ICC faces 'unprecedented range' of attempts to influence

This week, British newspaper The Guardian revealed allegations that the former chief of the Israeli intelligence service Mossad, Yossi Cohen, pressured former chief prosecutor of the International Criminal Court (ICC) Fatou Bensouda to stop investigating in the Palestinian territories. 

Fatou Bensouda opened preliminary investigations into the situation in the Palestinian territories in 2015. In March 2021, the former chief prosecutor launched a formal investigation. In June 2021, the current chief prosecutor Karim Khan took over the baton from Fatou Bensouda.

Two weeks ago, these investigations culminated in a request by Khan for arrest warrants to be issued against Israeli and Hamas leaders. On May 20, Khan announced that he had asked for arrest warrants against Israeli Prime Minister Benjamin Netanyahu and Defense Minister Yoav Gallant, as well as against three leaders of the militant Islamist group Hamas.

Khan accuses both parties of having committed crimes against humanity and crimes of war in the current situation in Gaza. It is a decision that has been strongly criticized by Israel, the US and several EU countries.

The Guardian reported that the allegations against Mossad go back to the years before the investigation was formally launched in 2021. The alleged threats reportedly targeted Bensouda and her family personally.

"These are serious allegations," Tomas Hamilton, expert on international criminal law at the Guernica 37 Chambers group of lawyers in London, confirmed to DW. He believes that, if the allegations prove true, the court will be unable to ignore them.

According to The Guardian, a spokesperson for the Israeli prime minister's office rejected the allegations put to them by the newspaper as "false and unfounded." 

Prosecutor's office aware of 'intelligence-gathering activities'

Asked for a comment by DW, the ICC prosecutor's office declared it "is aware of and is continually implementing counter measures against proactive intelligence-gathering activities being undertaken by a number of national agencies hostile towards the Court." 

The statement continued that both the office and the court "are facing an unprecedented range of such attempts."

The prosecutor's office said it was working together with the Dutch authorities to ramp up security measures. The International Criminal Court is based in The Hague in the Netherlands.

In September 2023, the ICC was hit by a "serious cyber security incident," which it classified as having the "objective of espionage" in a press release five weeks later. The ICC interpreted the incident as a "serious attempt” to undermine its mandate.

At the time, the Court said it couldn't confirm who was responsible for the attack and that Dutch authorities had opened an investigation.

In June 2022, the Dutch intelligence service said it had uncovered a Russian military agent trying to gain entry to the court as an intern. In March 2022, the ICC's prosecutor had opened investigations into alleged war crimes occurring in Ukraine since 2013. In March 2023, the ICC issued an arrest warrant for Russian President Vladimir Putin over the alleged abduction of children. It has also issued arrest warrants against three other Russian nationals.

A spokesperson for the Dutch Foreign Ministry said in a written statement that it was vital that the Court be able to carry out its mandate safely and independently. As the ICC's host state it acknowledged its "special responsibilities," as laid out in the headquarters agreement, the statement said.

Trying to influence the ICC can have legal consequences

At the beginning of May, when rumors about upcoming arrest warrants for Israeli leaders began circulating in the media, the chief prosecutor's office issued a statement warning that "all attempts to impede, intimidate or improperly influence its officials cease immediately." 

Khan repeated this call two weeks later when he submitted his arrest warrant request to the pre-trial chamber. In his statement, he made clear that his office would not "hesitate" to act in accordance with Article 70 of the Rome Statute "if such conduct continues."

Article 70 of the Rome Statute forbids "impeding, intimidating or corruptly influencing" members of the court in an attempt to persuade them either to improperly fulfill their duties or not to fulfill them at all. The provision, among other things, also forbids retaliation for the fulfillment of duties as well as the bribing of court officials.

Tomas Hamilton points out that although there have been cases of Article 70 before, mainly in relation to tampering with witnesses, the allegations contained in the Guardian article suggested “a long-term state-orchestrated intelligence operation" and would, if true, exceed all prior cases of offenses against the administration of justice under Article 70. The legal expert thinks it is "very likely" that the ICC would consider opening a procedure in light of the seriousness of the allegations. 

Sanctions against the chief prosecutor looming? 

In Washington, Republican senators have threatened to sanction officials of the ICC after the ICC chief prosecutor had requested arrest warrants for Netanyahu and Gallant, news agency AP reports. Shortly afterwards, Secretary of State Antony Blinken spoke to the Senate indicating he would be willing to work on an appropriate response ― without clarifying precisely what form this would take.

The US government under Donald Trump did sanction the then Chief Prosecutor Fatou Bensouda over opening investigations over possible war crimes in Afghanistan in September 2020. In 2021, these sanctions were lifted three months after Joe Biden took office as President of the United States.

Edited by: Lucy James