Minnesota Protocol on the Investigation of Unlawful Death Gets a New Life

The Revised Minnesota Protocol on the Investigation of Potentially Unlawful Death has just been published. It sets out the international human rights and criminal justice standards applicable to national investigations into alleged summary executions and other suspicious deaths, while also providing detailed advice on crime scene investigation and forensic methodology.

The document is highly relevant for human rights lawyers and criminal justice practitioners.  As I also discuss here [pp. 204ff], human rights cases dealing with suspicious killings regularly turn on the quality of the national criminal investigation into the crime. If the investigation was done properly, international human rights mechanisms will typically defer to its findings; if not, they will find a procedural violation of the right to life, even if state responsibility for the killing itself cannot be proven.

The original Minnesota Protocol was prepared in 1991 by a small group of lawyers from that icy state and later published by the United Nations Secretariat. Formally also known as the United Nations Manual on the Prevention and Investigation of Extra-Legal, Arbitrary and Summary Executions, the document has been cited with approval by the Inter-American and European human rights courts.

The just published version of the Minnesota Protocol/U.N. Manual maintains the established brand names. But the text has been completely overhauled by the drafting team around outgoing U.N.  Special Rapporteur on Summary Executions, Christof Heyns (note: the author was not involved). A biopsy of the old and new versions of the Minnesota Protocol goes to show how far human rights law has advanced over the last quarter century.

Expansion into the Private Sphere

Commensurate with the expansion of human rights law into the private sphere, the subject-matter of the Minnesota Protocol has grown from state-sponsored executions to the investigation of all potentially unlawful deaths. In addition to killings by state officials and deaths in custody, the Protocol now also covers  deaths linked to a possible state failure “to exercise due diligence to protect an individual or individuals from foreseeable external threats or violence by non-State actors” ( see para. 2.c).

This expansion accounts for a reality where the biggest threats to human rights defenders, journalists and environmentalists often emanate from extremist groups, unscrupulous private sector interests or shadowy death squads whose affiliation with the state may be hard to prove. Investigations into hate crimes involving the killing of minorities or other vulnerable groups are also covered by the scope of the Revised Minnesota Protocol.

Application of the Human Rights Duty to Investigate Peace Time and Armed Conflict Killings

According to the Minnesota Protocol, the duty to investigate is triggered where the State “knows or should have known of any potentially unlawful death, including where reasonable allegations of a potentially unlawful death are made” (see para. 15). Any unlawful killing reported by a credible human rights NGOs or international human rights body should therefore lead to a national criminal investigation. A formal complaint to the police is not necessary. This long-standing human rights principle takes the heat off bereaved families who might otherwise be pressured into dropping the case.

IHL lawyers will be interested (or alarmed) to learn that the Protocol addresses the contested question, (see here, here and here) to what extent casualties occurring in hostilities must be investigated. The Protocol confirms that the basic human rights obligation to investigate also applies to conflict-related killings. While it stops short of requiring full investigation into any conflict-related killings, it calls for the systematic assessment of battlefield casualties (see para. 21):

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.  Where there are reasonable grounds to suspect that a war crime was committed, the State must conduct a full investigation and prosecute those who are responsible.

IHL violations, which fall short of a war crime and are not subject to specific duties to investigate, must still be subject to “further inquiry.” If unlawful conduct is found, a full investigation must be carried out.

It should be emphasized that these standards also apply to conflict-related killings occurring on territory that the State does not control such as killings caused by airstrikes or shelling.  While the Minnesota Protocol concedes that practical challenges may prevent compliance with all aspects of the duty to investigate in such situations, it firmly demands that “the constraints and reasons for non-compliance should be recorded and publicly explained” (see para. 20).

Universal Investigative Standards

Through a process of legal cross-fertilization that reaches back to the venerable Velazquez Rodriguez judgment, the jurisprudence of universal and regional human rights bodies has converged on a set of principles with which any criminal investigation into deaths (or serious injuries) must comply. Investigations must be prompt, effective, sufficiently independent, impartial and reasonably transparent vis-à-vis the victim’s family and the general public. The Minnesota Protocol does an admirable job of providing a concise summary of what human rights law demands in relation to each of these attributes.

Independent investigations require that security officials suspected of wrongdoing must not investigate themselves. Instead, the investigation must be “capable of being carried out free from undue influence that may arise from institutional hierarchies and chains of command.” Law enforcement bodies therefore must set up institutionally independent internal investigation bodies considering that investigations must go beyond the direct perpetrators and identify others “in the chain of command who were complicit in the death” (see para. 26).

Military abuses pose particular challenges regarding the independence of investigations. In light of strict chains of command and a strong esprit de corps within the military, human rights advocates have often demanded that the investigation of serious violations by the military should be left entirely to civilian authorities. State practice is not there yet. The Minnesota Protocol navigates between both positions by demanding at least civilian judicial oversight over investigations into serious violations (see para. 28):

Inquiries into serious human rights violations such as extrajudicial executions, enforced disappearances and torture must be conducted under the jurisdiction of ordinary civilian courts.

The Right to the Truth

From the mid-1990s, first the Inter-American Court, later followed by U.N. mechanisms, started developing the right to know the truth about human rights violations and their causes; a right that is owned by victims, their families and the public as a whole. The Minnesota Protocol references the right to the truth and it reverberates throughout the text. Investigations “must be transparent, including through openness to the scrutiny of the general public and of victims’ families” (para. 32). This requires, at a minimum, that the authorities are “transparent about the existence of an investigation, the procedures to be followed in an investigation, and an investigation’s findings, including their factual and legal basis” (id.).

The Minnesota Protocol also clarifies that investigations must seek to determine both individual criminal responsibility and the larger truth about “policies and systemic failures that may have contributed to a death, and identify patterns where they exist (para. 26).” Investigations into broader patterns of dubious killings may therefore have to pursue two separate tracks: a criminal investigation aimed at establishing individual responsibility and another inquiry focused on systemic failures and related political accountability. Increasingly, states set up national commissions of inquiry, blue ribbon panels or other special mechanisms to address the latter dimension. Unfortunately, however, some states have become very adept at playing off both types of investigations against each other: A special mechanism is charged with an open-ended inquiry of uncertain duration that effectively blocks ordinary criminal investigations from advancing. The Minnesota Protocol sees and addresses that very problem (see para. 40):

The effective conduct of a special investigative mechanism – designed, for example, to investigate the systemic causes of rights violations or to secure historical memory – does not in itself satisfy a state’s obligation to prosecute and punish, through judicial processes, those responsible for an unlawful death. Accordingly, while special mechanisms may play a valuable role in conducting investigations in certain circumstances, they are unlikely on their own to fulfil the State’s duty to investigate. Fulfilment of that duty may require a combination of mechanisms.

A Duty to Request External Investigative Assistance?

The second part of the Protocol is devoted to providing highly detailed and practical guidance on how crime scene and forensic investigations should be conducted in cases of potentially unlawful deaths. The guidance is based on good practices gleaned from developed countries with a sophisticated law enforcement apparatus. It will be interesting to see to what extent, human rights bodies such as the European Court of Human Rights will use this guidance as the due diligence yardstick for assessing compliance with the duty to investigate. So far the European Court tends to find violations only, where investigative shortcomings were so blatant that they raised questions about the goodwill of the investigating authorities (see here, pp. 206ff.).

Certain investigative techniques identified as good practices by the Revised Minnesota Protocol may be beyond the means of many developing countries. For instance, many states will be unable to deploy “satellite/aerial image analysis or hyperspectral image analysis, and geophysical survey equipment such as ground-penetrating radar” (para. 112) in order to locate hidden mass graves. This raises the question whether states have a duty to request international assistance where locally available investigative capacities fall short. The Minnesota Protocol sidesteps the question and merely notes that “[t]he assistance of law enforcement agencies in other States may help the investigation cover any gaps in the technical capacity of local investigators (para. 77).” But it is worth recalling that, human rights duties to request and accept external assistance also exist elsewhere. Notably, states must seek and accept international assistance when they cannot ensure freedom from hunger or other core minimum standards emerging from economic and social rights (see e.g. here and here).

Credible Investigations in a Post-Factual World

Assuming the human rights world will embrace it, the revised Minnesota Protocol will make it much harder for national authorities to get away with bogus investigations by claiming that the standards were not clear. At the same time, it provides states committed to conducting proper investigations into the most serious human rights violations with comprehensive, practical guidance on how to proceed.

Rigorous adherence to a credible investigate methodology is human rights’ best defense against the specter of a “post-factual world” where the distinction between truth and fake news derives from preconceived partisan beliefs and even the most blatant violations can be easily dismissed as  biased fabrications. The update of the Minnesota Protocol – and its underlying promise that credible, competent and impartial investigations can determine the truth about dubious deaths – could not be published at a more timely moment.