In the wake of human rights activists' claims against British soldiers, the British Defense Minister at the time, Michael Fallon, decided that he had enough. He threatened to suspend the Human Rights Act that enables the prosecution of war crimes committed by British soldiers.
"Instead of concentrating on the mission at hand,” Fallon argued. “The soldiers are distracted by potential future lawsuits.” In addition, according to Fallon, many complaints against soldiers turned out to be false, but still cost the treasury a fortune.
The International Criminal Court (ICC), which follows the Rome Statute, is now threatening to investigate US soldiers suspected of war crimes in Afghanistan.
The US, like Israel, is not a signatory to the Rome Statute. Precisely because of concerns regarding the restrictions it may impose on US forces operating in many countries. However, that does not absolve anyone from prosecution.
Shortly after the establishment of the ICC in 2002, the US Congress passed a special law — the Law for the Defense of Security Service Personnel. It can be assumed that there was a connection between the legislation and US War on Terror after 9/11, and its invasion of Afghanistan and Iraq.
At the time, it was clear that war crimes would be committed. They came to light once in a while, and soldiers were put on trial and sent to prison.
It should be made clear that this was not a one-party law. In the aftermath of 9/11, the law was supported by both parties.
Needless to say, since the law was passed, no investigation has been launched against US soldiers by the ICC.
When a state puts its own citizens on trial, they are no longer under the jurisdiction of the ICC. However, Hague prosecutor found various cases in which soldiers were not prosecuted, and so he decided to open an investigation.
US National Security Adviser John Bolton was furious. American law is on his side. He made it clear that the United States will not extradite Americans to The Hague, and any assistance to any branch of the ICC in the United States is prohibited.
In addition, the law allows the United States to "take all necessary measures" to extricate its citizens from the long hand of The Hague agents. The law was dubbed the “Hague Invasion Act," which is its best explanation.
Democratic states do not need to be exempt from war crimes prosecution. The point is, these countries have legal systems that deal with complaints dealing with irregularities. The fact that the punishments given are sometimes relatively lenient does not stem from disrespecting the law, but from a considering all circumstances.
This was the case with the British soldier Alex Blackman, who murdered a wounded terrorist after a battle in Afghanistan, as was the case with Elor Azaria, as is the case with many other Western soldiers who were tried.
Israel is also part of the picture. Bolton made it clear that not only would he not allow the ICC to prosecute American soldiers, but the United States would also protect Israel.
This is not an empty statement. In the wake of the dispute between The Hague court and the United States, the Palestinians have filed a complaint against Israel following the decision to evacuate the illegal Bedouin village of Khan al-Ahmar. It remains unclear whether the prosecution will agree to take the case since the decision was made by Israel's High Court of Justice which enjoys international prestige.
The great tragedy is the politicization of international law. When an international arrest warrant was issued against Sudanese President Omar al-Bashir, he was received with royal honor at the Arab summit. Syria's President Bashar Assad and other senior Syrian officials know that they have nothing to fear. But the Palestinians, who fund murderers and their families, turn to the ICC to file complaints against Israel.