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SURVEILLANCE MENACE OP-ED

Embargo against invasive Israeli spyware essential after International Court of Justice ruling

Embargo against invasive Israeli spyware essential after International Court of Justice ruling
Illustrative image | (Photos: Rawpixel | iStock)

Southern Africa has proved to be very much open for business for Israeli spyware, despite the fact that controls on the uses of these technologies barely exist. Governments have invested in spyware to monitor opposition movements.

On 26 January 2024, the International Court of Justice found that there was a sufficiently plausible case of genocide to be made against Israel in its military actions against Gaza, and ordered provisional measures to prevent genocide.

While it may take years for the actual case – brought by South Africa in terms of the Genocide Convention – to be concluded, this ruling marks a historic turning point. The era of impunity for the Israeli state in committing acts of violence in Palestinian occupied and de-facto annexed territories may have come to an end.  

The status quo has been for many countries to work with Israeli companies through the occupation, but no more. The ICJ ruling has opened the door to legal action, underpinned by mass action, in countries that may be aiding and abetting genocide. The impact of the ruling is already being felt in Israel’s main backer, the US. For the first time, there could be real consequences for governments in the West continuing to support the Israeli state.

Overwhelmingly the focus of efforts to stop arms sales to Israel have focused on importation of conventional arms to the country. However, there is a need for a two-way arms embargo with Israel, where countries are prevented from selling arms to Israel and where Israel is prevented from selling arms to the rest of the world, including Israel’s surveillance technologies. This is because doing so may well make those countries complicit in war crimes, including genocide.

World leader in surveillance

Israel has become a world leader in the manufacture and export of surveillance technologies, especially targeted spyware that allows its users to gather data from a person’s device without their knowledge and send it to third parties. Israeli spyware has been linked to many human rights abuses around the world. Repressive governments have used it to target journalists, activists and political leaders who could not be reasonably suspected of crimes.

It is not coincidental that Israel became a world leader in surveillance, since these technologies have become critical to its ongoing occupation of Palestinian territories. While Israel disputes the fact that it continues to occupy Gaza, technology has enabled occupation at a distance, while maintaining effective control.

Australian journalist Antony Loewenstein has referred to Palestine as Israel’s workshop to perfect the technologies of domination, and Israel then exports its occupation expertise to other parts of the world, using the calling card that these technologies have been battle-tested.

The repressive environment of the occupation has created an incubator for surveillance start-ups. By 2016, according to Privacy International, Israel had the highest number of surveillance companies per capita. Many have been started by spies who leave state intelligence agencies and commercialise their skills, and the lack of controls makes these revolving doors between public and private security sectors possible.

It is the existence of these revolving doors that makes nonsense of official claims that these companies are purely private and do not represent official Israeli state policy. As Loewenstein has argued, these companies further Israeli foreign policy as they sway countries to support it when supporting votes are needed in international institutions.

From communication and drone surveillance to public space surveillance using facial recognition, these technologies have become an integral part of Israel’s military occupation by subjecting Palestinians to constant monitoring. So invasive has this monitoring become that in 2014, veterans of Israel’s military signals intelligence unit 8200 wrote an open letter denouncing the ways in which the unit was being misused through harming and blackmailing innocent Palestinians by turning the most intimate details of their lives against them.

What makes Israel even more unaccountable for its export of spyware is the fact that it is not a signatory to the Wassenaar Arrangement on Export Controls for Conventional Arms and Dual-Use Goods and Technologies, although it claims to use the control lists in its own regulations.

The Arrangement is far from perfect, as it is a voluntary reporting mechanism for arms sales, and contains imprecise definitions of what it wants to regulate. However, in a welcome move in 2013, it was updated to include internet-based surveillance technologies for military and civilian uses, which would cover Israel’s exports.

Nevertheless, the Wassenaar Arrangement is encouraging governments to take the human rights and fundamental freedoms of the recipient countries into account before exporting to them, and not just focus on not exporting to countries subjected to sanctions. The fact that Israel does not want to sign up to this agreement is telling.

Southern Africa open to business for Israeli spyware

Despite the updates to the Wassenaar Arrangement, the global export control regime for spyware remains weak and not fit for purpose. In 2019, the then UN Special Rapporteur on the Promotion and Protection of the Right to Freedom of Opinion and Expression, David Kaye, concluded in a report to the UN Human Rights Council that “it is insufficient to say that a comprehensive system for control and use of targeted surveillance technologies is broken. It hardly exists.”

So serious is the potential for abuses that Kaye called for “an immediate moratorium on the global sale and transfer of the tools of the private surveillance industry until rigorous human rights safeguards are put in place to regulate such practices and guarantee that governments and non-state actors use the tools in legitimate ways”.

The Israeli industry’s marketing of surveillance offerings has been even more aggressive than China’s, which is also competing for a share of the southern African market.

Despite Kaye’s criticisms, the Israeli spyware industry has continued to benefit from this lack of regulation to find ready markets. While Israel is by no means the only country that does, it also sits at the apex of the problem by virtue of the particular circumstances of its spyware industry.

Southern Africa has proved to be very much open for business for Israeli spyware, despite the fact that controls on the uses of these technologies barely exist. Determined to maintain their grip on power and panicked by the mass protests that spread across the continent in the wake of the Arab Spring, governments have invested in spyware to monitor opposition movements.

A survey of communication surveillance laws in 12 southern African countries in 2020, and updated in 2022, found that governments across the region had given themselves powers to spy on people’s communications with insufficient limitations or safeguards, and for anti-democratic purposes. The intelligence agencies that use these surveillance powers are also largely poorly regulated and overseen, operating all too often as the political police of authoritarian leaders.

Rightfully, countries should be refusing these governments spyware on basic democratic grounds. But up to this point, business interests have spoken louder than principle. The Israeli industry’s marketing of surveillance offerings has been even more aggressive than China’s, which is also competing for a share of the southern African market.

Angola is a case in point, where according to legal scholar Rui Verde, Israel’s collaboration with Angola’s poorly regulated intelligence agencies and increasingly corrupt political elites has deepened. Former Israeli spies have become spies for hire for the purposes of evading justice and suppression of dissent.

In his critique of Botswana’s inadequate privacy protections, the University of Botswana’s Tachilisa Balule has described how the country’s Directorate of Intelligence and Security (DIS) engaged a company with strong Israeli ties to supply it with spyware with the capability to spy on internet communications, including the Circles spying system, and in addition to Cellebrite.

Circles specialised in leveraging weaknesses in communications infrastructure to send personal information to spy agencies, such as location information. It merged with NSO Group after being bought out in a US private equity deal. Evidence is in the public domain of DIS – which falls under the presidency – being used to spy on journalists, critics of the government and opposition members.

US visa restrictions can easily be circumvented by the Israeli weapons industry as they can just rebrand and form new companies in countries that are not targets of visa restrictions.

In the Democratic Republic of Congo, according to legal scholars Trésor Maheshe Musole and Jean-Paul Mushagalusa Rwabashi, former president Joseph Kabila’s government obtained spyware “that allowed it to wiretap opponents and activists, especially during electoral periods characterised by a dizzying increase of human rights”. Information emerged in the public domain that a company established by former Israeli spies, Black Cube, had stepped forward to assist.

All of this is in addition to the activities of the NSO Group, which has been active in selling its notorious Pegasus spyware to different African countries. An international collaborative journalism investigation identified South Africa’s President Cyril Ramaphosa as one prominent surveillance target.

These companies often argue that they only sell to governments for use in legitimate police and intelligence work. In the case of the above governments, though, spying is so poorly regulated as to be practically non-existent, and the Israeli government could easily establish that through basic due diligence.

The case for a full embargo against Israeli spyware

The NSO Group is under considerable pressure at the moment for cashing in on the repression industry around the world, and may not survive. The Israeli government, too, has felt the pressure. In the wake of the NSO Group scandal in 2021, it announced that it was tightening up its export controls, although the measures it adopted were easy to subvert.

Israel’s main backer, the US, is being forced by public pressure to act and the ICJ ruling has intensified this pressure. On 8 February 2024, the US announced further restrictions on visas for those abusing spyware to target journalists and activists in a thinly disguised effort to respond to pressure to act against NSO Group. This announcement is a small step in the right direction.

However, the Israeli spyware industry is a many-headed hydra, and the US visa restrictions can easily be circumvented by the Israeli weapons industry as they can just rebrand and form new companies in countries that are not targets of visa restrictions.

Israeli surveillance tools, including spyware, have been critical to the occupation and it is at least plausible that they have become critical to the most recent military operations in Gaza too. To the extent that this is so, then the companies that provide these tools could be complicit in the commission of genocide.

Never has there been a more important time to call for the isolation of the Israeli state, including through a two-way arms embargo that escalates beyond targeted sanctions. This embargo needs to cover those commercial spyware companies that have been made possible by Israeli militarism and that have become de facto extensions of the Israeli state.

The practice has been in the past for each Israeli war on the occupied territories to spawn new weapons and surveillance tools, which governments around the world then buy – but the ICJ ruling could well interrupt this cycle.

The measures that have been taken to control this dangerously out-of-control industry so far are too little, too late. Inhabitants of the occupied territories have been the biggest losers, but so is southern African political and civil society, struggling for democratic space. However, the ICJ ruling has increased the political possibilities for more radical measures. States importing arms and surveillance tools, including spyware, need to immediately stop these imports.

On 12 December 2023, 153 countries voted for a resolution calling for a ceasefire in Gaza, a vote that Israel appears intent on ignoring, along with the ICJ ruling. Most African countries voted in favour of the resolution, including recipients of Israeli spyware.

This voting pattern showed that the script of Israel relying on these countries for support in return for the repressive tools needed to pacify their citizens domestically, has been rewritten.

If these countries were to walk the talk and impose embargoes on this industry, then most of the Israeli spyware industry’s market would disappear overnight. DM

Jane Duncan, Professor, Department of Communication and Media, University of Johannesburg.

Gallery

Comments - Please in order to comment.

  • Ben Harper says:

    Hahahahaha

  • Francoise Phillips says:

    Let us not forget Israel’s leading role in the Kenyan election violence that saw Kibaki inaugurated as president hastily, late at night. Ruto and Kenyatta ended up at the Hague facing massive human rights abuse charges… and then where did the ANC and David Mahlobo get those ‘signal grabbers’ that cut all communications off to the People’s Parliament?

  • EK SÊ says:

    Can the author explain how Israeli spyware missed warnings of the attack on October the 7th? It makes a mockery of her claim that the Palestinians are constantly monitored and controlled.

    • Denny v d Plikkie says:

      Well the answer may be simple – and this is just my conjecture – Israel did know but it was extremely beneficial for them to ignore it, as it gave them cause to start a retaliatory war and further their occupational agenda. It makes sense to me because they can claim self-defense, and justify any action thereafter.

    • dexter m says:

      Hamas from reports went analogue and used written messages for communication. Also a few years back they captured Israeli operatives in the Gaza Strip and got hold of all their communication and spyware equipment intact.

  • Harold Uberstein says:

    Israel has every rite to protect itself. This pro-terror court and its evil membership, is doomed for terrorism, where the anti-semetic south africa commits all these crimes daily. ,with raping and murdering of farmers ,the aged and children. Shame in you anc .

    • JP K says:

      Israel does not that the right to commit what looks like genocide.

      The ICJ is constituted of justices from 16 different countries and headed by a US justice is a pro-terror court? It seems one has to perform all sorts of mental gymnastics to defend Israel’s atrocities.

      • dexter m says:

        It is like a article in the Economist ,bashing SA bringing the case of Genocide to the ICJ , but in the last paragraph of the same article it states Israel must take steps to adhere to International Law.

  • Denise Smit says:

    If only SA had spyware of any sort the 2021 horror in KZN and Gauteng could have been prevented

  • Joe Public says:

    George Orwell’s 1984 was quite prophetic. We’re living it, with Israel as the main protagonist.

  • Lil Mars says:

    A considerable of technology we use is Israeli. Ban the USB flash drive and Waze while you’re at it. Sick of DM Israel bashing.

    • JP K says:

      Consider the substance of the “bashing”. Israel is the subject of bashing because it is plausibly committing genocide. Even if the court doesn’t find against Israel, it has a long record of human rights abuses and violations of international law. It’s a pariah state and should be treated as such.

      Despite this, countries like the US, France, Germany, the Netherlands are supplying arms to them in contravention of their countries’ own laws (which basically prevent sales of arms to countries committing human rights abuses).

      Despite this, people attempt to defend Israel.

      Anyway. We’ll see how this goes. The bashing is not new but has little effect it seems. I guess they gave us the flash drive after all, right? And persimmons. And, as the article states, battle tested (read tested on Palestinians) military and surveillance technology.

    • Joe Public says:

      So you’re saying it’s OK if you spyware is developed for nefarious reasons and used by evil people. As long as you have your USB stick you couldn’t give a d**n about innocent lives in other countries.

  • Casey Ryder says:

    “A plausible case of genocide” is how the 26 January 2024 interim order of the ICC has been reported in the South African media. This phrase is used in virtually every article on the topic of the conflict in Gaza. But it is a misrepresentation of the order. The ICC found (and had to find, if it was to indicate any provisional measures) that the right asserted by South Africa are at least plausible. This is a curiously phrased requirement, but means that South Africa’s case would have been dismissed had it sought to protect rights that are “implausible”. Given that the rights that South Africa sought to protect were the rights of a group of people to be protected from acts of genocide as well as SA’s own rights as a convention signatory to protect compliance with the convention. It is therefore incomprehensible that the court could have decided that these rights were not “plausible”. The order of the court very expressly makes no findings on whether the acts complained of actually happened or whether they offended those rights. The framing that in doing so the ICC there was u “plausible case of genocide” is accordingly a material mischaracterisation. The persistent repetition does point to a conclusion that this mischaracterisation is intentional.

    • JP K says:

      Alternatively, the persistent repetition of “a plausible case of genocide” is not mischaracterisation but rather an accurate interpretation shared not just by SA media.

      Take one example: according to John Reynolds, an expert on the topic: “[South Africa] were asking the ICJ to order a set of provisional measures as an emergency, short-term intervention … to stop the genocidal harm that is happening right now … to do so, the court needs to be satisfied of the plausibility of the claim about the rights and obligations under the Genocide Convention being violated — i.e., that there is a plausible risk that genocide has been or might be perpetrated in Gaza.

      The court … [found] that the charge of genocide was plausible and allowing the case to proceed.”

      The ICJ notes: “there is urgency, in the sense that there is a real and imminent risk that irreparable prejudice will be caused to the rights found by the Court to be plausible..”

      SA’s lawyers in their additional measures application state: The Rafah population “are at serious risk of irreparable harm to their right to be protected from acts of genocide contrary to Articles II and II of the Genocide Convention, by a State which has already been found by this Court to be acting in plausible breach of its obligations under that Convention.”

      Former ICC judge president Eboe-Osuji “ICJ ruling sent an authoritative message to the world: allegations of genocide against Israel are not meritless”.

      And so on and so forth.

      • Casey Ryder says:

        John Reynolds is not a neutral academic voice on this. He has long had a horse in this race and he too mischaracterises what the Order says. This is not rocket science – simply read the full order. For my part, I do not have a horse in the race. There is no doubt in my mind that many of the policies of the current Israeli government offend international law and norms (in particular the statements from some of its ministers are shocking). There is also no doubt that Hamas is a brutal terrorist organisation fighting a very effective propaganda war. But mostly, I value the truth and the truth of what the ICJ ordered comes not from accepting the “interpretations” of advocates for one side or the other but from a reading the order itself. And that reveals the extent of the mischaracterisation.

  • The occupying powers in Palestine have lost their right to exist as an entity. They need to be uprooted and transplanted to Yankistan.

  • Enver Klein says:

    Well written article

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