A media investigation has uncovered some shocking facts: The Israeli intelligence conducted a secret campaign against the International Criminal Court. In fact, the Mossad chief personally threatened the ICC prosecutor and her family—as she was getting ready to investigate alleged war crimes in Palestine. The revelation comes at a very sensitive time—and could turn the tide of global support for Israel… other than the US, of course…
First: Wtf is the ICC and what does it do?
The International Criminal Court—based in The Hague—should not be confused with the International Court of Justice. The ICJ is part of the UN—and does not prosecute cases unlike the ICC.
The origin story: The ICC was established in 2002 as the “permanent court of last resort” to prosecute individuals responsible for the worst atrocities in the world. Think war crimes, crimes against humanity, genocide etc. It was established by the Rome Statute in 1998—and has 124 member states. Lots of countries didn’t sign up—such as Israel, the United States, Russia, China—and, yes India too, They don’t recognise the jurisdiction of the ICC.
How it works: The ICC is independent of any country—including the UN. It typically steps in when governments are unable or unwilling to prosecute crimes that occurred on their territory. It currently has 17 ongoing investigations—and has issued a total of 42 arrest warrants and taken 21 suspects into custody. Its judges have convicted 10 suspects and acquitted four. It recently issued a warrant for Russian President Vladimir Putin—who is charged with abducting children from Ukraine in the course of the war.
But, but, but: The ICC isn’t all that powerful in practice: “Without a police force, the ICC relies on member states to arrest suspects, which has proven to be a major obstacle to prosecutions.” That explains why the Vlad is running free. But the warrant does cramp his style. For instance, he was unable to attend global summits in South Africa—because it is an ICC member state and would be obliged to arrest him.
Irony alert: Although the Court was established decades later, it was inspired by the Nuremberg trials—first international war crimes tribunal to prosecute Nazis.
Ok, now tell me what happened with Israel…
Yesterday, The Guardian published the results (here and here) of a joint investigation with the Israeli-Palestinian publication +972 Magazine and the Hebrew-language outlet Local Call. It's a jaw-dropping story plucked from some Netflix thriller—the kind with spies, prosecutors and war crimes.
How it began: Palestine was recognised as a state by the UN in 2015. Soon after, it joined the ICC—and pushed for an investigation of alleged war crimes committed during the 2014 Gaza war. This set off alarms in Tel Aviv:
One former defence official familiar with Israel’s counter-ICC effort said joining the court had been “perceived as the crossing of a red line” and “perhaps the most aggressive” diplomatic move taken by the Palestinian Authority, which governs the West Bank. “To be recognised as a state in the UN is nice,” they added. “But the ICC is a mechanism with teeth.”
The timeline later expanded to include the 2018 Gaza border clashes and settlement-building in the West Bank.
The investigation: Then ICC prosecutor Fatou Bensouda first opened a preliminary inquiry into allegations of crimes in all three Palestine territories—Gaza, the West Bank and East Jerusalem. In 2019, she announced that she had sufficient grounds to conduct a full criminal investigation. But she asked for a pre-trial ruling to confirm the court did indeed have jurisdiction over Palestine. In 2021, she got the ruling—and formally launched the investigation.
Enter, Mossad: Soon after Bensouda announced the first preliminary investigation—back in 2015 after Palestine joined ICC— this happened:
The following month, two men who had managed to obtain the prosecutor’s private address turned up at her home in The Hague. Sources familiar with the incident said the men declined to identify themselves when they arrived, but said they wanted to hand-deliver a letter to Bensouda on behalf of an unknown German woman who wanted to thank her. The envelope contained hundreds of dollars in cash and a note with an Israeli phone number.
The intent was to let Bensouda know that the Israelis “knew where she lived.”
Enter Yossi Cohen: He was the head of Mossad—and a close supporter of PM Benjamin Netanyahu. Between 2013 and 2016, he also headed the national security council—and led the campaign to undermine the ICC, specifically Bensouda.
The mafia story begins: Around 2018, Cohen got personally involved in the bullying campaign. First, he ambushed her in a hotel room—where she was invited by the president of the DRC—Joseph Kabila: The meeting was a setup: “At a certain point, after Bensouda’s staff were asked to leave the room, Cohen entered.”
The escalation: At first, Cohen tried to charm her into acquiescence—then came the constant phone calls: “At one stage Bensouda asked Cohen how he had obtained her phone number, to which he replied: ‘Did you forget what I do for a living?’” Then in 2019 Bensouda announced she had enough for full-blown investigation—and that’s when things got seriously ugly:
A source familiar with Bensouda’s accounts of the final two meetings with Cohen said he had raised questions about her security, and that of her family, in a manner that led her to believe he was threatening her. On one occasion, Cohen is said to have shown Bensouda copies of photographs of her husband, which were taken covertly when the couple were visiting London. On another, according to sources, Cohen suggested to the prosecutor that a decision to open a full investigation would be detrimental to her career.
Cohen also tried to get incriminating information on her husband—circulating transcripts from tapped conversations among its allies. Bensouda told a small group of ICC officials—but it has not taken action against Israel. But in 2021, the court greenlit a full investigation.
Meanwhile, in Palestine: The Israeli intelligence—Mossad and its domestic counterpart Shin Bet—had launched a full-blown surveillance program. They intercepted all communication between the ICC and the Palestinians. Bensouda stepped down the same year after completing her nine-year term. She handed the baton to her successor Karim Khan. But the surveillance did not end. Tel Aviv has been intercepting his emails and text messages.
The role of race: One reason Israel seems to have assumed that it would get away with these tactics: “With Bensouda, she’s black and African, so who cares?” Sadly, Israel may indeed have got it right:
Khan recently disclosed in an interview with CNN that some elected leaders had been “very blunt” with him as he prepared to issue arrest warrants. “‘This court is built for Africa and for thugs like Putin,’ was what a senior leader told me.”
And all of that has come out now…
Yes, barely a week after Khan put in a request for arrest warrants for Netanyahu and his Defence Minister Yoav Gallant. Timing is everything here.
The arrest warrants: On May 19, Khan applied for arrest warrants for the two Israeli leaders—and three top Hamas leaders. But the charges were focused entirely on the ongoing war. Khan said he has “reasonable grounds” to believe that Bibi and Gallant committed war crimes and crimes against humanity in the Gaza Strip:
Both are accused of using starvation as a method of warfare against Palestinians in Gaza as well as “intentionally directing attacks” against civilians and overseeing the “extermination and/or murder” of Palestinians in Gaza
Separately, the three Hamas leaders were charged with “killing and extermination”, “taking hostages”, and overseeing torture and other inhumane acts during the October 7 attacks.
About jurisdiction: Israel will argue—much like Russia—that any warrant is meaningless since it does not recognise the jurisdiction of the ICC. But this isn’t true:
According to the ICC statute, the court has jurisdiction over crimes committed in the territory of a state party or a state which has accepted its jurisdiction, and Ukraine falls under this category. The court asserted jurisdiction which would apply to occupied and annexed territories.
In this case, Palestine is a member state—and the alleged crimes occurred on its territory.
So what will happen now?
The Guardian investigation comes just as the court is considering whether to grant Khan’s request. Many human rights activists were worried that Israel would try and bully the judges. Imagine the pressure on the judges now to seem impartial. Aside from the warrants, the revelations put Israel’s allies in an unhappy position.
In a very hard place: The United States—which has aggressively supported Israel’s position on the warrants. Secretary of State Antony Blinken said he was "committed" to taking action against the "profoundly wrong-headed decision”—hinting the US may impose sanctions on the ICC. Now that Tel Aviv has come out looking like the villain, it will be hard to maintain that moral outrage. More so as Washington already stands accused of double standards—supporting the ICC against Russia but not Israel.
As for the Europe Union: The warrants have already split the EU. Belgium and Slovenia strongly supported Khan’s request. France, Spain, Switzerland didn’t comment on the charges—but stressed the importance of supporting the ICC’s independence. But the Brits, Germans, Czechs and Hungarians were very unhappy with the court—for suggesting equivalence between Tel Aviv and Hamas. That divide just got a lot trickier to navigate.
Then there’s the ICJ: The International Court of Justice—the UN court in New York—just issued a ruling ordering Israel to immediately stop all military operations in Rafah. The IDF responded with lethal airstrikes that burnt 45 people alive—in a tent at a refugee camp. Most of them were women, children and the elderly.
The EU is not happy at all—and made it clear at a key meeting of the member states:
EU foreign ministers have for the first time engaged in a “significant” discussion on sanctioning Israel if it doesn’t comply with international humanitarian law, Irish Foreign Minister Micheál Martin said Monday. “There was a very clear consensus about the need to uphold the international humanitarian legal institutions,” Martin told reporters.
Point to note: While member states did not agree on the sanctions, there was great concern about Israel’s contempt for international law:
But there is a lot of concern … amongst member states in respect of what is a clear situation where the ICJ have ruled, made provisional orders, and the EU has always upheld the independence of that court and the need for nations to comply with it.
The ICC scandal will only fan that anxiety—though it remains to be seen if there will be consequences.
The bottomline: We leave you with the words of James Goldston who offers this reminder:
In 2002, the last surviving Nuremberg prosecutor Benjamin Ferencz, who passed away last year, had lamented that Washington was making a terrible moral and political mistake by refusing to join the ICC: “What the United States is saying is that we don’t want the rule of law. I think that is dangerous, very dangerous. Because we cannot lay down a law for the United States and not for the rest of the world. That doesn’t fly. Justice Jackson made that clear at Nuremberg. Law must apply to everyone equally, or it’s not law at all,” he said.
Reading list
The Guardian investigation is in two parts: Part one details the role of Yossi Cohen. Part two has the Israeli surveillance program. Associated Press has a handy explainer on the International Criminal Court. Al Jazeera looks at the arrest warrants issued against Israeli Prime Minister Benjamin Netanyahu and Defence Minister Yoav Gallant while Priya Pillai in The Hindu explains why this was a significant move. James Goldston in Politico has a must-read on why international law must apply to everyone equally.
