Chad Hazlett and Nina McMurry [Director of Protection; Advocacy Analyst, Genocide Intervention Network]: "The debate continues as to whether Sudan's President Omar al-Bashir should be offered a way out of a possible ICC indictment via Article 16 of the Rome Statute.

There are good reasons to worry that pursuing an indictment is a mistake. The first is that the situation is too fragile – that peacemaking or peacekeeping efforts will be too damaged by such an indictment. The second is that utilizing the potential for a deferral to force Bashir to do something to advance peace and security in Darfur – or at least to try the two officials already indicted in the Darfur case — is a better outcome than indicting him, particularly when it is not clear how or when he will be arrested.

Analyses that favor deferring an indictment on the basis of these concerns have generally dismissed arguments to go ahead with an indictment as impractically minded and willing to sacrifice peace for justice. However there are important practical reasons to allow justice to take its course. Also missing from the debate have been the voices of those with the greatest stake — the people of Darfur.

The first practical argument to pursue the indictment is simply that the cost of an indictment may not be as high as feared. There is barely a peace process in place to be "derailed," and under the status quo no effective protection force is able to deploy. Failing to hold those responsible accountable is not necessarily generating a better outcome than we might expect if we show Bashir and others that they will be held accountable. The doomsday scenarios imagined prior to the indictment attempt have not occurred.

In fact, we have never seen Bashir more responsive to international demands for peace than he has appeared to be since the indictment was requested. This might suggest that a deferral could be leveraged to achieve a better outcome. But it also requires that such a deferral be offered only in return for meeting very strict and verifiable conditions. Many of the deals currently being discussed would fail to utilize the leverage of a deferral to its fullest possible extent.

Even if a contingent deferral creates the leverage needed to achieve a real, effective deal on Darfur, we will still pay a cost for extending impunity for mass atrocities once again. This is not merely a long-term, theoretical concern about deterring future perpetrators — it applies within Sudan itself in the very near future. Bashir paid no price for atrocities committed during the war with South Sudan. If he pays no price for Darfur, there is no reason to expect he or others in the Sudanese government will refrain from using atrocities as a tool of political coercion or counterinsurgency in northern or eastern Sudan. One would not be surprised to see violence break out on a massive scale in Merowe or Kajbar, or a resurgence of attacks in Abyei or other strategic areas.

Finally, notwithstanding the value of these analyses, they neglect the perspective of the surviving victims of these crimes and potential victims of future atrocities. Darfurian civilians, both in Darfur and those now living in eastern Chad, have been overwhelmingly supportive of indicting Bashir. While we know of no systematic survey on the topic as yet (several are in the works), those who have recently discussed the issue with displaced Darfurians report that they strongly favor indicting Bashir and argue that there cannot be peace before Bashir has been removed from power. One recent report quoted a Darfurian refugee in eastern Chad: "to people who say that delaying his arrest would give peace a chance, we say no – it would just give him more chances to kill." Another asserted that, "Omar al Bashir must be taken to the court immediately. It is our demand."

The argument of Darfurians expressed here is also a practical one — they are not demanding justice for justice's sake, but because they believe peace and security in Sudan depend on it. One may fairly worry that if an indictment is made, we will still fail to make an arrest in the foreseeable future, thus making a contingent deferral a more "practical" option. On the other hand, an indictment is costly to Bashir even if an arrest cannot be executed. But more fundamentally, finding a way to make the arrest is our next challenge, not a reason to forego a move towards an international system of justice that actually works."