The Philippines is a State Party to the International Covenant on Civil and Political

Rights and is duty-bound to address the spate of summary killings. The prohibition
against summary killings is slowly achieving the status of jus cogens in
international law. 1 As such, the right of the citizens to be protected against such
admits of no derogation, not even with a declaration of state of lawlessness. It
must be noted that the 1987 Philippine Constitution adopts generally accepted
principles of international law as part of the law of the land

4. I
Ne
Entry into: 23 March 1976, in accordance with article 49, for all provisions
force except those of article 41; 28 March 1979 for the provisions of article
41 (Human Rights Committee), in accordance with paragraph 2 of
the said article 41.
Registration: 23 March 1976, No. 14668
Status : Signatories : 74. Parties : 170
Text : United Nations, Treaty Series, vol. 999, p. 171 and vol. 1057, p. 407
(procès-verbal of rectification of the authentic Spanish text);
depositary notification C.N.782.2001.TREATIES-6 of 5 October 2001
[Proposal of correction to the original of the Covenant (Chinese
authentic text)] and C.N.8.2002.TREATIES-1 of 3 January 2002
[Rectification of the original of the Covenant (Chinese authentic text)].

Note : The Covenant was opened for signature at New York on 19 December
1966.

Accession(a), Succession(d),
Participant Signature
Ratification
Afghanistan 24 Jan 1983 a
Albania 4 Oct 1991 a
Algeria 10 Dec 1968 12 Sep 1989
Andorra 5 Aug 2002 22 Sep 2006
Angola 10 Jan 1992 a
Argentina 19 Feb 1968 8 Aug 1986
Armenia 23 Jun 1993 a
Australia 18 Dec 1972 13 Aug 1980
Austria 10 Dec 1973 10 Sep 1978
Azerbaijan 13 Aug 1992 a
Bahamas 4 Dec 2008 23 Dec 2008
Bahrain 20 Sep 2006 a
Bangladesh 6 Sep 2000 a
Barbados 5 Jan 1973 a
Belarus 19 Mar 1968 12 Nov 1973
Belgium 10 Dec 1968 21 Apr 1983
Belize 10 Jun 1996 a
Benin 12 Mar 1992 a
Bolivia (Plurinational State of) 12 Aug 1982 a
Bosnia and Herzegovina 1 1 Sep 1993 d
Botswana 8 Sep 2000 8 Sep 2000
Brazil 24 Jan 1992 a
Bulgaria 8 Oct 1968 21 Sep 1970
Burkina Faso 4 Jan 1999 a
Burundi 9 May 1990 a
Cabo Verde 6 Aug 1993 a
Cambodia 2, 3 17 Oct 1980 26 May 1992 a
Cameroon 27 Jun 1984 a
Canada 19 May 1976 a
Central African Republic 8 May 1981 a
Chad 9 Jun 1995 a
Chile 16 Sep 1969 10 Feb 1972
China 4, 5, 6 5 Oct 1998
Colombia 21 Dec 1966 29 Oct 1969
Comoros 25 Sep 2008
Congo 5 Oct 1983 a
Costa Rica 19 Dec 1966 29 Nov 1968
Côte d'Ivoire 26 Mar 1992 a
Croatia 1 12 Oct 1992 d
Cuba 28 Feb 2008
Cyprus 19 Dec 1966 2 Apr 1969
Czech Republic 7 22 Feb 1993 d
Democratic People's Republic of 14 Sep 1981 a
Korea 8
Democratic Republic of the Congo 1 Nov 1976 a
Denmark 20 Mar 1968 6 Jan 1972
Djibouti 5 Nov 2002 a
Dominica 17 Jun 1993 a
Dominican Republic 4 Jan 1978 a
Ecuador 4 Apr 1968 6 Mar 1969
Egypt 4 Aug 1967 14 Jan 1982
El Salvador 21 Sep 1967 30 Nov 1979
Equatorial Guinea 25 Sep 1987 a
Eritrea 22 Jan 2002 a
Estonia 21 Oct 1991 a
Ethiopia 11 Jun 1993 a
Finland 11 Oct 1967 19 Aug 1975
France 4 Nov 1980 a
Gabon 21 Jan 1983 a
Gambia 22 Mar 1979 a
Georgia 3 May 1994 a
Germany 9, 10 9 Oct 1968 17 Dec 1973
Ghana 7 Sep 2000 7 Sep 2000
Greece 5 May 1997 a
Grenada 6 Sep 1991 a
Guatemala 5 May 1992 a
Guinea 28 Feb 1967 24 Jan 1978
Guinea-Bissau 12 Sep 2000 1 Nov 2010
Guyana 22 Aug 1968 15 Feb 1977
Haiti 6 Feb 1991 a
Honduras 19 Dec 1966 25 Aug 1997
Hungary 25 Mar 1969 17 Jan 1974
Iceland 30 Dec 1968 22 Aug 1979
India 10 Apr 1979 a
Indonesia 23 Feb 2006 a
Iran (Islamic Republic of) 4 Apr 1968 24 Jun 1975
Iraq 18 Feb 1969 25 Jan 1971
Ireland 1 Oct 1973 8 Dec 1989
Israel 19 Dec 1966 3 Oct 1991
Italy 18 Jan 1967 15 Sep 1978
Jamaica 19 Dec 1966 3 Oct 1975
Japan 30 May 1978 21 Jun 1979
Jordan 30 Jun 1972 28 May 1975
Kazakhstan 2 Dec 2003 24 Jan 2006
Kenya 1 May 1972 a
Kuwait 21 May 1996 a
Kyrgyzstan 7 Oct 1994 a
Lao People's Democratic Republic 7 Dec 2000 25 Sep 2009
Latvia 14 Apr 1992 a
Lebanon 3 Nov 1972 a
Lesotho 9 Sep 1992 a
Liberia 18 Apr 1967 22 Sep 2004
Libya 15 May 1970 a
Liechtenstein 10 Dec 1998 a
Lithuania 20 Nov 1991 a
Luxembourg 26 Nov 1974 18 Aug 1983
Madagascar 17 Sep 1969 21 Jun 1971
Malawi 22 Dec 1993 a
Maldives 19 Sep 2006 a
Mali 16 Jul 1974 a
Malta 13 Sep 1990 a
Marshall Islands 12 Mar 2018 a
Mauritania 17 Nov 2004 a
Mauritius 12 Dec 1973 a
Mexico 23 Mar 1981 a
Monaco 26 Jun 1997 28 Aug 1997
Mongolia 5 Jun 1968 18 Nov 1974
Montenegro 11 23 Oct 2006 d
Morocco 19 Jan 1977 3 May 1979
Mozambique 21 Jul 1993 a
Namibia 28 Nov 1994 a
Nauru 12 Nov 2001
Nepal 14 May 1991 a
Netherlands 25 Jun 1969 11 Dec 1978
New Zealand 12 12 Nov 1968 28 Dec 1978
Nicaragua 12 Mar 1980 a
Niger 7 Mar 1986 a
Nigeria 29 Jul 1993 a
Norway 20 Mar 1968 13 Sep 1972
Pakistan 17 Apr 2008 23 Jun 2010
Palau 20 Sep 2011
Panama 27 Jul 1976 8 Mar 1977
Papua New Guinea 21 Jul 2008 a
Paraguay 10 Jun 1992 a
Peru 11 Aug 1977 28 Apr 1978
Philippines 19 Dec 1966 23 Oct 1986
Poland 2 Mar 1967 18 Mar 1977
Portugal 4 7 Oct 1976 15 Jun 1978
Republic of Korea 10 Apr 1990 a
Republic of Moldova 26 Jan 1993 a
Romania 27 Jun 1968 9 Dec 1974
Russian Federation 18 Mar 1968 16 Oct 1973
Rwanda 16 Apr 1975 a
Samoa 15 Feb 2008 a
San Marino 18 Oct 1985 a
Sao Tome and Principe 31 Oct 1995 10 Jan 2017
Senegal 6 Jul 1970 13 Feb 1978
Serbia 1 12 Mar 2001 d
Seychelles 5 May 1992 a
Sierra Leone 23 Aug 1996 a
Slovakia 7 28 May 1993 d
Slovenia 1 6 Jul 1992 d
Somalia 24 Jan 1990 a
South Africa 3 Oct 1994 10 Dec 1998
Spain 28 Sep 1976 27 Apr 1977
Sri Lanka 11 Jun 1980 a
St. Lucia 22 Sep 2011
St. Vincent and the Grenadines 9 Nov 1981 a
State of Palestine 2 Apr 2014 a
Sudan 18 Mar 1986 a
Suriname 28 Dec 1976 a
Swaziland 26 Mar 2004 a
Sweden 29 Sep 1967 6 Dec 1971
Switzerland 18 Jun 1992 a
Syrian Arab Republic 21 Apr 1969 a
Tajikistan 4 Jan 1999 a
Thailand 29 Oct 1996 a
The former Yugoslav Republic of 18 Jan 1994 d
Macedonia 1
Timor-Leste 18 Sep 2003 a
Togo 24 May 1984 a
Trinidad and Tobago 21 Dec 1978 a
Tunisia 30 Apr 1968 18 Mar 1969
Turkey 15 Aug 2000 23 Sep 2003
Turkmenistan 1 May 1997 a
 Uganda 21 Jun 1995 a
Ukraine 20 Mar 1968 12 Nov 1973
United Kingdom of Great Britain 16 Sep 1968 20 May 1976
and Northern Ireland 6
United Republic of Tanzania 11 Jun 1976 a
United States of America 5 Oct 1977 8 Jun 1992
Uruguay 21 Feb 1967 1 Apr 1970
Uzbekistan 28 Sep 1995 a
Vanuatu 29 Nov 2007 21 Nov 2008
Venezuela (Bolivarian Republic of) 24 Jun 1969 10 May 1978
Viet Nam 24 Sep 1982 a
Yemen 9 Feb 1987 a
Zambia 10 Apr 1984 a
Zimbabwe 13 May 1991 a

Philippines
"The Philippine Government, in accordance with article 41 of the said
Covenant, recognizes the competence of the Human Rights Committee set up in
the aforesaid Covenant, to receive and consider communications to the effect that
a State Party claims that another State Party is not fulfilling its obligations under
the Covenant.

SC orders PNP, DILG, PDEA to answer 2 petitions questioning drive on

drugs
 Manila Bulletin
 8 Nov 2017
 By REY G. PANALIGAN
The Supreme Court (SC) ordered the Philippine National Police (PNP), the
Department of the Interior and Local Government (DILG), and the Philippine Drug
Enforcement Agency (PDEA) on Tuesday to answer two petitions that seek to
declare unconstitutional the drive against illegal drugs as ordered by PNP
Command Memorandum Circular (CMC) No. 16-2016 “Oplan Double-Barrel.”
After yesterday’s full-court
session, the SC set oral arguments on November 21 on the two petitions which
also sought protection for the relatives and survivors of drug operations.
In the first petition, the Free Legal Assistance Group (FLAG) asked the SC to
declare as “patently illegal and grossly unconstitutional” the government’s all-out
drive against illegal drugs.
The FLAG petition, filed in behalf of the victims of the so-called extrajudicial
killings Dave Almora and Rex Aparri, asked the SC to issue a temporary
restraining order (TRO) against the PNP’s “Oplan Double Barrel.”
Named respondents were PNP chief Director General Ronald dela Rosa and
Local Governments Secretary Eduardo Año.
The SC was told that CMC 16-2016 was not formally put in a proper written
executive order.
The petition stated that “the PNP’s ‘War on Drugs’ as operationalized under
CMC 16-2016 violates the right to life, to due process of law, to be presumed
innocent, and to a fair trial by expressly authorizing the summary killing of
suspected drug offenders in the guise of ‘neutralizing’ or ‘negating’ them.”
Assisted by FLAG chairman and De La Salle University Law School Dean Jose
Manuel Diokno, the petitioners said that the drive against illegal drugs that has
resulted in the deaths of over 7,000 individuals who were killed in both police
operations and vigilante killings “violates the right to due process of law, to be
presumed innocent, and to a fair trial by doing away with the basic police duty of
evidence-gathering and case build-up.”
The petitioners also said that the house-to-house visits being conducted by
PNP are unconstitutional because “they are not limited to drug suspects and
based on furtive fingers of unknown informants.”
“The PNP’s ‘war on drugs’ has no legal basis because it is based on a mere
verbal campaign promised by then candidate Rodrigo Duterte ‘to get rid of illegal
drugs’ within the first six months of his term and is not supported by any executive
order, administrative order, memorandum circular, memorandum order, or
proclamation issued by President Duterte,” they pointed out.
At the same time, the petitioners assailed the Department of Interior and Local
Government’s (DILG) Memorandum Circular 2017-112, the “MasaMasid” project,
which allows citizens to report any person who may be involved in narcotics
through drop boxes installed in some barangays.
They said “MasaMasid” is similar to the practice during the Japanese
Occupation in the Philippines and the secret police of Nazi Germany during World
War II.
The second petition was filed by 35 alleged victims of police operations against
illegal drugs since 2016 and residents in 28 barangays in San Andres Bukid in
Manila.
In their plea for a Writ of Amparo, the victims and the residents asked the SC
to issue a TRO in their favor. They were represented by the Center for
International Law (Centerlaw).
The petitioners were led by Sr. Ma. Juanita R. Dano, head of the Religious of
Good Shepherd in San Andres Bukid. Her group helps the families of the victims
of illegal drugs operations in her area.
Named respondents in the petition were PNP Director General Dela Rosa,
Manila Police District (MPD) Chief Supt. Joel Napoleon Coronel, the heads and
policemen of the MPD Station 6, and the PDEA, which succeeded the PNP as
lead agency in the government’s illegal drugs operations.
The petition named the persons who died during police operations against
illegal drugs conducted in San Andres Bukid since July 2016.
In their petition, the SC was asked to stop the members of the MPD from
entering within a radius of one kilometer the residences and, work addresses of
the families of the victims and the residents of the 28 barangays.
The SC was also asked to stop the police from harassing, contacting or
communicating with the affected parties, directly or indirectly.
The Writ of Amparo is a legal remedy for a person whose right to life, liberty,
and security is violated or threatened with violation by an unlawful act or omission
of a public official or employee, or of a private individual or entity.
The writ covers incidents of extralegal killings and enforced disappearances.
The petitioners told the SC that “never in their wildest dreams did they imagine
that their lives, liberty, and security, as well as the lives of their loved ones, will be
sacrificed literally on the altar of peace and order in what is packaged to be a fight
against the proliferation of illegal drugs.”
They pointed out “the systematic violence perpetrated by or wrought in
conspiracy with the respondents through the members of the Manila Police
District Police Station 6 over the urban poor community of San Andres Bukid,
Manila, and its adjacent areas in general, and the dead victims, the petitioners,
and their families, in particular.”
 They said the “conduct of the anti-illegal drugs campaign (by the police)
violates the following constitutional, statutory, and administrative provisions”
1. The 1987 Constitution, Art. II, Sec. 11, on the state policy on human rights.
2. The 1987 Constitution, Art. III, Sec. 1 on the right to life and liberty.
3. The 1987 Constitution, Art. III, Sec. 2, on the right against unreasonable
searches and seizures.
4. The 1987 Constitution, Art. III, Sec. 12, on the rights of persons under
investigation or persons arrested.
5. The 1987 Constitution, Art. III, Sec. 14 & 17, on the rights of the accused.
6. Republic Act No. 7438, the Act Defining Certain Rights of Persons Arrested,
Detained, or Under Custodial Investigation as well as the Duties of the Arresting,
Detaining, and Investigating Officers, and providing penalties for violations
thereof.
7. The case law in People vs. Doria (G.R. No. 125299, January 22, 1999),
which laid down tests to determine whether or not a buy-bust operation has been
properly conducted.
8. The case laws on “stop and frisk” as laid down in Malacat vs. CA (G.R. No.
123595, December 12, 1997) and People vs. Chua (G.R. Nos 136066-7,
February 4, 2003, adopting Terry vs Ohio, 392 US 1 (1968)).
9. Revised Penal Code, Art. 125, on inquest/delivery of detained persons to
the proper judicial authorities.
10. Revised Philippine National Police Operational Procedures (PNP-OP),
Chapter 3, Rule 15.4 on the submission of incidents of armed confrontation where
the suspect dies to the prosecutor for inquest proceedings.
11. DOJ Circular No. 61 (December 21, 1993) on the duty of inquest
prosecutors to take the initiative of making a procedural investigation whenever a
dead body is found and there might be foul play.
The petitioners said “the conduct of the respondents in the drug war in the San
Andres Bukid community violates many of country’s international legal obligations
such as the International Covenant on Civil and Political Rights (ICCPR), to which
the Philippine state is a party. The ICCPR under Art. 6 (1) guarantees the right to
life, which the Philippine state has the obligation under international law to protect,
respect, and fulfill.”
https://www.pressreader.com/philippines/manila-
bulletin/20171108/281496456558684

Dissenting opinion

SOLICITOR GENERAL Jose C. Calida added that the memorandum circulars do

not violate the Philippines’ International legal obligations under the International
Covenant on Civil and Political Rights (ICCPR).

“CMC No. 16-2016, being operational guidelines governing house-to-house

visitations, does not violate the rights of persons of interest. The visits are based
on verified information. The police respect the right of a person of interest to
refuse visitation,” he pointed out.

http://bworldonline.com/%E2%80%8Bsolgen-asserts-cases-vs-drug-war-
destabilization-plot/
Minnesota Protocol

The Office of the United Nations High Commissioner for Human Rights in Geneva
(OHCHR) on 24 May 2017 announced the release of the 2016 Minnesota
Protocol on the Investigation of Potentially Unlawful Death on its website.

This document is an updated and revised version of the 1991 UN Manual on the
Effective Prevention of Extra-legal, Arbitrary and Summary Executions, which
through common usage became known as the Minnesota Protocol. The new
document is currently available in English, but will be translated into the other five
official UN languages and others in due course.

The Minnesota Protocol sets out the international standards for the investigation
of suspicious deaths, where States may in one way or another be considered
responsible, because its agents may have caused such death, or because the
State has failed to exercise due diligence in protecting the victim/s. It also applies
to enforced disappearances.

The right to life, as protected for example by article 6 of the International Covenant
on Civil and Political Rights, has two components: the prohibition of arbitrary
deprivation of life, and accountability where that occurs. Investigations play a
central role in securing accountability. As such, the Protocol can be seen as a
restatement of a central part of the protection of the right to life, often described
as the “supreme right.”

The Protocol is aimed at informing and guiding the actions of crime scene
investigators, medical practitioners, lawyers, commissions of inquiry and others
involved in investigating suspicious deaths. The Minnesota Protocol plays a
similar role in the context of the right to life to that of the Istanbul Protocol to in
the context of torture.

The 2016 revision of the Protocol was undertaken by a group of legal and forensic
experts over a period of two years under the auspices of the Special Rapporteur
on extrajudicial, summary or arbitrary executions (a position the current author
held at the time) and the OHCHR.

A scoping exercise before the revision showed that the original Minnesota
Protocol was regarded as the gold standard in the area of forensic investigations
by medical practitioners, and in this context had been relied upon by several
international and national tribunals. At the same time, it had to some extent
become outdated in the 25 years since it was first adopted, in that new medical
developments, such as DNA evidence, were not reflected. The legal section was
also underdeveloped in the original version. The revised text seeks to provide a
stronger basis for the protection of the right to life by ensuring the Protocol sets
out both the state of international law and best forensic practice in the
investigation of suspicious deaths.

The new version of the Protocol, like the original one, is an expert document
whose legitimacy resides in the wide acceptance of the Protocol since its
inception, and the level of expertise reflected in its contents. Several states were
among those who submitted comments during the various rounds of public
consultation conducted during the revision.

The Protocol sets guidelines for the procedures to be followed during death
investigations from the outset to the conclusion. On the question when an
investigation must be undertaken, the Protocol (in para 15) provides that:

A State’s duty to investigate is triggered where it knows or should have known of

any potentially unlawful death, including where reasonable allegations of a
potentially unlawful death are made.

The Protocol recalls that, under international law, investigations must be prompt,
effective and thorough, independent and impartial, and transparent.
Investigations of law enforcement killings, for example, must be capable of being
carried out free from undue influence that may arise from institutional hierarchies
and chains of command. Inquiries into serious human rights violations such as
extrajudicial executions, enforced disappearances, and torture must be
conducted under the jurisdiction of ordinary civilian courts. Investigations must
also be free from undue external influence, such as the interests of political parties
or powerful social groups.

The Protocol deals primarily with investigations outside the context of the conduct
of hostilities. However, as far as the conduct of hostilities is concerned, it provides
as follows (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. Where any death is
suspected or alleged to have resulted from a violation of IHL that would not
amount to a war crime, and where an investigation (“official inquiry”) into the death
is not specifically required under IHL, at a minimum further inquiry is necessary.
In any event, where evidence of unlawful conduct is identified, a full investigation
should be conducted.

There can be little doubt that the Protocol will at some point in the future have to
be updated again, if it is to remain a living and a relevant document. For the time
being, however, it is hoped that it will help to counter impunity and lift the standard
of protection of the right to life in countries across the globe, regardless of the
resources available. When unlawful death occurs, the norm must be restored
through a proper investigation and in appropriate cases, prosecution. Proper
investigations also play a central role in preventing future unlawful deprivations of
life.

https://www.justsecurity.org/41360/restating-law-investigation-pf-potentially-
unlawful-death-2016-minnesota-protocol/

Background to the Minnesota Protocol

The obligations on states to respect and protect life and the procedural obligation
to investigate suspicious deaths have firm bases in international law. In the UN
context, those obligations are elaborated in two key documents: the UN Principles
on the Effective Prevention and Investigation of Extra-legal, Arbitrary and
Summary Executions(1989), and its companion document, the UN Manual on the
Effective Prevention and Investigation of Extra-Legal, Arbitrary and Summary
Executions (1991) which became known, through popular usage, as the
Minnesota Protocol.
The 1991 Minnesota Protocol was a ground-breaking piece of work with
significant impact. However, as the professional using the document made clear
to the Special Rapporteur and to OHCHR, the time was ripe for revision, to take
account of developments in both international law and forensic science. As a key
UN text providing guidance on the practical implementation of the duty to protect
life and the obligation to investigate potentially unlawful deaths, its updating could
ensure its continuing relevance over the coming decades. In a number of
resolutions, the UN Commission on Human Rights had indeed called for such a
revision (also later referenced by its successor, the Human Rights Council).
The revision process
The process of consultation on revision of the Minnesota Protocol was formally
launched in April 2015, based on a scoping exercise aimed at establishing the
areas of reform required, with the appointment of an Advisory Panel and two
Working Groups, the latter tasked with drafting the revised document. The
Advisory Panel consists of 73 members representing a wide range of experience
and expertise, from all continents. One of the Working Groups focused on legal
investigations; the other on forensics.
Interested parties were invited to make an initial written contribution to an
initial consultation process by 15 June 2015. A first meeting of the two Working
Groups was held in Geneva on 30 June to 1 July 2015.
On 29 October 2015, the Special Rapporteur presented his 2015 annual thematic
report to the General Assembly in New York (A/70/304) in which he set out the
background to the revision of the Minnesota Protocol and discussed the process.
During the interactive dialogue several states expressed their support for the
revision. For example, on behalf of its members, the European Union noted that
the “EU would like to commend the Special Rapporteur for an active engagement
to update the 1991 UN Manual on the effective prevention and investigation of
extra-legal, arbitrary and summary executions. As underlined by the Special
Rapporteur today, the Manual indeed provides important guidelines on how the
UN principles on these issues in practice can be implemented in accordance to
international law”.
On the same day the Special Rapporteur convened a side-event on the revision
of the Minnesota Protocol for the benefit of states and civil society in the UN
headquarters. The Rapporteur and the chairs of the Working Groups provided an
update on progress to date and engaged in a dialogue with participants.
The second meeting of the Working Groups was held in Geneva on 4–6 February
2016. A side-event to which all States and other interested parties are invited was
held on 5 February in the Palais de Nations, which attracted representatives from
more than 25 states and offered a further opportunity to states to engage in
dialogue with the Special Rapporteur and the OHCHR.
The text that emerged from the February Working Group meeting was circulated
for comment by the members of the Advisory Panel. It was subsequently revised
on the basis of their suggestions and recommendations with a view to public
consultation.
The draft of the revised Minnesota Protocol was then opened for public comments
by States, academia, civil society, and other interested parties during a six-week
consultation from 11 April to 23 May 2016.
On 20 June 2016, the Special Rapporteur presented his thematic report to the
Human Rights Council, including an addendum (A/HRC/32/39/Add.4), which
informed members of the Council that the comments received during the second
public consultation had been incorporated into a revised draft, which the Working
Groups and subsequently the Advisory Panel would be reviewing.
On 31 July 2016 the Special Rapporteur, on behalf of the experts, conveyed the
text to the High Commissioner, for publication.
http://www.ohchr.org/EN/Issues/Executions/Pages/RevisionoftheUNManualPrev
entionExtraLegalArbitrary.aspx

The Minnesota Protocol: Creating Guidelines for Effective Investigations

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.
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.
https://theadvocatespost.org/2016/02/26/minnestota_protocol/

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.