Ido Rosenzweig

Ineffective and Illegitimate: Israel’s ICC Espionage

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

The article published yesterday in the Guardian regarding Israel’s attempts to influence the International Criminal Court (ICC) in The Hague is very concerning. According to the article, former Mossad chief Yossi Cohen met with the former ICC Prosecutor in an attempt to influence her in various ways to avoid taking action against Israel. Furthermore, over the past decade, Israel has spied on the ICC and, more recently, on the current Prosecutor, Karim Khan.

It is worth noting that Israel is probably not the only country spying on the ICC. In the past, it was reported that Russia attempted to hack the ICC’s servers and even tried to plant a spy within the Court under false pretenses (an attempt thwarted by Dutch security services). It can be assumed that other countries also try to spy on the ICC, with varying degrees of success. However, until now, there have been no known attempts by other countries to intimidate senior ICC officials so directly.

The relevant background is that at the beginning of 2015, the Palestinians used their upgraded status at the UN as a non-member observer state to join the Rome Statute of the ICC. In 2019, then-ICC Prosecutor Fatou Bensouda announced the opening of a preliminary examination before an investigation, and in 2021, following the Prosecutor’s request, a Pre-Trial Chamber of the ICC determined that Palestine constitutes a “sufficient state” to join the Statute and grant the ICC jurisdiction over crimes committed in Palestinian territories or by its nationals. Recently, the current ICC Prosecutor, Karim Khan, announced that he had submitted a request for arrest warrants against Prime Minister Netanyahu, Defense Minister Gallant, and three senior Hamas officials—Ismail Haniyeh, Yahya Sinwar, and Mohammed Deif—for crimes against humanity and war crimes.

Throughout this period, from 2015 to the present, Israel has refused to engage in official dialogue with the ICC Prosecutor and the Court. Before the discussion on the ICC’s jurisdiction, many countries and non-state organizations submitted opinions for or against the jurisdiction, but Israel refrained from doing so to avoid giving the appearance of recognizing the Court’s jurisdiction.

One of the conclusions that can be drawn from the publication is that if the result of ten years of covert and direct activity is that former Prosecutor Bensouda decided in 2019 to open an investigation, the Pre-Trial Chamber decided in 2021 that it has jurisdiction, and the current Prosecutor Khan recently requested arrest warrants against Prime Minister Netanyahu and Defense Minister Gallant (and it is very likely that there will be more requests for arrest warrants in the future), the activity did not achieve its goal.

It seems that it would be better for the Israeli government to invest its resources in directly addressing the challenges rather than in indirect and ineffective efforts. The ICC’s constitution provides several ways for a state to demonstrate that it is handling the alleged crimes within its jurisdiction, thus negating the ICC’s authority to address them, or to request a six-month deferral to conduct a genuine and independent investigation of the alleged crimes. This principle is called the principle of complementarity, which is designed, among other things, to encourage states to deal with suspected crimes themselves. Another way is to appeal the ICC’s jurisdiction over the relevant crimes, including challenging the 2021 Pre-Trial Chamber’s decision.

There are other ways, but for most of them, Israel will need to engage directly with the ICC and cannot continue to focus solely on exerting pressures, legitimate or otherwise, to influence the Court and the Prosecutors externally. Certainly, a state that prides itself on an independent judicial system, the rule of law, and the title of the only democracy in the Middle East should stop intimidating the professional organs of the ICC. If there is one thing that the recent publications teach us, it is that these elements do not succumb to pressure, and such pressures may even motivate them further.

About the Author
Dr. Ido Rosenzweig is the co-founder and chairman of ALMA - Association for the Promotion of International Humanitarian Law, and the Director of Research (Terrorism, Belligerency, and cyber) at the Minerva Center for the Rule of Law under Extreme Conditions in the University of Haifa [Photo by Flash90]
Related Topics
Related Posts