Fadel Abdulghany
The tension surrounding the disclosure of perpetrators’ identities stems from a conflict between ethical and legal principles of equal importance and theoretical legitimacy. On the one hand, the right to know the truth is a fundamental human right enshrined in international law; it is not limited to knowing what happened, but extends to knowing the identity of the perpetrators of violations, their motives, and the patterns that governed their commission.
Conversely, the presumption of innocence is a cornerstone of modern legal systems, its aim being to protect individuals from social condemnation or any harmful consequences before guilt is proven in court, in accordance with the guarantees of a fair trial.
This tension is further complicated in transitional contexts where fact-finding mechanisms are activated amidst weak or politicized judicial institutions, and where opportunities for criminal accountability are limited or nonexistent.
Public accountability, by its very nature, gives it an ethical value that transcends simply responding to public interest.
This issue has developed significantly over the past four decades, in parallel with the expanding role of international investigations and the diversification of their tools: from UN fact-finding missions to national truth commissions, and finally to international tribunals and hybrid mechanisms.
Despite the accumulation of rich experience and knowledge in dealing with this dilemma, it has not yielded definitive and final solutions, but rather has developed analytical frameworks and methodologies that facilitate informed and balanced decisions that take into account the differences in context.
The legal basis for conflicting rights
The conflicting rights in the matter of disclosure are based on well-established principles in international human rights law; the right to know the truth has been crystallized through the jurisprudence of regional human rights courts and the practices of international treaty bodies, as an essential element of the right to an effective remedy, and a condition for restoring public confidence in institutions and preventing the recurrence of violations.
Conversely, the presumption of innocence—enshrined in Article 11 of the Universal Declaration of Human Rights and Article 14 of the International Covenant on Civil and Political Rights—represents a fundamental safeguard against arbitrariness and injustice.
This principle extends beyond formal criminal proceedings to encompass, in essence, any institutional action that could substantially harm an individual’s reputation or rights, thus requiring heightened caution when publishing personally identifiable information.
In this context, publicly disclosing the identities of perpetrators serves multiple functions that extend far beyond simply satisfying curiosity or fueling vengeful impulses. It represents an institutional acknowledgment of the victims’ suffering and an official validation of their narratives.
In cases where violations have been systematically denied for many years, this acknowledgment acquires a symbolic and compensatory dimension that can sometimes surpass the impact of material compensation. Furthermore, disclosure contributes to building a reliable and lasting historical record, serving as a reference for future generations and safeguarding public memory against attempts at denial or distortion of the facts.
Deterrence and prevention: the strategic dimensions of disclosure
The importance of disclosing the names of perpetrators transcends its symbolic or documentary function, taking on a direct strategic dimension related to deterrence and preventing the recurrence of violations.
Public disclosure sends a clear message to potential perpetrators: violations will not go unpunished, even when criminal justice falters or is delayed.
In environments where the rule of law is weak and the effectiveness of institutions is diminished, social isolation and loss of public legitimacy—including social ostracism and restricted opportunities for influence—may become the most realistic short-term effect, serving as a temporary substitute for full judicial deterrence.
Furthermore, disclosure can open additional avenues for legal accountability, both nationally and internationally, by transforming public knowledge into actionable pressure. Public opinion pressure may compel local authorities to initiate prosecutions or expand investigations, and it can enhance the usability of information within international accountability frameworks, including targeted sanctions, restrictive measures, and other mechanisms that gradually reduce impunity until the conditions for effective prosecution are met.
In contrast to this deterrent function, the distinction between the investigative and prosecuting functions remains crucial in defining the scope of the powers and responsibilities of fact-finding bodies. While these bodies possess broad powers to gather information, document facts, and analyze patterns, they lack the jurisdiction to determine individual criminal responsibility and issue convictions.
This is related to their nature as quasi-judicial mechanisms that typically operate within procedural frameworks and standards of proof that do not reach the rigor of those applied in criminal courts, and do not necessarily provide the full guarantees of due process that are a prerequisite for establishing guilt.
This distinction requires a high degree of precision and discipline in formulating conclusions related to individual responsibility. Even when there are strong indications of the involvement of specific individuals, these should be expressed in terms that maintain the separation between investigative findings and judicial convictions, avoiding definitive and conclusive language, and adopting expressions that reflect the level of probability supported by the available evidence and its limitations.
This achieves two interrelated goals: respecting fundamental legal principles, and protecting opportunities for future judicial accountability by not tainting future proceedings with preconceived judgments or characterizations that could be exploited to challenge the justice or integrity of the judicial process.
Guarantees of the rights of defense, confrontation, and witness protection
The practice of disclosing the names of alleged perpetrators in investigation reports raises fundamental challenges related to the rights of defense, including the right of the person concerned to be informed of what is attributed to him and to respond to it, the right to legal counsel, and the right to confront and cross-examine witnesses.
Although investigative bodies are not obligated to apply all the detailed procedural safeguards of criminal courts, the requirements of natural justice and procedural fairness necessitate providing a minimum level of these safeguards when publication results in significant harm to the reputation, rights, or legal standing of individuals. This requirement becomes even more pressing when disclosure is understood, in the public consciousness, as an implied judgment rather than a mere investigative conclusion subject to review.
In this context, some investigative bodies have developed compromise arrangements that seek to reconcile the right of reply with the requirements for protecting sources. Examples include enabling individuals concerned to submit written responses before publication, including their comments in the report in carefully worded terms, or granting them access to summaries of the allegations and key data without disclosing material that could identify witnesses or endanger them.
However, these measures, in terms of the scope and depth of safeguards, remain far narrower than those of a full criminal trial and should not be presented as an equivalent alternative, but rather as a minimum that mitigates the risk of undue harm to rights.
The protection of witnesses and victims is a paramount priority in any investigation into human rights violations, and this priority is amplified when alleged perpetrators retain real influence or the ability to exert influence.
Publicly disclosing names could expose witnesses or their families to retaliatory risks, particularly when a link can be inferred between specific testimonies and the identity of the suspect, whether through the context of the events, their geographical location, or the nature of social relationships.
Therefore, robust security protocols must be adopted that not only assess immediate risks but also consider the long-term effects on witnesses and their social environments, including the potential for stigmatization, escalating threats, and shifts in the local power dynamics.
Evolution of UN practices
The practices of UN fact-finding missions have evolved significantly over the past three decades, drawing on lessons from diverse experiences. This evolution has resulted in a pragmatic approach that seeks to balance transparency and accountability on the one hand, with the requirements of protection and due process guarantees on the other.
One expression of this approach is the “confidential, directed transfer” model, whereby fact-finding missions compile detailed lists of alleged perpetrators, supported by documentary evidence, and then confidentially transmit them to competent bodies such as the High Commissioner for Human Rights or national and international prosecution authorities.
This model allows for the preservation of information for use in subsequent legal proceedings, while avoiding the risks associated with direct public disclosure.
Truth commission experiences: diversity as a basis for drawing lessons
The experiences of truth commissions around the world provide a rich laboratory for understanding the impact of local contexts on disclosure decisions. From the model of high transparency that characterized the South African process, to more conservative models in some Latin American and African countries, a clear divergence emerges, reflecting the different political, legal, and cultural environment of each case.
These experiences confirm that no single model is suitable for all contexts, and that the success of any approach depends on a confluence of factors: the nature of the conflict or the previous regime, the strength and independence of the judiciary, the level of political and social support, and the balances governing the transitional phase. They also demonstrate that the decision to disclose information should be part of a comprehensive transitional justice strategy, not an isolated measure separate from other processes.
The sequential model: chronological progression as a compromise solution
The adoption of sequential models represents one of the most prominent methodological innovations in addressing the dilemma of disclosing the identities of perpetrators. These models are based on the premise that achieving the goals of transitional justice becomes more realistic and effective when they are arranged chronologically according to achievable priorities, rather than seeking to accomplish them all at once, and the resulting practical, security and legal conflicts.
Under this approach, the first phase is dedicated to documenting violations, analyzing their patterns, and establishing victim recognition, while keeping the identities of perpetrators confidential or restricting their circulation to a narrow professional circle. A subsequent phase then opens the door to controlled disclosure of identities and their activation in accountability processes, once the institutional environment improves and the necessary procedural and security safeguards are in place.
This gradual approach allows for a balance between the right to truth, on the one hand, and the requirements of safety and the presumption of innocence, on the other, without sacrificing the principles of justice or exposing individuals and witnesses to unforeseen risks.
In the same vein, recent years have witnessed a significant evolution in decision-making methodologies regarding disclosure, manifested in the emergence of “proportionality” frameworks as a normative approach to enhance consistency and justifiability.
These frameworks are based on a systematic assessment of specific factors in each case, the most important of which are the strength and credibility of the evidence, the seriousness and scope of the violations, the level of responsibility and authority of the person concerned, the extent of security risks to witnesses and investigators, the possibility of referral to trial in the foreseeable future, the potential impact on peace and reconciliation processes, and the added value of disclosure compared to less harmful alternatives.
By systematically weighing these factors, the competent authorities can reach decisions that are closer to objectivity and transparency, while maintaining the necessary flexibility to deal with exceptional cases that do not conform to rigid templates.
Accordingly, there is a growing trend toward hybrid models that combine the advantages of different approaches while mitigating their shortcomings. This is achieved through the design of complex mechanisms that respond to the specificities of contexts and the varying needs of stakeholders. An example of this is the gradual disclosure of identities according to levels of responsibility. Senior officials would be named only when conclusive evidence is available or the requirements for judicial proof are met, while maintaining confidentiality or strict restrictions regarding lower levels or cases with weaker evidentiary support.
“Conditional disclosure” can also be adopted, whereby specific information is not disclosed except when declared criteria related to clear security and procedural safeguards are met, thereby reducing the risks of harming rights or endangering witnesses.
Existing challenges and future prospects
Despite the advantages of models based on confidentiality or guided transfer, they face a fundamental challenge: their limited ability to meet victims’ need for immediate and public acknowledgment of their suffering and those responsible. Practical experience demonstrates that public acknowledgment is a crucial element in psychosocial recovery, and its absence can undermine victims’ trust in transitional justice processes and weaken their participation in them.
To mitigate this gap, parallel mechanisms can be developed to achieve verification and recognition without requiring the disclosure of identities, such as public hearings for victims, issuing detailed reports that establish facts without names, adopting public memory programs such as memorials and museums, or including the history of violations and the suffering of victims in systematic educational programs.
