AnalysisSales help Israel get a diplomatic foot in door

NSO Group affair is latest in Israel’s long history of arming shady regimes

Aversion to arming human rights violators often trumped by political expediency; only new legislation can keep Israeli firms from selling wares to bad actors, activists say

Judah Ari Gross

Judah Ari Gross is The Times of Israel's religions and Diaspora affairs correspondent.

This studio photographic illustration shows a smartphone with the website of Israel's NSO Group which features 'Pegasus' spyware, on display in Paris, on July 21, 2021. (Joel Saget/AFP)
This studio photographic illustration shows a smartphone with the website of Israel's NSO Group which features 'Pegasus' spyware, on display in Paris, on July 21, 2021. (Joel Saget/AFP)

The alleged use of Israeli cyber-surveillance technology to track political dissidents and journalists around the world is the latest in the country’s ignominious history of providing weapons to human rights violators around the world, including at times when other Western countries have refused to make such sales.

It is a practice that stretches back decades and crosses political lines, with left-wing governments under Yitzhak Rabin allegedly signing off on sales to South Africa during apartheid and later to Rwanda and Bosnia during genocides there in the 1990s, and to more recent cases of right-wing governments under Benjamin Netanyahu reportedly approving defense exports to Myanmar and South Sudan during ethnic cleansings and massacres there.

These weapons deals and precisely what they entail are kept notoriously and deliberately opaque, with neither the companies making the sales nor the government approving them being forced to make the details public in any way, including decades after the fact. Without genuine transparency, Israelis typically only hear of where their country’s weapons have wound up from United Nations and non-government organization’s reports — as is the case with the current NSO Group scandal, which came to light in large part due to the efforts of Amnesty International, who has claimed that its members’ phones have been hacked with the cyber-surveillance firm’s technology.

Azerbaijan, Bahrain, Kazakhstan, Mexico, Morocco, Rwanda, Saudi Arabia, Hungary, India and the United Arab Emirates were all said to have purchased the NSO Group’s Pegasus program to target activists, political opponents and journalists, allegedly including French President Emmanuel Macron by Morocco. (Rabat denies this; Macron reportedly personally called Prime Minister Naftali Bennett to ensure Israel was thoroughly investigating the allegations and Defense Minister Benny Gantz flew to Paris on Wednesday to meet with his French counterpart, in part to discuss the claim.)

Pegasus is widely considered to be one of the most powerful cyber-surveillance tools available, capable of taking complete control over a target’s phone, sometimes without them even having to open a file or click a link, giving the user access to the device’s files and messages, as well as its cameras and microphones.

The limitations on such sales are exceedingly few. Israel’s current law on defense exports requires the Defense Ministry to make “considerations regarding the end user or the end use,” but does not expressly forbid arms sales to human rights violators. Only a United Nations Security Council arms embargo, which is exceedingly rare, can force the Defense Ministry to block a deal. In all other cases, political and diplomatic expediency can outweigh human rights concerns.

Israeli human rights attorney Eitay Mack, one of the country’s leading voices against arms sales to human rights violators, told The Times of Israel that the lack of restraints on export licenses should be the real issue in the current NSO Group scandal, not just the alleged actions of one firm.

Lawyer Eitay Mack speaks during a ceremony in April 2015. (Screen capture: YouTube)

Following the reports of the company’s alleged misdoings, the Defense Ministry — along with a number of top Israeli officials — has said that NSO Group’s export permits only allowed its products to be used to “prevent and investigate crimes and to combat terrorism” and that if any violations of those permits were found, “appropriate actions will be taken.”

However, according to Mack, this is unlikely to be the case as crimes and terrorism are often in the eye of the beholder.

“The company didn’t violate the permits, it followed exactly the permits it received,” he said.

“What’s the designation of terror and crime? In Azerbaijan, in Saudi Arabia… opposition activity is terror, is crime. The question is if these governments are legitimate and if these governments’ designations of what is crime and terror are legitimate,” according to Mack.

Mack said the Defense Ministry’s Defense Export Controls Agency, which has a small staff and responsibility for overseeing thousands of export licenses, lacks the necessary knowledge about the countries purchasing Israeli firms’ technology to assess how the products will be used.

“There aren’t people in the Defense Ministry or the Foreign Ministry who know what they’re doing. This isn’t a technical issue, it’s not some stupid checklist that everyone just has to sign. When someone comes asking for a permit, you have to know about the country — how do the authorities work, what are its definitions of terrorism — and make a decision based on that,” he said.

Illustrative. An Israeli woman uses her phone in front of a building in Herzliya that housed the NSO Group intelligence firm, on August 28, 2016. (Jack Guez/AFP/File)

Mack has twice petitioned the courts to block NSO Group exports, filing one such appeal in 2017 to specifically prevent sales to Mexico — the country that reportedly made the greatest use of Pegasus to track activists and journalists — and another in 2019 more generally against the firm’s sales abroad in light of reported use of the cyber-surveillance tool to target Amnesty International employees around the world. Both appeals were rejected, mostly due to Mack’s difficulties in providing sufficient evidence to prove that the sales took place and that the technology was used.

The company has generally denied the allegations against it, maintaining that its products are only used to combat crime and terrorism and that it takes action whenever it sees abuse of its products. However, according to Mack, the company has never given a clear answer regarding the degree to which it is involved in specific uses of its products.

In certain cases, the company has claimed to have full control and oversight over the use of its technology, ensuring that it is not used for nefarious purposes, while at other times the NSO Group maintains that as part of its agreement it does not know against whom specifically its surveillance tools are being used.

In 2019, amid reports that the NSO Group’s Pegasus was used to track Saudi journalist Jamal Khashoggi, who was subsequently murdered by Saudi intelligence agents the year before, the CEO of the firm, Shalev Hulio, denied the allegation in an interview with the Yedioth Ahronoth newspaper.

“We checked all of our clients, both through conversations with them and through technological testing that cannot be forged. The systems have records and it is impossible to act against a target such as this without us being able to check it,” Hulio said.

NSO Group CEO Shalev Hulio speaks with the Calcalist paper, April 20, 2020. (YouTube screenshot)

A spokesperson for the firm similarly denied that its system was used to track Macron. We can “specifically come out and say for sure that the president of France, Macron, was not a target,” Chaim Gelfand, chief compliance officer at the NSO Group, told the i24 News television network last week.

Yet in other cases, the firm denies knowledge of how its product is used. When reports first emerged in 2017 that the company’s technology had been used to track Mexican political dissidents, the firm told The New York Times that it had no way of knowing how its product was used once a sale was completed.

No more court intervention

Despite the current controversy over the NSO Group, these defense exports to countries with poor human rights records are unlikely to end soon, especially as one of the few potential tools available to opponents of these sales — albeit a largely ineffectual tool — was recently taken away completely. Until last month, petitions could be filed in the courts calling for the Defense Ministry to halt export licenses in cases where Israeli weapons were being used to commit war crimes or human rights violations.

But on June 27, the High Court of Justice issued a ruling in response to such an appeal by Mack that not only rejected his petition — calling for a revocation of the cyber-surveillance firm Cellebrite’s permits to sell its products to Russia — but also deemed the entire issue of weapons sales to no longer be subject to judicial oversight, except for in cases of blatant illegality.

“The considerations in the hands of the country’s authorities are particularly broad. On these issues, this court will not intervene except in extraordinary cases,” the justices Alex Stein, David Mintz and Einat Baron wrote.

Efforts to block defense exports through legal appeals have rarely succeeded. In some cases, these petitions have resulted in firms unilaterally restricting their sales to the country in question — Cellebrite, for instance, agreed to not sign new contracts with Russia and Belarus — but they are generally dismissed by Israeli courts, deferring to the Defense Ministry’s considerations.

The only potential for change now lies in legislation, though there are no longer any clear champions for the cause of regulating defense exports in the Knesset. In 2016, then-Knesset members Tamar Zandberg from the Meretz party and Yehuda Glick from the Likud party proposed a law that would require the Defense Ministry to reject an arms manufacturer’s export license to countries that commit “gross human rights violations,” including torture, inhumane punishment, kidnapping and “rape for belonging to a political, ethnic or religious group.”

The bill was never brought to a vote, and no further progress was made on the matter. A similar bill, submitted only by left-wing parties, was brought to the Knesset in 2020, and it too was never voted on.

Prime Minister Naftali Bennett, left, speaks with Environmental Protection Minister Tamar Zandberg in the assembly hall of the Knesset, on July 12, 2021. (Olivier Fitoussi/Flash90)

After a career in the opposition, in which she co-filed petitions against defense exports to human rights violators, Zandberg is now in the government, serving as minister of environmental protection, but is no longer in the Knesset, having resigned from the Knesset under the so-called Norwegian Law. She has remained publicly silent on the allegations against the NSO Group and Israel’s defense export policies.

“She doesn’t have any bills because she’s no longer a Knesset member,” a spokesperson for Zandberg told The Times of Israel, refusing to answer additional questions about the issue.

The chair of the Knesset’s Foreign Affairs and Defense Committee, MK Ram Ben-Barak, said his committee would look into the matter and “assess whether we need to make corrections” to the export process. But no other legislative proposals have been brought forward.

Mack, who wrote the 2016 bill that Zandberg and Glick submitted, said despite his inability to file appeals to courts to block defense exports, he has no plans to give up his fight against arms sales to human rights violators.

“I’ll keep pushing my bill and doing what I can in terms of exposing arms sales and letters to the Defense Ministry, just without the petitions,” he said.

Dr. Tehilla Shwartz Altshuler, director of the Democracy in the Information Age program at the Israel Democracy Institute, similarly called for new legislation to oversee the sale of these powerful cyber-surveillance tools.

“If Israel wants to ensure that multinational technology companies continue to invest and partake in the local ecosystem,” she wrote this month, “then it is vital to enact smart regulations that allow these powerfully effective technologies to still be utilized and sold while at the same time ensuring that, once it in the hand of foreign government, they are not used to harm the rights and freedoms of innocent individuals.”

Why make the sales?

The rationale behind these sales is that they advance Israel’s diplomatic and security interests, allowing Jerusalem to forge and maintain ties with foreign countries — a necessity for a country like Israel that is regularly on the defensive in the international arena — and to give weapons to enemies of enemies.

One of the countries to which the NSO Group reportedly sold its wares was Saudi Arabia, with which Israel does not have formal ties but would like to. Such defense deals are widely considered a foot-in-the-door for additional diplomatic contact. Indeed three other countries on the list — the UAE, Bahrain and Morocco — have all only recently normalized ties with Israel, driven in part by the security relationships they already had with Jerusalem.

In other cases, sales can shore up existing, but strategically significant relations, such as with Azerbaijan, to which Israel sells large amounts of some of its most advanced weapons and equipment. Azerbaijan has long been Israel’s most significant energy partner and also shares a long border with Iran, making it a strategically advantageous country to maintain ties with, despite long-standing allegations of corruption and civilian rights violations by Baku.

Photo of an alleged Israeli-made Harop drone used by Azerbaijan that exploded in Nagorno-Karabakh in April 2016. (Facebook)

When Israel reportedly sold weapons to South Sudan despite the country’s brutal civil war, a former head of the Mossad intelligence service told The Times of Israel that those deals were more likely meant to strengthen the country in its fight against Sudan, which at the time was aligned with Iran and gave support to a number of its proxies.

“By helping South Sudan, which is the enemy of Sudan, it is as though we were helping ourselves,” former Mossad chief Danny Yatom said in 2016, though he denied any direct knowledge of arms sales to South Sudan.

(Jerusalem and Khartoum have since announced plans to normalize relations after Sudanese dictator Omar Bashir was overthrown in 2019 and the new government sought to mend ties with the West.)

In addition to the geopolitical considerations of these sales, the deals also represent a major boon to the Israeli economy.

In 2020, the Defense Ministry said Israeli firms signed export agreements worth $8.3 billion out of the roughly $114 billion in total exports that year, according to Economy Ministry figures. Israel is ranked as one of the top ten weapons dealers in the world, and those arms sales represent a significant proportion of the country’s total exports.

Defense contractors, nearly all of which are run by former high-ranking military officials with close contacts in the Defense Ministry, also employ thousands of workers across the country, including in farther-flung locales that typically lack high-paying industries, giving the government little incentive to block lucrative arms sales.

The fallout from the current NSO Group allegations could change the government’s calculus on arms exports, but this would require a concerted, long-term effort to rewrite the laws overseeing weapons deals and giving the Defense Export Controls Agency far more power and interest in preventing sales to countries that may use Israeli technology nefariously.

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