Tackling Israel’s Interference with the International Criminal Court

On 8 October 2024, The Guardian reported that a criminal complaint had been filed in the Netherlands in connection with the shocking (yet unsurprising) revelations published by The Guardian, +972 Magazine, and Local Call on 28 May concerning hostile state activities targeting the International Criminal Court (ICC). The publications emerged just one week after Prosecutor Karim Khan’s announcement of his decision to apply for arrest warrants in relation to the Situation in the State of Palestine. They asserted that Israel had engaged in a nine-year-long campaign to undermine the ICC’s investigation into the alleged core crimes in Palestine.

Acting on behalf of twenty Palestinians, most of whom reside in the West Bank, with two holding U.S. citizenship, a lawyer from the Amsterdam-based Prakken d’Oliveira law firm requested the Dutch prosecution service to investigate the allegations of harassment, intimidation, pressuring, and defamation of ICC staff, particularly members of the Office of the Prosecutor, along with their family members (see press release and this thread with the summary).

In this blog post, I will show why this criminal complaint is both timely and viable and should lead to the expeditious opening of an investigation by the Dutch prosecution service. The political response by the Dutch and other governments of ICC States so far is insufficient to address the problem of interference with the ICC investigation in the Situation in the State of Palestine. In addition to any diplomatic and security measures, it is urgent for the Netherlands, as the ICC’s Host State and the State where the alleged interference took place, to tackle the systemic subversion of justice in that Situation by means of criminal law.

Suspects, crimes, and jurisdiction

 The complaint regarding improper influence on the ICC investigation was filed with the Dutch prosecution against officers of Israel’s security apparatus and/or persons acting upon the orders of the State of Israel. Without listing all the potential suspects individually, the filing specified that, according to The Guardian’s sources, Israel’s national security advisers, Shin Bet, the army intelligence directorate Aman, and the cyber-intelligence division Unit 8200 had been involved in the operations targeting the ICC which commenced in January 2015 when Palestine accepted the Court’s jurisdiction and deposited its instrument of accession to the ICC Statute. Among those named in the complaint is former Mossad chief Yossi Cohen, who allegedly played a direct role in stalking the second ICC Prosecutor, Fatou Bensouda. Cohen is also alleged to have threatened Bensouda with consequences for her personal safety and career if she pursued the investigation in the State of Palestine.

In demarcating the scope of the potential Dutch investigation into interference with the ICC, the complaint specifically refers to a threatening letter sent by a group of twelve republican US Senators to the ICC Prosecutor Karim Khan on 24 April 2024. They tried to browbeat him with terminating all US support for the ICC, imposing sanctions on its employees and associates, and barring them and their families from entering the US if arrest warrants were requested for Israeli Prime Minister Benyamin Netanyahu and other officials (‘Target Israel and we will target you… You have been warned’). As the complaint notes, information on the progress of the ICC’s investigation in Palestine intercepted by Israel’s security agencies was passed on to Israel’s ministries of foreign affairs, justice, and strategic affairs. This extends the scope of the potential investigation to key figures within those organisations. The complaint asserts that no immunity under international law applies to those categories of potential suspects. By implication, this excludes—for the duration of his term—Prime Minister Netanyahu, whose office, according to the reports, authorised the ICC surveillance operation, issued instructions on monitoring the Court officials, and took a keen interest in the results of the spying operation.

The conduct of Israeli officials, as reported by journalists, could constitute offences against the administration of justice under Article 70(1) of the Rome Statute, as well as crimes under Dutch law. As required by Article 70(4)(a) of the ICC Statute, the Netherlands extended the provisions of its Criminal Code concerning offences against the integrity of its investigative and judicial process to the ICC Statute’s Article 70 offences when committed on its territory or by its nationals. Therefore, articles 177-180, 189, 200, 207a, 285a and 361 of the Dutch Criminal Code (Wetboek van Strafrecht, Sr) proscribing various forms of interference with the integrity of justice in the Netherlands are applicable to equivalent conduct directed against the administration of justice by the ICC.

The Netherlands can assert jurisdiction over such crimes based on the territoriality principle (Article 2 Sr). Since the ICC’s investigation in the Situation in the State of Palestine is led and coordinated from the Court’s seat in The Hague, the relevant conduct or some of the elements of the alleged crimes targeting the Office of the Prosecutor took place on Dutch soil. For instance, in February 2015, two unidentified individuals delivered an envelope containing cash and a note with an Israeli phone number to Prosecutor Bensouda’s residence in The Hague. The calls and digital communications of the ICC were likely intercepted in Israel but outgoing from the Netherlands. These episodes (and more) clearly fall within Dutch territorial jurisdiction. Additionally, jurisdiction could be established through active nationality for Dutch nationals or permanent residents (Article 7(2)(b) and (3) Sr specifically mentions crimes against the administration of justice by the ICC) and a request to the Netherlands to take over prosecution upon request by the ICC in due course (Article 8b(4) Sr; Article 70(4)(b) ICC Statute).

Political pressure and political response

Already in the lead-up to the 20 May 2024 applications for arrest warrants against the Israeli Prime Minister, Defence Minister, and three Hamas leaders, the ICC Office of Prosecutor faced unrelenting pressure and overt intimidation. Besides the US senators’ letter, the blatant censure took the form of video addresses by Netanyahu himself reacting to the rumours spread by the Israeli media that the warrant applications against senior war cabinet members were imminent. This pressure was likely just a small—and public—part of recent efforts by both U.S. and Israeli interlocutors to influence the Office of the Prosecutor.

On 3 May 2024, the Office of the Prosecutor issued a public notice, warning those attempting to interfere with the Court that such actions could constitute offenses against the administration of justice under Article 70 of the Statute and must cease immediately. The statement did not refer to any incidents or situations in particular, but it was clear from the context that said pressure was exerted in connection with the ICC investigation in Palestine. The Prosecutor’s warning was followed by a statement on May 17 from the Presidency of the Assembly of States Parties (ASP) in support of the independence and impartiality of the Court. Reacting to public statements (presumably, by the Republican US Senators), the ASP Presidency expressly mentioned the Situation in the State of Palestine. It ‘regretted’ any attempts to undermine the Court’s independence and reminded that some statements may constitute threats of retaliation.

After the revelations of Israel’s interference with the ICC became public, the ASP Presidency did not issue any further statements or take measures which would be public knowledge, to address the issue within its mandate as the ICC governance body. The ASP Bureau, for example, could have called a special session to discuss necessary measures, which it may do on its own initiative or upon request of one-third of the States Parties (Article 112(6) ICC Statute; Rule 8 of the ASP Rules of Procedure). Such a session could have led to the establishment of a commission of inquiry or an independent expert panel to comprehensively investigate allegations of interference, assess security threats (particularly cyber-security risks), and submit recommendations to the Assembly.

Responsibility for safeguarding the ICC’s independence and the right of initiative also lies with the States Parties. On 15 June 2024, 93 States issued a joint statement reaffirming their “unwavering support for the Court as an independent and impartial judicial institution” and vowing “to preserve its integrity from any political interference and pressure against the Court, its officials and those cooperating with it”. Initiated by Belgium, Chile, Jordan, Senegal, and Slovenia, the statement was also endorsed by the Netherlands and, notably, by some of the staunchest allies of Israel among the Western States (including Germany with its Staatsräson). This gesture was praised as “a unique moment of international solidarity”, and it is indeed a very welcome step. If States Parties do not stand up for their Court in times like these, who will?

Despite this, the silence from one-fourth of the ICC member states raises concerns.  Notably absent were Argentina, Armenia, the Central African Republic, Hungary, Kenya, Mali, Serbia, Tanzania, and Venezuela. Moreover, the language used by the States Parties was less specific and robust than the gravity of the situation demanded due to the need for a diplomatic compromise to ensure broad participation. It fell short of naming, let alone shaming, the States seeking to undermine the ICC’s judicial and prosecutorial independence. As some diplomats explained, the statement was also a reaction to other recent cases of interference, including last year’s cyber-attack, considering in particular such risks on account of the ICC Prosecutor’s investigation in Ukraine.

In the Netherlands, the Israeli ambassador was summoned to the foreign ministry to discuss allegations of Israeli espionage and intimidation against the ICC. Dutch concerns were formally expressed during that meeting, but the ministry withheld specific details of the discussion. In response to queries by MPs from D66 and the Groenlinks-PvDA alliance, the Dutch ministers of foreign affairs, internal affairs, and justice and security indicated to the House of Representatives of the Dutch Parliament that they had been made “duly aware” of the dangers related to what they called “undesirable foreign interference” with the ICC, which they noted was not limited to the Situation in the State of Palestine. The ministers assured that the relevant ministries were in close contact with the intelligence and security services, as well as with the Court itself, to identify and address those threats. However, individual cases and specific safety measures could not be discussed for security considerations.

In accordance with Article 43(1) of the Headquarters Agreement between the ICC and the Host State (in force since 1 March 2008), “[t]he competent authorities shall take effective and adequate action which may be required to ensure the security, safety and protection of persons referred to in this Agreement, indispensable for the proper functioning of the Court, free from interference of any kind.” (Emphasis added.) On this basis, the three Dutch ministers readily acknowledged the special responsibility of the Netherlands, as the ICC’s Host State, going beyond that of any other State Party, for ensuring the security and protection of the Court personnel that is indispensable to enable the Court’s due operation without any interference. They also confirmed that this responsibility extends to the individuals and civil society organisations within the Netherlands, including Palestinian human rights organisations cooperating with the ICC.

Overcoming legal lethargy

 The Dutch response to the Israeli subversion of the ICC has largely been limited to diplomatic démarches, counterintelligence gathering, and (unspecified) security measures. No tangible legal steps have been taken in the wake of the journalists’ revelations, leaving one to speculate why this is the case. In the four months since the information about the intimidation campaign became public, the Dutch prosecution service did not start a criminal investigation proactively and on its own initiative. It remains to be seen whether it will do so when nudged by the criminal complaint on behalf of the twenty Palestinians. It is possible that opening an investigation did not immediately commend itself as the “effective and adequate action” required by the Headquarters Agreement, although this determination is not for the prosecution to make. Another possibility is that no steps were taken by the prosecutors pending (the start of) consultations with the Court on this matter (Rule 162(1) ICC Rules of Procedure and Evidence). Currently, there is no publicly available information about any such contacts.

Be it as it may, the political and security response alone arguably falls short of what Article 43 of the Agreement requires the Netherlands to do in the circumstances. The integrity of the Palestine investigation and the authority of the Court as a whole are at stake as never before. Five months after the Prosecutor’s applications for the arrest warrants, the Court’s Pre-Trial Chamber is still considering them. Concurrently, the Court is addressing Israel’s (ill-timed) jurisdictional challenge and request to stay proceedings pending an additional notice Israel demands of the current scope of the ICC investigation, of which Israel claims it was not duly aware. One should also be mindful of the ongoing inexplicable delays with the decision on the 20 May warrant requests. It is, hence, rather plausible that “the proper functioning of the Court, free from interference of any kind” is currently in serious peril – and has been so over the past decade as a result of Israeli interference.

Indeed, the complaint in the Netherlands voiced the Palestinians’ misgivings that this intimidation campaign is pressuring the Court to terminate its investigation into Palestine as a way to salvage its other investigations. Furthermore, there is also the risk that Israel and the US could even compel the Palestinian Authority to stop cooperating with the ICC, which would bring the ICC investigation to a standstill. Importantly, the problem is not limited to the Situation in the State of Palestine, nor is Israel the sole culprit. The (still unpunished) bullying and retaliation against ICC  staff by the US Trump administration because of the ICC investigation in Afghanistan, and Russia’s attempted infiltration and surveillance of the ICC, as well as the retaliation against its elected officials on account of the Court’s decisions in the Situation in Ukraine, illustrate this systemic problem. Interference with the administration of justice spreads rapidly: unless it is addressed in a timely and adequate fashion in one situation, rogue or unscrupulous actors in others will perceive it as a viable and effective strategy to push the Court around.

The decision to initiate an investigation remains within the discretion of competent prosecutors, in this case, the Landelijk Parket (Article 148a Code of Criminal Procedure, or Wetboek van Strafvordering, Sv). When an investigation is completed, the principle of opportunity allows prosecutors not to proceed if the prosecution would not serve the public interest (articles 167(2) and 242 Sv). Given the need to allocate scarce resources wisely, a prosecutor may decide not to take on a case if a conviction is unlikely, for example, due to anticipated difficulties with securing the admissible evidence and proving the crimes to the required standard, although such decisions may be subject to judicial review if challenged by victims.

It is thus conceivable that the Dutch prosecution refrained from initiating an investigation in the immediate aftermath of the revelations due to concerns about evidentiary challenges or (the lack of) opportunity. The chances of ensuring the attendance of potential suspects, such as the former and serving Israeli ministers or security officials (let alone US senators), could also be deemed limited, even though the trial could eventually be conducted in absentia. The fact that the investigation would inevitably have broader political and far-reaching international implications is legally irrelevant and hardly a plausible explanation for the “legal lethargy” in this matter. On the other hand, there are compelling legal and legal policy grounds, including those relevant to the opportunity assessment, for the Dutch prosecution to commence a criminal investigation into the alleged Israeli espionage and subversion against the ICC as soon as possible.

To begin with, no considerations of public interest would militate against it. On the contrary, the gravity and scope of these transnational crimes, which threaten both the international rule of law and the integrity of one of its foundational institutions, necessitate such an investigation. The seriousness and multiplicity of the incidents of interference with the administration of ICC justice—which are part of the systematic and concerted campaign conceived at the highest levels of authority in Israel—speak strongly in favour of the Dutch prosecution taking concrete legal steps as a matter of urgency. The first step would be to verify the allegations and establish the facts with the aim of prosecuting those individuals it deems responsible. It is of significant public interest for the Netherlands and other States Parties and their citizens, that the findings of the journalistic investigations be thoroughly verified under the more rigorous standards of a criminal investigation.

With regard to the opportunity principle, any potential lack of credible evidence in the direct aftermath of the 28 May publications will have likely been remedied by now as a result of the counterintelligence work and evidentiary cooperation between the Dutch authorities and the ICC. The Dutch authorities are likely in a stronger position to pursue viable investigative leads and build credible cases than they were four months ago. As the territorial state, the Netherlands is well-placed to carry out this inquiry, more so than other States Parties. Given that the Netherlands and the ICC have concurrent jurisdiction over the alleged crimes, this complex situation requires carefully dividing responsibilities, sharing evidence, and coordinating any parallel investigative activities. In relation to all or some of the alleged crimes and suspects, the Court may choose to relinquish jurisdiction (Rule 162(2) ICC RPE) in favour of the Host State. It could do so considering in particular the availability and effectiveness of prosecution in the Netherlands; the seriousness and scale of the crimes in question; the need to investigate expeditiously; the stage of the Situation proceedings and the current absence of cases at the ICC; and any relevant evidentiary, practical, and resource considerations.  Unless it has already done so, the ICC Office of the Prosecutor may consider formally requesting the Netherlands to take over the investigation of (the aspects of) the alleged Israeli campaign against the Court and its officials (Article 70(4)(b) ICC Statute; Rule 162(4) ICC RPE).

The way ahead

The complaint filed with the Dutch prosecution in connection with the alleged tampering with the ICC’s work must serve as a wake-up call for the Netherlands and all other States Parties. They must remain alert and prepared to investigate Article 70 crimes themselves, share intelligence, and offer mutual assistance, as required, to the ICC and to one another. Given its special duties under the Headquarters Agreement, it is high time for the Netherlands not only to take threats to the integrity of the ICC’s operations with utmost seriousness but also to treat them as what they are: grave crimes undermining both the international (and, by extension, domestic) rule of law. Besides stepping up the political and security countermeasures, the Host State should take meaningful action to hold the relevant individuals responsible under its criminal law. Presumably, its authorities would have long done so had the proper operation of its courts and prosecution service and the integrity of criminal cases been targeted in a similar fashion.

A criminal investigation in the Netherlands would send an unambiguous signal, also to other (occasionally) hostile state actors around the world, including Russia and the US, that interference with ICC justice will not be tolerated and swept under the rug by the States Parties – and that it will be met with a robust legal response, including the use of criminal law. Even if the arrest and trial of suspects appear a long shot at present, this could change in the future, as has happened in other cases. The investigation would also help put the developments in and around the Situation in the State of Palestine in perspective and highlight the credibility of some argumentative patterns. For instance, if the allegations are confirmed that Israel intercepted the data on the ICC’s (planned) investigative steps, sought to influence potential witnesses, intimidated lawyers, and put up a complementarity façade of its own investigations for the purpose of keeping the Court at bay, this would undercut the validity of Israel’s latest submissions at the ICC. In conjunction with the (alleged) large-scale subversion campaign against the Court, such findings would starkly contradict Israel’s recurrent assertions regarding the strength of its judicial system and its reputation as a rule-of-law-respecting democracy.

The ICC is the Court of its States Parties, and they should treat the interference with its investigations and process by state and private actors alike as criminal attacks on the rule of law within their own domestic orders. The States Parties established the ICC they envisioned. However, they will only have the Court that they are willing to defend.