Now in its tenth year, the ICC has faced criticism for a perceived bias towards prosecuting cases in Africa.
The decision by the African Union (AU) to shift its bi-annual Summit from Lilongwe, Malawi to Addis Ababa, Ethiopia in response to Malawi's refusal to allow the participation of Sudanese Head of State Omar al-Bashir has thrown into sharp relief the potential of conflict between African regionalism and international mechanisms to promote and protect rule of law, justice, and respect for human rights. Omar al-Bashir is the first sitting Head of State to be charged by the International Criminal Court (ICC) and faces arrest warrants for genocide, war crimes, and crimes against humanity.
The situation is highly complex. On the one hand, rule of law, justice, and human rights are at the core of the AU's 2000 Constitutive Act (2000), as well as ground-breaking standards such as the African Charter on Democracy, Elections and Governance (2007) and the African Charter on Human and People's Rights (1981).
On the other, there is variable geometry among AU member states in terms of the extent to which they adhere to these laudable norms and standards in practice. On the Bashir question, Malawi has broken ranks with the AU, which is not to honour the ICC warrant. While some observers view this latest episode as yet another indication of the AU's inability to practice what it preaches and what its member countries have signed up to, others argue that the problem lies with the ICC itself.
As it celebrates its tenth anniversary, there is a persistent refrain from the ICC's critics that by focusing almost exclusively on pursuing and prosecuting Africans, the Court has shown itself to be complicit in an international conspiracy led by Western nations - some of whom have refused to sign the Rome Statute that established the ICC.
While few would condone many of the actions of the regime in Khartoum, Bashir's defiance of the arrest warrant has made him something of a cause célèbre among those who see the ICC as anything but impartial. Indeed, and with the exception of a handful of African states, Malawi being the latest, the AU community has been consistent in its opposition to the ICC.
Most recently, Kenya (which faces the possibility of two of its presidential candidates being jailed by the ICC for alleged crimes against humanity) has sought to lobby for the ICC to be set aside in favour of regional alternatives - notably the Arusha-based African Court of Justice and Human Rights, and the East African Court of Justice. The problem is that neither of these bodies has as yet demonstrated an appetite to sanction offenders against the principles they were set up to uphold.
The decision to move the AU summit has sparked considerable debate. As Edge Kanyongolo argues in the July 1 edition of Malawi Today: "When African political leaders turn on their own citizens and subject them to oppression, violence and plunder, what should be the response of the genuine pan-Africanist? Surely, it cannot be to jump to the defence of those leaders in the name of pan-Africanism." Malawian opposition leader, Friday Jumbe, is just as unequivocal, staring: "We cannot be forced to host a summit on the condition that al-Bashir, who everybody knows is hunted by the international community, should come to Malawi."
Beyond Malawi, other civil society actors have seized on the controversy to step up demands for increased accountability from their governments on this front, including in Kenya, South Africa Uganda and Zambia.
It is unlikely that the stand-off between the anti-ICC majority of AU member states and the pro-ICC lobby will be resolved overnight. That said, and as further episodes of the story unfold, African and non-African states alike will be forced to confront the apparent contradictions between their rhetorical support for rule of law, good governance and human rights on the one hand, and what happens in the day-to-day realpolitik of international relations on the other.
Caroline Kende-Robb is Executive Director of the Africa Progress Panel. The Panel, chaired by Kofi Annan, promotes Africa's development by tracking progress, drawing attention to opportunities and catalysing action. Its latest annual report, "Jobs, Justice and Equity," can be read at http://www.africaprogresspanel.org/en/pressroom/press-kits/annual-report-2012/