Op-ed | Embargo against invasive Israeli spyware essential after International Court of Justice ruling

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.