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
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