Minnesota Protocol

Last updated

The Minnesota Protocol on the Investigation of Potentially Unlawful Death (2016) is a set of international guidelines for the investigation of suspicious deaths, particularly those in which the responsibility of a State is suspected (either as a result of act or omission).

Contents

The original version of the Protocol, from 1991, was entitled the Manual on the Effective Prevention and Investigation of Extra-Legal, Arbitrary and Summary Executions. It was designed to support the implementation of the UN Principles on the Effective Prevention and Investigation of Extra-Legal, Arbitrary and Summary Executions, which were endorsed by the United Nations in 1989. [1] The Manual became known as the Minnesota Protocol because of the central role played by the Minnesota Lawyers International Human Rights Committee in its development. The use of the term ‘Protocol’ reflects the forensic medicine element of the document rather than its legal status. In 2016, after a two-year process of revision, the new version of Minnesota Protocol was finalized by an international group of experts convened by the UN Special Rapporteur on extrajudicial, summary or arbitrary executions, and the Office of the United Nations High Commissioner for Human Rights (OHCHR). [2] The revised version was published by the OHCHR in 2017.

Background

The original Minnesota Protocol was designed to be a technical document aimed at providing practical assistance to those investigating suspicious deaths. Confronting the question of how to address political killings during the mid-1980s, various civil society groups came to the conclusion that criminal investigation techniques were an obvious starting place. [3] In 1984, Amnesty International carried out its own survey of how various States dealt with autopsies of arbitrary killings. David Weissbrodt, a professor at the University of Minnesota, was spending a sabbatical in the Legal Office of Amnesty International in 1982-3, which was when the idea for a Manual arose. [4]

The need for some kind of standard was highlighted by the assassination of Benigno Aquino Jr. in August 1983. Despite public declarations of intent, the Government of the Philippines failed to conduct an adequate investigation. However, as Ann Marie Clark has subsequently observed: ‘At that time there were no internationally standardized death investigations procedures. There was no external norm, therefore, that could be used as a basis for criticism when governments failed to implement proper investigation of political killings in a case like the death of Aquino’ [5]

Ultimately the Protocol was prepared by a group of legal and forensic experts coordinated by the Minnesota International Lawyers Committee for Human Rights (now The Advocates for Human Rights), in collaboration with the Science and Human Rights Program of the American Association for the Advancement of Science. [6]

In several resolutions, the UN Commission for Human Rights mandated the OHCHR to update the Protocol. These resolutions were later quoted by the Human Rights Council in resolutions on forensic genetics and human rights. [7]

In 2014 the Special Rapporteur on summary executions, Christof Heyns, began a process of consulting relevant experts and, in collaboration with OHCHR and UNODC, bringing together a large group that would ultimately participate in the revision of the Minnesota Protocol. In 2015, in his report to the General Assembly, he noted that ‘[t]he extent of the continued reliance on the Manual in international jurisprudence and by national legal entities emphasizes the need for the document to be up to date and comprehensive. It is to be expected that if the document is more up to date, it will more often and more readily serve as a guide.’ [8]

In 2016, two Working Groups, and a large international Advisory Panel undertook the revision, including with reference to two stakeholder consultations. As with the original version, the authority of the document relied upon the expertise of these drafting and review groups. Certain individuals had been involved in the processes of drafting both the original and the revised texts. [9] The finalized document was presented to the OHCHR in July 2016, and published in May 2017. [10]

Uses of the Protocol

Announcing its release, the UN High Commissioner on Human Rights highlighted that ‘Proper investigations into suspicious deaths are an integral part of the protection of the right to life’ [11]

Regional human rights courts have referred to the Manual in reaching findings on the inadequacy of investigations into suspicious deaths. [12] National courts have done the same when establishing guidelines for the investigation of killings by the police. [13] The International Committee of the Red Cross (ICRC) relied on the Principles and the Manual in its Study on customary international humanitarian law: a contribution to the understanding and respect for the rule of law in armed conflict (2005) and in its Guidelines for Investigating Deaths in Custody (2013).

The Minnesota Protocol is often grouped with another document with a similar medico-legal and human rights purpose, the Istanbul Protocol, which is aimed at the documentation of torture. In his report to the UN General Assembly in 2014, the Special Rapporteur on torture, Juan E. Méndez, encouraged the use of both documents when performing forensic autopsies, and highlighted capacity gaps in forensic services as contributing to lack of accountability for serious human rights violations. [14]

Scope of use

The Minnesota Protocol aims to protect the right to life by promoting effective investigation of potentially unlawful death or suspected enforced disappearance. It sets common standards of performance and a shared set of principles and guidelines for States, as well as for institutions and individuals who play a role in investigations. [15]

The Minnesota Protocol applies to investigations of all “potentially unlawful death”. This primarily includes situations where:

  1. the death may have been caused by acts or omissions of the State, its organs or agents, or may otherwise be attributable to the State, in violation of its duty to respect the right to life;
  2. the death occurred when a person was detained by, or was in the custody of, the State, its organs, or agents; or
  3. the death occurred where the State may have failed to meet its obligations to protect life. [16]

The Protocol makes clear that protecting the right to life means preventing the arbitrary deprivation of life, but also requires accountability for an arbitrary deprivation of life whenever it occurs. Therefore, in addition to their duties to respect and to protect the right to life, States must also investigate potentially unlawful death, ensure accountability and remedy violations. The Protocol states:

The duty to investigate is an essential part of upholding the right to life. […] Where an investigation reveals evidence that a death was caused unlawfully, the State must ensure that identified perpetrators are prosecuted and, where appropriate, punished through a judicial process. […] A failure to respect the duty to investigate is a breach of the right to life. Investigations and prosecutions are essential to deter future violations and to promote accountability, justice, the rights to remedy and to the truth, and the rule of law. [17]

In addition to its scope, the Protocol also clearly establishes the “trigger” for the State’s duty to investigate, namely where it knows or should have known of any potentially unlawful death, including where reasonable allegations of a potentially unlawful death are made. [18] As the Protocol details, this includes all cases where the State has caused a death or where it is alleged or suspected that the State caused a death (for example, where law enforcement officers used force that may have contributed to the death) or where the State has failed to exercise due diligence to prevent a death at the hands of a third party. In all cases outside the conduct of hostilities in an armed conflict, this duty exists regardless of whether it is suspected or alleged that the death was unlawful. [19]

The Protocol offers a particular note on the duty to investigate during the conduct of hostilities, which it highlights as a context that may provide practical difficulties for the application of much of the Protocol’s content. All suspected war crimes must be investigated. But the Protocol also emphasizes that, where, during the conduct of hostilities, it appears that casualties have resulted from an attack, a post-operation assessment should be conducted to establish the facts, including the accuracy of the targeting. [20]

More broadly, the Protocol also highlights that the State also has a duty to investigate all potentially unlawful death caused by private individuals, even if the State cannot be held responsible for failing to prevent such deaths. [21]

The Protocol also establishes standards for what it calls the ‘Elements and Principles of Investigations’, broadly that they should be

The Protocol is explicitly non-prescriptive with respect to investigative mechanisms, noting that the duty to investigate does not necessarily require one particular investigative mechanism in preference to another. States may use a wide range of mechanisms, as determined or suggested by domestic law and practice, as long as those mechanisms meet international law requirements. [23]

Conducting an investigation

The bulk of the Minnesota Protocol provides first strategies and principles and then detailed guidelines on practical steps that should be taken in an effective investigation. The overarching strategy of any investigation should be methodical and transparent, and all legitimate lines of inquiry should be pursued. An investigation may gather different types of material, not all of which will be used as evidence in a judicial proceeding. But all relevant materials or observations should be secured and logged. [24]

The Protocol establishes that a set of operational and tactical processes for the investigation should also be designed. These should seek to establish significant facts, preserve relevant material and lead to the identification of all the parties involved, including by managing the following:

Particular sections are dedicated to processes for interviewing witnesses and for recovering human remains. [26] The Protocol then provides a great deal of detail attesting both to the importance of, and practical guidance for, the identification of human remains. [27]

Particular guidance is offered on the techniques for collecting and sampling different types of evidence, including the following:

Investigation of potentially unlawful deaths will almost always be aided by the conduct of an autopsy. In a section setting out the general principles of an autopsy the Protocol provides an overview of the duties of a forensic doctor in relation to a death investigation, and then establishes the basic aims of autopsy will assist in fulfilling those duties. The aims of the autopsy, principally are:

In general, the Protocol establishes in various places the requirement of professional ethics for investigators, including forensic doctors. It highlights that any forensic doctor involved in an investigation has responsibilities to justice, to the relatives of the deceased, and more generally to the public. Whether or not they are employed by the police or the State, forensic doctors must understand their obligations to justice (not to the police or the State) and to the relatives of the deceased, so that a true account is provided of the cause of death and the circumstances surrounding it. [30]

Notes

  1. ↑ UN Principles on the Effective Prevention and Investigation of Extrajudicial Arbitrary and Summary Executions (1989)
  2. ↑ Report of the UN Special Rapporteur on extrajudicial, summary or arbitrary executions, Christof Heyns: Addendum A/HRC/32/39/Add.4 (2016)
  3. ↑ Ann Marie Clark Diplomacy of Conscience: Amnesty International and the Changing of Human Rights Norms (Princeton, 2001) p.113
  4. ↑ Ann Marie Clark Diplomacy of Conscience: Amnesty International and the Changing of Human Rights Norms (Princeton, 2001) p.113
  5. ↑ Ann Marie Clark Diplomacy of Conscience: Amnesty International and the Changing of Human Rights Norms (Princeton, 2001) p.114
  6. ↑ Report of the UN Special Rapporteur on extrajudicial, summary or arbitrary executions, Christof Heyns: Addendum A/HRC/32/39/Add.4 (2016) para.1.
  7. ↑ UN Commission on Human Rights Resolutions 1998/36, 2000/32, 2003/33, and 2005/26 and UN Human Rights Council Resolutions 10/26, and 15/5
  8. ↑ Report of the UN Special Rapporteur on extrajudicial, summary or arbitrary executions, Christof Heyns A/70/304 (2015) para.61
  9. ↑ The Minnesota Protocol The Advocates Post blog post by Jennifer Prestholdt (26 February 2016) [accessed June 2017]
  10. ↑ UN rights office launches global guidelines for investigating unlawful killings OHCHR press release [accessed June 2017]
  11. ↑ UN rights office launches global guidelines for investigating unlawful killings OHCHR press release [accessed June 2017]
  12. ↑ See, for example, European Court of Human Rights, Nachova and other v. Bulgaria (applications Nos. 43577/98 and 43579/98), 6 July 2005; European Court of Human Rights, Finucane v. the United Kingdom, application No. 29178/95, 1 July 2003 and 1 October 2003; Inter-American Court of Human Rights, Gonzalez et al. v Mexico, case No. 281/02, 16 November 2009
  13. ↑ See Supreme Court of India, Criminal Appellate Jurisdiction, People’s Union for Civil Liberties & Anr. v. State of Maharashtra & Ors. (Criminal Appeal No. 1255 of 1999), 23 September 2014.
  14. ↑ Report of the UN Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, Juan E. Méndez, A/69/287 (2014) paras.34-5
  15. ↑ The Minnesota Protocol on the Investigation of Potentially Unlawful Death (2016), Office of the United Nations High Commissioner for Human Rights, (New York/Geneva, 2017) para.1
  16. ↑ The Minnesota Protocol on the Investigation of Potentially Unlawful Death (2016), Office of the United Nations High Commissioner for Human Rights, (New York/Geneva, 2017) para.2
  17. ↑ The Minnesota Protocol on the Investigation of Potentially Unlawful Death (2016), Office of the United Nations High Commissioner for Human Rights, (New York/Geneva, 2017) para.8
  18. ↑ The Minnesota Protocol on the Investigation of Potentially Unlawful Death (2016), Office of the United Nations High Commissioner for Human Rights, (New York/Geneva, 2017) para.15
  19. ↑ The Minnesota Protocol on the Investigation of Potentially Unlawful Death (2016), Office of the United Nations High Commissioner for Human Rights, (New York/Geneva, 2017) para.16
  20. ↑ The Minnesota Protocol on the Investigation of Potentially Unlawful Death (2016), Office of the United Nations High Commissioner for Human Rights, (New York/Geneva, 2017) para.21
  21. ↑ The Minnesota Protocol on the Investigation of Potentially Unlawful Death (2016), Office of the United Nations High Commissioner for Human Rights, (New York/Geneva, 2017) para.18
  22. ↑ The Minnesota Protocol on the Investigation of Potentially Unlawful Death (2016), Office of the United Nations High Commissioner for Human Rights, (New York/Geneva, 2017) paras.23-33
  23. ↑ The Minnesota Protocol on the Investigation of Potentially Unlawful Death (2016), Office of the United Nations High Commissioner for Human Rights, (New York/Geneva, 2017) para.38
  24. ↑ The Minnesota Protocol on the Investigation of Potentially Unlawful Death (2016), Office of the United Nations High Commissioner for Human Rights, (New York/Geneva, 2017) paras.48-9
  25. ↑ The Minnesota Protocol on the Investigation of Potentially Unlawful Death (2016), Office of the United Nations High Commissioner for Human Rights, (New York/Geneva, 2017) para.52
  26. ↑ The Minnesota Protocol on the Investigation of Potentially Unlawful Death (2016), Office of the United Nations High Commissioner for Human Rights, (New York/Geneva, 2017) §IV.C & §IV.D
  27. ↑ The Minnesota Protocol on the Investigation of Potentially Unlawful Death (2016), Office of the United Nations High Commissioner for Human Rights, (New York/Geneva, 2017) §IV.E
  28. ↑ The Minnesota Protocol on the Investigation of Potentially Unlawful Death (2016), Office of the United Nations High Commissioner for Human Rights, (New York/Geneva, 2017) §IV.F
  29. ↑ The Minnesota Protocol on the Investigation of Potentially Unlawful Death (2016), Office of the United Nations High Commissioner for Human Rights, (New York/Geneva, 2017) para.149
  30. ↑ The Minnesota Protocol on the Investigation of Potentially Unlawful Death (2016), Office of the United Nations High Commissioner for Human Rights, (New York/Geneva, 2017) para.44

See also

Further reading

Related Research Articles

Office of the United Nations High Commissioner for Human Rights Department of the Secretariat of the United Nations that works to promote and protect the human rights that are guaranteed under international law

The Office of the United Nations High Commissioner for Human Rights, commonly known as the Office of the High Commissioner for Human Rights (OHCHR) or the UN Human Rights Office, is a department of the Secretariat of the United Nations that works to promote and protect the human rights that are guaranteed under international law and stipulated in the Universal Declaration of Human Rights of 1948. The office was established by the UN General Assembly on 20 December 1993 in the wake of the 1993 World Conference on Human Rights.

The United Nations Human Rights Committee is a United Nations body of 18 experts established by a human rights treaty, the International Covenant on Civil and Political Rights (ICCPR). The Committee meets for three four-week sessions per year to consider the periodic reports submitted by the 172 States parties to the ICCPR on their compliance with the treaty, and any individual petitions concerning the 116 States parties to the ICCPR's First Optional Protocol. The Committee is one of ten UN human rights treaty bodies, each responsible for overseeing the implementation of a particular treaty.

The Manual on Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, commonly known as the Istanbul Protocol, is the first set of international guidelines for documentation of torture and its consequences. It became an official United Nations document in 1999.

United Nations special rapporteur United Nations title

Special rapporteur, independent expert, and working group member are titles given to individuals working on behalf of the United Nations (UN) within the scope of "special procedure" mechanisms who have a specific country or thematic mandate from the United Nations Human Rights Council. The term "rapporteur" is a French-derived word for an investigator who reports to a deliberative body.

The Special Rapporteur on the Sale and Sexual Exploitation of Children works on behalf of the United Nations Human Rights Council to investigate the exploitation of children around the world and make recommendations to governments on how to end such practices.

Physicians for Human Rights (PHR) is a US-based not-for-profit human rights NGO that uses medicine and science to document and advocate against mass atrocities and severe human rights violations around the world. PHR headquarters are in New York City, with offices in Boston and Washington, D.C. It was established in 1986 to use the unique skills and credibility of health professionals to advocate for persecuted health workers, prevent torture, document mass atrocities, and hold those who violate human rights accountable.

Zeid Raad Al Hussein

Zeid Ra'ad Zeid Al Hussein is the Perry World House Professor of the Practice of Law and Human Rights at the University of Pennsylvania. He is a former Jordanian diplomat who also served as United Nations High Commissioner for Human Rights from 2014 to 2018. He played a central role in the establishment of the International Criminal Court, and was elected the first president of the Assembly of State Parties of the International Criminal Court in September 2002. He also served as a political affairs officer in UNPROFOR in the former Yugoslavia from 1994 to 1996.

The Working Group on Arbitrary Detention is a body of independent human rights experts that investigate cases of arbitrary arrest and detention. Arbitrary arrest and detention is the imprisonment or detainment of an individual, by a State, without respect for due process. These actions may be in violation of international human rights law.

Philip Alston

Philip G. Alston is an Australian international law scholar and human rights practitioner. He is John Norton Pomeroy Professor of Law at New York University School of Law, and co-Chair of the law school's Center for Human Rights and Global Justice. In human rights law, Alston has held a range of senior UN appointments for over two decades, including United Nations Special Rapporteur on extrajudicial, summary or arbitrary executions, a position he held from August 2004 to July 2010. In 2014 he was appointed to an unpaid role as UN Special Rapporteur on extreme poverty and human rights.

Extrajudicial killings and forced disappearances in the Philippines

Extrajudicial killings and forced disappearances in the Philippines are illegal executions – unlawful or felonious killings – and forced disappearances in the Philippines. These are forms of extrajudicial punishment, and include extrajudicial executions, summary executions, arbitrary arrest and detentions, and failed prosecutions due to political activities of leading political, trade union members, dissident and/or social figures, left-wing political parties, non-governmental organizations, political journalists, outspoken clergy, anti-mining activists, agricultural reform activists, members of organizations that are alleged as allied or legal fronts of the communist movement or claimed supporters of the NPA and its political wing, the Communist Party of the Philippines (CPP).

LGBT rights at the United Nations

Discussions of LGBT rights at the United Nations have included resolutions and joint statements in the United Nations General Assembly and the United Nations Human Rights Council (UNHRC), attention to the expert-led human rights mechanisms, as well as by the UN Agencies.

Yogyakarta Principles document about human rights in the areas of sexual orientation and gender identity

The Yogyakarta Principles is a document about human rights in the areas of sexual orientation and gender identity, published as the outcome of an international meeting of human rights groups in Yogyakarta, Indonesia, in November 2006. The Principles were supplemented in 2017, expanding to include new grounds of gender expression and sex characteristics, and a number of new principles.

Christof Heyns

Christof Heyns is a Professor of Human Rights Law, Director of the Institute for International and Comparative Law in Africa at the University of Pretoria and a member of the United Nations Human Rights Committee. He served as United Nations Special Rapporteur on extrajudicial, summary or arbitrary executions from 2010 to 2016. Christof Heyns is visiting professor at American University Washington College of Law's Academy on Human Rights and Humanitarian Law (2006-2012).

The Republic of Uruguay is located in South America, between Argentina, Brazil and the South Atlantic Ocean, with a population of 3,332,972. Uruguay gained independence and sovereignty from Spain in 1828 and has full control over its internal and external affairs. From 1973-85 Uruguay was governed by a civil-military dictatorship which committed numerous human rights abuses.

Agnès Callamard

Agnès Callamard is a French human rights expert and the Special Rapporteur on extrajudicial, summary, or arbitrary executions appointed by the United Nations Human Rights Council. She is also the Director of Columbia University's Global Freedom of Expression project.

The terrorist group, self-proclaimed Islamic State has committed several fundamental violations of children's rights in the Middle East, particularly in Iraq and Syria The conventions protecting children's rights is the United Nations Convention on the Rights of the Child (CRC). This is the most ratified international human rights treaty in history which established the widely supported view that children and young persons have the same basic general human rights as adults and also specific rights that recognize their special needs. A further two additional protocols were adopted by the UN General Assembly on 25 May 2000 covering the involvement of children in armed conflict and on the sale of children, child prostitution and child pornography. In ISIL's rise in the recent years, they have committed various violations of the (CRC) and its protocols, which have been signed and ratified by Iraq and Syria.

Catalina Devandas Aguilar is a Costa Rican lawyer who served as the first United Nations Special Rapporteur on the Rights of Persons with Disabilities from 2014 until 2020. She worked previously for the World Bank and took part in the establishment of the Convention on the Rights of Persons with Disabilities with the United Nations Secretariat. She has spina bifida and uses a wheelchair.

Ahmad Reza Jalali Iranian-Swedish doctor, lecturer and researcher

Ahmadreza Djalali,, is an Iranian-Swedish disaster medicine doctor, lecturer and researcher. He was accused of espionage and collaboration with Israel and sentenced to death. He has worked in several universities in Europe, among which Karolinska University of Sweden, where he had also attended his PhD program, Università degli Studi del Piemonte Orientale (Italy), Vrije Universiteit Brussel (Belgium). He also cooperated with universities in Iran and is in contact with universities worldwide, including in Israel, Saudi Arabia and the United States.

Secret prisons of SBU are secret detention facilities operated by Security Service of Ukraine (SBU) in Eastern Ukraine to incarcerate alleged Russian-backed separatists. According to multiple reports of UN monitoring mission in Ukraine, Amnesty International and Human Rights Watch the practice of unacknowledged detention is accompanied by widespread torture and various forms of human rights abuses. Dutch journalist Chris Kaspar de Ploeg in his book "Ukraine in the Crossfire" said about the prisons that their "practices happen completely in the dark" emphasizing that the supporting evidence about the facilities has been documented independently by the UN, Amnesty International and Human Rights Watch.

Office of the United Nations High Commissioner for Human Rights (OHCHR) released two reports on "the situation of human rights in Indian-Administered Kashmir and Pakistan-Administered Kashmir". The first report released on 14 June 2018 was the first ever issued by the United Nations on human rights in Kashmir. The second update report was released on 8 July 2019. The first report covered June 2016 to April 2018 while the second report covered the period May 2018 to April 2019. In both cases the reactions of Pakistan and India were diametrically opposite.

This page is based on this Wikipedia article
Text is available under the CC BY-SA 4.0 license; additional terms may apply.
Images, videos and audio are available under their respective licenses.