Harry Davies, Bethan McKernan, Yuval Abraham & Meron Rapoport
The Guardian / May 28, 2024
Exclusive: Investigation reveals how intelligence agencies tried to derail war crimes prosecution, with Netanyahu ‘obsessed’ with intercepts
When the chief prosecutor of the international criminal court (ICC) announced he was seeking arrest warrants against Israeli and Hamas leaders, he issued a cryptic warning: “I insist that all attempts to impede, intimidate or improperly influence the officials of this court must cease immediately.”
Karim Khan did not provide specific details of attempts to interfere in the ICC’s work, but he noted a clause in the court’s foundational treaty that made any such interference a criminal offence. If the conduct continued, he added, “my office will not hesitate to act”.
The prosecutor did not say who had attempted to intervene in the administration of justice, or how exactly they had done so.
Now, an investigation by The Guardian and the Israeli-based magazines +972 and Local Call can reveal how Israel has run an almost decade-long secret “war” against the court. The country deployed its intelligence agencies to surveil, hack, pressure, smear and allegedly threaten senior ICC staff in an effort to derail the court’s inquiries.
Israeli intelligence captured the communications of numerous ICC officials, including Khan and his predecessor as prosecutor, Fatou Bensouda, intercepting phone calls, messages, emails and documents.
The surveillance was ongoing in recent months, providing Israel’s prime minister, Benjamin Netanyahu, with advance knowledge of the prosecutor’s intentions. A recent intercepted communication suggested that Khan wanted to issue arrest warrants against Israelis but was under “tremendous pressure from the United States”, according to a source familiar with its contents.
Bensouda, who as chief prosecutor opened the ICC’s investigation in 2021, paving the way for last week’s announcement, was also spied on and allegedly threatened.
Netanyahu has taken a close interest in the intelligence operations against the ICC, and was described by one intelligence source as being “obsessed” with intercepts about the case. Overseen by his national security advisers, the efforts involved the domestic spy agency, the Shin Bet, as well as the military’s intelligence directorate, Aman, and cyber-intelligence division, Unit 8200. Intelligence gleaned from intercepts was, sources said, disseminated to government ministries of justice, foreign affairs and strategic affairs.
A covert operation against Bensouda, revealed on Tuesday by the Guardian, was run personally by Netanyahu’s close ally Yossi Cohen, who was at the time the director of Israel’s foreign intelligence agency, the Mossad. At one stage, the spy chief even enlisted the help of the then president of the Democratic Republic of the Congo, Joseph Kabila.
Details of Israel’s nine-year campaign to thwart the ICC’s inquiry have been uncovered by The Guardian, an Israeli-Palestinian publication +972 Magazine and Local Call, a Hebrew-language outlet.
The joint investigation draws on interviews with more than two dozen current and former Israeli intelligence officers and government officials, senior ICC figures, diplomats and lawyers familiar with the ICC case and Israel’s efforts to undermine it.
Contacted by The Guardian, a spokesperson for the ICC said it was aware of “proactive intelligence-gathering activities being undertaken by a number of national agencies hostile towards the court”. They said the ICC was continually implementing countermeasures against such activity, and that “none of the recent attacks against it by national intelligence agencies” had penetrated the court’s core evidence holdings, which had remained secure.
A spokesperson for Israel’s prime minister’s office said: “The questions forwarded to us are replete with many false and unfounded allegations meant to hurt the state of Israel.” A military spokesperson added: “The IDF [Israel Defense Forces] did not and does not conduct surveillance or other intelligence operations against the ICC.”
Since it was established in 2002, the ICC has served as a permanent court of last resort for the prosecution of individuals accused of some of the world’s worst atrocities. It has charged the former Sudanese president Omar al-Bashir, the late Libyan president Muammar Gaddafi and most recently, the Russian president, Vladimir Putin.
Khan’s decision to seek warrants against Netanyahu and his defence minister, Yoav Gallant, along with Hamas leaders implicated in the 7 October attack, marks the first time an ICC prosecutor has sought arrest warrants against the leader of a close western ally.
The allegations of war crimes and crimes against humanity that Khan has levelled against Netanyahu and Gallant all relate to Israel’s eight-month war in Gaza, which according to the territory’s health authority has killed more than 35,000 people.
But the ICC case has been a decade in the making, inching forward amid rising alarm among Israeli officials at the possibility of arrest warrants, which would prevent those accused from travelling to any of the court’s 124 member states for fear of arrest.
It is this spectre of prosecutions in The Hague that one former Israeli intelligence official said had led the “entire military and political establishment” to regard the counteroffensive against the ICC “as a war that had to be waged, and one that Israel needed to be defended against. It was described in military terms.”
That “war” commenced in January 2015, when it was confirmed that Palestine would join the court after it was recognised as a state by the UN general assembly. Its accession was condemned by Israeli officials as a form of “diplomatic terrorism”.
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.”
A hand-delivered threat
For Fatou Bensouda, a respected Gambian lawyer who was elected the ICC’s chief prosecutor in 2012, the accession of Palestine to the court brought with it a momentous decision. Under the Rome statute, the treaty that established the court, the ICC can exercise its jurisdiction only over crimes within member states or by nationals of those states.
Israel, like the US, Russia and China, is not a member. After Palestine’s acceptance as an ICC member, any alleged war crimes – committed by those of any nationality – in occupied Palestinian territories now fell under Bensouda’s jurisdiction.
On 16 January 2015, within weeks of Palestine joining, Bensouda opened a preliminary examination into what in the legalese of the court was called “the situation in Palestine”. 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.
Sources with knowledge of an ICC review into the incident said that while it was not possible to identify the men, or fully establish their motives, it was concluded that Israel was likely to be signalling to the prosecutor that it knew where she lived. The ICC reported the incident to Dutch authorities and put in place additional security, installing CCTV cameras at her home.
The ICC’s preliminary inquiry in the Palestinian territories was one of several such fact-finding exercises the court was undertaking at the time, as a precursor to a possible full investigation. Bensouda’s caseload also included nine full investigations, including into events in DRC, Kenya and the Darfur region of Sudan.
Officials in the prosecutor’s office believed the court was vulnerable to espionage activity and introduced countersurveillance measures to protect their confidential inquiries.
In Israel, the prime minister’s national security council (NSC) had mobilised a response involving its intelligence agencies. Netanyahu and some of the generals and spy chiefs who authorised the operation had a personal stake in its outcome.
Unlike the international court of justice (ICJ), a UN body that deals with the legal responsibility of nation states, the ICC is a criminal court that prosecutes individuals, targeting those deemed most responsible for atrocities.
Multiple Israeli sources said the leadership of the IDF wanted military intelligence to join the effort, which was being led by other spy agencies, to ensure senior officers could be protected from charges. “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,” one source recalled.
Two intelligence officials involved in procuring intercepts about the ICC said the prime minister’s office took a keen interest in their work. Netanyahu’s office, one said, would send “areas of interests” and “instructions” in relation to the monitoring of court officials. Another described the prime minister as “obsessed” with intercepts shedding light on the activities of the ICC.
Hacked emails and monitored calls
Five sources familiar with Israel’s intelligence activities said it routinely spied on the phone calls made by Bensouda and her staff with Palestinians. Blocked by Israel from accessing Gaza and the West Bank, including East Jerusalem, the ICC was forced to conduct much of its research by telephone, which made it more susceptible to surveillance.
Thanks to their comprehensive access to Palestinian telecoms infrastructure, the sources said, intelligence operatives could capture the calls without installing spyware on the ICC official’s devices.
“If Fatou Bensouda spoke to any person in the West Bank or Gaza, then that phone call would enter [intercept] systems,” one source said. Another said there was no hesitation internally over spying on the prosecutor, adding: “With Bensouda, she’s black and African, so who cares?”
The surveillance system did not capture calls between ICC officials and anyone outside Palestine. However, multiple sources said the system required the active selection of the overseas phone numbers of ICC officials whose calls Israeli intelligence agencies decided to listen to.
According to one Israeli source, a large whiteboard in an Israeli intelligence department contained the names of about 60 people under surveillance – half of them Palestinians and half from other countries, including UN officials and ICC personnel.
In The Hague, Bensouda and her senior staff were alerted by security advisers and via diplomatic channels that Israel was monitoring their work. A former senior ICC official recalled: “We were made aware they were trying to get information on where we were with the preliminary examination.”
Officials also became aware of specific threats against a prominent Palestinian NGO, Al-Haq, which was one of several Palestinian human rights groups that frequently submitted information to the ICC inquiry, often in lengthy documents detailing incidents it wanted the prosecutor to consider. The Palestinian Authority submitted similar dossiers.
Such documents often contained sensitive information such as testimony from potential witnesses. Al-Haq’s submissions are also understood to have linked specific allegations of Rome statute crimes to senior officials, including chiefs of the IDF, directors of the Shin Bet, and defence ministers such as Benny Gantz.
Years later, after the ICC had opened a full investigation into the Palestine case, Gantz designated Al-Haq and five other Palestinian rights groups as “terrorist organisations”, a label that was rejected by multiple European states and later found by the CIA to be unsupported by evidence. The organisations said the designations were a “targeted assault” against those most actively engaging with the ICC.
According to multiple current and former intelligence officials, military cyber-offensive teams and the Shin Bet both systematically monitored the employees of Palestinian NGOs and the Palestinian Authority who were engaging with the ICC. Two intelligence sources described how Israeli operatives hacked into the emails of Al-Haq and other groups communicating with Bensouda’s office.
One of the sources said the Shin Bet even installed Pegasus spyware, developed by the private-sector NSO Group, on the phones of multiple Palestinian NGO employees, as well as two senior Palestinian Authority officials.
Keeping tabs on the Palestinian submissions to the ICC’s inquiry was viewed as part of the Shin Bet’s mandate, but some army officials were concerned that spying on a foreign civilian entity crossed a line, as it had little to do with military operations.
“It has nothing to do with Hamas, it has nothing to do with stability in the West Bank,” one military source said of the ICC surveillance. Another added: “We used our resources to spy on Fatou Bensouda – this isn’t something legitimate to do as military intelligence.”
Secret meetings with the ICC
Legitimate or otherwise, the surveillance of the ICC and Palestinians making the case for prosecutions against Israelis provided the Israeli government with an advantage in a secret back channel it had opened with the prosecutor’s office.
Israel’s meetings with the ICC were highly sensitive: if made public, they had the potential to undermine the government’s official position that it did not recognise the court’s authority.
According to six sources familiar with the meetings, they consisted of a delegation of top government lawyers and diplomats who travelled to The Hague. Two of the sources said the meetings were authorised by Netanyahu.
The Israeli delegation was drawn from the justice ministry, foreign ministry and the military advocate general’s office. The meetings took place between 2017 and 2019, and were led by the prominent Israeli lawyer and diplomat Tal Becker.
“In the beginning it was tense,” recalled a former ICC official. “We would get into details of specific incidents. We’d say: ‘We’re receiving allegations about these attacks, these killings,’ and they would provide us with information.”
A person with direct knowledge of Israel’s preparation for the back-channel meetings said officials in the justice ministry were furnished with intelligence that had been gleaned from Israeli surveillance intercepts before delegations arrived at The Hague. “The lawyers who dealt with the issue at the justice ministry had a big thirst for intelligence information,” they said.
For the Israelis, the back-channel meetings, while sensitive, presented a unique opportunity to directly present legal arguments challenging the prosecutor’s jurisdiction over the Palestinian territories.
They also sought to convince the prosecutor that, despite the Israeli military’s highly questionable record of investigating wrongdoing in its ranks, it had robust procedures for holding its armed forces to account.
This was a critical issue for Israel. A core ICC principle, known as complementarity, prevents the prosecutor from investigating or trying individuals if they are the subject of credible state-level investigations or criminal proceedings.
Israeli surveillance operatives were asked to find out which specific incidents might form part of a future ICC prosecution, multiple sources said, in order to enable Israeli investigative bodies to “open investigations retroactively” in the same cases.
“If materials were transferred to the ICC, we had to understand exactly what they were, to ensure that the IDF investigated them independently and sufficiently so that they could claim complementarity,” one source explained.
Israel’s back-channel meetings with the ICC ended in December 2019, when Bensouda, announcing the end of her preliminary examination, said she believed there was a “reasonable basis” to conclude that Israel and Palestinian armed groups had both committed war crimes in the occupied territories.
It was a significant setback for Israel’s leaders, although it could have been worse. In a move that some in the government regarded as a partial vindication of Israel’s lobbying efforts, Bensouda stopped short of launching a formal investigation.
Instead, she announced she would ask a panel of ICC judges to rule on the contentious question of the court’s jurisdiction over the Palestinian territories, due to “unique and highly contested legal and factual issues”.
Yet Bensouda had made clear she was minded to open a full investigation if the judges gave her the green light. It was against this backdrop that Israel ramped up its campaign against the ICC and turned to its top spy chief to turn up the heat on Bensouda personally.
Personal threats and a ‘smear campaign’
Between late 2019 and early 2021, as the pre-trial chamber considered the jurisdictional questions, the director of the Mossad, Yossi Cohen, intensified his efforts to persuade Bensouda not to proceed with the investigation.
Cohen’s contacts with Bensouda – which were described to the Guardian by four people familiar with the prosecutor’s contemporaneous accounts of the interactions, as well as sources briefed on the Mossad operation – had begun several years earlier.
In one of the earliest encounters, Cohen surprised Bensouda when he made an unexpected appearance at an official meeting the prosecutor was holding with the then DRC president, Joseph Kabila, in a New York hotel suite.
Sources familiar with the meeting said that after Bensouda’s staff were asked to leave the room, the director of the Mossad suddenly appeared from behind a door in a carefully choreographed “ambush”.
After the incident in New York, Cohen persisted in contacting the prosecutor, turning up unannounced and subjecting her to unwanted calls. While initially amicable, the sources said, Cohen’s behaviour became increasingly threatening and intimidating.
A close ally of Netanyahu at the time, Cohen was a veteran Mossad spymaster and had gained a reputation within the service as a skilled recruiter of agents with experience cultivating high-level officials in foreign governments.
Accounts of his secret meetings with Bensouda paint a picture in which he sought to “build a relationship” with the prosecutor as he attempted to dissuade her from pursuing an investigation that, if it went ahead, could embroil senior Israeli officials.
Three sources briefed on Cohen’s activities said they understood the spy chief had tried to recruit Bensouda into complying with Israel’s demands during the period in which she was waiting for a ruling from the pre-trial chamber.
They said he became more threatening after he began to realise the prosecutor would not be persuaded to abandon the investigation. At one stage, Cohen is said to have made comments about Bensouda’s security and thinly veiled threats about the consequences for her career if she proceeded. Contacted by the Guardian, Cohen and Kabila did not respond to requests for comment. Bensouda declined to comment.
When she was prosecutor, Bensouda formally disclosed her encounters with Cohen to a small group within the ICC, with the intention of putting on record her belief that she had been “personally threatened”, sources familiar with the disclosures said.
This was not the only way Israel sought to place pressure on the prosecutor. At around the same time, ICC officials discovered details of what sources described as a diplomatic “smear campaign”, relating in part to a close family member.
According to multiple sources, the Mossad had obtained a cache of material including transcripts of an apparent sting operation against Bensouda’s husband. The origins of the material – and whether it was genuine – remain unclear.
However, elements of the information were circulated by Israel among western diplomatic officials, sources said, in a failed attempt to discredit the chief prosecutor. A person briefed on the campaign said it gained little traction among diplomats and amounted to a desperate attempt to “besmirch” Bensouda’s reputation.
Trump’s campaign against the ICC
In March 2020, three months after Bensouda referred the Palestine case to the pre-trial chamber, an Israeli government delegation reportedly held discussions in Washington with senior US officials about “a joint Israeli-American struggle” against the ICC.
One Israeli intelligence official said they regarded Donald Trump’s administration as more cooperative than that of his Democratic predecessor. The Israelis felt sufficiently comfortable to ask for information from US intelligence about Bensouda, a request the source said would have been “impossible” during Barack Obama’s tenure.
Days before the meetings in Washington, Bensouda had received authorisation from the ICC’s judges to pursue a separate investigation into war crimes in Afghanistan committed by the Taliban and both Afghan and US military personnel.
Fearing US armed forces would be prosecuted, the Trump administration was engaged in its own aggressive campaign against the ICC, culminating in the summer of 2020 with the imposition of US economic sanctions on Bensouda and one of her top officials.
Among ICC officials, the US-led financial and visa restrictions on court personnel were believed to relate as much to the Palestine investigation as to the Afghanistan case. Two former ICC officials said senior Israeli officials had expressly indicated to them that Israel and the US were working together.
At a press conference in June that year, senior Trump administration figures signalled their intention to impose sanctions on ICC officials, announcing they had received unspecified information about “financial corruption and malfeasance at the highest levels of the office of the prosecutor”.
As well as referring to the Afghanistan case, Mike Pompeo, Trump’s secretary of state, linked the US measures to the Palestine case. “It’s clear the ICC is only putting Israel in [its] crosshairs for nakedly political purposes,” he said. Months later, Pompeo accused Bensouda of having “engaged in corrupt acts for her personal benefit”.
The US has never publicly provided any information to substantiate that charge, and Joe Biden lifted the sanctions months after he entered the White House.
But at the time Bensouda faced increasing pressure from an apparently concerted effort behind the scenes by the two powerful allies. As a Gambian national, she did not enjoy the political protection that other ICC colleagues from western countries had by virtue of their citizenship. A former ICC source said this left her “vulnerable and isolated”.
Cohen’s activities, sources said, were particularly concerning for the prosecutor and led her to fear for her personal safety. When the pre-trial chamber finally confirmed the ICC had jurisdiction in Palestine in February 2021, some at the ICC even believed Bensouda should leave the final decision to open a full investigation to her successor.
On 3 March, however, months before the end of her nine-year term, Bensouda announced a full investigation in the Palestine case, setting in motion a process that could lead to criminal charges, though she cautioned the next phase could take time.
“Any investigation undertaken by the office will be conducted independently, impartially and objectively, without fear or favour,” she said. “To both Palestinian and Israeli victims and affected communities, we urge patience.”
Khan announces arrest warrants
When Khan took the helm at the ICC prosecutor’s office in June 2021, he inherited an investigation he later said “lies on the San Andreas fault of international politics and strategic interests”.
As he took office, other investigations – including on events in the Philippines, DRC, Afghanistan and Bangladesh – competed for his attention, and in March 2022, days after Russia launched its invasion of Ukraine, he opened a high-profile investigation into alleged Russian war crimes.
Initially, the politically sensitive Palestine inquiry was not treated as a priority by the British prosecutor’s team, sources familiar with the case said. One said it was in effect “on the shelf” – but Khan’s office disputes this and says it established a dedicated investigative team to take the inquiry forward.
In Israel, the government’s top lawyers regarded Khan – who had previously defended warlords such as the former Liberian president Charles Taylor – as a more cautious prosecutor than Bensouda. One former senior Israeli official said there was “lots of respect” for Khan, unlike for his predecessor. His appointment to the court was viewed as a “reason for optimism”, they said, but they added that the 7 October attack “changed that reality”.
The Hamas assault on southern Israel, in which Palestinian militants killed nearly 1,200 Israelis and kidnapped about 250 people, clearly involved brazen war crimes. So, too, in the view of many legal experts, has Israel’s subsequent onslaught on Gaza, which is estimated to have killed more than 35,000 people and brought the territory to the brink of famine through Israel’s obstruction of humanitarian aid.
By the end of the third week of Israel’s bombardment of Gaza, Khan was on the ground at the Rafah border crossing. He subsequently made visits to the West Bank and southern Israel, where he was invited to meet survivors of the 7 October attack and the relatives of people who had been killed.
In February 2024, Khan issued a strongly worded statement that Netanyahu’s legal advisers interpreted as an ominous sign. In the post on X, he in effect warned Israel against launching an assault on Rafah, Gaza’s southernmost city, where more than 1 million displaced people were sheltering at the time.
“I am deeply concerned by the reported bombardment and potential ground incursion by Israeli forces in Rafah,” he wrote. “Those who do not comply with the law should not complain later when my office takes action.”
The comments stirred alarm within the Israeli government as they appeared to deviate from his previous statements about the war, which officials had viewed as reassuringly cautious. “That tweet surprised us a lot,” a senior official said.
Concerns in Israel over Khan’s intentions escalated last month when the government briefed the media that it believed the prosecutor was contemplating arrest warrants against Netanyahu and other senior officials such as Yoav Gallant.
Israeli intelligence had intercepted emails, attachments and text messages from Khan and other officials in his office. “The subject of the ICC climbed the ladder of priorities for Israeli intelligence,” one intelligence source said.
It was via intercepted communications that Israel established that Khan was at one stage considering entering Gaza through Egypt and wanted urgent assistance doing so “without Israel’s permission”.
Another Israeli intelligence assessment, circulated widely in the intelligence community, drew on surveillance of a call between two Palestinian politicians. One of them said Khan had indicated that a request for arrest warrants of Israeli leaders could be imminent, but warned he was “under tremendous pressure from the United States”.
It was against this backdrop that Netanyahu made a series of public statements warning a request for arrest warrants could be imminent. He called on “the leaders of the free world to stand firmly against the ICC” and “use all the means at their disposal to stop this dangerous move”.
He added: “Branding Israel’s leaders and soldiers as war criminals will pour jet fuel on the fires of antisemitism.” In Washington, a group of senior US Republican senators had already sent a threatening letter to Khan with a clear warning: “Target Israel and we will target you.”
The ICC, meanwhile, has strengthened its security with regular sweeps of the prosecutor’s offices, security checks on devices, phone-free areas, weekly threat assessments and the introduction of specialist equipment. An ICC spokesperson said Khan’s office had been subjected to “several forms of threats and communications that could be viewed as attempts to unduly influence its activities”.
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,’ is was what a senior leader told me.”
Despite the pressure, Khan, like his predecessor in the prosecutor’s office, chose to press ahead. Last week, Khan announced he was seeking arrest warrants for Netanyahu and Gallant alongside three Hamas leaders for war crimes and crimes against humanity.
He said Israel’s prime minister and defence minister stood accused of responsibility for extermination, starvation, the denial of humanitarian relief supplies and deliberate targeting of civilians.
Standing at a lectern with two of his top prosecutors – one American, the other British – at his side, Khan said he had repeatedly told Israel to take urgent action to comply with humanitarian law.
“I specifically underlined that starvation as a method of war and the denial of humanitarian relief constitute Rome statute offences. I could not have been clearer,” he said. “As I also repeatedly underlined in my public statements, those who do not comply with the law should not complain later when my office takes action. That day has come.”
Harry Davies is an investigations correspondent at The Guardian
Bethan McKernan is Jerusalem correspondent for The Guardian
Yuval Abraham is an Israeli investigative journalist who writes for +972 Magazine and Local Call
Meron Rapoport is an Israeli journalist who writes for +972 Magazine and is an editor at Local Call
