38 No. 73 JUSTICE collaborate with its allies, and to receive from them arms supplies and diplomatic support. There are also going to be increased efforts to bring criminal cases in foreign courts against Israeli service members, like the recent attempt involving a former Israeli general who is now a serving diplomat in Belgium, based on his alleged involvement in blocking or delaying the entry of humanitarian aid into Gaza. To be sure, Israel could have responded better to these development by setting up a robust mechanism of investigation. This might have helped to convince both the Court and Israel’s allies that it is taking meaningful steps to look into the allegations levelled against it. At the same time, the arrest warrants also come at a difficult moment for the Court itself. Fears have been expressed by supporters of the Court that it might have bitten more than it can reasonably chew by going after the Israeli leadership. The Trump administration, taking office in January 2025, includes many sworn enemies of the Court who led initiatives to sanction it under the previous Trump administration, and who – in all likelihood – will now go even more aggressively after the Court, its officials, and even states that support the court. The issuance of the arrest warrants now is risking a significant blowback, which, to some extent, would be facilitated by the notion that the Court was quite loose with establishing jurisdiction in the Palestine case – it issued arrest warrants without fully establishing that it has jurisdiction over the case; and that it has adopted a very thin version of complementarity – significantly diluting the duty of the Prosecutor to notify states about the contents of his/her investigation. Such a blowback is further encouraged by the very expansive view advocated by the Court in recent years – mostly in contexts unrelated to Israel – concerning the immunities that serving heads of states have under international law. The Court has adopted a number of decisions suggesting that no head of state – including states that have not joined the Court – enjoys immunity from the Court, and that Member States are required to ignore such immunities and to surrender to the Court foreign heads of state who visit their territory. The combined effect of being loose on jurisdiction, thin on complementarity, and aggressive on the issue of immunities will cause even supporters of the Court to doubt the general direction in which it is headed. The fact that the Court is also dealing with an alleged sexual harassment scandal that directly implicates the Prosecutor is not making things easier for it. In light of all of these considerations, I believe that the Court would do well to look for a way to avert a fullfledged collision with the incoming U.S. administration. The only way to do so at this point in time would be for Israel and the Prosecution to reach some agreement about modalities for domestic investigation that could satisfy complementarity requirements in a way that would parallel the ways in which Venezuela’s President Nicolas Maduro and the Prosecution have reached an agreement on how to conduct domestic proceedings regarding allegations of international crimes. n Professor Yuval Shany is the Hersch Lauterpacht Chair in International Law and former Dean of the Law Faculty of the Hebrew University of Jerusalem. He also currently serves as Senior Research Fellow at the Israel Democracy Institute and as a Research Fellow at the Ethics in AI Institute in Oxford. He was a member of the UN Human Rights Committee between 2013-2020 (chairing the Committee between 2018-2019).
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