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 —
KENNETH ROTH: Yeah.
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.
