My apologies to readers: this column was supposed to be the first exclusive interview of an Israeli reporter with current International Criminal Court Chief Prosecutor Karim Khan.
In fact, after extensive negotiations lasting over a week, by email on June 6, at 7:02 p.m., the ICC Prosecutor’s Office confirmed that it would grant The Jerusalem Post an interview either in-person upon the prosecutor’s expected visit to Israel in the July-September period or by Zoom no later than November 30, if an actual visit to Israel still had not occurred.
Right before this article went to press, it was revealed that the prosecutor had landed in Israel on a surprise visit to the Israeli victims of October 7.
It should be noted that I had offered to come to The Hague in February of this year and on other occasions.
Also, it should be noted that the Post was the first Israeli outlet to interview Khan’s predecessor, Fatou Bensouda, in early 2016 in The Hague, and that the Post also interviewed the ICC’s Head of the Jurisdiction, Complementarity and Cooperation Division, Phakiso Mochochoko, during his visit to Israel in late 2016.
The Post also interviewed Bensouda again in a series of communications in January 2020 and maintained strong contacts with a number of sources in The Hague over time.
Besides June 6, Khan’s Special Assistant, Jonathan Agar, confirmed the interview deal on July 11, August 14, September 15, October 12, and November 3 – and to this day never gave an explanation for why he and his office decided to renege on the deal.
The background to the deal was that from May 9-13 of this year, there was a large round of conflict between Israel and Gaza, with Islamic Jihad firing 1,468 rockets at the Jewish state and the IDF air force striking Gaza back around 700 times.
With this conflict being the first major one of Khan’s term and foisting the Israel-Palestine war crimes allegations issue back into the headlines, I was able to confer with a number of top Israeli sources about their ties and perceptions of the ICC under Khan.
Part of the narrative which came out of both these consultations and simply following Khan’s own public statements (and the absence thereof about Israel-Palestine) – and the low budget he maintained for probing the IDF, Hamas, and Islamic Jihad – was that the Jewish state, the West Bank, and Gaza simply were not hot issues for him.
Khan had walked away from potential war crimes cases against US military officials for their conduct in Afghanistan and seemed to be doing the same, or at least shelving the Israel-Palestine issue.
Those on the Palestinians’ side had been complaining about Khan being too passive with Israel for two years, so in some ways the Post’s story was not novel.
But the story which the Post was going to publish was going to be an Israeli newspaper, based on Israeli sources, making this point – something which apparently worried Khan’s office.
In addition, Khan’s office knew that the Post had a track record of treating their officials fairly, so when we approached them for an interview on the issues in play, the ICC Prosecutor’s Office probably also saw a potential opportunity to reach a wider audience – including in Israel, the US, and elsewhere – than it normally reached with most of its focus usually being on African genocide and war crimes.
In exchange, for the promise of the interview (which the Post believed would occur within one to three months based on representations by the ICC), we agreed to hold the story until the interview and to keep confidential what the court had told us about its ongoing dialogue with Israel for Khan to visit.
We kept the deal for six months – until today, when it became definitively clear that the ICC had decided to break the deal.
The reason could be that the current Israel-Gaza war has made the whole issue more combustible than ever, but the deal itself was made weeks after a significant Israel-Gaza conflict, so the ICC cannot say that it could not have foreseen that sensitive issues would come up.
The reason could also be that the ICC prosecutor was considering visiting Israel and the West Bank, without visiting Gaza as it turned out late Thursday night, and decided to withhold this information from the Post.
So what can a news organization do when a powerful global official promises an interview and then turns out to be lying or changes their mind?
Unfortunately, not very much. There is no compensation lawsuit to file and no way to compel the ICC’s office to dismiss employees who do not keep their promises, even in writing.
But there is one thing a news organization can do.
In response, we decided to publish why we held our story as well as to publish our story.
In this case, this involves breaking the confidentiality we agreed to with the ICC, but the confidentiality was based on a reciprocal promise that the court broke.
The Post’s top editors were involved in the decision about what to publish and what not to publish, as well as an outside and independent journalistic ethics expert with several decades of experience.
In fact, while another member of the ICC’s media department also led the Post to believe that there would be an interview, and communicated extensively with us about the topics and conditions of the interview, the outside expert recommended keeping that spokesperson anonymous for various reasons, which we accepted.
Jerusalem Post Managing Editor David Brinn said, “We gave the ICC Prosecutor’s Office an unprecedented approximate six months to follow through on their promise in writing to grant an interview with Prosecutor Karim Khan, but given that broken promise, we were freed to publicize information which the ICC used to convince us to delay our exclusive story.”
The reason the Post delayed its story was the promise of an in-person interview in Israel because the ICC had a dialogue with Jerusalem about visiting. Without publishing that information, there is no way of making sense of our decision to delay our initial exclusive story.
The story of the ICC’s dialogue with Israel is running in print and online parallel to this article and the Post is making various updates to its original story in light of the current war, with that story expected to run in the coming days.Mr. Khan is not media shy and has interviewed on Israel-Palestine issues with CNN, BBC, Reuters, and written an op-ed in The Guardian.
Despite the ICC reneging with the Post, it is our hope that it will show the courage to reach out to some Israeli media outlets in the near future, maybe while the prosecutor is currently in Israel.
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