Israel could be prosecuted for crimes against justice

Translated by Flora Stanziola

In the last days there has been discussion of some attempts from Israel to intimidate and personally threaten relevant members working at the International Criminal Court (ICC), encouraging them to stop any activity against Israel. These activities could be prosecuted as “crimes against the administration of justice”

Netanyahu and the International Criminal Court

Last week the international legal framework stood up about the conflict between Israel and Hamas. The International Court of Justice (ICJ) - the judicial authority of the United Nations - demanded to stop the attacks on Rafah, while the International Criminal Court (ICC) - the independent judicial body that has jurisdiction over persons accused of serious crimes such as genocide, crimes against humanity and war crimes - discussed about an international arrest warrant for some of Hamas and Israel’s leaders.

Aside from these statements another one seized the attention: ICC Chief Prosecutor Karim Khan asked that “any attempt to prevent, intimidate or improperly influence Court officials must cease immediately."

The Israeli Palestinian newspaper +972 and the Jewish language newspaper Local call explained the nature of the statement by releasing the results of an investigation that undelights how Israel actually attempted to interfere against the Court for a long time, maybe ten years. More in detail it seems that Israel is using its intelligence agents to monitor and intercept calls and emails of Karim Khan and Fatou Bensouda (former chief prosecutor), even going so far as to make personal threats.

The inquiry

Many international newspapers describe the events as a “secret war” that began in 2015 when Fatou Bensouda let Palestine join the International Criminal Court and started a preliminary investigation of the situation in the Palestinian territories. Israel spoke of diplomatic terrorism and Fatou received personal threats at home to stop the work he was doing. Former officers of Israeli intelligence admitted that even Fatou’s calls (the Court did not have permission from Israel to physically enter Palestinian territory) to collect information for the case with a palestinian ONG were intercepted.

In 2019, a series of secret meetings took place between the Court and an Israeli delegation that sought to challenge Bensouda's jurisdiction over Palestine. After that Fatou established that there were reasons to hold Israel responsible for war crimes in the occupied territories but at the time she chose to not start a formal inquiry. There is evidence that Israeli government and security forces contacted Fatou again in an intimidating manner about the issue at that time.

Karim Khan took up service in 2021 and the situation came back to attention the last 7 October when Israel started its offensive against Palestine. Israel, again through intelligence, learned of the prosecutor's intentions to issue international arrest warrants against Netanyahu and Gallant, as the prosecutor affirmed officially last week, pointing out that humanitarian law will be enforced and that the two will be charged with mass murder, denial of humanitarian aid, and deliberately targeting civilians.

It is the first time that a prosecutor issues arrest warrants against a western ally leaders. Khan offices might also have enforced security, a spokesperson noted that he has been threated from Israel and told to discourage and influence ongoing activities.

The alleged crime of crimes against justice

According to international law experts, the investigation could result in a criminal offence for Netanyahu relying on Article 70 of the Court's founding statute on the administration of justice. Specifically, Article 70 establishes that 'obstructing, intimidating or corruptly influencing an official of the Court for the purpose of compelling or persuading him/her not to perform or to perform his/her duties improperly' is a crime over which the Court has jurisdiction and can investigate.

Recourse to threat and the attempt to unfairly influence independent surveys might be a solid foundation to activate the article but at the same time many actors claim that more investigations are needed. The Gurdian asked Netanyahu’s office to say something about, but the only answer was that the accusations are untrue and baseless. Some international actors as United States, Germany, and UK, opposed both the international arrest warrant and the allegations of 'threats or intimidation' against members of the International Criminal Court.

As for Article 70, the Court should react quickly because the crimes cited in the article have a five-year limitation period. More information was sought on whether Khan's office would actually consider launching investigations by activating Article 70, but so far there appears to be no further comment beyond what Khan has publicly provided.

To ensure the functioning of international law and international institutions, the justice system should also be protected from external threats to ensure that it can fulfil its role of prosecuting the worst international crimes.

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