Transitional justice (TJ) has been associated with a certain set of state-led initiatives such as establishing truth commissions, initiating investigations and prosecutions of perpetrators, awarding reparations to victims, and finally, introducing institutional reforms, which aim at preventing the reoccurrence of gross human rights violations in the future. The pioneering states that organized TJ mechanisms, like Chile, Argentina, and South Africa mostly used their national resources to design and administer TJ mechanisms. Since then, however, funding and managing TJ initiatives have significantly changed. States, emerging from wars, rarely have budgets for costly procedures such as paying compensations, starting investigations, or setting up tribunals to punish perpetrators. Thus, transitioning low and middle-income states rely more and more on the support of international actors – mostly third states, but also international organizations and private actors.
Indeed, more and more philanthropic foundations and private companies donate money to support TJ processes across the globe. According to the Peace and Security Funding Index, starting from 2012, USD 225.3 million of private funds were spent on financing efforts to document international crimes, adjudicating criminal responsibility for them, and organizing truth-seeking and reparation processes. Among those donations are the Robert Bosch Stiftung’s contribution to regional networks dealing with the past in Turkey or the Rockefeller Brothers Fund’s award to the Serbian Fond za Humanitarno Pravo for the establishment of facts about war crimes and serious human rights violations that occurred during and after the Yugoslav wars. Private actors not only provide financial support to various justice initiatives; at times they are directly involved in the administration of justice processes. Particularly interesting examples are when private organizations collect evidence for the prosecutions of international crimes or when they imitate courts of law in order to prosecute perpetrators of international crimes or to attribute state responsibility.
Private involvement in transitional justice recently became visible for most followers of world affairs. After Russia’s invasion of Ukraine in early 2022, private actors such as NGOs, philanthropic foundations, and corporations invested massive resources in helping the victims of Russian aggression and investigating international crimes on Ukrainian territory. The Open Society Foundations (OSF), the world’s third largest philanthropic fund, pledged USD 25 million to help Ukrainian civil society groups with post-conflict reconstruction, among other things. With this sum, the OSF launched the Ukraine Democracy Fund, which will work toward attracting more donations from private foundations and other private sector entities. The collected funds go, inter alia, to several Ukrainian and foreign NGOs that work to document violations of international law by Russian forces.
These examples are not unique. Whether it involves private investigators traveling to conflict zones to collect evidence for future criminal prosecutions or big corporations and philanthropic foundations providing financial or technical support to truth commissions, reparation funds, or international tribunals, private actors are increasingly taking TJ matters into their hands. Building upon such examples, this thesis delves into the expanding but overlooked roles of private actors as sponsors and privatizers of transitional justice. The concept of privatized justice, thus, evolves to encompass a range of activities undertaken by private actors in TJ. Privatized justice raises critical questions about its implications for the current legal order. This work also aims to examine whether these developments can be tackled by the existing legal frameworks, which limit or facilitate the delivery of justice in novel ways.
