[News] Revealed: Israeli spy chief ‘threatened’ ICC prosecutor over war crimes inquiry

[Anti-Imperialist News]

theguardian.com
<https://www.theguardian.com/world/article/2024/may/28/israeli-spy-chief-icc-prosecutor-war-crimes-inquiry>
Revealed: Israeli spy chief ‘threatened’ ICC prosecutor over war crimes
inquiry
Harry Davies
May 28, 2024
------------------------------

The former head of the Mossad, Israel’s foreign intelligence agency,
allegedly threatened a chief prosecutor of the international criminal court
in a series of secret meetings in which he tried to pressure her into
abandoning a war crimes investigation, the Guardian can reveal.

Yossi Cohen’s covert contacts with the ICC’s then prosecutor, Fatou
Bensouda, took place in the years leading up to her decision to open a
formal investigation
<https://www.theguardian.com/law/2021/mar/03/icc-open-formal-investigation-war-crimes-palestine#:~:text=Bensouda%20has%20said%20her%20probe,war%20crimes%20against%20our%20people.>
into alleged war crimes and crimes against humanity in occupied Palestinian
territories.

That investigation, launched in 2021, culminated last week when Bensouda’s
successor
<https://www.theguardian.com/law/2021/feb/12/karim-khan-international-criminal-court-prosecutor>,
Karim Khan, announced that he was seeking an arrest warrant for the Israeli
prime minister, Benjamin Netanyahu, over the country’s conduct in its war
in Gaza.

The prosecutor’s decision to apply to the ICC’s pre-trial chamber for
arrest warrants
<https://www.theguardian.com/law/article/2024/may/20/icc-prosecutor-seeks-arrest-warrants-israeli-pm-netanyahu-hamas-officials-war-crimes>
for Netanyahu and his defence minister, Yoav Gallant, alongside three Hamas
leaders, is an outcome Israel’s military and political establishment has
long feared.
[image: Netanyahu and Cohen]
Cohen (right) was appointed as director of the Mossad by Netanyahu in 2016
after working for several years as his national security adviser.
Photograph: Gali Tibbon/AFP/Getty Images

Cohen’s personal involvement in the operation against the ICC took place
when he was the director of the Mossad. His activities were authorised at a
high level and justified on the basis the court posed a threat of
prosecutions against military personnel, according to a senior Israeli
official.

Another Israeli source briefed on the operation against Bensouda said the
Mossad’s objective was to compromise the prosecutor or enlist her as
someone who would cooperate with Israel’s demands.

A third source familiar with the operation said Cohen was acting as
Netanyahu’s “unofficial messenger”.

Cohen, who was one of Netanyahu’s closest allies at the time and is
emerging as a political force in his own right in Israel, personally led
the Mossad’s involvement in an almost decade-long campaign by the country
to undermine the court.

Four sources confirmed that Bensouda had briefed a small group of senior
ICC officials about Cohen’s attempts to sway her, amid concerns about the
increasingly persistent and threatening nature of his behaviour.
ICC prosecutor requests arrest warrants for Netanyahu, Gallant and three
Hamas leaders – video

Three of those sources were familiar with Bensouda’s formal disclosures to
the ICC about the matter. They said she revealed Cohen had put pressure on
her on several occasions not to proceed with a criminal investigation in
the ICC’s Palestine case.

According to accounts shared with ICC officials, he is alleged to have told
her: “You should help us and let us take care of you. You don’t want to be
getting into things that could compromise your security or that of your
family.”

One individual briefed on Cohen’s activities said he had used “despicable
tactics” against Bensouda as part of an ultimately unsuccessful effort to
intimidate and influence her. They likened his behaviour to “stalking”.

The Mossad also took a keen interest in Bensouda’s family members and
obtained transcripts of secret recordings of her husband, according to two
sources with direct knowledge of the situation. Israeli officials then
attempted to use the material to discredit the prosecutor.

The revelations about Cohen’s operation form part of a forthcoming
investigation by the Guardian, the Israeli-Palestinian publication +972
Magazine and the Hebrew-language outlet Local Call, revealing how multiple
Israel intelligence agencies ran a covert “war” against the ICC for almost
a decade.

Contacted by the Guardian, 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.” Cohen did not
respond to a request for comment. Bensouda declined to comment.
[image: Fatou Bensouda stands next to various national flags at a lectern
that features the UN logo.]
The ICC case dates back to 2015, when Fatou Bensouda decided to open a
preliminary examination into the situation in Palestine. Photograph:
Pacific Press Media Production Corp/Alamy

In the Mossad’s efforts to influence Bensouda, Israel received support from
an unlikely ally: Joseph Kabila, the former president of the Democratic
Republic of the Congo, who played a supporting role in the plot.

Revelations about the Mossad’s efforts to influence Bensouda come as the
current chief prosecutor, Khan, warned in recent days that he would not
hesitate to prosecute “attempts to impede, intimidate or improperly
influence” ICC officials.

According to legal experts and former ICC officials, efforts by the Mossad
to threaten or put pressure on Bensouda could amount to offences against
the administration of justice under article 70 of the Rome statute, the
treaty that established the court.

A spokesperson for the ICC would not say whether Khan had reviewed his
predecessor’s disclosures about her contacts with Cohen, but said Khan had
never met or spoken to the head of the Mossad.

While the spokesperson declined to comment on specific allegations, they
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”.
Bensouda sparks ire of Israel

Khan’s decision to seek arrest warrants against Netanyahu and Gallant last
week marked the first time the court had taken action against leaders of a
country closely allied with the US and Europe. Their alleged crimes – which
include directing attacks on civilians and using starvation as a method of
warfare – relate to the eight-month war in Gaza.

The ICC case, however, dates back to 2015, when Bensouda decided to open a
preliminary examination
<https://www.theguardian.com/law/2015/jan/16/icc-possible-war-crimes-palestinian-territories>
into the situation in Palestine. Short of a full investigation, her inquiry
was tasked with making an initial assessment of allegations of crimes by
individuals in Gaza, the West Bank and East Jerusalem.

Bensouda’s decision sparked the ire of Israel, which feared its citizens
could be prosecuted for their involvement in operations in Palestinian
territories <https://www.theguardian.com/world/palestinian-territories>.
Israel had long been open about its opposition to the ICC, refusing to
recognise its authority. Israeli ministers intensified their attacks on the
court and even vowed to try to dismantle it.

Soon after commencing the preliminary examination, Bensouda and her senior
prosecutors began to receive warnings that Israeli intelligence was taking
a close interest in their work.
[image: Differential focus image that centres Yossi Cohen among a crowd of
suited men]
Yossi Cohen during a reception held at the Israeli foreign ministry in
Jerusalem, in May 2018. Photograph: Amir Cohen/Reuters

According to two sources, there were even suspicions among senior ICC
officials that Israel had cultivated sources within the court’s prosecution
division, known as the office of the prosecutor. Another later recalled
that although the Mossad “didn’t leave its signature”, it was an assumption
the agency was behind some of the activity officials had been made aware of.

Only a small group of senior figures at the ICC, however, were informed
that the director of the Mossad had personally approached the chief
prosecutor.

A career spy, Cohen enjoys a reputation in Israel’s intelligence community
as an effective recruiter of foreign agents. He was a loyal and powerful
ally of the prime minister at the time, having been appointed as director
of the Mossad by Netanyahu in 2016 after working for several years at his
side as his national security adviser.

As the head of the national security council between 2013 and 2016, Cohen
oversaw the body that, according to multiple sources, began to coordinate a
multiagency effort against the ICC once Bensouda opened the preliminary
inquiry in 2015.

Cohen’s first interaction with Bensouda appears to have taken place at the
Munich security conference in 2017, when the Mossad director introduced
himself to the prosecutor in a brief exchange. After this encounter, Cohen
subsequently “ambushed” Bensouda in a bizarre episode in a Manhattan hotel
suite, according to multiple sources familiar with the incident.
[image: Bensouda shaking hands with a bearded Joseph Kabila]
Bensouda with Joseph Kabila in New York. Sources claim the then DRC leader
played an important supporting role in the Mossad’s plot against the ICC’s
chief prosecutor. Photograph: ICC

Bensouda was in New York in 2018 on an official visit, and was meeting
Kabila, then the president of the DRC, at his hotel. The pair had met
several times before in relation to the ICC’s ongoing investigation into
alleged crimes committed in his country.

The meeting, however, appears to have been a setup. At a certain point,
after Bensouda’s staff were asked to leave the room, Cohen entered,
according to three sources familiar with the meeting. The surprise
appearance, they said, caused alarm to Bensouda and a group of ICC
officials travelling with her.

Why Kabila helped Cohen is unclear, but ties between the two men were
revealed in 2022 by the Israeli publication TheMarker, which reported on a
series of secretive trips the Mossad director made to the DRC throughout
2019.

According to the publication, Cohen’s trips, during which he sought
Kabila’s advice “on an issue of interest to Israel”, and which were almost
certainly approved by Netanyahu, were highly unusual and had astonished
senior figures within the intelligence community.

Reporting on the DRC meetings in 2022, the Israeli broadcaster Kan 11 said
Cohen’s trips related to an “extremely controversial plan” and cited
official sources who described it as “one of Israel’s most sensitive
secrets”.

Multiple sources have confirmed to the Guardian the trips were partly
related to the ICC operation, and Kabila, who left office in January 2019,
played an important supporting role in the Mossad’s plot against Bensouda.
Kabila did not respond to a request for comment.
‘Threats and manipulation’

After the surprise meeting with Kabila and Bensouda in New York, Cohen
repeatedly phoned the chief prosecutor and sought meetings with her, three
sources recalled. According to two people familiar with the situation, at
one stage Bensouda asked Cohen how he had obtained her phone number, to
which he replied: “Did you forget what I do for a living?”

Initially, the sources explained, the intelligence chief “tried to build a
relationship” with the prosecutor and played “good cop” in an attempt to
charm her. The initial objective, they said, appeared to have been to
enlist Bensouda into cooperating with Israel.

Over time, however, the tone of Cohen’s contact changed and he began to use
a range of tactics, including “threats and manipulation”, an individual
briefed on the meetings said. This prompted Bensouda to inform a small
group of senior ICC officials about his behaviour.

In December 2019, the prosecutor announced
<https://www.theguardian.com/law/2019/dec/20/icc-to-investigate-alleged-israeli-and-palestinian-war-crimes>
that she had grounds to open a full criminal investigation into allegations
of war crimes in Gaza, the West Bank and East Jerusalem. However, she held
off launching it, deciding first to request a ruling from the ICC’s
pre-trial chamber to confirm the court did indeed have jurisdiction over
Palestine.
[image: Demonstrators carry banners outside the ICC]
Protesters gather outside the ICC to call for the court to prosecute Israel
for war crimes. Photograph: Peter Dejong/AP

Multiple sources said it was at this stage, as the judges considered the
case, that Cohen escalated his attempts to persuade Bensouda not to pursue
a full investigation in the event the judges gave her the green light.

Between late 2019 and early 2021, the sources said, there were at least
three encounters between Cohen and Bensouda, all initiated by the spy
chief. His behaviour is said to have become increasingly concerning to ICC
officials.

A source familiar with Bensouda’s accounts of the final two meetings with
Cohen said he had raised questions about her security, and that of her
family, in a manner that led her to believe he was threatening her.

On one occasion, Cohen is said to have shown Bensouda copies of photographs
of her husband, which were taken covertly when the couple were visiting
London. On another, according to sources, Cohen suggested to the prosecutor
that a decision to open a full investigation would be detrimental to her
career.

Four sources familiar with the situation said it was around the same time
that Bensouda and other ICC officials discovered that information was
circulating among diplomatic channels relating to her husband, who worked
as an international affairs consultant.

Between 2019 and 2020, the Mossad had been actively seeking compromising
information on the prosecutor and took an interest in her family members.
[image: The international criminal court in The Hague]
In February 2021, it was confirmed that the ICC had jurisdiction in
occupied Palestinian territories. Photograph: Peter Dejong/AP

The spy agency obtained a cache of material, including transcripts of an
apparent sting operation against her husband.

It is unclear who conducted the operation, or precisely what he is alleged
to have said in the recordings. One possibility is that he had been
targeted by the intelligence agency or by private actors of another country
that wanted leverage over the ICC. Another possibility is the information
was fabricated.

Once in the possession of Israel, however, the material was used by its
diplomats in an unsuccessful attempt to undermine the chief prosecutor. But
according to multiple sources, Israel failed to convince its allies of the
significance of the material.

Three sources briefed on the information shared by Israel at a diplomatic
level described the efforts as part of an unsuccessful “smear campaign”
against Bensouda. “They went after Fatou,” one source said, but it had “no
impact” on the prosecutor’s work.
[image: Trump and Netanyahu shake hands]
Trump and Netanyahu. The Trump administration imposed visa restrictions and
sanctions on Bensouda in 2019-20. Photograph: Ronen Zvulun/Reuters

The diplomatic efforts were part of a coordinated effort by the governments
of Netanyahu and Donald Trump
<https://www.theguardian.com/us-news/donaldtrump> in the US to place public
and private pressure on the prosecutor and her staff.

Between 2019 and 2020, in an unprecedented decision, the Trump
administration imposed visa restrictions and sanctions on the chief
prosecutor
<https://www.theguardian.com/law/2020/sep/02/us-sanctions-international-criminal-court-fatou-bensouda>.
The move was in retaliation to Bensouda’s pursuit of a separate
investigation into war crimes in Afghanistan, allegedly committed by the
Taliban and both Afghan and US military personnel.

However, Mike Pompeo, then US secretary of state, linked the sanctions
package to the Palestine case. “It’s clear the ICC is only putting Israel
in [its] crosshairs for nakedly political purposes,” he said.

Months later, he accused Bensouda, without citing any evidence, of having
“engaged in corrupt acts for her personal benefit”.

The US sanctions were rescinded
<https://www.theguardian.com/law/2021/apr/02/us-lifts-sanctions-icc-prosecutor-fatou-bensouda-pompeo-blinken>
after President Joe Biden entered the White House.

In February 2021, the ICC’s pre-trial chamber issued a ruling confirming
the ICC had jurisdiction
<https://www.theguardian.com/law/2021/feb/05/icc-rules-it-can-investigate-war-crimes-in-palestine-despite-israeli-objections>
in occupied Palestinian territories. The following month, Bensouda announced
the opening
<https://www.theguardian.com/law/2021/mar/03/icc-open-formal-investigation-war-crimes-palestine>
of the criminal investigation.

“In the end, our central concern must be for the victims of crimes, both
Palestinian and Israeli, arising from the long cycle of violence and
insecurity that has caused deep suffering and despair on all sides,” she
said at the time.

Bensouda completed her nine-year term at the ICC three months later,
leaving it to her successor, Khan, to take up the investigation. It was
only after the Hamas attacks on Israel on 7 October and the ensuing war on
Gaza that the ICC’s investigation gained renewed urgency, culminating in
last week’s request for arrest warrants.

It was the conclusion Israel’s political, military and intelligence
establishment had feared. “The fact they chose the head of Mossad to be the
prime minister’s unofficial messenger to [Bensouda] was to intimidate, by
definition,” said a source briefed on Cohen’s operation. “It failed.”
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