[[link removed]]

SURVEILLANCE AND INTERFERENCE: ISRAEL’S COVERT WAR ON THE ICC
EXPOSED  
[[link removed]]


 

Yuval Abraham and Meron Rapoport
May 28, 2024
972 Magazine
[[link removed]]

*
[[link removed]]
*
[[link removed]]
*
*
[[link removed]]

_ 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. _

ICC Prosecutor Karim Khan taking his oath of office,

 

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
[[link removed]],
and the Guardian
[[link removed]] 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
[[link removed]] 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.

[Prime Minister Benjamin Netanyahu, seen with Yossi Cohen, then-head
of the national security council, at a press conference at the Foreign
Ministry in Jerusalem, October 15, 2015. (Miriam Alster/Flash90)]
[[link removed]] Prime
Minister Benjamin Netanyahu, seen with Yossi Cohen, then-head of the
national security council, at a press conference at the Foreign
Ministry in Jerusalem, October 15, 2015. (Miriam Alster/Flash90)
Prime Minister Benjamin Netanyahu, seen with Yossi Cohen, then-head of
the national security council, at a press conference at the Foreign
Ministry in Jerusalem, October 15, 2015. (Miriam Alster/Flash90)

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
[[link removed]] 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
[[link removed]] seen
as calling on Israel to halt its offensive in Gaza’s southernmost
city of Rafah, in the context of South Africa’s petition
[[link removed]] 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.

[Palestinians gather to watch the speech by President Mahmoud Abbas
in the bid for Palestine's "non-member observer state" status at the
United Nations, projected on the Israeli separation wall in the West
Bank town of Bethlehem, November 29, 2012. (Ryan Rodrick
Beiler/Activestills)]
[[link removed]] Palestinians
gather to watch the speech by President Mahmoud Abbas in the bid for
Palestine's
Palestinians gather to watch the speech by President Mahmoud Abbas in
the bid for Palestine’s “non-member observer state” status at
the United Nations, projected on the Israeli separation wall in the
West Bank town of Bethlehem, November 29, 2012. (Ryan Rodrick
Beiler/Activestills)

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
[[link removed]] 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 [[link removed]],
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
[[link removed]] the
ICC’s pursuit of arrest warrants for Israeli leaders as “a
witch-hunt driven by pure Jew-hatred.”

[A ceremony for incoming Chief of Staff, Herzi Halevi at HaKirya base
in Tel Aviv, January 16, 2023. (Tomer Neuberg/Flash90)]
[[link removed]] A
ceremony for incoming Chief of Staff, Herzi Halevi at HaKirya base in
Tel Aviv, January 16, 2023. (Tomer Neuberg/Flash90)
A ceremony for incoming Chief of Staff, Herzi Halevi at HaKirya base
in Tel Aviv, January 16, 2023. (Tomer Neuberg/Flash90)

‘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.”

[Official Opening of the Permanent Premises of the International
Criminal Court, April 19, 2016. (UN Photo/Rick Bajornas)]
[[link removed]]
Official Opening of the Permanent Premises of the International
Criminal Court, April 19, 2016. (UN Photo/Rick Bajornas)
Official Opening of the Permanent Premises of the International
Criminal Court, April 19, 2016. (UN Photo/Rick Bajornas)

‘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.”

[Benny Gantz, war cabinet minister and head of the National Unity
Party, holds a press conference in Ramat Gan, May 18, 2024. (Miriam
Alster/Flash90)]
[[link removed]] Benny
Gantz, war cabinet minister and head of the National Unity Party,
holds a press conference in Ramat Gan, May 18, 2024. (Miriam
Alster/Flash90)
Benny Gantz, war cabinet minister and head of the National Unity
Party, holds a press conference in Ramat Gan, May 18, 2024. (Miriam
Alster/Flash90)

A +972 and Local Call investigation
[[link removed]], 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
[[link removed]]. At the
time, it was widely speculated — including by the organizations
themselves
[[link removed]] —
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
[[link removed]] by
Citizen Lab at the time identified Pegasus spyware, produced by the
Israeli firm NSO Group
[[link removed]], 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 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.”

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.”

[Heads of Palestinian NGOs speak to the media outside of Al-Haq's
offices after the Israeli army raided their offices, Ramallah, West
Bank, August 18, 2022. (Oren Ziv)]
[[link removed]]
Heads of Palestinian NGOs speak to the media outside of Al-Haq's
offices after the Israeli army raided their offices, Ramallah, West
Bank, August 18, 2022. (Oren Ziv)
Heads of Palestinian NGOs speak to the media outside of Al-Haq’s
offices after the Israeli army raided their offices, Ramallah, West
Bank, August 18, 2022. (Oren Ziv)

‘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
[[link removed]] 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.”

[ICC Prosecutor Fatou Bensouda meets with Palestine’s Minister of
Foreign Affairs Riyad al-Maliki on the margins of the 18th session of
the ASP, December 2, 2019. (ICC-CPI)]
[[link removed]]
ICC Prosecutor Fatou Bensouda meets with Palestine’s Minister of
Foreign Affairs Riyad al-Maliki on the margins of the 18th session of
the ASP, December 2, 2019. (ICC-CPI)
ICC Prosecutor Fatou Bensouda meets with Palestine’s Minister of
Foreign Affairs Riyad al-Maliki on the margins of the 18th session of
the ASP, December 2, 2019. (ICC-CPI)

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
[[link removed]] 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
[[link removed]] 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
[[link removed]] 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.

[Palestinians return to inspect their homes in Khan Younis after the
Israeli army withdrew from the area, southern Gaza Strip, April 8,
2024. (Atia Mohammed/Flash90)]
[[link removed]]
Palestinians return to inspect their homes in Khan Younis after the
Israeli army withdrew from the area, southern Gaza Strip, April 8,
2024. (Atia Mohammed/Flash90)
Palestinians return to inspect their homes in Khan Younis after the
Israeli army withdrew from the area, southern Gaza Strip, April 8,
2024. (Atia Mohammed/Flash90)

“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
[[link removed]] currently
under investigation by the FFAM are the bombings
[[link removed]] that
killed dozens of Palestinians in the Jabaliya refugee camp last
October; the “flour massacre
[[link removed]]” in
which more than 110 Palestinians were killed in northern Gaza upon the
arrival of an aid convoy in March; the drone strikes
[[link removed]] that
killed seven World Central Kitchen employees in April; and
an airstrike
[[link removed]] 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” [[link removed]] for the
Israeli state and its security apparatus, helping to “whitewash”
crimes while effectively granting soldiers and commanders a license
[[link removed]] 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
[[link removed]] “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
[[link removed]] 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.”

[ICC Prosecutor Karim Khan visiting kibbutzim in Israel that were
among the sites of the October 7 attack, December 2023. (ICC-CPI)]
[[link removed]]
ICC Prosecutor Karim Khan visiting kibbutzim in Israel that were among
the sites of the October 7 attack, December 2023. (ICC-CPI)
ICC Prosecutor Karim Khan visiting kibbutzim in Israel that were among
the sites of the October 7 attack, December 2023. (ICC-CPI)

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
[[link removed]] 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
[[link removed]] on X
effectively urging Israel not to launch an assault on Rafah, where
more than 1 million Palestinians were already seeking refuge
[[link removed]]. 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.”

_Harry Davies and Bethan McKernan of the Guardian contributed to this
report_

_Yuval Abraham is a journalist and filmmaker based in Jerusalem._

_Meron Rapoport is an editor at Local Call._

_CAN WE COUNT ON YOUR SUPPORT 
[[link removed]]? +972 MAGAZINE IS A LEADING
MEDIA VOICE OF THIS MOVEMENT, A DESPERATELY NEEDED PLATFORM WHERE
PALESTINIAN AND ISRAELI JOURNALISTS, ACTIVISTS, AND THINKERS CAN
REPORT ON AND ANALYZE WHAT IS HAPPENING, GUIDED BY HUMANISM, EQUALITY,
AND JUSTICE. JOIN US._

_BECOME A +972 MEMBER TODAY [[link removed]]_

* Israel
[[link removed]]
* International Criminal Court
[[link removed]]

*
[[link removed]]
*
[[link removed]]
*
*
[[link removed]]

 

 

 

INTERPRET THE WORLD AND CHANGE IT

 

 

Submit via web
[[link removed]]

Submit via email
Frequently asked questions
[[link removed]]
Manage subscription
[[link removed]]
Visit xxxxxx.org
[[link removed]]

Twitter [[link removed]]

Facebook [[link removed]]

 




[link removed]

To unsubscribe, click the following link:
[link removed]