if it has a chance to do anything at all) is that there are minor figures given limited punishment. Whatever is done, the Russians will say the court was stacked against them so it's just a propaganda show. The benefits will be small."

John Bolton, who served as former President Trump's national security adviser, wrote in a recent op-ed that Ukraine should prosecute war crimes against Russia, calling the ICC illegitimate and unaccountable.

Rabkin agreed, noting Europe conducted the most important trials of Nazi war criminals after World War II and Iraq conducted the trial of Saddam Hussein after his fall.

"The people who are most in need of a trial of Russian war criminals are the Ukrainians," he said. "We should be focusing on doing everything we can to see that Ukraine does survive this war. We shouldn't be hobbling Ukraine's efforts — or NATO's — by asking the ICC to monitor what they or we do."