Investigating Potentially Unlawful Death under International Law: The 2016 Minnesota Protocol
| Author | Christof Heyns - Stuart Casey-Maslen - Toby Fisher - Sarah Knuckey - Thomas Probert - and Morris Tidball-Binz |
| Position | Professor of Human Rights Law and Director of the Institute for International and Comparative Law in Africa at the University of Pretoria, and member of the United Nations Human Rights Committee. - Honorary Professor, Faculty of Law, University of Pretoria. - Lieff Cabraser Associate Clinical Professor of Law, Director of the Human Rights ... |
| Pages | 47-80 |
Investigating Potentially Unlawful Death under
International Law: The 2016 Minnesota
Protocol
C
HRISTOF
H
EYNS
,* S
TUART
C
ASEY
-M
ASLEN
,** T
OBY
F
ISHER
,***
S
ARAH
K
NUCKEY
,† T
HOMAS
P
ROBERT
,††
AND
M
ORRIS
T
IDBALL
-B
INZ
‡
I. Introduction
Across every region of the world, states are daily alleged to have
committed or to have failed to prevent unlawful killings. From police
shootings of members of ethnic minorities, to the use of lethal force against
protestors during peacetime, to indiscriminate air strikes and targeted
attacks on civilians during armed conflict, one of the most pressing concerns
is ensuring that an effective investigation of the killing is conducted.
Without an investigation, accountability is typically impossible, and families
and communities must endure the pain of loss without knowing the truth,
much less seeing justice. Investigations are an essential component of the
right to life and are necessary to prevent future violations.
International treaties protect the universally binding right to life and
permit killing only in narrow, strictly defined circumstances. When a life
has been lost and it is uncertain whether this occurred in accordance with
the law, the death must be investigated. But treaties do not set out the
specific standards or processes for proper investigations of alleged violations.
Instead, agreed international legal standards have developed over time.
States, international human rights bodies, and practitioners have relied on
supplemental international instruments to set out the agreed substantive and
procedural legal elements of the right to life and to advance the best
investigation practice.
* Professor of Human Rights Law and Director of the Institute for International and
Comparative Law in Africa at the University of Pretoria, and member of the United Nations
Human Rights Committee.
** Honorary Professor, Faculty of Law, University of Pretoria.
*** Lieff Cabraser Associate Clinical Professor of Law, Director of the Human Rights Clinic,
and Faculty Co-director of the Human Rights Institute at Columbia Law School, New York.
† Head of Research, Freedom from Violence Project, University of Pretoria, and Research
Associate, Centre of Governance and Human Rights, University of Cambridge.
†† Barrister, Landmark Chambers, London.
‡ Head of Forensics, Humanitarian Project Plan International, Committee of the Red Cross
(ICRC); Visiting Professor, Department of Forensic Medicine, Ethics and Medical Law,
Faculty of Medicine, University of Coimbra, Portugal; and Visiting Professor, Department of
Biomedical Health Sciences, University of Milan, Italy.
THE INTERNATIONAL LAWYER
A TRIANNUAL PUBLICATION OF THE ABA/SECTION OF INTERNATIONAL LAW
PUBLISHED IN COOPERATION WITH
SMU DEDMAN SCHOOL OF LAW
48 THE INTERNATIONAL LAWYER [VOL. 52, NO. 1
In May 2017, the Office of the United Nations High Commissioner for
Human Rights (OHCHR) published the Minnesota Protocol on the
Investigation of Potentially Unlawful Death (2016), a restatement of the
international standards governing the conduct of such investigations.
1
The
2016 Minnesota Protocol
2
is an extensive revision of the original Minnesota
Protocol, officially entitled the United Nations Manual on the Effective
Prevention and Investigation of Extra-legal Arbitrary and Summary
Executions (the 1991 Minnesota Protocol); the original 1991 Minnesota
Protocol became the point of reference for standards applicable to the
investigation of potentially unlawful death.
3
This article—co-authored by some of those who led the Protocol’s
revision—describes the process that led to the original Protocol, explores
the need for and the method of the Protocol’s revision, and discusses the
reasons for decisions taken about the nature or scope of revisions. Also, this
article summarizes the relevant international standards by describing how an
investigation should be conducted in accordance with the new Protocol, and
further analyzes the Protocol’s status. The article concludes by indicating
how the Minnesota Protocol can continue to guide implementation of the
duty to investigate under international law.
The 2016 Protocol was drafted over the course of two years in a process
led by the U.N. Special Rapporteur on extrajudicial, summary or arbitrary
executions—Christof Heyns—in collaboration with the OHCHR.
4
An
international team of legal, human rights, investigation, and forensic experts,
with support from a high-level advisory panel, reviewed and revised the text
of the 1991 Protocol, taking into account legal and technical developments
since the drafting of the original instrument.
5
The revision process aimed to
produce an updated document that would set out international law on
investigations in a holistic manner and outline good practice in investigation
in light of advances in forensic science.
6
1. See Off. of the U.N. High Comm’r for Hum. Rts., UN Rights Office Launches Global
Guidelines for Investigating Unlawful Killings (May 24, 2017), https://www.ohchr.org/EN/
NewsEvents/Pages/DisplayNews.aspx?NewsID=21661&LangID=E.
2. See O
FF
.
OF THE
U.N. H
IGH
C
OMM
’
R FOR
H
UM
. R
TS
., M
INNESOTA
P
ROTOCOL ON THE
I
NVESTIGATION OF
P
OTENTIALLY
U
NLAWFUL
D
EATH
(2016): T
HE
R
EVISED
U
NITED
N
ATIONS
M
ANUAL ON THE
E
FFECTIVE
P
REVENTION AND
I
NVESTIGATION OF
E
XTRA
-
LEGAL
,
A
RBITRARY AND
S
UMMARY
E
XECUTIONS
, U.N. Doc. HR/PUB/17/4, U.N. Sales No.
E.17.XIV.3 (2017) [hereinafter Minnesota Protocol II].
3. U.N. O
FF
.
AT
V
IENNA
C
TR
.
FOR
S
OCIAL
D
EV
.
AND
H
UMANITARIAN
A
FF
., U
NITED
N
ATIONS
M
ANUAL ON THE
E
FFECTIVE
P
REVENTION AND
I
NVESTIGATION OF
E
XTRA
-L
EGAL
,
A
RBITRARY AND
S
UMMARY
E
XECUTIONS
, U.N. Doc. ST/CSDHA/12, Sales No. E.91.IV.1
(1991), http://hrlibrary.umn.edu/instree/executioninvestigation-91.html [hereinafter Minnesota
Protocol I].
4. Minnesota Protocol II, supra note 2, § VI.
5. Off. of the U.N. High Comm’r for Hum. Rts, Revision of the UN Manual on the
Effective Prevention and Investigation of Extra-Legal, Arbitrary and Summary Executions (the
Minnesota Protocol), https://www.ohchr.org/en/issues/executions/pages/revisionoftheun
manualpreventionextralegalarbitrary.aspx (last visited Oct. 22, 2018).
6. Id.
THE INTERNATIONAL LAWYER
A TRIANNUAL PUBLICATION OF THE ABA/SECTION OF INTERNATIONAL LAW
PUBLISHED IN COOPERATION WITH
SMU DEDMAN SCHOOL OF LAW
2019] THE 2016 MINNESOTA PROTOCOL 49
The right to life has both substantive and procedural legal elements.
7
The
substantive element pertains to the question of when deprivation of life falls
within the limitations recognized under international law. For example, in
the circumstances, did a particular use of force in law enforcement or in the
conduct of hostilities during armed conflict comply with the applicable legal
regimes?
8
The procedural element of the right to life concerns
accountability for unlawful death, in particular, when and how investigations
into deaths that may have been unlawful must be conducted.
9
Thus, a failure
to conduct a proper investigation of a potentially unlawful death is regarded,
in itself, as a violation of the right to life.
10
The primary international
instruments that set out the procedural aspect of the right to life are the
United Nations Principles on the Prevention and Investigation of Extra-
Legal, Arbitrary and Summary Executions of 1989 (U.N. Principles on the
Investigation of Extrajudicial Executions)
11
and the Minnesota Protocol, first
in 1991 and now in its 2016 iteration.
12
The 1991 Minnesota Protocol was
largely developed to operationalize and give detailed content to the more
general standards set out in the U.N. Principles on the Investigation of
Extrajudicial Executions.
13
In focusing on the procedural legal elements of the right to life, the new
Protocol provides detail on the legal basis for the duty to investigate, as well
as the triggers for the application of the duty, and its scope. It explains what
international law demands of each investigation—that it be “(i) prompt; (ii)
effective and thorough; (iii) independent and impartial; and (iv)
transparent.”
14
Building on the original Protocol, the revision also outlines
the rights of families during an investigation.
15
The revised Protocol, like its
predecessor, is also intended as a practical guide to investigations as well as a
training tool, and the bulk of it sets out the steps required for an effective
investigation.
16
The Protocol is a comprehensive restatement of the procedural
component of the right to life.
17
It is intended to assist a range of actors,
including States, investigators, civil society organizations, and rights-holders
themselves, to ensure that proper investigations of suspected unlawful
killings are conducted.
18
It is not a step-by-step handbook but a guide to
good practice, and the 2016 Protocol reflects scientific developments over
7. See, e.g., McCann v. United Kingdom, 324 Eur. Ct. H.R. (ser. A) 97, 163 (1995).
8. See id.
9. See id.
10. See id.
11. Economic and Social Council Res. 1989/65 (May 24, 1989), https://digitallibrary.un.org/
record/75550?ln=en.
12. See Minnesota Protocol II, supra note 2, § VI.
13. See id. at § V.
14. See id. at 7.
15. See id. at 9.
16. Compare Minnesota Protocol II, supra note 2, with Minnesota Protocol I, supra note 3.
17. See Minnesota Protocol II, supra note 2, § V.
18. See id. at 2.
THE INTERNATIONAL LAWYER
A TRIANNUAL PUBLICATION OF THE ABA/SECTION OF INTERNATIONAL LAW
PUBLISHED IN COOPERATION WITH
SMU DEDMAN SCHOOL OF LAW
To continue reading
Request your trial