Chicago Journal of International Law


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. 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. 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. [CONT]