The Clash of Commitments at the International Criminal Court

I. INTRODUCTION On July 10, 2008, International Criminal Court ("ICC") Prosecutor Luis Moreno-Ocampo informed members of the UN Security Council that he would be issuing an indictment against Sudanese President Omar Hassan al Bashir on charges of genocide and crimes against humanity for events in Darfur.1 The indictment, issued July 14, brought into stark relief the consequentialist debate over international criminal justice. Opponents of impunity celebrated the possibility that the international community might at last be willing to take concrete steps toward ending the Darfur genocide. On the other hand, aid groups on the ground feared retaliation and expulsion, and diplomats argued that the indictments would make a peace deal in Darfur more difficult to achieve.2 These varying responses echoed larger concerns over the ICC and the international criminal law enterprise more broadly. This Article examines the problem of international criminal justice as a problem of competing efforts to make credible commitments. States, it has been argued, want to make their promises to deter mass atrocity credible and so join the international court to ensure that this outcome will be obtained. The ICC itself has a legal and political imperative to make its promises of prosecution credible, or risk irrelevance. These efforts point in the direction of a functionalist need for international criminal prosecutions. On the other hand, states and the international community may sometimes need to make another type of credible promise, namely a promise not to prosecute or to grant an amnesty. The ICC seeks to make such promises impossible. The tension between these commitment strategies means that conflict at some point is inevitable. I call this the clash of commitments. The decision to indict Bashir brings the clash of commitments to a head. The clash of commitments provides a challenge and an opportunity to the ICC. Ocampo's decision to indict a sitting head of state of a party to the Rome Statute is a high-risk one. If it succeeds, it will do much to highlight the successful institutionalization of the ICC as an independent player on the international scene. If it fails, it will relegate the enterprise to the marginal position in which it now sits: politically subservient to powerful state interests. Which outcome is more likely cannot yet be predicted with confidence. But the dynamics are already quite clear. The final section of the Article reflects on this strategy of institutional development for a young court, analogizing to domestic and international predecessors. International judges, like domestic judges, must take institutional factors into account when making decisions. Given the scarcity of enforcement at the international level, the ICC judges need to establish a reputation of producing decisions that generate compliance. The clash of commitments provides a challenge and an opportunity to the international judges that run the ICC-their institution may be immeasurably strengthened or harmed by the outcome of this case. The Article concludes that the high-risk strategy of the prosecutor is a novel one that is likely, but not guaranteed, to fail. The Article is organized as follows. Section II discusses the ICC and the debate over its efficacy. Section III briefly describes the Bashir Indictment. Section IV presents what I have called the clash of commitments. Section V shows that, though one can imagine that such high-profile cases have the potential to solidify the reputation of a young court like the ICC, the conditions for such a result are unlikely in the context of international criminal law. Section VI concludes. II. The International Criminal Court and the Debate over Efficacy The ICC surely must hold the record among international tribunals for the highest ratio of scholarly literature to output.3 Widely anticipated, and adopted with great fanfare at the Rome Conference in 1998, the ICC has issued a total of twelve arrests involving four different African conflicts since it came into being in 2002. …