The nine-year war against the International Criminal Court

Fatou Bensouda, former chief prosecutor of the ICC, who was targetted by Israeli state agencies (Photo: Wikimedia Commons)

The recent decision by the chief prosecutor of the International Criminal Court (ICC), Karim Khan, to seek arrest warrants for Israeli Prime Minister Benjamin Netanyahu, his defence minister, Yoav Gallant, and leaders of Hamas, was a significant blow against the Israeli regime and those defending the war on Gaza. Although the ICC has limited powers internationally as an institution, its decision in the context of the current genocidal war being waged by the Israeli regime is extremely significant, although it will not in itself alter the outcome of this brutal conflict. The ICC, established in 2002, has 124 member states. However, arrest warrants can only be served or enacted in those countries that have signed up to the court. Israel, the US, Russia, China and others are not members of the ICC.

The decision of the Palestinian Authority to join it in 2015 was regarded as an “act of diplomatic terrorism” and crossing the red line by the Israeli regime. Following that decision the “war” by Israel against the ICC was launched. One former Israeli defence official is quoted as saying, “To be recognised as a state by the UN is nice. But the ICC is a mechanism with teeth”. They feared the arrest of Israeli government officials if travelling to ICC member states and then them being put on trial in The Hague.

Following the ICC decision to seek to issue arrest warrant for Netanyahu and Gallant, an in depth special investigation by the British Guardian and Israeli based magazines, +972 and Local Call, has exposed devastating material about the nine year “war”. The assault has involved the Israeli secret services Mossad and Shin Bet and the Trump administration in the US in a ongoing campaign to undermine, discredit and wreck the ICC which has been a thorn in the side of some western rulers and their allies.

Surveillance, hacking, threats and intimidation have been deployed in an operation worthy of a John Le Carre spy novel. Fact is often more gripping or revealing than fiction. Mossad, Shin Bet (the domestic spy agency) and Aman (the Israeli military intelligence directorate and its cyber-intelligence division), and Unit 8200, were all involved. These Israeli secret services are amongst the most ruthless of all capitalist states. Yet all are capable and have used similar methods as witnessed in ‘extraordinary extraditions’ and assassinations they have carried out.

In this case they targeted numerous ICC officials, including Khan and his predecessor, Fatou Bensouda. The surveillance has continued until recent months giving Netanyahu advanced warning of the prosecutors’ intentions. Bensouda, who as chief prosecutor opened the ICC case on Palestine in 2015, eventually leading to the announcement of seeking the arrest warrants.

Since it was established in 2002, the ICC has been used by many western capitalist regimes as a means of prosecuting those accused of being responsible for some of the worlds’ worst atrocities.  It has charged the former Sudanese president Omar-al-Bashir, the late Libyan president Muammar Gaddafi and more recently Vladimir Putin. However, Khan’s decision to seek warrants to prosecute Netanyahu and Gallant is the first time it has taken action against a key western ally. Khan claims he was put under intense pressure not to proceed. He claims one western leader bluntly told him: “This court is built for Africa and for thugs like Putin” not, by implication, allies of the western powers like Mohammed bin Salam – the Saudi crown prince – who was implicated in the killing of the journalist Jamal Khashoggi.

Fatou Bensouda was a Gambian lawyer prior to being elected as ICC chief prosecutor in 2015. She rapidly opened a case in legalese on “the situation in Palestine”. Following this decision, two men obtained her address in The Hague and tuned up claiming said they wanted to deliver a letter from a German woman who wanted to thank her. They handed her an envelope containing hundreds of US dollars in cash and a note with an Israeli phone number.

Officials admitted that the Israeli secret services regularly spied on phone calls made by Bensouda and her staff, especially to Palestinians from the West Bank that she was prohibited from visiting along with Gaza and East Jerusalem.

In a blatant display of racism, one official boasted they had no hesitation in monitoring her calls as “With Bensouda, she’s black and African, so who cares.”

Mossads’ director between 2019 and early 2021, Yossi Cohen increased efforts to try and persuade her not to proceed with the investigation. He increasingly called her and paid visits to her. On one occasion Cohen visited her at New York hotel suit, where she had a meeting scheduled there with the then Democratic Republic of Congo President, Joseph Kabila, which she was also investigating. At one point, her officials were asked to leave the meeting. Then from behind a door, Yossi Cohen entered the room unannounced and ambushed her.

Initial “friendly” attempts to persuade her to drop the case failed and then not so subtle threats began to be made about her future career, her security and that of her family. They monitored her husband and claimed they had a cache of transcripts on him being implicated in a sting operation, some of which was circulated to western diplomatic circles in an attempt to discredit Bensouda.

In March 2020, three months after Bensouda had referred the Palestinian case to the pre-trial chamber, an Israeli government delegation reportedly held discussions in Washington with US officials about a “joint Israeli-American struggle” against the ICC. Trump was in power and more co-operative with the Israelies than his Democratic predecessor, Barrack Obama, who was more cautious. These developments illustrate the character of regimes led by the likes of Netanyahu, Trump, Bolsonaro or Modi, which the more far-sighted sections of the bourgeoisie lost control of. These regimes, in turn, reflect the character of the era capitalism is now in.

Not accidently, days before the New York meeting, Bensouda was authorised by ICC judges to pursue another case investigating war crimes committed in Afghanistan by the Taliban and also by Afghan and US military forces. The US under Trump had its own campaign against the ICC and had imposed US economic sanctions on Bensouda and one of her top officials.

Khan took over as chief prosecutor in June 2021. Initially the Israelies hoped he would be a softer touch than Bensouda. He had after all defended the former Liberian president Charles Tayler and was viewed as being more cautious. One Israeli official said there was “cause for optimism” but then added the 7th October attack “changed that reality”. Khan then visited Gaza and was on the Rafah border crossing by the end of the third week of Israel’s assault on Gaza. Following that he decided to proceed with the case and said that 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.

These revelations of the drama which has unfolded in the ICC and attempts to wreck it by Israeli secret services and the US illustrate much about the character of modern dystopian capitalism and its various state machines and institutions. Socialists have no illusions in capitalist institutions like the ICC. They cannot resolve the causes of such conflicts or offer real justice for those who suffer from the war crimes committed under capitalism. However, what takes place within such institutions and the struggles between different wings of the ruling classes and the monsters of capitalism have unleashed are important and extremely significant. Socialists and in particular mass socialist workers’ parties would use such revelations to expose capitalism and its leaders, and put the whole system on trial before the public opinion of working people and the oppressed internationally.

As has been seen historically revelations of espionage, surveillance, cover ups or corruption can provoke social turmoil and upheavals. In France in 1894, the Dreyfus Affair brought the country to the brink of a social uprising and conflict. It was the trigger that unleashed the underlying social tensions and conflicts. Although different to what has happened at the ICC, there is a parallel in what both reveal. Alfred Dreyfus was a young French military officer falsely accused of passing military secrets to the German state. It was known and revealed that the real culprit, Ferdinand Esterhazy, had walked into the German embassy in Paris and offered to sell military secrets to the military attaché. Dreyfus was Jewish and the victim of vicious anti-semitism within the military. Different to the events at the ICC, yes, but it illustrates the importance of such events. What has been revealed in the ICC has yet to fully impact in Israel and Palestine or internationally, but it will as the horrific conflict in Gaza, Palestine and Israeli society unfolds.


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June 2024