Surveillance and interference: Israel’s covert war on
the ICC exposed
Top Israeli government and security officials have
overseen a nine-year surveillance operation targeting the ICC and Palestinian
rights groups to try to thwart a war crimes probe, a joint investigation
reveals.
By Yuval Abraham and Meron Rapoport May 28, 2024
https://www.972mag.com/icc-israel-surveillance-investigation/
For nearly a decade, Israel has been surveilling
senior International Criminal Court officials and Palestinian human rights
workers as part of a secret operation to thwart the ICC’s probe into alleged
war crimes, a joint investigation by +972 Magazine, Local Call, and the Guardian can reveal.
The multi-agency operation, which dates back to 2015,
has seen Israel’s intelligence community routinely surveil the court’s current
chief prosecutor Karim Khan, his predecessor Fatou Bensouda, and dozens of
other ICC and UN officials. Israeli intelligence also monitored materials that
the Palestinian Authority submitted to the prosecutor’s office, and surveilled
employees at four Palestinian human rights organizations whose submissions are
central to the probe.
According to sources, the covert operation mobilized
the highest branches of Israel’s government, the intelligence community, and
both the civilian and military legal systems in order to derail the probe.
The intelligence information obtained via surveillance
was passed on to a secret team of top Israeli government lawyers and diplomats,
who traveled to The Hague for confidential meetings with ICC officials in an
attempt to “feed [the chief prosecutor] information that would make her doubt
the basis of her right to be dealing with this question.” The intelligence was
also used by the Israeli military to retroactively open investigations into
incidents that were of interest to the ICC, to try to prove that Israel’s legal
system is capable of holding its own to account.
Additionally, as the Guardian reported earlier today, the Mossad, Israel’s foreign
intelligence agency, ran its own parallel operation which sought out
compromising information on Bensouda and her close family members in an
apparent attempt to sabotage the ICC’s investigation. The agency’s former head,
Yossi Cohen, personally attempted to “enlist” Bensouda and manipulate her into
complying with Israel’s wishes, according to sources familiar with his
activities, causing the then-prosecutor to fear for her personal safety.
Our investigation draws on interviews with more than
two dozen current and former Israeli intelligence officers and government
officials, ex-ICC officials, diplomats, and lawyers familiar with the ICC case
and Israel’s efforts to undermine it. According to these sources, initially,
the Israeli operation attempted to prevent the court from opening a full
criminal investigation; after a full probe was set in motion in 2021, Israel
sought to ensure that it would come to nothing.
Moreover, according to several sources, Israel’s
underhanded efforts to interfere with the investigation — which could amount to
offenses against the administration of justice, punishable by a prison sentence
— have been managed from the very top. Prime Minister Benjamin Netanyahu is
said to have taken a keen interest in the operation, even sending intelligence
teams “instructions” and “areas of interest” regarding their monitoring of ICC
officials. One source stressed that Netanyahu was “obsessed, obsessed,
obsessed” with finding out what materials the ICC was receiving.
The prime minister had good reason to be concerned:
last week, Khan announced that his office is seeking arrest warrants for
Netanyahu and Defense Minister Yoav Gallant, as well as three leaders in Hamas’
political and military wings, in relation to alleged war crimes and crimes
against humanity committed on or since October 7. The announcement made clear
that additional warrants — which expose prosecuted individuals to arrest should
they visit any of the ICC’s 124 member states — may yet be pursued.
For Israel’s top brass, Khan’s announcement was no
surprise. In recent months, the surveillance campaign targeting the chief
prosecutor “climbed to the top of the agenda,” according to one source, thus
giving the government advance knowledge of his intentions.
Tellingly, Khan issued a cryptic warning in his
remarks: “I insist that all attempts to impede, intimidate, or improperly
influence the officials of this court must cease immediately.” Now, we can
reveal details of part of what he was warning against: Israel’s nine-year “war”
on the ICC.
‘The generals had a big personal interest in the
operation’
Unlike the International Court of Justice (ICJ), which
deals with the legality of states’ actions — and which last week issued a ruling seen as calling on Israel to halt its offensive
in Gaza’s southernmost city of Rafah, in the context of South Africa’s petition accusing Israel of committing genocide in the
Strip — the ICC deals with specific individuals suspected of having committed
war crimes.
Israel has long held that the ICC has no jurisdiction
to prosecute Israeli leaders because, like the United States, Russia, and
China, Israel is not a signatory to the Rome Statute which established the
court, and Palestine is not a full UN member state. But Palestine was
nevertheless recognized as an ICC member upon signing the convention in 2015,
having been admitted to the UN General Assembly as a non-member observer state
three years prior.
Palestine’s entry into the ICC was condemned by
Israeli leaders as a form of “diplomatic terrorism.” “It was perceived as the
crossing of a red line, and perhaps the most aggressive thing the Palestinian
Authority has ever done to Israel in the international arena,” an Israeli
official explained. “To be recognized as a state in the UN is nice, but the ICC
is a mechanism with teeth.”
Immediately after becoming a member of the court, the
PA asked the prosecutor’s office to investigate crimes committed in the Gaza
Strip and the West Bank, including East Jerusalem, starting from the date on
which the State of Palestine accepted the court’s jurisdiction: July 13, 2014. Fatou
Bensouda, the chief prosecutor at the time, opened a preliminary examination to
determine whether the criteria for a full investigation could be met.
Fearing the legal and political consequences of
potential prosecutions, Israel raced to prepare intelligence teams in the army,
the Shin Bet (domestic intelligence), and the Mossad (foreign intelligence),
alongside a covert team of military and civilian lawyers, to lead the effort to
forestall a full ICC investigation. All this was coordinated under Israel’s
National Security Council (NSC), whose authority is derived from the Prime
Minister’s Office.
“Everyone, the entire military and political
establishment, was looking for ways to damage the PA’s case,” said one
intelligence source. “Everyone pitched in: the Justice Ministry, the Military
International Law Department [part of the Military Advocate General’s Office],
the Shin Bet, the NSC. [Everyone] saw the ICC as something very important, as a
war that had to be waged, and one that Israel had to be defended against. It
was described in military terms.”
The military was not an obvious candidate for joining
the Shin Bet’s intelligence-gathering efforts, but it had a strong motivation:
preventing its commanders from being forced to stand trial. “The ones who
really wanted to [join the effort] were the IDF generals themselves — they had
a very big personal interest,” one source explained. “We were told that senior
officers are afraid to accept positions in the West Bank because they are
afraid of being prosecuted in The Hague,” another recalled.
According to numerous sources, Israel’s Ministry of Strategic Affairs, whose stated goal at the time was to fight against
the “delegitimization” of Israel, was involved in the surveilling of
Palestinian human rights organizations that were submitting reports to the ICC.
Gilad Erdan, head of the ministry at the time and now Israel’s representative
to the UN, recently described the ICC’s pursuit of arrest warrants for Israeli
leaders as “a witch-hunt driven by pure Jew-hatred.”
‘The army dealt with things that were completely
non-military’
Israel’s covert war on the ICC has relied centrally on
surveillance, and the chief prosecutors have been prime targets.
Four sources confirmed Bensouda’s private exchanges
with Palestinian officials about the PA’s case in The Hague were routinely
monitored and shared widely within Israel’s intelligence community. “The
conversations were usually about the progress of the prosecution: submitting
documents, testimonies, or talking about an event that happened — ‘Did you see
how Israel massacred Palestinians at the last demonstration?’ — things like
that,” one source explained.
The former prosecutor was far from the only target.
Dozens of other international officials related to the probe were similarly
surveilled. One of the sources said there was a large whiteboard with the names
of around 60 people who were under surveillance — half of them Palestinians and
half from other countries, including UN officials and ICC personnel in The
Hague.
Another source recalled surveillance on the person who
wrote the ICC’s report on Israel’s 2014 Gaza war. A third source said Israeli
intelligence monitored a UN Human Rights Council commission of inquiry into the
occupied territories, in order to identify what materials it was receiving from
the Palestinians, “because the findings of commissions of inquiry of this kind
are usually used by the ICC.”
In The Hague, Bensouda and her senior staff were
alerted by security advisers and via diplomatic channels that Israel was
monitoring their work. Care was taken not to discuss certain matters in the
vicinity of phones. “We were made aware they were trying to get information on
where we were with the preliminary examination,” a former senior ICC official
said.
According to sources, some in the Israeli army found
it controversial that military intelligence was dealing with matters that were
political and not directly related to security threats. “IDF resources were
used to surveil Fatou Bensouda — this isn’t something legitimate to do as
military intelligence,” one source stated. “This task [was] really unusual in
the sense that it was inside the army, but dealt with things that were
completely non-military,” said another source.
But others had fewer hesitations. “Bensouda was very,
very one-sided,” one source who surveilled the former prosecutor claimed. “She
was really a personal friend of the Palestinians. Public prosecutors don’t
usually behave that way. They stay very distant.”
‘If you don’t want me to use the law, what do you want
me to use?’
Because Palestinian human rights groups were
frequently providing the prosecutor’s office with materials about Israel’s
attacks on Palestinians, detailing incidents they wanted the prosecutor to
consider as part of the probe, these organizations themselves became key
targets of Israel’s surveillance operation. Here, the Shin Bet took the lead.
In addition to monitoring materials that the PA
submitted to the ICC, Israeli intelligence also monitored appeals and reports
from the human rights groups that included testimonies of Palestinians who had
suffered attacks by Israeli settlers and soldiers; Israel then surveilled these
testifiers, too.
“One of the [priorities] was to see who [in the human
rights groups] is involved in collecting testimonies, and who were the specific
people — the Palestinian victims — being convinced to give testimony to the
ICC,” one intelligence source explained.
According to the sources, the primary surveillance
targets were four Palestinian human rights organizations: Al-Haq, Addameer, Al
Mezan, and the Palestinian Center for Human Rights (PCHR). Addameer sent
appeals to the ICC about torture practices against prisoners and detainees,
while the other three groups sent multiple appeals over the years regarding
Israel’s settlement enterprise in the West Bank, punitive house demolitions,
bombing campaigns in Gaza, and specific senior Israeli political and military
leaders.
One intelligence source said the motive for
surveilling the organizations was stated openly: they harm Israel’s standing in
the international arena. “We were told that these are organizations that
operate in the international arena, participate in BDS, and want to harm Israel
legally, so they’re being monitored too,” the source said. “That’s why we’re
engaging with this. Because it can hurt people in Israel — officers,
politicians.”
Another goal of surveilling the Palestinian groups was
to try to delegitimize them, and, by extension, the entire ICC investigation.
In October 2021, Israeli Defense Minister Benny Gantz
— who himself was named in several of the appeals that Palestinian
organizations sent to the ICC, due to his role as chief of staff during the
2014 Gaza war and defense minister during the May 2021 war — declared Al-Haq,
Addameer, and four other Palestinian human rights groups to be “terrorist
organizations.”
A +972 and Local Call investigation, released a few weeks later, found that Gantz’s order
was issued without any serious evidence to back up its allegations; a Shin Bet
dossier claiming to provide proof of its charges, and another follow-up dossier
a few months later, left even Israel’s staunchest allies unconvinced. At the time, it was widely speculated —
including by the organizations themselves — that these groups were targeted at least in
part because of their activities relating to the ICC probe.
According to an intelligence source, the Shin Bet —
which gave the initial recommendation to outlaw the six groups — surveilled the
organizations’ employees, and the information gathered was used by Gantz when
he declared them terrorist organizations. An investigation by Citizen Lab at the time identified Pegasus
spyware, produced by the Israeli firm NSO Group, on the phones of several Palestinians working in
those NGOs. (The Shin Bet did not respond to our request for comment.)
Omar Awadallah and Ammar Hijazi, who are in charge of
the ICC case within the PA’s Foreign Affairs Ministry, also discovered that
Pegasus had been installed on their phones. According to intelligence sources,
the two were simultaneously targets of different Israeli intelligence
organizations, which created “confusion.” “They’re both super impressive PhDs
who deal with this subject all day, from morning to night — that’s why there
was intelligence to be gained [from tracking them],” said one source.
Hijazi isn’t surprised that he was surveilled. “We
don’t care if Israel sees the evidence we submitted to the court,” he said. “I
invite them: Come, open your eyes, see what we presented.”
Shawan Jabarin, the director general of Al-Haq, was
also surveilled by Israeli intelligence. He said there had been indications
that the organization’s internal systems had been hacked, and that Gantz’s
declaration came just days before Al-Haq planned to reveal that it had
discovered Pegasus spyware on the phones of its employees. “They say I’m using
the law as a weapon of war,” Jabarin said. “If you don’t want me to use the
law, what do you want me to use, bombs?”
However, the human rights groups expressed deep
concern for the privacy of the Palestinians who submitted testimonies to the
court. One of the groups, for example, included only the initials of the
testifiers in its submissions to the ICC, out of fear that Israel might
identify them.
“People are afraid to file a complaint [to the ICC],
or to mention their real names, because they fear being persecuted by the
military, of losing their entry permits,” Hamdi Shakura, a lawyer at PCHR,
explained. “A man in Gaza who has a relative sick with cancer is scared the
army will take his entry permit and prevent his treatment — this sort of thing
happens.”
‘The lawyers had a big thirst for intelligence’
According to intelligence sources, a further use of
the intelligence obtained via surveillance was to help lawyers involved in
secret back-channel conversations with representatives of the prosecutor’s
office in The Hague.
Soon after Bensouda announced that her office was
opening a preliminary examination, Netanyahu ordered the formation of a covert
team of lawyers from the Justice Ministry, Foreign Ministry, and Military
Advocate General’s Office (the Israeli army’s highest legal authority), which
regularly traveled to The Hague for secret meetings with ICC officials between
2017 and 2019. (Israel’s Justice Ministry did not respond to requests for
comment.)
Although the team was comprised of individuals who
were not part of Israel’s intelligence community — it was led by Tal Becker,
legal adviser to the Foreign Ministry — the Justice Ministry was nonetheless
privy to the intelligence obtained via surveillance, and had access to reports
from the PA and Palestinian NGOs detailing specific cases of settler and
military violence.
“The lawyers who dealt with the issue at the Justice
Ministry had a big thirst for intelligence,” one intelligence source stated.
“They got it from both military intelligence and the Shin Bet. They were
building the case for the Israeli messengers who secretly went and communicated
with the ICC.”
In their private meetings with ICC officials, which
were confirmed by six sources familiar with the meetings, the lawyers set out
to prove that Israel had robust and effective procedures for holding soldiers
to account, despite the Israeli military’s dire record of investigating alleged wrongdoing within its
ranks. The lawyers also sought to make the case that the ICC has no
jurisdiction to investigate Israel’s actions, since Israel is not a member
state of the court and Palestine is not a fully-fledged member of the UN.
According to a former ICC official familiar with the
contents of the meetings, ICC personnel presented the Israeli lawyers with
details of incidents in which Palestinians were attacked or killed, and the
lawyers would respond with their own information. “In the beginning it was
tense,” recalled the official.
At this stage, Bensouda was still engaged in a
preliminary examination prior to the decision to open a formal investigation.
An intelligence source said that the purpose of the information obtained
through surveillance was “to make Bensouda feel that her legal data is
unreliable.”
According to the source, the goal was to “feed
[Bensouda] information that would make her doubt the basis of her right to be
dealing with this question. When Al-Haq collects information on how many
Palestinians have been killed in the occupied territories in the past year and
passes it on to Bensouda, it’s in Israel’s interest and policy to pass her
counterintel, and to try to undermine this information.”
Given that Israel refuses to recognize the court’s
authority and legitimacy, however, it was crucial for the delegation that these
meetings be kept secret. A source familiar with the meetings said the Israeli
officials repeatedly stressed to the ICC that “we can never make it public that
we’re communicating with you.”
Israel’s backchannel meetings with the ICC ended in
December 2019, when Bensouda’s five-year preliminary examination concluded that
there was a reasonable basis to believe that both Israel and Hamas had
committed war crimes. Rather than immediately launching a full investigation,
however, the prosecutor asked the court’s judges to rule on whether it had
jurisdiction to hear the allegations due to “unique and highly contested legal
and factual issues” — which some viewed as a direct outcome of Israel’s
activity.
“I wouldn’t say that the legal argument had no
effect,” Roy Schondorf, a member of the Israeli delegation as the head of a
Justice Ministry department responsible for handling international legal
proceedings against Israel, said at an event at
the Institute for National Security Studies in July 2022. “There are also
people there who can be persuaded, and I think that to a considerable extent,
the State of Israel managed to convince at least the previous prosecutor
[Bensouda], that there would be enough doubt about the question of jurisdiction
for her to turn to the judges of the court.”
‘The claim of complementarity was very, very
significant’
In 2021, the court’s judges ruled that the ICC does
have jurisdiction over all war crimes committed by Israelis and Palestinians in
the occupied Palestinian territories, as well as crimes committed by
Palestinians on Israeli territory. Despite six years of Israeli efforts to
forestall it, Bensouda announced the opening of a formal criminal
investigation.
But it was far from a foregone conclusion. A few
months earlier, the prosecutor had decided to abandon an examination into British war crimes in Iraq
because she was convinced that Britain had taken “genuine” action to
investigate them. According to senior Israeli jurists, Israel clung to this
precedent, and initiated a close collaboration between the
intelligence-gathering operation and the military justice system.
According to the sources, a central goal of Israel’s
surveillance operation was to enable the military to “open investigations
retroactively” into cases of violence against Palestinians that reach the
prosecutor’s office in The Hague. In doing so, Israel aimed to exploit the
“principle of complementarity,” which asserts that a case is inadmissible
before the ICC if it is already being thoroughly investigated by a state with
jurisdiction over it.
“If materials were transferred to the ICC, it had to
be understood exactly what they were, to ensure that the IDF investigated them
independently and sufficiently so that they could claim complementarity,” one
of the sources explained. “The claim of complementarity was very, very
significant.”
Legal experts within the Joint Chief of Staff’s
Fact-Finding Assessment Mechanism (FFAM) — the military body that investigates
alleged war crimes by Israeli soldiers — were also privy to intelligence
information, sources said.
Among the dozens of incidents currently under investigation by the FFAM are
the bombings that killed dozens of Palestinians in the
Jabaliya refugee camp last October; the “flour massacre” in which more than 110 Palestinians were killed in
northern Gaza upon the arrival of an aid convoy in March; the drone strikes that killed seven World Central Kitchen
employees in April; and an airstrike in a tent encampment in Rafah that ignited a
fire and killed dozens last week.
For the Palestinian NGOs filing reports with the ICC,
however, Israel’s internal military accountability mechanisms are a farce.
Echoed by Israeli and international experts and human rights groups,
Palestinians have long argued that these systems — from police and army
investigators to the Supreme Court — routinely serve as a “fig leaf” for the Israeli state and its security
apparatus, helping to “whitewash” crimes while effectively granting soldiers
and commanders a license to continue criminal acts with impunity.
Issam Younis, who was a target of Israeli surveillance
because of his role as director of Al Mezan, spent much of his career in Gaza,
in the organization’s now partially bombed offices, collecting and filing “hundreds” of complaints from Palestinians to
the Israeli Military Advocate General’s Office. The vast majority of these
complaints were closed with no indictments, convincing him that “victims cannot
pursue justice through that system.”
This is what led his organization to engage with the
ICC. “In this war, the nature and scope of crimes committed are unprecedented,”
said Younis, who escaped Gaza with his family in December, and is today a
refugee in Cairo. “And it’s simply because accountability was not there.”
‘October 7 changed that reality’
In June 2021, Khan replaced Bensouda as chief
prosecutor, and many in the Israeli judicial system hoped this would turn over
a new leaf. Khan was perceived as more cautious than his predecessor, and there
was speculation that he would choose not to prioritize the explosive
investigation he inherited from Bensouda.
In an interview in September 2022, in which he also revealed
some details about Israel’s “informal dialogue” with the ICC, Schondorf of
Israel’s Justice Ministry praised Khan for having “shifted the trajectory of
the ship,” adding that it seemed like the prosecutor would focus on more
“mainstream issues” because the “Israeli-Palestinian conflict became a less
pressing issue for the international community.”
Meanwhile, Khan’s personal judgment became the main
research target of Israel’s surveillance operation: the goal was to “understand
what Khan was thinking,” as one intelligence source put it. And while initially
the prosecutor’s team does not appear to have shown much enthusiasm for the
Palestine case, according to a senior Israeli official, “October 7 changed that
reality.”
By the end of the third week of Israel’s bombardment
of Gaza, which followed the Hamas-led assault on southern Israel, Khan was
already on the ground at the Rafah Crossing. He subsequently made visits to both the West Bank and southern Israel in
December, where he met with Palestinian officials as well as Israeli survivors
of the October 7 attack and the relatives of people who had been killed.
Israeli intelligence closely followed Khan’s visit to
try “to understand what materials the Palestinians were giving him,” as one
Israeli source said. “Khan is the most boring man to gather intelligence about
in the world, because he’s as straight as a ruler,” the source added.
In February, Khan issued a strongly-worded statement on X effectively urging Israel not to launch an
assault on Rafah, where more than 1 million Palestinians were already seeking refuge. He also warned: “Those who do not comply with the
law should not complain later when my office takes action.”
Just as with his predecessor, Israeli intelligence
also surveilled Khan’s activities with Palestinians and other officials in his
office. Surveillance of two Palestinians familiar with Khan’s intentions tipped
off Israeli leaders to the fact that the prosecutor was considering an imminent
request for arrest warrants for Israeli leaders, but was “under tremendous
pressure from the United States” not to do so.
Eventually, on May 20, Khan followed through on his
threat. He announced that he was seeking arrest warrants for Netanyahu and
Gallant, after finding that there are reasonable grounds to believe that the
two leaders bear responsibility for crimes including extermination, starvation,
and deliberate attacks on civilians.
For the Palestinian human rights groups that Israel
surveilled, Netanyahu and Gallant are just the tip of the iceberg. Three days
before Khan’s announcement, the heads of Al-Haq, Al Mezan, and PCHR sent Khan a
joint letter calling explicitly for arrest warrants against all members of
Israel’s war cabinet, which includes Benny Gantz, as well as commanders and
soldiers from the units currently involved in the Rafah offensive.
Khan now must also assess whether any Israelis behind
operations aimed at undermining the ICC have committed offenses against the
administration of justice. He warned in his May 20 announcement that his office
“will not hesitate to act” against ongoing threats against the court and its
investigation. Such offenses, for which Israeli leaders can be prosecuted
regardless of the fact that Israel is not a signatory to the Rome Statute,
could potentially carry a prison sentence.
An ICC spokesperson told the Guardian that it was
aware of “proactive intelligence-gathering activities being undertaken by a
number of national agencies hostile towards the court,” but stressed that “none
of the recent attacks against it by national intelligence agencies” had
penetrated the court’s core evidence holdings, which had remained secure. The
spokesperson added that Khan’s office has been subjected to “several forms of
threats and communications that could be viewed as attempts to unduly influence
its activities.”
In response to a request for comment, the Israeli
Prime Minister’s Office stated only that our report is “replete with many false
and unfounded allegations meant to hurt the State of Israel.” The Israeli army
also responded in brief: “Intelligence bodies in the IDF perform surveillance
and other intelligence operations only against hostile elements and contrary to
what is claimed, not against the ICC in The Hague or other international
elements.”
CORRECTION: This article previously stated that Omar
Awadallah and Ammar Hijazi work within the PA’s Justice Ministry; it has been
corrected to show that they work within the Foreign Affairs Ministry.
Harry Davies and Bethan McKernan of the Guardian
contributed to this report.
