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.