In the Bones

The "Minnesota Protocol" - created by faculty and alumni of the University of Minnesota Law School - holds governments accountable for their crimes against humanity.

By Cynthia Scott

Elena de Paz is a Maya Ixil Indian from the Chucumantes mountains in Guatemala. In 1983, when de Paz was 12 years old, the military forces of Guatemalan dictator Efraín Ríos Montt abducted and raped her and her mother. Elena survived, but her mother disappeared, likely one of the 1,700 indigenous people murdered in Ríos Montt’s first 18 months in power.

Justice for de Paz and thousands of others who suffered under Ríos Montt was slow in coming: It took three decades to bring him to trial and win a conviction of genocide and crimes against humanity. In 2013, the former dictator was sentenced, at age 86, to 80 years in prison. The conviction was unprecedented: Never before had a former head of state been convicted of genocide in his own country.

That Ríos Montt was held accountable for his crimes was due to the overwhelming evidence that forensic anthropologists had meticulously unearthed from mass graves. They did so by following the exacting standards set forth in a handbook titled the United Nations Manual on the Effective Prevention and Investigation of Extra-Legal, Arbitrary and Summary Executions. Known throughout the global human rights community simply as the Minnesota Protocol in honor of where it was developed, the standards it sets forth are designed to ensure impartial, independent investigations of suspicious deaths, including provisions for an adequate autopsy.

The protocol was designed to help end the impunity enjoyed by governments that commit or allow extrajudicial killing—the killing of a person by a government without the sanction of a judicial process or legal proceeding. It was started in 1983 by the Minnesota Lawyers International Human Rights Committee, which was cofounded by a small group of Twin Cities attorneys with University of Minnesota connections, including Tom Johnson (B.S. ’67, J.D. ’70), a former Hennepin County attorney who is currently practicing law with Gray Plant Mooty, former Congressman and then mayor of Minneapolis Don Fraser (B.A. ’44, J.D. ’48), attorney Samuel Heins (B.A. ’68, J.D. ’72), and U Law School professor David Weissbrodt. “In the early 1980s there was a lot going on around the war in Central America,” says Johnson. “Many churches were providing sanctuary for refugees and working with immigrants. We thought there should be a role for lawyers.”

Sp2018_InTheBones_InlineSome of the brains behind the Minnesota Protocol: (clockwise) Tom Johnson, David Weissbrodt, Jenifer Prestholdt, and Barbara Frey.

For decades, extrajudicial killings have been a persistent and particularly heinous violation of human rights. Governments can be extremely reluctant to investigate deaths where military or law enforcement agencies are involved. Often, in those cases, autopsies or inquest proceedings either do not take place or omit crucial information, such as evidence of torture. Weissbrodt, who at the time was on a year’s sabbatical working with Amnesty International, proposed that the committee take on the vexing problem of extrajudicial killings. “David was always keenly aware of what other organizations were or were not doing,” says Johnson. “Most human rights groups were on the East Coast. There was some skepticism about what an organization here in flyover country could do.”

In fact, an organization in flyover country managed to do what had previously eluded other human rights organizations: create a mechanism for holding governments accountable. From 1983 to 1987, members of the committee, working on a volunteer basis, honed their vision and understanding of what was needed. They enlisted the assistance of international experts in law and forensic science. They went on a two-week mission to Central America to meet with government officials. And they staffed the lawyers’ committee with its first executive director, attorney Barbara Frey, who is currently director of the Human Rights Program in the U’s College of Liberal Arts.

Over a long weekend in October 1987, 25 international experts and members of the committee met at a conference center in Wayzata to hammer out the manual. It contained comprehensive standards and guidance for conducting investigations and model protocols for conducting autopsies, disinterment, and analysis of skeletal remains. In 1991, the United Nations formally adopted it. “We knew that if we could get the U.N. to adopt the protocol, not complying with it would itself be a human rights violation,” Johnson says.

Since then, the Minnesota Protocol has been used effectively to investigate thousands of suspicious deaths in Rwanda, East Timor, Peru, Turkey, and other nations. In Colombia, a 2015 U.N. report noted that it had been implemented in 3,824 autopsies in deaths where torture was suspected in 2014 alone.

The protocol contains detailed guidelines for detecting 17 methods of torture, including suspension by the neck, arms, elbows, wrists or feet; sexual assault; forcible removal of the toenails or fingernails; whipping; blunt abdominal trauma; burns; forcible immersion of the head in water; and electric shock.

Corpses of the recently deceased typically still bear the telltale marks of such abuses. But even in decadesold skeletal remains—as was the case in Guatemala—a skilled forensics investigator can spot the signs of suspicious death in bones.

In developing the standards, cofounders of the Minnesota Lawyers International Human Rights Committee tapped into a rich vein of legal activism that continues to this day. Now known as The Advocates for Human Rights, the nonprofit has become one of the most respected human rights organizations in the world. True to its roots, the Advocates, located in Minneapolis, continues to train and equip lawyers to work in human rights advocacy.

In 2014, the U.N. commissioned the Advocates to update the Minnesota Protocol to reflect the vast technological, legal, and forensics changes that have occurred since it was originally adopted. Jennifer Prestholdt (J.D. ’96), director of the organization’s International Justice Program, served on a working group. In all, 76 global experts were involved, including original coauthors Weissbrodt, Frey, and Heins. “The revision was a recommitment within the U.N. system,” says Prestholdt. “It was based on the premise that the protocol is important and needs to be more applicable to the present.”

With the revision came a new name: The Minnesota Protocol on the Investigation of Potentially Unlawful Death (2016). Among the significant changes, Prestholdt says, is a broadening of the circumstances under which the protocol is applicable. The original document looked specifically at politically motivated killings and deaths in custody. The revised version addresses any context where there’s a potentially unlawful killing. Prestholdt says that raises the possibility that the protocol could be brought to bear on police-involved killings in the United States. “We hope the revision can be a starting point for having discussions on our state level about the use of force and accountability,” she says. “Using international standards to measure how we’re doing on the state level could help advance that discussion.”

Another significant revision is the inclusion of the right for societies, communities, and families to know the truth. “There’s a value for society as a whole to know the truth,” Prestholdt notes. “And knowing the truth also plays a role in preventing future abuses.” In Peru, for example, members of the Truth and Reconciliation Commission told Prestholdt that the protocol was essential to its work of holding officials to account and transitioning to a more just system.

Weissbrodt, now in his 80s and still deeply involved in human rights at the Law School’s Human Rights Center, which he established in 1988, echoes that statement. “When you see a violation, you make it visible and keep pressure on those who have committed it. If you don’t do that, you’re in some ways complicit. What the Minnesota Protocol did was show what needs to be done. It’s up to the NGOs and governments that have a commitment to human rights to use it to stop those violations.”

Behind the conviction of Ríos Montt and others held accountable through the Minnesota Protocol are tens of thousands of relatives of victims left to piece their lives back together. Elena de Paz told human rights advocates, “It is vital for there to be justice because I do not want my children to go through such a terrible ordeal. I do not want such things to happen to anybody ever again.” Perhaps securing justice is its own comfort.

Cynthia "Great" Scott is the former editor of Minnesota Alumni. She writes for various publications and organizations, including The Advocates for Human Rights.

Top Photo by Cristina Chiquin
In Line Photo by Mark Luinenburg

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