(Miriam Alster/Flash90)
Yuval Abraham and Meron Rapoport
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.
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.
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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.
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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.
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Omar Awadallah and Ammar Hijazi, who are in charge of the ICC case within the PA’s Justice 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.”
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“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.”
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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.)
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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.”
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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.
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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.
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Via https://libya360.wordpress.com/2024/05/28/surveillance-and-interference-israels-covert-war-on-the-icc-exposed/