The panel of International Criminal Court judges weighing whether to indict Sudanese President Omar al-Bashir on 10 counts of genocide, crimes against humanity and war crimes related to the conflict in Darfur will reach a decision in the coming months. It is expected that the judges will allow the case against Bashir to go forward (ICC judges have granted all previous requests for indictments by Prosecutor Luis Moreno-Ocampo)—a move that is vigorously opposed by Sudan and its friends in the African Union, the Arab League and the Organization of the Islamic Conference. As the judges consider the evidence, Sudan and its allies have been lobbying for the United Nations Security Council to use its power under Article 16 of the ICC’s Rome Statute to delay an investigation or prosecution for up to 12 months at a time. It is in the interest of the people of Darfur that the Security Council votes in favor of such a delay.

The situation in Darfur is bleak. At least 300,000 people have died and roughly 2.5 million have been displaced since the conflict started in 2003. The refugee camps are plagued by insecurity; there have been widespread reports of rapes of civilians, attacks on aid workers and other violence. There is strong evidence that government-backed militias known as the janjaweed are behind much of this brutality. So the supporters of the ICC’s case against Bashir—such as human rights groups and many Western nations—are more than justified in their desire to bring him to trial.

However, unless the international community is prepared to unilaterally send a substantial number of heavily armed troops to the region to quell the fighting and provide security for civilians—an extremely unlikely scenario—then the next best option is to engage the Sudanese government and the numerous rebel factions in peace talks, and to work on deploying in full the 26,000-member U.N.-AU peacekeeping force, known as UNAMID, authorized by the Security Council in 2007. The Sudanese government has made it clear that it will not support either initiative if Bashir is indicted, and has even threatened to increase violence against civilians, humanitarian workers and the 10,000 peacekeepers that have already been deployed.

Tanzanian President Jakaya Kikwete, the current AU chairman and one of the continent’s most respected leaders, made a strong case for deferring Bashir’s case in his address to the U.N. General Assembly on September 23. He argued that an indictment would “complicate the deployment of UNAMID and the management of the humanitarian crisis in Darfur.” He rejected the notion that deferment meant “condoning impunity,” asserting, “We are simply concerned with the best possible sequencing so that the most immediate matters of saving lives and easing the suffering of the people of Darfur are dealt with first. Getting the support and cooperation of the government of Sudan is a matter of essence.”

Delaying Bashir’s case does not mean that he will never face justice. Given the volatility of Sudanese politics, Bashir’s position will undoubtedly weaken—especially if he is not able to use the ICC case to drum up nationalistic support. Some may point out that past African despots were allowed to escape justice by going into exile. But this pattern is changing. The Liberian civil war ended when President Charles Taylor agreed to resign and take refuge in Nigeria in 2003. He spent three years in comfortable exile before being arrested and taken to The Hague for trial before the Special Court for Sierra Leone. His arrest came after Liberia was on track to peace and stability.

Convincing the Security Council to invoke Article 16 may not be as difficult as it appears. Among the permanent five, China and Russia have already expressed support for a deferment. France and Britain have indicated that they would vote in favor if Sudan makes certain concessions. South Africa and Libya have already declared their support, and it is reasonable to expect Vietnam to vote with China, and Indonesia, the world’s most populous Muslim nation, to also back a delay. Ironically, the U.S., which has refused to become a party to the ICC, may be the most recalcitrant on this issue. It abstained from a July 31 vote on renewing UNAMID’s mandate due to language simply noting the AU’s objections to Bashir’s indictment.

Bashir’s case is not a question of justice versus peace. The priority in any conflict must be the security and well-being of civilians. The Security Council should consider carefully whether this priority is best served by indicting Bashir. There is a time for prosecuting the perpetrators of the crimes in Darfur, and that time will come when the fighting has stopped.

Written by Jennifer Dunham