HOW does Africa resolve the apparent conflict between its preferred "government of national unity" method of resolving crises, and the ethical requirement of justice for the victims and retribution against the perpetrators of crimes against humanity?

This tricky question lies at the heart of Africa’s response to an increasingly active force in diplomacy, the International Criminal Court (ICC).

The ICC has been described as "arguably the most significant international organisation to be created since the United Nations".

This may be, but the organisation has found itself at odds with a mandate that conflicts with African peacemakers.

The best example is the decision to prosecute Sudan’s President Omar Hassan al-Bashir for the massacres in Darfur, which was vocally decried by the African Union (AU). These conflicting mandates have the potential either to derail sensitive negotiations or to allow serial perpetrators of mass injustice to escape.

It is a scenario that has been apparent for decades. As SA’s Judge Richard Goldstone has commented: "Too often ‘never again’ becomes ‘again and again.’"

The record of the ICC is also in question. Ad hoc tribunals set up to prosecute the perpetrators of genocide, war crimes and crimes against humanity in individual conflicts such as the wars in the former Yugoslavia and Sierra Leone have succeeded in putting on trial the most senior political and military leaders, from Radovan Karadzic to Charles Taylor.

But the permanent ICC has so far started just three trials and convicted only one person, Congolese warlord Thomas Lubanga.

However, the ground is shifting. There is a new mood at the AU, symbolised perhaps by a new administrative head, former home affairs and foreign affairs minister Nkosazana Dlamini-Zuma. And the ICC is finding its feet, bringing prosecutions faster and being called on to help more often. There is also some unfamiliarity about the nature of the court’s jurisdiction, which is extremely circumscribed by the nature of what it can investigate, where it can investigate, and at whose instance.

Only 97 countries have ratified the founding Rome Treaty, about half the possible signatories, of which 26 are African states. These exclude three of the world’s largest powers, Russia, China and the US.

Generally, the court can’t pursue a prosecution within a nonsignatory state. The alternative is for the United Nations Security Council to request a prosecution, but this is fraught with danger since some of the council members will be voting for prosecutions even though they would probably veto investigations into their own actions.

This fact, and the fact that all the investigations have focused on African countries, have helped boost the notion that the court is a kind of hypocritical, post-colonial imposition that does not respect the territorial integrity of African states.

Yet here, too, things are changing. One of the biggest proponents of this idea was former Libyan leader Muammar Gaddafi, a big financial supporter of the AU.

He is now gone and, in an odd twist of fate, his son, Seif al-Islam, who has been arrested at the instruction of the ICC and is in custody, is currently trying to insist on the court’s jurisdiction in preference to that of his home country, since a home trial would probably result in his execution.

As ICC prosecutor Fatou Bensouda pointed out this week during a visit to South Africa, the search for peace and the search for justice need not necessarily be mutually exclusive. The ICC, she says, works for the victims, and they deserve both peace and justice. The fact is, however, that the AU needs to accept that the ICC is now a fact of life. Increasingly, African countries are themselves calling for ICC help. Ms Dlamini-Zuma could and should help the AU to find new ways to accommodate that change.