Introduction
Grave wrongdoings such as genocides, crimes against humanity, war crimes, and other egregious acts have always raised fundamental questions about justice and accountability. Among these questions, none has attracted more attention than these: (1) How should we assess and judge the harm inflicted? and (2) How should we respond to such wrongdoing?
This contribution seeks to grapple with these questions by adopting an Ubuntu worldview, whose closest English approximation means a ‘collective personhood’ or in the words of South African Bishop Desmond Tutu, ‘the very essence of being human.’Footnote 1 From an Ubuntu understanding, it argues that wrongdoings of this kind produce deeper harms that go beyond the violation of civil, political, cultural, and social rights of those directly or indirectly affected to damaging their collective humanity in the following respects. Both for those harmed and those doing the harm, this wrongdoing delinks them from a shared humanity which is indispensable for their well-being and dignity. Nigerian historian J. F. Ade Ajayi refers to this kind of harm in the context of the transatlantic slave trade and slavery, when he notes that because of the kind of slavery which took away the children of enslaved people and denied them the right to own property, ‘Black slaves were no longer accepted as normal human beings.’Footnote 2 Focusing on the wrongdoer, Mechthild Nagel equally reminds us that ‘committing violent harm in warfare cuts off a soldier from the community, the ancestors, the spirit world, and such a person has literally lost their mtu (humanness and dignity).’Footnote 3 This kind of loss is conceivable in other contexts of oppression and violence outside war, which Nagel is concerned about, as long as the wrong appears grave.
The ultimate moral objective of justice and accountability in responding to this wrongdoing, according to Ubuntu, is restoration and reintegration of all who are impacted, particularly the wrongdoer, the wronged, and their community. Restoration is not about taking those impacted back to the status quo ante; rather, it is a forward-looking relational ethics that stresses the (re)emergence of a relationship of humanness free from the conditions that permitted the wrongdoing. Both the wrongdoer and wronged must be restored into a relationship in which they can contribute to and draw from their shared humanity, needed not only to prevent a recurrence of such wrongs but also to promote further collective goods such as solidarity, compassion, kindness, empathy, and so forth. Accountability, in whichever form, should be carried out to restore the wrongdoer to the humanity he forfeited and denied others in the act of wrongdoing. And there are two mutually reinforcing layers in which these principles of restoration must be invoked either simultaneously or sequentially. At the inter-personal and inter-communal level, those impacted need to embrace principles of social morality that mend their relationships and bring everyone back into the commune. At the structural level, Ubuntu justice calls for dismantling all systems of oppression and violence to open the possibility for restoration beyond the status quo ante. When these systems are taken down as a matter of justice, both the wrongdoers and wronged acquire relational standings that allow the fruits of social morality, such as solidarity, to (re)emerge.
Moral and legal concerns about egregious wrongdoing have underpinned accountability institutions and norms, such as transitional justice, international justice, the rule of law, and human rights, which emerged as a central pillar of the post-Cold War world order. Most efforts have been characterized by individualization which Jennifer Welsh et al. define as a process that centres individuals and individual values in the ethics, law, and politics of violence and remedy.Footnote 4 Individualization concerns ‘powerful normative developments related to human rights … which have spawned new kinds of wars and peacekeeping interventions and a new class of international crimes.’Footnote 5 After seeing wrongdoing as what happens between individual perpetrators and victims,Footnote 6 individualization ‘stresses punitive accountability for individual perpetrators’ and vindication of individual victims.Footnote 7 As Iris Marion Young puts it, ‘an actionable harm [is seen] as a morally and legally unacceptable deviation from background structures’ and justice depends on ‘punishment, redress, or compensation … to restore normality or make whole.’Footnote 8 While there is growing attention towards the violation of economic, social, and cultural rights, particularly in the context of present-day settler colonies, ‘commitment to individual human rights is now firmly embedded in norms and law’ with most concentrated on how ‘to design a better strategy and stronger institutions to ensure compliance.’Footnote 9 In the field of criminal accountability, notions of a ‘just desert’ and deterrence remain the two most dominant justifications for punishing individuals.Footnote 10
Whereas Ubuntu rectification does not discount the value of individual human rights and punitive accountability, it transcends them for the following reasons. First, it advances an understanding of grave wrongdoing and rectification in a deeper sense that supersedes the normative and legal considerations associated with a morality that centres the individual. Moreover, the greater good that Ubuntu encompasses cannot be equated with principles of individual human rights, even if it may incorporate individual freedoms and liberties. As criminal accountability measures such as incarceration and other forms of punishment hardly redeem or restore humanity, Ubuntu justice is needed.Footnote 11 In fact, with restoration of broken relationships as the overarching function of justice, Ubuntu may either eschew punitive accountability in favour of restoring such a relationship or seek to bring punishment into alignment with this collective good.Footnote 12 As Thaddeus Metz clarifies, ‘If what is most important about people is their capacity to relate communally, then reconciling in the sense of disavowing prior discord and advancing communion is a straightforward way of dealing with serious crimes.’Footnote 13 Before this contribution lays out these claims and uses the case of South Africa as an illustration, what comes next is the meaning of Ubuntu as an ethical and normative concept rooted in communitarian understandings of personhood and morality.
Ubuntu and communitarianism
Ubuntu is a moral–political concept about social relations between a human community and personhood. Specifically, it is ‘a worldview that attempts to capture the essence of what it means to be human, accentuating connectiveness and a sense of responsibility toward others.’Footnote 14 While the term originated among Nguni languages in Southern Africa, some versions of Ubuntu have been discovered by linguistic anthropologists in many different parts of the African continent (e.g., bumunthu in Tanzania, bomotho in Congo, gimuntu in Kenya, and vumuntu in Mozambique). At the core of Ubuntu is the belief that ‘a person becomes a person through other people,’ an axiom best expressed in Xhosa as Ubuntu ungamntu ngabanye abantu or in Zulu as umuntu ngumuntu ngabanye .Footnote 15 Each translates to mean ‘we belong in a bundle of life’ and ‘I am human because I belong, I participate, and I share.’Footnote 16 It is a humanistic ethics, which ‘articulates our inter-connectedness, common humanity, and the responsibility that flows from it.’Footnote 17 A defining element of Ubuntu is relationality, ‘the idea that moral status is constituted by some kind of interactive property between one entity and another, which demands realization or respect.’Footnote 18 Thomas Tieku argues that ‘the root of collectivist social life on the continent is to be found in the Bantu approach to life, wittily expressed in the saying that humans are humans because of other humans.’Footnote 19 For him, the concept explains why Africans behave as if they are ‘in relations’ rather than having relations with one another. Clarifying that belonging is another key constitutive part of Ubuntu ethics, Nagel notes that ‘to recognize the other as human is to say you belong to us, and we will have no part in excluding you from us.’Footnote 20
Ubuntu is grounded in communitarian thinking, which Ghanaian thinker Kwame Gyekye describes as the idea that ‘a person is constituted, at least partially, by social relationships in which he necessarily finds himself.’Footnote 21 The Indigenous Akan people of Ghana, who Gyekye has studied extensively, have numerous didactic proverbs to express such a communitarian view. For example, onipa yieye fin onipa means ‘the wellbeing of man depends on his fellow man’ while onipa nye abe na ne ho ahyia ne ho refers to the belief that a person ‘is not a palm-tree that he should be complete (or self-sufficient) without others.’ The Akan expression onnye onipa , or Yoruba kiise eniyan , translated into English to mean ‘you are not a person,’ is used to describe someone who lacks communitarian ethics. It must be noted that communitarianism explains why the African Charter of Human and Peoples’ Rights stands out as the first major international human rights treaty that attempts to balance individual human rights with peoples’ rights within a single framework. In addition to affirming that the family is the custodian of morals and traditional values recognized by the community, the charter assigns individuals a set of duties towards this social institution, including respect for their parents and preservation of ‘the harmonious development of the family and to work for the cohesion and respect of the family’ (Article 29). All is rooted in the understanding that the community plays an indispensable role in the individual’s acquisition of full personhood, regardless of their autonomous capacity.
As much of the discourse about communitarianism and Ubuntu is derived from Indigenous African societies, some are concerned that this worldview is too tethered to a particular region with little universal relevance. Others see an irreconcilable tension between communitarian ethics and individual freedoms and liberties commonly associated with Western liberal democracies. But the Akan thinking about community has much in common with Aristotle’s indomitable claim that ‘The human being is by nature a social animal.’ Collective goods such as solidarity, compassion, brotherhood, and reciprocity can be found in liberal cosmopolitan thinking about morality. Ubuntu values are basically human values that stress the significance of relationship to personhood everywhere. Gyekye even clarifies that ‘if the common good were understood as the basic good – as human good – as such, there would be no need to think of it as a threat to individual liberty as touted by Western liberal (individualist) thinkers.’Footnote 22 His work offers ‘accommodation to communal values as well as to values of individuality, to social commitment as well as to responsibilities to oneself.’Footnote 23 Tosin Adeate similarly reconciles the ‘I’ and ‘we’ in Ubuntu thought, calling for ‘a non-tensioned relationship between the community and the individual’ as well as between human rights and duties to one’s community.Footnote 24
What Ubuntu departs from is ideological individualism, an atomistic view of personhood that focuses exclusively on individual rights and individual autonomy. Specifically, Ubuntu advances a deeper conception of social morality beyond the ideas of liberal individualistic thinkers such as Jeremy Bentham, Immanuel Kant, and René Descartes. Kant located morality in human nature, which is an innate property available to everyone outside society, in the same way that French philosopher René Descartes defended cogito ego sum – ‘I think, therefore I am.’ Following Kantian and Cartesian conception of natural justice, the normative and ideological impulse of individualism has been either to view the individual as an actor endowed with idea of the good prior to the community or to consider his idea of the good as wholly and always arrived at independently of the community.Footnote 25 In contrast, the individual in communitarian thinking is situated as follows, as Gyekye asserts. First, the communal is a product of deep relationality beyond the aggregate summation of its members; meaning, it has an independent existence outside the voluntary choices and preferences of individuals. The common African adage, ‘I am because we are,’ rather than because ‘I think,’ captures this very social nature of the human being. Second, this worldview sees the common good as holding a higher value that cannot be bequeathed to the prerogative of individuals. They are a set of goods that are good for humanity as such and therefore ‘not reducible to an artificial combination of individual interests and preferences.’Footnote 26 Third, this conception of personhood imposes conditions for the exercise of freedom beyond liberal individualist principles to a duty to respect and promote broader human goods.Footnote 27 With this understanding of social morality and personhood, one can fully appreciate the magnitude of what is at stake when people are subjected to grave injustices.
Violence against humanity and dismemberment
Waiyaki wa Hinga, the anti-colonial Kenyan ruler, was buried alive at Kibwezi with his head facing the bowels of the earth in contravention of the Kikuyu tradition, which required that ancestors face Mount Kenya, the dwelling place of the supreme deity. King Hintsa was a ruler in Xhosaland (present-day Eastern Cape of South Africa) whose head was decapitated and taken to a British museum during the Xhosa anti-colonial resistance. Ngũgĩ wa Thiong’o uses these two cases of violence to develop the concept of dismemberment in accounting for the historical injustices perpetrated against Africans during the slave trade, slavery, and colonization.Footnote 28 Using the fate of these figures as a symbolic representation of Africa’s experiences with slavery and colonial violence, Ngũgĩ wa Thiong’o argues that ‘they are an enactment of the central character of colonial practice in general and of Europe’s contact with Africa in particular since the beginning of capitalist modernity and bourgeois ascendancy.’Footnote 29 During this period of European violence, according to Ngũgĩ wa Thiong’o, Africa was subjected to two stages of dismemberment: (i) the Atlantic slave trade and plantation slavery divided the African personhood into the continent and its diasporas and (ii) colonization which fragmented and reconstituted Africa into an extension of European empires.Footnote 30 Beyond the physical dismemberment which was formally endorsed by Europeans during the 1884/85 Berlin conference, Ngũgĩ wa Thiong’o is referring to ‘a cultural bomb or memory genocide of the cultures of family ties in the world of the colonized.’Footnote 31
South African philosopher, Motsamai Molefe, advances this understanding of harm by arguing that ‘the greatest injustices committed against African people can be understood in terms of being plucked out of the domain of morality.’Footnote 32 For him, colonialism is a grave injustice because it (1) thingifies Black people by placing them outside the scope of moral-political concern and (2) infantilizes them as unworthy to be in charge of their own humanity. Thus, what constitutes the greatest injustice against humanity is not the racist and colonial brutalities per se but ‘the systematic denial of the humanity of Blacks and the almost complete removal of the necessary goods to make human life possible.’Footnote 33 According to this understanding, colonialization is an injustice that deprives Africans of the conditions necessary for them to realize their personhood. When African people are forced outside the moral community into an inferior existence, according to Molefe, they are treated as moving things that ‘cannot be wronged, made worse off,’ or subjected to the violation of a moral principle.Footnote 34 Outside the moral community, African people lose their status as right-bearers and can therefore be treated anyhow without any protection offered by morality or law. As Molefe puts it, this violence can remain in perpetuity: ‘The moral goal of self-realization is no longer a consideration available to them because the common good requirement was seriously undermined by the processes of colonization.’Footnote 35
This type of dismemberment, which targets the humanity of a group, is not limited to Black people. It is the hallmark of genocidal violence and crimes against humanity everywhere, as experienced by all Indigenous people subjected to settler colonialism and present-day violence targeting the humanity of a whole group. Whether conducted as a state policy or in the context of armed conflict, this violence begins with and ultimately results in the dehumanization of a group. Not only does the impact of this violence live on for a long time, but a dismembered group is also vulnerable to subsequent violence and dehumanization. Moreover, this kind of violence is destructive to the humanity of both its perpetrators and the targeted group. Bishop Tutu invoked this understanding when he noted that, because ‘a person is a person through other persons,’ ‘To dehumanize another inexorably means that one is dehumanized as well.’Footnote 36 The humanity of the perpetrator is denigrated in two senses, both conceivable from a communitarian Ubuntu perspective. In one sense, the very process of dehumanizing others dismembers the perpetrator from social morality, the kind of morality that makes them onipa (a person).Footnote 37 In the other sense, if we all belong to a greater whole, then we are ‘diminished when others are humiliated or diminished, when others are tortured or oppressed, or treated as if they were less than who they are.’Footnote 38 The depth of this harm thus requires us to think about justice and remedy in their holistic and transformative forms, beyond individualism and punitive accountability, as suggested below.
Ubuntu rectificatory justice
Groups are subjected to dismemberment and dehumanization because they live under conditions of what Catherine Lu and Iris Marion Young characterize as structural injustice. These are social conditions ‘in which agents interact and relate to themselves, each other, and the world’ that ‘place[] some agents in objectionable social positions of vulnerability or privilege.’Footnote 39 This kind of injustice emerges from ‘social processes’ which, when located in historical, cultural, and physical conditions as discussed above, ‘produce and reproduce relations of inequality,’ hierarchy, and domination.Footnote 40 These constraining and enabling environments, according to Lu, constitute ‘institutions, norms, policies, and practices that organize, direct, incentivize, and facilitate wrongful conduct.’Footnote 41 The tenets of this injustice are best illustrated by contrasting them with individualization, which has become the process in the field of transitional justice and criminal justice in which individuals, rather than collectives, take primacy in the explanation and normative assessments of violence and its consequences.Footnote 42 These conventional approaches to accountability reduce wrongdoing to what happens between a perpetrator and a victim and its redress to adjudication between these two parties, separate from their social context.Footnote 43 They often call for punishment, the hallmark of the carceral regime, expected to teach individual wrongdoers a lesson for their deviant behaviour.Footnote 44 In contrast, structural justice ‘often brings into question precisely the background conditions that ascriptions of blame or fault assume as normal.’Footnote 45 In fact, ‘When we judge that structural injustice exists, we mean that at least some of the normal and acceptable background conditions of action are not morally acceptable.’Footnote 46
Dismemberment as a structural condition does not mean there are no agents responsible for acts of wrongdoing. This wrongful act may call for legal and moral principles that attempt to isolate culpable agents to be held accountable for their actions.Footnote 47 Application of this liability should require that (1) ‘there must be clear rules of evidence … for demonstrating causal connections between a given agent and a given harm’ and (2) ‘for evaluating the intentions, motives, and consequences of the actions.’Footnote 48 Victims of this act may even want identifiable agents to be held accountable and punished. The point is that such a remedy, which transitional and criminal justice pursue, is inadequate for achieving the broader objective of addressing those conditions which enabled wrongful acts in the first place and restoring the relationship needed for collective humanity and personhood. What is the greater good if accountability only results in isolating individual members of a society just because they deserve to be punished? While a victim’s righteous anger may be vindicated by ‘an eye for an eye’ retribution, what about their obligation to redeem and restore the collective good? Resolving this tension between individual preferences for remedy and the collective needs of society requires a turn to a holistic approach to justice, an opportunity offered by Ubuntu as a structural justice model.
One element of Ubuntu justice is the promotion of reparation, reconciliation, and restoration of the whole society impacted by wrongs. Beyond holding the offender accountable and repairing damages incurred by the victim, this justice is also about restoring a certain equilibrium and respect in society – human goods that are not a mere summation of individual interests – harmed by a moral transgression.Footnote 49 Rooted both in a deeper understanding of what serious infractions do to the commune and greater appreciation of common good, ‘it is well known that in Indigenous African traditions, the reparation of broken relationships has frequently been deemed the primary function of justice.’Footnote 50 Reconciling a broken society is prioritized, although not at the expense of individual human rights, so that human beings can regain their capacities to ‘pursue the ideals associated with their [shared] humanity.’Footnote 51 It ensures that the pursuit of individual interests takes place within the broader goal of restoring a moral equilibrium between members of a society.Footnote 52
Another often overlooked element of this justice addresses the structural and material conditions that deny people their humanity. Anke Graness underscores this point when she argues that ‘the concept of Ubuntu used as a comprehensive social critique … offers an approach which might give substantial answers to crucial social problems.’Footnote 53 She turns to Ubuntu for the following issues seldom considered in the debate of global justice: (1) the importance of bodily needs as a prerequisite for human beings to act as moral beings, (2) the need to restore human relations and solidarity, and (3) the consequences of material relations, including property relations.Footnote 54 Nacy S. Jecker et al. draw from Young and Lu’s works to argue that Ubuntu demands ‘avoiding and dismantling relationships that dominate, oppress, or deprive people of capabilities and promoting relationships that promote harmony, goodwill, and neighbourliness.’Footnote 55 Thus, making people meaningful members of the human family takes both the application of social morality and attending to the structural and material conditions that render some vulnerable to harm while empowering other groups to dehumanize them. It is not enough to remedy just the harm suffered by certain members of a group, nor is the restoration of their rights within the same structural condition transformative. As illustrated by post-Apartheid South Africa, this kind of justice must be inextricably tied to the political and socioeconomic project of structural transformation.
Redressing Apartheid in South Africa
Translated from Afrikaans, the term Apartheid itself means ‘apartness,’ enforced on the basis of white supremacy and state violence. From Anglo-Dutch segregationist rule to its formalization into Apartheid by the Afrikaans National Party in 1948, the settlement of Europeans in South Africa necessitated one of the most extensive segregationist regimes established through a violent legal system and coercive state. Segregationist laws were designed to get rid of ‘Black spots’ inside minority white areas (meaning cities and towns) and then to confine the Indigenous majority to tiny portions of the country known as homelands or Bantustans. Such laws were part of a pass system, which became one of the ‘most grievous methods that the South African government used to support Apartheid.’Footnote 56The South African Truth and Reconciliation Commission (TRC) report identified several categories of gross human rights violations during Apartheid rule, including killing, torture, abduction, disappearance, politically motivated imprisonment, and other severe mistreatments.Footnote 57 The report notes that ‘the Apartheid system was maintained through repressive means, depriving the majority of South Africans of the most basic human rights, including civil, political, social and economic rights.’Footnote 58 Given the scale and depth of these Apartheid wrongs, Theologian John De Gruchy calls them ‘a crime against humanity’ because they denied Black South Africans ‘a common humanity and in the process degrading the identity people had; in short, dehumanizing them.’Footnote 59
At the end of this racist minority rule, South Africa founded a national constitution as a historic bridge between the past of a deeply divided society and a future founded on the recognition of human rights, democracy, and peaceful co-existence of all South Africans. The 1993 rainbow constitution pointed out ‘a need for reparation but not retaliation, need for understanding but not vengeance, need for Ubuntu but not victimization.’Footnote 60 Then it established the national TRC, headed by Archbishop Desmond Tutu, to ‘promote national unity and reconciliation in the spirit of understanding which transcends the conflict and the divisions of the past.’Footnote 61 South Africa’s TRC Act mandated the Commission to facilitate accountability for human rights violations and restoration of the human and civil dignity of victims. Rather than pursuing criminal accountability against Apartheid political and military leaders, Nelson Mandela and other African National Congress (ANC) leaders opted for Zulu ukuphila (human well-being), which sees that ‘collective humanity of the community as consisting of the wellbeing of every member of the community.’Footnote 62 Amnesty for politically motivated crimes was granted to agents of the Apartheid regime, the only condition being truthful testimony before the TRC. During the proceedings, there were reports about Bishop Tutu admonishing victims and survivors to forgive as well as encouraging offenders to offer genuine and credible apologies for their wrongdoing.Footnote 63 Some notes that he may have been too forceful in guiding victims and survivors to recognize the humanity of their offenders and commit to forgiveness, not retributive justice.Footnote 64
South Africa is not a perfect case. Many, including some veterans of the anti-Apartheid struggle, opposed the processes of forgiveness and reconciliation, preferring to hold Apartheid leaders, in particular, criminally accountable for their brutality. The encounter between perpetrator Dirk Coetzee and Charity Kondile, whose son he tortured and killed, is illustrative of how many ordinary South Africans felt about forgiveness at the time. Responding to Dirk’s request to meet with Mrs. Kondile so he could offer his apology, the woman asked her lawyer to let him know that ‘she feels it is an honor … you do not deserve…. If you are really sorry, you would stand trial for the deeds you did.’Footnote 65 Mrs. Kondile added that ‘it is easy for [Nelson] Mandela and [Desmond] Tutu to forgive … they live vindicated lives. In my life not a single thing has changed since my son was burnt by barbarians … nothing. Therefore, I cannot forgive.’Footnote 66 What Mrs. Kondile was lamenting when she said nothing had changed in her life is most likely the structural material conditions in which the vast majority of Black South Africans continue to live. In a statement to the South African Human Rights Commission’s 2015 hearings, one representative of a Durban slum dwellers association called Abahlali baseMjondolo cried out that poor Black people ‘are [still] not counted as human beings.’Footnote 67 Graness also argues that social justice rarely featured in South African debates on Ubuntu justice, which meant that the transition of South Africa ‘went without a thoroughgoing economic transformation.’Footnote 68 Even the reparations recommended by the TRC have been trumped by a neoliberal system that gives the market prerogative over redistribution.
However, the principles of Ubuntu do not preclude individuals from having preferences that serve their interests or individual human rights. What they advance is a collective good that cannot be reduced to a summation of individual preferences for justice nor overridden by the retributive accountability that may satisfy individual victims and survivors. It was about the greater good which, as Timothy Murithi clarifies, was based on the understanding that ‘what we do to others feeds through the interwoven fabric of social, economic, and political relationships to eventually impact upon us as well.’Footnote 69 Those who perpetuated and supported the brutal Apartheid system had their humanity taken away for ‘it distorted their view of their relationship with other human beings, which then impacted upon their own sense of security and freedom from fear.’Footnote 70 The greater justice project was to redeem everyone, both those who were dehumanized and those who dehumanized themselves in the process. For example, Eugene de Cock, the infamous assassin responsible for murdering and torturing to death over 100 people, could have been an eternal outcast languishing in prison for the rest of his life. But when survivors agreed to meet with him and approve his parole, it was about serving a broader redemptive purpose. Candice Mama, whose father was brutally murdered by de Cock, hugged him compassionately after learning that he was unable to forgive himself, a profound move attesting that we are humans through other humans. Moreover, the dissatisfaction of Black South Africans may be more about the failure to fully adhere to Ubuntu than an opposition against the moral principle itself. After all, ‘Ubuntu ethics must be deeply embedded in social justice considerations which call for transformation of all institutions as there are none not affected by the faces of oppression.’Footnote 71
Final reflections
That Ubuntu is an African term does not mean that its principles of justice are particularistic, tethered to the region. As Kwame Gyekye confirms, ‘[I]n light of our common humanity, the conclusions … would surely have implications for the capacious community of humankind, for the universal human family.’Footnote 72 In fact, Thaddeus Metz encourages us to extend Ubuntu relationality in thoughts about global ethical matters, particularly how such a principle would determine responses to grave wrongdoings that require international attention. The establishment of the ad hoc International Criminal Tribunal for former Yugoslavia (ICTY) and Rwanda (ICTR) in the mid-1990s is regarded as a moment of revival of the international accountability norm following its so-called ‘hiatus’ during the Cold War period. Beginning with the Regulation 64 Panels in the Courts of Kosovo established in 1999 to the ongoing Special Criminal Court in the Central African Republic, ten hybrid and regional tribunals have become the second generation of post-Cold War efforts in what Kathryn Sikkink characterizes as ‘a justice cascade.’Footnote 73 The International Criminal Court (ICC), founded as a permanent treaty-based body, represents the clearest indication that international criminal justice is here to stay. Since the postwar Nuremberg and Tokyo trials, which were literally a ‘victor’s justice,’ selecting a few individual leaders for criminal prosecution and imprisonment has become a norm. Yet the world order remains characterized by a circle of violence and oppression, including genocide and ethnic cleansing, war crimes, slavery, civil wars, settler colonialism, exploitation, and all sorts of crimes against humanity. Aside from the structural and political constraints that make criminal justice a tool used by the powerful against the weak, punishing a few individuals hardly has any redemptive value for the whole of humankind.
Globalizing Ubuntu would be a paradigm shift in how we think about and respond to these recurring crises of humanity. With an Ubuntu worldview, our collective humanity would be centered in both our understanding of the harm inflicted by wrongdoings of this kind and the appropriate rectification required. When a harmonious and interdependent relationship is priced in international justice, compassion and solidarity with those subjected to oppression become born out of concern that their dehumanization would dehumanize everyone. For example, the utter devastation that Israel unleashed on Gaza following the terrorist attack by Hamas on 7 October 2023 must be seen from an Ubuntu perspective not only as a dehumanization of Gazans but also as a denigration of the aggressor’s humanity, regardless of whether it was carried out in the name of self-defence. The ultimate justice should be a restoration of the humanity of both the Palestinians and Israelis through communitarian principles that emphasize reciprocal duties that each owes to the realization of shared personhood. While the intervention by the ICC to hold Israeli and Hamas leaders criminally accountable may be morally justified, it should be realized that such accountability cannot be justice as a common good. South Africa’s Ubuntu international posture may have informed its move to bring Israel before the International Court of Justice, which seeks to hold states instead of individuals accountable. Lastly, the structural conditions that make Palestine susceptible to occupation, blockage, and oppression must be dismantled to ensure that Palestinians experience the same human dignity and worth experienced by Israelis.
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