Rep. Ilhan Omar (D-MN) introduced a resolution last week that would subject U.S. citizens to being prosecuted by an international court and she did so all in the name of holding Russian President Vladimir Putin “accountable” for the actions of the Russian military in Ukraine.
“In the wake of reports of war crimes committed by Russian forces in Ukraine, Rep. Ilhan Omar (D-MN) introduced a resolution calling on the United States to become a full member of the International Criminal Court,” Omar’s office said in a statement. “The United States is one of a few countries that has not joined the International Criminal Court (ICC), which investigates war crimes, crimes against humanity, and genocides.”
Omar noted in an op-ed in The Washington Post that the U.S. has yet to sign onto the Rome Statute, the treaty that established the ICC, writing: “We are in the company of countries such as Iran, Sudan, China, and, yes, Russia as one of several nations that have refused to sign onto this bedrock of international law.”
Omar correctly noted that former President Donald Trump signed an executive sanctioning prosecutors and officials of the ICC after the body approved investigations into U.S. service members and intelligence officers in Afghanistan. Democrat President Joe Biden, who has been widely criticized for being extremely weak on foreign policy, lifted the sanctions on the officials.
By joining the ICC, the U.S. would be subjecting itself and its citizens to the ICC’s jurisdiction. Omar effectively admits this in her op-ed, writing: “If we oppose investigations into countries, like our own, that haven’t joined the ICC, how can we support an investigation into Russia, another country that hasn’t joined the court?”
The Congressional Research Service noted that the U.S. “maintains that any investigation” by the ICC “is illegal because the United States is not a party to the Rome Statute and has not consented to the ICC’s jurisdiction.”
On the issue of whether the U.S. can stop an ICC investigation, the Congressional Research Service noted that U.S. law can be applied to effectively stop U.S. citizens being prosecuted by the court:
The United States may also attempt to rely on domestic law to hinder ICC prosecutions. U.S. law permits the President to “use all means necessary and appropriate to bring about the release of” U.S. military personnel and others working on behalf of the U.S. Government, among others, that the ICC detains. Domestic law also prohibits the use of federal funds to extradite U.S. citizens to other countries that must surrender these U.S. citizens to the ICC, unless those countries guarantee they will not surrender any U.S. citizen to the court. While these mechanisms may not legally prevent prosecution, if applied, they may render it impractical to pursue.
The Heritage Foundation highlighted problems with joining the ICC in a report from 1999. They included:
- The ICC threatens America’s ability to defend its interests through military action. The ICC would be able to prosecute any individual American, including the President, military and civilian officers and officials, enlisted personnel, and even ordinary citizens who were involved in any action it determined to be unlawful and within its jurisdiction.
- The ICC threatens American self-government. The creation of a permanent, supranational court with the independent power to judge and punish elected officials for their official actions represents a decisive break with fundamental American ideals of self-government and popular sovereignty. It would constitute the transfer of the ultimate authority to judge the acts of U.S. officials away from the American people to an unelected and unaccountable international bureaucracy. As Alexis de Tocqueville wrote in his Democracy in America, “[h]e who punishes the criminal is . . .the real master of society.”
- The ICC is fundamentally inconsistent with American tradition and law. In its design and operation, the ICC is fundamentally inconsistent with core American political and legal values. Indeed, if Americans ever were arraigned before the ICC, they would face a judicial process almost entirely foreign to the traditions and standards of the United States.
- The ICC violates constitutional principles. The failure of the ICC treaty to adopt the minimum guarantees of the U.S. Constitution’s Bill of Rights is, in fact, one of the principal reasons why the United States could not, even if it wanted to, join the ICC treaty regime.
- The ICC contradicts the founding principles of the American Republic. United States participation in the ICC treaty regime would be fundamentally inconsistent with the founding principles of this country. The Declaration of Independence, which articulates the principles that justify the American Republic’s very existence, listed the offenses of the King and Parliament that required separation from England, revolution, and war. Prominent among those offenses were accusations that Britain had (1) subjected Americans “to a jurisdiction foreign to our constitution and unacknowledged by our laws”; (2) “depriv[ed] us, in many cases, of the benefits of Trial by Jury”; and (3) “transport[ed] us beyond [the] Seas to be tried for pretended offences.”
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