There have been extensive secret contacts between the International Criminal Court Prosecutor’s Office and Israel about the possibility of the chief prosecutor visiting Israel and the Palestinians at least dating back to June of this year, and probably earlier, The Jerusalem Post can now exclusively reveal.
These contacts, along with last-minute personal diplomacy, are what led to the chief prosecutor’s surprise unofficial visit on Thursday.
What follows is the first description of those contacts, which until now have been kept highly confidential due to the enormous geopolitical and legal consequences, not only of such a visit, but of the existence of the dialogue itself.
Israel has been concerned about such a visit since day one because the ICC could use such a visit to collect evidence against Israelis for alleged war crimes or otherwise use the visit to paint Israel with the war crimes label.
Accordingly, Israel did not agree to even an unofficial visit by the prosecutor in Gaza. Formally, Israel has said that it cut all ties with the ICC as of March 2021, when former chief prosecutor Fatou Bensouda opened a full criminal war crimes probe into the IDF’s conduct of the 2014 Gaza conflict and the West Bank settlement enterprise.
This is not just a diplomatic issue, as legally Jerusalem has said for years that it does not recognize the ICC’s jurisdiction, such that even informal interactions are under a microscope in terms of their significance and meaning.
Should the ICC decide to prosecute and issue arrest warrants for Israelis, this could obligate around 125 countries, including essentially the entire EU, to arrest Israeli soldiers or officials, something which could alter the Jewish state’s global standing in a very negative way.
From the ICC’s perspective, talks with Israel are extremely sensitive for at least two reasons. If the ICC appears too friendly to Israel, it could anger a large number of its 125 member states, many of which want to see Israelis prosecuted for alleged war crimes.
In addition, if and when a country ignores the ICC, this could present the institution as ineffective, an image it has worked hard to push back against. Accordingly, Khan made it clear that his visit was unofficial and that he was to spend more time with the families of the victims of Hamas's October 7 invasion, with no public itinerary for meeting with Israeli officials.
The first time that current ICC Prosecutor Karim Khan mentioned Israel in any serious way in public was in December 2022, when he told the ICC’s Assembly of State Parties that he hoped to visit “Israel-Palestine” by the end of 2023.For around 18 months until that point, and for nearly another 11 months until October 29 of this year, Khan made no other public pronouncements on the issue.
However, at least as of June of this year, and probably earlier, the ICC told the Post that it believed with a high level of certainty, based on Israeli signals and its dialogue with Jerusalem in general, that Israel would facilitate a historic visit by Khan to he region sometime between July and September of this year.
From mid-July to mid-August, the ICC continued to confirm its strong level of certainty of such a visit to the Post.
As of mid-September, when the ICC’s original predictions that Israel would soon allow it to visit Israel-Palestine turned out to be incorrect, the ICC told the Post that the visit would be delayed, and also downgraded somewhat its certainty of a visit.
It is unclear exactly what changed, but late July-October 7 was a period of intense internal turmoil over the judicial overhaul, which could have cast Israel in a negative light because it would have highlighted threats to the independence of Israel’s judiciary.
Israel might have been less open to a visit which would have emphasized these weaknesses.
Conducting a visit during such a period could have been seen as even more controversial and having even more unpredictable consequences than in calmer periods.
Still, even in mid-September, only around three weeks before the outbreak of the current war on October 7, the ICC believed it was more likely than not that Israel would agree to a visit by Mr. Khan before the end of November.
The outbreak of the October 7 war reshuffled the playing field.
A new playing field
On one hand, from the Israeli perspective to the extent it had been weighed seriously, having Khan visit was now much more problematic even than the judicial overhaul era because of the allegations of war crimes, the new larger number of dead Palestinian civilians, and the harsh images of destruction in Gaza.
From the ICC’s perspective, the Israel-Palestine issue jumped from something on the distant back-burner compared to Russia-Ukraine and other flagship cases, to the top three or four of its public priorities.
Mr. Khan’s office started to push far more aggressively to visit. This culminated with his highly public October 29 visit to the Egypt-Gaza border where he demanded that Israel let him in and drew attention to what he called Israel’s delaying of humanitarian aid to Gazan civilians.
Khan also conducted his first real interviews on the Israel-Palestine issue with Reuters, BBC, and CNN - this after almost two-and-a-half years in office.
Even after he visited the Rafah border crossing, the ICC harbored some small hope that his public relations campaign would convince Israel to let him into Israel and Gaza for another week or so into the start of November.
At some point in November, Khan’s office understood Israel would not allow him to visit if he insisted on visiting Gaza and that a visit to the families of victims of October 7 could be a way around the impasse.
All of this comes against the background in which the ICC and Israel had carried along a more serious, if still informal dialogue, between July 2015 and mid-2021, including a physical visit by a whole team of ICC officials in October 2016 to Israel and the West Bank.
It is unclear what Israel and the ICC’s next moves will be, how the next stages of the war, and the geopolitics of what happens in Gaza “the day after” the war will impact the future of their dialogue and what decision Khan ultimately makes regarding war crimes allegations against the IDF and the settlement enterprise.
But there is no question that, despite Israel’s efforts to present to the world Hamas’s systematic abuse of civilian locations, such as hospitals, mosques, schools, and civilian homes, and its equally systematic use of civilian human shields, Israel faces far more attention now from the ICC than it has for most of Khan’s era, when the issue was much lower on his priority list.
On the record, the Prime Minister’s Office, the Foreign Ministry, the Justice Ministry, and the IDF Legal Division all declined to comment due to the issue’s high sensitivity.
An Israeli source did add that, “Israel does not recognize the jurisdiction of the ICC regarding the Israeli-Palestinian conflict.”
However, the Post understands that top Israeli officials would not deny significant aspects of the ICC’s narrative about the parties’ dialogue and the potential for a visit, which just before press time turned out to be true.