Originally published on The Advocates Post
Back in the 1980s, a small group of Minnesota lawyers was concerned about the lack of accountability for the 1983 political assassination of Benigno Aquino in the Philippines and many other suspected unlawful deaths happening in the world. Effective investigation is key to establishing responsibility and holding perpetrators accountable, but no international standards existed at the time that required governments to initiate or carry out investigations of suspected unlawful deaths.
The need for international standards and guidelines for death investigations
Clearly, there was a need for international standards regarding death investigations, as well as practical guidelines for how those investigations should be done. In 1983, as its very first project, The Advocates for Human Rights (then known as the Minnesota Lawyers International Human Rights Committee) took action by engaging local and international experts in law and forensic science. The project’s researchers and authors―almost all volunteers―included David Weissbrodt, Sam Heins, Barbara Frey, Don Fraser, Tom Johnson, Lindsey Thomas, Garry Peterson, Jim Roth, Bob Sands, Sonia Rosen and Marie Bibus and many others. They worked on successive drafts for several years.
In 1987, at the Spring Hill Conference Center in Wayzata, the final details of what would come to be the Minnesota Protocol were hammered out. There were two parts: 1) international legal standards detailing the duty of governments to prevent, investigate and initiate legal proceedings after a suspicious and unlawful death; and 2) guidelines for how to conduct effective investigations, as well as model protocols for conducting autopsies and for disinterment and analysis of skeletal remains.
In 1989, the standards were incorporated into the UN Principles on the Effective Prevention and Investigation of Extra-legal, Arbitrary and Summary Executions, which was adopted by the UN Economic and Social Council and endorsed by the UN General Assembly. The UN formally adopted the guidelines in 1991 as the United Nations Manual on the Effective Prevention and Investigation of Extra-Legal, Arbitrary, and Summary Executions. For the first time, the world had a set of international standards and guidelines for effective investigation.
Despite its official UN title, however, the UN Manuel has been commonly referred to as the Minnesota Protocol.
UN-mandated Principles & Manual are key to investigations
Together, the Principles and the Manual are the key UN-mandated texts that have provided guidance for 25 years on the international duty to investigate violations of the right to life and best practices for conducting autopsies and forensic analysis of suspicious deaths in custody.
The Minnesota Protocol has been used in myriad investigative contexts in almost every region of the world. When Tom Johnson led a team of Gray Plant Mooty attorney volunteers to research the Minnesota Protocol’s impact, they found that it has been cited as the yardstick for conducting investigations by international human rights bodies, regional bodies such as the European Court of Human Rights, the Inter-American Court on Human Rights, and the African Commission on Human and Peoples’ Rights, as well as national courts in India, Australia, and other countries.
Perhaps more important, however, is how the Minnesota Protocol has been used in practice. The Minnesota Protocol has guided investigations throughout the world, including in Rwanda, Bosnia, and East Timor. St. Paul Pioneer Press columnist Ruben Rosario described in his May 15, 2013 article how using the Minnesota Protocol has led to accountability for human rights violations in Guatemala and other places in the world.
I can also tell you about the Minnesota Protocol’s impact from my personal, in-the-field experience. In Peru, the Truth and Reconciliation Commission told me proudly that they were using the Minnesota Protocol in their work exhuming mass graves. Family members and non-governmental organizations (NGOs) bring this document to the police. I’ve been told by colleagues that the Minnesota Protocol is the most effective tool they have to remind their government of the duty to conduct an effective investigation when there is a suspected unlawful death. Forensic experts have told me that they bring copies of the model autopsy protocol with them when conducting investigations in the field, writing their notes in it.
Much has changed in the world since the 1980s
It goes without saying that forensic science, DNA analysis, and other technologies have advanced greatly since the original Minnesota Protocol was drafted. International law has also advanced. Now, there are clear, internationally-accepted principles as to what constitutes the legal duty to investigate―investigations must be prompt, thorough, effective, transparent, independent and impartial. The rights of victims are now acknowledged in international law, including the rights of families to know what happened to their loved ones and to reparation and other remedies. Society as a whole has a right to know the truth about what really happened in order to prevent those human rights abuses from happening again.
For years there has been discussion at the UN about updating the Minnesota Protocol for the 21st century. Christof Heyns, the UN Special Rapporteur on extrajudicial, summary or arbitrary executions, began in 2015 to make it a reality, inviting The Advocates to be a part of the revision process. Along with University of Minnesota professor Barbara Frey―one of the original drafters of the Minnesota Protocol―and other human rights law experts, I serve on the Legal Investigations Working Group. There is also a Forensics Working Group and a larger Advisory Panel, which includes several of the original authors. As it was in the 1980s, the work involves extensive contributions by international experts in law, forensics, and crime scene investigation.
Plans for the new version call for including the Minnesota Protocol in the official title.
By: Jennifer Prestholdt is deputy director of The Advocates of Human Rights and director of it International Justice Program.
3 thoughts on “The Minnesota Protocol: Creating Guidelines for Effective Investigations”
Wow…such an amazing contribution to the world and the advancement of human rights! Thank you for sharing.
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Thanks for your comment, Mary! While I had heard about the Minnesota Protocol, of course, I never knew the history or impact until we started working on the revision. It’s truly amazing and a great example of Margaret Mead’s quote, “Never doubt that a small group of thoughtful, committed citizens can change the world.” ~Jennifer
I urge that the Minnesota protocol have a section revising the current model for death certificates as it applies to deaths in custody. Essentially, this change would add an appendix of photographs, selectively available to the death certificate.
Rationale: Deaths in custody can be sentinel events that indicate “torture, or cruel, inhuman treatment or abuse” or profound neglect of basic needs, or suicide.
Article 120 and 121 of the third Geneva Convention note the deaths of POWs as a sentinal event.
Article 120 (excerpt)
Death certificates in the form annexed to the present Convention, or lists certified by a responsible officer, of all persons who die as prisoners of war shall be forwarded as rapidly as possible to the Prisoner of War Information Bureau established in accordance with Article 122. The death certificates or certified lists shall show particulars of identity as set out in the third paragraph of Article 17, and also the date and place of death, the cause of death, the date and place of burial and all particulars necessary to identify the graves.
The burial or cremation of a prisoner of war shall be preceded by a medical examination of the body with a view to confirming death and enabling a report to be made and, where necessary, establishing identity.
Every death or serious injury of a prisoner of war caused or suspected to have been caused by a sentry, another prisoner of war, or any other person, as well as any death the cause of which is unknown, shall be immediately followed by an official enquiry by the Detaining Power.
I propose as a minimum standard, irregardless but especially when a full forensic autopsy cannot be or is not performed, that the death certificate of a person in custody should include an appendix of well lit and properly focused photographs of the completely exposed:
a) face and neck,
b) frontal torso from the neck to the groin including arms at the side,
c) back from the top of the head to the bottom of the buttocks with the arms at the side,
d) groin of men,
e) front and back of legs from the hips to the feet.
All such photographs should be an appendix to the official death certificate that is filed with the government.
In that this appendix is part of the death certificate, the person signing the death certificate shall be deemed responsible for taking these photographs and for their quality. Not withstanding this requirement, public officials responsible for places of detention may be held responsible for obstructing or discouraging the creation or archiving of this appendix.
A small box for a check mark should be placed on the death certificate to allow a notation confirming that the photographs have been taken and archived.
In addition to government officials, this appendix of photographs should be promptly available to delegates of the International Committee of the Red Cross and the UN Special Rapporteur on torture upon a request made in the course of their official duties.
Steven Miles, MD
Professor of Medicine and Bioethics
Center for Bioethics, University of Minnesota