17 Dec The Minnesota Protocol Remains a Valuable Tool in the Global Fight against Impunity
[Kingsley Abbott is Director of Global Accountability & International Justice at the International Commission of Jurists.]
All over the world, States continue to commit or fail to prevent unlawful killings, from the killing of peaceful protestors, those associated with ‘wars on drugs’ and journalists, to deaths in custody. Whenever a State knows or should have known of any potentially unlawful death, it has a duty to conduct an effective investigation. However, impunity frequently persists because either an investigation does not take place, or it is inadequate and non-compliant with international law and standards. This often leads to the victim’s family being unable to obtain effective remedies, including learning the truth about what happened and reparations.
Since 1991, a key resource in combatting impunity for violations of the right to life has been the United Nations Manual on the Effective Prevention and Investigation of Extra-legal Arbitrary and Summary Executions, which became known as the Minnesota Protocol. The Protocol is intended to act as a companion to the 1989 UN Principles on the Effective Prevention and Investigation of Extra-legal, Arbitrary and Summary Executions. Together, they elaborate the obligations on States to respect and protect life and the procedural obligation to investigate potentially unlawful deaths. The Protocol has been used to investigate suspected unlawful killings around the globe, including in Rwanda, Timor-Leste, Peru, Colombia, and Turkey.
In 2016, Christof Heyns, the then UN Special Rapporteur on extra-judicial, summary or arbitrary executions, completed a revision of the Protocol, to which the International Commission of Jurists (ICJ) contributed. This process resulted in the publication of the revised Minnesota Protocol on the Investigation of Potentially Unlawful Death (2016). In May 2017, the UN Office of the High Commissioner for Human Rights (OHCHR) launched the revised Minnesota Protocol in Geneva. At the same time, at a parallel event, the ICJ held a national launch of the revised Protocol in Thailand, together with the Thai Ministry of Justice, OHCHR and the German Embassy in Bangkok.
The Protocol sets out the relevant international legal framework before elaborating on the conduct of an investigation, including on the investigation process, interviews and witness protection, recovery of human remains, identification of dead bodies, types of evidence and sampling, autopsies, and the analysis of skeletal remains. It also contains detailed guidelines on certain key topics and several annexes, including of useful anatomical sketches.
Through its Global Accountability Initiative, the ICJ has sought to raise awareness of the Protocol around the world, including in Myanmar, Thailand, Colombia, Guatemala, Tunisia, Chile and Nepal. Many of these activities involved conducting trainings on the Protocol, including at the regional level. The participants at these trainings were not only justice sector actors, but also human rights defenders and victim representatives who play a key role in monitoring State responses to unlawful killings and in carrying out documentation when States fail to act. A unique feature of these trainings (compared to other trainings justice sector actors may receive on investigations) is that they begin by framing the discussion in international human rights law and standards, including the obligations of States and the rights of victims.
Over the past three years, the Global Accountability Initiative and the ICJ’s Latin America regional program has focussed on accountability for serious human rights violations where impunity persists for a range of current and past violations, including enforced disappearances and unlawful killings of protestors in countries such as Colombia. In addition to a range of other activities, one of the key features of the program’s work has been awareness raising and trainings on the Protocol with a special emphasis on forensics. Together with our partners in the region, the ICJ has trained over 250 judges, prosecutors and investigators from Colombia, Guatemala, Peru, Chile, Mexico and Argentina. Additionally, the ICJ has worked with more than 100 lawyers, civil society organizations and victims to raise awareness about the Protocol. These in-person and virtual events are usually attended by international experts and trainers working alongside national and regional experts.
The ICJ has also produced a Practitioners’ Guide (No 14) on The Investigation and Prosecution of Potentially Unlawful Death, which aims to help legal practitioners ensure that any potentially unlawful death is investigated in a manner that respects international human rights law and standards and, where responsibility is identified, that appropriate measures of accountability ensue. At the heart of the Practitioners’ Guide lies the Protocol. In addition to setting out the applicable international law and standards, the Guide provides practical examples as to how it may be used by lawyers, including in cross-examination, case file review and strategic litigation.
Earlier this month, the ICJ published a new Guide for human rights defenders titled Access to Justice for Unlawful Deaths and Enforced Disappearances – A Guide for Human Rights Defenders. The Guide, which will be released initially in Spanish and English, seeks to assist human rights defenders working on accountability for serious human rights violations to make the relevant international human rights legal framework more accessible, and to provide practical guidance based on lessons other defenders have learned from around the world.
During our work with justice sector actors on the Protocol, the ICJ has gained several key insights. Lack of awareness about the Protocol’s existence is often the first obstacle. Having said that, in every case, once the ICJ has explored the content of the Protocol with the relevant stakeholders and its potential usefulness to their work, there has been universal enthusiasm to learn more. Even States with poor human rights records have actively requested engagement on the Protocol, seemingly in good faith, once they learn that its core contents are practical and constructive, and that the Protocol may have a genuine utility to their work. This has resulted in an added benefit of providing a forum for the ICJ to develop relationships with justice sector actors that later provide the opportunity to have conversations on other human rights topics.
The second insight is that there is a real desire on the part of most justice sector actors to be exposed to international human rights law and standards in a non-critical setting. Nearly all the stakeholders we worked with demonstrated a genuine interest in what the Protocol had to say about activities that formed part of their day-to-day work as judges, prosecutors and investigators. And they enjoyed discussing different approaches to common issues with experts from other countries, such as best practices for crime scene management or witness interviewing. Where the Protocol was perceived to fill gaps that may exist in national standards, there was also a general willingness to adopt its contents. For example, in 2018, police investigators from Myanmar attended a regional training on the Protocol in Thailand which also presented, at the time, an important opportunity to talk about international human rights law and standards. At follow-up meetings in 2019, the Myanmar Police told the ICJ they had distributed copies of the Protocol to their regional headquarters throughout the country. The feedback they received from their colleagues suggested that officers believed the Protocol was a useful companion to their own internal investigation guidelines. This engagement ended following the military coup in Myanmar on 1 February 2021.
The third insight is how important the Protocol is to the work of human rights defenders and victim representatives. Particularly when they are confronted with a failure by the State to investigate or an investigation that is substandard or so opaque it is impossible to know what, if anything, is happening at all. The Protocol provides them not only with another tool in their advocacy, but also with a framework to help formulate questions of law enforcement officials. For example, has an autopsy been conducted? Was it documented? Has a victim liaison officer been appointed? Is the investigation being conducted by an independent body? The Protocol brings State obligations, such as the duty to investigate, to life and makes the actual building blocks of an effective investigation accessible to everyone. For example, in 2018, in the context of two suspected unlawful deaths in Thailand, the ICJ held a talk on extra-judicial killings, touching on the Protocol, with victim family members, the media and interested members of the public.
The Protocol remains a valuable tool in the global fight against impunity. The first challenge is increasing awareness of its existence and demonstrating its real-world usefulness not only to justice sectors actors, but also to human rights defenders and victim representatives who play a key role in holding States to account when suspected unlawful deaths and enforced disappearances take place.