[KurtFF8]

Source

The chief prosecutor of the international criminal court has said he is seeking arrest warrants for senior Hamas and Israeli officials for war crimes and crimes against humanity, including the Israeli prime minister, Benjamin Netanyahu, and his defence minister, Yoav Gallant.

Karim Khan said his office had applied to the world court’s pre-trial chamber for arrest warrants for the military and political leaders on both sides for crimes committed during Hamas’s 7 October attack and the ensuing war in Gaza.

He named Yahya Sinwar, the Hamas chief in Gaza, and Mohammed Deif, the commander of its military wing, considered to be the masterminds of the 7 October assault, as well as Ismail Haniyeh, the leader of the group’s political bureau, who is based in Qatar, as wanted for crimes of extermination, murder, hostage-taking, rape, sexual assault and torture.

In an extraordinary rebuke of Israel’s treatment of Palestinians and its conduct in the war in Gaza, Netanyahu and Gallant are accused of extermination, causing starvation as a method of war, the denial of humanitarian relief supplies and deliberately targeting civilians. Monday’s statement notably does not include any Israel Defense Forces (IDF) officials, such as its chief of staff, Lt Gen Herzi Halevi, focusing instead on political decision-making.

Khan, the British ICC prosecutor, must request the warrants for the Hamas and Israeli suspects from a pre-trial panel of three judges, who take on average two months to consider the evidence and determine if the proceedings can move forward.

The ICC has previously issued warrants for Russia’s Vladimir Putin, Muammar Gaddafi of Libya, the Ugandan warlord Joseph Kony and the former president of Sudan Omar al-Bashir, but no leader of a “western-style” democracy has ever been issued a warrant.

While there is no imminent likelihood of prosecution, since Israel is not a member of the court, ICC warrants could put Israeli officials at risk of arrest abroad, further deepening the country’s growing international isolation over its conduct in the war in Gaza.

The move also presents fresh challenges for Israel’s western allies, who are already struggling to reconcile support for the Jewish state with growing evidence of war crimes in the seven-month-old conflict and respect for the post-second world war rules-based order.

Netanyahu described the prosecutor’s accusations against him as a “disgrace”, saying: “I reject with disgust The Hague prosecutor’s comparison between democratic Israel and the mass murderers of Hamas.

“With what audacity do you dare compare the monsters of Hamas to the soldiers of the IDF, the most moral army in the world?”

Joe Biden, the US president, described the move as “outrageous” in a statement, adding: “Whatever this prosecutor might imply, there is no equivalence – none – between Israel and Hamas. We will always stand with Israel against threats to its security.”

About 1,200 people, mostly civilians, were killed on 7 October, and about 35,000 people have been killed in the war in Gaza, according to the Palestinian health ministry, which does not differentiate between civilian and combatant deaths.

“The world was shocked on 7 October when people were ripped from their homes, from their bedrooms in different kibbutzim … people have suffered enormously,” Khan told CNN on Monday. “We have a variety of evidence to support the applications we’ve submitted to the judges.”

“These acts demand accountability,” Khan’s office said in a statement.

The world’s top court decided in 2021 that it had a mandate to investigate violence and war crimes committed by Israel and Palestinian factions in events dating back to 2014, although Israel is not a member of the court and does not recognise its authority. Many in Israel have long maintained that the UN and associated bodies are biased against the Jewish state.

Khan visited the Egyptian side of the Rafah border crossing into Gaza in late October, and Israel and the West Bank in December, and had made clear that the scope of his office’s investigation would be expanded to include 7 October and its aftermath.

Last month, Netanyahu was publicly panic-stricken by the prospect of an ICC prosecution, and reportedly appealed to his ally Biden to intervene in any potential international legal action against Israel.

The ICC investigation into Palestine was opposed by the US and UK before it opened in 2021, and both states have supported Israel’s right to defend itself even as the scale of death and destruction in Gaza has led to protests and political fallout at home.

“We reject the prosecutor’s equivalence of Israel with Hamas,” said the US secretary of state, Antony Blinken. “The ICC arrest decisions could jeopardise efforts to reach a ceasefire agreement, hostage deal and to increase humanitarian aid in Gaza.”

A UK government spokesperson said that London “does not believe that seeking warrants will help get hostages out, get aid in, or deliver a sustainable ceasefire”.

Daniel Machover, a co-founder of Lawyers for Palestinian Human Rights, said: “This is massive news, albeit the wait to get to this point has been too long. The rule of law must now be upheld. The list of potential Israeli defendants is insufficient and the international crimes associated with settlements in the West Bank are notably absent but hopefully the ICC chamber will grant the application as soon as possible and more charges and defendants will be added.

“While not a single life has yet been saved or injury prevented through the application of the rule of criminal law, let’s hope for a deterrent effect from now.”

Condemnation of Khan’s decision from across the Israeli political spectrum was swift. The Israeli opposition leader, Yair Lapid, called the ICC’s actions a “disaster”.

Benny Gantz, a former military chief and member of Israel’s war cabinet alongside Netanyahu and Gallant, criticised the ICC’s announcement, saying Israel fought with “one of the strictest” moral codes and had a “robust judiciary capable of investigating itself”.

Khan suggested heavily in his statement that Israel’s judicial system “shields suspects”. Last year’s conviction rate for Palestinians tried in Israeli military courts was 96%, while fewer than 1% of complaints against Israeli soldiers ended in a conviction, according to the US Department of State’s annual human rights report.

Hamas, too, was critical of Khan’s announcement. The ICC prosecutor’s decision “equates the victim with the executioner”, the senior Hamas official Sami Abu Zuhri told Reuters.

Israel’s foreign minister, Israel Katz described the chief prosecutor’s decision as “a historic disgrace” that would be “remembered forever”.

The US Republican party is all but certain to pursue sanctions against members of the ICC as a result of Khan’s announcement; a group of a dozen Republican senators wrote a letter earlier this month warning his office: “Target Israel and we will target you.”

Sanctions were levied by the Trump administration over the court’s investigations into Israel and US actions in Afghanistan, but later reversed by Joe Biden. In 2021, Khan decided to drop the US from the ICC’s Afghanistan file.

In his statement, Khan made clear he was aware of the potential ramifications of the decision.

“If we do not demonstrate our willingness to apply the law equally, if it is seen as being applied selectively, we will be creating the conditions for its collapse,” he said.

“Now, more than ever, we must collectively demonstrate that international humanitarian law, the foundational baseline for human conduct during conflict, applies to all individuals and applies equally across the situations addressed by my office and the court. This is how we will prove, tangibly, that the lives of all human beings have equal value.”

Israel is facing two other major international legal cases over its actions towards Palestinians.

In December, South Africa filed a case against Israel at the international court of justice (ICJ), alleging that its campaign in Gaza breached the UN’s genocide convention, set up in 1948 in the aftermath of the Holocaust.

Israel denies those charges. The ICJ only hears cases between states, so it has no jurisdiction over Hamas.

Impressive move by the ICC prosecutor. Let's hope this leads to action against the regime in Israel.

[Negotiator]

Obviously it wont lead directly to action but it will increase the pressure on Israel and its allies (mostly the USA, but also UK and Germany) even further.

I wouldnt call the government of Israel a regime, though I guess one could question its legitimacy on basis of Israels apartheit.

[Sherlock Holmes]

From The Guardian:

I’m an Israeli critic of Zionism. Why did border agents detain me at a US airport?

My initial attempt to find out why I was stopped was disregarded. It was clear that the agents were asking the questions and my role was to answer them, and not the other way around. So until today, at least officially, I did not receive any explanation for the incident.

I was held for two hours. The first round of questions was about my views on Hamas. Then the agents wished to know whether I thought Israel’s actions in the Gaza Strip amount to genocide and what I think of the slogan “Palestine should be free from the river to the sea”. I said yes, I do think Israel is committing genocide. As to the slogan, I said that in my view people anywhere in the world should be free.

Then the agents interrogated me about who I know in the Arab American and Muslim American community. They asked me to provide them with telephone numbers, took my phone away for quite a long period and asked to wait until they made some phone calls before they let me go.

[Sherlock Holmes]

[Deutschmania]

This morning, International Criminal Court Prosecutor Karim A.A. Khan announced he was seeking arrest warrants for Israeli Prime Minister Benjamin Netanyahu, Israeli Defense Minister Yoav Gallant, and three Hamas leaders—Yahya Sinwar, Mohammed Diab Ibrahim Al-Masri, and Ismail Haniyeh—for alleged war crimes.

If a panel of three ICC judges approve the warrants, Netanyhau and Gallant could face charges for crimes against humanity, including the starvation of civilians. The Hamas leaders could face charges including murder, taking hostages, and torture, related to actions during and following the October 7th attacks that resulted in the deaths of approximately 1,200 Israelis and the kidnapping of more than 250 hostages, including some Americans.

Israel, Hamas, and the United States all condemned the news. President Biden called the announcement “outrageous.” Netanyahu said that in seeking the warrants, Khan had created a “twisted and false moral equivalence between the leaders of Israel and the henchmen of Hamas” and that the ICC was denying Israel’s right to self-defense. Hamas said in a statement the ICC announcement “equates the victim with the executioner.”

Khan refuted the idea that anyone was being unfairly targeted, telling CNN in an exclusive interview announcing the news that “this is not a witch hunt.”

“Nobody is above the law,” Khan added. “No people…have a get out of jail free card, have a free pass to say, ‘well the law doesn’t apply to us. This afternoon, I called up David Bosco, executive associate dean and professor in the Department of International Studies at Indiana University Bloomington, to better understand the significance and ramifications of the news from the ICC. Bosco is the author of Rough Justice: The International Criminal Court in a World of Power Politics, and he has written about the relationship of the ICC to Israel and Palestine. We spoke about the meaning, and limits, of today’s announcement.

This interview has been lightly condensed and edited.

I think when most people hear “arrest warrant,” they assume imminent prosecution. But that’s not quite the case here—can you explain what is actually happening right now?

The first important point is that all that’s happened right now is that the prosecutor has requested there be arrest warrants. Those have to be approved by a three-judge panel at the ICC. There’s no arrest warrant issued until those judges decide. And that’s a process that could take anywhere from a couple of weeks, to maybe even a couple of months.

And then if we do get arrest warrants—the ICC has no police force, no SWAT team that can go in and arrest people. So long as [the] people [prosecuted] are in Palestine or in Israel, it’s very unlikely that they would appear at the Hague.

Can you say more about the significance of this decision and what might have motivated the ICC prosecutor to make this announcement?

I think the prosecutor really realizes how controversial charges—particularly the charges against Israeli leaders—are going to be, and is trying to provide as much support, and indicate that it’s kind of not just his decision. So at the same time that he released his statement, there was almost an amicus brief from a group of international law experts supporting the prosecutor’s decision. That’s also something unusual; the prosecutor doesn’t usually have an expert panel backing him up on his decisions.

So what tangible impacts, if any, will these warrants have on the leaders’ daily lives?

I think it’s going to vary. For the leaders of Hamas, I don’t think there will be much impact, because either these people are in Gaza or some of them are traveling to other parts of the region, but not to countries that are ICC members.

Now for Netanyahu and Minister Gallant, it would be a different situation, because these are people who would hope to travel widely in representing Israel. If an arrest warrant ultimately is issued, that means that Netanyahu and Gallant would have to be very careful about where they travel, and traveling to an ICC member state will put them in significant risk, because ICC member states have a legal obligation to detain somebody who’s been charged by the court.

I saw the Israeli Foreign Minister has said he’s going to urge other foreign ministers not to comply with the warrants if they are issued. Is it likely that Israel could successfully exert pressure on ICC member states not to enforce this, or do you think the pressure of being a member state would compel relevant countries to comply?

We’ve already seen the United Kingdom—and I expect we’ll see more ICC member states—expressing opposition to this move. But there’s a big difference between saying, “we think the prosecutor got it wrong here,” and saying, “if an arrest warrant comes out, we’re not going to obey it.” That would be a much bigger step, and it would be very hard for many of these countries to take that step, because then you are really kind of breaching your obligations to the ICC. And many of the European countries were among the most supportive of creating the ICC, so I think that would be a very hard step for them.

Can you also provide a little background context on how it is that both the US and Israel are not member states of the ICC? Historically, why did that happen?

US policy is actually quite responsible for the creation of the ICC in a lot of ways. The US was the biggest supporter of the Nuremberg trials, it was the biggest supporter of the Yugoslav war trials, and the Rwanda Tribunal. And those things were ultimately what led to the creation of the ICC. So I don’t think it’s an exaggeration to say that you wouldn’t have the ICC in historical terms if it hadn’t been for US policy and US advocacy of international justice.

But the US has always had this kind of dual personality, where it really likes international law in some respects, but gets very nervous about accepting the jurisdiction of an international court. So the US balked back in the 1990s, when the ICC was being negotiated, and decided they did not want to ultimately be a part of the court once it became clear they weren’t going to have control of the court’s docket.

The US is just not comfortable with the court exercising jurisdiction over Americans, and Israel has felt very much the same way.

Both sides have alleged that it’s unfair for their leaders to be the subject of possible arrest warrants. From a symbolic perspective, is the ICC equating the leaders of Israel with the leaders of Hamas? What kind of signal is the ICC trying to send here?

I think what the ICC would say is, “we’re not in the business of setting up equivalencies.” There are moral and historical questions that weigh on how you see Hamas compared to how you see the government of Israel. And I think what the ICC would say is: That’s not our job; our job is to simply assess whether there are individuals who have committed war crimes or crimes against humanity—saying that Netanyahu may have committed war crimes is not the same thing as saying that Netanyahu is the same as the leader of Hamas. But inevitably, in the public discourse, people tend to say: “Whoa, the ICC is treating them all the same.”

If you think about World War II, for example, the Nuremberg trials, of course, focused on the crimes of Nazi Germany. But there were undoubtedly war crimes committed by the US and by the British during World War II. It so happened that the Nuremberg trials were set up so they could only consider the crimes of the Axis powers, but it’s probably not inaccurate to say that Franklin Roosevelt or Harry Truman committed war crimes. That doesn’t mean that they’re equivalent to Nazi leaders. So I think the ICC would say: That’s a judgment for historians, and ethicists and things—that’s not our job. Our job is to simply decide if there were crimes committed and investigate and prosecute those.

Israeli officials have continually tried to justify the strength of their response and the conditions in Gaza by saying they’re acting in self-defense. Do the charges that the Israeli leaders could face if these warrants are issued negate that argument?

No. Because basically in international law, there’s a divide between what’s referred to as jus ad bellum—that’s Latin for the right to use force. And how you use force, jus in bello. And those two are considered to be separate. So you can say that Israel was justified in using force in Gaza as a matter of self-defense. And that might be right from a legal perspective, when it comes to the right to use force. But that is a totally separate question from the question of what you do during the conduct of hostilities. And the same standards are supposed to apply to countries whether they are the aggressor or whether they’re the one defending. So whether they are just in their war or unjust they’re going to be subject to the same rules about how you use force. You can’t just say: We’re acting in self-defense and therefore the rules don’t apply to us.

Now, there are a bunch of really hard questions that prosecutors—if this ever reaches trial—are going to have to show, like, for example, “how much humanitarian aid are you obliged to let in during a conflict?” These are complicated questions where you’re balancing the military necessity versus the humanitarian impact.

But the short answer is: no, the fact that Israel might be acting in self-defense doesn’t absolve it from legal scrutiny.

Secretary of State Antony Blinken said that this could jeopardize ongoing efforts to reach a ceasefire deal. What’s your response to that, do you agree?

He’s pointing to a dilemma that has often been identified around international criminal justice, which is that there may be simultaneously the need to try to develop a pathway out of the conflict at a diplomatic level while there is a need to try to pursue justice and investigate crimes.

It’s hard to judge how accurate that is. There is a mechanism for trying to get out of that dilemma, if you really think it is a dilemma. The UN Security Council actually has the power to freeze an ICC investigation, because I think that people drafting the ICC statute didn’t realize that there might be a situation where we need to prioritize diplomacy over an investigation.

Just so I understand, is the thought that Israeli leaders would be unwilling to travel to neutral ground because they’re worried about the threat of arrest? How would the arrest warrant practically impact their decision about whether or not to engage in diplomacy?

That’s a very good question, and I don’t think it’s very clear. I think if there were to be negotiations, it would be in a place like Egypt or, you know, somewhere that’s not an ICC member state. So it really wouldn’t be an issue in terms of exposure to arrests—so I don’t think that’s the issue.

I think it’s more that the kind of outrage, honestly, that Israeli officials might feel, having been targeted in this way, that would make them less willing to engage in a diplomatic [manner]. But I don’t know that that’s right. I’m skeptical that that argument is necessarily the case here, that the justice process is necessarily getting in the way of diplomacy. And Israel, certainly, and the US, have an incentive to kind of exaggerate, I would say, that possibility.

How do you think this—the issuing of the warrants for Israeli leaders, and the US’s strong condemnations of it—impacts the perception of the US, considering that one of this country’s closest allies is being pursued by the ICC alongside the group responsible for carrying out the Oct. 7 attacks and Vladimir Putin, who was charged by the ICC for his role in the war in Ukraine?

I think the perception of the US on these issues is that the US engages in double standards when it comes to international justice. I think that perception is pretty baked into the view of the US, particularly on these issues, so I don’t think the fact that some US officials were very positive about the charges against Putin are now outraged by the charges against Israeli officials [is surprising]. I think that’ll just kind of reinforce and confirm that sense that ultimately, it all comes down to politics.

At this point, the ICC news is largely symbolic—there won’t be any imminent arrests or prosecutions—and the International Court of Justice case brought by South Africa alleging Israel is committing genocide in Gaza will take years to play out. So what purpose would you say these international institutions have when they can’t take any imminent action to address the humanitarian crisis that’s unfolding as we speak? Is there any reason for people who are concerned about the humanitarian crisis in Gaza to actually put faith in these institutions?

The short answer is I don’t think people should have a lot of faith in the ability of international judicial institutions to deal with a situation like this, or to really meaningfully impact a situation like this. Just like when we saw the arrest warrants against Putin and other Russian officials—within a few weeks, those were pretty much forgotten, and the war has continued, and there’s no sign it’s made any difference. So that is the reality: often times international law and international judicial institutions are going to have very little impact on these ongoing crises.

That’s not the same as saying they’re irrelevant. Because we have to also think about the very long-term, gradual impact on norms of behavior in the international system. And you have to think about what incentives are being created for other national leaders down the road. And that is hard to judge, but international law may not be as meaningless as it sometimes seems in the midst of a crisis like this.

The ICC is a very new creation. The idea that in the midst of an ongoing conflict, you’re having charges brought against officials for that conflict—this is a very new experiment. So that’s why, I think, we have to be careful about saying, “well, it’s not having an immediate impact, and therefore it’s irrelevant.” The international legal system is in a very gradual development toward what we hope, ultimately, will be a well-functioning system, that is really now a kind of embryonic system.

The way to be somewhat optimistic about it is the question is not: “Are these moves by the ICC going to change the Gaza conflict?” It is: “Are we making one step in the process that 20, 25 years down the road is really going to be impacting the way that leaders think?”

Do you have an answer to that question at this point?

I think it’s really kind of up in the air. I don’t think we know how this experiment is going to play out. Mother Jones

[KurtFF8]

Ireland, Spain and Norway to recognise Palestinian state

Irish leader declares ‘unequivocal support’ for two-state solution, as Israel recalls ambassadors from Dublin, Madrid and Oslo

Looks like increasing tensions between Europe and Israel. Yet the USA will stand behind Israel seemingly no matter what.

[skinster]

Talk on the warrants starts at 11 minutes:

Much has been made of the fact that the ICC's chief prosecutor, Karim Khan, consulted a panel of legal experts that unanimously supported his decision to apply for arrest warrants for Netanyahu and his defence minister, Yoav Gallant.

The most famous of those experts is Amal Clooney.

Less noticed is that the panel also included Theodor Meron, who was a pivotal legal authority in Israel's foreign ministry at the time Israel occupied the West Bank, East Jerusalem and Gaza in 1967.

As disclosed in Gershom Gorenberg's book The Accidental Empire (2006), it was Meron who advised the Israeli government in a secret memo at that time that any settlements it built in the newly occupied Palestinian territories would be flagrantly illegal under International law – a war crime.

Every Israeli government since 1967 has lied that the legal advice it received from its own officials was that the settlements were not illegal.

Some 57 years later, Meron has again pointed out the criminal nature of Israel's actions towards the Palestinians. And once again, Israeli leaders are lying through their teeth in denying that they are systematically breaking international law in Gaza.

Just as Israeli leaders knew they were committing war crimes in 1967, they know they are committing even grosser crimes against humanity now. And every western leader knows this too. They just don't want you to know.
Post

Reminded of this also

[wat0n]

What's your opinion on the ICC charging Hamas leaders for using rape as a weapon of war?

[Rich]

Personally i would like to see Hamas, Israel and Russia coming together to mount joint operations against the ICC. In my book the ICC is a terrorist organisation and should be dealt with appropriately.

[Deutschmania]

As it has turns out , Israel has been spying on the ICC for years now .

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.” 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. 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.” 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. 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. 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.” 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.” The Guardian