While point (a) above should be undertaken as a matter of course in any investigation, point (b) presents a challenge. It is unlikely that the investigative body will have been in contact with, or will be able to contact, the individual identified, either because their location or address is unknown, or because the person, especially if fighting for a non-State armed group, is purposely keeping their location secret or may not want to be contacted. Publicly stating that the investigative body seeks to afford the person a “right of reply” is tantamount to identifying him or her in the first place. An alternative is to share the report with the government concerned prior to publication, when appropriate circumstances exist.141 If the investigative body was unable to afford the individual(s) an opportunity to respond, then in accordance with Principle 9, and human rights principles generally, their name(s) should not appear in a public report.142 Other considerations weigh against public revelation. For example, where the possibility exists that criminal trials will follow a United Nations-mandated investigation, public pronouncements on responsibility may impinge on fundamental rights such as the presumption of innocence and due process.143 Trials undertaken in a post-conflict environment are often politically charged and highly scrutinized. Speculation will be rife on any verdict that runs counter to the publicly released conclusions of a United Nations-mandated investigation, albeit one operating to a lower standard of proof. Moreover, investigative bodies are generally unable to provide a forum in which named individuals can defend themselves against the accusation. Concerns may arise for the safety of named individuals, with the possibility of reprisals against them. Furthermore, refraining from publicly identifying individuals, while leaving open the option of sharing their names confidentially, might actually increase the deterrent effect. This is because actual perpetrators are left wondering whether they have already been identified or can still escape identification by changing their behaviour This alternative would not generally assist in reaching individuals who are part of NSAs. In remote areas in particular, seeking comment from alleged perpetrators could have serious implications for the security of the sources, the victims and those who undertook the investigation. 142 Difficulties in communicating with alleged perpetrators might be overcome in a number of ways. For example, where State actors are concerned, the CoI could write to the government and ask them to obtain the response from the individual. Non-State actors whose location is unknown might be approached through intermediaries. Another option is for the investigative body to note in the report that individual perpetrators have been asked to respond, through their government or intermediaries, and that the CoI or OHCHR pledges to publish any response after the publication of the report, as an annex to the report on their website. 143 See also Human Rights Committee, general comment No. 32, para. 30. Portrayals of guilt in State media have been found by the HRC to constitute a violation, see Communication No. 1397/2005, Engo v. Cameroon, Views adopted by the Human Rights Committee on 22 July 2009, para. 7.6. The ruling indicates that the publication in the media of the names of implicated individuals has human rights implications. 141 84 ATTRIBUTING INDIVIDUAL RESPONSIBILITY

Select target paragraph3

Connect to a paragraph
Connect to an entity
Disable highlights
Add to table of contents