Shin Bet allegedly tapped Palestinian officials with Pegasus

Israel said to have waged 9-year ‘war’ against ICC, tapping its communications

Guardian reports intel, diplomatic push included threats; last month, Jerusalem found out via intercepted call that prosecutor could seek arrest warrants against Netanyahu, Gallant

Michael Bachner is a news editor at The Times of Israel

Karim Khan, the chief prosecutor of the International Criminal Court (left), announces he is seeking arrest warrants from the court’s judges for Prime Minister Benjamin Netanyahu and Defense Minister Yoav Gallant, along with Hamas leaders Yahya Sinwar, Mohammed Deif and Ismail Haniyeh (ICC); Prime Minister Benjamin Netanyahu delivers a video address, May 20, 2024. (Screenshot/GPO)
Karim Khan, the chief prosecutor of the International Criminal Court (left), announces he is seeking arrest warrants from the court’s judges for Prime Minister Benjamin Netanyahu and Defense Minister Yoav Gallant, along with Hamas leaders Yahya Sinwar, Mohammed Deif and Ismail Haniyeh (ICC); Prime Minister Benjamin Netanyahu delivers a video address, May 20, 2024. (Screenshot/GPO)

Israel has allegedly led an almost decade-long “war” against the International Criminal Court’s intention to pursue arrest warrants against its leaders, dedicating immense intelligence and diplomatic efforts to finding out the court’s plans and attempting to thwart them via multiple channels and tactics including espionage and threats, The Guardian reported Tuesday.

One element of the ultimately failed campaign was reported in a separate Guardian story earlier in the day, outlining then-Mossad chief Yossi Cohen’s alleged campaign of “threats and intimidation” aimed at dissuading then-ICC chief prosecutor Fatou Bensouda from opening a war crimes investigation into Israel.

In a follow-up story hours later, The Guardian — in an investigation carried out in conjunction with Israeli-Palestinian publication +972 Magazine and Hebrew-language outlet Local Call — claimed that was just part of a nine-year attempt to dissuade Bensouda and her successor Karim Khan from prosecuting Israeli leaders, which began in 2015 and was still being waged as recently as last month.

Citing “more than two dozen current and former Israeli intelligence officers and government officials, senior ICC figures, diplomats and lawyers” familiar with the matter, the report said that alongside the Mossad spy agency, the intelligence-gathering efforts also included the Shin Bet security service; and the Israel Defense Forces’ Military Intelligence Directorate and its signal intelligence branch, Unit 8200.

Israel, having barred ICC staff from accessing the West Bank and Gaza, regularly intercepted their calls and communications with Palestinians, though it never directly tapped ICC official’s devices, the report said.

One former Israeli intelligence official was quoted as alleging that the “entire military and political establishment” viewed this “as a war that had to be waged, and one that Israel needed to be defended against. It was described in military terms.”

Ex-Mossad chief Yossi Cohen (left) at the Kirya base in Tel Aviv, January 16, 2023; Then-International Criminal Court Prosecutor Fatou Bensouda speaks during an interview with The Associated Press in The Hague, Netherlands, June 14, 2021. (Tomer Neuberg/Flash90; Peter Dejong/AP Photo)

Prime Minister Benjamin Netanyahu was said to have been “obsessed” with information on the matter, which was sent by intelligence bodies to his national security advisers, as well to the Justice Ministry, Foreign Ministry and Strategic Affairs Ministry.

One of the missions was allegedly to find out which specific cases could form part of a future ICC investigation, in order to preemptively open Israeli probes into them and thus be able to claim the Hague-based court cannot look into them. Under a principle known as complementarity, the ICC cannot accept a case if the state in question is willing and able to credibly investigate the alleged wrongdoing.

Two years before Cohen allegedly began personally reaching out to Bensouda — and weeks after she opened her preliminary probe into potential Israeli and Palestinian crimes in the West Bank and Gaza — two unidentified men reportedly delivered an envelope containing hundreds of dollars in cash and a note with an Israeli phone number to Bensouda’s private home in The Hague, in an apparent message by Jerusalem that it knew where she lived. CCTV cameras were installed there as a result, and the incident was reported to Dutch authorities.

File: An exterior view of the International Criminal Court in The Hague, Netherlands, December 6, 2022. (AP Photo/Peter Dejong)

Israel also allegedly sent a delegation to hold back-channel talks with the court between 2017 and 2019, headed by prominent lawyer and diplomat Tal Becker. In those meetings, the team was said to have challenged the ICC’s jurisdiction since Israel doesn’t recognize it, and argued that Israeli investigations into alleged misdeed are robust and sufficient to make an international probe unnecessary.

The report also claimed that Palestinian rights group Al-Haq — which has since been blacklisted by Israel over alleged terror ties — was targeted along with other similar groups due to their contributions to the ICC’s probe.

It alleged that Israeli operatives hacked the groups’ emails with the ICC and that the Shin Bet even installed NSO Group’s controversial Pegasus software on the phones of two senior Palestinian Authority officials and an unspecified number of Palestinian nonprofit employees.

When Khan became prosecutor in 2021, he did not close the investigation, but it largely lost prominence until the Israel-Hamas war broke out on October 7 with Hamas’s unprecedented onslaught on southern Israel, in which terrorists killed some 1,200 people and seized 252 hostages.

The report said Israel had initially been optimistic when Khan was appointed, as the Israeli-Palestinian probe appeared to have been put on the back burner, but that this changed when Khan’s tone on the ongoing Israel-Hamas war shifted drastically in February of this year.

International Criminal Court Prosecutor Karim Khan poses during an interview with AFP at the Cour d’Honneur of the Palais Royal in Paris on February 7, 2024. (Dimitar Dilkoff/AFP)

Intelligence agencies reportedly renewed their efforts to intercept material related to the ICC’s probe, and last month tapped into a call between two Palestinian politicians in which one said Khan had indicated a request for arrest warrants could be imminent, though the US was pressuring him against it.

Additionally, Israel gleaned information through intercepted emails, attachments and messages that Khan was at one point mulling entering Gaza through Egypt without Israel’s okay, according to the report.

This information caused Netanyahu and others to publicly sound the alarm and caution against a decision to seek arrest warrants in the case.

A spokesperson for the ICC said it was continually implementing countermeasures against espionage as a result of Israel’s campaign, adding that its core evidence holdings have remained secure.

The report said this included “regular sweeps of the prosecutor’s offices, security checks on devices, phone-free areas, weekly threat assessments and the introduction of specialist equipment.”

The story quoted Netanyahu’s office as commenting that the alleged details were “replete with many false and unfounded allegations meant to hurt the State of Israel.”

A spokesperson for the military told the outlet: “The IDF did not and does not conduct surveillance or other intelligence operations against the ICC.”

The publication added that Cohen did not respond to a request for comment and that Bensouda declined to comment.

Demonstrators carry banners outside the International Criminal Court, ICC, rear, urging the court to prosecute Israel’s army for alleged war crimes, The Hague on November 29, 2019. (AP/Peter Dejong)

Bensouda announced in December 2019 that her office had grounds to open an investigation into Israeli actions in the West Bank, the Gaza Strip and East Jerusalem but that she was seeking a ruling on whether the ICC had jurisdiction.

In the report she published at the time, she accused Israel of at least three disproportionate attacks, willfully killing and injuring civilians, and intentionally attacking Red Cross personnel and institutions during Operation Protective Edge in Gaza in 2014.

In the same report, she accused Hamas and other terrorist organizations of a string of charges, including intentionally attacking Israeli civilians, using Palestinian civilians as human shields, and torture and inhumane treatment.

At the time of her announcement, Bensouda was accused of bias against Israel. Israeli observers noted the significance of the timing of the investigation’s span: On June 12, 2014, Hamas terrorists kidnapped and murdered three Israeli teenagers in the West Bank, in what started an escalation that led to the 50-day war. Bensouda’s investigation was set to focus on events beginning only from the following day, June 13.

In February 2021, the pre-trial chamber ruled that Palestine was enough of a state to fall under the ICC’s jurisdiction, and Bensouda began her investigation before stepping down that same month and being replaced with Khan.

Last week, Khan announced that following his investigation, he was seeking arrest warrants for three Hamas leaders as well as Netanyahu and Defense Minister Gallant. The warrants for the latter two, he said, were being sought on charges of starvation as a method of warfare, willfully causing great suffering or cruel treatment, willfully killing, intentional attacks against civilians, extermination, and persecution.

Times of Israel staff contributed to this report.

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