Today, a group of 20 Palestinians filed a criminal complaint with the Dutch Office of the Public Prosecutor (Openbaar Ministerie) for impeding and influencing the ICC investigation into the ‘Situation in the State of Palestine’ and the harassment, intimidation, pressuring and defamation of ICC staff, including the ICC prosecutor, in the course of this investigation. The complaint follows after the publication of an extensive investigation jointly carried out by media outlets The Guardian, +972 Magazine and Local Call that was published on 28th May 2024. Although the complaint does not identify any specific individual suspects, it is clear from the publications that the Dutch investigation should focus on (senior) members of the Israeli security apparatus.
Interference and sabotaging
The publications reveal how Israeli leaders and security forces engaged in an almost decade long campaign against the Prosecutor’s Office of the ICC to prevent it from carrying out an effective criminal investigation. The attack by the Israeli on the court was two-folded. On the one hand, the Israeli tried to attack the Prosecutor’s integrity, for example by offering former prosecutor Fatou Bensouda concealed bribes, or setting up a smear campaign against her husband in an attempt to pressure her into dropping the investigation. On the other hand, Israeli security forces conducted a widespread surveillance operation that was aimed at obtaining as much information as possible on the ongoing investigation, for example by monitoring telecommunication. Hence, any incidents that the ICC would investigate would then also be addressed by the Israeli authorities in a clear attempt to conceal evidence, influence witnesses and sabotage further investigation. Under the complementarity principle – a key principle of the Rome Statute – the ICC will not have jurisdiction if crimes are effectively and genuinely investigated by national states. Hence by obtaining information on which specific incidents the Prosecutor would focus on, the Israelis tried to set up fake national investigations into those same incidents in order to convince the ICC Prosecutor that no further action on the side of the ICC would be needed.
In addition to Israeli sabotaging attempts, the Prosecutor and his staff also fell victim to serious threats uttered by US Senators which equally tried to force the Prosecutor to abandon his investigation. In a letter dated 24 April 2024 and delivered to the Prosecutor’s office in The Hague, US Senators[1] wrote:
“Target Israel and we will target you. If you move forward with the measures indicated in the report, we will move to end all American support for the ICC, sanction your employees and associates, and bar you and your families from the United States. You have been warned.”
In the eyes of the plaintiffs, these threats equally amount to the crimes under Dutch law that should be further investigated. The criminal complaint therefore mentions these Senators, in addition to senior Israeli security agents, as potential suspects in this case.
Public responses to the allegations
Prosecutor Khan recently strongly condemned these attempts to influence the ICC investigation, albeit without explicitly mentioning Israel. Furthermore, various State Parties felt compelled to publicly express their support for the Court and efforts undertaken by the Prosecutor’s Office.
Concerns from the plaintiffs
Despite the Israeli attempts, on 20 May 2024, Prosecutor Khan announced that he would issue arrest warrants against Benjamin Netanyahu, the Prime Minister of Israel, and Yoav Gallant, the Minister of Defence of Israel. Nonetheless, the Israeli attempts to influence and sabotage the ICC investigation form a clear attack on the plaintiffs' right to justice. A prosecution by the ICC would have enormous significance. The Palestinian population, including the plaintiffs and their relatives, have been oppressed by Israel for decades, which is taking their land, destroying their homes and crops and subjecting them to an illegal apartheid system. These structural violations do not even yet include the many violent and arbitrary attacks carried out against Palestinians by the Israeli army and Israeli nationals against Palestinian civilians. It is precisely these structural human rights violations, and these violent attacks, on which the Criminal Court's investigation focuses. Israel's many attempts to influence, sabotage and stop the investigation thus constitute a direct violation of their right to justice.
Furthermore, these attempts align with a longer existing anti-court rhetoric which deeply concerns the plaintiffs. The Israeli threats and intimidation seem to have opened the way for worldwide attacks on and undermining of the authority of the Criminal Court. Earlier, several UN experts have criticized the many threats and imposition of sanctions against ICC staff. The fear is that these forms of intimidation will eventually lead to the Court feeling so pressured that it halts investigations into Israel in an attempt to protect other investigations. It is also feared that Israel and the US could put such pressure on the Palestinian Authority that it would stop cooperating with the criminal investigations by the Court, effectively shutting it down.
Why the Netherlands?
A host state to the ICC, the Netherlands has a special obligation towards the ICC to guarantee the safety of its staff, as well as “the proper functioning of the Court, free from interference of any kind.” From the above publications and the responses it invoked, it appears that this “proper functioning” is put under pressure and so much so that action is not only desirable but even needed. Plaintiffs therefore call upon the Dutch authorities to start their own criminal investigation. Jurisdiction would be derived from the fact that many of the alleged crimes have taken place on Dutch territory as the Office of the Prosecutor, from which the investigation is carried out, is located in The Hague
Further information
Plaintiffs are being represented in this matter by Barbara van Straaten, lawyer and partner at the Dutch law firm Prakken d’Oliveira.
[1] Tom Cotton, Marco Rubio, Mitch McConnell, Katie Boyd Britt, Marsha Blackburn, Ted Budd, Kevin Cramer, Bill Hagerty, Pete Ricketts, Rick Scott, Tim Scott and Ted Cruz.