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“This Is a Crime”: Ken Roth on Israel’s Secret War Targeting the ICC to Derail War Crimes Charges

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Image Credit: World Economic Forum/Jolanda Flubacher (Center)

We speak with Kenneth Roth, international affairs scholar and former head of Human Rights Watch, about revelations that Israel waged a nearly decadelong campaign to intimidate the International Criminal Court in order to stop possible war crimes prosecutions of Israeli officials. A joint investigation by The Guardian and the Israeli +972 Magazine revealed that Israel surveilled, hacked, smeared and threatened top ICC officials, including chief prosecutor Karim Khan and his predecessor, Fatou Bensouda. The former head of the Mossad, Yossi Cohen, is said to have personally threatened Bensouda. The revelations come just a week after Khan announced he is seeking arrest warrants for Israeli Prime Minister Benjamin Netanyahu, Defense Minister Yoav Gallant and three top leaders of Hamas. “This is a crime,” Roth says of the Israeli campaign against the ICC. He says the revelations also undermine U.S. claims that Israel can hold itself accountable. “There is no good-faith Israeli investigation. There is a concerted, high-level effort to undermine justice to protect Netanyahu, Gallant and others from war crime charges.”

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This is a rush transcript. Copy may not be in its final form.

NERMEEN SHAIKH: Early last week, the chief prosecutor of the International Criminal Court made headlines around the world when he announced he was seeking arrest warrants for Israeli Prime Minister Benjamin Netanyahu and Defense Minister Yoav Gallant on war crimes charges over the assault on Gaza. In his official announcement, Karim Khan also issued a warning.

KARIM KHAN: It is critical, in this moment, that my office and all parts of the court continue to conduct our work with full independence and impartiality. And I insist that all attempts to impede, to intimidate or to improperly influence the officials of this court cease immediately.

NERMEEN SHAIKH: Khan did not specify what he was referring to regarding attempts to intimidate the court or interfere with its work. But a joint investigation by _The Guardian and the Israeli news outlet +972 this week reveals how Israel has run an almost decadelong secret war against the ICC in an attempt to derail the court from filing war crimes charges against Israeli officials.

The report details how Israel surveilled, hacked, smeared and threatened top ICC officials, including Khan and his predecessor, Fatou Bensouda. The investigation reveals that the former head of the Israeli Mossad, Yossi Cohen, personally threatened Bensouda, telling her, quote, “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,” end-quote.

The news outlets also report that Netanyahu took a close interest in the intelligence operations against the ICC and was described by one intelligence source as being, quote, “obsessed” with the intercepts about the case.

AMY GOODMAN: The Israeli newspaper Haaretz today reports they were about to publish details about the Israeli intelligence operations against the ICC two years ago, but an Israeli security official blocked publication. The Haaretz reporter Gur Megiddo writes he was summoned to the office of an Israeli security official and was told if he published the story, he would, quote, “suffer the consequences and get to know the interrogation rooms of the Israeli security authorities from the inside,” end-quote.

The arrest warrants sought by the ICC against Netanyahu and Gallant include “starvation of civilians as a method of warfare” and “extermination” of Palestinians in Gaza.

Our first guest, Kenneth Roth, has a column in The Guardian newspaper published yesterday that begins, “I should not be surprised at the lawlessness of a government that bombs and starves Palestinian civilians in Gaza, but I was still shocked by the shamelessness of Israel’s efforts to subvert the international criminal court’s investigation of its war crimes.”

Ken Roth joins us here in our New York studio. He’s a visiting professor at the Princeton School of Public and International Affairs, served for nearly three decades as the executive director of Human Rights Watch.

Ken, welcome back to Democracy Now!

KENNETH ROTH: Good to be back.

AMY GOODMAN: So, let’s talk about the significance of this exposé. Yossi Cohen, head of Mossad, the intelligence agency, extremely close to Netanyahu, for 10 years leading this campaign to stop the ICC from bringing charges, can you talk about the significance of this and how it affected what Fatou Bensouda did, the previous ICC chief, and then Karim Khan?

KENNETH ROTH: Well, first, this is a crime. Karim Khan made that clear. I mean, when he issued that notice that any effort to intimidate or retaliate against prosecutorial staff will be an obstruction of justice, in essence, I thought he was referring to Republican senators who had threatened severe sanctions if Israeli officials are charged. But he clearly also had in mind what the Israeli Mossad had been doing, mainly to his predecessor.

Now, what’s interesting is the Israelis clearly misjudged Fatou Bensouda. One person is quoted as saying they thought of her as, you know, basically, merely Black and African, so who cares? — as they put it. But she is a tough woman. And she resisted, you know, these threats to her family, a sting operation against her husband. And she didn’t have to after that point, because the court authorized the investigation to go forward in February 2021, near the end of Bensouda’s term in June 2021. So, she could have just sat on it and let Karim Khan, her successor, take over. She didn’t. She actually opened the investigation a month later. And so, this really speaks to her bravery. And this effort backfired.

Now, I think the most significant ongoing effect of this, if we think back last week, Antony Blinken, the U.S. secretary of state, his main argument against Karim Khan charging Netanyahu and Gallant is what’s known as the principle of complementarity. That’s a rule under the court statute that the court should defer to genuine, good-faith national prosecutions. And Blinken basically said, “Israel’s got a, you know, sophisticated legal system. Let them handle it.”

What this shows is that this whole thing is a sham, that the Israeli investigations are not about securing justice, they’re about obstructing justice. And we’ve heard about this for years from B’Tselem, for example, the leading Israeli human rights group, that calls these whitewash investigations. You know, whenever there’s some incident and there’s international outrage, Israel announces an investigation. You then never hear anything further. But the announcement of the investigation pushes things off. They did something very similar with the ICC. They would listen in to what Bensouda or Khan were looking at, and they would say, “Aha, they’re interested in that incident? That’s” —

AMY GOODMAN: You mean they would eavesdrop.

KENNETH ROTH: Yes, they would eavesdrop. They would, you know, hack. And they would — so, they learned that the ICC prosecutor was interested in an incident, and they would start an investigation. And they would then send somebody in to The Hague, to the prosecutor’s office, and say, “You don’t need to look at this. We’ve got an investigation going.” And it sounded as if they were on top of it all. But, in fact, these were purely reactive investigations. They were not good-faith investigations. And I think that this whole hacking and surveillance and threatening incident gives the lie to Blinken’s argument that Karim Khan should defer to Israeli justice efforts. These are not good-faith justice efforts. These are cover-up efforts.

NERMEEN SHAIKH: Ken, if you could just put this in the context of — I mean, why would Israel go to such extraordinary lengths to compromise the International Criminal Court? If you could give us some background, because does the International Criminal Court have any enforcement mechanism? What is the symbolic weight of decisions taken by the court? If you could place this in the broader context of what decisions and investigations and prosecutions the ICC has launched and made before, and explain in that context why Israel has done this decadelong attempt to subvert the court’s work?

KENNETH ROTH: Well, the International Criminal Court is the world’s leading war crimes tribunal, in essence. And nobody wants to be charged with war crimes or crimes against humanity, you know, as both Netanyahu and Gallant are about to be done, because the prosecutor has requested arrest warrants based on, basically, starvation charges in Gaza. And, you know, no one wants that, first of all, because it means that if you travel to any ICC country, including all of Europe, including in more than a hundred governments around the world, they have a duty to arrest you and send you to The Hague for trial. So, you know, there are real consequences, and you can end up in prison. So, nobody wants that.

And that’s why Netanyahu was seen as obsessed with this, because, you know, it’s not as if what goes on in Gaza, or even in the West Bank, are low-level operations. These are very much directed from the top. You know, Netanyahu is commander-in-chief. And so, he understood his criminal liability. And he seemed determined, you know, not to change the conduct, not to say, “Oh my goodness, are we committing war crimes in Gaza? Let me stop that right away.” No, he just, you know, let it keep going and tried to obstruct the investigation that might lead to his prosecution for war crimes.

NERMEEN SHAIKH: And if you could say — I mean, it was in 1998, July 1998, that the Rome Statute of the International Criminal Court was adopted. The vote was 120 to 7. Twenty-one countries abstained. The seven countries that voted against the treaty were China, Iraq, Israel, Libya, Qatar, the U.S. and Yemen. And Israel’s opposition was reportedly stemming from the inclusion in the list of war crimes of, quote, “the action of transferring population into occupied territory.” And that’s effectively what’s happened.

KENNETH ROTH: Well, what we’re speaking to now is something that has been going on long before this Gaza war. The settlements are war crimes. They violate Article 49 of the Fourth Geneva Convention, which prohibits an occupying power from transferring its population to occupied territory. And the ICC statute, the Rome Statute, codifies that crime. So, you know, Israel has been vulnerable to this charge. It still is vulnerable to this charge. I would like to see Karim Khan bring that charge at some stage, because it’s a straightforward case. You know, there’s no complicated facts behind it. It’s just happening out in the open. So, that is a vulnerability.

The U.S. opposed partly because of that, but also the U.S. was concerned with what’s known as territorial jurisdiction, the fact that the court has the power to prosecute somebody for crimes committed on the territory of a court member, even if the person’s own country has never ratified the court’s treaty. Now, the U.S. hated that because it could mean Americans are vulnerable. And indeed, there was an investigation that Fatou Bensouda opened in Afghanistan that threatened Bush-era torturers. But the U.S. gave up on that objection, because it was territorial jurisdiction that the court used to prosecute Putin in Ukraine, and Biden said that was justified. In fact, you know, Lindsey Graham, the leading Republican senator, led a unanimous resolution in the Senate that affirmed this use of territorial jurisdiction. So, that objection is gone.

They still say, “Oh, well, Palestine is not really a state.” But the court has addressed that already and said, you know, the U.N. General Assembly found it to be a nonmember observer state. That’s sufficient for it to ratify a whole host of human rights treaties that we should welcome, as well as the Rome Statute of the ICC. So, that objection is pretty much gone.

And that’s why Antony Blinken fell back on this principle of complementarity: You should defer to good-faith Israeli investigations. And what this latest Guardian/+972 investigation shows is there is no good-faith Israeli investigation. There is a concerted, high-level effort to undermine justice to protect Netanyahu, Gallant and others from war crime charges.

AMY GOODMAN: I want to go back to Karim Khan’s predecessor, Fatou Bensouda, who announced in 2019 that she intended to investigate alleged atrocities during Israel’s 2014 war in Gaza. She said at the time there was a, quote, “reasonable basis” to argue Israeli authorities are guilty of war crimes for relocating Israeli civilians into the West Bank to live in settlements.

FATOU BENSOUDA: I am satisfied, one, that war crimes have been or are being committed in the West Bank, including East Jerusalem and the Gaza Strip; two, that potential cases arising from the situation would be admissible; and, hree, that there are no substantial reasons to believe that an investigation would not serve the interest of justice.

AMY GOODMAN: So, that’s Fatou Bensouda back in 2019. She opened this case in 2021. And I wanted to ask you more about her. The Guardian writes, quote, “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'.” They went after her husband. They went after her. And then I want to ask you about the president of the Democratic Republic of Congo, that The Guardian reported on, Joseph Kabila, and how they used him. This is an amazing meeting.

KENNETH ROTH: Well, first, Fatou Bensouda is a tough woman. I met with her numerous times. She is super professional. She is dedicated to justice. She knew she was facing threats. And she just persisted. And that’s really to her credit. I think the Israelis totally underestimated her. They thought that she could be pushed over with these threats, and it totally didn’t happen.

Now, Joseph Kabila, the Congolese president, is an interesting case. I’ve met with him multiple times. On the one hand, he handed over more suspects to the ICC than any other president in the world. So, he is somebody who Bensouda legitimately was meeting with. But the Mossad head, wanting to meet with Bensouda, knowing that she would not accept a meeting just like that, probably paid off Kabila. I mean, who knows? But Kabila is notoriously corrupt. And so, Bensouda is meeting with Kabila, and in pops the head of the Mossad, which Kabila authorized. They called it an “ambush.” And that was, you know, how the head of the Mossad set up an opportunity to communicate with Bensouda. And, you know, am I surprised that Kabila would do this? No. But that was the kind of underhanded methods that the Israeli Mossad chief used to try to begin the process of threatening Bensouda.

NERMEEN SHAIKH: Wasn’t Kabila himself being investigated for war crimes or atrocities in war?

KENNETH ROTH: Well, I mean, Kabila was vulnerable for, you know, for example, his forces shooting at demonstrators when he was trying to hang on to the presidency beyond the end of his term. But, in fact, he was never the subject of a major ICC investigation. Those were mostly focused on groups in eastern Congo, where, you know, he was having — doing what he could to stop it. So, I don’t think he felt threatened by the ICC, and had a cooperative relationship with Bensouda.

AMY GOODMAN: And then, talk about what happened to Al-Haq and how they were eavesdropped on when they would relate to — this is the Ramallah-based human rights group —


AMY GOODMAN: — and ultimately being called a terrorist organization.

KENNETH ROTH: Yeah. Well, Al-Haq is a super respected Palestinian human rights group. I’ve worked with them for decades. In fact, I just did a webinar yesterday with its head. And they were communicating regularly with the ICC, because they have field operatives throughout the West Bank and Gaza. They would collect solid evidence, and they would pass it on to the ICC, because they wanted to see Israeli war crimes prosecuted.

The Israelis learned about this because they were monitoring Bensouda’s communications with all Palestinians. And essentially, in retaliation, the Israelis called Al-Haq and five of its colleague organizations terrorist organizations, a label that remains there to this day. Now, they haven’t actually shut them down, but it was the effort to say, “These are illegitimate groups. You know, don’t rely on them.” And it was a punishment of them, in essence, for cooperating with the ICC.

NERMEEN SHAIKH: Well, Israel is intensifying its attack — so, if we could just go to what’s unfolding at the moment? Israel is intensifying its attack on the southern city of Rafah. On Tuesday, the White House said that Israel’s devastating airstrike on a tent camp for displaced Palestinians in Rafah does not cross President Biden’s so-called red line in Gaza. Sunday’s attack, which set off a fire in the camp, killed 45 Palestinians and injured over 200, mostly women and children. An investigation by CNN found Israel attacked the camp using munitions made in the United States by Boeing. White House national security spokesperson John Kirby was questioned Tuesday by Ed O’Keefe of CBS News.

ED O’KEEFE: How does this not violate the red line that the president laid out?

JOHN KIRBY: As I said, we don’t want to see a major ground operation. We haven’t seen that at this point.

ED O’KEEFE: How many more charred corpses does he have to see before the president considers a change in policy?

JOHN KIRBY: We don’t want to see a single more innocent life taken. And I kind of take a little offense at the question. No civilian casualties is the right number of civilian casualties. And this is not something that we’ve turned a blind eye to, nor has it been something we’ve ignored or neglected to raise with our Israeli counterparts, including, Ed, this weekend as a result of this particular strike. Now, they’re investigating it, so let’s let them investigate it and see what they come up with.

NERMEEN SHAIKH: So, Ken, if you could respond to Kirby’s response, and then, overall, the Biden administration’s position on this and, in fact, on the ICC, which you referred to earlier?

KENNETH ROTH: Well, Biden seems to have an endlessly movable red line. And he, you know, rightly, at the rhetorical level, keeps pushing the Israeli government to allow in food and other humanitarian supplies, to take greater care not to harm Israeli civilians — it’s all the right thing to say. He never backs it up. The only consequence he’s imposed so far has been he did stop delivery of these huge 2,000-pound bombs that Israel was using to decimate entire neighborhoods, and he didn’t want that to happen in Rafah. So, that’s to his credit. But then he turned around and authorized $1 billion in additional arms sales to Israel. So, that really kind of undercut the message there.

They’ve been saying, you know, “We don’t want this Rafah operation to harm civilians.” But Israel has now chased 1 million, out of the 1.4 million Palestinians sheltering in Rafah, out of the city. And most of them are trying to survive on this beachfront camp with no food, no sanitation facilities, no medical aid, nothing. And it was near that area that this latest bomb that killed 45 people took place. But, you know, the International Court of Justice last week said these are horrendous conditions. You know, this is not a safe response to this Rafah military operation. But Biden is closing his eyes to that and says, “We haven’t seen any real problems yet.” You know, it’s proceeding. So the red line keeps moving.

NERMEEN SHAIKH: And what do you think — finally, Ken, what do you think is going to come out of this investigation, The Guardian and +972 investigation, and revelations about what Israel did to subvert the work of the ICC?

KENNETH ROTH: Well, it will be interesting to see whether Karim Khan does in fact use Article 70 of the Rome Statute to prosecute, in essence, obstruction of justice. You know, the sense I got from his statement a week and a half ago was that he was not going to apply that retroactively, but if anything like this happens again, he would use it. I think the most significant effect will be that Israel is going to try to defend itself using this principle of complementarity, saying, “We’re investigating ourselves,” and I think the real effect of this investigation is to really undermine the credibility of any self-investigation claim.

AMY GOODMAN: Kenneth Roth, we want to thank you for being with us, visiting professor at the Princeton School of Public and International Affairs, served for nearly three decades as executive director of Human Rights Watch. We’ll link to your piece in The Guardian. It’s headlined “The ICC spying revelations show the Israeli government to be a lawless regime.”

Next up, the largest university in Canada files a request for police to clear a pro-Palestinian encampment. We’ll speak with one of the professors there and a Palestinian student from Gaza who’s part of the student negotiating team. Stay with us.

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