I should not be surprised at the lawlessness of a government that bombs and starves Palestinian civilians in Gaza, but I was still shocked by the shamelessness of Israel’s efforts to subvert the international criminal court’s investigation of its war crimes. As exposed by the Guardian along with the Israeli media outlets +972 and Local Call, the Israeli government over the course of nine years “deployed its intelligence agencies to surveil, hack, pressure, smear and allegedly threaten senior ICC staff in an effort to derail the court’s inquiries”.
The effort was brazen. Mysterious men visited the former chief prosecutor, Fatou Bensouda, outside her private home and handed her an envelope of cash, which the ICC believed “was likely [Israel] signalling to the prosecutor that it knew where she lived”, the Guardian has reported. They allegedly threatened her and her family, saying: “You should help us and let us take care of you. You don’t want to be getting into things that could compromise your security or that of your family.” They mounted an apparent sting operation against her husband and a “smear campaign” against her. They also extensively monitored her and her staff’s communications with Palestinians, according to this reporting.
That surveillance continued under her successor, the current ICC chief prosecutor, Karim Khan. That may explain why the Israeli government seemed to know about Khan’s plan to seek arrest warrants for senior Israeli officials before anyone else did.
The Israeli government evidently felt Bensouda was vulnerable because she came from a tiny African state, the Gambia. One source for the Guardian explained the Israeli government’s thinking: “With Bensouda, she’s black and African, so who cares?”
Israel misjudged Bensouda. She impressively resisted this intimidation effort. Once she received assurance from the court in February 2021 that Palestine had sufficient status as a state to join it and confer jurisdiction, she acted. Her term was about to end in June 2021, so she could have handed the problem to Khan, but instead, in March 2021, she opened the investigation that has now implicated Israeli officials.
Israel’s surveillance and intimidation effort was not a low-level, rogue operation. The covert operation was allegedly run by Yossi Cohen, a close ally of the prime minister, Benjamin Netanyahu, who at the time directed Israel’s foreign intelligence agency, the Mossad. Netanyahu is said to have sent “instructions” on “areas of interest” to monitor, and to have been “obsessed, obsessed, obsessed” by the intercepts of the prosecutor’s office communications. One would have hoped he was obsessed with upholding justice, rather than obstructing it.
That puts into perspective the claim, advanced foremost by the US secretary of state Antony Blinken, that the ICC prosecutor should have deferred to Israel’s record of investigating and prosecuting its own war criminals rather than seeking arrest warrants for Netanyahu and Yoav Gallant, the Israeli defense minister. There is no such record when it comes to senior Israeli officials. To the contrary, Israeli authorities seem to have begun investigations only after learning from their monitoring that the ICC prosecutor was interested in an area – hardly a good-faith commitment to accountability. That is precisely why the ICC is needed – as a backstop for justice when national authorities are unwilling or unable to act.
The possibility of invoking the ICC is one of the most important results of the growing recognition of Palestine as a state. It was the UN general assembly’s 2012 acceptance of Palestine as a “non-member observer state” that enabled it to join the court and confer jurisdiction for crimes committed on Palestinian territory. No wonder Israeli officials condemned that development as “diplomatic terrorism”. It was the beginning of the end of their impunity. It also shows the importance of the recent decision by Norway, Ireland and Spain to recognize Palestine as a state – the only European governments to have done so other than Sweden. Others should join them, to help lay to rest any question of the ICC’s jurisdiction.
Palestinian human rights groups have also suffered from the Israeli government’s weaponization of the “terrorism” charges. An important source of evidence for the ICC has been the highly respected group Al-Haq. Not only did the Israeli government monitor Al-Haq’s communications with the ICC, it also (absurdly) labeled Al-Haq and five of its colleague groups as “terrorist organizations”, a blatant attempt to undermine the enforcement of Palestinians’ rights. This shoot-the-messenger strategy has continued as Israel bars foreign journalists and international human rights groups from Gaza and shuttered Al Jazeera’s operations in Israel.
One of the odd twists in this episode was Israel’s reported use of Joseph Kabila, the former president of the Democratic Republic of the Congo, to “ambush” Bensouda during a meeting with Kabila. That Bensouda would meet with Kabila is hardly surprising; he surrendered more suspects to the ICC than anyone else. But he was also notoriously corrupt, which Israeli agents may have exploited.
As Khan announced that he was seeking arrest warrants for Netanyahu and Gallant, he issued a warning: “I insist that all attempts to impede, intimidate or improperly influence the officials of this court must cease immediately.” He cited article 70 of the Rome statute, the ICC’s founding treaty, which prohibits “impeding, intimidating or corruptly influencing an official of the court” or “retaliating against an official … on account of duties performed”.
I had assumed that Khan had in mind a group of US Republican senators who had threatened “severe sanctions” if Khan charged Israeli officials. He may well have. But Khan may also have been trying to deter any replication of the Mossad operation against his predecessor.
These latest revelations show the Israeli government to be a lawless regime. Its conduct of the war in Gaza already shows a determination to rip up the provisions of international humanitarian law designed to spare civilians. Israeli officials are also clearly willing to use underhand methods to undermine the leading international tribunal that might hold them to account. It is to the credit of Bensouda and Khan that the effort has failed.
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Kenneth Roth, former executive director of Human Rights Watch (1993-2022), is a visiting professor at Princeton’s School of Public and International Affairs