Just over a week after the International Criminal Court announced it had officially applied for an arrest warrant for two top Israeli officials over the Israel Defense Forces' assault on Gaza, an investigative report revealed Tuesday that the Israeli intelligence chief spent close to a decade attempting to intimidate the ICC's prosecutor into halting a war crimes probe.
Former ICC Prosecutor Fatou Bensouda opened a preliminary investigation into Israel's actions in Palestine in 2015, a year after Israel launched an offensive in Gaza that killed 2,251 Palestinians in less than two months. Bensouda aimed to make an initial assessment of allegations of possible war crimes in Gaza, the West Bank, and East Jerusalem.
According to Israeli publications +972 Magazine and Local Call and U.K. newspaper The Guardian, Bensouda and her prosecution team soon began to receive warnings that Mossad, the Israeli national intelligence agency, "was taking a close interest in their work."
After briefly meeting Bensouda at the Munich Security Conference in 2017, Mossad Director Yossi Cohen "ambushed" the prosecutor at a hotel in New York in 2018, when Bensouda was meeting Democratic Republic of Congo President Joseph Kabila.
"The pair had met several times before in relation to the ICC's ongoing investigation into alleged crimes committed in his country," reported The Guardian. "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 traveling with her. Why Kabila helped Cohen is unclear, but ties between the two men were revealed in 2022 by the Israeli publication TheMarker."
The investigation found that Cohen—who retired in 2021—repeatedly called Bensouda and sought meetings with her after the "ambush," eventually prompting Bensouda to alert senior ICC officials about the Mossad chief's conduct after his tactics shifted to "threats and manipulation." One ICC official compared Cohen's behavior to "stalking."
Cohen initiated at least three meetings with Bensouda between 2019-21, including one where he allegedly told the prosecutor: "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."
He also allegedly suggested to Bensouda that a full investigation into war crimes by Israel would harm her career, and showed her copies photos that had covertly been taken of her husband.
The Guardian reported that Cohen did not respond to a request for comment, and Bensouda declined to comment on the reporting. A spokesperson for the Israeli government told the newspaper that the report was "replete with many false and unfounded allegations meant to hurt the state of Israel."
Threats against an ICC prosecutor could amount to offenses against the administration of justice, a violation of Article 70 under the Rome Statute, which established the court in 1998. Israel is not a signatory to the Rome Statute and does not recognize the authority of the ICC, but Israeli officials including Cohen can still be prosecuted for an offense against the administration of justice.
After Cohen's alleged threats against Bensouda's family and career, the ICC in 2021 opened its formal war crimes investigation into alleged war crimes going back to 2014. Last week, current ICC Prosecutor Karim Khan announced he was seeking warrants to arrest Prime Minister Benjamin Netanyahu, Defense Minister Yoav Gallant, and three Hamas leaders for actions since October 7, 2023.
Jacobin journalist Branko Marcetic said the revelations about Cohen's targeting of Bensouda in the midst of her preliminary investigation proves the Israeli government "is completely out of control"—partially because continued political and material support from the United States, its largest international military funder, allows it to act with impunity.
The Netanyahu govt threatened an ICC prosecutor and her family to try and avoid charges. Israel is completely out of control. I don't recall even the worst pariahs - Saddam's Iraq, DPRK for e.g. - doing anything like this. Biden's support is the differencehttps://t.co/r7mBLu18HR
— Branko Marcetic (@BMarchetich) May 28, 2024
Threats against an ICC prosecutor, said Canadian New Democratic Party lawmaker Charlie Angus, "are the actions of a criminal state."
Another of what one journalist called "truly jaw-dropping allegations" was that Mossad obtained transcripts and other materials that were part of a "smear campaign" against Bensouda.
"The diplomatic efforts were part of a coordinated effort by the governments of Netanyahu and [then-President] Donald Trump in the U.S. to place public and private pressure on the prosecutor and her staff," reported The Guardian.
The Trump administration imposed sanctions including visa restrictions against Bensouda between 2019-20, allegedly in retaliation for a separate war crimes probe regarding Afghanistan. Then-Secretary of State Mike Pompeo suggested the sanctions were imposed because the ICC was "putting Israel in [its] crosshairs."
