The Minnesota Protocol: Creating Guidelines for Effective Investigations

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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.

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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.

The official title of the revised version is The Minnesota Protocol on the Investigation of Potentially Unlawful Death (2016).  Download the advance edition here.

By: Jennifer Prestholdt is deputy director of The Advocates of Human Rights and  director of it International Justice Program.

The Advocates’ Robin Phillips Testifies before Congressional Committee

RobinTLHRCTestimony

Robin Phillips, executive director of The Advocates for Human Rights, testified today (April 4, 2014) at a hearing before the United States Congress Tom Lantos Human Rights Commission about religious minorities in India.

Robin Phillips’ oral testimony, “The Plight of Religious Minorities in India”:

For more than 30 years, The Advocates for Human Rights has worked with diaspora communities—people living outside their country of origin or ancestry who retain ties to and interest in that country. Some come to the United States seeking asylum after facing religious persecution. Others come as professionals or students, or to join family members. And some are second- or third-generation immigrants. They are part of our communities, they are your constituents, and their voices should help inform our policies toward their countries of origin and ancestry.

Indian diaspora sounds alarm about religious freedom in India

The Indian diaspora groups with whom we work have consistently expressed concern about religious freedom in India. We share their concerns, including: communal violence; impunity for the instigators of such violence and those in government who may be complicit; anti-conversion laws; vague anti-terrorism laws that facilitate profiling and persecution of Muslims; police and armed forces practices such as encounter killings and torture targeting Muslims; and a culture of impunity for such practices. These practices violate international human rights standards.

Consistent with the concerns we hear, the Pew Research Center recently ranked India as a country with “very high social hostilities involving religion” and “high” government restrictions on religion.

Indian diasporans around the world have been sounding the alarm as elections approach. In the first eight months of 2013, there were 451 incidents of communal violence, up from 410 in all of 2012. The UN Special Rapporteur on Freedom of Religion or Belief cautions that “political exploitation of communal distinctions” presents “a real risk that [large scale] communal violence might happen again.”

Multifaceted impunity fuels communal violence

Impunity fuels communal violence. This impunity is multifaceted: officials do not hold private parties accountable for communal violence; courts do not hold government officials accountable for sanctioning or encouraging that violence; political parties rally behind political leaders who are implicated in communal violence; obstruction of justice and witness intimidation are commonplace in court procedures; immunity laws shield security forces from accountability; and officials accept torture and extrajudicial killings as the norm.

Some examples raised by Indian diasporans highlight these points. Cases brought against officials alleged to be complicit in the 2002 Gujarat violence have been dismissed for lack of evidence after witnesses were intimidated and prosecutors and judges effectively stood in as defense counsel. UN human rights bodies have described the proceedings as “flawed from the outset,” reflecting concerns of religious bias and high levels of corruption. Whistleblowers in Gujarat law enforcement have faced threats and arrests.

Wounds of past communal violence still fresh, especially for women

The UN Special Rapporteur on Violence against Women visited India last May. She observed that communal violence in India “is frequently explained away by implying that equal aggression was noted on both sides.” By characterizing this violence as “riots,” the government “den[ies] the lack of security for religious . . . minorities, . . . disregarding their right to equal citizenship.” “This issue is of particular concern to many,” the Special Rapporteur noted at the end of her visit last May, “as the wounds of the past are still fresh for women who were beaten, stripped naked, burnt, raped [or] killed because of their religious identity, in the Gujarat massacre of 2002.”

In some communal attacks, police reportedly arrest victims and protect the attackers. And the government has been negligent in its duties to victims displaced by communal violence who are afraid to return home. These internally displaced persons continue to languish in subhuman conditions in isolated settlements.

Human rights defenders and Muslims face harassment, threats, arbitrary arrest

Human rights defenders report serious problems with increased police harassment and arbitrary arrest and detention of Muslims based on false charges of terrorism. Religious minorities have been targeted under an anti-terrorism law that expands the definition of “terrorism”; authorizes warrantless search, seizure, and arrest; and allows detention without charge for up to 180 days.

Indian police confident of impunity for torturing people

While in custody, many suspects are also subject to torture and ill-treatment. The independent Ravi Chander Commission reported that Muslim men were held without charge for several weeks at illegal detention centers and tortured to extract forced confessions of terrorism offenses. In my own personal discussions with Indian police officers, they have been alarmingly candid about their use of torture as a legitimate interrogation technique, signifying a complete disregard for international standards and confidence of impunity for these human rights violations. Not surprisingly, the UN Special Rapporteur on Torture’s request for permission to visit India has been pending for more than 20 years.

Attorneys for religious minorities face threats, violence

The due process rights of accused religious minorities have been further diminished by interference with obtaining legal counsel. Attorneys representing Gujarat victims have faced threats, intimidation, and hostility from colleagues. Multiple bar associations have issued official or unofficial resolutions instructing members not to represent terrorism suspects; there have also been reported incidents of harassment and physical violence against lawyers who represent Muslim defendants.

“Encounter killings” have become state policy in India

In addition, “encounter killings,” or killings that occur during staged clashes between security forces and alleged armed suspects are becoming increasingly common. The UN Special Rapporteur on extrajudicial, summary or arbitrary executions reported last year that encounter killings “have become virtually a part of unofficial State policy.”

U.S. must ensure India adequately protects rights of religious minorities

As the UN Special Rapporteur on Freedom of Religion or Belief observed after a 2008 visit to India, “impunity emboldens forces of intolerance.” There is a serious possibility of increased violence against religious minorities in India in connection with the upcoming elections. India cannot abrogate its obligation to protect the human rights of its citizens in the name of national security. The United States and India stand as democratic and pluralistic nations. As such, we must hold each other accountable to the highest standards of human rights protection. We encourage the United States to take strong bilateral and multilateral action to ensure that the rights of religious minorities in India are adequately protected and that India complies with all of its international human rights obligations.

Robin Phillips’ testimony begins at approximately :59:15 in the video of the hearing:

Read The Advocates for Human Rights’ November 2011 report on religious discrimination to the UN Human Rights Council for the Universal Periodic Review of India, prepared in collaboration with the Indian American Muslim Council and Jamia Teachers’ Solidarity Association.

Diaspora organizations and individuals who want to shape human rights in their countries of origin or ancestry can use The Advocates’ new toolkit, Paving Pathways for Justice & Accountability: Human Rights Tools for Diaspora Communities.