The source information could be shared externally, confidentially, assuming
both considerations are adequately taken into account (see Table 1 below). The
investigation must also take into account the need to redact shared materials, not
just for source-identifying information, but also for confidential work product that
may appear in interview records (notes, clarifications, internal queries), as well as
names of investigators, translators, intermediaries, and other sensitive information.
(c) The investigation’s findings and conclusions
Sharing information that came directly from a source is usually preferable to sharing
the investigative body’s findings, as the latter on its own has limited value to a
recipient. Still, an investigative body may choose to cooperate with external entities
by providing its findings, whether factual findings or conclusions as to responsibility.
For example, the investigative body may consider sharing its findings with another
United Nations entity that is conducting a Human Rights Due Diligence Policy risk
assessment, or with a national court that has requested them for a judicial process,
or it may proactively offer them to a national vetting process.129
Before sharing, the investigative body must:
(a) determine whether the finding or conclusion has passed the standard of
proof adopted, such as reasonable grounds to believe; and
(b) check whether any person would be put at risk by the sharing.130
For example, an investigative body may have collected sufficient information from
multiple sources to find that a certain person was the commander of a detention centre,
a factual finding. Or it may have concluded that the commander was responsible for
crimes or violations that took place in the centre, a quasi-legal conclusion.
In this example, if no person would be put at risk by the sharing, or any such
risk could be adequately mitigated, the investigation could share with an external
entity the name of the commander as well as the investigation’s finding that the
person was in charge of the detention centre, or the conclusion that the person was
responsible for crimes or violations that took place there. 131
See section 2 B, supra.
A source might be put in danger, for example, if only a small number of people could know that piece
of information. “Consent to share” from interviewees should not be at issue because the interviewee’s
information, whether narrative or identifying, is not being shared; instead it is the investigative body’s own
finding that is shared.
131
An investigative body prepared to share the name of the individual externally, along with a finding that
the person was responsible for crimes or violations, should be confident that the “reasonable grounds”
threshold has been met, and may consider whether a higher threshold is appropriate.
129
130
78
ATTRIBUTING INDIVIDUAL RESPONSIBILITY
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