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Israel's Shame: NSO and Pegasus Are a Danger to Democracy Around the World

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NSO's Pegasus spyware, a cyberweapon that hacks cellphones thus enabling state-sponsored terrorism against civil society, has outraged the world. In Israel, there's complicity – or complete indifference
NSO's Pegasus spyware, a cyberweapon that hacks cellphones and enables state-sponsored terrorism against civil society, has outraged the world. In Israel, there's complicity – or complete indifferenceCredit: AP

"The violation of Israeli settlers' right to ice cream": The Ben & Jerry's "outrage" is what most of Israel’s media, government and the Israeli public have been obsessing over for the last 24 hours, while in the rest of the world, newspapers headlines have been publicizing Israeli surveillance company NSO’s complicity in the political persecution of journalists, lawyers, politicians and human rights activists.

Since 2017, when NSO's involvement in political persecution in Mexico was exposed, there has been a steady flow of investigations around the world into its other human rights violations, and every few months more findings have been published.

And in Israel, there was, and is, general indifference, both in the public square and in the political sphere.

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A charitable explanation of that indifference in Israel would be based as stemming from the (mistaken) belief that these were isolated, exceptional cases, or that the publications that exposed the misdoings were inherently "anti-Israel."

But even now, when the trickle of information about NSO has become a tsunami, in particular its Pegasus spyware (believed to have been acquired by numerous authoritarian governments as a spyware weapon to target political opponents, journalists and human rights activists), Ben & Jerry's decision to stop selling its products in the occupied territories is still the most discussed issue in Israel – and the trigger for the loudest outrage.

Activists and journalists protest outside Mexico's Attorney General's Office after a criminal complaint following a report their smartphones had been infected with spying software made by Israel's NSOCredit: Carlos Jasso/ REUTERS

Perhaps there was never any reason to expect otherwise from a state that defines itself as democratic but, for 54 years, has been holding millions of Palestinians hostage to its whims.

After 12 years of Benjamin Netanyahu's tenure as prime minister, in which human rights activists and Knesset members were smeared as supporters of terrorism, critical journalists deemed enemies of the people and left-wing voters as traitors, why would the Israeli public, which had grown accustomed to view dissident voices as enemies, care about what happens to journalists in Azerbaijan, India or Hungary?

If Israel holds hundreds of Palestinians in administrative detention, without trial at all times, why would there be any outcry if new friends Saudi Arabia and Rwanda use an NSO system, born and bred in Israel, to incriminate opposition activists so they then rot in prison?

Israel’s Prime Minister Naftali Bennett, its Ministry of Foreign Affairs, and other cabinet ministers decided it was urgent and essential to condemn in a unified demagogic wave the ice cream brand’s decision and even claimed, implicitly or explicitly, that it fueled antisemitism and terrorism.

But they all retain the right to remain silent regarding the Defense Ministry granting licenses to NSO, which serve in practice as licenses for state-sponsored terrorism against civil society around the world.

Even Meretz, the party which has traditionally championed human rights, has lost its voice. Now ensconced in government after 20 years of exile in opposition, with two senior government portfolios and representation in the foreign affairs-national security cabinet, the paty is now feigning innocence, or ignorance, and prefers to keep mum rather than fretting about a "minor" issue such as human rights.

Opposition Congress Party workers protest Indian Prime Minister Narendra Modi’s government of using spyware from Israel-based NSO Group to surveille political opponents, journalists and activistsCredit: Manish Swarup,AP

Meretz has adopted the Machiavellian pragmatism of the Ministry of Defense, which, by licensing NSO, serially prioritizes the support of dubious allies to quash resolutions unfavorable to Israel in global forums - human rights and international law be damned.

It’s a dismal decline for a party that once led the Knesset to consider its moral conscience, proposing to amend the 2007 Defense Export Control Law to include a ban on exporting goods or services that could be used to violate human rights. Now-Minister Tamar Zandberg once filed a petition to actually revoke NSO's export license to Mexico.

But now, Meretz is content to settle for a request for "clarification" from Defense Minister Benny Gantz. Why not demand that Gantz immediately freeze all NSO export licenses? What other clarifications does Meretz need? Would Meretz ask the science minister for "clarifications" as to whether the earth is round?

Two petitions have been filed in the courts regarding NSO's export licenses. A gag order was issued in the court’s ruling in March 20, 2018 on the export of the company's system to Mexico. Israeli Supreme Court President Justice Esther Hayut, and Justices Yosef Elron and Menachem Mazuz, who heard the petition, approved for publication only the bare fact that they’d rejected the petition to block sales to Mexico.

Judge Rachel Barkai, who heard another petition, following the exposure by Amnesty International of an attempt to attack one of its staff member with the Pegasus spyware, wasn’t satisfied with merely rejecting it but chose, in her ruling of 12 July 2020, to pay gratuitous tribute to the Ministry of Defense for its adherence to human rights norms in issuing licenses for defense exports.

A city worker paints over a graffiti depicting jailed Russian opposition politician Alexei Navalny in Saint Petersburg, Russia. The graffiti reads: 'Hero of the new age'Credit: ANTON VAGANOV / REUTERS

Israel’s judicial system has thus serially missed opportunities to prevent NSO and Israel’s Ministry of Defense from becoming a real and present danger to democracy all over the world.

Two weeks ago, High Court justices Alex Stein, David Mintz and Anat Baron rejected a petition to revoke an export license to Russia granted by the Ministry of Defense to the Cellebrite system, which has been used to hack into the cellphones of activists in Alexei Navalny’s anti-Putin, anti-corruption organization.

The judges went even further, blocking further petitions on the issue, ruling that defense export policy, as the prerogative of the state, is not subject to judicial review - except for extreme cases "involving abuse of authority, conflict of interests or extremely unreasonable conduct." It is no longer clear that there is a path through Israel's courts to fight the sale of cybertech to repressive regimes.

Only time will tell whether escalating international pressure will succeed in changing the State of Israel’s defense export policy for the weaponry of spyware any more than international pressure is helping end the occupation. Clearly, past experience is no cause for optimism, no matter the riptide generated by the Pegasus revelations.

Eitay Mack is a human rights lawyer and activist based in Jerusalem specializing in the issue of Israel’s arms trade. He filed the petitions to revoke the NSO and Cellbrite defense export licenses and participated in writing the bill banning the export of defense-related goods or services that could be used to violate human rights mentioned in the article above

Translated from Hebrew by Ofer Neiman

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