At the end of May, the United Nations Office of the High Commissioner for Human Rights (OHCHR) announced the launch of the revised Minnesota Protocol on the Investigation of Potentially Unlawful Death (2016) – an update to the original Minnesota Protocol, which was launched in 1991. [OHCHR Press Release] While the Minnesota Protocol is not a binding legal document, it seeks to guide State actors in fulfilling the State’s international legal obligation to undergo investigations of potentially unlawful deaths, which arises from States’ positive obligations under the right to life. See UN High Commissioner for Human Rights, The Minnesota Protocol on the Investigation of Potentially Unlawful Death (2016), UN Doc. HR/PUB/17/4, 24 May 2017, at paras 8-9. The Protocol serves as a guide for law enforcement officers, medical practitioners, attorneys, judicial actors, non-governmental organizations, and others as they undertake investigations of potentially unlawful killings (and suspected enforced disappearances). [OHCHR Press Release] The revised Protocol differs from the original in that it takes into account recent developments in international law as well as the advancement of forensic science in the past 25 years. [Just Security]
Duty to Investigate
The Protocol applies to investigations of all potentially unlawful deaths and suspected enforced disappearances for which a State, through either action or inaction, may be responsible. See id. at paras. 1-2. A State’s duty to investigate arises when it “knows or should have known of any potentially unlawful death.” See id. at para. 15. All investigations should be prompt, effective, thorough, independent, impartial, and transparent. See id. at para. 17.
Conducting an Investigation
The Minnesota Protocol details general principles of investigations and specific standards for the investigation process, interviews and witness protection, recovery of human remains, identification of dead bodies, types of evidence sampling, autopsy, and analysis of skeletal remains. See The Minnesota Protocol on the Investigation of Potentially Unlawful Death (2016).
In conducting an investigation, the Minnesota Protocol states, preserving the lives of everyone involved, as well as the public, should be the top priority. See id. at para. 47. To that end, the investigative team should assess the risk levels of all relevant activities and ensure that no one is unduly subjected to harm. See id.
Once an investigation is initiated, all lines of inquiry that may be pertinent, such as witness and law enforcement accounts, should be identified, prioritized, and pursued diligently with all relevant details being collected and documented. See id. at paras. 50-52. Investigations should be carried out methodically, with all gathered information being properly secured and recorded. See id. at paras. 48-49.
Witness interviews should be conducted in a manner that maximizes justice while minimizing negative impacts. See id. at para. 85. Risk assessments as well as an effective witness protection program are vital to protecting the security of those who may have witnessed a crime or are otherwise in a vulnerable position. See The Minnesota Protocol on the Investigation of Potentially Unlawful Death (2016), at para. 86. Interviews should be recorded whenever possible. See id. at para. 88.
When recovering human remains, special care should be taken to respect the dignity of the deceased individual while complying with best practices in the field of forensics. See id. at para. 90. The investigative team should take photographs of human remains as well as any accompanying clothing or personal items, recording any observations such as the location and positioning of such items and any visible bodily trauma. See id. at paras. 92-93.
Identification of human remains, according to the Minnesota Protocol, “meets humanitarian, human rights, and other social and cultural needs.” See id. at para. 115. When human remains cannot be identified by the visual recognition of family or friends, a scientifically reliable method such as fingerprint or DNA analysis should be used instead. See id. at paras. 116-24.
A diverse range of samples should be collected from human remains for use as evidence, including both biological (blood, saliva, hair, etc.) and non-biological samples (fingerprints, tool marks, blood spatter analysis, firearms evidence, etc.), and should allow for repeat testing. See The Minnesota Protocol on the Investigation of Potentially Unlawful Death (2016), at paras. 131, 134, 137-42. Digital forms of evidence, such as text messages, images on computers, and audio or video recordings, have also become increasingly important and special care should be taken to authenticate and properly examine these materials. See id. at paras. 143-45.
Experienced forensic doctors should conduct all autopsies and in doing so should list all findings and injuries as well as corresponding interpretations. See id. at paras. 148-50. For instance, if the doctor has an opinion as to how a specific injury was sustained, the doctor should make note of that. See id. at para. 151. Guidelines for the analysis of skeletal remains are similar to those outlined above – namely, the remains should be treated with dignity and respect and all necessary steps should be taken to identify the body and determine the cause and manner of death. See id. at paras. 164-66.
Duty to Investigate in International Human Rights Law
States have the duty to investigate potentially unlawful killings under international human rights law. The right to life requires States to respect, protect, and fulfill the right to life, resulting in the State having both negative and positive obligations. Respecting the right to life obliges the State to refrain from arbitrarily depriving a person of their life, a negative obligation. Protecting and fulfilling the right to life requires a State to prevent the arbitrary deprivation of life by non-State actors, a positive obligation. The State, therefore, must protect the lives of individuals when it knows of a threat to someone or several people’s lives or knows of a pattern of killings associated with a class of person, such as sex, religion, race, or sexual orientation, among others. See id. at paras. 7-8. Therefore, the State has a duty to investigate as part of its obligation to respect, protect, and fulfill the right to life. See The Minnesota Protocol on the Investigation of Potentially Unlawful Death (2016), at para. 9. The universal and the three major regional human rights systems – the African, Inter-American, and European Systems – have all found that the State has a duty to investigate potentially unlawful deaths. See id. at para. 9, n.20.
The right to life is firmly grounded in numerous international and regional instruments, including the African Charter on Human and Peoples’ Rights (art. 4), the American Convention on Human Rights (art. 4), the American Declaration of the Rights and Duties of Man (art. 1), the Arab Charter on Human Rights (arts. 5–8), the European Convention on Human Rights (art. 2), the International Covenant on Civil and Political Rights (art. 6), and the Universal Declaration of Human Rights (art. 3).
The revised Minnesota Protocol reflects the work of more than 70 individuals from around the world who are experts in their respective fields. [OHCHR Press Release] The revision process officially began in April 2015 and was led by an advisory panel and two working groups. One working group concentrated on legal investigations and the other on forensic science. The revision process consisted of a series of consultations, interactive dialogues, and comment periods, culminating in the presentation of the final draft of the Protocol to the UN High Commissioner in July 2016. See OHCHR, Revision of the UN Manual on the Effective Prevention and Investigation of Extra-Legal, Arbitrary and Summary Executions (the Minnesota Protocol).
The 1991 Minnesota Protocol was created to complement the UN Principles on the Effective Prevention and Investigation of Extra-legal, Arbitrary and Summary Executions, which articulate the international legal standards for the prevention and investigation of unlawful deaths. See The Minnesota Protocol on the Investigation of Potentially Unlawful Death (2016), at vi. The original Protocol became an “influential touchstone for death investigations” utilized by national, regional, and international tribunals, commissions, and committees. See id.
Current UN High Commissioner for Human Rights, Zeid Ra’ad Al Hussein, commended the revised Protocol, saying that “proper investigations into suspicious deaths are an integral part of the protection of the right to life.” [OHCHR Press Release] UN Special Rapporteur on extrajudicial, summary or arbitrary executions, Agnes Callamard, called the Protocol “an invaluable tool that will help guide investigations into suspicious deaths, ensure accountability for violations of the right to life, and bring truth, justice and reparation to the families of victims.” [OHCHR Press Release]
For more information on the right to life or the Special Rapporteur on extrajudicial, summary or arbitrary executions, visit IJRC’s Online Resource Hub.