First Do No Harm: Medical Ethics in International Humanitarian Law [1 ed.] 9789004279162, 9789004279155

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First Do No Harm: Medical Ethics in International Humanitarian Law

International Humanitarian Law Series Editors-in-Chief H.E. Judge Sir Christopher Greenwood Professor Timothy L.H. McCormack Editorial Advisory Board Professor Georges Abi-Saab H.E. Judge George H. Aldrich Madame Justice Louise Arbour Professor Ove Bring Professor John Dugard Professor Dr. Horst Fischer Dr. Hans-Peter Gasser H.E. Judge Geza Herczegh Professor Frits Kalshoven Professor Ruth Lapidoth Professor Gabrielle Kirk McDonald H.E. Judge Theodor Meron Captain J. Ashley Roach Professor Michael Schmitt Professor Jiri Toman

IHUL 44

The titles published in this series are listed at brill.com/ihul

First Do No Harm: Medical Ethics in International Humanitarian Law By

Sigrid Mehring

LEIDEN | BOSTON

Doctors and paramedics of the German armed Bundeswehr forces demonstrate the supply of a wounded man in a mobile field hospital during an exercise in the German base camp in Mazar-i-Sharif, Afghanistan, October 2013. Copyright: ANP, The Netherlands. Library of Congress Cataloging-in-Publication Data Mehring, Sigrid, author. First do no harm : medical ethics in international humanitarian law / by Sigrid Mehring. p. ; cm. -- (International humanitarian law series, ISSN 1389-6776 ; 44) Includes bibliographical references and index. ISBN 978-90-04-27915-5 (hardback : alk. paper) -- ISBN 978-90-04-27916-2 (e-book) I. Title. II. Series: International humanitarian law series ; v. 44. 1389-6776 [DNLM: 1. Ethics, Medical. 2. Jurisprudence. 3. Human Rights--legislation & jurisprudence. 4. Physician’s Role. 5. War Crimes. 6. War. W 32.6] R724 174.2--dc23 2014034592

This publication has been typeset in the multilingual ‘Brill’ typeface. With over 5,100 characters covering Latin, ipa, Greek, and Cyrillic, this typeface is especially suitable for use in the humanities. For more information, please see brill.com/brill-typeface. issn 1389-6776 isbn 978-90-04-27915-5 (hardback) isbn 978-90-04-27916-2 (e-book) Copyright 2015 by Koninklijke Brill nv, Leiden, The Netherlands. Koninklijke Brill nv incorporates the imprints Brill, Brill Nijhoff and Hotei Publishing. All rights reserved. No part of this publication may be reproduced, translated, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without prior written permission from the publisher. Authorization to photocopy items for internal or personal use is granted by Koninklijke Brill nv provided that the appropriate fees are paid directly to The Copyright Clearance Center, 222 Rosewood Drive, Suite 910, Danvers, ma 01923, usa. Fees are subject to change. This book is printed on acid-free paper.

Dedicated to my father

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Contents

Preface and Acknowledgments xi

Introduction 1

Part 1 Introduction to Physicians in Armed Conflicts and Medical Ethics 1

The Role of Physicians in Armed Conflict 9 A Medical Actors in Armed Conflicts 9 B Guiding Principles 13 C General Principles of Medical Ethics 27 D Specific Areas of Concern in Recent Armed Conflicts 48 E Conclusion 75

part 2 The Legal Framework of Medical Care in Armed Conflicts 2

International Humanitarian Law 79 A The Geneva Conventions of 1864, 1906 and 1929 79 B Medical Care in International Armed Conflicts 87 C Medical Care in Non-International Armed Conflicts 118 D Conclusion 127

3

International Criminal Law 131 A Medical War Crimes 133 B Medical War Crimes in International Criminal Law 141 C Prosecution of Medical War Crimes 148 D Possible Defenses to Medical War Crimes 175 E Conclusion 183

4

Customary Status of International Humanitarian Law 189 A Customary International Humanitarian Law 190 B The icrc Study on Customary International Law 225 C Conclusion 233

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Contents

The Relevant Human Rights Norms Applicable to the Work of Physicians in Armed Conflict 236 A Applicability of Human Rights in Armed Conflicts 237 B Human Rights Relevant to Medical Treatment 257 C Conclusion 272

part 3 Medical Ethics in Armed Conflict 6

The Interpretation of the Reference to Medical Ethics and Generally Accepted Medical Standards pursuant to the Vienna Convention on the Law of Treaties 279 A Articles 31 and 32 of the Vienna Convention on the Law  of Treaties 279 B An Interpretation of the Open Terms in Geneva Law pursuant  to Articles 31 and 32 of the Vienna Convention on the  Law of Treaties 283 C Conclusion 303

7

Medical Ethics in International Law 306 A Medical Ethics as Found in International Humanitarian Law 306 B Medical Ethics in Other Sources of International Law 310 C Conclusion 334

8

A Pluralistic Approach to Medical Ethics 335 A A National Concept of Medical Ethics in International  Humanitarian Law 336 B National Medical Ethics 338 C The Desirability of a Pluralistic Approach 354 D Conclusion 357

9

The Documents by the World Medical Association (wma) 360 A The World Medical Association 364 B The Status of the wma Documents 365 C The Legitimacy of the wma Documents 368 D Conclusion 418

Contents

part 4 Conclusion 10



Conclusion, Recommendations and Outlook 423 A Conclusion on Medical Ethics in International Humanitarian  Law 423 B Five Common Principles of Medical Ethics 427 C Outlook 433 Annexes 437 Annex I: The Hippocratic Oath as translated by Heinrich  von Staden 437 Annex II: wma Declaration of Geneva 438 Annex III: wma International Code of Medical Ethics 439 Annex IV: wma Regulations in Times of Armed Conflict 441 Bibliography 445 A Literature 445 B Table of Cases 476 C Documents 484 D Web Pages 495 Index 496

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Preface and Acknowledgments Because both international humanitarian law and medical ethics have been my passions for a long time, it was my goal to combine both areas of study in a book on a topic that deserves academic scrutiny: medical care in armed conflicts. The work of physicians in armed conflict, though often valued and noticed, has so many facets that an in-depth study of this work was in order. It comes at a time where the medical involvement in ill-treatment of persons seeking and needing medical care has increasingly received international attention. It is my hope that this attention does not abade – for the sake of the men and women who risk their lives to save those of others and the many victims of armed conflicts. This book is based on my doctoral thesis at the University of Hamburg. It was written between 2009 and 2012, and updated in April 2014. More recent legal and political developments could regrettably not be taken into account. I owe a debt of gratitude to many who have supported and helped me in the work on this book. First and foremost, I would like to express my gratitude to em. Prof. Dr. Dr. h.c. Rüdiger Wolfrum for supervising my thesis, for giving me freedom in my research and for providing opportunities to enhance my work on international humanitarian law and increase my knowledge on general public international law while at the Max Planck Institut for Comparative Public Law and International Law in Heidelberg. For his belief in my work and incredible feedback, I would furthermore like to thank Prof. Dr. Stefan Oeter. This book would not have been possible without many colleagues at the Max Planck Institute. First of all, I am grateful to Prof. Dr. Silja Vöneky for providing me with the opportunity to work on the intersection of ethics and law in her research group on ‘Democratic Legitimacy of Ethical Decisions: Ethics and Law in the Areas of Biotechnology and Biomedicine’. Second of all, I would like to issue a big thank you to my colleagues for the invaluable discussions, on Monday afternoons and beyond, the priceless input and honest comments on my work, and for being there through thick and thin, especially Mira Chang, John Dingfelder-Stone, Marie von Engelhardt, Johannes Fuchs, Julia Gebhard, Jannika Jahn, Lydia F. Müller, Valentin Pfisterer, David Reichwein, Julia Sattelberger, Hans Christian Wilms and Johann-Christoph Woltag. My gratitude also goes to Brill Publishers for their encouragement and the decision to publish this book in the International Humanitarian Law Series. I am honored.

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Preface and Acknowledgments

Finally, I am eternally grateful to my family, especially my father for teaching me to work and think like a lawyer, Gudrun for instilling in me a sense for the dilemmas that physicians face and making me the ‘Passiv-Mediziner’ I am, Saskia for the much needed distraction and comfort food, and my mother for all the emotional support. And finally, Jannes. Thank you.

Introduction Picture a war without physicians. This would mean unimaginable suffering not only for civilian populations but also for all those on a battlefield, in an airplane or on the seas, as well as those captured. It would mean that no medical care could be provided to those wounded by weapons of war. The suffering of the victims of war would be much greater. Even though physicians’ tasks also include ensuring a continuous fighting force, they are the prime actors who make armed conflicts bearable. Hence, it should be considered a great achievement of the past centuries that physicians play their role in armed conflicts. Physicians not always work in the spotlights, but rather on the sidelines by alleviating suffering, assuaging wounds, and ensuring a last bit of normalcy in situations of chaos caused by conflict. With physicians, armed conflicts can be fought with at least a speck of respect for the humanity of persons. Naturally, there are a number of different actors in armed conflict that all serve the medical needs of the victims of armed conflicts: from military medical personnel, to the personnel of civilian hospitals, to members of humanitarian aid organizations. They all share the same mission of saving lives and alleviating suffering in an endeavor aimed at destruction and death. What they also have in common are the rules binding them. All physicians who are carrying out medical duties in armed conflict, whether as part of military or civilian personnel or whether employed by a humanitarian aid organization, have rights and obligations imposed by international humanitarian law.1 The present analysis is born out of curiosity for the role of physicians in recent armed conflicts.2 Although working on the sidelines, physicians are often the center of attention, for example in the Gaza-conflict in 2008/2009 or in the unrest during the Arab spring of 2011.3 Reports concern their work, for 1 The term international humanitarian law and the laws of armed conflict will be used interchangeably, though the former should be given preference as it emphasizes the humanitarian character of this area of international law. 2 In modern conflicts, there is a wide range of actors providing medical care, including physicians, nurses, psychologists, paramedics, and others. This book will focus on physicians. The term ‘physician’ will be used as a generalis for all persons ‘trained and qualified to practise medicine’, The Oxford Dictionary of English, 2nd Ed. (Oxford University Press, 2006), while the term ‘doctor’ will be used if used by others or in quotes. 3 Especially non-governmental organizations have discussed the role of physicians in armed conflict, for example in the Gaza conflict: Amnesty International, The Conflict in Gaza: A Briefing on applicable Law, Investigations and Accountability, ai Index: mde 15/007/2009 (2009); Physicians for Human Rights – Israel, Ill Morals: Grave Violations of the Right to Health © koninklijke brill nv, leiden, 2015 | doi 10.1163/9789004279162_002

2

Introduction

example the persons they have saved or children they have brought into the world. There seems to be a general belief in the ‘good’ qualities of physicians and their overall ‘good’ character which should keep them from doing harm.4 Certainly, physicians most often act to the benefit of those in need of medical care but there may also be some black sheep. Involvement by physicians in ill-treatment and torture during interrogations in United States (u.s.) detention facilities established in the so-called ‘war on terror’ raised serious criticism.5 The International Committee of the Red Cross (icrc), in a confidential report to the u.s. government, concluded that



during the Israeli Assault on Gaza (March 2009); in Libya: International Committee of the Red Cross, Libya: icrc makes urgent call for access to wounded (24 March 2011); see also in Bahrain: Amnesty International, Bahrain: A Human Rights Crisis, ai Index: MDE/11/019/2011 (21 April 2011); Physicians for Human Rights, Do No Harm: A Call for Bahrain to end Systematic Attacks on Doctors and Patients (April 2011); in Syria: Amnesty International, Health Crisis: Syrian Government targets the Wounded and Health Workers, ai Index: mde 24/059/2011 (2011). 4 See for example the discussion on the character of Dr. Gérard Ntakirutimana, a physician accused of genocide. International Criminal Tribunal for Rwanda, Prosecutor v. Elizaphan and Gérard Ntakirutimana, Trial Chamber Judgment [2003], para. 910. The case will be discussed in Chapter 3. See also statements in this respect during the Diplomatic Conference where the Additional Protocols were drafted by the Dutch delegate who believed certain matters ‘should be left to the ethical conscience of the medical practitioner, who would always act in the interests of the patient’. O.R. XI, CDDH/II/SR.14, Statement by delegate Deddes (Netherlands), p. 125. His position was supported by delegate Krasnopeev (ussr), p. 126. 5 The conclusion that the treatment of detainees in U.S. detention facilities amounted to illtreatment and at times torture, was reached concerning Guantánamo Bay by five un Special Rapporteurs in Leila Zerrougui, Chairperson of the Working Group on Arbitrary Detention, et al., Economic and Social Council, Report on the Situation of Detainees at Guantánamo Bay, Doc. No. E/CN.4/2006/120 (27 February 2006), para. 52. The involvement of physicians in interrogations and torture was also widely discussed in medical literature, see Robert Jay Lifton, ‘Doctors and Torture’, 351 New England Journal of Medicine, 415 (2004); M. Gregg Bloche & Jonathan H. Marks, ‘Doctors and Interrogators at Guantanamo Bay’, 353 New England Journal of Medicine, 6 (2005); M. Gregg Bloche & Jonathan H. Marks, ‘When Doctors go to War’, 352 New England Journal of Medicine, 3 (2005); Susan Okie, ‘Glimpses of Guantanamo – Medical Ethics and the War on Terror’, 353 New England Journal of Medicine, 2529 (2005); George J. Annas, ‘Unspeakably Cruel – Torture, Medical Ethics, and the Law’, 352 New England Journal of Medicine, 2127 (2005); Philippe J. Sands, Torture Team – Deception, Cruelty and the Compromise of Law (Penguin Books, 2008); Nancy Sherman, ‘From Nuremberg to Guantánamo: Medical Ethics Then and Now’, 6 Washington University Global Studies Law Review, 609 (2007); Jonathan H. Marks, ‘Doctors as Pawns? Law and Medical Ethics at Guantánamo Bay’, 37 Seton Hall Law Review, 711 (2007).

Introduction

3

[t]he alleged participation of health personnel in the interrogation process and, either directly or indirectly, in the infliction of ill-treatment constituted a gross breach of medical ethics and, in some cases, amounted to participation in torture and/or cruel, inhuman or degrading treatment.6 Before being able to reach a conclusion on the question whether physicians should have been involved in interrogations during the ‘war on terror’, the role of physicians in armed conflict should be scrutinized. It needs to be clarified to which legal or ethical rules they should adhere and which rules they may not violate so that they themselves and the persons they treat may be best protected. Physicians’ rights and obligations in armed conflict are laid out in the four Geneva Conventions (gc) of 1949 and the two Additional Protocols (ap) of 1977. It is in the Additional Protocols that the laws of armed conflict intersect with medical ethics. The first paragraph of articles 16 ap I and 10 ap II reads: Under no circumstances shall any person be punished for carrying out medical activities compatible with medical ethics, regardless of the person benefiting therefrom. The reference to internal rules of the medical profession was meant to provide an alternate set of rules and obligations for physicians in armed conflict to exponentially increase the protection of those in need of medical care. However, by including the term ‘medical ethics’7 in the Additional Protocols, the drafters introduced an open, ‘extra-legal’ term into the framework of international humanitarian law. Medical ethics are not explicated in the articles

6 International Committee of the Red Cross, Regional Delegation for United States and Canada, icrc Report on the Treatment of Fourteen “High-Value Detainees” in cia Custody, was 07/76 (14 February 2007), p. 26–27. Furthermore, even claiming that physicians had been experimenting on detainees, Physicians for Human Rights, Neglect of Medical Evidence of Torture in Guantánamo Bay: A Case Series (26 April 2011). 7 Throughout this book, for clarity’s sake the term medical ethics will be used despite the modern prevalence of the term bioethics. This is more convenient because in 1977, when the Additional Protocols were drafted, the term bioethics had yet to be coined: the Protocols refer to medical rather than bioethics. The discussion concerning bioethics is nonetheless also of relevance for the relevant provisions in the laws of armed conflict, as the use of the term stems from the time the Geneva Conventions and its Additional Protocols were written. Nowadays, the drafters would most probably have chosen a reference to bioethics which includes the ethics governing the patient-physician relationship.

4

Introduction

themselves. The relevant articles merely establish that physicians cannot be punished for carrying out medical duties in accordance with medical ethics and cannot be forced to act in violation of them. The reference to medical ethics as an alternate framework of rules thus invokes the application of an extralegal set of rules to bind or guide physicians. Although there are some well-known codes containing principles of medical ethics, from the Hippocratic Oath or the World Medical Association’s Declaration of Geneva, to Beauchamp and Childress’ Principles of Biomedical Ethics, it needs to be examined whether there are universal medical ethics and whether they apply to physicians in an armed conflict. In the interest of the principle of specificity,8 medical ethics should be interpreted and filled so that physicians have clear guidelines on how to treat persons in accordance with medical ethics without violating international humanitarian law. In that way, physicians, as possible perpetrators of medical war crimes, can also foresee the consequences of their actions and courts, as a last instance, can judge the ethical behavior of physicians in armed conflict. The book answers the question how the reference to medical ethics in articles 16 ap I and 10 ap II providing boundaries to the actions of physicians in armed conflict is to be interpreted. Part of the answer is mapping all relevant legal rules for the treatment of those in need of medical care by physicians in armed conflict, and another part is finding a valuable and useful interpretation for the reference to the extra-legal term medical ethics in international humanitarian law. Considering that scholarly literature and state practice concerning medical ethics in armed conflicts is sorely lacking, the book is aimed at providing a remedy for this lacuna. It should be clear by the formulation of the problem that the analysis is only concerned with situations of armed conflict. This may be an international armed conflict between two states as defined in article 2 of the Geneva Conventions of 1949. It may also be a non-international armed conflict between two parties on the territory of a state.9 Acts by physicians, for example the 8 Antonio Cassese, International Criminal Law, 2nd Edition (Oxford University Press, 2008), p. 41 et seq. 9 Non-international armed conflict are defined in article 1 (1) ap II as ‘armed conflicts [not covered by ap I] which take place in the territory of a High Contracting Party between its armed forces and dissident armed forces or other organized armed groups which, under responsible command, exercise such control over a part of its territory as to enable them to carry out sustained and concerted military operations and to implement [ap II]’. In Tadić, the icty expanded on the difference between internal disturbances and armed conflict and stated that’ an armed conflict exists whenever there is a resort to armed force between States

Introduction

5

criminal involvement in torture or in illegal organ trafficking, in other circumstances that have not surpassed the threshold of an armed conflict cannot be considered.10 On the basis of an extensive analysis, the book will contribute to a clearer picture of the role of physicians in armed conflict. It will also finally examine the reference to medical ethics in international humanitarian law so that the legal and ethical framework of medical care in armed conflict and their intersection is no longer as unspecified as it is today.

10

or protracted armed violence between governmental authorities and organized armed groups or between such groups within a State’. International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law committed in the Territory of Former Yugoslavia since 1991 (ICTY), Prosecutor v. Dusko Tadić a.k.a. ‘Dule’, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction [1995], para. 70. Physicians were involved in torture and ill-treatment in many contexts. One example being the military juntas in South America. See Maren Mylius, ‘Folter unter ärztlicher Aufsicht – Die Beteiligung von Medizinern an Menschenrechtsverletzungen am Beispiel Argentiniens’, 2 MenschenRechtsMagazin, 186 (2009). Allegations of physicians’ involvement in illegal trafficking of kidneys taken from civilian prisoners in the aftermath of the Kosovo conflict were made by Carla Del Ponte & Chuck Sudetic, Madame Prosecutor – La Caccia (Other Press, 2009), p. 277 et seq. and credibly investigated in Council of Europe, Parliamentary Assembly, Committee on Legal Affairs and Human Rights (Dick Marty), Inhuman treatment of people and illicit trafficking in human organs in Kosovo, Doc. 12462 (7 January 2011), particularly para. 159 et seq. Subsequently, a non-binding resolution was adopted by Council of Europe: Parliamentary Assembly, Investigation of allegations of inhuman treatment of people and illicit trafficking in human organs in Kosovo, Resolution 1782 (25 January 2011).

Part 1 Introduction to Physicians in Armed Conflicts and Medical Ethics

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chapter 1

The Role of Physicians in Armed Conflict Among the different actors in an armed conflict, physicians play an especially important role. Their main responsibility since the introduction of the Geneva Convention of 1864 having been the treatment of wounded and sick combatants,1 the focus of their work has shifted with the focus of modern armed conflicts. Due to a change in modern warfare and the rising number of asymmetric armed conflicts, the main victims of modern conflicts, surpassing wounded and sick combatants and persons actively involved in hostilities, are civilians.2 This fundamental change affects all relevant actors and their responsibilities. Military physicians no longer only treat members of armed forces and civilian physicians, who may also treat combatants, also mainly treat the large number of civilian victims of armed conflict. These medical interactions between those requiring medical care and those providing it are governed not only by the laws of armed conflict, but also by non-legal rules. The aim of the present Chapter is to provide an overview of medical actors in an armed conflict, the most general guiding principles, and medical ethics. Following the overview, the modern relevance of the problem will be highlighted by looking at two specific areas of concern: physicians’ involvement in interrogations and force feeding of hunger strikers. A

Medical Actors in Armed Conflicts

One can generally distinguish three categories of physicians active in armed conflicts.3 Firstly, there are military physicians. As part of military medical 1 Only when treating the wounded and sick was medical personnel granted ‘neutrality’, meaning protection. See article 2 of the Geneva Convention of 1864. 2 Between 2001 and 2010, there were only two international armed conflicts. sipri Yearbook 2011 (Oxford University Press, 2011), p. 61. Asymmetric warfare is characterized by an inequality between the parties to a conflict. This inequality is usually found in the means of warfare. In recent conflicts, this has resulted in the militarily weaker party resorting to methods of warfare that may violate international humanitarian law, such as the targeting of civilians but also the hiding between civilians, to compensate for its military inferiority. For more information, see Wolff Heintschel von Heinegg, ‘Asymmetric Warfare’, in Rüdiger Wolfrum (ed), Max Planck Encyclopedia of Public International Law (Oxford University Press, 2012); Robin Geiß, ‘The Conduct of Hostilities in Asymmetric Conflicts – Reciprocity, Distinction, Proportionality, Precautions’, 3 Humanitäres Völkerrecht, 122 (2010). 3 The legal framework of the protection and responsibilities of medical personnel are addressed in Chapter 2. © koninklijke brill nv, leiden, 2015 | doi 10.1163/9789004279162_003

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personnel, military physicians’ main responsibility is the medical treatment of wounded and sick combatants, especially those combatants of the physician’s own armed forces. However, pursuant to international humanitarian law, medical personnel should treat all wounded and sick, both combatants and civilians, irrespective of affiliation.4 In recent conflicts, the focus has at times shifted to an approach of winning the ‘hearts and minds’ of the civilian population through the provision of medical treatment.5 Secondly, there are civilian physicians who work in national civilian institutions of a state party of an armed conflict, such as clinics or hospitals. They are mainly responsible for the medical treatment of civilians yet may also not discriminate between the persons to be treated and would have to treat wounded combatants if approached. The protection of civilian medical personnel in international humanitarian law is hinged on the assignment of medical duties by one of the parties to the conflict.6 Civilian medical units are protected as long as they are not used to perpetrate acts of hostility towards another party to the conflict – civilian physicians working in such facilities are equally protected. Private civilian physicians not employed in civilian hospitals recognized by one of the parties to the conflict, for example working in private practices, are not protected as medical personnel under the laws of armed conflict. Thirdly, since the previous century there has been an increase of physicians working for humanitarian aid organizations. The term ‘humanitarian aid organizations’ will be used for national and international organizations providing medical relief and assistance in armed conflicts.7 Their level of protection depends on their status under international humanitarian law: if they have received the consent of one of the parties to the conflict and are impartial, they will be protected.8 Such organizations include inter-governmental and 4 Established in the articles containing the principle of non-discrimination: common article 3 (1) gc’s, articles 12 gc I and II, 16 gc III, 27 gc IV, 10 (2) ap i and 7 (2) ap ii. 5 Speaking of targeting rather than winning, see Charles J. Dunlap, ‘Targeting Hearts and Minds: National Will and Other Legitimate Military Objectives of Modern War’, in Wolff Heintschel von Heinegg & Volker Epping (eds), International Humanitarian Law facing New Challenges – Symposium in Honour of Knut Ipsen (Springer Verlag, 2007). Critical of this approach, Raj Rana, ‘Contemporary challenges in the civil-military relationship: Complementarity or incompatibility?’, 86 International Review of the Red Cross, 565 (2004). 6 Sandoz, et al. (eds), Commentary to the Additional Protocols, para. 354. 7 This definition is based on Yves Beigbeder, The Role and Status of International Humanitarian Volunteers and Organizations – the Right and Duty to Humanitarian Assistance, Vol. 12 (Martinus Nijhoff Publishers, 1991), p. 346. 8 Pursuant to article 9 (2) ap I. Neutrality is not a requirement as it was omitted from article 10 gc I and 9 ap I. See also, Jean Pictet (ed), La Convention de Genève pour l’Amélioration du sort

The Role Of Physicians In Armed Conflict

11

non-governmental organizations (ngos), yet also national Red Cross or Red Crescent societies. Their humanitarian nature should manifest itself in a concern ‘for the condition of man, considered solely as a human being without regard to the value which he represents as a military, political, professional or other unit’.9 Some prominent examples of inter-governmental medical humanitarian aid organizations are the un agencies acting in armed conflicts, such as the United Nations International Children’s Emergency Fund (unicef) or the World Health Organization (who). However, un agencies mostly concentrate on the strengthening of public health structures, rather than sending physicians to areas of armed conflict.10 Prominent non-governmental medical organizations are the International Committee of the Red Cross (icrc)11 and national Red Cross or Red Crescent societies,12 Médecins Sans Frontières (msf), care, and Médecins du Monde. Even though they are very different in their policy, the discussion will be limited to the icrc and msf as the two most prominent, humanitarian aid organizations working in armed conflicts. Physicians working for a humanitarian aid organization usually treat civilians who are wounded or sick, though especially in non-international armed conflicts they also provide medical care to members of non-governmental armed

des Blessés et des Malades dans les Forces Armées en Campagne (Comité Internationale de la Croix-Rouge, 1952), p. 108. 9 See the icrc Commentary to article 10 gc I which concerns the role that humanitarian organizations may play as protecting powers in international armed conflicts. Ibid. p. 108. 10 Beigbeder, The Role and Status of International Humanitarian Volunteers and Organizations – the Right and Duty to Humanitarian Assistance, p. 278. 11 It should be noted that the icrc has a special status in international law. Gasser describes it as follows: ‘The icrc is not an intergovernmental international organization. Nor is it an ordinary non-governmental organization as its activities are mandated by States, and based on international law. Though the icrc is a private association governed by Swiss law, it is now widely accepted that the organization has personality in international law. However, this legal status is restricted: it goes no further than that which is required for the icrc to carry out the mandate conferred on it by the international community through the Geneva Conventions and by the Statutes of the Movement’. Hans-Peter Gasser, ‘International Committee of the Red Cross’, in Rüdiger Wolfrum (ed), Max Planck Encyclopedia of Public International Law (Oxford University Press, 2012). 12 National Red Cross and Red Crescent societies, on the one hand, serve the national armed forces and providing humanitarian aid in the name of the state, and, on the other hand, are part of the International Red Cross and Red Crescent Movement. See for example, Deutsches Rotes Kreuz, National Statutes of the German Red Cross (Bundessatzung nach Beschlusserfassung der Außerordentlichen Bundesversammlung am 20.03.2009) (2009). They are hybrids. A thorough classification of their legal nature would go beyond the scope of this book.

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forces.13 As the rules of international humanitarian law apply to all actors in an armed conflict, humanitarian aid organizations are also bound by the principle of non-discrimination and should treat all persons that need medical attention.14 In addition, most humanitarian aid organizations carry out advocacy work to raise awareness for the plight of the victims of armed conflict and to ensure the funding of their work. This was recognized in the Code of Conduct for the International Red Cross and Red Crescent (irc) Movement and ngos in disaster relief, also known as part of the Sphere Project.15 Its article 10 refers to ‘information, publicity and advertising activities’. Praiseworthy as this may be, attention for certain conflicts should not overshadow the needs of victims of conflicts in other parts of the world possibly less prominent in the public eye. Moreover, advocacy work may endanger an organization’s neutrality in such a way that working to the benefit of those in need of medical care becomes impossible. A function that all three categories of physicians should carry out is that of a guardian over the rights of persons treated. Being the first to examine the wounded and sick or prisoners of war, physicians, whether civilian or military, are in a privileged position to document when, how, and if those persons were wounded or treated in a way that violated their rights under international humanitarian or human rights law. While naturally addressing patients’ wounds, physicians can advocate against human rights abuses or violations of international humanitarian law.16 Due to their ethical codes and principles, to 13

For example, the icrc in 2010 reported to regularly treat armed opposition in the noninternational armed conflict between Afghan armed forces and the Taliban. See International Committee of the Red Cross, Operational Update: Afghanistan: icrc steps up efforts to help the sick and wounded (25 May 2010). 14 The icrc Commentary explains that this impartiality is a prerequisite for protection under article 9 (2) ap I. Sandoz, et al. (eds), Commentary to the Additional Protocols, para. 439. 15 The Sphere Project is a collaboration of different humanitarian actors, including international and national ngos, governments, un agencies and others, with the aim of establishing guidelines to ameliorate action and accountability in disaster and conflict situations. It was developed on the basis of experiences of humanitarian aid organizations during the Rwandan genocide in 1994. The Code of Conduct is an Annex to the Sphere Project Handbook and contains a voluntary pledge for humanitarian aid organizations, including ‘Non Governmental Humanitarian Agencies’, and recommendations to governments of disaster affected and donor states. International Federation of Red Cross and Red Crescent Societies and International Committee of the Red Cross, Code of Conduct for the International Red Cross and Red Crescent Movement and ngos in Disaster Relief  (1996). 16 Susannah Sirkin, et al. ‘The Role of Health Professionals in Protecting and Promoting Human Rights: A Paradigm for Professional Responsibility’, in Yael Danieli, et al. (eds), The Universal Declaration of Human Rights: Fifty Years and Beyond (Baywood Publishing Company for and on behalf of the un, 1999), p. 363.

The Role Of Physicians In Armed Conflict

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be discussed below, physicians enjoy a unique credibility that they can use to the benefit of the victims of armed conflicts in their care.17 Exemplary for this important role, the Norwegian physicians Mads Gilbert and Erik Fosse were among the first eye-witnesses to provide an account of the events of the 2008/2009 Gaza conflict. They found violations of the neutral status of the Red Crescent by the conflict parties and reported of severe wounds on civilians from white phosphorus and dime-bombs.18 By making such findings public or by confidentially reporting to the relevant authorities, physicians can raise awareness and ensure that the rights of protected persons in armed conflicts are better respected and guaranteed. However, their position is also susceptible for abuse. The consequences of such abuse will be discussed in Chapter 3. B

Guiding Principles

In armed conflicts, both international and internal, the provision of medical care can be highly politicized. Two parties are using lethal, military force against each other. For the parties to a conflict, it may be relevant who is providing medical care, by which means, and to whom. While carrying out medical tasks in armed conflict, physicians are not only guided by medical ethics in their interaction with the wounded and sick, but should also more generally be guided by a number of humanitarian principles. The four main principles to guide physicians’ overall behavior in armed conflict are humanity, neutrality, independence, and impartiality. These are also among the seven fundamental principles of the irc Movement which encompasses the icrc.19 From these principles, humanity can be considered the ‘principe essentiel’.20 It represents 17

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This is also supported by Maurice Torrelli, ‘La Protection du Médecin dans les Conflits Armés’, in Christophe Swinarski (ed), Studies and Essays on International Humanitarian Law and Red Cross Principles in honour of Jean Pictet (Martinus Nijhoff Publishers, 1984), p. 592. Mads Gilbert & Erik Fosse, ‘Inside Gaza’s Al-Shifa Hospital’, 373 The Lancet, 200 (2009). Although so-called ‘focused lethal munition’ is not prohibited under international disarmament agreements, experts have voiced concerns about their effects. un Secretary General, Report on the Protection of Civilians in Armed Conflict, Doc. No. S/2009/277 (29 May 2009), para. 36; see also un Fact-Finding Mission, Report of the United Nations FactFinding Mission on the Gaza Conflict (Goldstone Report), Doc. No. A/HRC/12/48 (25 September 2009), para. 907–908. Preamble of the Statutes of the International Red Cross Movement and article 4 of the Statutes of the icrc. Jean Pictet, Commentaire des principes fondamentaux de la Croix-Rouge (Institut Henry Dunant, 1979), p. 17–18.

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the ultimate aim of all persons providing (medical) care during armed conflicts, whereas impartiality, independence and neutrality are means to meet end.21 These principles generally form the basis for all physicians working in armed conflicts, from military medical personnel to physicians working for humanitarian aid organizations. Adhering to the principles may enhance protection, but it may also make physicians more vulnerable in certain situations. 1 Humanity The principle that forms the basis of international humanitarian law as demonstrated by the Martens Clause,22 but is also the moral basis for the medical profession, is the principle of humanity.23 Humanity acts as a counterbalance to the principle of military necessity. According to the principle of military necessity, armed forces may do all that is necessary for military victory, but only as far as such actions do not violate the principle of humanity.24 A prerequisite for acting in accordance with the principle of humanity is that physicians place humanity above all other principles which can only be guaranteed when they are sufficiently independent to decide what actions to take.25 According to Pictet, as quoted above, humanity means treating any person ‘solely as a human being without regard to the value which he represents as a military, political, professional or other unit’.26 This is in accordance with the Kantian philosophy

21

22 23

24 25 26

Thürer developed the metaphor of the ‘pyramid’ to explain the humanitarian space in which the icrc acts. Daniel Thürer, ‘Dunant’s Pyramid: Thoughts on the “Humanitarian Space”’, 39 International Review of the Red Cross, 47 (2007). His framework can, however, also be used to expanded to form the basis of medical activities of different actors in armed conflict besides the icrc. Even though different actors place different emphasis on the principles, that humanity forms the basis cannot be denied. See for a more detailed discussion of the Martens Clause, see Chapter 7. The principle of humanity should be distinguished from the principle of human dignity which, in international law, has been recognized in the preambles of several human rights treaties. The two principles will be discussed in more detail in Chapter 7. For a discussion of the protection of human dignity, consult Niels Petersen, ‘International Protection of Human Dignity’, in Rüdiger Wolfrum (ed), Max Planck Encyclopedia of Public International Law (Oxford University Press, 2012). Yves Sandoz, ‘International Humanitarian Law in the Twenty-First Century’, 6 Yearbook of International Humanitarian Law, 3 (2004), p. 7–8. Francoise Bouchet-Saulnier, Dictionnaire practique du Droit Humanitaire (Éditions la Découverte & Syros, 1998), p. 294. Pictet (ed), Commentary I, p. 108.

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of never treating a person as a means to an end.27 In terms of medical ethics, humanity is usually expressed in the principle of beneficence and non-maleficence – to do good and not to harm a patient.28 In practice, the principle of humanity entails that a physician treat all wounded and sick and prisoners of war as human beings so that they may ‘lead an acceptable existence’.29 Firstly, this entails an attempt to prevent and alleviate suffering as much as possible, even if at times in medical procedures it is necessary to harm in order to do good.30 Secondly, it means protecting the lives and health of the individuals being treated. Saving lives is, naturally, the goal of any physician.31 Thirdly, the principle requires that a physician ensure respect for persons treated, including all victims of armed conflicts.32 This implies not harming them in any way. During armed conflict, the meaning and importance of the principle of humanity is multiplied because of the serious danger to the lives of protected persons. Nonetheless, all persons, whether or not receiving medical care, should be treated with humanity by any physician, whether military or civilian. 2 Impartiality Next to independence and neutrality, impartiality is a further fundamental principle for physicians in armed conflicts. It ensures that they can practice their trade.33 Though impartiality may play a lesser role in peace, in armed 27

Immanuel Kant, Grundlegung zur Metaphysik der Sitten (mit Kommentar von Christoph Horn, Corinna Mieth und Nico Scarano) (Suhrkamp, 2007), p. 61 et seq. 28 Both beneficence and non-maleficence will be discussed below. 29 Jean Pictet, Development and Principles of International Humanitarian Law (Martinus Nijhoff Publishers, 1985), p. 63. International humanitarian law in addition also establishes that they be protected and respect – one of the red threads running through the laws of armed conflict. 30 This correlates to the principle of beneficence which requires physicians not to do harm, unless necessary to do good. For example, with a therapeutic justification, physicians can harm a patient’s integrity through a surgical operation if this leads to improved health and wellbeing. For an analysis of the ethical principle of beneficence, see below. 31 Pictet, Commentaire des principes fondamentaux de la Croix-Rouge, p. 21. 32 Ibid. p. 23. The three elements of humanity are based on the Preamble of the Statutes of the International Red Cross and Crescent Movement as commented on by Pictet in Pictet, Commentaire des principes fondamentaux de la Croix-Rouge, p. 15–32. The aspects were reiterated in International Court of Justice, Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), (Merits), Judgment [1986], icj Reports, 14, para. 242–243. 33 It was already established in article 6 of the Geneva Convention of 1864 which states: ‘Wounded or sick combatants, to whatever nation they may belong, shall be collected and cared for’.

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conflicts physicians can meet the goal of humanity only by treating all wounded and sick without distinction based on non-medical criteria. In its Nicaragua judgment, the International Court of Justice (icj) placed special emphasis on the principle of impartiality, next to the principle of humanity.34 It accepted a broad interpretation of impartiality and claimed that aid, including medical care, ‘must […] be given without discrimination to all in need in Nicaragua, not merely to the contras and their dependents’.35 This was criticized by Kalshoven as too broad an interpretation – not even the icrc always gives aid to both parties of an armed conflict as the opportunity to do so greatly depends on the consent attained to provide such aid in a certain territory.36 Thus, impartiality should rather mean the willingness to treat all those in need of medical care without distinction other than on medical grounds. Impartiality contains three aspects: non-discrimination, proportionality, and subjective impartiality. Non-discrimination is explicated in the provisions of international humanitarian law prohibiting discrimination based on anything but medical grounds.37 It is closely related to the principle of humanity. As article 1 of the Universal Declaration of Human Rights states: ‘All human beings are born free and equal in dignity and rights’.38 Proportionality entails that medical care is given by need. Pictet explains that ‘à souffrances égales, l’aide sera égale; à souffrances inégales, l’assistence sera proportionalisée à leur intensité et tiendra compte de leur urgence respective’.39 And lastly, the subjective aspect of impartiality is that physicians should not only seem impartial objectively, but should also act accordingly. This is a necessary charactertrait.40 Whereas neutrality implies a passive attitude, subjective impartiality requires that physicians actively treat all patients equally as required by their 34 35 36

icj, Nicaragua Case, para. 242. Ibid. para. 243. Kalshoven criticized the judgment for the fact that it placed too great an emphasis on the principle of impartiality and interpreted it in a narrower way than the icrc itself. Frits Kalshoven, ‘Impartialité et neutralité dans le droit et la pratique humanitaires’, 273 International Review of the Red Cross, 541 (1989). 37 The principle of non-discrimination is established in common article 3 gcs, and articles 12 gc i and ii, 16 gc iii, 27 gc iv and 10 (2) ap i and 4 (1) ap ii. 38 un General Assembly, Universal Declaration of Human Rights, Doc. No. A/810/1948 (1948). 39 Pictet, Commentaire des principes fondamentaux de la Croix-Rouge, p. 38. 40 Haug, for example, suggests that subjective impartiality means ‘the opposite of taking sides. It signifies a lack of bias, freedom from prejudices, freedom from allegiances to parties, namely parties to a war or conflict, freedom from sympathies and antipathies […]’. Hans Haug, Humanity for All (Paul Haupt Publishers, 1993), p. 460.

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medical needs which can prove especially challenging in armed conflicts. In order to be able to act impartially, a physician should ideally also be independent.41 It may at times put physicians in danger as some parties to a conflict would rather not see the enemy receiving the same level of medical care. 3 Neutrality and Independence If an organization or physician is believed to be affiliated with, supportive of, or controlled by one of the parties of the conflict, this may decrease the trust of those in need of medical care in that physician, organization, or even hospital. Eventually, the resulting distrust could endanger exactly those seeking medical care. For this reason, two further principles play an increasingly important role in modern armed conflicts: the principles of neutrality and independence. They are essential, not necessarily as values on themselves, but rather to gain the confidence of those in need of medical care.42 Neutrality means renunciation of participation and abstaining from interference in a conflict, neither militarily nor ideologically.43 It is here understood in relation to the parties of the conflict, not as it was understood in the Geneva Convention of 1864 where neutrality meant protection from attacks.44 For the icrc, neutrality is defined as ‘not [taking] sides in hostilities or [engaging] in controversies of a political, racial, religious or ideological nature’.45 Refraining from being actively involved in the conflict may prove more difficult for members of military medical personnel – they are by definition affiliated with the armed forces of a party to the conflict. Yet they can nonetheless remain neutral towards the conflict itself by refraining from becoming actively, militarily involved. Military neutrality is the precondition for their protection from attacks.46 This aspect is more clear-cut for physicians being part of civilian medical personnel or a humanitarian aid organization who have no military role in armed conflicts. Nonetheless, avoiding bias in a political, racial, religious, or ideological sense is a challenge for all physicians in armed conflicts. It 41 Pictet, Commentaire des principes fondamentaux de la Croix-Rouge, p. 44–45. 42 This also applies to the principles of independence and impartiality. Ibid. p. 48. 43 Haug, Humanity for All, p. 461. 44 See, in this respect, an analysis of the original Geneva Conventions in Chapter 2. 45 Preamble of the Statutes of the International Red Cross and Red Crescent Movement. 46 Protection ceases when medical units commit ‘acts harmful to the enemy’, as established in article 21 gc I for military medical personnel and article 13 ap I for civilian medical personnel. Self defense does not amount to an act harmful to the enemy. For examples, see International Committee of the Red Cross, Health Care in Danger: Making the Case (August 2011), p. 9.

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should be noted that in recent armed conflicts, the protective emblem47 has been a target rather than a symbol of neutrality and protection: violence has in past conflicts been directed at both medical facilities, as well as medical personnel.48 However, the provision of aid itself, whether to an adversary or to an affiliate, should never been seen as a violation of neutrality.49 In many cases, neutrality can only be guaranteed through the independence of the medical personnel. Independence means that physicians should be free from outside influence by states, organizations or other authorities and from political, economic, religious, financial or other objectives, and solely dedicated to humanity.50 Like with courts in national and international systems, the structure of an organization, be it civilian or military, determines its level of independence. Further, all medical personnel can lawfully refuse unethical orders that would violate the rights of a person in need of medical care based on international humanitarian law and so act independently to the benefit of the wounded and sick.51 This is mandated by medical ethics and international humanitarian law itself. For all physicians, the appearance of bias or dependence could not only harm the safety of the physician herself, it could also endanger

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To be discussed in Chapter 2. An illustrative account of violence against civilian and humanitarian health care, in ICRC, Health Care in Danger: Making the Case (August 2012), International Committee of the Red Cross, Health Care in Danger: A Sixteen Country Study (July 2011) and its website www .healthcareindanger.org. More specifically, concerning violence against civilian and humanitarian medical personnel in the Gaza conflict in 2008/2009, see Sebastian van As, et al. Physicians for Human Rights, Final Report: Independent fact-finding mission into violations of human rights in the Gaza Strip during the period 27.12.2008–18.01.2009 (April 2009), p. 10–11, 17–20. Concerning the violence against military medical personnel in the conflict in Afghanistan, see Jochen Stahnke, ‘Mediziner am Maschinengewehr’, Frankfurter Allgemeine Zeitung, Nr. 151 (3 July 2010), p. 5; Rolf von Uslar & Florian von Schewick, ‘Rotes Kreuz im Fadenkreuz?’, 3 Wehrmedizin und Wehrpharmazie (2009). Whereas the attacks on medical personnel in Gaza seemed to be aimed at preventing the evacuation of wounded and sick persons, in Afghanistan attacks on military medical personnel are meant to kill. This has, on the one hand, lead to an increased armament of military medical personnel. On the other hand, armed forces no longer necessarily correctly identify medical personnel in order to prevent it from being targeted. This applies to several states contributing to the International Security Assistance Force (isaf) in Afghanistan, see Bundesregierung, Antwort der Bundesregierung: Rechtlicher Status des Sanitätspersonals der Bundeswehr in Afghanistan, Drucksache 17/1338 (9 August 2010), p. 4–5. 49 Pictet, Development and Principles of International Humanitarian Law, p. 68. 50 Thürer, ‘Dunant’s Pyramid: Thoughts on the “Humanitarian Space”’, p. 58. 51 See articles 16 ap I and 10 ap II that will be thoroughly discussed in Part II and III.

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the protection of persons seeking medical care from that physician. The different categories of medical actors in armed conflicts enjoy different levels of independence and have different views on neutrality that can depend on their affiliation or status. a Civilian Physicians Even privately funded civilian hospitals may not be neutral or independent because they are on the territory of a party to an armed conflict and often ‘belong’ to that party of the conflict.52 How difficult neutrality can be even for civilian physicians, was demonstrated in the aftermath of the internal unrests short of a non-international armed conflict in Bahrain in 2011 where nine civilian physicians were convicted for having treated protesters.53 Civilian physicians can appear bias when treating opposing forces’ combatants. They should try to stay sufficiently independent and neutral despite such preconditions or circumstances. b Humanitarian Aid Organizations Physicians working for humanitarian aid organizations are not necessarily affiliated with one of the parties to the conflict or emotionally involved therein. But how such organizations value neutrality and independence differs from organization to organization. For the icrc, these principles play an essential role. Pursuant to article VI of the icrc Statute, the icrc is ‘a specifically neutral and independent institution and intermediary’. Consisting of fifteen to twenty-five Swiss citizens, the icrc has no other guarantee for its independence of states than this limitation of membership.54 These members form the Assembly – the decision-making and 52

Irrespective of affiliation, the protection of civilian hospitals is established in article 12 (2) ap I. Pursuant to article 13 ap I, civilian hospitals including the physicians working therein lose their protection when they are used for ‘acts harmful to the enemy’. The protection of civilian hospitals in non-international armed conflicts is established in article 11 ap II. Civilian medical personnel should despite possible affiliations in its work be as neutral as possible by abstaining from actively participating in the conflict, by treating all wounded and sick, by avoiding involvement in the politics of the conflict, and by remaining as independent as possible from outside influence in their actual medical work. 53 See phr, A Call for Bahrain to end Systematic Attacks on Doctors and Patients; Amnesty International, Bahrain: A Human Rights Crisis, p. 5. See Physicians for Human Rights, phr Condemns Decision by Bahrain’s Highest Appeals Court to Uphold Conviction of Medics (10 January 2012). 54 Article 7 Statutes of the International Committee of the Red Cross. This ‘uni-nationalism’ is, however, seen as the basis of the icrc’s independence by scholars. See, Christophe

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policy-setting organ of the icrc. The organization is financed mainly by governments and the European Commission.55 Despite this financial dependence, the icrc is generally considered independent of its donors in its activities.56 In practice, the icrc has always acted in accordance with its own policy, motive and principles despite public funding. Being independent also enables the icrc to place special emphasis on its neutrality. Political and military neutrality are indispensable for the icrc to carry out its humanitarian mandate. To gain secure access to a territory, the icrc always requests authorization of the parties in charge over that territory and does not use military protection.57 Furthermore, it used to absolutely abstain from publicly voicing specific accusations against a party to a conflict in order to ensure the continued cooperation of that party to the conflict. While the bilateral confidential dialogue is the icrc’s ‘preferred mode of action in response to a violation of international humanitarian law’,58 its policy regarding violations of international humanitarian law has been eased. If bilateral and confidential communications do not succeed, the icrc can proceed to share concerns with third parties, publicize statements on the quality of the bilateral confidential dialogue, or, as a last and exceptional measure, issue a public condemnation of the party to the conflict violating international humanitarian law.59 Public condemnations by the icrc are extremely rare. Being careful about public ‘naming-and-shaming’ does not mean that the icrc supports violations of international humanitarian law or human rights but

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Swinarski, ‘La Notion d’un Organisme Neutre et le Droit International’, in Christophe Swinarski (ed), Studies and Essays on International Humanitarian Law and Red Cross Principles in honour of Jean Pictet (Martinus Nijhoff, 1984), p. 834. In 2012, the contribution by donors was as follows: 82.08% from governments, 8.9% from the European Commission, 4.3% from National Societies, and 3.7% from other private and public sources. See International Committee of the Red Cross, Annual Report 2012 (May 2013), Volume I, Funding, p. 75. See for example Haug, Humanity for All, p. 469. Kalshoven, ‘Impartialité et neutralité dans le droit et la pratique humanitaires’, p. 550. International Committee of the Red Cross, Action by the International Committee of the Red Cross in the Event of Violations of International Humanitarian Law or of other Fundamental Rules protecting Persons in Situations of Violence (2005), p. 394. The latter action is only taken when four cumulative criteria are met, namely that ‘(1) the violations are major and repeated or likely to be repeated; (2) delegates have witnessed the violations with their own eyes, or the existence and extent of those violations have been established on the basis of reliable and verifiable sources; (3) bilateral confidential representations and, when attempted, humanitarian mobilization efforts have failed to put an end to the violations; and (4) such publicity is in the interest of the persons or populations affected or threatened’. Article 3 Subsidiary Modes of Action in Ibid.

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it places the care for and access to victims of armed conflicts above political statements. In the words of Pictet, the icrc has chosen charity over justice.60 msf places great emphasis on freedom of movement and independence yet values neutrality differently than the icrc. The msf Charter in this respect reads: Médecins Sans Frontières observes neutrality and impartiality in the name of universal medical ethics and the right to humanitarian assistance and claims full and unhindered freedom in the exercise of its functions. Members undertake to respect their professional code of ethics and to maintain complete independence from all political, economic or religious powers.61 Objecting to being dependent on public, governmental donors, the msf relies up to 89% on private funds and individual donors.62 In order to safeguard its neutrality concerning the parties to a conflict and its independence from state actors, msf not only decided to be privately funded, it also refuses to join concerted efforts such as the Sphere Project. Furthermore, msf, as opposed to the icrc, will work in territories for which is has not received the relevant consent by a party to a conflict in charge of that territory.63 On the one hand, this enables the organization to remain neutral and focus on the victims of armed conflict only, on the other hand, this makes the work of msf more dangerous 60 Pictet, Commentaire des principes fondamentaux de la Croix-Rouge, p. 54. It should be noted that the icrc also has ‘the right to non-disclosure of information relating to the icrc’s activities in the possession of its employees in judicial proceedings’. This was ruled by the International Criminal Tribunal for the former Yugoslavia, Prosecutor v. Simić et al. Trial Chamber Decision on the Prosecution Motion under Rule 73 for a Ruling concerning the Testimony of a Witness [1999], para. 73. The right to non-disclosure is also established in Rule 73 of the Rules of Procedure. For a detailed analysis, see Gabor Rona, ‘The icrc privilege not to testify: Confidentiality in Action’, International Review of the Red Cross (2004). 61 Médecins sans Frontières Homepage, at http://www.msf.org/. It should be noted that the msf Charter also refers to medical ethics without providing guidelines of medical ethics or any other form of interpretation. 62 The numbers are taken from Médecins Sans Frontières International Movement, ‘msf Financial Report 2012’, (2012), p. 6. 63 Beigbeder discusses the different approaches of the un and icrc on the one hand and the ‘without border missions’, as he calls them, on the other. Beigbeder, The Role and Status of International Humanitarian Volunteers and Organizations – the Right and Duty to Humanitarian Assistance, p. 270–273.

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due to a lack of protection by the party in charge of a certain area.64 It may furthermore generate a feeling of bias – when msf chooses to treat civilians of one side to the conflict only, this may appear to the other party to the conflict like picking sides. Furthermore, where the icrc refrains from publicizing accusations, the msf places a greater emphasis on its function as a guardian of human rights and the rights of protected persons and, hence, also publicizes its opinions. While some organizations are not neutral as such, for example by being dedicated to the victims of one party of the conflict, others seem not neutral and dependent by affiliation. This can be the case with humanitarian aid organizations that accept military support and protection in carrying out their work or national Red Cross or Red Crescent societies. The support through infrastructure and services of armed forces may often be the only way for an organization to work in a certain region.65 However, this ‘enhanced capacity bought through cooperation with the military comes at the price of perceived neutrality’.66 Hence, certain major humanitarian actors, such as msf and the icrc, reject any cooperation with armed forces in regions of conflict. c Military Physicians Although not actively involved in hostilities as that would jeopardize their protection,67 physicians working for armed forces of a party to a conflict are by profession neither neutral in a political or ideological sense, nor independent. They are faced with a dual-loyalty conflict: are military physicians soldiers first and physicians second, or vice versa?68 On the one hand, physicians, irrespective of their 64

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68

A cursory overview of msf’s view on neutrality is given in Roelf Padt, ‘The Meaning of Neutrality and its Consequences – The Médecins Sans Frontières Experience’, in Ger L. Wackers & Clemens T.M. Wennekes (eds), Violation of Medical Neutrality (Thesis Publishers, 1992). Even the icrc accepted military protection in Somalia and Yugoslavia. David P. Forsythe, ‘The International Committee of the Red Cross and Humanitarian Assistance – A Policy Analysis’, 78 International Review of the Red Cross, 552 (1996), p. 558–559. Sara Davies, Global Politics of Health (Polity Press, 2009), p. 116. Active involvement in hostilities by physicians, though unlawful, is not uncommon. See Victor W. Sidel & Barry S. Levy, ‘Physician-Soldier: A Moral Dilemma?’, in Thomas E. Beam & Linette R. Sparacino (eds), Military Medical Ethics (Office of the Surgeon General at tmm Publications, 2003), p. 303–304. For a recent account of such a blurring of roles, see Craig Jurisevic, Blood on My Hands: A Surgeon at War (Wild Dingo Press, 2010). According to Annas it should rather be physician first, always and last. George J. Annas, ‘Military Medical Ethics – Physician First, Last, Always’, 359 New England Journal of Medicine, 1087 (2008), p. 1090.

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employer, are members of a profession known for its ethical codes. As such, most physicians have also taken an oath of medical ethics at one point in their professional career. On the other hand, by having taken an oath on their country as part of the military’s medical personnel,69 they belong to that party to the conflict and can, despite possible divergent private views, never be as neutral as other physicians. Because the armed forces are employer and educator, military physicians are highly dependent on them.70 As part of the armed forces, they work in military hospitals under military command in accordance with military manuals. They are trained with, live with, eat with, spend time with a military unit. This forges an emotional and professional bond between the military physicians and troops. Besides this possible source of bias, military physicians are practically unable to independently decide who to treat and how. This dependence on one of the parties to the conflict hinders a strict adherence to two of the four core principles here discussed. When faced with a conflict between military and medical loyalty, military physicians either forsake their neutrality and side with the former, or physicians honor their medical oath and decide against their military and in favor of their medical loyalties. The three main occurrences of the dual-loyalty conflict illustrate the problems that military physicians face when their ethics conflict with the principles on which armed forces rely. Firstly, when faced with a lawful order contradicting a physician’s medical mission and ethics, military physicians will have to decide whether to obey the military order or to refuse on ethical grounds. Pursuant to international humanitarian law, they cannot be punished for refusing to obey an unethical order.71 In most militaries, disobedience of unlawful orders is justified. Yet, the refusal to obey a lawful order by a superior has weighty consequences, such as prosecution before a military court.72 This 69

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For example, the duty to take an oath when joining the German armed forces can be found in § 9 of the Soldatengesetz in the version of 30 May 2005 (BGBl. I S. 1482) amended by article 8 of the laws of 28 August 2013 (BGBl. I S. 3386). Stephanie Erin Brewer & Jean Maria Arrigo, ‘Places that Medical Ethics can’t find’, in Ryan Goodman & Mindy Jane Roseman (eds), Interrogations, Forced Feeding, and the Role of Health Professionals – New Perspectives on International Human Rights, Humanitarian Law, and Ethics (Human Rights Program at Harvard Law School, 2009), p. 10–11. This is established in articles 16 ap I and 10 ap II to be discussed in Part II and III. The disobedience of a lawful order is considered a crime in many different jurisdictions. See for example article 92 (failure to obey order or regulation) of the U.S. Uniform Code of Military Justice (ucmj, 64 Stat. 109, 10 u.s.c. Chapter 47); articles 125–134 of Titel V of the Dutch Wetboek van Militair Strafrecht of 27 April 1903, Stb. 111, last amended by Stb.2006, 11; and § 19–22 of the German Wehrstrafgesetz of 24 May 1974 (BGBl. I p. 1213), last amended on 22 April 2005 (BGBl. I p. 1106).

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impedes physicians’ freedom to make choices by which they would disobey an order.73 Even when they do not experience pressure as such, they are never as independent in their judgment as civilian physicians would be.74 Refusing a military order is difficult. However, it is also mostly impossible for military physicians to use other options to avoid tasks they find unethical. Where a civilian physician can refer a patient to another physician, a military physician cannot easily do that on the battlefield, in a field hospital with limited capabilities, or a prisoner of war camp. There is thus an inherent conflict between the basic principle of obedience to the command structure in armed forces and the independence to decide on the basis of medical ethics. One way to solve this conflict is by adherence to international humanitarian law which binds all armed forces, including military medical personnel. The reference to medical ethics in reference to unethical superior orders indicates that in view of international humanitarian law, physicians should put ethical before military concerns. Secondly, it needs to be considered whether a military physician can truly work in accordance with medical ethics and in the best interest of a patient without considering the need for an effective fighting force. In order to defend a state and defeat an enemy, armed forces need an effective fighting force and obedience to a command structure so that in situations of emergency, order can be guaranteed. These two basic considerations guide the work of armed forces. Yet ensuring the functioning of armed forces may at times contradict the main principles of medical ethics, namely beneficence and non-maleficence,75 as well as the principles of neutrality and independence. For military 73

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A case in point is u.s. Supreme Court, Jocob J. Parker, Warden, et al. Appellants v. Howard B. Levy [1974], 417 u.s. 733. Howard Levy, a dermatologist drafted by the u.s. army for two years, was tried by general court martial because he publicly stated his objections to the Vietnam war and refused to conduct the training of special forces aide men. Sidel and Levy explicate that Howard Levy objected to the training of medical personnel in combat skills which he believed would blur the distinction between medical personnel and combatants. See Sidel & Levy, ‘Physician-Soldier: A Moral Dilemma?’, p. 304. When given a written order to conduct the training, Levy declared he would not follow the order because of his medical ethics. The Supreme Court reversed the Court of Appeals judgment and confirmed the conviction of Levy by general court-martial for violations of articles 90, 133 and 134 of the ucmj. Sidel and Levy categorize the military as a ‘total institution’ comparable in its working environment for physicians to mental institutions and prisons where physicians because of their surroundings cannot decide freely. Sidel & Levy, ‘Physician-Soldier: A Moral Dilemma?’, p. 306. To be discussed below.

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physicians, however, the well-being of the armed forces as a whole matters. If the physician was working in a non-military environment, the question of whether a combatant’s wound are trivial enough to send him back to the battlefield would never figure into considerations concerning a medical course of action. Such problems present themselves in triage, in the decision to remove a combatant from the battlefield for psychological reasons, in the face of vaccinations, or in the question of patient confidentiality. Especially in triage situations, treatment may depend on factors other than the patient’s best interest. An often cited example is that of the use of penicillin by the British armed forces during World War II: it was deemed more efficient to use the available penicillin on soldiers with sexually transmitted diseases than on the wounded because it meant a higher rate of soldiers able to return to the battlefield.76 Another example is the redeployment of troops to combat despite possible traumatization or so-called ‘combat stress disorder’.77 It is difficult to imagine how a physician could on the one hand decide what is best for a person based on medical and ethical reasons, and on the other hand be part of the hierarchical structure of the armed forces and decide what is best to preserve fighting force. This dilemma leads Sidel and Levy to the conclusion that ‘the ethical principles of medicine make medical practice under military control fundamentally dysfunctional and unethical’.78 Thirdly, the dual-loyalty conflict is revealed when military physicians are confronted with persons requiring medical attention who are not members of their armed forces but rather civilians or enemy combatants. In accordance with the principle of impartiality and non-discrimination, physicians, irrespective of affiliation, should treat all those in need of medical care without discrimination other than on medical grounds. The treatment of civilians would most probably not cause a dual-loyalty conflict as such, although military physicians’ limited independence may hinder treatment. Treating enemy combatants may be more difficult for military physicians, seeing their 76

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Gross claims that the use of penicillin for battle injuries was recognized later. Michael L. Gross, Bioethics and Armed Conflict: Moral Dilemmas of Medicine and War (The mit Press, 2006), p. 138–141. Thomas E. Beam, ‘Medical Ethics on the Battlefield: The Crucible of Military Medical Ethics’, in Thomas E. Beam & Linette R. Sparacino (eds), Military Medical Ethics (Office of the Surgeon General at tmm Publications, 2003), p. 373–374. Sidel & Levy, ‘Physician-Soldier: A Moral Dilemma?’ in ibid. p. 296. They suggest a re-thinking of the role of medical personnel in armed forces and a renewed dialogue between the armed forces and military and civilian physicians on the ethics and values of medicine in armed conflict.

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dependence on a party to the conflict and their non-neutral position. If ensuring the fighting strength of the armed forces is a guiding principle, why treat the enemy? In addition, impartiality may be challenging as military physicians may have to choose between treating a friend and colleague and the person responsible for wounding this friend and colleague.79 4 Evaluation Ultimately, physicians, whether in the military or in civilian life, work to save lives. In their work, but also more general behavior in armed conflicts, they are guided by the above discussed prominent, traditional principles namely to respect the humanity of persons and not to harm those in need of medical care or those dependent on medical personnel. In this sense, physicians’ medical duties should prevail at all times.80 Physicians should, as also demanded by the Geneva Conventions, remain militarily neutral to be protected and neutral in a political and ideological sense so that their affiliation does not stand in the way of their medical work. Even though neutrality and independence are more difficult to attain for military physicians, all physicians should be guided by them in their actions. Military physicians should be aware of the special difficulty to adhere to them in their work during armed conflicts.

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For this reason, Sidel and Levy argue that military physicians can never be truly impartial and thus can never fulfill their responsibilities under Geneva Law. Ibid. p. 303. This is supported by many, mainly from the civilian side of the divide. For example World Medical Association, International Code of Medical Ethics (adopted by the 3rd wma General Assembly, London, England, October 1949 and last amended by the wma General Assembly, Pilanesberg, South Africa, October 2006); Sidel & Levy, ‘Physician-Soldier: A Moral Dilemma?’; Annas, ‘Military Medical Ethics’; Steven H. Miles, Oath Betrayed – America’s Torture Doctors, 2nd Ed. (University of California Press, 2009); Bloche & Marks, ‘When Doctors go to War’, and others. Conversely, many members of the military believe physicians to be ‘physician-soldiers’ who adhere to special ethics. Pellegrino argues that ‘except in the most extreme exigencies, the physician remains a physician always’ whereby indicating that there may be instances where this is not so. Edmund D. Pellegrino, ‘The Moral Foundations of the Patient-Physician Relationship: The Essence of Medical Ethics’, in Thomas E. Beam & Linette R. Sparacino (eds), Military Medical Ethics (Office of the Surgeon General at tmm Publications, 2003), p. 17. Howe discusses instances where military interests may override patient’s interests. Edmund G. Howe, ‘Mixed Agency in Military Medicine: Ethical Roles in Conflict’, in Thomas E. Beam & Linette R. Sparacino (eds), Military Medical Ethics (Office of the Surgeon General at tmm Publications, 2003). Alhoff believes that traditional medical ethics do not apply to physicians working as interrogators. Fritz Allhoff, ‘Physician Involvement in Hostile Interrogations’, in Fritz Allhoff (ed), Physicians at War: The Dual Loyalties Challenge (Springer, 2008).

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General Principles of Medical Ethics

Ethical dilemmas in armed conflicts have been foreseen by international humanitarian law as demonstrated by articles 16 ap I and 10 ap II. This book is based on the premise that the ethics that govern medical care in times of peace are the same in armed conflict, even though the emphases might be different.81 Some, like Pellegrino, believe there to be ‘extreme contingencies’ where this is not so.82 Leaving room for such vague exceptions seems rather undesirable in the context of armed conflict. Arguing from a legal point of view, an absolute notion of medical ethics ensures more certainty regarding articles 16 ap I and 10 ap II, and arguing from the point of medical ethics, it ensures that physicians, both military and civilian, can always adequately respond to ethically challenging situations to the benefit of their patients. Others, most prominently Gross, argue that medical ethics cannot be the same in times of peace and armed conflict. Gross bases this theory on the fact that the initial position in armed conflict is different: military necessity can override ethical concerns if the future of the state is at stake and soldiers lack autonomy which affects their right to life and self-determination.83 Indeed, the challenges faced by physicians in armed conflict are different from those in times of peace. For example, most questions concerning the beginning of life do not factor in armed conflicts, while questions concerning medical involvement in 81

In legal literature, see Alma Baccino-Astrada, Manuel des Droits et Devoirs du Personnel Sanitaire lors des Conflits Armés (La Croix-Rouge, 1982), p. 36. Furthermore, this is the premise of the wma in World Medical Association, ‘Regulations in Times of Armed Conflict’, (adopted by the 10th World Medical Assembly, Havana, Cuba, October 1956, as amended by the wma General Assembly, Tokyo 2004, editorially revised at the 173rd Council Session, Divonne-les-Bains, France, May 2006, and revised by the 63rd wma General Assembly, Bangkok, Thailand, October 2012), at http://www.wma.net/ en/30publications/10policies/a20/. 82 Pellegrino, ‘The Essence of Medical Ethics’. 83 Gross, Bioethics and Armed Conflict, p. 15–16; Michael L. Gross, ‘Bioethics and Armed Conflict: Mapping the Moral Dimensions of Medicine and War’, 34 Hastings Center Report, 22 (2004). Despite some intriguing arguments, like combatants’ limited autonomy, Gross’ general acceptance of the possibility that torture and coercive interrogations could be morally acceptable in certain situations (Chapter 7 in Gross, Bioethics and Armed Conflict) and his theory of a just war make his overall theory unconvincing for legal experts dedicated to human rights and the dominance of law over politics. Also critical, Vivienne Nathanson, ‘Review of Michael Gross’ Bioethics and Armed Conflict’, 333 British Medical Journal, 1177 (2006) and Frances V. Harbour, ‘Review of Michael Gross’ Bioethics and Armed Conflict’, 22 Ethics and International Affairs, 225 (2008).

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interrogations rarely surface in times of peace. It comes with the situation of an armed conflict that every action can influence the security of one of the parties to the conflict, for example whether the physician decides to treat an adversary combatant or whether he fails to salvage sufficient combatants for an active fighting force. Yet physicians treat victims in one-on-one situations. Whether combatants or civilians, whether friend or foe, it cannot be denied that all human beings should be treated humanely. This includes treatment in accordance with medical ethics and not being treated as a means to an end; in this case state security. Hence, the same medical ethics that provide guidance in times of peace should govern all interactions between physicians and protected persons in armed conflict. The concept of medical ethics and some of the most prominent principles of medical ethics will be scrutinized from a philosophical, ethical perspective. The examination should provide a non-exhaustive overview of the development of medical ethics and bioethics, ranging from the Hippocratic Oath to some prominent modern methodologies and theories of ethics, predominantly the principles of biomedical ethics promulgated by Beauchamp and Childress. This examination of general biomedical ethics culminates in a discussion of how these ethical theories can be applied in armed conflicts and whether military medical ethics differ from these bioethical theories and principles. 1 The Hippocratic Oath Even though medical ethics date farther back, the Hippocratic Oath is often seen as the basis for modern medical ethics.84 As part of the Corpus Hippocraticum, it is claimed to have been drafted by the Greek physician Hippocrates of Cos. However, despite its commonly used name, its true origin is not certain.85 Most probably it was drafted by a medical school in Greece in the fourth century bc and some argue its application must have been limited to this group of scholars.86 In that time, the exchange between medical 84

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A useful translation of the Oath is that by von Staden which Miles also uses. Heinrich von Staden, ‘“In a pure and holy way”: Personal and Professional Conduct in the Hippocratic Oath?’, 51 Journal of the History of Medicine and Allied Sciences, 404 (1996), p. 406–408. Staden’s translation is attached in Annex 1. Offering a convincing historical analysis of the Hippocratic Oath, see Steven H. Miles, The Hippocratic Oath and the Ethics of Medicine (Oxford University Press, 2004), p. 28. Wolfgang U. Eckart, Geschichte der Medizin, 5th Ed. (Springer Verlag, 2005), p. 17. Others argue that it was drafted in the fifth century bc. Helga Kuhse & Peter Singer, ‘What is Bioethics? A Historical Introduction’, in Helga Kuhse & Peter Singer (eds), A Companion to Bioethics (Blackwell Publishing, 2001), p. 5.

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practitioners was largely carried out in medical treatises in which physicians described previous procedures and patients, thereby advancing medical science and knowledge. Universal codes of ethics were developed much later, for example in the period of Enlightenment.87 Nonetheless, the Oath gained fame and importance in the medical science of the Western world as of the sixteenth century, and has been the basis for medical professions’ codes of conduct over the last 1000 years. In a darker period of medical history, the Oath was called upon by the National Socialist physicians.88 Yet, Telford Taylor in the Doctors’ Trial argued that their use of the Oath was pure hypocrisy: ‘All of them violated the Hippocratic commandments which they had solemnly sworn to uphold and abide by, including the fundamental principle never to do harm – “primum non nocere.”’89 Nowadays, the Oath or adaptations of it are still used as a pledge by medical students upon graduation.90 Written 400 bc, the Hippocratic Oath must be read in the context of its time. That means that it was written in a time when prisoners of war were legitimately enslaved, women were dependent on men, sexual relations between adult men and boys were accepted by society, and physicians practiced a new, often dangerous trade. Physicians provided prognoses for those suffering from disease, healed some seeking their care and advice, and provided palliative care for others beyond help. But their technical, diagnostic, surgical or other skills were, of course, nowhere near the state of the art of today. Despite modern developments in the art of medicine, some aspects of the Oath remain relevant even today – yet should not be taken literally but rather be interpreted for modern usage. The passage of the Oath closest to a modern ethical understanding concerns the concept of consent. Although in ancient Greece, physicians were not yet able to diagnose as precisely as in modern medicine and relied on prognosis rather than diagnosis, it was still essential to openly disclose relevant information to the patient. After having listened to the patient, having carried out a detailed history and examination, the physician openly made a prognosis.91 Only if the patient was aware of her condition 87 88 89

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Kuhse & Singer, ‘What is Bioethics?’, p. 6. Rudolf Ramm, Ärztliche Rechts- und Standeskunde: der Arzt als Gesundheitserzieher (de Gruyter, 1943). United States Military Tribunal I, United States of America v. Karl Brandt, et al. [‘The Doctors’ Trial’], Judgment [1947], Trials of War Criminals, Vol. I & II, p. 68. The Doctors’ Trial will be discussed in detail in Chapter 3. On the role of the Oath in modern medicine, see Dale Smith, ‘The Hippocratic Oath and Modern Medicine’, 51 Journal of the History of Medicine and Allied Sciences, 484 (1996). Steven H. Miles, ‘The Art of Medicine: Hippocrates and Informed Consent’, 374 The Lancet, 1322 (2009).

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and the prognosis, could the physician provide successful treatment.92 The same holds true in modern medicine, although the modern principle of informed consent is broader than in ancient Greece. Furthermore, physicians were to use the trust invested in them and their medical knowledge to do good, rather than bad – in the words of the Oath, harm or injustice. This, as it should today, entailed treating the dying with palliative care while respecting their wishes.93 Other passages of the Oath do not fit as neatly into modern concepts.94 For example, the disavowal95 of providing deadly drugs most probably meant that physicians, rather than not committing euthanasia, an act which became relevant much later than 400 bc,96 should not intentionally be involved in homicide, for example by providing or administering poisonous drugs.97 This is, obviously, still proscribed in modern times but would probably not be included in a modern code of ethics. Another example is the principle of integrity. According to the Oath, a physician pledged to live ‘pure and holy’ both in his personal as well as his professional or public life. Though this did not imply the moral integrity required of physicians in modern times,98 a physician’s integrity is still relevant in order to establish trust between a physician and a patient. This trust is today believed to be enhanced by confidentiality and the respect for privacy in the interaction between physician and 92 Miles, The Hippocratic Oath and the Ethics of Medicine, p. 133; and, less adamant, Florian Steger, Das Erbe des Hippokrates – Medizinethische Konflikte und ihre Wurzeln (Vandenhoeck & Ruprecht, 2008), p. 73. 93 Miles, The Hippocratic Oath and the Ethics of Medicine, p. 71. 94 A prominent example that, however, does not play a major role in armed conflicts, is the controversial aspect of abortion as addressed in the Oath – some believe it to be an adamant prohibition of abortion based on moral reasons (Steger, Das Erbe des Hippokrates, p. 58–66), others believe that only certain forms of abortion were proscribed based on clinical objections. 95 The use of the word disavowal should be given preference over ‘prohibition’ as the latter denotes an imperative, whereas the Oath actually only contains negative promises. von Staden, ‘“In a pure and holy way”’, p. 415. 96 See also Anton J.L. van Hooff, ‘Ancient Euthanasia: “Good Death” and the Doctor in the Graeco-Roman World’, 58 Social Science &Medicine, 975 (2004). Conversely, other authors believe the Hippocratic Oath to proscribe active euthanasia, for example Steger, Das Erbe des Hippokrates, p. 88–95. Nonetheless, Miles’ analysis, as convincing as it, does not interpret the Oath from a modern point of view but rather convincingly considers it in its historical context. 97 Miles, The Hippocratic Oath and the Ethics of Medicine, p. 71; 73. 98 Ibid. p. 97. For an example of the high moral standards applied to physicians, see ictr Ntakirutimana Trial Judgment discussed in more detail in Chapter 3.

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patient. In the times of the Oath, confidentiality of medical information was practically non-existing, yet it was considered unethical for a physician to voluntarily and destructively commit an injustice to a patient by ‘dishonoring’ him. Overall, the Hippocratic Oath is still a relevant instrument for practitioners of medicine, but it should never be taken out of its historical context and cannot be directly applied in our modern, technical world of medicine based on science. What can be drawn from the Oath, however, can also have relevance in armed conflicts: namely that physicians should disclose to their patients the diagnosis and, if possible, a prognosis, that they should keep the wounded and sick from harm and injustice, that they should act to the benefit of the wounded and sick, and that they should demonstrate integrity in order to earn the trust afforded to them. More detailed questions that play a role in the interaction between physicians and patients in modern armed conflicts, such as the question of involvement in torture and force-feeding, do not play an explicit role in the Oath. Mostly, this is due to the different times and different ethical understandings, but also to the fact that the Oath was written for medical practitioners in their interaction with civilians99 – not for medical practice on a battlefield. Nonetheless, the principle of beneficence, to do good, and the related principle of non-maleficence, not to do harm, find their basis in the Oath.100 They still shape medical practice, although they have been supplemented by other principles, namely that of autonomy and justice. 2 The Development of Medical Ethics and Bioethics From ancient codes concerning medical care, over the Hippocratic Oath to modern-day bioethics, there is a rich history of the ethics of medical care. Although the Additional Protocols refer to ‘medical ethics’,101 modern ethical theory has expanded ‘medical’ to ‘bio-’ ethics. Bioethics is a concept that encompasses more than the mere relationship of a patient and her physician, or physicians amongst each other. Bioethics encompasses public policy and provides an interdisciplinary platform for discussions on modern medical and research questions involving not only the medical profession and ethicists, but other disciplines, including law, as well. Where the discourse of medical ethics 99 Miles, The Hippocratic Oath and the Ethics of Medicine, p. 55–56. 100 The phrase ‘primum non nocere’ can, however, not be drawn from the Oath – it is a wide interpretation of it. Beauchamp & Childress, Principles of Biomedical Ethics, p. 149. 101 Others advocated the term ‘professional ethics’ in the drafting process. See the discussion on the travaux préparatoires in Chapter 6.

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is aimed at establishing codes of conduct for the medical profession, bioethics attempts to raise awareness and open discussions on controversial issues, rather than provide answers in the form of codes.102 The term ‘bioethics’ was introduced by Rensselaer Potter in 1971 – yet he used it to define the ethics of science in relation to modern developments affecting the environment.103 It has since attained a new meaning in the debate on modern medicine that arose following the advancements in modern medicine and its effects on society in the first half of the twentieth century.104 To name a few developments that contributed to the new way of thinking, they include the technical developments in organ transplantation and in lifeextending technologies, such as respiratory systems and renal dialysis, and the changes in sexual morality due to new reproduction techniques, the advent of hormonal contraceptives, and the facilitation of abortions. With such advancements in medicine, it became more difficult for physicians to follow the old adagio of ‘first do no harm’ when the benefits and harms of saving a life or letting die were not always clearly discernible.105 These developments in medicine not only affected society, they also called for new ways of thinking about ethics and the ‘traditional medical morality’.106 Ethicists began to move away from theoretical questions to the practicalities of issues regarding life and death, and everything in between.107 Suddenly, the limits of treatment for persons unable to decide for themselves also became more relevant because it was possible to save more lives, for example the lives of seriously disabled or premature newborns. Yet there were no answers to questions where the limits to such actions were. Thus the focus of ethicists shifted from the actual physician-patient relationship to public policy and the effect of medical decisions 102 103 104 105

Kuhse & Singer, ‘What is Bioethics?’, p. 4. Van Rensselaer Potter, Bioethics – Bridge to the Future (Prentice-Hall Inc., 1971). For a brief overview, see Kuhse & Singer, ‘What is Bioethics?’, p. 3–4; 7–10. Though the McCormick bases his discussion on the Judeo-Christian tradition, this article nonetheless provides an interesting essay on the dilemmas provided by modern medicine, specifically concerning the situation of seriously disabled newborns. Richard A. McCormick, ‘To Save or Let Die: The Dilemma of Modern Medicine’, 229 Journal of the American Medical Association, 172 (1974). 106 Albert R. Jonsen, ‘Introduction to the History of Bioethics’, in Nancy S. Jecker, et al. (eds), Bioethics – An Introduction to the History, Methods and Practice (Jones and Bartlett Publishers, 1997), p. 4. 107 On a new more practice-oriented role for philosophers and ethicists in the discipline of bioethics, see Daniel Callahan, ‘Bioethics as a Discipline’, 1 Hastings Center Report, 66 (1973). For a humorous characterization of bioethicists, see Albert R. Jonsen, ‘Casuistry and Clinical Ethics’, 7 Journal of Theoretical Medicine and Bioethics, 65 (1986), p. 65–66.

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and developments on society. However, despite the larger picture of modern medicine, the actual everyday ethical challenges of physicians always continued to play a major role, also in bioethics. Bioethicists use different methodologies to find solutions to ethical problems. These methodologies have different backgrounds and are linked to different philosophical schools of thought. What they have in common is the aim ‘to provide an adequate normative framework for processing, and […] resolving, moral problems’.108 Generally, ethical methodologies can be divided into two models. Deductive methodological approaches distill ethical principles from a certain theory of ethics from which they then deduce ethical rules in order to be applied to a case at hand. Inductive methodological approaches do not work with pre-conceived ethical principles. They use experience and observation of the realities of a case at hand to develop answers to the ethical dilemmas experienced. Whereas deductive approaches are criticized for being too rigid regarding what is right and wrong and too remote from clinical practice, inductive approaches are criticized for being too focused on single experiences that they, at times, lose sight of the ‘big picture’.109 Yet, however strict the division may appear in theory, most bioethicists do not strictly follow one approach. Two traditional ethical theories of thought that deduce ethical rules from general ethical principles are the utilitarian theories based on the principle of utility and the Kantian theory based on the principle of deontology.110 Modern theories of ethics, unlike the single-principle approaches of utilitarianism and Kantian theory, provide a more multifaceted basis for ethical decision-making.111 Three important contemporary theories are exemplary for the many different contemporary approaches to ethical decision-making. Firstly, virtue ethics stems from the Aristotelian theory. It is an approach based on the 108 Tom L. Beauchamp, ‘Ethical Theory and Bioethics’, in Tom L. Beauchamp & LeRoy Walters (eds), Contemporary Issues in Bioethics (Thomas Wadsworth, 2003), p. 12. 109 Nancy S. Jecker, ‘Introduction to the Methods of Bioethics’, in Nancy S. Jecker, et al. (eds), Bioethics – An Introduction to the History, Methods and Practice (Jones and Bartlett Publishers, 1997), p. 117–123. 110 A modern deductive ethical theory will be introduced in more detail below, namely the principles of biomedical ethics by Beauchamp and Childress – also referred to as principlism. 111 For a general overview of these contemporary ethical theories, see Beauchamp, ‘Ethical Theory and Bioethics’. The different ethical theories are discussed in more detail in Chapter 9 of Beauchamp & Childress, Principles of Biomedical Ethics. However, in that Chapter, Beauchamp and Childress introduce the ‘rights theory’, previously not mentioned, and bundle different theories, such as virtue ethics and ethics of care, together as Communitarianism.

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virtuous or ‘morally good’ character of the person making a decision.112 Secondly, ethics of care is an approach that came forth out of feminist theories where the differences in decision-making between men and women were analyzed.113 It developed an approach according to which ethical decisions can only be made in the context of the relationship of the person making the decision and the person affected, yet also all of the persons close to that person. Lastly, in casuistry, a purely inductive approach, an ethical decision in a specific case is made by looking at previous similar cases. Much like a precedentbased legal system, conclusions are drawn from the ethical principles having governed previous cases.114 Principles themselves are of lesser importance because casuistry rejects that every decision can be traced back to a principle. Although these contemporary approaches do not necessarily deduce ethical rules from pre-determined ethical principles, they mostly do conform to a certain set of basic principles. 3 Beauchamp and Childress’ Principles of Biomedical Ethics According to Beauchamp and Childress, four principles form the basis of biomedical ethics: respect for autonomy, beneficence, non-maleficence, and justice.115 Though they propose these four principles as bases for decision-making in situations providing ethical dilemmas, the principles do not represent a complete ethical theory due to their inherent abstractness.116 Non-maleficence 112 Roger Crisp & Michael Slote, Virtue Ethics (Oxford University Press, 1997); Martha Nussbaum, Love’s Knowledge – Essays on Philosophy and Literature (Oxford University Press, 1990). For a critical analysis of virtue ethics beyond the ‘everyday professional practice’, consult Holland who asks the question: ‘how do facts about what the virtuous agent would choose regarding a biomedical procedure relate to the correctness of regulatory societal decisions?’ in Stephen Holland, ‘The Virtue Ethics Approach in Bioethics’, 25 Bioethics, 192 (2009). 113 Using the term ‘ethics of care’ to define the perspective of women on development and relationships, Carol Gilligan, In a Different Voice (Harvard University Press, 1982). This was later developed as a deductive theory of ethics based on communitarianism. 114 Jonsen defends the use of casuistry in modern bioethics in Jonsen, ‘Casuistry and Clinical Ethics’. For a criticism of casuistry based on, firstly, the fact that casuistry also presupposes certain principles or maxims, secondly, that case analyses may also lead to conflicting results, and thirdly that casuistry lacks critical distance to identify biases or partialities, see Beauchamp & Childress, Principles of Biomedical Ethics, p. 378–381. 115 Beauchamp and Childress developed their framework in 1979. They have since regularly updated their ideas. The latest edition is of 2009. Beauchamp & Childress, Principles of Biomedical Ethics. 116 Ibid. p. 374.

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and beneficence are traditional principles of medical ethics already discernible in the Hippocratic Oath, whereas autonomy and justice are principles that have gained importance in the bioethical discourse of the twentieth century. The four principles provide ‘an analytical framework intended to express general norms of the common morality that are a suitable starting point for biomedical ethics’.117 Rather than being exact instructions on which principles should prevail when addressing ethical questions, the principles provide general moral guidelines that an individual confronted with an ethical dilemma can use to make a decision. The rather general principles leave room for the person’s own judgment because they require further specification and balancing. Specification means that the principles have to be specified in order to be applicable to a concrete ethical problem. Balancing requires a weighing of the different principles against each other to come to a solution. Beauchamp and Childress anticipate that not all ethical problems have one solution ‘because moral ambiguity is a pervasive feature of moral life’.118 The four principles are drawn from what Beauchamp and Childress term ‘common morality’ which are ordinary, shared moral beliefs that all persons committed to morality hold in common. Theories of common morality119 usually include a plurality of principles which express that common morality. These common moral beliefs, though susceptible for exceptions,120 do not change over time. However, the principles extracted may be adjusted to remain coherent – from them, over time, more specified moral rules are developed. This means that even though communities may develop and adapt different specifications, the underlying principles of common morality remain the same.121 This flexibility is expressed by the principles’ prima facie character and by their specification and balancing which makes them non-absolute.122 Hence, common morality ‘is a pretheoretic moral point of view that transcends local customs and attitudes’.123 Although Beauchamp and Childress do not 117 Ibid. p. 12. 118 Ibid. p. 374. 119 Another example being the theory proposed by William K. Frankena, Ethics, 2nd Ed. (Prentice Hall, 1988). 120 A common exception to the principle not to kill can, of course, be found in armed conflicts and in self-defense. Beauchamp & Childress, Principles of Biomedical Ethics, p. 390. 121 Ibid. p. 387–388. This is often questioned and criticized, for example by Hilde Lindemann, ‘Autonomy, Beneficence and Gezelligheid’, Hastings Center Report, 39 (2009). 122 Beauchamp & Childress, Principles of Biomedical Ethics, p. 14–15. 123 Because it is so relevant for present purposes but was re-formulated in the sixth edition of their book, reference is here made to the previous version. Tom L. Beauchamp & James F. Childress, Principles of Biomedical Ethics, 5th Ed. (Oxford University Press, 2001), p. 403.

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advocate moral relativism, their system of principles based on the common morality is a system of pluralism within the boundaries of the ‘fundamental principles that form the core of morality itself’.124 The common morality is thus common to all cultures and the principles are common to all cultures yet in their specification there may be differences. In the sense that abstract principles are applied to cases, Beauchamp and Childress’ principlism is deductive. However, the fact that the principles can and should also be adjusted according to the circumstances of a question at hand makes it inductive. Taken together, the basic principles and the practical context should form what Beauchamp and Childress call a system of coherence. Based on Rawls’ theory of ‘reflective equilibrium’,125 Beauchamp and Childress argue that a coherent moral framework can be established by constant justification of considered judgments – which are ‘moral convictions in which we have the highest confidence and believe to have the lowest level of bias’ – with more general ethical principles and rules.126 If the interplay of different principles and judgments about practical issues results in incoherence, they have to be adjusted – as often as necessary.127 Yet, coherence alone cannot suffice. The result must also be morally acceptable.128 The basis of all judgments is a set of judgments that ‘are acceptable initially without argumentative support’ which in Beauchamp and Childress’ theory are contained in the common morality.129 These basic judgments, the common morality, should be generally acceptable due to their credibility and trustworthiness proven by their ‘rich history of moral experience’.130 Through specification and justification, specific moral guidelines should be drawn from the principles of common morality. Even though coherence is the goal, some incoherence, as stated above, is inevitable in moral or ethical questions. For example, when dealing with a person on a hunger strike, a physician may believe that the principle of respect for the autonomy of a patient may require absolute adherence to the principle of informed consent but he may also believe that in emergency situations, a physician should do everything medically possible to save a patient. In such a case, specification and justification will not always lead to a 124 Tom L. Beauchamp, ‘The Mettle of Moral Fundamentalism: A Reply to Robert Baker’, 8 Kennedy Institute of Ethics Journal, 389 (1998), p. 392–396. 125 See John Rawls, A Theory of Justice, Rev. Ed. (Oxford University Press, 1999). 126 Beauchamp & Childress, Principles of Biomedical Ethics, p. 382. 127 Ibid. p. 383. 128 Ibid. p. 384–385. 129 Ibid. p. 385. 130 Ibid. p. 385.

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satisfactory result. The lack of specific guidelines and value judgments is one of the main critiques of Beauchamp and Childress’ approach. The four principles that Beauchamp and Childress claim to be the basis of a biomedical ethical framework are respect for autonomy, non-maleficence, beneficence, and justice. Eventually, the four equally important principles can be used in a specific case by analyzing the case in view of each of the four principles and then weighing the results in regard to the case at hand. This should either lead to a decision or it will, inevitably, lead to an ethical dilemma. a Respect for Autonomy The principle of autonomy entails that a person is entitled to determine his own destiny without interference from others. That this requires respect for an individual’s autonomy is based on Kant’s second categorical imperative which determines that we should not use people as means to an end.131 Autonomy is made up of two elements: an individual must have the liberty and the agency to make a meaningful choice.132 This choice does not mean that an individual is obliged to choose. It rather means that any individual has the right to choose her own treatment or participation in research, not a duty. In recognizing a patient’s decision-making rights, a physician has a negative obligation not to control or constrain a patient and a positive obligation to enable that person to act autonomously. Although this may prove difficult in practice, an individual should not be forced to choose or to be informed if she chooses not to use her right. A physician should be aware that the consent to medical care may come in a variety of forms, maybe implicitly or tacitly, and that the capacity or incapacity to make decisions does not mean that the person also has the competence to make decisions. Competence is defined as an ability to perform a task.133 Capacity is judged by physicians or health care specialists, whereas the competence is judged by courts. Although there are different levels of competence, Beauchamp and Childress advocate that there should indeed be a threshold of competence for a meaningful performance of tasks. Most discussions on patients’ autonomy have been dominated by the principle of informed consent. Although Beauchamp and Childress clearly 131 Ibid. p. 349. See Kant, Grundlegung zur Metaphysik der Sitten (mit Kommentar von Christoph Horn, Corinna Mieth und Nico Scarano), p. 61 et seq. 132 Beauchamp & Childress, Principles of Biomedical Ethics, p. 100. 133 Ibid. p. 112. However, Beauchamp and Childress refer to Charles M. Culver & Bernard Gert, Philosophy in Medicine: Conceptual and Ethical Issues in Medicine and Psychiatry (Oxford University Press, 1982), see p. 52 et seq.

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indicate that respect for autonomy is one of their four principles and informed consent only a specification of that principle, they discuss informed consent in great detail. Since the formulation of the principle of consent in the judgment of the Doctors’ Trial known as the Nuernberg Code,134 the attention has moved from minimizing the potential harm of research subjects to generally ensuring the autonomous choice of individuals. Elements of informed consent, according to Beauchamp and Childress, are competence, disclosure, understanding, voluntariness, and consent.135 To ensure the autonomy of their patients, physicians should judged these criteria before carrying out a medical procedure. b Non-Maleficence One of the oldest principles of medical ethics is that of non-maleficence. It is epitomized by the phrase primum nil nocere – first do no harm. This sentence does not stem from the Hippocratic Oath, but the principle can be inferred from the pledge to refrain ‘from what is to [the ill’s] harm or injustice’.136 Beauchamp and Childress distinguish between non-maleficence and beneficence because they entail a different set of obligations: where beneficence requires an active doing good, non-maleficence requires abstaining from inflicting evil or harm. This is specified in rules that include ‘do not kill’ and ‘do not cause pain or suffering’.137 As the principle itself, these rules are prima facie and not absolute. Further developed, the principle of non-maleficence contains the duty for physicians to provide due care which means ‘taking sufficient and appropriate care to avoid causing harm, as the circumstances demand of a reasonable and prudent person’.138 A physicians can be justified in foregoing the provision of due care, but only if the goal he pursues justifies the risks he takes. Beauchamp and Childress furthermore discuss several specifications of the principle of non-maleficence concerning non-treatment in health care. They promulgate a distinction between obligatory and optional 134 The Doctors’ Trial will be discussed in detail in Chapter 3. 135 To these five elements, Beauchamp and Childress furthermore add a recommendation (in the case of a medical procedure) and they split the consent element in two sub-elements, namely decision and authorization (or refusal). Beauchamp & Childress, Principles of Biomedical Ethics, p. 120–121. 136 Translation as used in Miles, The Hippocratic Oath and the Ethics of Medicine. Most probably, the phrase was drawn from the Hippocratic treatise on Epidemics where it says: ‘As to disease, make a habit of two things – to help, or at least to do no harm’. 137 Beauchamp & Childress, Principles of Biomedical Ethics, p. 153. 138 Ibid. p. 153.

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treatment. Primarily, a physician has a prima facie obligation to treat all patients, unless treatment is futile or the burdens thereof outweigh the benefits and the physician has the patient’s or a surrogate’s valid authorization. Coming to a decision not to treat a patient or to aid a dying patient,139 the physician’s motives, the patient’s preferences and the act’s consequences should be considered.140 Overall, non-maleficence, to do no harm, does not mean that the physician is obliged to do good or provide medical care in all situations – in certain situations medical treatment is optional. c Beneficence Not only should physicians not inflict harm on patients and others, they should also take positive steps to ensure the wellbeing of their patients. The principle of beneficence requires ‘a moral obligation to act for the benefit of others’.141 Unlike rules based on the principle of non-maleficence, rules of beneficence need not be impartially followed – a beneficent act is praiseworthy and desirable but it would be naïve to expect individuals to follow this principle at all times concerning strangers as well as persons familiar to them.142 However, because the medical profession is guided by the welfare of patients, this being it’s goal, rationale and justification, beneficence is implicitly assumed from persons working in medical or health care.143 When beneficence collides with a patient’s autonomy,144 physicians often resort to paternalism. Soft paternalism means overriding the choice of a patient whose competence to make an autonomous decision is in doubt. Whereas hard paternalism entails simply overriding a competent patient’s ‘substantially’ autonomous decision. According to Beauchamp and Childress, hard paternalism is only justified in specific cases where the patient is ‘at risk of a significant, preventable harm, [t]he paternalistic action will probably prevent the harm, [t]he projected benefits to the patient of the paternalistic action 139 For their main argument regarding physician assisted suicide and/or euthanasia, see Ibid. p. 185. 140 Ibid. p. 174. 141 Ibid. p. 197. 142 Beauchamp and Childress adjusted this aspect in response to the criticism received by Clouser and Gert. K. Danner Clouser & Bernard Gert, ‘A Critique of Principlism’, 15 The Journal of Medicine and Philosophy, 219 (1990), p. 228–230. 143 Beauchamp & Childress, Principles of Biomedical Ethics, p. 205. 144 An example of a situation in armed conflicts where physicians may faced with a dilemma where they have to balance the principle of respect for autonomy with the principle of beneficence is the question of force-feeding prisoners of war on a hunger strike. Hunger strikes will be discussed subsequently.

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outweigh the risks to the patient, [t]here is no reasonable alternative to the limitation of autonomy, [and t]he least autonomy-restrictive alternative that will secure the benefits and reduce the risks is adopted’.145 Such exceptions to violating a patient’s autonomy based on the principle of beneficence would thus, also in armed conflicts, be justified. That means that physicians should balance their notion of a patient’s interest against the patient’s own will and only in limited situations that meet these criteria can they act based on paternalism. This would most probably exclude all situations where a patient is used in experiments, yet is hotly debated regarding hunger strikes. d Justice The most controversial of Beauchamp and Childress’ four principles is the principle of justice. It requires that access to health care be justly distributed. Not only should there be formal equality – equals should be treated equal and vice versa – but there should also be material principles to ensure equal distribution. Examples are distribution by need, effort, merit, free-market exchange, contribution, or an equal share.146 In order to achieve justice in health care, one could follow one of many theories of justice, for example the egalitarian theory of Rawls147 or the cosmopolitan theory of Pogge.148 Yet Beauchamp and Childress go to great lengths to make clear that not one theory can solve problems of equal distribution of health care. The fair-opportunity rule which entails that persons should get the social benefits they deserve – no more, no less – can be called upon in determining a just distribution.149 Accordingly, radical inequalities in distribution should be eradicated unless a disadvantageous person benefits more from them than without them. Inequalities or even differentiations based on race, gender, nationality or ethnicity are deemed problematic in health care. Yet, health care also should not paternalize vulnerable persons because of their vulnerability. Vulnerability is defined by Beauchamp and Childress as a state where persons lack critical resources or forms of social power and are unable to resist or refuse pressures, especially to enter into medical experiments, which may put them at a significant risk of harm. Generally, Beauchamp and Childress think it unwise to categorically

145 146 147 148

Beauchamp & Childress, Principles of Biomedical Ethics, p. 216. Ibid. p. 243. As for example in Rawls, A Theory of Justice. As explicated in Thomas Pogge, World Poverty and Human Rights: Cosmopolitan Responsibilities and Reforms, 2nd Edition (Polity Press, 2008). 149 Beauchamp & Childress, Principles of Biomedical Ethics, p. 248–250.

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exclude vulnerable person from research and so deprive them of a fair opportunity; for prisoners, however, they deem such paternalism warranted.150 To provide equal access to health care, politics has to allocate funds appropriately, set priorities, and ration health care. In this respect, it is interesting to note that Beauchamp and Childress propose to ration scarce resources by medical rather than social utility.151 This is also relevant in armed conflicts where triage is carried out to determine the order of treatment. In triage, four rules have to be balanced in deciding on the order and extent of treatment: medical needs, medical utility, impersonal mechanisms, and social utility. As long as triage is based on medical criteria and not based on society’s needs such distinctions are warranted. Although Beauchamp and Childress clearly support the egalitarian and utilitarian theories of justice and reject the libertarian theory of justice, they also clearly state that they do not offer a solution to the question of equal distribution of health care but rather raise awareness for elements that may play a role. e Criticism of Principlism The theory espoused by Beauchamp and Childress has often been criticized – most prominently by Clouser and Gert who coined the term ‘principlism’.152 Although Clouser and Gert express their appreciation of some of Beauchamp and Childress’ discussions and conclusions, they generally criticize that principlism is not a complete, adequate moral theory. According to them, principlism rather provides an assemblage of different principles taken from different moral theories that provide a checklist for discussion but do not provide answers to real moral dilemmas. As mere ‘chapter headings’, the principles provide discussions on ‘superficially related topics’, yet they criticize the lack of a meta-principle to determine the relationship between the different principles and of an argument for a moral foundation of the principles. A person facing a morally challenging situation would thus be left with general discussions on four different principles without guidance on how to decide on this basis. An adequate moral theory, according to Clouser and Gert, would include a clear, coherent and comprehensive system that could solve ‘real moral problems that arise in medicine and other fields’.

150 All research should thus balance undue inducements or profits with an awareness of unwarranted paternalism. Ibid. p. 254. 151 Ibid. p. 279. 152 Clouser & Gert, ‘A Critique of Principlism’. All subsequent quotes in this paragraph are from this article.

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Beauchamp and Childress have addressed this criticism.153 In reply to Clouser and Bert’s ‘impartial-rule theory’,154 Beauchamp and Childress clarify that they are skeptical of the overall endeavor and attainability of a single ‘clear coherent and comprehensive’ moral theory. The four principles based on common morality were never meant to provide a comprehensive moral theory because Beauchamp and Childress reject such fundamentalism. They claim that theories do not ‘eliminate all untidiness, complexity, and conflict’. Rather, they deem the principles and the relevant discussions needed to analyze and interpret morally challenging situations. Further, they assert that Clouser and Gert’s ‘impartial-rule theory’ faces the same problems as principlism: rules can also only be specified up to a certain point and cannot anticipate all possible moral conflicts. Ultimately, Beauchamp and Childress prefer principles over rules because principles can still be specified and better express the common morality. 4 Military Medical Ethics Traditionally, ethics played a role in and influenced health law or criminal law, not the laws of armed conflict.155 Medical ethics during armed conflict is thus a phenomenon that is hardly addressed in the ethical or legal discourse. The situation of an armed conflict confronts medical personnel, physicians specifically, with problems that differ from the ethical dilemma’s faced in civilian medicine. When faced with a prisoner of war who decides to go on a hunger strike to protest against the conditions of detainment, the physician is not only faced with a person who will possibly die if not fed, she will also have to think about her duty as a state official or as a member of a humanitarian aid organization.156 The state who is responsible for prisoners of war has a duty to 153 The dialogue between Clouser and Gert and Beauchamp and Childress is very enlightening. In an extensive reply to Clouser and Gert, they defend their four principle approach to biomedical ethics, see Beauchamp & Childress, Principles of Biomedical Ethics, p. 371– 375. Beauchamp and Childress are also defended by other philosophers, for example Oliver Rauprich, ‘Prinzipienethik und Common Morality – Zum kulturübergreifenden Anspruch des Ansatzes von Beauchamp and Childress’, in Nikola Biller-Adorno, et al. (eds), Gibt es eine universale Bioethik? (Mentis Verlag, 2008). 154 Beauchamp and Childress titled it the ‘impartial-rule theory’. Clouser and Gert, together with Culver, explicated their theory in Bernard Gert, et al. Bioethics: A Systematic Approach (Oxford University Press, 2006). 155 See for example the following article that discusses law and bioethics, but concentrates on health law. Wibren van der Burg, ‘Law and Bioethics’, in Helga Kuhse & Peter Singer (eds), A Companion to Bioethics (Blackwell Publishing, 2001). 156 The example of a hunger striker is used because it presents a classic ethical dilemma that will be further discussed below.

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protect their lives which includes a duty to protect their health and ensure medical treatment if necessary.157 Does this duty mean that the physician should disregard the autonomy of the prisoner of war and force feed him, or should the physician respect a competent patient’s extreme decision? There is not a simple answer to this. Nonetheless, ethical principles and theories can be useful to clarify some of the decisions to be made in armed conflict and to raise awareness for the rationale behind such decisions in order to ensure medical care that complies with the main principle of the laws of armed conflict, the principle of humanity. What makes Beauchamp and Childress’ principles of biomedical ethics valuable in situations of armed conflict is that they are based on the common morality which is independent of local customs or attitudes. The principles represent the most basic, shared principles to be used for decision-making in ethical or medical questions in all situations, including armed conflicts. Because the principles do not provide ready-made solutions, they can lead to different medical standards when weighed and specified by physicians from different cultural backgrounds in a specific case.158 Still, they offer a basic framework for decision-making in medical interactions or even ethical dilemmas in armed conflict. a Respect for Autonomy in Armed Conflict The principle of respect for autonomy plays a role in the medical treatment of persons deprived of their liberty and of the wounded and sick when their treatment is not necessarily an emergency but there is room for making an autonomous decision. In an emergency situation, the person to be treated can most probably not make an autonomous decision.159 It is generally accepted, that medical emergency procedures require physicians to take all steps deemed necessary to save a patient’s life in accordance with the principles of beneficence and non-maleficence. Yet, it has more generally been contested whether members of armed forces or persons deprived of their liberty can be considered autonomous agents. As combatants, members of a party’s armed forces cannot exercise their full right to self-determination. The authorities determine where they are to be deployed,

157 See common article 3 gcs and articles 13 and 15 gc III. 158 This is also the Baccino-Astrada’s conclusion, yet she bases it on international humanitarian law rather than medical ethics as such. Baccino-Astrada, Manuel des Droits et Devoirs du Personnel Sanitaire lors des Conflits Armés, p. 39. 159 Beauchamp & Childress, Principles of Biomedical Ethics, p. 124.

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what their mission is to be, and at what point their assignment ends.160 During armed conflicts, they may also lawfully be killed.161 In certain respects, their freedom to make autonomous choices is restricted because by being part of the armed forces, they have certain obligations in defending their party to the armed conflict that may not be compatible with a free choice. However, this cannot explain why members of armed forces who are hors de combat due to sickness or wounds and who should generally be respected162 should not be able to autonomously decide on non-emergency medical treatment. Despite being non-autonomous in questions of life and death when on mission, all capable and competent persons should be given free choice in their medical care. This should equally apply to persons deprived of their liberty. Nonemergency medical procedures should require informed consent. Medical personnel and physicians should respect the patient as an autonomous agent. In non-emergency procedures, they should weigh the principle of autonomy, including the principle of informed consent, against the other principles of medical ethics. The principle of autonomy, including informed consent, gained importance in the discussions of medical ethics in the late twentieth century. Hence, in Geneva Law predating the modern discussions on bioethics, informed consent is not a requirement for medical treatment. Nowhere is it stated that those requiring medical care should be respected in their autonomous decisionmaking. Autonomy is only indirectly entailed in the obligation to respect the wounded and sick and prisoners of war and their honor. Medical procedures in accordance with article 11 (1) ap I do not require the consent of the persons to be treated.163 The state of health of a patient is the only criterion for treatment.164 The icrc feared that an individual’s consent would be used as an argument to justify unwarranted medical procedures165 – something that is

160 Combatants who joined the armed forces voluntarily, consented to this when they joined, whereas conscripts did not voluntarily consent to these limitations. 161 Pictet (ed), Commentary I, p. 136. See also Dieter Fleck (ed), The Handbook of International Humanitarian Law, 2nd Ed. (Oxford University Press, 2008), p. 80, para. 301. 162 This is also one of the main humanitarian principles in the law of armed conflict, see articles 12 gc I and II, 13 gc III, 16 gc IV, 10 ap I and 7 ap II. 163 Article 11 ap I will be elaborately discussed in Chapter 2. 164 Comparable to article 13 gc III. 165 The Commentary to article 5 (2)(e) ap II states that ‘this provision does not mention the patient’s consent. However, even with such consent, no procedure that is not based on medical grounds can be allowed’. Sandoz, et al. (eds), Commentary to the Additional Protocols, para. 4594.

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indeed to be prevented. It was thus only established that the consent of a person does not justify the prohibited procedures listed in article 11 (2) ap II. But the icrc did not realize that to respect the autonomy of persons requiring medical care, affirmative informed consent should always be required.166 At the Diplomatic Conference, many considered the informed consent of an individual indispensable for surgical operations.167 However, others opined that, in armed conflicts, it would be impossible to attain the (written) informed consent of every person being surgically operated on.168 As a solution, the Dutch delegate suggested that ‘under battle conditions, […] the matter should be left to the ethical conscience of the medical practitioner, who would always act in the interests of the patient’.169 The conscience of medical personnel was considered a sufficient safeguard. Eventually, the consent of a person was included in article 11 (5) ap I concerning surgical operations.170 Here, the consent requirement is framed negatively: the patient can refuse any operation even if deemed in his interest by a physician. In case of such a refusal, the medical personnel should endeavor to attain the refusal in the form of a written statement. Aware of the many difficulties with obtaining consent in battlefields or camps, the option of refusal, especially in written form, was to protect the physician carrying out the procedure rather than the patient.171 The icrc Commentary recognizes the ethical dilemma that the question of consent poses and suggest that even in times of peace there is no general agreement on the exact requirement of consent.172 It suggests the treating physician should 166 This is also Baccino-Astrada’s interpretation. Baccino-Astrada, Manuel des Droits et Devoirs du Personnel Sanitaire lors des Conflits Armés, p. 42. 167 It was first raised in connection with the draft for article 10 ap I, O.R. XI, CDDH/II/SR.9, Statement by delegate Al-Barzanchi (Iraq), p. 68. Delegate and Rapporteur Bothe suggested to move the discussion on the issue of consent to the discussion on draft article 11. p. 69. 168 For example, O.R. XI, CDDH/II/SR.10, Statement by delegate Krasnopeev (ussr), p. 75. O.R. XI, CDDH/II/SR. 14, Statement of Delegate Solf (usa), p. 123. The Danish delegate even proffered that obtaining informed consent of a patient before a surgical operation was ‘contrary to normal medical practice in his own and other European countries’ – he probably meant in cases of emergency. O.R. XI, CDDH/II/SR.10, Statement by delegate Schultz (Denmark), p. 78; O.R. XI, CDDH/II/SR.14, Statement by delegate Schultz (Denmark), p. 124. 169 O.R. XI, CDDH/II/SR.14, Statement by delegate Deddes (Netherlands), p. 125. His position was supported by delegate Krasnopeev (ussr), p. 126. 170 There is no equivalent provision in Additional Protocol II. 171 O.R. XI, CDDH/II/SR.23, Statement by delegate Krasnopeev (ussr) and delegate Bogliolo (France), p. 226. 172 Sandoz, et al. (eds), Commentary to the Additional Protocols, para. 495.

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decide ‘to the best of his conscience and without incurring the risk of being accused of committing a breach of the Protocol’.173 On the battlefield, where mostly emergency medical care is provided, it may indeed be difficult to attain a wounded person’s informed consent to a medical procedure. Yet especially in the context of article 11 ap I, dealing with persons of the adversary party who are deprived of their liberty, not all medical necessities may be emergencies. A modern interpretation of international humanitarian law and its reference to medical ethics should thus include autonomy and the principle of informed consent. b Non-Maleficence in Armed Conflict According to the principle of non-maleficence, physicians and medical personnel should refrain from inflicting harm or injustice. This principle can easily be transferred to situations of armed conflict. During armed conflicts physicians will be confronted with many wounded and sick, both combatants and civilians, and others, such as prisoners of war; if they cannot help them, at least they should not harm them. This is also integral, for example, to the absolute prohibition of torture and cruel, inhuman, and degrading treatment in international humanitarian and human rights law.174 Physicians have a prima facie obligation to treat all protected persons in need of medical attention. This obligation does not include treatment that is futile or where the burdens for the person to be treated outweigh the benefits. This could be the case when the physician is faced with a wounded combatant whose wounds require care that is beyond the possibilities and resources of the physician at that point in time. In such a case, with the patient’s or a surrogate’s valid authorization or, when such consent is not attainable because of an emergency, the physician can decide not to treat. In such a case, this would not be a violation of the principle of non-maleficence. Nonetheless, although a physicians is not obliged to do good or provide medical care in all situations or against all odds, in essence the physician should provide due care. She should always respect persons hors de combat and not harm them in any way.175 c Beneficence in Armed Conflict By their profession, physicians are under a moral obligation to act to the benefit of their patients. Also in armed conflicts, physicians should take positive steps to ensure the wellbeing of all wounded and sick or others who need med173 Ibid. para. 496. 174 See for more detail Chapters 2 and 5. 175 Articles 12 gc I and II, 14 gc III, 16 (1) gc IV, 10 ap I and 7 ap II.

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ical treatment or care. International humanitarian law has integrated the principle of beneficence where it determines that all protected persons be treated humanely and that medical treatment should be in their best interest or in the interest of their health.176 At first sight, these provisions disregard the principle of respect for autonomy. This is clearest in article 13 gc III which explicitly states that medical personal, the benefactor, can experiment on a prisoner of war when this is ‘carried out in [prisoner of war’s] interest’. The icrc Commentary to the article explains that: The Convention, of course, refers only to experiments not justified by the medical treatment of the prisoner concerned. It does not prevent doctors from using treatment for medical reasons with the sole object of improving the patient’s condition. It must be permissible to use new medicaments and methods invented by science, provided that they are used only for therapeutic purposes. The prisoners must not in any circumstances be used as “guinea-pigs” for medical or scientific experiments.177 Rather paternalistically, the consent of the patient is irrelevant if the physician deems the procedure necessary ‘for therapeutic purposes’.178 Hence, because the principle of beneficence is compatible with the laws of armed conflict and plays a role in such situations, the paternalistic rationale of international humanitarian law should be re-interpreted so as to provide ethically sound medical care. d Justice in Armed Conflict The principle of justice plays an important role in many decisions that a physician will have to take in armed conflicts. Triage, where a physician has to decide whom to treat and in which order considering limited resources and patients of different affiliations, is generally a scenario, irrespective of the concrete case, where the physician is faced with a question of justice: how to administer adequate medical care to the largest number of people with limited resources. In emergency situations, like the shelling of a city or active combat in the field, where many wounded and sick civilians and combatants need treatment, they will most probably consent to treatment. The principle of autonomy would be 176 Articles 13 gc III, 32 gc IV, 11 (1) ap I and 5 (2)(e) ap II. 177 Jean de Preux (ed), La Convention de Genève relative au Traitement des Prisonniers de Guerre (Comité Internationale de la Croix-Rouge, 1958), p. 140. 178 According to Beauchamp and Childress, this would be hard paternalism that can only be justified when certain conditions are met, see above.

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of lesser relevance. Furthermore, there will hardly be a question of deliberately harming patients – but it is rather a question whether the physician’s decision on who to treat and who not to treat meets the standards of justice. Pursuant to international humanitarian law, all wounded and sick should be treated equally. Differentiation is only justified when based on medical reasons. This means that the material principle of distribution in international humanitarian law is medical need. However, there is always also an element of social utility because physicians will need to ensure that the available resources suffice for the greatest number of patients who can be treated successfully. Whereas in ethical theory the provision of medical care is an absolute obligation according to the principle of beneficence, in international humanitarian law it is restricted by the exigencies of a situation. Article 10 (2) ap I explicitly states that medical care should be provided ‘to the fullest extent practicable and with the least possible delay’ – thus complying with the requirements of a just distribution of medical care in accordance with the principle of justice. More details on the order of treatment, triage or the distribution of limited resources are not specifically provided in Geneva Law. D

Specific Areas of Concern in Recent Armed Conflicts

What is clear from the above examination of the relevant medical actors in armed conflict, their guiding principles, and medical ethics is that different medical actors all face different problems in situations of armed conflict. Generally, their impartiality, independence and neutrality should enable them to carry out humanitarian work during armed conflicts. Besides international humanitarian law, their interaction with the victims of armed conflict should be guided by medical ethics on the one hand and the principle of humanity on the other. International humanitarian law which has been inspired by the above discussed guiding principles determines that physicians can refuse orders to violate medical ethics.179 The practical difficulties that may arise when medical ethics and physicians’ work in armed conflict collide will be demonstrated in the two examples below. Awareness of such ethical dilemmas provides a basis for the subsequent elaborations and discussions on the intersection of medical ethics and international humanitarian law. The legal assessment will be carried out where relevant in other sections of the book.

179 In articles 16 ap I and 10 ap II.

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1 Interrogations and Torture A recurring ethical dilemma for physicians in armed conflict concerns their role in interrogations of persons deprived of their liberty in connection with an armed conflict. They may be prisoners of war, civilians deemed dangerous to the security of an adverse party, or civilians actively participating in hostilities. The requirements for detention and interrogation and their rights to protection can be found in international humanitarian law, namely Geneva Conventions III and IV and common article 3 to the Geneva Conventions, and in international human rights law, namely the International Covenant on Civil and Political Rights and the Convention against Torture.180 Still, coercion or torture in interrogations is believed to facilitate and expedite interrogations. The practice, though prohibited in most countries since the period of enlightenment, still continues to be practiced to elicit information from rebels, dissidents, prisoners and others in many parts of the world. The coercive interrogations and ill-treatment have a physical and mental impact on those so treated.181 Most experts agree that such treatment is hardly ever necessitated by a ticking-time-bomb scenario and in 99% of the cases futile.182 Physicians have always played a role in such practices – to keep the tortured person alive or to regulate, increase, or determine the level of pain and endurance.183 Although the involvement of physicians in torture is nothing new, the extent of medical involvement in the coercive and at times torturous interrogations of persons detained in United States (u.s.) detention facilities and 180 International Covenant on Civil and Political Rights, A/RES/2200A(XXI) of 16 December 1966 and Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, A/RES/39/46 of 10 December 1984. 181 Generally, harsh interrogations have consequences: severe anxiety, post traumatic stress disorder, cognitive impairment, depression, and even psychotic symptoms. Leonard S. Rubenstein, ‘First, Do No Harm: Health Professionals and Guantánamo’, 37 Seton Hall Law Review, 733 (2007), p. 736. 182 Miles, Oath Betrayed, p. 17; Sands, Torture Team, p. 136–157. Conversely, arguing in favor of exceptions to a strict prohibition of physicians’ involvement in torture in view of modern terrorism, see Edmund G. Howe, ‘A Response to Drs. Sidel and Levy’, in Thomas E. Beam & Linette R. Sparacino (eds), Military Medical Ethics (Office of the Surgeon General at tmm Publications, 2003). In a similar vein, Gross accepts the need for ‘interrogational torture’ that harms the ‘self-esteem’ of a terrorist in exceptional cases. Gross, Bioethics and Armed Conflict, p. 211–243. 183 Medical supervised torture has also been reported in Israel, see several accounts in Neve Gordon & Ruchama Marton (eds), Torture – Human Rights, Medical Ethics and the Case of Israel (Zed Books, 1995). Previously, medically supervised torture was also reported in Argentina during the military junta’s rule. See, Mylius, ‘Folter unter ärztlicher Aufsicht’.

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prisons that came to light in 2004 was surprising because of the u.s.’ significant role in the development of medical ethics and the prohibition of torture.184 a Factual Background On 2 December 2002, u.s. Secretary of Defense Donald Rumsfeld approved sixteen new ‘counter-resistance techniques’ for the interrogation of detainees at Guantánamo Bay.185 They included the use of stress positions, isolation for up to thirty days, deprivation of light, twenty hour interrogations, removal of comfort items and clothing, forced grooming, the use of individual phobias and ‘mild, noninjurious physical contact’, and the denial of ‘medical visits of a non-emergent

184 The term ‘detainee’ will be used to include a variety of persons deprived of their liberty. It is not meant to imply any legal conclusion as to their official status. These persons were captured in the ‘war on terror’ which comprises the armed conflicts in Afghanistan and Iraq, and also other actions against individuals allegedly involved with armed, terrorist groups all over the world. Persons were detained for security reasons, because they were suspected of having committed terrorist acts against the usa, or because they were thought to have information relevant to the u.s. efforts. All persons deprived of their liberty should either be treated as prisoners of war (in accordance with Geneva Convention III), as civilians (in accordance with Geneva Convention IV), or as protected persons hors de combat (in accordance with common article 3 gcs) and in accordance with international human rights and customary law. Others who were not captured within an armed conflict should be treated in accordance with domestic law and with international human rights law. The category of ‘unlawful enemy combatants’ which was adopted by the u.s. government (see John C. Yoo & Robert J. Delahunty, ‘Memorandum for William J. Haynes II, Re: Application of Treaties and Laws to Al Qaeda and Taliban Detainees, 2002’, in Karen J. Greenberg & Joshua J. Dratel (eds), The Torture Papers – The Road to Abu Ghraib (Cambridge University Press, 2005)) is not considered legally relevant for the arguments in this book as it has been widely rejected in legal scholarship. For a representative sample, see Marco Sassòli, ‘Guantanamo, Detainees’, in Rüdiger Wolfrum (ed), Max Planck Encyclopedia of Public International Law (Oxford University Press, 2012). For an overview, see icrc Statement, ‘The Relevance of ihl in the Context of Terrorism’, icrc Homepage (2005). As the question on the status of combatants is beyond the scope of this book, it will simply consider all persons deprived of their liberty as protected by Geneva Convention III or IV or by general standards of human rights. 185 The methods had originally been suggested by Guantánamo Bay Joint Task Force 170. William J Haynes II, ‘Office of the Secretary of Defense, Action Memo for Secretary of Defense, Subject: Counter-Resistance Techniques, 27 November 2002 (approved by Donald Rumsfeld on 2 December 2002)’, in Karen J. Greenberg & Joshua J. Dratel (eds), The Torture Papers – The Road to Abu Ghraib (Cambridge University Press, 2005).

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nature’.186 Allegedly, Guantánamo Bay officials had requested new techniques to elicit information from Mohammed Al Qahtani, said to be the twentieth hijacker of 9/11.187 Certain techniques required medical clearance.188 A blanket confirmation of the use of ‘counter-resistance’ strategies was rescinded by Rumsfeld in January 2003 although the use of such methods could still be requested in individual cases.189 For the Central Intelligence Agency (cia), so-called ‘enhanced’ interrogation techniques that were medically supervised continued to apply.190 186 See Jerald Phifer, ‘Memorandum for Commander Joint Task Force 170, Subject: Request for Approval of Counter-Resistance Strategies, 11 October 2002’ in ibid. p. 227 et seq. The background to the legal developments can be found in the excellently researched book: Sands, Torture Team. ‘Non-emergent’ medical visits are probably all medical procedures that are not emergency procedures. 187 This theory is contested by Sands who believes the impetus for new, aggressive techniques to have come from the Department of Defense, not Guantánamo Bay. Sands, Torture Team, p. 272 et seq. 188 The accompanying legal brief recommended that ‘[…] all proposed interrogations involving category II and III methods must undergo a legal medical, behavioral science and intelligence review prior to their commencement’. Diane E. Beaver, ‘Memorandum for Commander, Joint Task Force 170, Subject: Legal Brief on Proposed Counter-Resistance Strategies, 11 October 2002’, in Karen J. Greenberg & Joshua J. Dratel (eds), The Torture Papers – The Road to Abu Ghraib (Cambridge University Press, 2005), p. 235, para. 5. 189 Donald Rumsfeld, ‘Memorandum for the Commander of u.s. Southern Command, Subject: Counter-Resistance Techniques in the War on Terrorism, 16 April 2003’, in ibid. 190 Even in 2003, the cia found i.a. ‘waterboarding’, sleep deprivation, stress positions, slaps, and others to be legitimate: ‘Medical clearance and supervision is recommended to prevent torture claims: The interrogation of al-Qa’ida detainees does not constitute torture within the meaning of section  2340 where the interrogators do not have the specific intent to cause “severe physical or mental pain or suffering.” The absence of specific intent (i.e., good faith) can be established through, among other things, evidence of efforts to review relevant professional literature, consulting with experts, reviewing evidence gained from past experience where available (including experience gained in the course of u.s. interrogations of detainees), providing medical and psychological assessments of a detainee (including the ability of the detainee to withstand interrogation without experiencing severe physical or mental pain or suffering), providing medical and psychological personnel on site during the conduct of interrogations, or conducting legal and policy reviews of the interrogation process (such as the review of reports from the interrogation facilities and visits to those locations). A good faith belief need not be a reasonable belief; it need only be an honest belief’. (emphasis added) in Memorandum from Scott W. Muller, cia Office of General Counsel, to Jack L. Goldsmith III, Assistant Attorney General, Office of Legal Counsel, Department of Justice with Bullet Points containing Legal Principles Applicable to cia Detention and Interrogation of Captured Al-Qa’ida Personnel (2 March 2003). See also Central Intelligence Agency, Inspector General, Special Review: Counterterrorism Detention and Interrogation Activities (September 2001–October 2003) (2003-7123-IG).

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After a Working Group, commissioned by Rumsfeld, in April 2003 affirmed the legality of the use of ‘more aggressive counter-resistance techniques’, a new Memorandum allowed the use of similar techniques on ‘unlawful combatants’, including environmental and dietary manipulation, sleep adjustment, and isolation.191 As a safeguard, the following was required: (iii) the detainee is medically […] evaluated as suitable (considering all techniques to be used in combination) […] (v) a specific interrogation plan (including reasonable safeguards, limits on duration, intervals between applications, termination criteria and the presence or availability of qualified medical personnel) has been developed; (vi) there is appropriate supervision and (vii) there is appropriate specified senior approval for use with any specific detainee (after considering the foregoing and receiving legal advice).192 Limits to the cia’s enhanced interrogation techniques were indeed provided. They were drafted by its Office of Medical Services (oms) in 2003 and regularly updated.193 They determined the exact medical limits of these techniques, for example when exposure to cold temperatures was used, physicians were to monitor the development of hypothermia or when exposure to noise level was used it was to be ‘just under the decibel levels associated with permanent hearing loss’.194

191 It is not clear why Rumsfeld’s Memorandum of 16 April 2003 did not include all nine techniques the Working Group deemed appropriate in exceptional circumstances. It excluded eight: prolonged interrogations, forced grooming, prolonged standing, sleep deprivation, physical training, face and stomach slaps, forced nudity, and increased anxiety. Working Group on Detainee Interrogations in the Global War on Terrorism, ‘Working Group Report: Assessment of Legal, Historical, Policy, and Operational Considerations, 4 April 2003’, in Karen J. Greenberg & Joshua J. Dratel (eds), The Torture Papers – The Road to Abu Ghraib (Cambridge University Press, 2005), p. 340–347. 192 Donald Rumsfeld, ‘Memorandum for the Commander of u.s. Southern Command, Subject: Counter-Resistance Techniques in the War on Terrorism, 16 April 2003’, in ibid. 193 Central Intelligence Agency, Office of Medical Services, Guidelines on Medical and Psychological Support to Detainee Rendition, Interrogation and Detention (17 May 2004 (updated December 2004)). The guidelines are discussed in Leonard S. Rubenstein & Stephen N. Xenakis, ‘Roles of cia Physicians in Enhanced Interrogation and Torture of Detainees’, 304 Journal of the American Medical Association, 569 (2010). 194 Rubenstein & Xenakis, ‘Roles of cia Physicians in Enhanced Interrogation and Torture of Detainees’.

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Although u.s. Army Field Manual (fm) 34–52 allowed for, amongst others, the ‘futility’, ‘fear-up harsh’ and ‘pride-and-ego approaches’195 and determined that all wounded and sick detainees were to be cleared for interrogation by health services,196 the ‘counter-resistance techniques’ went far beyond the interrogation techniques listed in fm 34–52. The traditional interrogation techniques were never coercive and inhuman as the newly approved ‘counter-resistance techniques’ were, and medical clearance was to benefit the detainee and not the interrogators. fm 34–52 explicitly prohibited ‘acts of violence or intimidation, including physical or mental torture, threats, insults, or exposure to inhuman treatment as a means or aid to interrogation’ against all detained persons.197 In April 2004, the publication of photographs of humiliated prisoners in Abu Ghraib triggered widespread reactions. There was a general outcry over the treatment of persons deprived of their liberty by the u.s. in Afghanistan, Iraq, Guantánamo Bay, and other undisclosed locations in connection with the ‘war on terror’ and, more specifically, over their treatment and interrogation techniques used which had been coercive and at times even tantamount to torture.198 The ill-treatment, often medically supervised by physicians in charge of a detainee’s health, and more direct medical involvement in interrogations raised concerns in the medical, ethical, and legal communities.199 In

195 The ‘fear-up harsh approach’ entails that an interrogator raises his voice and throws things around the room to convince the detainee that there is something to fear so he should cooperate. fm 34–52 warns that threats and coercion would violate article 17 gc III and furthermore cautions that the approach is often a ‘dead end’. Department of the Army, Field Manual 34–52: Intelligence Interrogation, fm 34–52 (28 September 1992), p. 3–16. 196 See Ibid. p. 2–12; 2–26. For all other prisoners of war, physical conditions should be considered by the interrogator prior to interrogations. Army, Field Manual 34–52: Intelligence Interrogation, p. 3–9. fm 34–52 does not establish how the interrogator should do this. Medical clearance is not mentioned concerning interned civilians, see Army, Field Manual 34–52: Intelligence Interrogation, p. D-1 – 2. 197 Army, Field Manual 34–52: Intelligence Interrogation, p. 1–8. 198 This was the conclusion reached concerning Guantánamo Bay by five un Special Rapporteurs in Leila Zerrougui et al., Report on the Situation of Detainees at Guantánamo Bay, Doc. No. E/CN.4/2006/120 (27 February 2006), para. 52. 199 Representative for some of the medical community’s concerns: Lifton, ‘Doctors and Torture’; Bloche & Marks, ‘Doctors and Interrogators at Guantanamo Bay’; Bloche & Marks, ‘When Doctors go to War’; Okie, ‘Glimpses of Guantanamo’; Annas, ‘Unspeakably Cruel’; Sands, Torture Team; Sherman, ‘From Nuremberg to Guantánamo’; Marks, ‘Doctors as Pawns?’; Rubenstein & Xenakis, ‘Roles of cia Physicians in Enhanced Interrogation and Torture of Detainees’.

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June 2004, the u.s. Supreme Court decided in Rasul v. Bush that Guantánamo Bay detainees could bring habeas corpus challenges concerning their detention before u.s. civil courts.200 To outlaw aggressive interrogation techniques and the ill-treatment of persons deprived of their liberty in the ‘war on terror’, the Detainee Treatment Act was adopted in 2005.201 It called for the strict adherence to fm 34–52 to implement uniform standards for interrogation of persons under the detention of the Department of Defense, and the prohibition of cruel, inhuman, or degrading treatment or punishment of persons in custody or under control of the u.s. government. Moreover, as a response to increased criticism of the involvement of medical personnel, in June 2005 the Medical Program Principles and Procedures for the Protection and Treatment of Detainees in the Custody of the Armed Forces of the United States (Medical Program 2005) was published.202 It contained principles to be followed by all u.s. armed forces medical personnel. According to the Medical Program 2005, medical personnel were not to assist or participate in, or certify fitness for interrogations in violation of ‘applicable law’. This principle did not apply to medical personnel in ‘non-treatment activities’, meaning psychologists and psychiatrists working in Behavioral Science Consultation Teams (bscts) or forensic pathologists. Furthermore, medical confidentiality could be violated for permissible purposes, including ‘lawful […] intelligence or national security related activity’. With the Supreme Court decision in Hamdan v. Rumsfeld in 2006,203 ‘[t]he American violations of Geneva at Guantánamo were brought to an end’.204 It was (re-) established that article 3 of the Geneva Conventions should apply to all persons deprived of their liberty.205 Common article 3, to be discussed in Chapter 2, prohibits torture, cruel treatment, and outrages upon personal dignity. The three largest medical associations, the American Medical Association, the American Psychiatric Association, and the World Medical

200 Supreme Court of the United States, Shafiq Rasul, et al. v. George W. Bush, President of the United States, et al.; Fawzi Khalid Abdullah Fahad Al Odah, et al. v. United States, et al. [2004]. 201 The Detainee Treatment Act 2005 was based on an amendment by Senator John McCain and others. 202 Assistant Secretary of Defense for Health Affairs, Medical Program Principles and Procedures for the Protection and Treatment of Detainees in the Custody of the Armed Forces of the United States, ha Policy 05–006 (3 June 2005). 203 Supreme Court of the United States, Salim Ahmed Hamdan v. Donald H. Rumsfeld, Secretary of Defense, et al. [2006]. 204 Sands, Torture Team, p. 231. 205 u.s. Supreme Court, Hamdan v. Rumsfeld, Opinion Justice Stevens, p. 1154.

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Association, amended their guidelines to explicitly prohibit medical involvement in interrogations.206 Upon public critique,207 the Medical Program 2005 was replaced in 2006 by the Medical Program Support Detainee Operations.208 Without bringing ‘significant change’,209 the Medical Program 2006 furthers the distinction between the medical personnel in a ‘provider-patient relationship’ and those ‘involved in non-treatment activities’. The latter are excluded from engaging in a ‘professional provider-patient treatment relationship with detainees’. Medical personnel are to be in charge of medical screening and monitoring of detainees for interrogations, whereas Behavioral Science Consultants (bscs) supervise, conduct or direct interrogations and ‘advise authorized personnel performing lawful interrogations by providing psychological assessments of detainees’. bscts are mainly composed of psychologists, but physicians, namely psychiatrists, can be assigned to such duties if necessary. Furthermore, fm 34–52 was rescinded and replaced by fm 22–2.3.210 fm 22–2.3 prohibits a number of actions previously used in interrogations, namely forced nudity, ‘waterboarding’, the use of physical pain and hoods over the heads of detainees, the use of military working dogs, and the deprivation of medical care.211 Pursuant to the Medical Program 2006 and fm 22–2.3, medical personnel still have the task of clearing wounded and sick detainees for, and monitoring their health during, interrogations, although fm 22–2.3 determines that ‘[h]ealth care providers shall not be placed in a position to advise on the application or duration of interrogation approach techniques’.212 Hence, the role of medical personnel in

206 The only organization to have been hesitant was the American Psychological Association. In 2008 it also prohibited the involvement of psychologists in interrogations but only when persons are ‘held outside of, or in violation of, either international law […] or the us Constitution’. See 2008 APA Petition Resolution Policy. 207 See for example Leonard S. Rubenstein, et al. ‘Coercive us Interrogation Policies: A Challenge to Medical Ethics’, 294 Journal of the American Medical Association, 1544 (2005); Bloche & Marks, ‘Doctors and Interrogators at Guantanamo Bay’; and Matthew K. Wynia, ‘Breaching Confidentiality to Protect the Public: Evolving Standards of Medical Confidentiality for Military Detainees’, 7 The American Journal of Bioethics, 1 (2007). 208 Department of Defense, Medical Program Support for Detainee Operations, DoDI 2310.08E (6 June 2006). 209 Rubenstein, ‘First, Do No Harm’, p. 742. 210 Department of the Army, Field Manual 22–2.3: Human Intelligence Collector Operations, fm 2–22.3 (fm 34–52) (6 September 2006). 211 Ibid. para. 5–75. 212 Ibid. para. 5–91.

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interrogations remains unchanged while the nature of interrogations should have changed. The use of extensive sleep deprivation, stress positions, environmental manipulation, intense fear, forced nudity, humiliation, force-feeding, ‘waterboarding’, and other methods was confirmed by u.s. Army reports213 and reports by the media and independent outsiders, such as the icrc or Physicians for Human Rights.214 The icrc has repeatedly visited Guantánamo Bay yet has kept its findings confidential.215 It remains to be seen what the revelations in 2014 concerning cia interrogations that are contained in a u.s. Senate Select Committee on Intelligence report will reveal on the role of physicians in these interrogations.216 213 For an extensive collection of backgrounds documents, see American Civil Liberties Union Homepage: Accountability for Torture, at http://www.aclu.org/accountability/. 214 The icrc found that ‘physical and psychological coercion were used by the military intelligence in a systematic way to gain confessions and extract information or other forms of cooperation from persons who had been arrested in connection with suspected security offences or deemed to have an “intelligence value”’. This occurred mostly in the early phases of internment. International Committee of the Red Cross, ‘Report on the Treatment by the Coalition Forces of Prisoners of War and Other Protected Persons by the Geneva Conventions in Iraq during Arrest, Internment and Interrogation, 2004’, in Karen J. Greenberg & Joshua J. Dratel (eds), The Torture Papers – The Road to Abu Ghraib (Cambridge University Press, 2005), p. 393. The icrc Report of 2004 does not allege any unethical or unlawful behavior by medical personnel. This changed with a report by the icrc of 2007 in which the icrc concludes that ‘[t]he alleged participation of health personnel in the interrogation process and, either directly or indirectly, in the infliction of ill-treatment constituted a gross breach of medical ethics and, in some cases, amounted to participation in torture and/or cruel, inhuman or degrading treatment’. icrc, Report on the Treatment of Fourteen “High-Value Detainees” in cia Custody, p. 26–27. Furthermore, unethical and unlawful behavior of medical personnel is also charged by Farnoosh Hashemian & Physicians for Human Rights, Broken Laws, Broken Lives – Medical Evidence of Torture by us Personnel and Its Impact (June 2008). 215 The icrc has visited the u.s. Army detention facilities at Guantánamo Bay since January 2002, see ‘Persons detained by the u.s. in Relation to Armed Conflict and the Fight against Terrorism – The Role of the icrc’, icrc Homepage (2010). In the most recent Annual Report, it becomes obvious that next to icrc visits to Guantánamo Bay, the preferred course of action of the icrc in respect to Guantánamo Bay remains confidential dialogue with the u.s. authorities, while also publishing some information on the content and quality of the dialogue. International Committee of the Red Cross, Annual Report 2012, p. 402. 216 See Greg Miller, Adam Goldman, & Ellen Nakashima, ‘cia misled on interrogation program, Senate report says’, The Washington Post (1 April 2014); Greg Miller & Adam Goldman, ‘Senate panel votes to release cia interrogation report’, The Washington Post (3 April 2014). At time of writing, the report was not yet available to the public, although the u.s. Senate Select Committee on Intelligence had voted for its declassification.

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The different aspects of medical involvement can be illustrated by using the interrogation of Mohammed Al Qahtani at Camp X-Ray in Guantánamo Bay in 2002–2003 as an example.217 An interrogation log documents two months of aggressive interrogations. During most of that time, he was interrogated for twenty hours a day, kept in an under-cooled wooden shack, and generally humiliated by the interrogators.218 Due to the fact that Al Qahtani regularly refused food and water, he suffered from dehydration, constipation, and swelling of the limbs. After Rumsfeld’s approval of the new ‘counter-resistance techniques’ on 2 December 2002, Al Qahtani’s treatment worsened. His sleeping rhythm was, for example, changed from four hours at night, to four or less hours during the day. The Schmidt Furlow Report commissioned by the u.s. Army after allegations of detainee abuse by the Federal Bureau of Investigation (fbi) stated the following: [T]he […] creative, aggressive, and persistent interrogation of the subject of the first Special Interrogation Plan resulted in the cumulative effect being degrading and abusive treatment. Particularly troubling is the combined impact of the 160 days of segregation from other detainees, 48 of 54 consecutive days of 18 to 20-hour interrogations, and the creative application of authorized interrogation techniques.219 Despite this evaluation, the Schmidt Furlow Report did not find the treatment inhuman. b The Role of Physicians It emerged that physicians at u.s. detention facilities and sites had been involved in coercive interrogations in three different, yet at times overlapping 217 Al Qahtani became known as ‘Detainee 063’ when his interrogation log was published in June 2005. Adam Zagorin & Michael Duffy, ‘Inside the Interrogation of Detainee 063’, Time Magazine, 26 (3 March 2006). 218 This was also the opinion of other interrogators present at Guantánamo Bay, namely Naval Criminal Investigative Service (ncis) (see the transcript of an interview with ncis psychologist, Michael Gelles, on Torturing Democracy (National Security Archive – Washington Media Associates), at http://torturingdemocracy.org/) and fbi interrogators (see Department of Justice – Office of the Inspector General, A Review of the fbi’s Involvement in and Observations of Detainee Interrogations in Guantánamo Bay, Afghanistan, and Iraq (May 2008)). 219 Mark Lt. Gen. Schmidt & John Brig. Gen. Furlow, Army Regulation 15–16: Final Report: Investigation into fbi Allegations of Detainee Abuse at Guantánamo Bay, Cuba Detention Facility (1 April 2005 (amended 9 July 2005)), p. 20.

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roles.220 Mainly, physicians in interrogations carried out strictly medical tasks by monitoring the health of detainees and intervening when necessary.221 As Al Qahtani’s interrogation log shows, medical checks were conducted on a daily, at times almost hourly basis. They were mostly carried out by u.s. Navy corpsmen who also administered intravenous fluids against dehydration and drew blood,222 yet physicians were called regularly when his physical condition deteriorated.223 At one point, Al Qahtani was hospitalized but released by the physicians after having spent twenty-four hours in the hospital. Some of the medical procedures conducted in the interrogation room, as described in the log, can be considered ‘physically intrusive’ and ‘subjectively unpleasant’.224 In the medical records, physicians often omitted reference to ill-treatment.225 Secondly, to safeguard that detainees could cope with interrogations on a physiological level – the psychological level was disregarded – physicians cleared detainees for interrogation in general or for specific techniques to be employed.226 Officially, with Rumsfeld’s Memorandum of 16 April 2003, this became

220 The icrc in its Report on the Treatment of Fourteen “High-Value Detainees” in cia Custody, p. 21 used a different third categorization, namely care for wounds of ill-treatment and torture. In the case of the cia detainees, medical involvement in the development of interrogations was also not alleged. Yet, because this is an important aspect of the medical role in interrogations, Rubenstein’s three-fold categorization was chosen. Rubenstein, ‘First, Do No Harm’, p. 736 et seq. 221 See also statements by detainees held in cia detention on medical monitoring of stress positions and ‘waterboarding’ in ICRC, Report on the Treatment of Fourteen “High-Value Detainees” in cia Custody, p. 21–22; 29; 33; 35; 36. 222 Interrogation Log Detainee 063 (2002–2003), p. 6; 16; 18; 26; 35; 38; 40; 64. 223 Regular psychiatric evaluations were also common, see for the Abu Ghraib prison in Iraq, Major General Antonio Taguba, ‘The Taguba Report – Article 15–16 Investigation of the 800th Military Police Brigade, March 2004’, in Karen J. Greenberg & Joshua J. Dratel (eds), The Torture Papers – The Road to Abu Ghraib (Cambridge University Press, 2005), Annex 46, Interview Colonel Pappas on 12 February 2004, p. 5–6. This Annex can be found at Steven H. Miles, Oath Betrayed: United States Military Medicine in War on Terror Prisons, at http://www1.umn.edu/humanrts/OathBetrayed/. 224 Sands, Torture Team, p. 205. This statement was made in reference to the repeated unsuccessful attempts to administer intravenous fluids in Interrogation Log Detainee 063, p. 6–7. 225 Hashemian, Broken Laws, Broken Lives – Medical Evidence of Torture by us Personnel and Its Impact, p. 86–87. 226 See a Memorandum of Record of 27 January 2004 in Taguba, ‘The Taguba Report’, Annex 46, p. 61. This Annex can be found at Miles, Oath Betrayed: United States Military Medicine in War on Terror Prisons. Also, in statements by detainees, ICRC, Report on the Treatment

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policy.227 Medical personnel in charge of monitoring Al Qahtani’s health cleared him for further interrogations in several instances.228 For example on 6 December 2002 ‘[t]he Medical Representative checked the detainee’s blood pressure and weight. She cleared the detainee for further interrogation’.229 Even after having been hospitalized for dehydration,230 Al Qahtani was returned to Camp X-Ray after a little more than twenty-four hours when the treating physician cleared him for further interrogations of the kind he had experienced the fifteen days prior.231 The medical personnel never intervened to halt abusive interrogations. Conversely, other detainees in u.s. detention have claimed that their ill-treatment was interrupted because of interventions by physicians.232 As a third task, psychologists and physicians, mostly psychiatrists, contributed to the development of new interrogation techniques233 and interrogation plans. Some also participated in interrogations. Working in bscts, psychologists and physicians tailored interrogation plans based on psychological evaluations.234 These plans detailed the often coercive and inhuman methods to be

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of Fourteen “High-Value Detainees” in cia Custody, p. 33 and Hashemian, Broken Laws, Broken Lives – Medical Evidence of Torture by us Personnel and Its Impact, p. 86. Donald Rumsfeld, ‘Memorandum for the Commander of u.s. Southern Command, Subject: Counter-Resistance Techniques in the War on Terrorism, 16 April 2003’, in Karen J. Greenberg & Joshua J. Dratel (eds), The Torture Papers – The Road to Abu Ghraib (Cambridge University Press, 2005), Tab B, p. 364. Although there are several explicit references, all medical checks were basically aimed at determining whether Al Qahtani was fit for interrogation. The explicit references can be found at Interrogation Log Detainee 063, p. 5; 22; 25; 27; 35. This was on 6 December 2002. Ibid. p. 25. Arguably the medical reason for hospitalization was hypothermia, see Department of Justice, A Review of the fbi’s Involvement in and Observations of Detainee Interrogations in Guantánamo Bay, Afghanistan, and Iraq, p. 103. Interrogation Log Detainee 063, p. 27. Statement by cia detainee Abu Zabaydah in ICRC, Report on the Treatment of Fourteen “High-Value Detainees” in cia Custody, p. 31. See also the statement by Khaled Shaik Mohammed on p. 36. For the cia, two psychologists (one contractor and one psychologist of the Department of Defense) developed the new and more aggressive ‘enhanced interrogation techniques’ that they recommended for use in interrogations. See cia Inspector General Report, p. 13–14. In Guantánamo Bay, bscts were established in 2002. With the transfer of Major General Geoffrey Miller to Iraq, the policy was exported to Abu Ghraib in December 2003 where physicians and psychiatrists then approved interrogation plans. Colonel Pappas, in charge of the military intelligence program at Abu Ghraib in 2004, stated to this effect: ‘The doctor and psychiatrist also look at the files to see what the interrogation plan recommends;

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used, such as sleep deprivation which, especially when applied cumulatively, causes great psychological stress. Such tactics, for example the use of fears or medical conditions, were based on medical information.235 This was often drawn from medical records that were not kept confidential. Furthermore, bscts also consulted the interrogators on questioning techniques.236 For example, when the bsct assessed that Al Qahtani was beginning to consider the interrogators as family figures, the interrogators adjusted their approach by ignoring him ‘to see if the detainee would try to seek attention’.237 It should be noted that, indirectly, forensic pathologists also played a role. They reportedly falsified death certificates, omitted crucial medical evidence concerning misbehavior, and in other ways contributed to conditions under which it was almost impossible to seek legal redress for torturous interrogations or the unlawful death of a family member.238 c Discussion The treatment of detainees in the ‘war on terror’ during interrogations was deemed inhuman and often tantamount to torture, amongst others, by several un Special Rapporteurs.239 This makes the involvement of persons who have taken an oath not to do harm all the more problematic. In light of the



they have the final say as to what is implemented’. Taguba, ‘The Taguba Report’, Annex 46, Interview Colonel Pappas on 9 February 2004, p. 3. This Annex can be found at Miles, Oath Betrayed: United States Military Medicine in War on Terror Prisons. On the role of psychiatrists in interrogations, Jonathan H. Marks & M. Gregg Bloche, ‘The Ethics of Interrogation – The us Military’s ongoing use of Psychiatrists’, 359 New England Journal of Medicine, 1090 (2007). 235 Instructing bscts to ‘[check] the medical history of detainees with a focus on depression, delusional behaviors, manifestations of stress, and “what are their buttons.”’ Office of the Surgeon General Army, Final Report: Assessment of Detainee Medical Operations for oef, gtmo, and oif (13 April 2005), p. 19–27. For the use of Al Qahtani’s phobia of dogs, see Lt. Gen. Schmidt & Brig. Gen. Furlow, Schmidt Furlow Report, p. 14. Approval for the use of ‘harmless insects’ on cia detainees in interrogations, Bullet Points on Legal Principles Applicable to cia Detention and Interrogation of Captured Al-Qa’ida Personnel, p. 3. 236 Bloche & Marks, ‘When Doctors go to War’, p. 3. 237 Interrogation Log Detainee 063, p. 59. At other times the psychologist involved, John Leso (‘Maj L’ in the log), suggested the use of a swivel chair to keep Al Qahtani awake (p. 12) or indicated Al Qahtani had been lying (p. 20) or ‘trying to run an approach on the control and gain sympathy’ (p. 31). 238 See Miles, Oath Betrayed, Chapters ‘Homicide’ and ‘Silence’. 239 Leila Zerrougui, et al. Report on the Situation of Detainees at Guantánamo Bay, para. 83–94. To be discussed in the Chapter 5.

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principles of humanity and non-maleficence that outweigh the other principles, all ill-treatment or torture of other human beings is inhuman and simply not justifiable. However, physicians are not always able to decide independently, impartially and neutrally. Especially, as military medical personnel is mainly responsible for the health of prisoners of war and other persons deprived of their liberty.240 They are often faced with a dual-loyalty conflict and other pressures that may make it seem impossible for them to reject an order to cooperate in coercive, unethical or unlawful interrogations. The icrc classified medical participation in the treatment of cia detainees a ‘gross breach of medical ethics’.241 Those in favor of medical involvement in coercive interrogations and, possibly, torture argue that the presence of physicians will limit the harm done to those interrogated and ensure their survival. Lepora and Millum, for example, argue that ‘[i]n certain circumstances, patient-centered considerations will be important enough to outweigh complicity in torture’.242 Their reasoning is that physicians’ complicity in torture is excusable because physicians would not act with torturous intent, but rather follow the ‘[prisoner’s] health care wishes’.243 Allhoff argues, in a similar vein, that the principle of beneficence requires

240 According to article 15 gc III, prisoners of war are entitled to ‘the medical attention required by their state of health’ which should be provided by the detaining power free of charge, see article 30 gc III. For civilians who have been interned, see articles 81 and 91 gc IV. For all others, the general safeguards of common article 3 gcs regarding humane treatment apply.  Civilian physicians, except those involuntarily drafted or otherwise working for authorities, are not faced with the problem of ill-treatment during detention and especially interrogation of persons deprived of their liberty. With the exception of physicians who are confronted with scars and wounds on persons who have been tortured or ill-treated in the past, for example when conducting pathological exams or when working in refugee care.  Whether physicians working for humanitarian aid organizations will be confronted with victims of torture depends on the tasks of such organizations. For the icrc, visiting detention facilities is one of its main tasks. The icrc has visited most u.s. detention facilities of detainees of the ‘war on terror’. icrc delegates, including physicians, examine detention facilities and interview persons deprived of their liberty who may have been tortured, ill-treated or in any other way coercively interrogated. For an overview and an explanation of the icrc’s role, ‘The Role of the icrc 2010’. 241 ICRC, Report on the Treatment of Fourteen “High-Value Detainees” in cia Custody, p. 26–27. 242 Chiara Lepora & Joseph Millum, ‘The Tortured Patient: A Medical Dilemma’, May–June Hastings Center Report, 38 (2011), p. 41. 243 Ibid. p. 43.

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‘minimal physician participation’.244 The presence of physicians would thus ‘humanize’ torture. The arguments against this line of reasoning are manifold. In an interrogation, the mere presence of medical personnel, namely physicians, can have a detrimental effect on the safety of the person being interrogated. In the short term, the effect may be thought to be positive because the physician may set limits to interrogators in favor of the detainee. In reality, due to the dual-loyalty conflict and other pressures on medical personnel,245 objections by physicians regarding coercive or torturous methods are highly unlikely. If medical personnel do not object to the use of certain methods, although this was their task, interrogators will take acquiescence to mean permission.246 The presence of medical personnel can thus expand the cruelty, inhumanity, or degradation while providing an ‘aura of legitimacy’.247 Interrogators may feel free to use whatever tactic they like, assuming that the physicians present will set limits and treat wounds afterwards.248 This means that they may eventually use methods they would not have resorted to or used to such an extent, had there not been a physician in charge of the health of the detainee and as such acting as a safeguard.249 An example would be the use of ‘waterboarding’ which was often directly medically supervised.250 Eventually this may lead to a ‘force drift’ towards more

244 Allhoff, ‘Physician Involvement in Hostile Interrogations’, p. 95–96. 245 See Lifton on the dual-loyalty conflict in the u.s. armed forces. Lifton, ‘Doctors and Torture’, p. 415. Distinguishing between different forms of pressure, see Brewer & Arrigo, ‘Places that Medical Ethics can’t find’, p. 8–12. 246 ‘In the absence of an extraordinarily firm and persistent objection by the monitoring health professional, engaging medical personnel in approving interrogation plans and monitoring “safety” purposes amounts to giving interrogators a green light’. Rubenstein, ‘First, Do No Harm’, p. 739. 247 Brewer & Arrigo, ‘Places that Medical Ethics can’t find’, p. 14. 248 Bloche and Marks fear that medical supervision ‘may invite interrogators to be more aggressive, because they imagine that these professionals will set needed limits’. Bloche & Marks, ‘Doctors and Interrogators at Guantanamo Bay’, p. 8. Rubenstein, ‘First, Do No Harm’, p. 741. 249 Although Mylius describes medical involvement in torture in Argentina, here findings are equally relevant for the present situation. Mylius, ‘Folter unter ärztlicher Aufsicht’, p. 190. 250 For the cia, medical supervision was recommended. See ‘Bullet Points on Legal Principles Applicable to cia Detention and Interrogation of Captured Al-Qa’ida Personnel’. See also the experience of Khaled Shaik Mohammed, a ‘high-value detainee’ in cia custody in ICRC, Report on the Treatment of Fourteen “High-Value Detainees” in cia Custody, p. 10–11.

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aggressive behavior of both interrogators and medical personnel.251 Additionally, the presence of medical personnel during interrogations adds an ‘illusion of therapy and healing’ to the ill-treatment that is incompatible with medical ethics.252 Considering that the involvement of physicians may enhance the misery of the detainees, from an ethical point of view the principle of non-maleficence would outweigh the other principles.253 Accordingly, physicians should refrain from harming detainees. They should beware not to conceive of themselves as ‘humanizing’ torture because in fact they erode the faith of the detainee in the medical profession and become involved in a spiral of aggression they might find difficult to stop. A second area of concern is the cooperation of physicians in interrogations which, in u.s. detention facilities, also led to breaches of medical confidentiality. Until the Medical Program 2006 determined otherwise, bscts consisted of psychologists and physicians, mostly psychiatrists. Reportedly, bscts had access to medical records of detainees.254 In this way, physicians and psychologists contributed to interrogations by exploiting medical records to facilitate interrogations and to make interrogation plans.255 In an unpublished, confidential report of July 2004 to the u.s. government that was leaked to the media, the icrc stated that it was ‘disturbed’ by such news. Medical involvement in planning interrogations was a ‘flagrant violation of medical ethics’, according to the icrc delegation basing its findings on a visit to Guantánamo in 2004.256 251 Interview with Dr. Michael Gelles, Chief Psychologist, Naval Criminal Investigative Service (1991–2006), online at Torturing Democracy (National Security Archive – Washington Media Associates). 252 Lifton, ‘Doctors and Torture’, p. 416. Lifton explains such behavior by physician by using his theory of ‘atrocity producing situation’ that he established in Robert Jay Lifton, The Nazi Doctors – Medical Killing and the Psychology of Genocide (Basic Books Publishers, 1986). 253 In Beauchamp and Childress’ reasoning, the principle of beneficence which implies that physicians should provide medical care even during torturous interrogations, would have to be weighed against the principle of non-maleficence. Yet, ‘Health professionals have a responsibility extending well beyond nonparticipation in torture; the historic maxim is, after all, “first do no harm.” These health professionals did the polar opposite’. Leonard S. Rubenstein & Stephen N. Xenakis, ‘Doctors without Morals’, New York Times (1 March 2010). 254 Surgeon General Report 2005, p. 18–13. 255 As reported by one detainee quoted in Hashemian, Broken Laws, Broken Lives – Medical Evidence of Torture by us Personnel and Its Impact, p. 86. 256 Neil A. Lewis, ‘Red Cross finds detainee abuse in Guantánamo’, New York Times (30 November 2004). Naturally, a violation of medical ethics is not criminally prosecutable as such, but it is an important indicator, as argued in Chapter 3.

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It is controversially discussed whether physicians should even have interrogational functions. The Department of Defense argued that physicians working with interrogators carry out a non-medical role, are not in a physician-patient relationship, and are hence not bound by traditional medical ethics.257 This view has been defended in literature,258 yet it should be noted that a similar argument was previously used by National Socialist physicians in their defense in trials for war crimes.259 bscs were believed to be acting rather as combatants, using knowledge to the benefit of the military mission and the security of the usa. The Medical Program 2006 still explicitly excludes a physician-patient relationship from the tasks of the psychiatrists and psychologists working with the bscts.260 Although psychologists are preferred for bscts, all bscs ‘employ their professional training not in a provider-patient relationship’.261 For psychologists, forensic work is certainly not a new area of expertise.262 However, psychologists were not asked to advise on the mental capacities and condition of detainees but rather to provide evaluations used to personalize abusive interrogational tactics. While psychologists are not necessarily bound by the same ethical standards as physicians, medical ethics are all the more relevant for psychiatrists. Most believe that physicians should be physicians at all times even when not tasked with patient care.263 Bloche and Marks argue that ‘[t]he 257 Surgeon General Report 2005, p. 18–12. The argument is critically discussed in Bloche & Marks, ‘When Doctors go to War’, p. 4. 258 Allhoff, ‘Physician Involvement in Hostile Interrogations’, p. 96 et seq. 259 As to be discussed on Chapter 8, one of the defendants in the Doctors’ Trial stated as a justification for criminal experiments on inmates of concentration camps that because inmates were not patients, different medical ethics applied. Transcript of the Doctors’ Trial, Direct Examination Defendant Mrugowsky, 26 March 1947, p. 5093. 260 Medical Program 2006, para. 4.9; E2.1; E.2.9. 261 See Ibid. para. 4.9 and ‘Enclosure 2: Standards and Procedures for bscs’. They may support interrogations, but ‘shall not use or facilitate directly or indirectly the use of physical or mental health information regarding any detainee in a manner that would result in inhuman treatment or not be in accordance with applicable law’. A reference to applicable international law would have been a better safeguard against abuse, considering what was lawful in u.s. detention facilities. 262 Psychologists have traditionally provided ‘evaluations for the legal system (e.g., competence to stand trial, assessing criminal responsibility or child-custody evaluations), independent psychological evaluations for disability insurers, or employee screening for sensitive positions. Many psychologists also train others (e.g., police authorities, attorneys and hostage negotiators) in psychologically effective interrogation techniques’. See Gerald P. Koocher, ‘Valued and Varied Roles’, 37 apa Monitor on Psychology, 5 (2006). 263 This is the premise of ethical guidelines such as un General Assembly, Resolution 37/194 Principles of Medical Ethics relevant to the Role of Health Personnel, particularly Physicians,

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therapeutic mission is the profession’s primary role and the core of physicians’ professional identity’.264 They suggest that when physicians take on tasks in interrogations that are consistent with international human rights, it should be to genuinely set limits and guard against abuse of the person being interrogated. Involvement in ill-treatment would be problematic for both psychologists and physicians. This leads to the question whether physicians should guard the confidentiality of the medical records of detainees. The deliberate separation of physicians from their ethics may have contributed to a softening of ethical standards, including the premise that medical records are primarily confidential.265 Medical confidentiality is never absolute but needs to be weighed ‘against other important values and goals’.266 The question is whether the reasons for breaching medical confidentiality were valid in the case of detainees in the ‘war on terror’. Looking at what use the medical records served, the answer should be negative.267 It was disproportionate to abandon medical confidentiality in order to gain information that was of questionable practical value in interrogations. As Bloche and Marks find: ‘Wholesale abandonment of medical confidentiality hardly qualifies, especially when the “need” invoked is the crafting of counter-resistance measures that are prohibited by international law’.268 The two most common approaches to break detainees’ resistance in interrogations are rapport-building and inducement of stress and fear.269 The former may also be facilitated by psychologists, but knowledge about

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in the Protection of Prisoners and Detainees against Torture, and other Cruel, Inhuman or Degrading Treatment or Punishment, Doc. No. A/RES/37/194 (18 December 1982) and wma, Regulations in Times of Armed Conflict. In literature, see Annas, ‘Military Medical Ethics’; Bloche & Marks, ‘When Doctors go to War’, p. 4–5. Conversely, Allhoff, ‘Physician Involvement in Hostile Interrogations’, p. 96 et seq. Bloche & Marks, ‘When Doctors go to War’, p. 5. The Report by the Surgeon General found that at Abu Ghraib, for example, ‘anyone’ including interrogators were believed to have had access to detainees’ medical records. Surgeon General Report 2005, p. 12–21 et seq. Wynia, ‘Breaching Confidentiality to Protect the Public’, p. 1–2. See also Bloche and Marks, who argue that ‘[w]holesale rejection of clinical confidentiality at Guantanamo also runs contrary to settled ethical precepts. Medical privacy is not an ethical absolute […] but confidentiality is the starting premise’. Bloche & Marks, ‘Doctors and Interrogators at Guantanamo Bay’, p. 7. For example to identify ‘individual phobias’ as in Lt. Gen. Schmidt & Brig. Gen. Furlow, Schmidt Furlow Report, p. 14. Bloche & Marks, ‘Doctors and Interrogators at Guantanamo Bay’, p. 7. Ibid. p. 8.

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detainees should be used to make them feel at ease and make them connect so that they may reveal information.270 In the latter case, medical information is used to identify a person’s fears and to up stress levels, so that the person ceases all resistance, forgets all studied behavior, and instinctively tells the truth. Yet, answers given in fear, pain, or confusion will most likely be an attempt to stop the discomfort, not an honest disclosure of information. Although medical information may be relevant in interrogations, for example concerning relevant medical conditions, it should never be used to increase pressure in interrogations. Mostly, such tactics that build on using detainees’ medical information to their detriment will lead to coercion and, eventually, an erosion of humanity. Furthermore, once detainees discover that the information they provided to medical personnel in confidence was abused, they will lose trust in medical personnel.271 Disclosure of medical information concerning detainees for lawful reasons, such as security of other persons or the prevention of the spread of communicable diseases, should be subject to review by preferably a higher military authority or even a court. It can be surmised from the above that the role of physicians in interrogations of detainees of the ‘war on terror’ in u.s. detention facilities was unethical.272 Whether it was unlawful will be discussed at other relevant points in the book. From monitoring the health of detainees prior to, during and after interrogations, over providing medical clearance for coercive interrogations, to participating in the development of interrogational tactics, at times with the use of medical records, physicians did not object or

270 Sands, Torture Team, p. 148–157. See Dr. Michael Gelles on the rapport-based approach to interrogations on Torturing Democracy (National Security Archive – Washington Media Associates). This has also traditionally been the point of view of the u.s. Army, for example a Guantánamo Bay psychologist quoted in Okie, ‘Glimpses of Guantanamo’, p. 2533. 271 Bloche & Marks, ‘Doctors and Interrogators at Guantanamo Bay’, p. 8. Wynia even claims that this may have been the reason for a series of suicide attempts at Guantánamo Bay in 2004, after the medical involvement in ill-treatment had been revealed: ‘perhaps some of these reflected unwillingness of detainees to confide in, or accept help from, prison mental health professionals’. Wynia, ‘Breaching Confidentiality to Protect the Public’, p. 3. 272 This was also the conclusion by the icrc, phr and several un Rapporteurs, in ICRC, Report on the Treatment of Fourteen “High-Value Detainees” in cia Custody; Physicians for Human Rights, Experiments in Torture: Evidence of Human Subject Research and Experimentation in the “Enhanced” Interrogation Program (June 2010); Leila Zerrougui , et al. Report on the Situation of Detainees at Guantánamo Bay.

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call for attention.273 Generally, as part of their duty as ‘guardians’ over the rights of those in need of medical care, physicians should have reported interrogations and treatment considered abusive. The generally accepted task of physicians to guard over the well being of those they treat cannot be negated by simply severing the relationship between physicians and detainees.274 Physicians remain physicians and have an ethical duty to resist and report torture and ill-treatment when they see it.275 2 Hunger Strikes and Force-Feeding What is in a patient’s best interest appears to be the question for physicians when faced with persons, usually prisoners (of war), on hunger strike.276 In the detention facilities at Guantánamo Bay, hunger strikes have commonly occurred. At one point in 2005, a total of 133 detainees were on a hunger strike.277 The Department of Defense’s Medical Program 2006 provides for a policy of medical interventions, including force-feeding, irrespective of the hunger striker’s consent.278 It justifies this approach by arguing that this is in the best interest of detained persons and that the approach is also used in national prisons.279 Although soft nasogastric tubes, lubricants, and anesthetics 273 It has been criticized that it was not medical personnel who reported the torture or illtreatment but rather the fbi and ncis. For the fbi, see Department of Justice, A Review of the fbi’s Involvement in and Observations of Detainee Interrogations in Guantánamo Bay, Afghanistan, and Iraq. 274 ‘By speaking out, they would take an important step toward reclaiming their role as healers’. Lifton, ‘Doctors and Torture’, p. 416. 275 Ibid. p. 415; Bloche & Marks, ‘When Doctors go to War’, p. 3; Rubenstein, ‘First, Do No Harm’, p. 743; Miles, Oath Betrayed, p. ix; 137–139. 276 With the exception of the suffragettes in the early twentieth century and several female Irish prisoners on hunger strike in 1981, most hunger strikers are male, hence the male pronoun will be used. Furthermore, the term ‘detainee’ will be used to include prisoners of war and detained civilians without denying them any rights or status. 277 Tim Golden, ‘Tough u.s. Steps in Hunger Strike at Camp in Cuba’, New York Times (9 February 2006). See other accounts and overviews for example Miles, Oath Betrayed, p. 107–111; Okie, ‘Glimpses of Guantanamo’, p. 2530–2531. 278 It determines that ‘[i]n the case of a hunger strike, attempted suicide, or other attempted serious self-harm, medical treatment or intervention may be directed without the consent of the detainee to prevent death or serious harm. Such action must be based on a medical determination that immediate treatment or intervention is necessary to prevent death or serious harm, and, in addition, must be approved by the commanding officer of the detention facility or other designated officer responsible for detainee operations’ (Medical Program 2006, para. 4.7.1.). 279 See William Winkenwerder Jr., who was Assistant Secretary of Defense for Health Affairs of the u.s. Department of Defense from October 2001 through April 2007 as quoted in

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are used, some hunger strikers are put into restraint chairs for the treatment.280 The procedure, described as ‘very voluntary’281 but never as consensual, is conducted after nine consecutive days of food refusal following consultations with the detainee.282 However, many of these facts are contested.283 Before being deployed to Guantánamo Bay, physicians are screened to assure that they have no ethical objections to ‘assisted feeding’.284 The Report by five un Special Rapporteurs on the situation of detainees at Guantánamo Bay claims that excessive force was used in some methods of forced-feeding and that this amounted to torture.285 A number of prisoners who had been on hunger strike, and mostly also force-fed, furthermore filed a Motion as a Preliminary Injunction to Compel Access to Counsel and Information Related to Petitioners’ Medical Treatment so that their lawyers have access to their 280

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Golden, ‘Tough u.s. Steps in Hunger Strike at Camp in Cuba’, and Okie, ‘Glimpses of Guantanamo’, p. 2530. Restraining patients in six or four-point restraints was denied by Captain John Edmonson who was the Commander of the u.s. Navy Hospital, Guantánamo Bay between 2003 and 2006. Case 1:05-cv-00301-GK, Exhibit A – Declaration of John S. Edmondson, M.D., Doc. No. 48–52 (19 October 2005), para. 7. However, apparently, the use of restraint chairs was introduced in 2006. Golden, ‘Tough u.s. Steps in Hunger Strike at Camp in Cuba’. It should be noted that the feeding-procedure was explicitly classified as ‘very voluntary’ while the term ‘consensual’ or ‘with informed consent’ was never mentioned. This raises the suspicion that the officials were aware of the lack of consent and used another term to avoid being bound by a legal definition. It could, however, also be just a question of terminology. Declaration of John S. Edmondson, para. 10; 15. See the relevant literature quoted in this section. Okie was shown the tubes that the Army claims to use upon visiting Camp Delta on Guantánamo Bay. Whether soft nasogastric tubes are really used and have been used in the past, cannot be established or denied with certainty. Okie, ‘Glimpses of Guantanamo’, p. 2531. That physicians are screened prior to working at Camp Delta was related by Edmonson. Okie, ‘Glimpses of Guantanamo’, p. 2530. Leila Zerrougui, Chairperson-Rapporteur of the Working Group on Arbitrary Detention; Leandro Despouy, Special Rapporteur on the independence of judges and lawyers; Manfred Nowak, Special Rapporteur on Torture and other Cruel, Inhuman or Degrading Treatment or Punishment; Asma Jahangir, Special Rapporteur on Freedom of Religion or Belief; and Paul Hunt, Special Rapporteur on the Right of everyone to the Enjoyment of the Highest Attainable Standard of Physical and Mental Health, Report on the Situation of Detainees at Guantánamo Bay, Doc. No. E/CN.4/2006/120 (27 February 2006), para. 54. Because the un Special Rapporteurs were not able to conduct on site visits of the detention facilities, their Report is based on allegations made by various sources.

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medical files before a u.s. District Court. Without deciding on the legality of force-feeding, their Motion was granted.286 a Hunger Strikes A workable definition of hunger strike can be found in the preamble of the World Medical Association’s (wma) Declaration of Malta on Hunger Strikers of 1991: [Hunger strikes] are often a form of protest by people who lack other ways of making their demands known. In refusing nutrition for a significant period, they usually hope to obtain certain goals by inflicting negative publicity on the authorities. Short-term or feigned food refusals rarely raise ethical problems. Genuine and prolonged fasting risks death or permanent damage for hunger strikers and can create a conflict of values for physicians. Hunger strikers usually do not wish to die but some may be prepared to do so to achieve their aims.287 In short, hunger strikers are persons who ‘undergo a substantial period of voluntary total fasting for a specific purpose’.288 The wma defines a hunger strike as lasting more than 72 hours.289 The main reason for hunger strikes by persons deprived of their liberty during armed conflict is protest against being detained in general, against the conditions of detention, or for other political reasons. A hunger strike due to a mental disorder, such as depression or anorexia, is usually differentiated. In such cases, a physician should treat the cause of the mental disorder and artificial feeding is generally accepted.290 A hunger strike should, moreover, be differentiated from suicide as the person who refuses to 286 Gladys Kessler as a Judge for the United States District Court, District of Columbia, Majid Abdulla Aj-Joudi, et al. v. George W. Bush, et al.; Jarallah Al-Marri, et al. v. George W. Bush, et al.; Muhammad Al-Adahi, et al. v. George W. Bush, et al.; Hamid Al Razak, et al. v. George W. Bush, et al. [2005]. 287 World Medical Association, Declaration of Malta on Hunger Strikers (adopted by the 43rd World Medical Assembly, St Julians, Malta, November 1991 and last revised by the 57th wma General Assembly, Pilanesberg, South Africa, October 2006). 288 Hernán Reyes, ‘Medical and Ethical Aspects of Hunger Strikes in Custody and the Issues of Torture’, in Manfred Oehmichen (ed), Maltreatment and Torture (Schmidt Römhild, 1998), p. 299. 289 WMA Journal Editors, ‘A Background Paper on the Ethical Management of Hunger Strikes’, 52 World Medical Journal, 36 (2006), p. 36. 290 James Welsh, ‘Responding to Food Refusal: Striking Human Rights Balance’, in Ryan Goodman & Mindy Jane Roseman (eds), Interrogations, Forced Feeding, and the Role of Health Professionals – New Perspectives on International Human Rights, Humanitarian

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eat out of protest usually does not truly wish to die but rather wishes to force change.291 Although it could be argued that all these people should be allowed to starve, the point is usually made that if a person is no longer capable of making that choice due to mental illness, her choice not to eat is not truly a choice. In medical terms, death from refusal to eat occurs in case of a ‘dry hunger strike’ (refusal of food and water) after about three to four days. When the hunger striker agrees to drink water (often with additional nutrients), he can survive up to six weeks.292 Health risks exist in both cases and are increased when the hunger striker was previously not in good health and already suffering from health issues.293 b The Role of Physicians Hunger strikes during armed conflicts mainly occur in detention facilities by prisoners of war or detained civilians where detainees have no other effective legal recourse for redress. Usually, military physicians attend to the detainees and are thus confronted with the ethical dilemma as the detaining power is responsible for the well-being and medical care of protected persons in detention.294



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Law, and Ethics (Human Rights Program at Harvard Law School, 2009), p. 161; Scott A. Allen & Hernán Reyes, ‘Clinical and Operational Issues in the Medical Management of Hunger Strikers’, in Ibid. p. 193. Welsh, ‘Responding to Food Refusal’, p. 144. Scott A. Allen & Hernán Reyes, ‘Clinical and Operational Issues in the Medical Management of Hunger Strikers’. Survival after ten weeks of fasting is ‘practically impossible’. wma Journal Editors, ‘A Background Paper on the Ethical Management of Hunger Strikes’, p. 38. For a thorough analysis of the physiology of starvation, see Sondra S. Crosby, et al. ‘Hunger Strikes, Force-feeding, and Physicians’ Responsibilities’, 298 Journal of the American Medical Association, 563 (2007). For an excellent overview of the consequences of a hunger strike, see Johannes Wier Stichting voor Mensenrechten en Gezondheidszorg, Honger naar Recht – Honger als Wapen: Handleiding voor de Medische en Verpleegkundige Begeleiding van Hongerstakingen (2000), p. 11–16. The Guidelines furthermore give practical advice for physicians and nurses on different aspects concerning hunger strikes, including for example how to deal with the media. Article 15 gc III. There is also a general duty to protect and respect prisoners of war and to treat them humanely. This duty can be found in articles 13 and 14 gc III.

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Physicians working for humanitarian aid organizations can also be confronted with detainees on hunger strike.295 They can raise awareness on how to respond to hunger strikes and call for certain actions, but are not responsible for choosing whether or not to feed hunger strikers. This remains the task of those physicians in charge in detention facilities, mostly military physicians. Due to their ‘outsider position’, however, other physicians can at times more easily build a relationship of trust with detainees which may be more difficult to establish for military physicians.296 Detainees may perceive them as part of the (at times coercive) authority.297 In an open letter of 2013, several doctors have offered their independent medical services to meet the hunger strikers at Guantánamo Bay.298 c Discussion The decision whether to medically intervene rests on the responsible physician. Firstly, physicians have to decide whether to medically intervene when the health of the hunger striker deteriorates, and, secondly, whether to participate in force-feeding. Force-feeding should be distinguished from artificial feeding which the hunger striker either consents to or which is carried out when the hunger striker is no longer competent or conscious.299 Decisions to force-feed are usually based on various arguments from the well-being of the hunger striker,300 over protection of those forced to hunger strike against peer pressure or coercion, over security considerations, to punishment or intentional causing of pain. Force-feeding hunger strikers has in the past also been 295 Through its visits to detention facilities the icrc, for example, has extensive experience with hunger strikes. Reyes has visited many hunger strikers in his work for the icrc. He draws from this in Reyes, ‘Medical and Ethical Aspects of Hunger Strikes in Custody and the Issues of Torture’, especially in the examples on p. 303 et seq. 296 See for example F. Arnold, et al. ‘Open Letter to President Obama on hunger strikers in Guantanamo’, 381 The Lancet, 9884 (22 June 2013). 297 Ibid. p. 300. 298 Frank Arnold, et al. ‘Open Letter to President Obama on hunger strikers in Guantanamo’, 381 The Lancet, 9884 (22 June 2013). 299 The wma differentiates between artificial and force-feeding in WMA Journal Editors, ‘A Background Paper on the Ethical Management of Hunger Strikes’, p. 41. 300 Howe, for example, considers the preservation of detainees’ lives an acceptable justification for force-feeding. Edmund G. Howe, ‘Further Considerations regarding Interrogations and Forced Feeding’, in Ryan Goodman & Mindy Jane Roseman (eds), Interrogations, Forced Feeding, and the Role of Health Professionals – New Perspectives on International Human Rights, Humanitarian Law, and Ethics (Human Rights Program at Harvard Law School, 2009), p. 92.

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justified with military arguments, for example by claiming hunger strike to be a form of asymmetric warfare.301 Due to the dual-loyalty conflict physicians can feel hindered in independent decision-making in such situations.302 The freedom to take this decision hinges on the physician’s independence because superiors may disagree and issue orders to do otherwise, as is the case in Guantánamo Bay. For physicians to gain the trust of hunger strikers they will have to act neutrally, even when being part of military medical personnel.303 When a trusting relationship between the physician and the hunger striker can be established, it affects the trust in authorities and a positive outcome of the hunger strike is more likely. While independence and neutrality are prerequisites for coming to a decision on how to treat hunger strikers, the decision should also be guided by the principle of humanity. Either the physician considers it more humane to intervene, even if by force-feeding, when medically indicated to guard the lives of detainees in her care or she believes that the respect for a person’s autonomy and bodily integrity trumps the principle beneficence and respects the hunger striker’s wishes risking his death. Assuming that the hunger striker is competent to decide to refuse food, this is a conflict between the prima facie principle of beneficence bordering on paternalism and the prima facie autonomy of the hunger striker.304 Seen from the former perspective, it could be the duty of the detaining power to ensure that a detainee not starve himself to death so that he may be repatriated in good health after the conflict has ended. Yet, it is questionable whether the duty of the detaining power, and especially a physician working for the detaining power, encompasses actively saving lives against the wishes of those to be saved. Particularly if protest through hunger strike is the detainees’ only way to

301 Incorrectly comparing hunger strike and suicide, authorities of detention facilities nonetheless compared the two and found both to be methods of asymmetric warfare. Charlie Savage, ‘As Acts of War or Despair, Suicides Rattle a Prison’, New York Times (24 April 2011). 302 The wma in article 4 of the Declaration of Malta establishes in this respect that ‘[p]hysicians attending hunger strikers can experience a conflict between their loyalty to the employing authority (such as prison management) and their loyalty to patients. Physicians with dual loyalties are bound by the same ethical principles as other physicians, that is to say that their primary obligation is to the individual patient’. 303 WMA Journal Editors, ‘A Background Paper on the Ethical Management of Hunger Strikes’, p. 38. 304 The other two principles, equality and non-maleficence, play a lesser role in this question.

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raise awareness of their position.305 Force-feeding could, for example, facilitate the continuation of torture against which the hunger strike could be a protest.306 Most ethicists and physicians accept that an individual who has competently and voluntarily decided to go on a hunger strike and given his informed consent not to be medically treated for the consequences has made an autonomous decision.307 In this case, autonomy overrules beneficence and hard paternalism is not justified. The wma’s Declaration of Tokyo providing guidelines for physicians concerning torture and other cruel, inhuman or degrading treatment or punishment in relation to detention and imprisonment establishes: Where a prisoner refuses nourishment and is considered by the physician as capable of forming an unimpaired and rational judgment concerning the consequences of such a voluntary refusal of nourishment, he or she shall not be fed artificially. The decision as to the capacity of the prisoner to form such a judgment should be confirmed by at least one other independent physician. The consequences of the refusal of nourishment shall be explained by the physician to the prisoner.308

305 Alternately, it could be argued that, by placing a person in detention, the authority is accepting responsibility for that person’s general welfare. Fulfilling their ‘right to health’ becomes the responsibility of the authority, not the individual. Thus, the authority is required to keep the detainee healthy just as it is required to provide him with shelter, clothing, etc. In other words, the ‘right to be free from interference with health care decisions’ that was mentioned earlier might no longer be a right that the detainee enjoys upon detention, in the same way that detention or incarceration abrogates any right to be free from state interference with decisions as to the freedom of movement. Seen from this perspective, force feeding (while not pleasant) may not be a human rights violation any more than detention is. 306 Reyes, ‘Medical and Ethical Aspects of Hunger Strikes in Custody and the Issues of Torture’, p. 307. 307 See Physicians for Human Rights, ‘Letter to Barack Obama’, (1 November 2013). 308 Generally, the Declaration of Tokyo addresses the situation of detention where a prisoner or detainee may be tortured. World Medical Association, Declaration of Tokyo – Guidelines for Physicians Concerning Torture and other Cruel, Inhuman or Degrading Treatment or Punishment in Relation to Detention and Imprisonment (adopted by the 29th World Medical Assembly, Tokyo, Japan, October 1975, and last editorially revised at the 173rd Council Session, Divonne-les-Bains, France, May 2006). This was reiterated and explicated in the wma’s Declaration of Malta. Both the Declaration of Tokyo and the Declaration of Malta are ethical guidelines whose legal value will be examined in Chapter 9.

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Although the physician may disagree, her medical skills should be used to the benefit of the person which may not always be the same as the health of that person. She should ascertain that the hunger strike is voluntary, that it is not merely a refusal of food for reasons other than protest, that the detainee is competent to make this decision, and that he has been informed about the physiological and psychological consequences of his actions, especially when the hunger striker has certain medical preconditions, e.g. diabetes or gastritis. This requires a level of trust between the responsible physician and the detainee.309 A competent hunger striker should not be treated or fed, even when his health deteriorates. Medical intervention and artificial feeding is only warranted with the hunger striker’s consent or when the will of the hunger striker is not known, the hunger striker becomes unconscious, and feeding is medically indicated.310 Force should never be used to end someone’s fasting.311 Thus, the consent of a person is so important that medical intervention, including feeding, against a hunger striker’s wishes is considered unethical. International law, however, does not give a definite answer on how a physician should treat a person on hunger strike, especially a prisoner of war dependant on the detaining power. Whether physicians can sufficiently rely on ethical guidelines and principles will be discussed below.

309 The element of trust is stressed by Allen & Reyes, ‘Clinical and Operational Issues in the Medical Management of Hunger Striker’ and also Reyes, ‘Medical and Ethical Aspects of Hunger Strikes in Custody and the Issues of Torture’. The Johannes Wier Stichting suggest appointing a specific ‘doctor of trust’, especially for hunger strikers in situations of dependency, such as detention. Handleiding voor de Medische en Verpleegkundige Begeleiding van Hongerstakingen, p. 30 et seq. 310 WMA Journal Editors, ‘A Background Paper on the Ethical Management of Hunger Strikes’, p. 42. This approach is criticized by Annas who advocates the introduction of statements concerning non-intervention given by all hunger strikers upon refusing food. George J. Annas, ‘Hunger Strikes at Guantanamo – Medical Ethics and Human Rights in a “Legal Black Hole”’, 355 New England Journal of Medicine, 1377 (2006), p. 1380. A written declaration of non-intervention is suggested by the Dutch Johannes Wier Stichting, see Handleiding voor de Medische en Verpleegkundige Begeleiding van Hongerstakingen, p. 21. 311 For the wma, see article 13 of the Declaration of Malta. Further, Allen & Reyes, ‘Clinical and Operational Issues in the Medical Management of Hunger Strikers’, p. 200; Annas, ‘Hunger Strikes at Guantanamo’, p. 1381; Physicians for Human Rights, ‘Letter to Barack Obama’ (1 November 2013).

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E Conclusion The overview of the relevant medical actors in armed conflict, the principles that guide them, and some areas of concern demonstrate that the question of the role of physicians in armed conflict is not always clear. Rather, there are different rules guiding the medical profession even during armed conflicts. On the one hand, that is international humanitarian law as adopted by states, namely the Geneva Conventions and their Additional Protocols, and supplemented by the four guiding principles that form the basis of physicians’ behavior in armed conflict. On the other hand, the medical profession is guided by its own rules established for medical interactions with those in need of medical care. From the demonstration of the different ethical dilemma’s physicians may face, including the questions of force-feeding and interrogations, it can be surmised that much depends on the latter, a physician’s medical ethics. While physicians’ actions may be judged based on legal considerations, for example by un Special Rapporteurs,312 they can also be examined from the point of view of medical ethics. Looking at both, the icrc commented: [T]he interrogation process is contrary to international law and the participation of health personnel in such a process is contrary to international standards of medical ethics.313 Generally, as argued before, medical ethics apply in times of armed conflict as they would in times of peace. From a philosophical perspective, this means that the four principles of biomedical ethics, convincingly analyzed by Beauchamp and Childress, apply in all situations. When weighed and specified, they can provide physicians and medical personnel with a reasonable framework for decision-making when facing ethically challenging situations. They do not, however, provide clear and concrete directions in specific situations. They also do not necessarily provide universal answers: although the principles themselves are universal because they are drawn from a common morality, their specification may vary between cultures or regions. In that sense, if medical ethics were to be understood as the principles of biomedical ethics, these would be universally applicable in armed conflicts. The concrete specification of the principles, however, for example as accepted medical standards, would vary regionally or culturally.

312 See Leila Zerrougui, et al. Report on the Situation of Detainees at Guantánamo Bay, para. 93. 313 ICRC, Report on the Treatment of Fourteen “High-Value Detainees” in cia Custody, p. 23.

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The problem with a philosophical concept of medical ethics is that in legal terms, principles of biomedical ethics alone are too vague and abstract to guarantee physicians with legal certainty. By following the four abstract principles of medical ethics, physicians can never be sure whether their actions are ‘right’ or ‘wrong’. Of course, this is not the goal of ethics but it is essential in the legal sphere. As will become clear in Chapter 3, a violation of medical ethics can incur prosecution for violations of international humanitarian law. For that reason, it would be beneficial in the interest of specificity if there was a universal and legitimate concept of medical ethics in the international sphere. This could be a generally accepted specification of the four principles.

part 2 The Legal Framework of Medical Care in Armed Conflicts

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International Humanitarian Law Geneva Law, consisting of the four Geneva Conventions of 1949 and the three Additional Protocols of 1977 and 2005, contends with the victims of war, i.e. wounded, sick and shipwrecked combatants, civilians, and prisoners of war, and their protection.1 The focus in this chapter will be on protected persons in need of medical attention, namely the wounded and sick, prisoners of war, and civilians, on the one hand, and on the protection of the medical personnel and more specifically physicians on the other. Physicians are among the most essential actors in an armed conflict.2 They make armed conflicts bearable by treating the victims and ensuring that the loss of life is kept in bounds. Hence, they are also protected. Their protection includes the protection of their medical duties, which are essential for the treatment and protection of those in need of medical care. A

The Geneva Conventions of 1864, 1906 and 1929

1 General Introduction to the Geneva Conventions The Geneva Conventions are nowadays considered the guarantors of the protection of the wounded, sick and shipwrecked in armed conflicts. There were, however, other treaties and national rules that established similar principles to regulate warfare for, amongst other reasons, the benefit of the wounded and sick, and medical personnel. Of these, the Lieber Code of 1863 is the most prominent. The Instructions for the Government of Armies of the United States in the Field – later known as the Lieber Code – was the first official military manual to codify rules for armed forces in armed conflicts.3 It was not an international, but 1 This area of international humanitarian law is referred to as Geneva Law because the first international humanitarian treaties on the protection of victims of war were adopted in Geneva, Switzerland. The Hague law refers to the provisions dealing with the methods and means of warfare, after the city where these provisions were adopted in an international treaty, in The Hague, the Netherlands. 2 Torrelli, ‘La Protection du Médecin dans les Conflits Armés’, p. 582. 3 It was initiated and drafted by Francis Lieber, a professor at Columbia University in New York of German origin, approved by President Abraham Lincoln, and published as General Orders,

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rather an intra-national document. The Lieber Code was first applied by the Union Army in the American Civil War of 1863 and remained in use in the u.s. Army until 1914. The basis for the Lieber Code is the presumption that ‘peace is [the] normal condition; war is the exception’ (article 29). It thus proposes certain rules of war to be adhered to during armed conflicts. In particular, article 79 of the Lieber Code states that ‘[e]very captured wounded enemy shall be medically treated, according to the ability of the medical staff’. It is a precursor of the principle that the wounded be provided with medical care as can be found in the Geneva Conventions. Several European States subsequently copied provisions of the Lieber Code in national military manuals.4 Because of this international impact, the Lieber Code can be seen as one of the bases of international humanitarian law.5 The need for instruments for the protection of wounded and sick combatants was widely acknowledged when Henry Dunant’s memories of the battle of Solferino were published in 1862, one year before the adoption of the Lieber Code. It was a proposal for the amelioration of the care for the wounded and sick.6 Dunant describes the battlefield in and around Solferino, Northern Italy, in the battle of the allied forces under Napoleon III against the Austrians in June 1859. The battle resulted in overcrowded field lazarettos, hospitals, churches, houses and villages, and the death of enumerable soldiers who, according to Dunant, could have been saved if more than the handful of women from the villages had collected and cared for the sick and wounded. Dunant called for the following:



No. 100 in 1863. Richard Shelly Hartigan & Francis Lieber (eds), Lieber’s code and the law of war (Precedent, 1983), p. 5–6; 15. 4 For a more detailed discussion, see Silja Vöneky, ‘Der Lieber’s Code und die Wurzeln des modernen Kriegsvölkerrechts’, 62 Zeitschrift für ausländisches öffentliches Recht und Völkerrecht, 423 (2002), p. 423–460. Also Hartigan & Lieber (eds), Lieber’s code and the law of war, p. 22–23. 5 Some believe the Lieber Code to be the basis for the Hague Law. Christopher Greenwood ‘Historical Development and Legal Basis’ In: Fleck (ed), The Handbook of International Humanitarian Law, para. 116. The Code, nevertheless, also contains provisions akin to Geneva Law, for example articles 22 (principle of distinction between civilians and combatants), 35 (protection of hospitals), 37 and 44 (protection of civilians), 76 (treating prisoners of war with humanity), and 71 and 79 (the protection of wounded combatants and prisoners of war). 6 Henry Dunant, Un souvenir de Solférino (1862). For an extensive account of the development of Dunant’s cause, see Pierre Boissier, De Solférino à Tsoushima – Histoire du Comité International de la Croix-Rouge, Vol. 1 (Plon, 1963).

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[…] des infirmiers et des infirmières volontaires, diligents, préparés et initiés à cette œuvre, et qui, reconnus par les chefs des armées en campagne, soient facilités et soutenus dans leur mission.7 According to Dunant, a better and more organized care for the wounded and sick would have been beneficial for all parties involved: a committee with the sole aim of organizing the collection, treatment, and care for the wounded soldiers could have decreased the number of needlessly fallen soldiers. Dunant therefore called for the establishment of national relief societies that in times of peace would remain dormant, but in times of war become active in the aid of the medical services of armed forces and the coordination of independent medical care for the wounded in war. Additionally, the medical personnel were to be immune from attack and capture.8 An international treaty was to realize the operation of these relief societies.9 Dunant’s call was eventually heard.10 In 1863, the Comité international et permanent de secours aux militaires blessés (Geneva Committee) was established. It consisted of five members around Gustave Moynier, lawyer and president of the Geneva Society for Public Welfare.11 In 1875, the Geneva Committee became the International Committee of the Red Cross (icrc).12 2 The Initial Geneva Conventions In 1863, the Geneva Committee drafted a document which called for the organization of voluntary assistance in times of war, care for the wounded and sick during armed conflict, the neutralization of medical institutions as well as  7 Dunant, Un souvenir de Solférino, p. 111.  8 This idea originated from the Dutch medical officer Dr. J.H.C. Basting. Frits Kalshoven, Reflections on the Law of War – Collected Essays, Vol. 17 (Martinus Nijhoff Publishers, 2007), p. 997.  9 Géza Herczegh, Development of international humanitarian law (Akadémiai Kiadó, 1984), p. 21. 10 In 1901, Henry Dunant together with Frédéric Passy, a known pacifist, received the Nobel Peace Prize for his work. The icrc itself received the prize in 1917. See André Durant, ‘Le premier Prix Nobel de la Paix (1901) – Candidatures d’Henry Dunant, de Gustave Moynier et du cicr’, 83 Revue Internationale de la Croix-Rouge (2001). 11 The initial members of the Geneva Committee were Gustave Moynier, General GuillaumeHenry Dufour, Henry Dunant, and the physicians Dr. Louis Appia and Dr. Théodore Maunoir. 12 For a detailed analysis of the icrc as an organization, consult Beigbeder, The Role and Status of International Humanitarian Volunteers and Organizations – the Right and Duty to Humanitarian Assistance, Chapter 2.

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medical personnel, and the establishment of a neutral sign that would indicate the status of medical transport and personnel. It found support among politicians and authorities for a conference concerning its proposal that was held during four days in October 1863 in Geneva and was attended by thirty-one representatives from sixteen European states, including Prussia and France.13 The draft was greeted with great resonance. Following the conference, the Geneva Committee redrafted its proposal in a form more suitable for international recognition. The Convention for the Amelioration of the Condition of the Wounded in Armies in the Field was finally adopted by the representatives of twelve European states on 22 August 1864.14 The adoption marked an ‘abîme entre le passé et l’avenir’15 and the ‘starting-point of the Geneva Law on the protection of victims of armed conflict’.16 a The Geneva Convention of 1864 In its ten articles, the Geneva Convention of 1864, first of all, established the International Committee of the Red Cross, an organization for the benefit of the wounded and sick in times of peace as well as in times of war, and, second of all, produced a common denominator among states for certain basic humanitarian principles during war. The humanitarian principle that ‘wounded and sick combatants, to whatever nation they may belong, shall be collected and cared for’17 which has become the basis for medical care in armed conflicts was introduced in article 6.18 It 13

Pictet (ed), Commentary I, p. 8; Hans-Peter Tüscher, Die völkerrechtliche Regelung des Loses der Kriegsopfer vor Abschluß der Genfer Konvention von 1864 (Juris, 1969), p. 103; AugusteRaynald Werner, La Croix-Rouge et les Conventions de Genève – Analyse et Synthèse juridiques (Georg, 1943), para. 9. 14 The original signatories were Baden, Belgium, Denmark, France, Hesse, Italy, the Netherlands, Portugal, Prussia, Spain, Switzerland and Wurttemburg. Available online at www.icrc.org/ihl.nsf/WebSign?ReadForm&id=120&ps=P. Four states present at the conference decided to sign at a later date. Boissier, De Solférino à Tsoushima – Histoire du Comité International de la Croix-Rouge, p. 161–162. 15 Gustave Moynier as quoted in Tüscher, Die völkerrechtliche Regelung des Loses der Kriegsopfer vor Abschluß der Genfer Konvention von 1864, p. 108. 16 Herczegh, Development of international humanitarian law, p. 23. 17 It should be noted that the wounded and sick were not declared ‘neutral’ as such. Only the medical personnel, units and transports were given neutrality. Kalshoven, Reflections on the Law of War, p. 1000. 18 Comparable to article 8 of the Hague Convention (III) for the Adaptation to Maritime Warfare of the Principles of the Geneva Convention of 22 August 1864 of 29 July 1899: ‘Sailors and soldiers who are taken on board when sick or wounded, to whatever nation they belong, shall be protected and looked after by the captors’.

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offered protection to wounded and sick combatants only.19 The article was also the only provision addressing the fate of prisoners of war. Furthermore, articles 1 and 2 established the neutrality of the medical personnel, facilities and transportation as a counterpart to and necessary for the protection of the wounded and sick. Neutrality was, however, considered a functional necessity, not an inherent right.20 Medical personnel were only neutral when on duty, when caring for the wounded, or while more wounded combatants requiring treatment were expected. Article 5 additionally introduced the principle of neutrality of ‘humane conduct’ meaning that civilians offering assistance in caring for the wounded were also to be regarded as neutral and to ‘remain free’.21 Lastly, the distinctive emblem of the Red Cross on a white ground to indicate medical facilities and personnel to ensure their neutrality was introduced in article 7. Even though the Geneva Convention of 1864 was the first multilateral treaty for the protection of the victims of war and, for the first time, penetrated the realm of war which was until then considered state business,22 its ideas and provisions were not necessarily innovative.23 Much was based on customary international law.24 Moreover, it failed to address prisoners of war and the protection of the civilian population. It was not until after World War I that these issues were finally addressed on a multilateral level. Nonetheless, the Geneva Convention of 1864 introduced, in a multilateral treaty,25 the protection of the wounded and sick and the principle that if the former are to be protected and cared for, the treating medical personnel and civilians also need to be protected.

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See also Jann Kleffner, ‘Protection of the Wounded, Sick and Shipwrecked’, in Dieter Fleck (ed), The Handbook of International Humanitarian Law (Oxford University Press, 2008), para. 602. 20 Kalshoven, Reflections on the Law of War, p. 1001. 21 This can be seen as the basis for the subsequent article 16 ap i which protects all those persons involved in ‘medical activities’. 22 Pictet (ed), Commentary I, p. 9. 23 Ibid. p. 8; Tüscher, Die völkerrechtliche Regelung des Loses der Kriegsopfer vor Abschluß der Genfer Konvention von 1864, p. 109. 24 Jean-Marie Henckaerts, ‘The Development of International Humanitarian Law and the Continued Relevance of Custom’, in Howard M. Hensel (ed), The Legitimate Use of Military Force – the Just War Tradition and the Customary Law of Armed Conflict (Ashgate, 2008), p. 117. 25 Additionally, other states were invited to join and accede to the Convention in articles 8 and 9. It has been claimed that this was the first ‘open treaty’ in the history of international law. Herczegh, Development of international humanitarian law, p. 24.

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b The Geneva Convention of 1906 Shortly after its ratification, the Geneva Convention of 1864 was already considered insufficient, partly because some of its provisions were difficult to be reconciled with the principle of military necessity.26 An overall revision was finalized in 1906 when the (second) Geneva Convention of 1906 was ratified.27 It contained thirty-three articles categorized by subject in eight chapters that were equally applicable to wars at sea. The Geneva Convention of 1906 built on the already established principles, yet expanded some and introduced others. The formulation of the protection of the wounded and sick remained the same, namely that they be ‘respected and cared for’, but was moved to articles 1 and 3 of the Convention. Their scope of application was extended to include ‘officers, soldiers, and other persons officially attached to armies’. The principle of neutrality for medical personnel and establishments was discarded and replaced by the phrase ‘protect and respect’ regarding sanitary formations, establishments, and personnel. This considerably broadened the protection of medical personnel. Pursuant to article 9, the protection was to apply ‘under all circumstances’. The protection of and respect for medical facilities and personnel was considered concomitant to the fact that sick and wounded soldiers were to be protected at all times.28 In addition, articles 9 and 12 determined that medical personnel in the hands of an adversary party would not be prisoners of war and that they ‘continue to exercise their functions’. The Convention also provided more detail on the use of the distinctive emblem, for example article 20 introduced the mandatory use of the emblem as an arm brassard for all ‘neutral’ medical personnel.29 Furthermore, the scope of application was expanded to include all conflicts

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Pictet (ed), Commentary I, p. 14. The diplomatic conference had first devised 15 additional articles to the Geneva Convention of 1864 that would make it equally applicable to naval forces. These articles were never ratified. Herczegh, Development of international humanitarian law, p. 28. 28 Kalshoven, Reflections on the Law of War, p. 1004. 29 Beyond the material provisions, the Geneva Convention of 1906 also changed the scope of application of the Convention to include conflicts between one or more states (article 24), urged for the dissemination of the Convention among soldiers and others enjoying the protection of the Convention (article 26), and called upon the signatories to amend their military penal laws to accommodate ‘[repression], in time of war, [of] individual acts of robbery and ill treatment of the sick and wounded of the armies, as well as to punish, as usurpations of military insignia, the wrongful use of the flag and brassard of the distinctive emblem by military persons or private individuals not protected by the present convention’ (article 28).

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between two or more of its contracting parties, yet it would not apply if not all of the warring states were members.30 Although the basic principles introduced in 1864 were maintained, the Geneva Convention of 1906 introduced two significant changes: the treatment of the wounded was prioritized by its placement in the very first article of the Convention, and the principle of neutrality for medical personnel was replaced by the phrase ‘protect and respect’ that is still being used. Nonetheless, it could not adequately foresee all problems to be encountered some ten years later in World War I. c The Geneva Conventions of 1929 After the experiences and developments in modern warfare of World War I, a revision of the Geneva Convention of 1906 was deemed necessary. Even though the Convention had generally been applied and respected, especially the repatriation of doctors and nurses had often been lagging behind.31 In 1929, the Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armies in the Field was adopted. In this third version, subtle changes were made and six articles were added. Overall, the Convention retained its structure and character. On the same date, the diplomatic conference in Geneva also adopted a separate convention, the Convention Relative to the Treatment of Prisoners of War of 1929. It supplemented earlier provisions in the Hague Regulations of 1899 and 1907 which both addressed the treatment of prisoners of war in general but referred to the Geneva Convention of 1864 and 1906 respectively for the treatment of the sick and wounded.32 Article 1 of the Geneva Convention of 1929 added the requirement that the wounded and sick be ‘protected in all circumstances’ to the general requirement 30

This is the si omnes clause contained in article 24 said to have been introduced in favor of the colonizing states that did not wish to apply Geneva Law in wars with native populations in their colonies. Herczegh, Development of international humanitarian law, p. 33. However, the article remained a dead letter and was never relied upon. Anton Schlögel (ed), Die Genfer Rotkreuz-Abkommen vom 12. August 1949 und die beiden Zusatzprotokolle vom 10. Juni 1977, 7th Ed. (Schriften des Deutschen Roten Kreuzes, 1980), p. 11. 31 Pictet, Development and Principles of International Humanitarian Law, p. 31. For a discussion of war crimes in World War I see Franz W. Seidler & Alfred M. de Zayas (eds), Kriegsverbrechen in Europa und im Nahen Osten im 20. Jahrhundert (E. S. Mittler & Sohn GmbH 2002). 32 See article 21 of both Hague Regulations respecting the Laws and Customs of War on Land of 1899 and 1907. Adam Roberts & Richard Guelff (eds), Documents on the Laws of War, 3rd Ed. (Oxford University Press, 2000), p. 243. These two documents will not be further discussed in this book.

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of respect and care. Moreover, the principle of humane treatment of the sick and wounded was added in a subsequent sentence. This is still the basis for protection at present. The scope of application remained unchanged. The protection of medical personnel remained unaltered but article 10 introduced the protection of voluntary aid societies. Additionally, article 18 established the protection of medical aircrafts.33 Articles 9 and 12 had been amended to some extent: the principle that medical personnel would not be prisoners of war was reiterated, yet it was determined that they could not be retained and should be sent back immediately, unless agreed otherwise.34 Until their return, medical personnel could be asked to carry out medical functions. Pursuant to the Geneva Convention Relative to the Treatment of Prisoners of War of 1929 prisoners of war ‘shall at all times be treated humanely and protected, particularly against acts of violence, from insults and from public curiosity’.35 The provision neither specified what constituted an act of violence, nor mentioned mutilation or experimentation, later considered grave breaches pursuant to the Geneva Conventions of 1949.36 The Convention furthermore determined in article 14 that prisoners of war be provided with free and voluntary access to an infirmary where they ‘shall receive attention of any kind of which they may be in need’. Though the Geneva Convention of 1906 had been replaced by a more refined version, the basis remained the same: the interlinked protection of the wounded and sick and the protection of medical personnel was elaborated, yet not gravely expanded. Hence, the Convention Relative to the Treatment of Prisoners of War was a much needed innovation and provided prisoners of war with basic protection. At the outbreak of World War II in 1939 forty-four states had ratified the Geneva Convention concerning the Condition of the Wounded of 1929 and thirty-nine had ratified the Geneva Convention Relative to the Treatment of

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Further changes in the Geneva Convention of 1929 were article 19 allowing for the use of the red crescent or red lion and sun on a white background which certain countries preferred over the red cross on white, articles 29 and 30 determining that violations of the Convention were to be adequately addressed in penal laws, as opposed to only military penal laws as was required in the Geneva Convention of 1906, and finally the removal of the si omnes clause. It was replaced by article 25 stating that ‘the present Convention shall be respected by the High Contracting Parties in all circumstances’ even if one of the belligerents was not a party to it. Liselotte B. Watson, ‘Status of Medical and Religious Personnel in International Law’, 20 jag Journal, 41 (1965), p. 44. Article 2 Geneva Convention Relative to the Treatment of Prisoners of War of 1929. To be discussed in Chapter 2.

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Prisoners of War of 1929. Although the Geneva Convention of 1929 concerning the wounded and sick was generally applied in World War II, two of the major parties, Japan and the ussr, had not ratified the Convention.37 Especially prisoners of war of the Soviet Union in Germany and German prisoners of war captured and/or detained in the Soviet Union suffered from this. Mortality amongst both groups was extremely high.38 The civilian populations also suffered immensely because their protection under international law was lagging behind.39 Next to these blatant violations against prisoners of war on the German and the Soviet side and the neglect of civilians, medical personnel were again unduly retained to treat the prisoners of war by adverse parties40 and at times killed for treating or being ‘the enemy’.41 After the war, it was established that the Geneva Convention of 1929 had already been customary law at the beginning of the war in 1939.42 During World War II, the two Geneva Conventions of 1929 served as a far too elementary basis for protection. More precision on the prohibited acts of violence would have been desirable. B

Medical Care in International Armed Conflicts

With the first Geneva Convention of 1864, the development of increased medical attention for and protection of the wounded and sick had been set in 37

Japan had declared that it would apply the provisions mutatis mutandi. Allan Rosas, The Legal Status of Prisoners of War – a Study in International Humanitarian Law applicable in Armed Conflicts, Reprint (Åbo Akademi, 2005), p. 77. 38 See Pictet, Development and Principles of International Humanitarian Law, p. 37; Horst Fischer, ‘Protection of Prisoners of War’, in Dieter Fleck (ed), The Handbook of International Humanitarian Law (Oxford University Press, 2008), para. 700.5; Rosas, The Legal Status of Prisoners of War – a Study in International Humanitarian Law applicable in Armed Conflicts, p. 78. For concrete examples, consult Seidler & de Zayas (eds), Kriegsverbrechen. 39 Without international regulation, the fate of civilians in World War II was in the hands of the party whose power they were in; thousands died. Oscar M. Uhler & Henri Coursier (eds), Commentary to the Geneva Convention Relative to the Protection of Civilian Persons in Time of War (International Committee of the Red Cross, 1958), p. 5. 40 Pictet, Development and Principles of International Humanitarian Law, p. 32; Torrelli, ‘La Protection du Médecin dans les Conflits Armés’, p. 596. 41 Seidler & de Zayas (eds), Kriegsverbrechen, p. 176–178. 42 Nuernberg Military Tribunals, United States v. von Leeb et al. [‘The High Command Case’] [1948] Trials of War Criminals, Vol. XI, p. 535; Christopher Greenwood, ‘Historical Development and Legal Basis’, in Dieter Fleck (ed), The Handbook of International Humanitarian Law (Oxford University Press, 2008), para. 123.

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motion.43 The experiences of World War II, especially the medical mistreatment of civilian populations and prisoners of war, the medical experiments and the lack of medical care provided to protected persons demonstrated that the Geneva Conventions of 1929 had not been sufficient to safeguard the rights of the vulnerable. They necessitated a grand scale revision.44 This revision had already been discussed as early as 1937. The icrc had already prepared and sent drafts to member states in January 1939.45 Due to the war, it was never carried out. In the eventual revision, the basic principles of the initial Conventions were retained yet wholly revised to maintain their relevance in modern international armed conflicts. On 12 August 1949 the four renewed Geneva Conventions were adopted by the sixty-four states represented at the diplomatic conference in Geneva: the Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in the Armed Forces in the Field (Geneva Convention I), the Geneva Convention for the Amelioration of the Condition of the Wounded, Sick and Shipwrecked Members of the Armed Forces at Sea (Geneva Convention II), the Geneva Convention relative to the Treatment of Prisoners of War (Geneva Convention III), and the Geneva Convention relative to the Protection of Civilian Persons in Times of War (Geneva Convention IV).46 The Conventions are written in a uniform system with some common articles such as articles 1, 2 and 3, and a similar structure. Because of the volume of 43

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All initial Geneva Conventions were quite widely accepted, also during World War II. The rate of ratification fluctuated only minimally, with 57 state parties to the Geneva Convention of 1864, a slight decrease by five to 63 state parties in 1906, and 60 state parties to the Geneva Convention concerning the Wounded in the Field of 1929, and 53 state parties to the Geneva Convention relative to the Treatment of Prisoners of War of 1929. Generally, most state parties were European states, some ex-colonial South and Middle American states, the United States of America, and a few Asian and African states. For an overview, consult International Committee of the Red Cross: Treaties and Documents, at http://www.icrc.org/ihl.nsf/INTRO?OpenView. Swiss Federal Council for the Establishment of International Conventions for the Protection of War Victims, Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II A, Reprint (William S. Hein & Co., 2004), p. 9–10. Roberts & Guelff (eds), Documents on the Laws of War, p. 197; Herczegh, Development of international humanitarian law, p. 44. Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in the Armed Forces in the Field; Geneva Convention for the Amelioration of the Condition of the Wounded, Sick and Shipwrecked Members of the Armed Forces at Sea; Geneva Convention relative to the Treatment of Prisoners of War; and Geneva Convention relative to the Protection of Civilian Persons in Times of War, of 12 August 1949, 75 u.n.t.s. 31–417 (1950); as reproduced in Roberts & Guelff (eds), Documents on the Laws of War.

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rules, the drafters decided to draft four separate documents: one for each category of victims, instead of a single, all-encompassing convention. The rules concerning prisoners of war were completely revised47 and one entire convention containing 159 articles was devoted to the protection of civilians which was an essential innovation compared to the previous Conventions. Moreover, the Geneva Conventions introduced new terminology: instead of the term ‘war’, the Conventions speak of ‘armed conflict’ in order to move away from the rigid concept of the state of war and the applicable customary rules; the protection of those hors de combat and of different kinds of medical personnel was expanded; basic protection in non-international armed conflicts was established; and the concept of ‘grave breaches’ was introduced. Overall, the Geneva Conventions of 1949 launched new concepts that revolutionized the laws of armed conflict. The Geneva Conventions are universally accepted and are widely accepted as customary international law.48 After the Geneva Conventions had been in use for several years, the idea arose of improving and developing Geneva Law in order to keep international humanitarian law relevant in light of the political developments in the world. With the end of colonialism when bloody wars of liberation had been fought, guerilla warfare gained influence and non-international armed conflicts became prevalent, a further specification of international humanitarian law was deemed necessary. On 8 June 1977, states adopted the set of Protocols Additional to the Geneva Conventions of 1949. Unlike the Geneva Conventions, the Additional Protocols are both a convergence of Geneva and Hague Law: they address both the protection of the victims of war, as well as the means and methods of warfare. The first Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Additional Protocol (ap) i)49 supplements the provisions dealing with international armed conflicts, whereas the second Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (Additional Protocol (ap) ii)50 addresses

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Fischer, ‘Protection of Prisoners of War’, p. 371. See Chapter 3. Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Additional Protocol I), of 8 June 1977, 1125 u.n.t.s. (1979) 3–608. Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (Additional Protocol II), of 8 June 1977, 1125 u.n.t.s. (1979) 609–699.

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non-international armed conflicts.51 Article 1 (3) ap I states that the Protocol supplements the Geneva Conventions of 1949. It also reaffirms the Geneva Conventions of 1949 in the fifth preamble by stating that the protection afforded in the Geneva Conventions should extend to all protected persons in all circumstances. Additional Protocol I has been ratified by 173 states and Additional Protocol II by 167 states which excludes, amongst others, the United States of America, Israel, Iran, Somalia and several other states.52 Their application is thus limited due to the fact that not all important world players have ratified them. The customary status of the, for this book, most important articles will thus be examined separately to determine whether protection against unwarranted and unethical medical procedures applies universally.53 This chapter lays the basis for the subsequent discussion. It details the provisions of international humanitarian law that regulate the medical care given to wounded and sick combatants, prisoners of war and civilians on the one hand, and those that address the protection of the medical personnel and the limits to its duties on the other. The rules applicable in non-international armed conflicts will be analyzed subsequently. 1 Protection of those in Need of Medical Care a Definition of the Wounded and Sick The wounded and sick that are protected are defined in article 8 (a) ap I.54 This definition includes both civilian and military persons who are ‘in need of medical assistance or care’ because of ‘trauma, disease or other physical or mental 51

A discussion of the limited legal framework for non-international armed conflicts in common article 3 to the Geneva Conventions and Additional Protocol II will be conducted below. 52 The Additional Protocol I is available online at www.cicr.org/ihl.nsf/ WebSign?ReadForm&id=470&ps=P and Additional Protocol II at www.icrc.org/ihl.nsf/ WebSign?ReadForm&id=475&ps=P. 53 This examination will be conducted in Chapter 4. 54 Additional Protocol I supplements the provisions of protected persons as contained in the Geneva Conventions of 1949, in particular the wounded and sick. Especially, article 8 ap I provides detailed definitions of the protected persons under Geneva Law which had been lacking in the Geneva Conventions of 1949. The listed definitions are for the purposes of the Protocol only: the drafters were hesitant to infringe on the protection offered by the Geneva Conventions. Sandoz, et al. (eds), Commentary to the Additional Protocols, para. 299. Officially, these definitions thus only apply to the Additional Protocol. In practice, however, they are considered customary international law. Rule 109 in JeanMarie Henckaerts, et al. (eds), Customary International Humanitarian Law, Vol. 1: Rules (Cambridge University Press, 2005); Kleffner, ‘Protection of the Wounded, Sick and Shipwrecked’, para. 602.2.

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disorder or disability’ yet it excludes those committing ‘any act of hostility’. Protected are, thus, those persons hors de combat who also require medical treatment. This category does not only address military wounded and sick but, in contrast to article 13 gc i and II, also includes wounded and sick civilians, explicitly listing those with special needs.55 This inclusion is a significant development as it closes the gap between the protection of wounded and sick combatants and wounded and sick civilians. Article 8 (a) does not differentiate between mental and physical disorders. This is especially important because the trauma and stress of armed conflicts can cause great mental distress and, consequently, disorders. The recognition of these ‘wounds’ was a necessary step forward. b Medical Care for Wounded and Sick Combatants Article 12 gc i and ii – identical in the two Conventions – provides detailed protection for wounded and sick combatants by stating that ‘members of armed forces and other persons mentioned in the following article, who are wounded or sick, shall be respected and protected in all circumstances’.56 It contains the basis for the Geneva Conventions: the protection in all circumstances of those who are hors de combat due to being wounded, sick or shipwrecked.57 The severity of wounds or sickness needed for the protection is not detailed in the provision because any limitation would undesirably narrow the scope of protection.58 The protection of the wounded, sick and shipwrecked is twofold. ‘Protected’ entails a positive obligation for adversary states, but also individual adversary soldiers, civilians59 and medical personnel60 to give the wounded, sick and shipwrecked the necessary care. ‘Respected’ entails a negative obligation meaning that the adversary state, individual soldiers or civilians

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Requiring special protection, pursuant to article 8 (a) ap i, are maternity cases, newborns, and other persons in need of immediate medical assistance or care, such as the infirm or pregnant women. 56 The provisions in article 12 are applicable to those persons listed in article 13 gc i. Article 12 gc ii makes it equally applicable to the shipwrecked. The criterion is whether the person is entitled to the prisoner of war status of article 4 (A) gc iii. Article 12 is an elaboration of article 6 gc of 1864, article 1 Geneva Convention of 1906, and article 1 Geneva Convention of 1929. 57 Pictet (ed), Commentary I, p. 145. 58 Pictet (ed), Commentary I, p. 150. 59 Ibid. p. 148–149. 60 Baccino-Astrada, Manuel des Droits et Devoirs du Personnel Sanitaire lors des Conflits Armés, p. 39.

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are not to harm the wounded, sick and shipwrecked in any way.61 This absolute obligation cannot be breached by invoking military necessity.62 In reiterating this main principle of the Geneva Conventions, article 10 ap I adds that also civilian wounded, sick and shipwrecked civilian are to be protected and respected at all times.63 The second paragraph of the articles lays the foundation for the provision of medical care to the wounded and sick by, amongst others, medical personnel, including its limits: all wounded and sick ‘shall be treated humanely and cared for’. Article 10 (2) ap i adds that the wounded and sick should ‘to the fullest extent practicable and with the least delay, receive the medical care and attention required by their condition’. This indicates that ‘no one is expected to do the impossible’ but an attempt should be made to provide medical care and attention as required.64 In providing medical care, there should be no differentiation between the wounded and sick based on ‘sex, race, nationality, religion, political opinions, or any other similar criteria’.65 This is a non-exhaustive list of differentiations considered important after World War II.66 Pursuant to article 12 (3), prioritization in the order of treatment of he wounded and sick is only justified if based on the severity of wounds or the overall medical condition. Article 10 (2) ap i clarifies: only medical grounds justify a difference in treatment. This principle of non-discrimination is one of the fundamental norms of international

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It should be noted that pursuant to article 14 gc ii, the wounded, sick and shipwrecked on hospital ships can be requested to be surrendered to a warship of the adversary party under two conditions: they have to be fit enough to be transferred and the ship requesting their surrender must be able to afford them with adequate medical care. This does not entail a loss of protection but merely provides for a realistic option: parties to a conflict might want to treat the wounded, sick and shipwrecked themselves as prisoners of war and thus prevent them from returning to the battlefield for the adversary. McCoubrey, International Humanitarian Law, p. 123. Hilaire McCoubrey, ‘The Nature of the Modern Doctrine of Military Necessity’, 30 Revue de Droit Militaire et de Droit de la Guerre, 215 (1991), p. 220–221 and 239; Kleffner, ‘Protection of the Wounded, Sick and Shipwrecked’, para. 603.5. Sandoz, et al. (eds), Commentary to the Additional Protocols, para. 444; Maurice Torrelli, Le Droit International Humanitaire (Presses Universitaires de France, 1985), p. 46. Sandoz, et al. (eds), Commentary to the Additional Protocols, para. 451. The principle of non-discrimination is reiterated in article 30 gc ii concerning hospital ships: they are also to treat all wounded, sick and shipwrecked equally and not distinguish between nationalities. Pictet (ed), Commentary I, p. 151–152.

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humanitarian law.67 The physician must determine which patients should be treated with priority and what treatment is called for. Medical ethics should govern such choices and these decisions should be made impartially.68 Naturally, during triage medical personnel will differentiate between those to be treated and determine the order of treatment. As long as such decisions are based on medical reasons and not on other considerations, this is a legitimate and necessary procedure.69 Although article 12 (4) determined that women should be treated ‘in consideration due to their sex’, they should also not be discriminated against due to their gender. Any violation of the principle of non-discrimination or a denial of care or assistance should be classified as culpable neglect by the treating physician.70 Finally, the last paragraph determines that if a party to the conflict is forced to leave behind wounded and sick combatants, it is to leave them with ‘part of its medical personnel and material to assist in their care’. This obligation is limited by military necessity, as a party is only obliged to leave these aids ‘as far as military considerations permit’. Pictet classified this obligation as a ‘pressing recommendation’. It is not absolute, but rather advisory.71 The explicit limits for the treatment of the military wounded and sick are non-exhaustively listed in paragraph 3 as murder, extermination, torture, and biological experiments. All of these acts are also ‘grave breaches’ of the Geneva Conventions under articles 49 and 50 gc i and articles 50 and 51 gc ii. Furthermore, willful negligence and the creation of conditions which expose the wounded and sick to contagion or infection are also strictly prohibited.

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Hilaire McCoubrey, International Humanitarian Law – Modern Developments in the Limitation of Warfare, 2nd Ed. (Ashgate Dartmouth, 1998), p. 82–83. The principle of nondiscrimination can also be found in common article 3 and articles 12 gc I and II, 16 GC III, and 27 gc IV. 68 Michael Bothe, et al., New rules for Victims of Armed Conflicts – Commentary on the two 1977 Protocols Additional to the Geneva Conventions of 1949 (Martinus Nijhoff Publishers, 1982), p. 108; Torrelli, Le Droit International Humanitaire, p. 47. The meaning of the term ‘medical ethics’ will be analyzed in Part III. 69 Concerning the ethical dilemmas physicians may face during triage, see Marcus P. Adams, ‘Triage Priorities and Military Physicians’, in Fritz Allhoff (ed), Physicians at War: The Dual Loyalties Challenge (Springer, 2008). Adams describes the different standards in triage and finds that the dilemma is not about sorting patients in accordance of medical needs, ‘[e]thical dilemmas arise, rather, in how each of [the] categories is given priority in terms of treatment’ (p. 218). 70 McCoubrey, International Humanitarian Law, p. 85. 71 Ibid. p. 156.

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Because they may ‘willfully [cause] great suffering or serious injury to body and health’ they may also fall under the ‘grave breaches’ provisions.72 Article 12, especially the third paragraph, is evidently grounded in the experience of World War II. Biological and medical experiments and willful exposure to contagion and infection committed by German medical personnel were to be prevented in future wars. It is apparent that the Geneva Conventions intended to prohibit all non-therapeutic experiments and only allow therapeutic experiments under the condition that an experiment is justified by the health of a person and within his interests.73 The latter is established for prisoners of war in article 13 gc iii yet should equally apply to the wounded and sick.74 Considering that the restriction to biological experiments only seems rather limited, it should be inferred that it includes all experiments, whether biological or scientific, medical or psychological.75 In comparison to the Geneva Convention of 1929, the protection of the wounded and sick has significantly improved. Though article 12 provides the most basic protection for wounded and sick combatants in an international armed conflict, its scope is much broader than article 1 of the Geneva Convention of 1929. The principle of non-discrimination is extended beyond the mere prohibition of discrimination based on nationality, to all non-medical grounds for discrimination by article 10 ap i. Moreover, certain acts of violence are prohibited and prosecutable. Articles 12 gc i and ii and 10 ap I are part of customary international law.76 c Medical Care for Prisoners of War As a vulnerable group of persons, prisoners of war deserve special attention. In the power of an adverse party, their health and well-being depends on the treatment they receive. Prisoners of war are all ‘members of the armed forces of a party to the conflict, as well as members of militias or volunteer corps forming part of such armed forces’ or those who meet the criteria of the further categories in article 4 gc iii. They are entitled to protection, not only when 72 73

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Articles 50 gc i and 51 gc ii. For further analysis of medical grave breaches, see Chapter 3. The terminology of therapeutic and non-therapeutic experiments was developed after 1949. McCoubrey, International Humanitarian Law, p. 88. According to the Oxford Dictionary, ‘therapeutic’ means ‘of or pertaining to the healing of disease’. The Oxford Dictionary of English, available online at www.oed.com. Article 32 gc IV forbids experiments on civilians that are not ‘necessitated by the medical treatment of a protected person’. A more detailed discussion will follow. Article 11 ap i provides a possible remedy, to be discussed below and in Chapter 3. Customary international humanitarian law will be given more attention in Chapter 4.

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wounded and sick,77 as soon as they fall into the hands of the adversary in an international armed conflict and until their release. The definition was broadened by article 44 ap i to include combatants who do not or cannot distinguish themselves but carry arms openly. The provision raised much criticism for broadening the category of persons.78 Until prisoner of war status can be established or denied, it is assumed.79 Captured persons who are not entitled to the protection in Geneva Convention III, should be treated as civilians or at least enjoy the most general protection of article 75 ap i. After each military engagement, the parties to the conflict should search for the wounded and sick and ensure their adequate care.80 Pursuant to article 16 gc iii, if wounded and sick fall into the hands of the adverse party this is to be recorded by that party. The detaining power is, pursuant to article 12 gc iii, responsible for the treatment given to all prisoners of war including those wounded or sick, and has the duty to provide ‘free of charge for [the prisoners of war’s] maintenance and for the medical attention required by their state of health’.81 Prisoners of war can never renounce any of the rights conferred on them by international humanitarian law. The provision ensures their protection against outside pressure.82 This means that their consent is invalid if it concerns concessions that are prohibited by international humanitarian law. This includes renouncing the right to medical care. Most importantly, prisoners of war are to be protected and respected at all times, similarly to the wounded, sick and shipwrecked. The two aspects are detailed in two separate articles: article 13 gc iii establishes a positive obligation to protect, whereas article 14 gc iii calls for respect fo their persons and honor. Additionally, prisoners of war must be treated humanely at all times (article 13 gc iii). The specification ‘at all times’ 77 78

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This can also be found in articles 14 gc i and 16 gc ii. For example by the United States and the United Kingdom, see for example the uk’s reservation to article 44 ap i which is available online at www.icrc.org/ihl.nsf/NORM/0A9E0 3F0F2EE757CC1256402003FB6D2?OpenDocument. Pursuant to articles 5 (2) gc iii and 45 (1) ap i. If a person is found not to be entitled to the prisoner of war status, he should nevertheless be treated in accordance with article 75 ap I. The status of prisoners of war will not further be discussed. For a detailed analysis, see Fleck (ed), The Handbook of International Humanitarian Law, p. 367 et seq. and Emily Crawford, The Treatment of Combatants and Insurgents under the Law of Armed Conflict (Oxford University Press, 2010). Article 15 gc iii. Article 15 gc iii. Article 7 gc iii. For medical personnel, this provision can be found in articles 7 gc i and II and for civilians in article 8 gc iv.

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is an absolute requirement that is phrased more categorically than in article 12 gc i and ii where ‘at all times’ was omitted. What is considered ‘humane’ often depends on the circumstances of the situation at hand.83 Pictet carefully proclaims that a minimum of humanity requires a person to be able to live acceptably and as normal as possible.84 Article 13 of gc iii stipulates in more detail what does not entail humane treatment: prisoners of war are explicitly protected from physical mutilation and ‘medical and scientific experiments of any kind which are not justified by the medical, dental or hospital treatment of the prisoner concerned and carried out in his interest’. Again, this reference to experimentation involving human subjects can be traced to the experiences of World War I and II. The prohibition addresses all those in contact with the prisoners of war, yet especially the treating physicians, from using prisoners for experiments. Medical and scientific experiments are already generally prohibited under article 13 gc iii because of their inhumanity, however Geneva Convention III particularly emphasizes the importance of this limit by explicating their prohibition. There is one exception to the prohibition of mutilations, and medical and scientific experimentation in article 13 gc iii: such acts are allowed if ‘justified by the medical, dental or hospital treatment of the prisoner concerned and carried out in his interest’.85 A physician can perform an experiment on a prisoner of war or use experimental medical procedures if she believes this to be both justified by the state of health of that prisoner of war and in his interest. The consent of the prisoner of war is not explicitly required which could imply that such treatment can be carried out against her wishes and without consent. Though the exigencies of war surely require some concessions, omitting consent when competent persons are capable of giving it is not justified. Fischer claims this leaves physicians with ‘enough latitude to use all possible treatments for prisoners of war without the risk of being found guilty of a war crime’.86 While it facilitates the work of physicians if they can take all decisions on the manner of treatment, it clearly overemphasizes a physician’s power to decide for patients. The hard paternalism in 83 84

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Kleffner, ‘Protection of the Wounded, Sick and Shipwrecked’, para. 603.2. Jean Pictet, Les principes fondamentaux de la Croix-Rouge proclamés par la XXe conférence internationale de la Croix-Rouge, réunie à Vienne en 1965 (Institut Henry-Dunant, 1979), p. 23–24. De Preux has in mind all procedures not curative in nature. Concerning the grave breaches in article 130 gc iii he states that ‘It must be possible to use new medicaments offered by science, provided that they are administered only for therapeutic purposes’. Preux (ed), Commentary III, p. 662. Fischer, ‘Protection of Prisoners of War’, para. 719 (3).

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this provision is no longer acceptable in modern days. Paternalism may be considered in situations where an individual faces significant and preventable harm which can only be prevented by a paternalistic action where the benefits outweigh the risks and there is no reasonable alternative than to limit the individual’s autonomy.87 This may be acceptable and required in emergency situations where a prisoner of war cannot make an informed decision. Yet hard paternalism should be the exception, not the rule. Nonetheless, although every protected person is entitled to receive medical care, the actual medical treatment is not regulated in the Geneva Conventions.88 Article 13 gc iii is the only article with a reference to the requirement of justification for medical treatment. It should be applied analogously to the medical treatment of all wounded and sick under the Geneva Conventions.89 Article 11 ap i builds on this provision. To guarantee the wellbeing of prisoners of war in prisoner of war camps, article 30 gc iii determines that every such camp shall have an ‘adequate infirmary’ where a prisoner of war can receive the (medical) attention his condition requires.90 Though the article only refers to the treatment and prevention of disease,91 the treatment of wounded prisoners of war should also be included. Prisoners of war should preferably be given attention by medical personnel ‘of the power on which they depend and, if possible, of their nationality’. This requirement aims at medical care being provided ‘within’ the same nationality or party to heighten the comfort of those seeking medical care. It is certainly not a mandatory requirement as it depends on the circumstances and the availability of medical personnel from the relevant party to the conflict.92 In contrast, physicians still have to treat all wounded and sick equally, whether or not prisoners of war, without distinction by nationality or affiliation.93 If a prisoner of war is suffering from a ‘serious disease’ or the condition 87 88

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As discussed in Chapter 1. See Beauchamp & Childress, Principles of Biomedical Ethics, p. 216. Another reference can be found in article 32 gc iv which prohibits medical experiments not ‘necessitated by the state of health of a protected person’. The second requirement of the experiment being in the interest of the person is omitted. The Additional Protocols build on this provision when they expand the protection of persons against unwarranted medical procedures. See the discussion below. It is assumed that the attention referred to is medical because the third paragraph of this article refers to medical personnel. Fischer, ‘Protection of Prisoners of War’, para. 719 (3). Medical personnel cannot be capture, only retained to treat their ‘own’ prisoners of war in prisoner of war camps. See articles 28 gc i and 37 gc ii. For further discussion concerning the retention of medical personnel, see below. Articles 12 gc i and II and 10 ap I.

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requires ‘special treatment, a surgical operation or hospital care’ article 30 gc iii determines that she must be transferred to a military or civilian medical facility. More extensive and intricate procedures should not be carried out in the infirmaries in prisoners of war camps. The categorical formulation using a ‘must’ implies that this is a strict requirement in order to guarantee the best possible treatment for prisoners of war. Moreover, during medical inspections, physicians should use the ‘most efficient methods available’.94 Taken together with the exceptions to the prohibition of experimentation, this is a rather broad authority afforded to medical personnel and leaves much room for interpretation and questions as to the meaning of ‘efficient’. Although Geneva Convention III provides no explanation at this point, the references to ‘professional ethics’ in article 28 gc i and ‘etiquette’ in article 33 gc iii could provide a limit to the broad authority of physicians. The reference to ‘medical ethics’ in article 16 ap i could also provide limits to the authority of physicians.95 A comparison with the Geneva Convention relative to the Treatment of Prisoners of War of 1929 reveals that there was a basic framework for the care of prisoners of war before World War II.96 The Convention of 1929 already called for respect and protection of prisoners of war and their humane treatment at all times. An improvement is certainly the elaboration of prohibited acts of violence against prisoners of war and the consequences of such acts in article 13 gc iii and an extension of the regulation of medical attention. Overall, the Geneva Convention III of 1949 thus gave the provisions of the Convention of 1929 more substance and considerably broadened the scope of protection. However, the limits for physicians in the treatment of prisoners of war will have to be better defined. d Medical Care for the Civilian Population Geneva Convention IV seeks to alleviate and proactively prevent the suffering of civilians in an occupied territory or caught in the middle of an armed conflict.97 During armed conflict civilians, who are the main victims of modern armed conflicts, are first and foremost treated by civilian physicians. Medical treatment is usually provided for in civilian hospitals where national laws and ethical codes primarily apply. Nevertheless, Geneva Convention IV not only 94 95 96

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Article 31 gc iii. The term ‘medical ethics’ will be analyzed in Part III. The basis for articles 12–15 gc iii concerning the treatment of prisoners of war was introduced in article 2 Geneva Convention of 1906 and reiterated in articles 2–4 Geneva Convention relating to Treatment of Prisoners of War of 1929. Articles 2 and 13 gc iv.

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provides protection for civilian hospitals and their personnel which is crucial when a territory is caught in the middle of a conflict or falls within an occupied territory. It also protects the civilian population when in the hands of a party to the conflict or occupying power of which they are not nationals.98 However, civilians are not protected against ‘their’ party to the conflict in international armed conflicts. Furthermore, all other persons already protected under one of the other Geneva Conventions and those taking an active part in hostilities are excluded.99 First and foremost, all civilians should be protected, respected and treated humanely.100 In addition, the special protection of the wounded, sick, and infirm, and pregnant women is established in article 16 gc iv. Civilian wounded and sick are also protected under article 10 ap i.101 Primarily, civilian wounded and sick should be treated in civilian hospitals, however civilian hospitals may also treat military wounded and sick102 – it is to be assumed that they should equally be protected and respected and cared for. All parties to the conflict should endeavor, which is not an absolute obligation, to remove protected persons from besieged or encircled areas. If this is not possible, medical personnel should be allowed passage into such areas pursuant to article 17 gc iv. It can be inferred that medical personnel upon their passage are protected, possibly under the other Conventions, depending on the location and situation. If this is not possible, civilian hospitals should nonetheless be respected by the parties to the conflict except if they are used to commit ‘acts harmful to the enemy’.103 Central to the protection of all civilians in the hands of an adverse party in an international armed conflicts is article 27 gc iv. Besides providing for respect for persons, their honor, family rights, religion, manners and customs, it establishes that civilians shall be treated humanely at all times. It also reiterates the principle of non-discrimination. Especially, no measure ‘of such a character as to cause […] physical suffering or extermination’ may be taken.104 98

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Article 4 gc iv. Originally, only nationals of state parties to the Geneva Conventions would enjoy the benefits of Geneva Convention IV. Uhler & Coursier (eds), Commentary IV, p. 46. Considering the universal acceptance of the Geneva Conventions, it can be said that all civilians enjoy this protection. Article 5 gc iv. Article 27 gc iv. Notably, this provision is positioned at a less prominent point than comparable provisions in the other Geneva Conventions. See Uhler & Coursier (eds), Commentary IV, p. 134. For a more extensive discussion of article 10 ap I, see above. Articles 18 and 19 gc iv. Articles 18 and 19 gc iv. Article 32 gc iv.

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This is elaborated in detail in article 32 (2) gc iv stipulating that all ‘measures of brutality’ are prohibited, including mutilations, torture, and medical experiments which are not ‘necessitated by the medical treatment of a protected person’. The aim of the article is to prevent that civilians are used as ‘guinea-pigs’ as occurred in World War II.105 Again, like in articles 12 gc i and ii and 13 (3) gc iii, the separate mention of experiments shows the importance of this prohibition.106 The prohibition is, again, not specified and it remains unclear whether certain experimental treatments are allowed and under which condition. The icrc Commentary establishes that ‘[n]ew forms of treatment for medical reasons with the sole object of improving the patient’s condition’ would be allowed.107 The requirement that they be necessary for the person’s health is additional to the requirements for medical procedures in article 11 (1) ap i.108 But it is not clear who is addressed by article 32 gc iv. It explicitly proscribes the taking of such measures by the parties to the conflict. Pursuant to article 29 gc iv, the party to the conflict in whose hands civilians are is responsible for their treatment, even if committed by ‘its agents’.109 This includes medical personnel. Hence, individual physicians acting under the authority of a party to the conflict or under its name are also addressed by article 32 gc iv. To ameliorate the protective character of this provision, more certainty would have been beneficial. Civilians in occupied territories are protected by the additional provisions in Section 3 of Geneva Convention IV.110 Article 47 gc iv determines that the civilian population in an occupied territory should benefit from the entire protection 105 Uhler & Coursier (eds), Commentary IV, p. 224. That is not to say that every physician will use an armed conflict as an opportunity to experiment, but the experiences and the possibility of the reoccurrence of such experiments, including ethically highly questionable experiments, should not be excluded. According to Physicians for Human Rights, physicians at cia detention facilities experimented on detainees to perfect ‘enhanced interrogation techniques’ in ‘phr Report: Experiments in Torture’. 106 Biological experiments were omitted in this article, but then listed as a grave breach of the Convention in article 147 gc iv. 107 Uhler & Coursier (eds), Commentary IV, p. 224. 108 To be discussed below. 109 Agents are all persons ‘in the service of a contracting party’ irrespective of capacity. Ibid. p. 211. 110 How to exactly define ‘occupation’ is still contested. One opinion is that ‘occupation’ is referring to the factual, rather than the technical circumstance. See McCoubrey, International Humanitarian Law, p. 198. For a classification of types of military occupation, see Adam Roberts, ‘What is Military Occupation’, in Ian Brownlie & D. W. Bowett (eds), The British Yearbook of International Law (Oxford University Press, 1984), p. 261.

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of Geneva Convention IV. It deserves to be repeated that articles 27 and 32 gc iv hence apply equally.111 Civilian hospitals should continue to operate during an occupation so that civilians can seek medical treatment.112 Civilians detained during an occupation pursuant to article 76 gc iv or civilians interned for ‘imperative reasons of security’ by the occupying power pursuant to article 78 gc iv are entitled to medical attention as required by their state of health.113 The general protection can also be inferred from the fact that articles 76, 78 and 81 gc iv refer to ‘protected persons’ instead of detained or interned persons.114 For persons detained for security reasons, the provisions concerning medical attention are elaborated in articles 91 and 92 gc iv. Accordingly, persons detained for security reasons shall receive care ‘not inferior to that provided for the general population’ in infirmaries that are ‘under the direction of a qualified doctor’. They may at all times present themselves for medical examination and medical treatment should be ‘free of charge’. Once a month, a medical check of detainees is to be carried out to monitor their overall state of health and detect contagious diseases.115 Relevant for their health is furthermore that detained civilians ‘shall in no circumstances’ be subjected to ‘physical exertion dangerous to their health’ or ‘physical or moral victimisation’. Article 100 gc iv particularly prohibits prolonged standing, punishment drill, and the punitive reduction of food rations all of which could have detrimental effects on the health of detainees. A person affected by the international armed conflict who does not meet the requirements for civilians – for example a state’s own civilians – nor entitled to prisoner of war status116 and who is in the power of a party to the conflict enjoys the fundamental guarantees provided in article 75 ap i.117 They include all protections other individuals also enjoy under Geneva Law, namely non-discrimination, humane treatment, and protection against ill-treatment. In particular, violence to life, health or physical or 111 112 113 114

Uhler & Coursier (eds), Commentary IV, p. 272. Article 56 gc iv. Article 81 gc iv details this for persons interned under article 78 gc iv. Section 4 (Regulations for the Treatment of Internees) addresses them as ‘internees’ not ‘protected persons’. For example in articles 91 and 92 gc iv. 115 Quaintly, the Commentary suggests physicians should regularly monitor the weight of a detainee as ‘a reliable indication of his state of health’. Uhler & Coursier (eds), Commentary IV, p. 402. 116 For a list of persons who are not protected and would thus benefit of article 75 ap I, see Bothe, et al., New rules for Victims of Armed Conflicts, p. 457. 117 The fundamental guarantees are modeled after common article 3 gcs. Sandoz, et al. (eds), Commentary to the Additional Protocols, para. 3037.

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mental well-being and outrages upon personal  dignity are prohibited. Moreover, the article contains due process principles for persons ‘arrested, detained, or interned for actions related to the armed conflict’. e Protection against Unwarranted Medical Procedures Article 11 ap i expands article 10 ap i by offering protection for the physical and mental health and integrity of persons deprived of their liberty.118 It is noteworthy that this protection is not confined to the wounded and sick but rather all persons.119 It is one of the most essential articles concerning medical care in armed conflict because it is aimed at protecting persons against unwarranted medical procedures and details obligations for medical personnel.120 The first and only explicit reference to ‘generally accepted medical standards’ can be found in this article. This reference is supplemented by an explicit reference to medical ethics in article 16 ap i.121 These two articles provide the basis for this book and deserve a detailed analysis. The first three paragraphs of article 11 ap i form the ‘basic prohibition of inappropriate medical treatment’, whereas the last three paragraphs ‘provide additional safeguards’.122 In its first sentence, paragraph 1 provides the parameters for the application and protection of this article. Persons, both military and civilian, in the power of an adverse party or persons who are interned, detained or otherwise deprived of liberty as a result of an armed conflict or occupation fall under its protective scheme. The article, hence, explicitly calls for a nexus between the detention and the international armed conflict. The deprivation of liberty includes being admitted to a hospital.123 Notably, the protection includes prisoners of war but also extends to persons who would

118 Article 11 was adopted by consensus at the 39th meeting on 20 May 1975. Paragraph 4 was modified, reconsidered, and adopted by consensus at the 99th meeting on 13 May 1977. O.R. VI, CDDH/SR.37, Summary of Records of 34th to 46th Meeting from 17 March to 31 May 1977, p. 69. 119 Frits Kalshoven & Liesbeth Zegveld, Constraints on the Waging of War – an Introduction to International Humanitarian Law, 4th Ed. (International Committee of the Red Cross, 2011), p. 126. 120 Sandoz, et al. (eds), Commentary to the Additional Protocols, para. 460. 121 Georg Bock, ‘Der Schutz sanitätsdienstlicher, ärztlicher und seelsorgerischer Aufgaben’, in Hans-Peter Gasser (ed), Die Genfer Zusatzprotokolle (Osang Verlag, 1993), p. 190. 122 Rapporteur of the Drafting Committee M. Bothe (Germany) in O.R. XI, CDDH/II/SR.39, p. 419. 123 Sandoz, et al. (eds), Commentary to the Additional Protocols, para. 470 (a).

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not enjoy prisoner of war status, such as mercenaries, terrorists, guerilla fighters, and ‘unlawful combatants’.124 The protected persons ‘shall not be endangered by any unjustified act or omission’. An act or omission can voluntarily or by negligence endanger a person’s health and integrity though only if this act or omission is unjustified does it fall under the prohibition of article 11. The icrc Commentary specifies that a justification must be based on medical as well as ethical grounds.125 Addressees of article 11 ap i are parties to the conflict and those under their responsibility. Bothe surmises that this excludes private persons violating this article on their own behalf and not on behalf of the authority of one of the parties to the conflict, such as private, civilian doctors.126 In light of the aim of the article, this interpretation seems rather narrow, although regrettably the article itself does not provide much guidance. The second sentence of paragraph 1, which is the ‘root of the article’, addresses unwarranted medical procedures.127 It specifies which medical procedures are prohibited: ‘any medical procedure which is not indicated by the state of health of a person concerned and which is not consistent with generally accepted medical standards’ (emphasis added). A clarification details that generally accepted medical standards are such standards that ‘would be applied under similar medical circumstances to the treating parties own nationals that are in no way deprived of their liberty’. The party conducting the procedure, hence the civilian or military physicians in charge of the procedure, should treat protected persons as they would treat their own nationals that are not deprived of their liberty in similar circumstances. This could raise ethical issues and conflicts, as there are highly contested procedures that differ greatly between different states, e.g. approaches to abortion or euthanasia. With the reference to ‘generally accepted medical standards’, article 11 ap i introduced an ‘open term’ – a term that refers to a set of rules beyond the system of international humanitarian law. The open term ‘generally accepted medical standards’ will be interpreted in Chapter 6. Certain procedures are explicitly prohibited by article 11 (2) ap i, namely physical mutilations, medical or scientific experiments, and the removal of tissue or organs for transplantation. The risk of abuse concerning these procedures was considered exceptionally great requiring them to be listed 124 Bothe lists the first three categories. Bothe, et al., New rules for Victims of Armed Conflicts, p. 111. 125 Sandoz, et al. (eds), Commentary to the Additional Protocols, para. 467. 126 Bothe, et al., New rules for Victims of Armed Conflicts, p. 112; 116. 127 Sandoz, et al. (eds), Commentary to the Additional Protocols, para. 473.

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separately.128 They are prohibited even when carried out with the consent of the treated person.129 The prohibition of experimentation is grounded in the experiences with experiments on persons deprived of their liberty in World War II, whereas the prohibition of transplantation is grounded in the developments in transplantation medicine in the years after World War II.130 Said procedures are allowed when in accordance with article 11 (1) ap i. The question arises whether a procedure that is prohibited and, more importantly, a person did not consent to can still be carried out if the treating physician believes the procedure to be beneficial and consistent with generally accepted medical standards. Especially if the procedure is experimental or could lead to mutilation, this seems to give the medical personnel a rather wide margin of appreciation and the person treated little influence on what procedures will be carried out on his body. Because the consent requirement is framed in the negative, consent can never justify a prohibited procedure not fulfilling the two requirements. It is, however, regrettable that positive informed consent for medical procedures in general was not included in this article specifically addressing medical treatment.131 Though prohibited in the relationship between an occupying power and persons in its power, article 11 (2) ap i is also not concerned with procedures by an individual’s own medical personnel.132 These would be governed by national regulations. Transplantations of blood and skin are initially prohibited by paragraph 2 (c) but considered too essential in emergency situations in armed conflicts to be categorically prohibited.133 It should be noted that removal of diseased tissue does not fall under sub-paragraph (c) and is thus allowed if in accordance with the conditions of paragraph 1. Pursuant to paragraph 3, donations of blood and skin-grafts, even when they are not required by a person’s own health but rather to benefit another, are justified exceptions to paragraph 2 (c).

128 Ibid. para. 478. 129 It is considered improbable that a person in the custody of an adversary party can voluntarily give his informed consent in such a situation. Baccino-Astrada, Manuel des Droits et Devoirs du Personnel Sanitaire lors des Conflits Armés, p. 41. 130 Waldemar A. Solf, ‘Development of the Protection of the Wounded, Sick and Shipwrecked under the Protocols Additional to the 1949 Geneva Conventions’, in Christophe Swinarski (ed), Studies and Essays on International Humanitarian Law and Red Cross Principles in honour of Jean Pictet (Martinus Nijhoff Publishers, 1984), p. 240. 131 This the extensive discussion on informed consent in Chapter 1. 132 Solf, ‘Studies in honour of Jean Pictet’, p. 241. 133 Ibid. p. 242; Baccino-Astrada, Manuel des Droits et Devoirs du Personnel Sanitaire lors des Conflits Armés, p. 41.

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However these procedures may only be carried out if the donation or graft is provided voluntarily and for therapeutic purposes, and under conditions consistent with generally accepted medical standards and specific medical controls. Here, consent is explicitly required although the donation of blood seems less invasive than a medical or scientific experiment. The requirement of volition implies that a protected person physically or mentally incapable to consent cannot donate blood or skin. This provides a relevant and clear protection and limit.134 The fourth paragraph of article 11 ap i gives teeth to the protection: (1) any wilful act that (2) seriously endangers the health and integrity of a person (3) in the power of the adverse party and not its own national, and (4) does not meet the requirements of the previous three paragraphs or violates them constitutes a grave breach of the Protocol. Medical grave breaches can thus be prosecuted which provides an additional safeguard against unwarranted medical procedures.135 The comments concerning the consent to medical procedures should be qualified in relation to surgical procedures. Pursuant to article 11 (5), all persons deprived of their liberty have a right to refuse surgical procedures even if required by their state of health. The right to refusal is limited to surgical operations which would also include physical mutilations in the practical sense of the term. Physicians should ‘endeavor’ to obtain the refusal in written form, ‘signed or acknowledged by the patient’.136 There are no further requirements for the refusal meaning that by this paragraph, a voiced refusal by any protected person should be sufficient. Some proof of the refusal would provide a safeguard for physicians against claims, e.g. for mistreatment or charges of seriously endangering a person’s health.137 In this paragraph, the term ‘patient’ is used for the first time in Additional Protocol I. This could be explained by the fact that surgical procedures are usually required when a person is wounded or sick and therefore a patient. Nonetheless, it seems rather haphazard that this term should be introduced so freshly at this point without further explanation. 134 This paragraph generated much discussion in the drafting sessions and meetings of states. For example O.R. XI, CDDH/II/SR.23, p. 223–224; CDDH/II/SR.29, p. 295–302. 135 Chapter 3 provides an in depth analysis of the medical grave breaches. 136 The consent requirement was added to article 11 after extensive discussions about the details of such a requirement. For example, O.R. XI, CDDH/II/SR.9, p. 67–72; CDDH/II/ SR.14, p. 124–125. 137 Baccino-Astrada, Manuel des Droits et Devoirs du Personnel Sanitaire lors des Conflits Armés, p. 42.

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Article 11 (6) ap i determines that all parties to an armed conflict must keep a record of all blood and skin donations under their responsibility and should endeavor to keep a record of all other medical procedures carried out on persons in their power or those deprived of their liberty. The first requirement is absolute, whereas the second merely requires the best efforts. A protecting power138 should at all times be given access to these records for inspection. Overall article 11 ap i is aimed at outlawing medical procedures performed on persons deprived of their liberty that are not for the benefit of the person treated, for example unlawful medical experiments. However, it remains unclear where the boundaries for medical activities are. Pursuant to article 11 ap i, the framework for medical treatment can be found in generally accepted medical standards, an open term. Yet there are several unsolved issues concerning ‘generally accepted medical standards’: do they depend on the treating physician, as the article suggests, or might they be more widely accepted? Currently it is too vague a standard to be of true guidance to medical personnel; even more so if a violation of such standards could possibly constitute a grave breach of the Protocol. 2 Protection of Physicians As the wounded, sick and shipwrecked are to be protected and respected, it is a logical corollary that those who take care of them should be equally protected if they are to provide adequate medical care. Physicians, as medical personnel, are hence provided with equal protection ‘in all circumstances’.139 This protection ceases when they violate their neutrality and become in any way involved in the armed conflict.140 Furthermore, medical personnel, just like the wounded and sick, cannot renounce the protection afforded to them in international humanitarian law.141 This precludes external pressure on physicians which would harm them and those they treat.

138 Protecting powers are defined in article 2 (c) ap I. Upon assignment by one of the parties to the conflict and acceptance by the other, a protective power, being a neutral state, can help in the protection of the wounded and sick, prisoners of war, and civilians. They were first introduced in articles 10 gc i, ii and iii, and 11 gc iv. 139 See especially articles 24 gc i and 36 gc ii. 140 Pictet, Les principes fondamentaux de la Croix-Rouge, p. 49–50. But also articles 21–22 gc i and 13 ap I where the acts that are not considered harmful to the enemy are enumerated. 141 Articles 7 gc i and ii.

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a Definition of Medical Personnel There is no definition of medical personnel in the Geneva Conventions of 1949. It is only through the description of status and tasks that it becomes clear who falls under the special protection afforded to medical personnel. Physicians who do not belong to one of the categories of the Geneva Conventions or who do not meet the requirements of Additional Protocol I, are generally protected as civilians.142 These strict requirements ensure that the generous protection is limited to a certain group of persons so as not to water down the protection.143 This limitation has, however, in the past been criticized because members of humanitarian aid organizations are not necessarily afforded protected status.144 Additional Protocol I defines medical personnel in article 8 (c) ap i.145 It determines that medical personnel must be assigned exclusively to the ‘search for, collection, transportation, diagnosis or treatment – including first-aid treatment – of the wounded, sick and shipwrecked, or for the prevention of disease’ as listed in article 8 (e) ap i.146 As a second condition, they must be acknowledged and authorized by the relevant authorities of a party to the

142 Civilian physicians who do not fit in the categories, are additionally protected under articles 18 (3) gc i, 17 ap I and 18 ap II. 143 Pursuant to article 6 ap I, trained personnel is required to implement the protections of the Conventions and Additional Protocol I. High contracting parties are called upon to train such personnel, with the help of national Red Cross Societies, preferably already in peacetime. The training and employment of personnel follows domestic jurisdiction, as determined in the article. This article is aimed at improving the application of the Geneva Conventions as well as Additional Protocol I in times of armed conflict. 144 Maurice Torrelli, ‘La Protection du Médecin Volontaire’, 33 Annales de Droit International Médical, 53 (1986), p. 70. 145 Others protected like medical personnel but not as relevant for present purposes are those assigned to ‘the administration of medical units or to the operation or administration of medical transport’. 146 Sub-paragraph (e) concerns medical units including all civilian and military medical establishments, whether mobile or fixed, temporary or permanent and establishes that they are protected under the Additional Protocol. It furthermore lists the medical purposes that medical units need to be assigned to fulfill and that are referred to in subparagraph (c): the ‘search for, collection, transportation, diagnosis or treatment – including first-aid treatment – of the wounded, sick and shipwrecked, or for the prevention of disease’. This enumeration contains all elements of medical care that medical personnel could possibly provide in their medical work and during which it should be protected. Kalshoven, Reflections on the Law of War, p. 1011. The article is based on article 24 gc i.

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conflict.147 Only then – and if all subsidiary conditions of notification are met – will medical personnel enjoy full protection. Civil medical personnel, thus, need an official assignment of being tasked with the care for the wounded and sick and the consent of a party to the conflict to receive protection. Consequently, not all civilian medical personnel are automatically protected in armed conflict, but rather only those officially assigned to carry out medical tasks by one of the parties to the conflict.148 The assignment, whether permanent or temporary, must pertain to one of the purposes listed in sub-paragraph (e). Pursuant to article 8 (k) ap i, medical personnel are considered permanent if they are exclusively assigned to medical purposes for an indeterminate period and temporary when they are engaged in medical purposes only for limited periods.149 The protection is absolute and complete for permanent medical personnel exclusively assigned to medical tasks, for example tasked military and civilian physicians, yet conditional for other medical personnel in armed conflicts, for example temporary medical personnel and physicians in humanitarian aid organizations. For present purposes, physicians will not always be explicitly named but rather considered part of medical personnel. There are three categories of protected medical personnel pursuant to article 8 (c) ap i. The first category is military medical personnel as addressed in Geneva Conventions I and II.150 Article 24 gc i establishes absolute protection 147 See for a discussion of the different levels of protection Frits Kalshoven, ‘Legal Aspects of “Medical Neutrality”’, in Frits Kalshoven (ed), Reflections on the Law of War – Collected Essays (Martinus Nijhoff Publishers, 2007). 148 Sandoz, et al. (eds), Commentary to the Additional Protocols, para. 354. 149 Ibid. para. 395. 150 This also includes article 36 gc ii which offers protection for medical personnel on hospital ships. They shall also be protected and respected and may not be captured. Medical personnel on military hospital ships enjoys full and absolute protection because hospital ships enjoy a very strong protection under Geneva Convention II. Article 22 gc ii establishes that they ‘may in no circumstances be attacked or captured’. Concerning the specific requirements for hospital ships, see articles 22–35 gc ii and McCoubrey, International Humanitarian Law, p. 119. If hospital ships from national Red Cross societies, officially recognized relief societies, or private persons have been officially commissioned by a party to the conflict and this has been communicated to the adversary party, they are also unconditionally protected provided they have the relevant certificates as mentioned in article 24 (2) gc ii. According to article 25 gc ii, the same applies to hospital ships from neutral countries that have the consent of their government and are authorized by a party to the conflict of which the adversary has been notified.  Permanent and temporary civilian medical personnel is defined in article 8 (c) ap I only. Its protection is discussed below.

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for military medical personnel that is ‘exclusively’ engaged in the ‘search for, collection, transport or treatment of the wounded and sick, or in the prevention of disease’.151 Temporary military medical personnel are, pursuant to article 25 gc i, ‘members of armed forces specially trained for employment, should the need arise, as hospital orderlies, nurses or auxiliary stretch-bearers’ (emphasis added). They are protected and respected only when carrying out the duties specified in articles 24 and 25 gc i and meeting the identification criteria in article 42 gc i. This excludes regular combatants who carry out the described tasks out of necessity.152 Secondly, medical personnel of ‘duly recognized and authorized’ national Red Cross and voluntary aid societies enjoy protection when carrying out the duties as mentioned in article 24 gc i and if they are subject to military laws and regulations of their country of origin.153 Their presence and assistance has to be communicated to the other parties to the conflict. In modern days, national Red Cross and voluntary aid societies not always carry out these quasi-military medical tasks but rather work on their own, humanitarian mandate.154 As a third category, members of a neutral state’s recognized societies are also equally protected pursuant to article 27 gc i. The neutral state has to give consent to such participation and one of the parties to the conflict has to give its authorization which is to be communicated to the adversary. Members of these societies have to be identifiable in accordance with article 40 (2) gc i. The same requirements apply to permanent medical personnel by a neutral or other state, by a recognized and authorized aid society of such a state, or by an impartial international humanitarian organization as enumerated in article 9 (2) ap i.155 They can only make themselves available for humanitarian purposes with the consent of one of the parties to the conflict. Impartial international humanitarian organizations like the icrc have, however, always been allowed to carry out humanitarian activities to the benefit of the protection of 151 Article 24 gc i also addresses administrative staff and chaplains attached to the armed forces. Their status and protection will not be given more attention in this book. 152 Pictet (ed), Commentary I, p. 247. 153 Article 26 gc i. 154 Kalshoven, ‘Legal Aspects of “Medical Neutrality”’, p. 1028–1029. But see also Heike Spieker, ‘Die zivil-militärische Zusammenarbeit zwischen Bundeswehr und Deutschem Roten Kreuz’, 25 Humanitäres Völkerrecht, 4 (2012). 155 Article 9 ap i furthermore determines that the provisions aimed at the amelioration of the condition of the wounded and sick apply in situations as described in article 1 ap i, being situations referred to in article 2 gcs, and without any discrimination. It should be noted that article 9 (2) ap i limits the protection to medical units and transports.

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the wounded and sick and other medical personnel with the consent of the parties.156 Prerequisite is that they work in accordance with the principle of impartiality and humanity. Article 9 (2) ap I has finally provided the relevant level of protection. The protection of medial personnel in international armed conflicts has greatly developed since the Geneva Convention of 1929. Although even the Geneva Convention of 1929 determined that all medical personnel should be respected and protected at all times, the protection was extended to temporary medical personnel and personnel from neutral countries or voluntary aid societies. Medical personnel as such enjoy absolute protection under the Geneva Conventions, as long as their employment is in conformity with certain administrative requirements, they are identifiable and charged with medical duties, and apply these to the wounded and sick. Additional Protocol I now provides more detail to their differences, protection and identification, and improved the inclusion of civilian medical personnel. Nevertheless, it should be kept in mind that not all persons providing medical care in armed conflicts are per se protected as medical personnel as they may not meet all the requirements.157 Physicians who, for example, work without the consent of the parties to the conflict will have to fall back on the general protection of civilians,158 as will independent civilian physicians.159 b Protection of Retained Physicians As a general principle in international humanitarian law, medical personnel cannot be captured by a belligerent party. They can only be retained.160 In international armed conflicts, articles 28 gc i and 33 gc iii establish that all

156 Articles 9 gc i, ii, iii and 10 gc iv. 157 Kalshoven, ‘Legal Aspects of “Medical Neutrality”’, p. 1030. 158 Kate Mackintosh, ‘Beyond the Red Cross: the Protection of Independent Humanitarian Organizations and their Staff in International Humanitarian Law’, 89 International Review of the Red Cross, 113 (March 2007), p. 118. 159 Torrelli, ‘La Protection du Médecin dans les Conflits Armés’, p. 583. 160 Under the previous Geneva Conventions, medical personnel was protected from capture and its retention was simply prohibited. For the Geneva Convention of 1864, this was contained in the principle of neutrality in its article 2. McCoubrey, International Humanitarian Law, p. 97. Articles 9 and 12 Geneva Conventions of 1906 and 1929 determined that medical personnel could not be considered as prisoners of war and could not be retained. They should be sent back as soon as feasible, yet until then could carry out their medical activities, especially to the benefit of the wounded and sick of their nationality.

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medical personnel in the power of the adverse party can be retained to carry out medical duties for the benefit of prisoners of war of the party to the conflict they belong to, if necessary. Physicians can thus be lawfully retained by an adversary party; this should, however, be the exception.161 Article 33 gc iii is for the most part identical to and complements article 28 gc i. Nevertheless the provision was reiterated in Geneva Convention III because the captured medical personnel will be held in prisoner of war camps.162 The provision’s succeeding paragraphs are nearly identical to those in article 28 gc i. The differences are formal, rather than material.163 Technically, permanent medical personnel and medical personnel of national Red Cross or (voluntary) aid societies will not be considered prisoners of war, but should benefit from the provisions of Geneva Convention III if favorable to their wellbeing. As permitted by their state of health and so far as required, they can continue to carry out medical functions but cannot be forced to carry out any other work. They should carry out their medical duties ‘in accordance with their professional ethics’.164 This essential specification will be analyzed in Chapter 6. In providing medical care, retained medical personnel are to work ‘within the scope of the military laws and regulations of the Detaining Power and under the control of its competent services’. Physicians are thus integrated in the medical service as provided by the detaining party and have to obey rules and instructions. The detaining power should provide retained physicians with the necessary means to carry out their profession, especially to the benefit of those prisoners of war of the party to the conflict on which the physician also depends. This implied differentiated treatment by affiliation might be preferable in order to provide the best medical care for wounded and sick prisoners of war, as long as it does not lead to discrimination.165 However, these provisions do not relieve the detaining party of its responsibility for the welfare of the prisoners of war and its duties towards their care and protection. 161 José Francisco Rezek, ‘Protection of the Victims of Armed Conflicts – Wounded, Sick and Shipwrecked Persons’, in United Nations Educational Social and Cultural Organization & Henry Dunant Institute (eds), International Dimensions of Humanitarian Law (Martinus Nijhoff, 1988), p. 157. 162 Preux (ed), Commentary III, p. 230–231. 163 The formulations in article 28 gc i and article 33 gc iii differ in several places, e.g. subparagraph (a) refers to ‘labour units’ in Geneva Convention I and to ‘working detachments’ in Geneva Convention III. None of these differences impact the interpretation. 164 Here article 33 gc iii refers to ‘professional etiquette’ whereby it deviates from the formulation of article 28 gc i which refers to ‘professional ethics’. 165 Preux (ed), Commentary III, p. 233.

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Retained medical personnel are to be returned to the party of the conflict they belong to as soon as this is possible and practicable,166 unlike prisoners of war who may be detained until ‘the cessation of active hostilities’.167 Temporary medical personnel enjoy prisoner of war status, yet can also be asked to carry out medical duties within the prisoner of war camps if deemed necessary.168 Prisoners of war that are medically trained but are not part of the military permanent or temporary medical personnel may be required to assist in the treatment of the wounded and sick within the prisoner of war camps.169 They maintain their status as prisoners of war, although they shall also be given equal benefits as medical personnel and be exempted from other work. Medical personnel, as well as the crew on hospital ships, shall be protected and respected and cannot be captured according to article 36 gc ii. This is an absolute protection.170 Medical personnel from societies from neutral countries and from impartial international humanitarian organizations cannot be detained by the adverse party and should either be allowed to return to their country or the party they are affiliated with.171 Their return is conditioned by military necessity. The detailed regulation of the retention and protection of medical personnel in Geneva Conventions I–III is a significant development from the Geneva Convention relative to the Treatment of Prisoners of War of 1929, where the only article concerning medical personnel determined that ‘it shall be permissible for belligerents mutually to authorize each other, by means of special agreements, to retain in the camps doctors and medical orderlies for the purpose of caring for their prisoner compatriots’.172 The Geneva Conventions have 166 167 168 169 170

Article 30 gc i. Rezek, ‘Protection of the Victims of Armed Conflicts’, p. 158. Article 118 gc iii. Article 29 gc i. Article 32 gc iii. Medical personnel on ships other than hospital ships is addressed in article 37 gc ii. The category in practice often includes the medical personnel of captured vessels. Jean Pictet (ed), La Convention de Genève pour l’Amélioration du sort des Blessés, des Malades et des Naufragés des Forces Armées sur Mer (Comité Internationale de la Croix-Rouge, 1959), p. 210. If captured, they can be required to carry out medical activities for the benefit of wounded and sick on the ship. Yet pursuant to article 37 gc ii, they should be returned as soon as practicable. Upon landing, the captured medical personnel can be retained to provide medical care to prisoners of war on land, especially those who are members of its own party to the conflict. When reaching land, medical personnel shall then enjoy the protection of articles 28 gc i and 33 gc iii. 171 Article 32 gc i. 172 Article 14 of the Geneva Convention Relative to the Treatment of Prisoners of War of 1929.

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introduced an intricate two tier-system: military medical personnel and national aid societies can be retained; all other medical personnel must be released.173 c. Protection of Civilian Physicians As a ground rule, all civilian physicians are protected. First of all, physicians enjoy protection when working in civilian hospitals because pursuant to article 18 gc iv civilian hospitals shall be protected and respected by the parties to the conflict and cannot be objects of attack unless used for military purposes.174 The presence of wounded and sick combatants does not justify an attack on a civilian hospital.175 Article 20 (2) gc iv determines by which means civilian physicians in hospitals should distinguish themselves.176 Temporary personnel in hospitals is also to be respected and protected while carrying out tasks in the hospital. It should also identify itself appropriately.177 The management of civilian hospitals should keep lists of its personnel.178 Second of all, civilian medical personnel is also more generally protected as such. While article 20 gc iv limited protection to those ‘regularly and solely engaged in the […] caring for wounded and sick civilians’, article 15 ap I broadened protection to all civilian medical personnel as defined in article 8 (c) ap I.179 By requiring official identification, the difficulty of guaranteeing protection for too great a number of persons recognized as medical personnel is averted.180 Article 15 ap I determines that all parties to a conflict, especially occupying powers, should assist civilian medical personnel if necessary. Yet they may never oblige civilian medical personnel to give preferable treatment based on other than medical criteria or compel them to carry out tasks that are not compatible with their humanitarian mission. This phrase is similar and related to

173 Torrelli, ‘La Protection du Médecin dans les Conflits Armés’, p. 596–597. 174 Article 19 gc iv. 175 Article 19 (2) gc iv. This implies that military wounded and sick may also be treated in civilian hospitals. This does not, as Kalshoven claims, follow from a mere analysis of article 18 gc iv. Kalshoven, Reflections on the Law of War, p. 1007. 176 Article 20 (2) gc iv is comparable to article 40 gc i. The identification of medical personnel will be discussed below. 177 Article 20 (3) gc iv. See Uhler & Coursier (eds), Commentary IV, p. 164. 178 Article 20 (4) gc iv. 179 The provisions in the Geneva Conventions and Additional Protocol I concerning identification apply equally to this category of medical personnel. 180 Regarding such concerns, Torrelli, ‘La Protection du Médecin dans les Conflits Armés’, p. 584.

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the formulation in article 16 ap I, however article 16 ap I refers to ‘medical ethics’ rather than ‘humanitarian mission’. While article 16 ap I concerns all medical personnel and its protection, article 15 ap I specifically addresses civilian medical personnel. Both articles are essential in the system of protection for the victims of armed conflicts: the protection of medical personnel is the logical corollary to the protection of the wounded and sick.181 During an occupation an occupying power is obliged to ensure that medical service and care can continuously be provided to wounded and sick civilians.182 Local authorities are to assist the occupying power in this task. Pursuant to article 56 gc iv medical personnel ‘of all categories’ (emphasis added) should be able to continue carrying out their duties, including (temporary) civil medical personnel. In encompassing both temporary and permanent medical personnel, this provision differs from article 20 gc iv.183 The latter addresses the protection afforded, whereas article 56 gc iv merely addresses the fact that medical personnel should be allowed to carry out their activities. It should be noted that the last paragraph of article 56 gc iv – as a last provision relevant to the medical care provided to the civilian population184 – determines that an occupying power should take into consideration ‘the moral and ethical susceptibilities of the population’.185 The provision adds on to article 27 gc iv which refers to the protection of the civilian population and respect for their ‘religious convictions and practices, and their manners and customs’. Whether these provisions are compatible with article 16 ap I can be surmised from Part III. d Identification of Medical Personnel For physicians to be duly respected as medical personnel, they should be recognizable as such at all times.186 Consequently, each party to a conflict should 181 Sandoz, et al. (eds), Commentary to the Additional Protocols, para. 640. 182 Article 56 gc iv. This is only one of the obligations listed in Torrelli, ‘La Protection du Médecin dans les Conflits Armés’, p. 65. 183 Uhler & Coursier (eds), Commentary IV, p. 314. 184 In addition, article 57 gc iv provides an exception in that occupying powers may use civilian hospitals for the care of combatants if temporarily and ‘only in cases of urgent necessity’. They will then have to provide an alternative for civilian wounded and sick. 185 The Commentary claims that ‘there does not seem to be any real distinction between “moral” susceptibilities and “ethical” susceptibilities’. It regards the two as synonyms. Uhler & Coursier (eds), Commentary IV, p. 315. This could be contested but is beyond the limits of this book. For a discussion on the differentiation between ethics and morals, see Silja Vöneky, Recht, Moral und Ethik – Grundlagen und Grenzen demokratischer Legitimation für Ethikgremien (Mohr Siebeck, 2010). 186 Kalshoven & Zegveld, Constraints on the Waging of War, p. 132–133.

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endeavor to ensure the correct identification as established in articles 40 and 41 gc i, 42 gc ii and 20 gc iv, and reiterated in article 18 (1) ap I. Duly recognized and authorized medical personnel have to wear a white armlet, issued and stamped by their military authority, showing the Red Cross, Red Crescent or Red Crystal emblem.187 Pursuant to articles 16 gc i and 19 gc ii, they should at all times carry an identity disc and an identity card that fulfills the requirements of articles 40 gc i and 42 gc ii. Because such identity cards are issued by the state of origin, it means that medical personnel are, to some extent, dependent on that state.188 Temporary medical personnel only have to wear the armlet while carrying out medical duties.189 Article 20 (2) and (3) gc iv establishes and article 18 (3) ap I reiterates the same criteria for civilian medical personnel in occupied territories or zones of military operations, except that they are only required an identity card, no identity disc. Article 18 ap I specifies the relevant requirements for the identification of medical units and transports – they too shall be identified by the distinctive emblem and a distinctive signal. The forms of identification will have to be reviewed for modern armed conflicts as they rely on outdated media. In the future, digital means of identification could gain importance. e General Protection of Duties Additional protection for the work of physicians in armed conflicts is provided by article 16 ap I.190 Article 16 ap I builds on the provision of article 18 (3) gc i according to which persons treating the wounded or sick should be protected from molestation or conviction.191 Historically, this protection was deemed necessary after World War II where physicians continuing their work under an

187 This concerns medical personnel as defined in articles 24, 26 and 27 gc i, articles 36 and 37 gc ii, and article 33 gc iii. Article 38 (2) gc i and article 41 (2) gc ii allow the use of two other symbols instead of the Red Cross, specifically the Red Lion and Sun and the Red Crescent. 188 Mackintosh, ‘Beyond the Red Cross: the Protection of Independent Humanitarian Organizations and their Staff in International Humanitarian Law’, p. 114–115. 189 Their identity documents should refer to their special training, see article 41 gc i. For civilian temporary medical personnel, see article 20 (3) gc iv. 190 Article 16 was adopted by consensus. cddh, O.R. VI, Summary of Records of 34th to 46th Meeting from 17 March to 31 May 1977, p. 70. 191 Article 18 (3) gc i: ‘No one may ever be molested or convicted for having nursed the wounded or sick’. Pictet, Development and Principles of International Humanitarian Law, p. 70.

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occupying power were often prosecuted as collaborators.192 Article 16 ap I details and specifies the general protection of medical duties. This benefits those treated. The article consists of three paragraphs. Paragraphs 2 and 3 give a person carrying out medical activities the right to refuse an illegal order.193 The first paragraph establishes that nothing justifies punishing a person for carrying out medical activities if these activities are compatible with medical ethics. Medical activities includes the work of military and civilian medical personnel and also all others such as nurses or midwives. It is formulated broadly to include different persons carrying out medical activities,194 including individual physicians who do not meet the requirements of protected medical personnel195 and retained physicians providing medical treatment under the detaining power. It reinforces the latters’ ‘freedom of conscience’ first mentioned in articles 28 gci and 33 gc iii.196 The provision protects all those performing medical activities in accordance with medical ethics from penal and other sanctions especially when treating enemy combatants.197 Lacking a specific addressee, it can be inferred that the paragraph addresses all those in a position to punish. This includes for example a physician’s own authorities, but also a person superior in the hierarchy of a hospital.198 With the reference to medical ethics, article 16 ap I introduced the second undefined open term – next to ‘generally accepted medical standards’ – to the system of the Protocols.199 Medical ethics as such refers to a set of non-legal rules beyond international humanitarian law that require further interpretation. The references will be thoroughly scrutinized in Part III. The second paragraph determines that persons engaged in medical activities cannot be compelled to perform duties contrary to (1) ‘the rules of medical ethics’, (2) any other medical rules that are designed for the benefit of the wounded and sick, or (3) to violate the Geneva Conventions or Additional

192 193 194 195

196 197 198 199

Bock, ‘Der Schutz sanitätsdienstlicher, ärztlicher und seelsorgerischer Aufgaben’, p. 190. Solf, ‘Studies in honour of Jean Pictet’, p. 244. Bothe, et al., New rules for Victims of Armed Conflicts, p. 127. Frits Kalshoven, ‘International Humanitarian Law and Violation of Medical Neutrality’, in Ger L. Wackers & Clemens T.M. Wennekes (eds), Violation of Medical Neutrality (Thesis Publishers, 1992), p. 38. Torrelli, ‘La Protection du Médecin dans les Conflits Armés’, p. 597. For an example of such punishments see McCoubrey, International Humanitarian Law, p. 95–96. Sandoz, et al. (eds), Commentary to the Additional Protocols, para. 651. See also Baccino-Astrada, Manuel des Droits et Devoirs du Personnel Sanitaire lors des Conflits Armés, p. 38.

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Protocol I. Equally, they shall not be compelled to refrain from taking necessary medical actions. Overall, this implies that no person can be compelled to perform any act that is contrary to the interest of a patient.200 A violation of article 16 ap I could also entail a violation of articles 10 and 11 ap I if the medical procedure does not meet the requirements in article 11 (1) ap I. It would constitute a grave breach, if additionally the criteria in article 11 (4) ap I were fulfilled. Only a violation, by commission or omission, that was ‘wilful’ would constitute a grave breach under article 11 (4) ap I.201 The third paragraph at first glance deals with the question of disclosure. Upon closer inspection, however, the provision is specifically aimed at preventing a legal compulsion to denounce the wounded and sick which was a common requirement in World War II.202 If a physician decides it is necessary to communicate information about a patient to the authorities, for whichever reason, he is not prohibited from doing so. Yet medical personnel cannot be compelled to disclose information about a patient if the information is considered detrimental to the patient or her family. The exceptions to this provision are twofold. First of all, a physician can be compelled to disclose by his own national law. Second of all, she can be compelled to disclose information if her patient has a communicable disease and disclosure is prescribed by law. The latter is a reasonable, legitimate requirement considering questions of public health.203 The former is a ‘regrettable’ exception for protection as confidentiality facilitates an atmosphere of trust between patient and treating physician. Because national laws and regulations can override international humanitarian law, the wounded and sick might be discouraged from seeking medical attention.204 Thus regarding the own authorities protection can be restricted, but it is complete regarding occupying or other adverse authorities. Overall, article 16 ap I presents a corollary to article 11 ap I by setting limits for physicians when carrying out their duties during an armed conflict or under

200 Sandoz, et al. (eds), Commentary to the Additional Protocols, para. 696. 201 Medical grave breaches will be discussed in detail in Chapter 3. 202 The issue of a possible principle of non-denunciation was already discussed in the drafting process of Geneva Convention 1 in 1949 yet not included in the final version due to a lack of agreement. See Sandoz, et al. (eds), Commentary to the Additional Protocols, para. 670–676. 203 Bothe, et al., New rules for Victims of Armed Conflicts, p. 130; Sandoz, et al. (eds), Commentary to the Additional Protocols, para. 689. 204 Torrelli, ‘La Protection du Médecin dans les Conflits Armés’, p. 589; Solf, ‘Studies in honour of Jean Pictet’, p. 245–246. It was already criticized in the diplomatic conferences: O.R. XI, CDDH/II/SR.16, p. 151–153; CDDH/II/SR.19, p. 180–182.

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occupation and by prescribing outside interference. If physicians are to carry out their duties conscientiously, independently and responsibly in times of armed conflict, they will have to be protected from undue interference by any state, especially an occupying state. Nevertheless, if the protection of medical personnel is to take full effect, it will have to be more clearly defined. So far the reference to medical ethics, which provides the most important guidance for physicians in their work, remains too unfounded and vague to be of practical relevance.205 A relevant, practicable and agreeable interpretation is thus necessary. f

The Role of the Civilian Population and National Red Cross and other Aid Societies Article 17 ap I, also building on article 18 gc I, establishes that civilians should respect the wounded and sick and that they, as well as national Red Cross and other – duly recognized and authorized voluntary – aid societies should be permitted to carry out their activities, such as collecting the wounded and sick and providing them with (medical) care. In the words of Sandoz in the icrc Commentary: ‘the civilian population must respect and may protect’ the wounded, sick and shipwrecked.206 More importantly, article 17 ap I also determines that ‘no one shall be […] punished for such humanitarian acts’. ‘Such acts’ refers to collecting and caring for the wounded, sick and shipwrecked for humanitarian reasons. If a party to the conflict appeals to the mentioned societies to aid in the collection of and care for the wounded and sick, under article 17 (2) ap I that party must also offer the relevant society protection and means to carry out these tasks. C

Medical Care in Non-International Armed Conflicts

The rules examined this far are those governing international armed conflicts. Developments in the previous and present century, however, have shown that modern armed conflicts are more often than not internal armed conflicts.207 It 205 Baccino-Astrada, Manuel des Droits et Devoirs du Personnel Sanitaire lors des Conflits Armés, p. 38. 206 Sandoz, et al. (eds), Commentary to the Additional Protocols, para. 705. 207 sipri Yearbook 2011, p. 61. In literature, Heike Spieker, ‘Twenty-five Years after the Adoption of Additional Protocol II – Breakthrough or Failure of Humanitarian Legal Protection?’, 4 Yearbook of International Humanitarian Law, 129 (2004), p. 129–130; Dieter Fleck, ‘The Law of Non-International Armed Conflicts’, in Dieter Fleck (ed), The Handbook of International Humanitarian Law (Oxford University Press, 2008), p. 605.

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is thus indispensable to examine the rules governing the protection of the wounded and sick and physicians as part of medical personnel in non-international armed conflicts. On the one hand, article 3 common to all four Geneva Conventions will be given attention as a ‘convention within the Conventions’ providing minimum guarantees of humane treatment for the victims of such non-international armed conflicts. Common article 3 was introduced with the Geneva Conventions of 1949 and addresses the most basic protection for victims of conflicts that are not of an international character.208 The protection of persons from the effects of non-international armed conflicts had already been on the agenda of the icrc long before World War II.209 Yet, states were hesitant to grant insurgents, terrorists and other armed groups within their territory protection for fear of infringement on their national sovereignty210 and afraid that such a protection might imply recognition of ‘terrorists’ or ‘bandits’. Hence, the negotiations resulted in a compromise: the Geneva Conventions are not applicable in noninternational armed conflicts as such, but states agreed to a minimum of protection for a limited category of persons within their own borders.211 States are obliged ‘as a minimum’ to treat persons ‘taking no active part in hostilities’ with 208 The application of article 3 gcs depends on the classification of the conflict. Article 3 merely speaks of ‘armed conflicts not of an international character occurring in the territory of one of the High Contracting Parties’. Article 1 (1) ap II provided a comprehensive definition, defining them as ‘armed conflicts [not covered by ap I] which take place in the territory of a High Contracting Party between its armed forces and dissident armed forces or other organized armed groups which, under responsible command, exercise such control over a part of its territory as to enable them to carry out sustained and concerted military operations and to implement [ap II]’. In Tadić, the icty expanded on the difference between internal disturbances and armed conflict and stated that ‘an armed conflict exists whenever there is a resort to armed force between States or protracted armed violence between governmental authorities and organized armed groups or between such groups within a State’. ICTY Tadić Decision on Jurisdiction, para. 70. The details of this problematic classification will not be discussed. For an excellent analysis of this question, see Lindsay Moir, The Law of Internal Armed Conflict (Cambridge University Press, 2002). 209 Pictet (ed), Commentary I, p. 41–42; Roberts & Guelff (eds), Documents on the Laws of War, p. 481. 210 It is perplexing that the protection of victims in international armed conflicts was less of a problem than the protection of persons that could possibly be a state’s own citizens. 211 The icrc had aimed for the analogous applications of the Geneva Conventions in noninternational armed conflicts. Yet after long discussions, only the most basic humanitarian principles and a minimum of regulations could be agreed upon. Pictet (ed), Commentary I, p. 46–51.

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humanity and without discrimination, and to search and care for the wounded, sick and shipwrecked. On the other hand, the rules established in the second Additional Protocol to the Geneva Conventions will be considered. Additional Protocol II is an extension of the general protection afforded to the victims of ‘internal’ or ‘civil’ war in common article 3 gcs. In an effort to ameliorate the protection of the victims of non-international armed conflicts, Additional Protocol II establishes certain general principles that apply in internal armed conflicts. The scope of protection is limited to situations of armed conflict that are not covered by article 1 ap I and ‘which take place in a state’s territory between its armed forces and organized armed groups in sufficient control of part of the territory to enable such groups to carry out sustained and concerted military operations and to implement Protocol II’.212 Riots, internal tensions and terrorist activities do not fall under the protection of Additional Protocol II,213 unless the violence reaches a certain degree of intensity and military force is being used.214 Although some claim that the threshold is hardly ever officially crossed in modern day wars, of all conflicts between 2001 and 2010, only two were international armed conflicts.215 With its twenty-eight articles, Additional Protocol II is much more concise, yet also fundamentally different216 from its counterpart relating to international armed conflicts. Calls for one regime for the protection of victims of all armed conflicts were not realized.217 With the adoption of the two Protocols, 212 Article 1 (1) ap II. 213 Article 1 (2) ap II. 214 ‘On the basis of the foregoing, we find that an armed conflict exists whenever there is a resort to armed force between States or protracted armed violence between governmental authorities and organized armed groups or between such groups within a State’. In ICTY Tadić Decision on Jurisdiction, para. 70. This definition was followed by the drafters of the Rome Statute, see article 8 (2) (f) Rome Statute. 215 See Fleck’s claim in Fleck, ‘The Law of Non-International Armed Conflicts’, para. 1209, p. 622 and the assessment of the sipri Yearbook 2011, p. 61 et seq which claims that all 15 major armed conflicts in 2010 were non-international. Since, sipri has classified armed conflicts in new categories, namely state-based conflict, non-state conflict and one-sided violence. 216 Rosemary Abi-Saab, ‘Humanitarian Law and Internal Conflicts: The Evolution of Legal Concern’, in Astrid J.M. Delissen & Gerard J. Tanja (eds), Humanitarian Law of Armed Conflict – Challenges Ahead – Essays in Honour of Frits Kalshoven (Martinus Nijhoff Publishers, 1991), p. 209. 217 Norway, for example, criticized the ‘selective humanitarianism’ during the drafting sessions of Additional Protocol II. O.R. XI, CDDH/II/SR.25, delegate Ostern (Norway), p. 249.

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the dichotomy of international humanitarian law was reaffirmed and the ‘fundamentally unequal legal protection of victims of armed conflicts’ perpetuated.218 More than twenty-five years after the adoption of Additional Protocol II, the value of the provisions is still to be seen as it has not been adopted by as many states as Additional Protocol I. Hence, it is essential to examine whether some of the provisions might have customary status. They could then, despite their weaknesses, have more impact than the limited scope of article 1 ap II suggests.219 1 Protection of those in Need of Medical Care Common article 3 (1) gcs entails that all those who are not taking an active part in hostilities, including members of armed forces hors de combat who have laid down their arms, should be treated with humanity ‘in all circumstances’. Humane treatment is not defined and depends on the circumstances,220 but it implies the prohibition of acts which offend the public conscience.221 The paragraph enumerates certain acts that are prohibited at all times, including mutilations, torture and cruel treatment as ‘violence to life and person’ and ‘outrages upon personal dignity’. The former includes unwarranted medical experiments. It is surprising that experiments are not expressly listed in the enumeration considering the emphasis placed on their prohibition in the Geneva Conventions. Pictet explains that the drafters did not want to weaken the general protection by over-explication.222 This argument is peculiar considering experiments are singled out in other provisions in the Geneva Conventions. As in international armed conflicts, common article 3 determines that discrimination in the treatment of a person is prohibited except if based on medical grounds. Though where articles 12 gc i and II, 16 gc iii, and 9 ap I specifically list nationality as an illegal ground for discrimination, common article 3 gcs omits nationality. This may appear reasonable at first sight as the situations addressed are those of an internal armed conflict between different groups within one country. But situations are imaginable where nationality is a basis for discrimination, even within internal armed conflicts. The inclusion of the criterion would have offered an additional safe-guard. The obligation to 218 Abi-Saab, ‘Humanitarian Law and Internal Conflicts’, p. 213; Kalshoven, ‘International Humanitarian Law and Violation of Medical Neutrality’, p. 22. 219 For a discussion of the customary status of the relevant articles, see Chapter 4. 220 Moir, The Law of Internal Armed Conflict, p. 61. 221 The Commentary refers to acts that equal humans with animals. Pictet (ed), Commentary I, p. 57. 222 Ibid. p. 58.

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search and care for the wounded and sick in sub-paragraph 2 summarizes the very general principle in Geneva Law that all those hors de combat due to wounds or sickness be protected and respected. The usual phrase of protection and respect was discarded as states refused to be confronted with obligations to actively protect terrorists they might fight on their own territory.223 Thus the paragraph is phrased carefully and uncontroversially: that all wounded and sick be searched and cared for. Pictet claims that this absolute obligation in combination with the prohibition of inhuman treatment under paragraph 1 provides a sufficiently stable framework of protection.224 However, the principles established for non-international armed conflicts in common article 3 are rather rudimentary and ‘incomplete’225 especially compared to the framework of regulations for international armed conflict. Also, a violation of common article 3 has only limited consequences: violations are not considered as grave breaches of the Geneva Conventions.226 Despite that the rules are rudimentary, a move towards the regulation of the conduct of physicians, also in noninternational armed conflicts, can be detected. Article 7 ap II determines what common article 3 lacked: that the wounded and sick should not only be collected and cared for but also protected and respected.227 This includes fighters, terrorists and others when hors de combat. The article is the ‘keystone’ of the protection of the wounded and sick under the new regime.228 The obligation to respect and protect can be interpreted as it was in the above examination concerning international armed conflicts. The second paragraph of article 7 ap II reiterates that the wounded and sick be treated humanely ‘in all circumstances’.229 They should furthermore receive 223 Moir, The Law of Internal Armed Conflict, p. 62. 224 Pictet (ed), Commentary I, p. 61. 225 Roberts & Guelff (eds), Documents on the Laws of War, p. 482. 226 William J. Fenrick, ‘The Development of the Law of Armed Conflict through the Jurisprudence of the International Criminal Tribunal for the former Yugoslavia’, in Michael N. Schmitt & Leslie C. Green (eds), The Law of Armed Conflict: into the Next Millennium (Naval War College, 1998), p. 82; Moir, The Law of Internal Armed Conflict, p. 157. 227 Based on an analogous application of article 8 (a) ap I, the wounded and sick should in non-international armed conflicts be defined as persons who require medical care and who refrain from any act of hostility. Sandoz, et al. (eds), Commentary to the Additional Protocols, para. 4636–4638. All definitions were omitted from the final draft of Additional Protocol II, see Sandoz, et al. (eds), Commentary to the Additional Protocols, para. 4631. 228 Sandoz, et al. (eds), Commentary to the Additional Protocols, para. 4634. 229 This requirement is already reiterated in the article 4 ap II containing the fundamental guarantees.

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the medical care and treatment they need ‘to the fullest extent practicable and with the least possible delay’. This reference to military necessity is realistic and practically relevant, yet surprises as such deference was possibly assumed in Additional Protocol I but never clearly stated. Lastly, non-medical discrimination, which may be more frequent in non-international armed conflicts, is prohibited.230 Compared to common article 3 gc, the general formulation of article 7 ap II demonstrates the open character of this provision. Junod in the icrc Commentary states that only ‘matters of urgency and medical ethics’ should factor into a consideration of order and manner of treatment231 begging the question how to define medical ethics. a Protection against Unwarranted Medical Procedures Next to the general requirement of humane treatment of the wounded and sick, article 5 (2)(e) ap II explicitly addresses the question of medical treatment of persons deprived of their liberty, yet with a more restricted ratione personae and a more limited scope of protection than article 11 ap I.232 The paragraph determines that persons detained or interned ‘for reasons related to the armed conflict’233 should not be subjected to an unjustified act or omission that may endanger their physical or mental health and integrity. Acts which are not justified by the health of the person treated and which are not consistent with generally accepted medical standards ‘applied to free persons under similar medical circumstances’ are prohibited. But whether the paragraph as it stands can actually guarantee this, remains unclear. As with the reference to generally accepted medical standards in article 11 ap I, these requirements for medical procedures need clarification to be applicable in non-international armed conflicts. Part III will further scrutinize the open terms. Furthermore, the provision’s limited applicability to detained or interned persons only is more restricted than the scope of its corollary in international armed conflicts, article 11 ap I.234 Differences between the two provisions can be explained on a political level, but the resulting inequality of protection raises concerns.

230 McCoubrey, International Humanitarian Law, p. 261. This is explicated in article 4 (1) ap II. 231 Sandoz, et al. (eds), Commentary to the Additional Protocols, para. 4647. 232 The interpretation of this article will however be kept brief, as most of it can be taken analogously from the interpretation of article 11 ap I. 233 Article 5 (1) ap II. 234 Excluded are persons ‘otherwise deprived of liberty as a result of’ an armed conflict who are indeed protected under article 11 ap I.

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Taking into account that international humanitarian law does not provide for a system of grave breaches for non-international armed conflicts, this prohibition does not have much force. It is a recommendation to the persons in charge of those interned and should be adhered to ‘within their limits of capabilities’. This is also illustrated by the icrc Commentary where it states that: ‘[paragraph] 2 may be considered as a sort of guideline which may be developed, depending on the circumstances and the goodwill of those responsible; the few rules that are given serve as illustrations and should not be interpreted restrictively or rigidly’.235 Nevertheless, it is an applaudable effort and some states have decided to penalize unwarranted medical procedures in non-international armed conflicts in their national legislation.236 2 Protection of Medical Personnel To ensure the protection of the wounded and sick, medical personnel have to be able to carry out their duties neutrally and independently and without fear for their life.237 Especially in non-international armed conflicts, physicians may quickly be accused of treachery or treason by a state when treating insurgents or guerilla fighters.238 Common article 3 gcs implicitly protected medical personnel as ‘persons taking no active part in hostilities’.239 Articles 9 and 10 ap II remedy that article 3 gcs omitted a provision concerning the welfare and duties of physicians in non-international armed conflicts by establishing protection for both the medical personnel itself and their medical duties. 235 Sandoz, et al. (eds), Commentary to the Additional Protocols, para. 4581. See also Kleffner, ‘Protection of the Wounded, Sick and Shipwrecked’, para. 606. 236 Germany, for example, in § 8 of the Völkerstrafgesetzbuch (VStGB), 26 June 2002 (BGBl. I p. 2254) criminalized unwarranted medical procedures. Many other, mostly common law, countries simply criminalized all acts that are criminalized in article 8 of the Rome Statute, for example in the uk’s International Criminal Courts Act 2001 (c. 17) of 11 May 2001 or Canada’s Crimes against Humanity and War Crimes Act, S.C. 2000. The criminalization is then limited to unwarranted medical experiments and mutilations. The Netherlands also limited its criminalization to experiments and mutilations in its Wet van 19 juni 2003, houdende regels met betrekking tot ernstige schendingen van het internationaal humanitair recht – Wet internationale misdrijven (wim), Stbl. 270 (2003) (translated in Netherlands Yearbook of International Law, (2004) Vol. 35: 426–437). 237 For the definition of medical personnel, the icrc Commentary again refers to article 8 ap I. Sandoz, et al. (eds), Commentary to the Additional Protocols, para. 4663; 4670. 238 McCoubrey, International Humanitarian Law, p. 262. 239 Mackintosh argues that because serious violations of article 3 have been liable to prosecution as war crimes, (see ICTY Tadić Appeal Judgment, para. 134) violence against medical personnel could also be prosecuted as war crimes. Mackintosh, ‘Beyond the Red Cross: the

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The protection provided for both permanent and temporary medical personnel in article 9 ap II is comparable to, yet less defined and briefer than in articles 24 gc i and 36 gc ii.240 It centers around the ‘protection against compulsion’.241 The first paragraph establishes that medical personnel be respected and protected, and introduces ‘that they be granted all available help for the performance of their duties’.242 Additionally, medical personnel should not be compelled to carry out tasks contrary to their ‘humanitarian mission’. A concretization of ‘humanitarian mission’ is not provided by the Protocol. It can be inferred that this precludes physicians being compelled to, for example, carry out non-therapeutic experiments but also, more generally, any non-medical, possibly even military task.243 Paragraph 2 restates the principle of non-discrimination, but here it refers to the freedom of physicians and other medical personnel not to be compelled to discriminate on grounds other than medical ones. It is the corollary to common article 3 gcs as well as article 7 ap II that established that wounded and sick should not be discriminated against on subjective grounds. As with article 7 ap II, the icrc Commentary again refers to medical ethics in determining what criteria may be used.244 Whose medical ethics and what they entail, is not specified. On the one hand, one would assume that in an internal armed conflict, both parties are of the same background and will have similar conceptions of the ethics governing medical treatment. On the other hand, it is precisely questions of background, belief and culture that may cause a non-international armed conflict. A reference to medical ethics thus does not necessarily resolve the vagueness of the formulation or conflicting interpretations thereof.245 a The Protection of Medical Duties Article 10 ap II is the counterpart to article 16 ap I: it not only protects physicians, but all persons who carry out medical activities, e.g. midwives, nurses,

240 241 242 243 244 245

Protection of Independent Humanitarian Organizations and their Staff in International Humanitarian Law’, p. 120. Medical and religious personnel are both protected, see article 9 ap II. This book concentrates on the medical personnel. O.R. XI, CDDH/II/SR.44, Statement by Mr Bothe, Rapporteur of the Drafting Committee, p. 485. As neither the icrc Commentary offers an interpretation of this element, nor literature, it can be taken as a general recommendation to national authorities. Sandoz, et al. (eds), Commentary to the Additional Protocols, para. 4676. Ibid. para. 4677. The term medical ethics will be scrutinized and more closely defined in Part III.

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psychologists, or paramedics.246 The first two paragraphs concern the neutrality of medical personnel, whereas the last two paragraphs, separated for clarity sake, address the principle of confidentiality. To guarantee the independence of physicians when carrying out medical activities, the first paragraph determines that no person shall be punished for medical activities regardless of who is being treated, as long as the treatment is consistent with medical ethics. Like article 16 ap I, the prohibition addresses all those persons in a position to give orders to punish or in any other way sanction physicians. The reference to medical ethics, like the other references, is aimed at providing protection but actually, due to its vagueness, leaves much room for interpretation. The second paragraph is closely related to the first, as well as to the first paragraph of article 9 ap II. A person carrying out medical activities, again this broad and inclusive term is used, cannot be compelled to act in violation of medical ethics, other rules ‘designed for the benefit of the wounded and sick’,247 or Additional Protocol II. The three elements were chosen to guarantee the broadest possible protection of all rules that benefit the wounded and sick, whether medical ethics or international humanitarian law, such as article 4 (2) ap II. Examples of prohibited acts would include the administration of mindaltering drugs for interrogations248 or medical experiments.249 The protection of medical confidentiality is addressed in the third paragraph which bars forced denunciations. The protection is however couched in weak terms: it only determines that ‘professional obligations […] be respected’ – a negative obligation. This is weakened by the fact that the duty to respect medical confidentiality has its limits in national law.250 This is comparable to article 16 ap I which determines that physicians may be obliged to give information concerning the wounded and sick if they are under a national legal obligation from their own party to the conflict. In this respect, paragraph 3 was

246 Civilians spontaneously caring for the wounded and sick are protected in article 18 ap II. The interpretation of this article will be kept brief, as most of it can be taken analogously from the interpretation of article 16 ap I. 247 See the statement by Mr Solf, representative of the United States at the diplomatic conference concerning the limitations of medical ethics, O.R. XI, CDDH/II/SR.16, p. 150, para. 46. 248 O.R. XI, CDDH/II/SR.27, Statement of the Belgian representative, p. 269. 249 Sandoz, et al. (eds), Commentary to the Additional Protocols, para. 4695. 250 Ibid. para. 4696–4699. An amendment which limited national laws to those ‘in force prior to the beginning of the conflict’ was, after extensive discussions, rejected. O.R. XI, CDDH/ II/SR.40, p. 429; CDDH/II/SR.41, p. 557; CDDH/II/SR.44, p. 485

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clearly a compromise to the detriment of the wounded and sick.251 If national law provides physicians with a high level of independence and freedom, this provision is a sufficient safeguard. However, if national laws require denunciation, this provision does not prohibit such laws. This will clearly harm the wounded and sick of the adversary who would probably defy treatment if being treated risked denunciation. The last paragraph of article 10 ap II states that medical personnel may not be punished or sanctioned for refusing to divulge information about the persons treated.252 Clearly, this provision is aimed at limiting a state’s power to force physicians to denounce their patients. However, because the paragraph, again, contains a deference to national law, this ‘reduces the value of the principle’ for the same reasons as laid out above.253 The protection of medical personnel and their duties, though an essential improvement,254 is based on a compromise that will have to prove its value. Article 9 ap II seems broad enough to accommodate the interests of physicians and others to carry out their work neutrally and independently. Article 10 ap II, on the other hand, is even more controversial in non-international than in international armed conflicts. The deference to national law was necessary to reach a compromise but in inner-state affairs the protection of fighters against denunciation is even more pertinent. The question arises whether the article as it is phrased now can effectively provide protection of medical duties and, by this, the wounded and sick seeking treatment. Most probably, wounded and sick members of armed groups will – often rightly so – distrust the independence of physicians and seek treatment in a more trustworthy environment. Furthermore, the reference to medical ethics, like in article 16 ap I, requires additional interpretation and explanation to be of practical value. Despite the noble effort to empower physicians to refuse to act against their ethics and to the detriment of the health of their patients, the enforcement of these provisions cannot be guaranteed, as the law of internal armed conflicts lacks an enforcement mechanism, such as the system of grave breaches. D Conclusion The above examination demonstrates that the protection of the wounded and sick and, necessitated by the former, medical personnel clearly underwent significant 251 252 253 254

Solf, ‘Studies in honour of Jean Pictet’, p. 245. In article 16 ap I the two aspects were drawn together in a single provision. Sandoz, et al. (eds), Commentary to the Additional Protocols, para. 4705. Abi-Saab, ‘Humanitarian Law and Internal Conflicts’, p. 219.

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changes since Solferino culminating in the two Additional Protocols to the Geneva Conventions of 1977. Ultimately, the events of World War II greatly influenced the creation of the present-day system of international humanitarian law: the four Geneva Conventions of 1949 which were further developed in the Additional Protocols. One of the most essential principles of international humanitarian law is that of humanity. Codified in international humanitarian law, it requires that all wounded and sick, prisoners of war, and civilians be protected and respected at all times and treated humanely. The principle of humanity is the thread running through all four Conventions and provides a stable basis of protection. Geneva Law expands the principle by prohibiting medical or scientific experimentation on protected persons and unwarranted mutilations. Because of the repetition of these prohibitions in each Convention, it can be inferred that it is one of the most important prohibitions introduced in the Geneva Conventions. Article 13 gc iii specifies that non-therapeutic experiments and mutilations are forbidden, except when indicated by the health of a person and in her interest. This indicates a minimum requirement of ethical behavior by physicians who should act to the benefit of those in need of medical care. Next to affirming the general principles of the Geneva Conventions concerning the protection of the wounded and sick in general and redefining some essential concepts, the Additional Protocols introduce an even broader protection in articles 11 ap I and 5 (2)(e) ap II. The articles regulate the medical interaction between those in need of medical care and those providing it, particularly physicians. Medical ethics and generally accepted medical standards are used as a framework for this interaction. On the one hand, physicians should neither breach generally accepted medical standards nor act to the detriment of a protected person seeking care when conducting a medical procedure. If such a breach is willful and seriously endangers the patient’s health, Additional Protocol I goes as far as classifying such an act as a grave breach. Medical grave breaches, to be discussed in Chapter 3, provide a ‘hard’ limit to physicians’ actions in armed conflict. Regrettably, such a strong mechanism to induce compliance was not adopted for Additional Protocol II. Hence, article 5 (2)(e) ap II lacks some of the persuasiveness of article 11 ap I. However, taken together with the principles in the Geneva Conventions, it can be surmised that all nontherapeutic medical treatments, especially experiments, are prohibited except when justified by the health of persons and in their interest. In addition, all medical activities must be in the interest of the person treated and in accordance with generally accepted medical standards. Physicians enjoy different status and different levels of protection in armed conflicts according to affiliation. However, as they are essential to provide

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medical care to protected persons, all physicians are protected and respected as long as they do not actively participate in hostilities. Pursuant to articles 16 ap I and 10 ap II, physicians may never be punished for carrying out a procedure in accordance with medical ethics and cannot be compelled to carry out procedures in violation of medical ethics. They are thus protected as long as their work is within the bounds of medical ethics – a ‘soft’ limit. The explicit novelty in this article is that medical personnel cannot be compelled to act unethically which ensures that physicians can continue their work independently, neutrally, and impartially. This well-balanced system of protection of physicians and those seeking medical care is characteristic for Additional Protocol I. Additional Protocol II has a more limited reach: the general prohibition of compulsion was also adopted, but references to national law limiting the prohibition of denunciation in article 10 ap II could not be avoided. Though still an important improvement for the protection of medical duties, the limited scope is highly regrettable. Despite the overall improvement in the protection of persons and physicians, the important provisions concerning medical treatment in the Additional Protocols are unsatisfactorily vague. With the terms ‘medical ethics’ and ‘generally accepted medical standards’, two extra-legal terms were introduced into the system of international humanitarian law.255 They open international humanitarian law to medical ethics because they refer to a set of extra-legal rules beyond the system they are contained in. To optimize their application and in the interest of legal specificity, these rules will have to be specified. The questions that need to be answered concern whose medical ethics are referred to, how generally accepted medical standards relate to medical ethics, whether both should be considered to be universal, and whether the provisions refer to national standards or ethics. If the envisaged system of protection for those treating and those treated is to save lives, it will have to be further analyzed, defined, and eventually put into practice in the provision of medical care during an armed conflict. To ensure the best protection of those in need of medical care – generally victims of armed conflicts – it is fundamental that all states and individuals adhere to the provisions, including physicians. The work of physicians in armed conflict is already less than ideal and can cause unimaginable pressure and problems,256 hence a

255 Torrelli, ‘La Protection du Médecin dans les Conflits Armés’, p. 589. 256 Michael J. Gunn & Hilaire McCoubrey, ‘Medical Ethics and the Laws of Armed Conflict’, 3 Journal of Armed Conflict Law, 133 (1998), p. 157–158. Some of such challenges were discussed in Chapter 1.

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clear framework is more than germane. An adequate application of the system of protection requires, first and foremost, an in-depth analysis of the implementation and realization of the relevant articles, their customary status, yet also on their exact meaning: what are medical ethics in international humanitarian law?

chapter 3

International Criminal Law International humanitarian law is aimed at limiting the number of victims of armed conflicts through its compliance.1 It is first and foremost the duty of a state, the primary addressee of international humanitarian law, to comply with international humanitarian law and to assure that its citizens, the secondary addressees, act accordingly as well. This entails that states are obligated to deter their nationals from violating Geneva Law in armed conflicts.2 Part of this obligation is the prohibition, penalization, and ultimately prosecution of behavior that violates the rules of international humanitarian law. This not only serves the practical application of international humanitarian law, but it also ensures its credibility and contributes to the prevention of impunity for war crimes. It is therefore essential that a violation of the Geneva Conventions or Additional Protocols incurs consequences, in certain circumstances national or international prosecution.3 The grave breaches regime which was introduced in the Geneva Conventions of 1949 revolutionized international humanitarian law.4 Grave breaches are ‘particularly serious violations of international humanitarian law’ (emphasis added) that are exhaustively listed in the Geneva Conventions and Additional Protocol I.5 Established in articles 49 gc I, 50 gc II, 129 gc III, and 146 gc IV,6 1 Frits Kalshoven, ‘From International Humanitarian Law to International Criminal Law’, 3 Chinese Journal of International Law, 151 (2004), p. 158. 2 Gerhard Werle, Principles of International Criminal Law, 2nd Ed. (t.m.c. Asser Press, 2009), para. 951. 3 Baccino-Astrada, Manuel des Droits et Devoirs du Personnel Sanitaire lors des Conflits Armés, p. 34–36. 4 In general, the articles addressing the grave breaches and their prosecution are identical in all four Conventions. Differences can be found in the respective enumerations of grave breaches in articles 50 gc I, 51 gc II, 130 gc III, and 147 gc IV. Except in cases of inconsistencies, reference will be made to the Commentary to Geneva Convention I in connection with these articles. Pictet (ed), Commentary I, p. 395. 5 Knut Dörmann, ‘Article 8 (a): Grave Breaches’, in Otto Triffterer (ed), Commentary on the Rome Statute of the International Criminal Court – Observers’ Notes, Article by Article (C.H. Beck Verlag, 2008), para. 10. 6 These articles are based on article 28 of the Geneva Convention of 1906 which determined that ‘the signatory governments also engage to take, or to recommend to their legislatures, the necessary measures to repress, in time of war, individual acts of […] ill treatment of the sick and wounded of the armies’. This was reiterated in article 29 of the Geneva Convention of 1929.

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the grave breaches regime provides the ‘cornerstone of the system used for the repression of breaches of the [Conventions]’.7 The grave breaches in the Conventions are only then also grave breaches of Additional Protocol I when they are directed against the persons protected in the Protocol, most importantly against the wounded, sick and shipwrecked or medical personnel ‘under the control of the adverse party’.8 Furthermore, article 85 (3) ap I adds grave breaches to those of the Conventions. Pursuant to article 85 (5) ap I all grave breaches are also war crimes. Considering that the term ‘war crime’ did not appear in the Conventions, this paragraph clarifies the correlation between grave breaches and war crimes.9 The principle that all grave breaches are war crimes does not apply vice versa: not all war crimes are grave breaches – only those that are enumerated in Geneva Law. State parties to the Geneva Conventions and Additional Protocol I are obliged to criminalize grave breaches nationally and to either prosecute or extradite suspects thereof. This requires jurisdiction over grave breaches in all member states.10 Universal jurisdiction is warranted because some crimes ‘are

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Uhler & Coursier (eds), Commentary IV, p. 590. Article 85 (2) ap I defines the category of victims of grave breaches as persons described in articles 44, 45 and 73 of the Protocol. This extends the circle of protected persons. Sandoz, et al. (eds), Commentary to the Additional Protocols, para. 3468. This was generally accepted and re-affirmed in ICTY Tadić Appeal Judgment, para. 81 where the Appeals Chamber determined that the protected persons requirement implies that grave breaches are confined to the realm of international armed conflicts. Ghislaine Doucet, ‘La Qualification des Infractions Graves au Droit International Humanitaire’, in Frits Kalshoven & Yves Sandoz (eds), Implementation of International Humanitarian Law (Martinus Nijhoff Publishers, 1989), p. 82–83; Horst Fischer, ‘Grave Breaches of the 1949 Geneva Conventions’, in Gabrielle Kirk McDonald & Olivia SwaakGoldman (eds), Substantive and Procedural Aspects of International Criminal Law – Commentary (Kluwer Law International, 2000), p. 70–72. The Geneva Conventions require conditional universal jurisdiction: states should prosecute grave breaches without a necessary nexus with the perpetrator, but the presence of the perpetrator on their territory is an existential condition for prosecution. Absolute universal jurisdiction would allow prosecution of suspected perpetrators even when they are not on the state’s territory. An example of this can be found in article 7 of Belgium’s Law concerning the punishment of serious violations of international humanitarian law (Wet betreffende de bestraffing van ernstige schendingen van het internationaal humanitair recht) of 16 June 1993 which was retracted on 7 August 2003. It was the subject of International Court of Justice, Arrest Warrant (Democratic Republic of the Congo v. Belgium) [2000], icj Reports, 2002. See also Cassese, International Criminal Law, p. 338, fn. 4.

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in essence crimes against the law of nations’.11 In most states the grave breaches need to be criminalized before they can be prosecuted as war crimes. Since the aftermath of World War II until the creation of the International Tribunal for the Prosecution of Persons responsible for Serious Violations of International Humanitarian Law committed in the Territory of the Former Yugoslavia since 1991 (icty) in 1993, minimal attention was paid to the prosecution of grave breaches.12 For medical grave breaches and medical war crimes that is still the case. The present Chapter will introduce the concept of medical grave breaches and medical war crimes, examine its codification on an international level, and analyze its application in practice by scrutinizing a handful of past prosecutions for medical war crimes committed during armed conflict. The aim of the examination is to discover how the concept of medical war crimes was developed and whether medical ethics were specified as required by the principle of specificity. This is the first step towards enabling future prosecutions for medical war crimes. A

Medical War Crimes

1 Medical Grave Breaches and Medical War Crimes The term ‘medical war crime’ was coined by u.s. investigators after World War II.13 The development of the criminalization of medical war crimes was prompted by the Doctors’ Trial before the Nuernberg Military Tribunal in 1946 where physicians were tried for medical crimes committed during the war. However, it was article 11 (4) ap I that finally introduced medical grave breaches

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Israel District Court, Attorney General v. Eichmann, Judgment [1961] i.l.r., Vol. 36, para. 16. Christian Tomuschat, ‘La compétence universelle en matière pénale à l’égard du crime génocide, des crimes contre l’humanité et des crimes de guerre – Universal criminal jurisdiction with respect to the crime of genocide, crimes against humanity and war crimes’, 71 Annuaire de l’Institut de Droit international, 213 (2005), p. 248. Vicuña concludes that state practice is lacking and the customary status to be questionable. Reply of Fransisco Orrego Vicuña in: Tomuschat, ‘Universal Criminal Jurisdiction’, p. 275. See also HansHeinrich Jescheck, ‘War Crimes’, in Rudolf Bernhardt (ed), Encyclopedia of Public International Law (Elsevier, 1982), p. 1352. Paul Julian Weindling, Nazi Medicine and the Nuremberg Trials – From Medical War Crimes to Informed Consent (Palgrave Macmillan, 2004), p. 1.

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to international humanitarian law.14 Pursuant to article 11 (4) ap I medical acts constitute grave breaches when they (a) fall under the prohibited acts of the second paragraph or constitute violations of the requirements in the first paragraph, (b) are committed by a willful act or omission, and (c) seriously endanger the physical or mental health or integrity of (d) a protected person in the power of an adverse party.15 Prohibited acts are, on the one hand, those enumerated in article 11 (2) ap I, namely physical mutilations, medical or scientific experiments, or the removal of tissue or organs for transplantation even with the consent of the person.16 However, the paragraph merely provides examples of acts that are prohibited.17 Generally, all medical procedures that do not meet the requirements of article 11 (1) ap I are prohibited.18 Article 11 (1) ap I requires that a procedure has to be in accordance with generally accepted medical standards and indicated by the state of health of the person concerned. A clarification in the same paragraph details that generally accepted medical standards are such standards that ‘would be applied under similar medical circumstances to the treating parties own nationals that are in no way deprived of their liberty’. The party conducting the procedure, the civilian or military medical personnel, should treat protected persons as they would treat their own nationals who are not deprived of liberty in similar circumstances. 14

The classification as grave breaches was neither initially envisaged (see original draft in O.R. I, Part III, p. 6), nor introduced as a written amendment (see or. III, Table of Amendments to the Draft Additional Protocol, p. 60–62) but rather introduced in the last phase of the drafting by an Australian oral amendment, in 1977. See O.R. XI, CDDH/II/ SR.29, p. 294; CDDH/II/SR.30, p. 305. 15 See also Sandoz, et al. (eds), Commentary to the Additional Protocols, para. 3474. 16 The principle of informed consent is a specification of the principle of autonomy – one of the four generally accepted principles of biomedical ethics. According to Beauchamp and Childress, the four principles of biomedical ethics are beneficence, non-maleficence, autonomy and justice. For a detailed discussion, consult Beauchamp & Childress, Principles of Biomedical Ethics. For more detail on informed consent in armed conflicts, see Chapter 1. 17 Lindsay Moir, ‘Conduct of Hostilities – War Crimes’, in José Doria, et al. (eds), The Legal Regime of the International Criminal Court: Essays in Honour of Professor Igor Blishchenko (Martinus Nijhoff Publishers, 2009), p. 511. 18 The icrc Study on Customary International Humanitarian Law has found that ‘[m]utilation, medical or scientific experiments or any other medical procedure not indicated by the state of health of the person concerned and not consistent with generally accepted medical standards are prohibited’, Rule 92 in Henckaerts, et al. (eds), icrc Study Customary International Humanitarian Law Vol. 1: Rules, p. 320.

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Yet, not all medical procedures prohibited by article 11 (1) ap I also give rise to a grave breach. In order for an act or omission to be a grave breach, it additionally needs to have been committed willfully and have seriously endangered the health and integrity of the patient. To actually be considered a serious danger, the effect of the medical procedure must affect the person treated in a ‘long-lasting or crucial’ manner.19 Usually, medical procedures without a therapeutic purpose meet these criteria. Following the wording of article 11 (4) ap I which refers to a ‘wilful act or omission’ (emphasis added), the relevant mens rea for such acts is willfulness. This should entail willfulness or recklessness but not simple neglect.20 In the indictment in the Doctors’ Trial, the mens rea was construed as ‘unlawfulness, willingness and knowledge’. This resonates in the requirement of willfulness for a medical grave breach of article 11 (4) ap I.21 Article 11 (4) ap I does not limit the possible perpetrators of medical grave breaches to physicians but generally medical grave breaches are committed by persons who carry out medical procedures. In most cases, a violation of article 11 (4) ap I will therefore bring physicians in the ambit of criminal prosecution.22 Although article 11 ap I offers protection for all detained persons,23 and generally also applies to a party’s own nationals, the denial of the provision’s protection regarding a party’s own nationals, even if deprived of their liberty, cannot result in a grave breach.24 Such crimes are usually prosecuted as crimes against humanity.25 Where the scope of protection of article 11 (1) ap I includes ‘[persons] who are interned, detained or otherwise deprived of liberty as a result of a situation referred to in Article 1’, this was omitted in article 11 (4) ap I. Accordingly, a medical violation is prosecutable as a grave breach only if the victim is a person ‘in the power of a party other than the one on which he depends’.26 This 19 20 21

Sandoz, et al. (eds), Commentary to the Additional Protocols, para. 3474. Ibid. para. 493. Count 2 of the Indictment in u.s. Military Tribunal, The Doctors’ Trial, which will be discussed below. 22 Baccino-Astrada, Manuel des Droits et Devoirs du Personnel Sanitaire lors des Conflits Armés, p. 34–35. 23 Kalshoven & Zegveld, Constraints on the Waging of War, p. 126. 24 Solf, ‘Studies in honour of Jean Pictet’, p. 242. 25 As was the case in some prosecutions after World War II, for example C.F. Rüter, ddrJustiz und ns-Verbrechen – Sammlung Ostdeutscher Strafurteile wegen nationalsozialistischer Tötungsverbrechen, Vol. XII (Amsterdam University Press & K.G. Saur Verlag, 2002), Lfd. Nr. 1760. See also the ictr Ntakirutimana Trial Judgment. 26 The paragraph expressly does not use the nationality category to avoid definitional problems.

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restriction was included to ensure the sovereignty of parties to a conflict over their own nationals.27 It is compatible with article 85 (1) ap I concerning grave breaches.28 The chosen formulation avoids the controversial nationality issue. A purely textual interpretation providing protection according to nationality would give a rather restrictive result; in modern wars, ethnicity or affiliation is more often the basis for allegiance than nationality.29 The Rome Statute, for example, determines that a perpetrator does not have to know the nationality of his victim; solely that he belongs to the adverse party.30 Hence, a physician’s act can incur prosecution when she treats a patient who is not of the same party to the conflict as she herself and she knows this. This broad interpretation of civilian protected persons is within the object and purpose of the drafters of the Geneva Conventions. Nonetheless, care should be taken not to broaden the concept beyond practicability. Unwarranted medical procedures are also prohibited in article 5 (2)(e) ap II. The paragraph determines that persons detained or interned ‘for reasons related to the armed conflict’31 should not be subjected to an unjustified act or omission that may endanger their physical or mental health and integrity. Acts which are not justified by the health of the person treated and which are not consistent with generally accepted medical standards ‘applied to free persons under similar medical circumstances’ are prohibited. However, Additional 27 28 29

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Sandoz, et al. (eds), Commentary to the Additional Protocols, para. 493 (b). Bothe, et al., New rules for Victims of Armed Conflicts, p. 115. Article 4 gc IV used the nationality criterion for determining who should be categorized as ‘civilian’. It thereby respected states’ sovereignty over their own nationals by protecting only those civilians in the hands of a party of which they were not a national. (Uhler & Coursier (eds), Commentary IV, p. 46–47.) Ever since, a teleological approach whereby nationality or affiliation is irrelevant, as taken by the icty Appeals Chamber in the Tadić judgment, has found resonance. International Criminal Tribunal for the former Yugoslavia, Prosecutor v. Dusko Tadić a.k.a. ‘Dule’, Appeals Chamber Judgment [1999], para. 163–166; International Criminal Tribunal for the former Yugoslavia, Prosecutor v. Zdravko Mucić, Hazim Delić, Esad Landžo and Zejnil Delalić (Čelebići), Trial Chamber Judgment [1998], para. 263. Meron argues that ‘nationality’ should at times be construed as ‘persons in the hands on an adversary’. Theodor Meron, ‘War Crimes Law for the Twenty-First Century’, in Michael N. Schmitt & Leslie C. Green (eds), The Law of Armed Conflict: Into the Next Millennium (Naval War College, 1998), p. 329. Rejecting an ‘allegiance approach’, Marco Sassòli & Laura M. Olson, ‘The Judgment of the icty Appeals Chamber on the Merits in the Tadić Case’, 839 International Review of the Red Cross (2000). Concerning article 8(2)(a)(i): Assembly of States Parties to the Rome Statute of the International Criminal Court, Elements of Crimes, Doc. No. ICC-ASP/1/3(part II-B) (9 September 2002), p. 14. Article 5 (1) ap II.

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Protocol II does not determine what consequences a violation of the prohibition has. The icrc Commentary states that: ‘[paragraph] 2 may be considered as a sort of guideline which may be developed, depending on the circumstances and the goodwill of those responsible; the few rules that are given serve as illustrations and should not be interpreted restrictively or rigidly’.32 Medical grave breaches should be treated equally to all other grave breaches of the Geneva system as the concise wording of article 85 (3) ap I indicates.33 When implemented and criminalized by member states, they can be prosecuted as medical war crimes. Medical war crimes can be more broadly defined. They are willful acts or omissions seriously endangering the mental or physical health or integrity of a protected person who is in the power of a party to the armed conflict due to the armed conflict committed by a physician in her professional work during an armed conflict.34 Although the concept is modeled after the medical grave breach introduced in article 11 ap I which is limited to violations committed in international armed conflicts, it should extend to non-international armed conflicts.35 Generally, war crimes can be committed in both international as well as non-international armed conflicts36 and violations of provisions of protection in non-international armed conflicts can also lead to prosecution.37 This approach is supported by the Rome Statute which equally criminalizes mutilations and medical and scientific experiments committed during non-international armed conflicts. The requirements for medical 32 33 34

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Sandoz, et al. (eds), Commentary to the Additional Protocols, para. 4581. See also Kleffner, ‘Protection of the Wounded, Sick and Shipwrecked’, para. 606. The acts constituting grave breaches listed under article 85 (3) ap I are ‘[i]n addition to the grave breaches defined in Article 11 […]’. Grave breaches under the Geneva Conventions of 1949 are serious violations of international humanitarian law committed against a protected person, regardless of affiliation. Pictet (ed), Commentary II, p. 271. However, in the system of Geneva Law, a party’s own civilian nationals are not protected under Geneva Convention IV. On war crimes in non-international armed conflicts in general, see Eva La Haye, War Crimes in Internal Armed Conflicts (Cambridge University Press, 2008). ICTY Tadić, Appeal Judgment, para. 81–84. This is in line with literature, see Claus Kress, ‘War Crimes committed in Non-International Armed Conflict and the Emerging System of International Criminal Justice’, 30 Israel Yearbook on Human Rights, 103 (2000), p. 107–109; Lindsay Moir, ‘Particular Issues regarding War Crimes in Internal Armed Conflicts’, in José Doria, et al. (eds), The Legal Regime of the International Criminal Court: Essays in Honour of Professor Igor Blishchenko (Martinus Nijhoff Publishers, 2009), p. 612–614. Others would even apply the grave breaches regime mutatis mutandi to non-international armed conflicts see ICTY Tadić Decision on Jurisdiction, Separate Opinion of Judge Abi-Saab, para. IV. La Haye, War Crimes in Internal Armed Conflicts, p. 121 et seq.

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grave breaches should, then, apply analogously to medical war crimes committed during non-international armed conflicts with the difference being in the form of armed conflict.38 A medical war crime has to have a nexus with an armed conflict, whether noninternational or international. ‘[T]he nexus requirement serves to exclude from the realm of the laws of war purely random or isolated criminal occurrences which do not constitute war crimes’.39 The fact that there is an armed conflict must thus have played a role in the commission of the crime.40 The perpetrator need not necessarily have a close relationship with one of the parties to the conflict but the act that was committed needs to have something to do with the armed conflict.41 Additionally, a perpetrator must have been aware of the factual circumstances of an armed conflict, whether non-international or international.42 It is questionable if it can ever be determined with sufficient certainty if a perpetrator was aware that his actions constituted a grave breach. Therefore, the burden of proof for this requirement should lie with the prosecution.43 If a violation of international humanitarian law that meets the criteria of a medical war crime has been committed, irrespective of the sort of armed conflict, it should always lead to prosecution. 38

The concept of protected persons is not recognized as such in non-international armed conflicts. Instead, protected are ‘persons taking no active part in the hostilities’ pursuant to common article 3 gcs. This is also the definition used in article 8 (2)(c) Rome Statute regarding the victims of war crimes in non-international armed conflicts. It should apply to victims of medical war crimes. 39 Guénaël Mettraux, International Crimes and the ad hoc Tribunals (Oxford University Press, 2005), p. 39. 40 Cassese, International Criminal Law, p. 82–83. For icty Jurisprudence see ICTY Tadić Appeal Judgment, para. 81–84. See also International Criminal Tribunal for the former Yugoslavia, Prosecutor v. Zlatko Aleksovski, Appeals Chamber Judgment [2000], para. 80; International Criminal Tribunal for the former Yugoslavia, Prosecutor v. Tihomir Blaškić, Appeals Chamber Judgment [2004], para. 170; International Criminal Tribunal for the former Yugoslavia, Prosecutor v. Mladen Naletilić (a.k.a. Tuta) and Vinko Martinović (a.k.a. Štela), Appeals Chamber Judgment [2006], para. 110; International Criminal Tribunal for the former Yugoslavia, Prosecutor v. Radoslav Brđanin, Appeals Chamber Judgment [2007], para. 256. 41 La Haye, War Crimes in Internal Armed Conflicts, p. 323. 42 Knut Dörmann, Elements of War Crimes under the Rome Statute of the International Criminal Court – Sources and Commentary, 1st Ed. (Cambridge University Press, 2002), p. 18–28. This analysis relies heavily on the icty jurisprudence, e.g. International Criminal Tribunal for the former Yugoslavia, Prosecutor v. Dario Kordić and Mario Čerkez, Appeals Chamber Judgment [2004], para. 311. 43 As is the case before the icty, see icty Naletilić and Martinović Appeal Judgment, para. 118–121.

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2 Medical Aspects of the Classic Grave Breaches Articles 50 gc I, 51 gc II, 130 gc III and 147 gc IV exhaustively enumerate violations of the Conventions considered serious enough to merit universal prosecution.44 The ‘classic’ grave breaches are ‘wilful killing, torture or inhuman treatment, including biological experiments, wilfully causing great suffering or serious injury to body or health’45 of an individual protected by one of the Conventions. All these crimes can also be committed by a physician in a medical context. For a medical act or procedure by a physician to be prosecuted as a grave breach of the Conventions, the act must also meet the requirements of the grave breaches under the Conventions. Willful killing refers to killing both by commission as well as omission, irrespective of whether the victim belongs to the adverse party or not, as long as she was a protected person.46 The word ‘willful’ denotes an intention on the side of the perpetrator to cause the death of the victim or at least a dolus eventualis.47 Examples of willful killing by omission are the intentional starvation of persons or the intentional denial of medical care.48 When exactly a person was acting with the relevant intent and when a killing was not merely an act of war but willfully carried out, depends on the circumstances.49 The classification of torture within the grave breaches regime depends on the intention behind the act and not ‘the mere assault on the physical or moral integrity of a person’.50 A physician would only be prosecutable for torture as a grave breach if she assaulted or assisted in the assault of a protected person with the intention to extract information or a confession of sorts. The severity 44 45

46 47 48

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Hilaire McCoubrey, ‘War Crimes: the Criminal Jurisprudence of Armed Conflict’, 31 Revue de Droit Militaire et de Droit de la Guerre, 168 (1992), p. 176. Each Geneva Convention contains some additional special grave breaches. These are of little importance to the examination of medical grave breaches and shall not be further discussed. Pictet (ed), Commentary II, p. 271. Dolus eventualis or recklessness means that the perpetrator knowingly acts in a way that risks the death of the protected person. Cassese, International Criminal Law, p. 92–93. For an example of willful killing by omission (willful neglect) see Military Court for the Trial of War Criminals, Trial of Heinrich Gerike, Georg Hessling, Werner Noth, Hermann Müller, Gustav Claus, Richard Demmerich, Fritz Flint, and Valentina Bilien [‘The Velpke Baby Home Trial’], Judgment [1946], Vol. VII. Uhler & Coursier (eds), Commentary IV, p. 597. Pictet (ed), Commentary II, p. 272; Uhler & Coursier (eds), Commentary IV, p. 598. The definition of torture can be found in article 1 of the Convention against Torture and other cruel, inhuman or degrading Treatment or Punishment, 10 December 1984, entered into force 26 June 1987, Doc. No. A/39/51 (1984), 1465 u.n.t.s. 85. The human rights aspects of torture and cruel, inhuman or degrading treatment will be discussed in Chapter 5.

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of the pain does not have to be excessive, cause a permanent injury, or leave visible signs.51 Whether or not a medical procedure fulfills the severity requirement is a ‘fact-dependent inquiry’.52 There are some indicators of torture such as electric shocks, prolonged denial of medical assistance, and simulated executions which can all have a medical element.53 A grave breach often mentioned in the same breath as torture is ‘inhuman treatment’. It is often used as a residual category for criminal acts that do not fall under the other provisions.54 The principle of humane treatment55 is a ‘guiding theme’56 or ‘cornerstone of all four Conventions’.57 When providing medical care during armed conflicts, physicians should at all times treat patients and others humanely. Inhumane treatment involves intentional acts that infringe upon a protected person’s human dignity – beyond violating his physical and mental integrity – and is committed with the intention of ‘leveling the victim with an animal’.58 The required intent was not explicated, as is the case with willful killing. The requisite intent should however still be the ‘willingness and knowledge’ to subject a person to inhuman treatment. This was the mens rea requirement that was used in the Doctors’ Trial.59 Biological experiments are explicitly and separately named as a form of inhumane treatment. This proves the emphasis placed on the prohibition of

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International Criminal Tribunal for the former Yugoslavia, Prosecutor v.Radoslav Brđanin, Trial Chamber Judgment [2004], para. 483–484. 52 icty Naletilić and Martinović Appeal Judgment, para. 299. 53 The Trial Chamber in Čelebići clearly states that it does not intend to exhaustively list acts that constitute torture. icty Čelebići Trial Judgment, para. 467–469. Its enumeration of indicators of torture is based on Pieter Kooijmans, Special Rapporteur appointed pursuant to Commission on Human Rights, Res. 1985/33, Report on Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment, Doc. No. E/CN.4/1986/15, para. 119. 54 Gideon Boas, et al., Elements of Crimes under International Law, Vol. II (Cambridge University Press, 2008), p. 272. 55 As established in articles 12 gc I and II, 13 gc III, and 27 and 32 gc IV, as well as article 75 ap I. 56 Rüdiger Wolfrum & Dieter Fleck, ‘Enforcement of International Humanitarian Law’, in Dieter Fleck (ed), The Handbook of International Humanitarian Law (Oxford University Press, 2008), para. 1410 (6). 57 icty Čelebići Trial Judgment, para. 532. 58 Pictet (ed), Commentary II, p. 273. Reference is made to the Commentary to Geneva Convention II, as the Commentary to Geneva Convention I classified torture, inhuman treatment and biological experiments as ‘clear enough in themselves and [needing] no detailed comment’. Pictet (ed), Commentary I, p. 418. 59 The Doctors’ Trial will be discussed and analyzed below.

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experiments on protected persons in the system of the Conventions.60 Physicians are allowed to use new therapeutic methods if such treatment is medically justified, for the amelioration of the health of a patient, and the patient, if competent, has provided her informed consent.61 Whether something is a justified new therapeutic method or whether it is purely experimental may be controversial.62 A physician should hence always conduct a careful analysis whether a new procedure is considered humane. The informed consent of a patient to the procedure is an important element of such an analysis although consent to an inhuman procedure can never justify said procedure. Besides the explicit medical grave breach, physicians can, thus, also be involved in the commission of classic grave breaches. Whether physicians should be prosecuted on the basis of the classic grave breaches or whether they should rather be specifically prosecuted for a medical grave breach should be decided on a case-by-case basis. B

Medical War Crimes in International Criminal Law

Considering that medical grave breaches entail the same responsibilities for state parties as the conventional grave breaches of the Geneva Conventions and Additional Protocol I, the provision in article 11 (4) ap I should be implemented in criminal legislations. The necessary criminalization of medical grave breaches can be on a national level to facilitate national prosecution or on an international level, e.g. in the Statutes of the International Criminal Tribunal for the former Yugoslavia (icty) or for Rwanda (ictr) or the International Criminal Court (icc). Alternatively, if the relevant state practice and opinio juris exist, criminalization can be inferred from customary international law.63 The criminalization of medical grave breaches, but also the penalization of medical war crimes committed in non-international armed conflicts, reveals information concerning the interpretation of such crimes. Questions to be answered are whether medical grave breaches are attributed equal

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See comparatively articles 12 gc I and II, 13 gc III, 32 gc IV and the discussion in Chapter 2. These requirements are taken from article 13 gc III. The Commentary refers to the requirements in article 12 gc II. Pictet (ed), Commentary II, p. 273. 62 Wolfrum & Fleck, ‘Enforcement of International Humanitarian Law’, para. 1410 (7). 63 Cassese, International Criminal Law, p. 84–85. Chapter 4 contains a discussion on the customary character of the relevant provisions in international humanitarian law. It includes an examination of some national codifications of medical grave breaches or war crimes.

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importance to other breaches, whether the criminalization includes the context of non-international armed conflicts, and whether the implementation provides some interpretation or analysis relevant to make the concept most practicable. 1 The icty and ictr Statutes Neither the Statute of the icty nor that of the ictr explicitly criminalize medical grave breaches. Article 2 icty Statute provides jurisdiction over the grave breaches of the Geneva Conventions and Additional Protocol I, namely willful killing, torture, or inhuman treatment, including biological experiments, and willfully causing great suffering or serious injury to body or health. Other breaches of the Geneva Conventions, serious violations of Hague Law, and certain (grave) breaches under Additional Protocol I are enumerated in article 3 icty Statute dealing with ‘violations of the laws or customs of war’. These concern the means and methods of warfare. The Appeals Chamber in Tadić established that they can also be committed in non-international armed conflicts.64 The medical grave breach of article 11 (4) ap I was neither included in article 2 nor in article 3 icty Statute. Medical war crimes can only be prosecuted as conventional grave breaches, such as killing, torture or inhuman treatment. Most probably, medical grave breaches were not included because these crimes were not considered as relevant in the conflict in the former Yugoslavia.65 The ictr Statute determines that the ictr has no jurisdiction over grave breaches of the Geneva Conventions and limits the jurisdiction to war crimes committed during a non-international armed conflict only. Article 4 ictr Statute criminalizes violations of common article 3 gcs and violations of Additional Protocol II, including under sub-paragraph (a) cruel treatment such as torture, mutilation or any form of corporal punishment. Beside outrages upon personal dignity that could be committed in a medical context, 64 65

ICTY Tadić Appeal Judgment para. 128–137. Nevertheless, the Čelebići Indictment charged the accused with the willful killing of persons as a grave breach pursuant to article 2 (a) of the icty Statute and as a violation of the laws and customs of war pursuant to article 3 of the icty Statute which correlates to article 3 (1)(a) gcs by denying medical care. International Criminal Tribunal for the former Yugoslavia, Prosecutor v. Zdravko Mucić, Hazim Delić, Esad Landžo and Zejnil Delalić (Čelebići), Indictment [1996], para. 18. None of the accused were physicians, as was Ntakirutimana, and the denial of medical care was considered part of the crime of willful killing. Neither the Trial nor the Appeals Chamber of the icty in their judgments elaborated on this aspect separately.

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this is the only remotely medical crime prosecutable under the ictr Statute.66 2 The Rome Statute Article 8 of the Rome Statute enumerates all war crimes the icc has jurisdiction over.67 Article 8 (2)(a) Rome Statute sets out the grave breaches of the Geneva Conventions as war crimes punishable by the icc, especially when according to the chapeau ‘committed as part of a plan or policy or as a part of a large-scale commission of such crimes’.68 Article 8 (2)(a)(ii) criminalizes biological experiments on protected persons.69 Pursuant to the Elements of Crime, biological experiments seriously endanger the physical or mental health or integrity of the persons subjected to them when they are non-therapeutic, not justified by medical reasons, and not carried out in the interest of the research subject. There is thus no result requirement – death does not have to ensue, a mere threat to the health and integrity of the research subject suffices.70 Article 8 (2)(b)(x) Rome Statute prohibits mutilations and medical or scientific experiments in international

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Under article 3 of the Special Court for Sierra Leone Statute mutilation as a form of violence to life, health and physical or mental well-being of persons is considered a serious violation of common article 3 gcs and of Additional Protocol II. There have been no prosecutions on this basis. The Law on the Establishment of the Extraordinary Chambers for Cambodia, with inclusion of amendments as promulgated on 27 October 2004 (NS/ RKM/1004/006) does not specifically mention medical grave breaches or war crimes. Its article 6 omits experiments as a grave breach of the Geneva Conventions. To satisfy the principle of legality and specificity, article 8 has precisely, complexly, and thoroughly listed the crimes that can incur prosecution. The exhaustive character of the enumeration has, however, generated much critique for fear of loopholes and unwanted restrictiveness. William A. Schabas, An Introduction to the International Criminal Court, 2nd Ed. (Cambridge University Press, 2004), p. 54–55. Although providing an extensive list of war crimes mostly based on Geneva Law, the Rome Statute does not intend to codify customary international law. Cassese, International Criminal Law, p. 87. Article 8 (1) Rome Statute. This requirement of a plan or policy has generated much controversy because it is thought to introduce criteria that were previously limited to genocide and crimes against humanity. See Schabas, An Introduction to the International Criminal Court, p. 55. Others argue that it was included to clarify that only the ‘most serious crimes of concern to the “international community as a whole”’ will be prosecuted. Michael Bothe, ‘War Crimes’, in Antonio Cassese, et al. (eds), The Rome Statute of the International Criminal Court: A Commentary (Oxford University Press, 2002), p. 380. The provision is based on articles 12 gc I, 13 gc II, 13 gc III, 32 gc IV and 11 (2)(b) ap I. Dörmann, ‘Article 8 (a)’, para. 21.

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armed conflicts.71 The provision correlates to articles 13 gc III, 32 gc IV, and 11 (2)(a) and (b) ap I. Article 8 (2)(b)(x) is listed among the provisions addressing ‘other serious violations of the laws and customs applicable in international armed conflicts’. The placement of the article is significant: the drafters excluded this medical breach from the grave breaches provisions under subparagraph (a) and moved it to the residual enumeration under sub-paragraph (b) instead. By this, the drafters faultily indicated that pursuant to the Rome Statute this is considered a war crime but not a grave breach of the Geneva Conventions or Additional Protocol I.72 The prohibition of mutilations and medical and scientific experiments appears misplaced in sub-paragraph (b) because the prohibition derives directly from article 11 (2)(b) ap I and was heavily influenced by the wording and interpretation in the icrc Commentary to Additional Protocol I.73 In addition, sub-paragraph (b) addresses acts committed on the battlefield which can hardly be said of these crimes. Despite the fact that article 8 (2)(a)(ii) is based heavily on Geneva Law, it is less explicitly based on article 11 (4) ap I than article 8 (2)(b)(x). Furthermore, article 8 (2)(b) (x) offers a wider scope of protection than article 8 (2)(a)(ii) which is limited to crimes against protected persons.74 Still, since these two provisions criminalize experiments, article 8 (2)(a)(ii) and 8 (2)(b)(x), correspond and overlap.

71

Based upon a much more comprehensive proposal by New Zealand and Switzerland. un Preparatory Committee on the Establishment of an International Criminal Court, Working Group on the Definition of Crimes, Working Paper Submitted by the Delegations of New Zealand and Switzerland, Doc. No. A/AC.249/1997/WG.1/DP.2 (14 February 1997), para. 1 (d); its final version as proposed by Germany in un Preparatory Committee on the Establishment of an International Criminal Court, Working Group on the Definition of Crimes, Reference Paper on War Crimes submitted by Germany, Doc. No. A/AC.249/1997/ WG.1/DP.23/Rev.I (12 December 1997), Article B(h). 72 Schabas, An Introduction to the International Criminal Court, p. 63. Seemingly supporting the re-classification by the Rome Statute, Dörmann, Elements of War Crimes. Elements common to all crimes under Article 8(2)(b) icc Statute, p. 128. 73 Such experiments, as all other medical procedures, are under article 11 (1) ap I justified only when indicated by the health of a person and consistent with the generally accepted medical standards. If a person carries out such an experiment in violation of the cumulative criteria of paragraph 1 and thereby willfully endangers the health of a person, he is punishable for a grave breach, according to paragraph 4. According to Bothe, a more direct assimilation to article 11 ap I would have been beneficial for clarity. Bothe, ‘War Crimes’, p. 393. 74 Dörmann, ‘Article 8 (a)’, para. 21.

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Article 8 (2)(e)(xi) criminalizes mutilations and medical and scientific experiments amongst ‘other serious violations of the laws and customs applicable in armed conflicts not of an international character’ (emphasis added).75 The prohibition of mutilations and experiments in non-international armed conflicts derives from article 5 (2)(e) ap II and is nearly identical to article 8 (2) (b)(x).76 Hence, mutilations and medical and scientific experiments are penalized as medical war crimes in all armed conflicts.77 The analysis below will concentrate on article 8 (2)(b)(x) but applies mutatis mutandi to non-international armed conflicts unless indicated otherwise. According to the Elements of Crime,78 both mutilations and experiments are prohibited when firstly not ‘justified by the medical, dental or hospital treatment of the person concerned’,79 secondly carried out against the patient’s interest, and thirdly ‘[causing] death or seriously [endangering] the health of [these] persons’. There is no explanation of what treatment would be justified by a person’s health. Examples of prohibited mutilations are unjustified amputations, and, according to the first element in the Elements of Crimes, such acts that cause permanent disfigurements and the disablement or removal of organs or appendages. This is, however, open for interpretation.80 For example, some may consider genital cutting justified, whereas others might consider this an 75

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Mutilations in general are also criminalized in article 8 (2)(c)(i) as a violation of common article 3 to the Geneva Conventions when committed against a person ‘taking no active part in the hostilities’. This offense committed in a non-international armed conflict lacks the strict requirements the Elements of Crimes proscribe for the offense in an international armed conflict, such as the result requirement. Moir, ‘Conduct of Hostilities – War Crimes’, p. 512. The only difference is in the wording ‘another party to the conflict’ instead ‘adverse party’. Dörmann, Elements of War Crimes, p. 483. The Rome Statute, though controversially maintaining the differentiation between war crimes committed in international and those committed during a non-international armed conflict, has contributed to the equalization of the two systems by developing definitions of war crimes in non-international armed conflict. Schabas, An Introduction to the International Criminal Court, p. 54. For interpretive and assistance purpose, the Assembly of States Parties to the icc has accepted an interpretive guide, the Elements of Crimes, as detailed in article 9 (1) Rome Statute. Assembly of States Parties to the Rome Statute of the International Criminal Court, Elements of Crimes, Doc. No. ICC-ASP/1/3(part II-B) (9 September 2002). In comparison, article 11 (1) ap I speaks of ‘indicated by the state of health of the person’. Dörmann interprets mutilation textually and refers to the definition in the Oxford English Dictionary: to mutilate: ‘to inflict a violent or disfiguring injury on’. Moir defines ‘mutilation’ as a medical procedure lacking medical justification. Moir, ‘Conduct of Hostilities – War Crimes’, p. 513.

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unwarranted mutilation.81 Because relevant case-law is lacking, Dörmann in his Commentary refers to documents of the World Medical Association to establish which procedures are not indicated by the health of a person, in particular to the Regulations in Time of Armed Conflict and the Rules governing the care of Sick and Wounded, particularly in Time of Conflict.82 These documents are classified as ‘tools for clarifying terms’.83 Whether a procedure is in the patient’s interest should also depend on whether the person has given his informed consent. Furthermore, even though not explicitly stated in article 8 (2)(b)(x) or the Elements of Crimes but hidden in a footnote,84 the requirement of inconsistency of a medical procedure with generally accepted medical standards, a requirement for medical grave breaches pursuant to article 11 (4) ap I, also applies under the Rome Statute: Consent is not a defence to this crime. The crime prohibits any medical procedure which is not indicated by the state of health of the person concerned and which is not consistent with generally accepted medical standards which would be applied under similar medical circumstances to persons who are nationals of the party conducting the procedure and who are in no way deprived of liberty.85 The consent of the person ‘treated’ to the procedures can never be used as a defense.86 It is, however, relevant to establish the legality of the procedure. 81

Committee on Economic Social and Cultural Rights, General Comment No. 14 – The Right to the Highest Attainable Standard of Health (Article 12), Doc. No. E/C.12/2000/4 (11 August 2000), para 22. And in literature, see Andreas Zimmermann, ‘Article 8 (2)(b)(x): Prohibition of Physical Mutilation’, in Otto Triffterer (ed), Commentary on the Rome Statute of the International Criminal Court – Observers’ Notes, Article by Article (C.H. Beck Verlag, 2008), para. 108. 82 The wma and its documents will be elaborately discussed in Chapter 9. 83 Dörmann, Elements of War Crimes, p. 232. Also referring to the wma, see Moir, ‘Conduct of Hostilities – War Crimes’, p. 515. 84 Switzerland proposed an additional requirement of consistency with generally accepted medical standards, formulated as article 11 (1) ap I, to be added to the Elements of Crimes. The proposal was rejected. Proposal submitted by Costa Rica, Hungary, and Switzerland in the Preparatory Commission for the International Criminal Court, Working Group on Elements of Crimes, PCNICC/1999/WGEC/DP.8 of 19 July 1999, p. 2. 85 icc Elements of Crimes, p. 25. Because the reference to generally accepted medical standards regrettably appears in a footnote and only serves as an interpretational help for the aspect fo consent, it was not given more explanation or interpretation. Bothe, ‘War Crimes’, p. 414. 86 Similar to article 11 (2) ap I. icc Elements of Crimes, p. 25.

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Both mutilations and experiments are criminalized when causing death or serious danger to the physical or mental health of a person.87 Unlike article 11 ap I and 8 (2)(a)(ii), the Rome Statute here introduces a ‘result’ requirement.88 Whether the act caused death or seriously endangered the health of a person, should be determined on a case-by-case basis. An experiment not serving a therapeutic purpose should always be regarded as prohibited.89 Lacking a specific mens rea requirement, the relevant mental element for medical war crimes is ‘intent and knowledge’ pursuant to article 30 Rome Statute. This excludes recklessness and dolus eventualis.90 Considering article 11 (4) ap I refers to a ‘wilful act or omission’ which would include recklessness but exclude neglect,91 the question arises why this requirement was not instituted for medical war crimes under the Rome Statute. The prohibition of mutilations and experiments as codified in the Rome Statute without the requirement of willfulness lost some of the original meaning of medical war crimes as intended by the Additional Protocols.92 Article 8 (2)(b)(x) criminalizes such acts when carried out on persons ‘in the power of an adverse party’ during an international armed conflict. This excludes nationals of a state not a party to the conflict, a perpetrator’s own nationals, and the nationals of a co-belligerent who would, under article 11 (1) ap I, still be protected when ‘interned or otherwise deprived of liberty’.93 It is also more restricted than article 11 (4) ap I which protects ‘any person who is in the power of a party other than the one on which he depends’.94 The perpetrator has to have been aware of the protected status of the victim and of the 87

Article 11 ap I referred to both health and integrity (see Sandoz, et al. (eds), Commentary to the Additional Protocols, para. 493 (b)) which the drafters of the Rome Statute and Elements of Crimes excluded regarding mutilations; it is included for experiments. ‘icc Elements of Crimes’, p. 25. 88 Moir, ‘Conduct of Hostilities – War Crimes’, p. 512. 89 Zimmermann, ‘Article 8 (2)(b)(x): Prohibition of Physical Mutilation’, para. 109. 90 Albin Eser, ‘Mental Elements – Mistake of Fact and Mistake of Law’, in Antonio Cassese, et al. (eds), The Rome Statute of the International Criminal Court: A Commentary (Oxford University Press, 2002), p. 932. 91 Dörmann, Elements of War Crimes, p. 233, 239. 92 This danger was identified but not applied to this case by Eser, ‘Mental Elements’, p. 899–900. 93 Zimmermann, ‘Article 8 (2)(b)(x): Prohibition of Physical Mutilation’, para. 105. 94 Ibid. para. 105. On the scope of protection of article 11 ap I, see Sandoz, et al. (eds), Commentary to the Additional Protocols, para. 468. Dörmann argues that the scope in article 8 (2)(b(x) should be the same which is not supported by the text of the Rome Statute or by other commentators. Dörmann, Elements of War Crimes, p. 231.

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armed conflict. The perpetrator of this crime can be a civilian, including a doctor or nurse.95 3 Evaluation Whilst the Additional Protocol I placed new emphasis on medical war crimes committed in armed conflict, this emphasis was not continued in modern international criminal law. In the statutes of the tribunals for the former Yugoslavia and Ruanda, medical war crimes played no role. In the Rome Statute, certain medical war crimes were criminalized. On the one hand, it is commendable that the Rome Statute penalized two medical war crimes, mutilations and experiments, when committed in both international and noninternational armed conflicts. On the other hand, due to some significant changes in the transposition of the crimes, the original concept of medical grave breaches of article 11 (4) ap I has regrettably been unnecessarily restricted. The wide scope of protection of article 11 ap I applicable to all medical procedures was abandoned.96 Although the restricted criminalization in article 8 Rome Statue ‘does not affect the protective scope of Article 11 ap I’97 because the Additional Protocols continue to apply independently, the limitation to mutilations and experiments is regrettable. The prohibition will probably lead to a limited number of prosecutions of physicians for medical war crimes. Neither in international humanitarian law, nor in international criminal law do medical ethics play an explicit role. C

Prosecution of Medical War Crimes

The development of a system of individual responsibility for war crimes was not a novelty when the Geneva Conventions were adopted in 1949.98 In general,

95 Dörmann, Elements of War Crimes, p. 37. 96 This was also noted by Kress, ‘War Crimes committed in Non-International Armed Conflict and the Emerging System of International Criminal Justice’, p. 137; Moir, ‘Conduct of Hostilities – War Crimes’, p. 511. 97 Bothe, ‘War Crimes’, p. 413. 98 Instructive regarding national prosecution of war crimes are the Leipzig trials before the Reichsgericht (Reich’s Supreme Court) between 1921 and 1922. For an excellent analysis and description of the Leipzig trials, see Harald Wiggenhorn, Verliererjustiz – die Leipziger Kriegsverbrecherprozesse nach dem Ersten Weltkrieg (Nomos, 2005) and Gerd Hankel, Die Leipziger Prozesse – deutsche Kriegsverbrechen und ihre strafrechtliche Verfolgung nach dem Ersten Weltkrieg (Hamburger Edition, 2003).

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the prosecution of individuals for acts of war that violate customary international law has a long history.99 It was only after World War II that states considered the question on a larger scale: what was to happen to the innumerable persons who had committed war crimes, including the significant number of physicians implicated in criminal activities. In the aftermath of World War II, a number of physicians were prosecuted for medical acts that were considered war crimes or crimes against humanity. Human experimentation, involvement in ‘euthanasia’, denial of medical care, and medical neglect were the subject of numerous trials following the discovery of the horrific (medical) realities of the concentration camps and other institutions in the Third Reich before and during World War II. The Allies decided that ‘war criminals and those who have participated in planning or carrying out Nazi enterprises involving or resulting in atrocities or war crimes shall be arrested and brought to judgment’.100 The Nuernberg Charter established individual criminal liability for war crimes in article 6 (b)101 where it enumerated acts ‘for which there shall be individual responsibility’.102 Several states implemented special legislation; others used existing laws and regulations.103 Subsequently, the occupying 99

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McCoubrey refers to trials resembling war crimes trials as early as 1217. Hilaire McCoubrey, ‘War Crimes Jurisdiction and a Permanent International Criminal Court: Advantages and Difficulties’, 3 Journal of Armed Conflict Law, 9 (1998), p. 10–13. For an analysis of one of the first trials for war crimes before an international body against Peter van Hagenbach in 1474, which included a rather modern discussion of the defense of superior orders, see McCoubrey, ‘War Crimes: the Criminal Jurisprudence of Armed Conflict’, p. 171. Paragraph II (5) of the Potsdam Agreement, Agreements of the Berlin (Potsdam) Conference, 17 July – 2 August 1945, Protocol of the Proceedings, press release, 24 March 1947 reprinted in u.s. Department of State, Germany 1947–1949 The Story in Documents (Office of Public Affairs, March 1950) at http://avalon.law.yale.edu/20th_century/decade17.asp. See comparatively article 5 (b) of the Charter of the International Military Tribunal for the Far East, Special Proclamation of 19 January 1946 (as amended on 26 April 1946). Without further specifying which crimes are considered war crimes, article 5 (b) imtfe Charter only refers to ‘violations of the laws or customs of war’ in general. The violations of the laws or customs of war enumerated in article 6 (b) include ‘murder, ill-treatment or deportation to slave labor or for any other purpose of civilian population of or in occupied territory, murder or ill-treatment of prisoners of war or persons on the seas, killing of hostages […]’. London Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis (London Agreement) and Charter of the International Military Tribunal, 8 April 1945, 82 u.n.t.s. 251. Especially in countries where the principle of nulla poena sine lege is considered principal, it was difficult to prosecute persons without violating general principles of criminal law. Pictet (ed), Commentary I, p. 396.

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authorities of the four zones of annihilated Germany prosecuted war criminals based on article II (b) of Control Council Law No. 10 which reproduced article 6 (b) of the Nuernberg Charter.104 Persons accused of war crimes under article II could either be prosecuted by the occupying authorities of the relevant zone, by the local authorities, if feasible, or extradited to another zone or even country requesting extradition and having a prima facie case against the person.105 This system was based on the principle of aut dedere aut judicare. German suspects having committed war crimes against Germans were tried by German authorities.106 Despite the success of the trials, a disparity became apparent: ‘victory [proved] as a de facto absolution for violations of the jus in bello’ on the part of the victors.107 Primarily, it is the duty of the national state of the perpetrator or victim or on whose territory the crime was committed to prosecute grave breaches of the Geneva Conventions and other war crimes, if criminalized.108 A level of willingness of a country to try its own people and neutral and open judicial and administrative bodies are prerequisites for such trials.109 Only in the second place should a state extradite persons to another country or to an international tribunal. Due to the establishment of the icty, ictr and the icc the 104 Control Council Law No. 10, Punishment of Persons Guilty of War Crimes, Crimes Against Peace and Against Humanity, 20 December 1945, 3 Official Gazette Control Council for Germany, 50–55 (1946). 105 Articles III and IV, Control Council Law No. 10, (20 December 1945). 106 ‘Such tribunal may, in the case of crimes committed by persons of German citizenship or nationality against other persons of German citizenship or nationality, or stateless persons, be a German Court, if authorized by the occupying authorities’. Article III (d), Control Council Law No. 10, (20 December 1945). 107 McCoubrey, ‘War Crimes: the Criminal Jurisprudence of Armed Conflict’, p. 173. For other reasons that may present obstacles to national prosecutions of international crimes, see Jann Kleffner, Complementarity in the Rome Statute and National Criminal Jurisdictions (Oxford University Press, 2008), p. 48–54. 108 Ruth Wedgwood, ‘National Courts and the Prosecution of War Crimes’, in Gabrielle Kirk McDonald & Olivia Swaak-Goldman (eds), Substantive and Procedural Aspects of International Law (Kluwer Law International, 2000), p. 394. 109 How difficult such impartiality and neutrality is was repeatedly shown in the case law after World War II. Often National Socialists were convicted of acts for which resistance fighters would be acquitted. Completely juxtaposing judgments were thus common. This was noted by Judge Röling in a Dutch case concerning superior orders against a resistance fighter who was acquitted for the killing of two Dutch collaborators. The court accepted his defense based on mistake of fact concerning the illegality of his acts. Röling in the annotation to the case noted that it may be ‘super-human’ to expect judges to remain neutral in the face of a recent conflict. Krijgsraad te Velde, [1951], NederlJ, 1952, 247.

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international prosecution of individuals has received much attention. Nonetheless, for reasons of state sovereignty national prosecution of war crimes is still considered the backbone of the system of accountability under Geneva and international criminal law,110 even if the jurisdictions of the icty and the ictr determine otherwise by claiming primacy over the limited number of crimes under their jurisdiction.111 The Rome Statute is based on a different principle, namely that the icc ‘shall be complementary to national jurisdictions’.112 The icc does not claim primacy over national prosecutions. Neither does the Rome Statute expressly require state parties to implement its provisions or call on them to institute universal jurisdiction. Yet, to be able to investigate, prosecute, and ‘exercise […] jurisdiction over those responsible for international crimes’ states are advised to implement the provisions in order to be able to prosecute international crimes.113 National prosecutions of medical war crimes are sparse. The few prosecutions focusing on medical aspects of war crimes rarely explicitly discussed the crimes as ‘medical war crimes’. International case law is also, with the exception of World War II jurisprudence, sorely lacking.114 Despite the increase in the number of prosecutions for international crimes since the late twentieth century,115 little attention is paid to medical war crimes. This is the case despite article 11 (4) ap I, its implementation in some national legislations, and its partial codification in the Rome Statute. Politics seem to limit the scope of this broad principle.116 Due to the lack of recent case law, an examination of international medical war crimes trials is almost exclusively limited to the available jurisprudence of the international war crimes trials after World War II. At times, such crimes were prosecuted as crimes against humanity due to special circumstances.117 At other times, the crimes are classified as ‘medical’ although they lack a medical character. Only one example concerns a recent international tribunal, the medical neglect of Tutsi patients during the armed conflict in Rwanda as 110 Kleffner, Complementarity in the Rome Statute and National Criminal Jurisdictions, p. 9; 101. 111 Articles 9 (2) icty Statute and 8 (2) ictr Statute. 112 Preamble and article 1 Rome Statute. 113 Pursuant to preambular paragraph 6 and article 17 Rome Statute states are required to investigate and prosecute. In general on complementarity, see Kleffner, Complementarity in the Rome Statute and National Criminal Jurisdictions. 114 Dörmann, ‘Article 8 (a)’, p. 309. 115 Kleffner, Complementarity in the Rome Statute and National Criminal Jurisdictions, p. 34–38. 116 Wedgwood, ‘National Courts and the Prosecution of War Crimes’, p. 396. 117 For example, ‘euthanasia’ was prosecuted by the Federal Republic of Germany under the regular Criminal Code, see the judgment in the Frankfurt Euthanasia Trial, in: Adelheid

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prosecuted before the ictr. An examination of prosecutions for international crimes committed during armed conflict with a significant medical aspect sheds light on how courts address the concept of medical grave breaches and war crimes and the role of medical ethics. Their approach can further the interpretation and development of the concept of medical war crimes. 1 The ‘Euthanasia’ Program In both the Federal Republic of German and the German Democratic Republic physicians involved in the atrocious ‘euthanasia-program’ were tried.118 The program was initiated119 by Hitler’s order of 1 September 1939 to Philipp Bouhler, Chief of the Führer’s Chancellery, and Karl Brandt.120 The order determined that the competences of certain physicians should be extended so that

L. Rüter-Ehlermann & C.F. Rüter (eds), Justiz und ns-Verbrechen – Sammlung deutscher Strafurteile wegen nationalsozialistischer Tötungsverbrechen 1945–1966, Vol. I (University Press Amsterdam, 1968), Lfd. Nr. 017, p. 303–379. The German Democratic Republic, on the other hand, prosecuted ‘euthanasia’ as a crime against humanity, see the judgment in the Dresden Euthanasia Trial, in: Rüter, ddr-Justiz, Vol. XII, p. 495–511. For a thorough documentation of the trial, see Joachim S. Hohmann, Der ‘Euthanasie’-Prozess Dresden 1947 – eine zeitgeschichtliche Dokumentation (Peter Lang, 1993). Following Cassese’s argumentation, a medical offense being deemed a crime against humanity should be considered ‘of greater gravity’ than a medical war crime. International Criminal Tribunal for the former Yugoslavia, Prosecutor v. Dusko Tadić a.k.a. ‘Dule’, Judgment in Sentencing Appeals [2000], Separate Opinion of Judge Cassese, para. 15–17. 118 Other trials concerning the ‘euthanasia’ program were held in both the Federal Republic of Germany, as well as the German Democratic Republic (a total of 36 physicians were tried in the Federal Republic of Germany until the late 1980s. See Dick de Mildt, In the Name of the People: Perpetrators of Genocide in the Reflection of their Post-War Prosecution in West Germany – The ‘Euthanasia’ and ‘Aktion Reinhard’ Trial Cases (Kluwer Law International, 1996), p. 95). For an example in the German Democratic Republic, see the trial against Otto Hebold, bg Cottbus Judgment of 12 July 1965, in: C.F. Rüter, ddr-Justiz und ns-Verbrechen – Sammlung Ostdeutscher Strafurteile wegen nationalsozialistischer Tötungsverbrechen, Vol. II (Amsterdam University Press & K.G. Saur Verlag, 2002), Lfd. Nr. 1061, p. 721–738. Another example in the Federal Republic of Germany is the trial of Dr. Hilde Wernicke, lg Berlin Judgment of 25 March 1946, 11 Ks 8/46 in: Rüter-Ehlermann & Rüter (eds), Justiz und ns-Verbrechen, Lfd. Nr. 3, p. 33 et seq. 119 ‘Euthanasia’ of disabled newborns had been practiced since early 1939. See Ernst Klee, ‘Euthanasie’ im ns-Staat (S. Fischer Verlag, 1983), p. 78–81. 120 Though dated 1 September 1939, the order is believed to have been signed by Hitler in October 1939. Ibid. p. 100–101. The order is available online at www.ns-archiv.de/medizin/ euthanasie/faksimile/. A classified section within the Führer Chancellery headed by Viktor Brack under the code name T4 – short for the address of the headquarters in

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they ‘[grant] incurably ill persons after critical consideration the mercy death (Gnadentod)’ (author’s translation added). Those considered unworthy of life (lebensunwert) should be killed. Patients considered ‘incurably ill’ by a senior expert advisor were transported to one of four extermination institutions121 and killed under supervision of doctors. After 1941, under the code name ‘Sonderbehandlung 14f13’, camp commanders or special experts also undertook selections of disabled or sick concentration camp inmates. The selected inmates were deported and killed.122 After protest abroad and from the (Catholic) Church,123 the mass killing by gas of the mentally and physically disabled was de lege abandoned per 21 August 1941.124 Still, the killings continued. After 1941, persons considered ‘unworthy of life’ were killed by starvation or medication, preferably Luminal.125 This included the sick, weak and elderly.126 The extermination of concentration camp inmates also continued.

Tiergartenstraße 4 – organized the program. Physicians in psychiatric institutions received forms to evaluate whether their patients were to be considered as incurably ill. Ernst Klee (ed), Dokumente zur ‘Euthanasie’ (Fischer Taschenbuch Verlag, 1985), p. 92–94. Several laws legalizing the program were drafted around that time. Although no copy has survived, (Klee, ‘Euthanasie’ im ns-Staat, p. 177) a draft has been reconstructed based on protocols of meetings in Karl Ludwig Rost, Sterilisation und Euthanasie im Film des ‘Dritten Reiches’: nationalsozialistische Propaganda in ihrer Beziehung zu rassenhygienischen Maßnahmen des ns-Staates (Matthiesen Verlag, 1987), p. 103. 121 There were four institutions in German that had gas chambers where victims of the euthanasia policy could be exterminated: Hadamar, Brandenburg (later Bernburg), Schloss Hartheim, and ‘Sonnenstein’ in Pirna. 122 de Mildt, The ‘Euthanasia’ and ‘Aktion Reinhard’ Trial Cases, p. 73–79. 123 An official decree of the Pope Pius XII was published on 2 December 1940 which declared the killing of mentally or physically disabled persons in violation of natural and positive divine law. The sermon of Bishop Galen in Münster of 3 August 1941 publicly denouncing euthanasia as murder also contributed to the public awareness and resistance. Klee, ‘Euthanasie’ im ns-Staat, p. 334–335; Guenter Lewy, The Catholic Church and Nazi Germany (Weidenfeld and Nicolson, 1964), p. 266. Yet the attitude of the Catholic Church was not always as heroic. See critically, Ernst-Wolfgang Böckenförde, ‘Der deutsche Katholizismus im Jahre 1933. Eine kritische Betrachtung (1961)’, in Ernst-Wolfgang Böckenförde (ed), Kirchlicher Auftrag und politische Entscheidung (Verlag Rombach, 1973). 124 It should be noted that there certainly also were physicians and institutions who refused to cooperate to kill their patients. Klee, ‘Euthanasie’ im ns-Staat, p. 223–224; de Mildt, The ‘Euthanasia’ and ‘Aktion Reinhard’ Trial Cases, The Case of Walter Creutz, p. 148–156. 125 Luminal was the brand name of the medicine phenobarbital which is still used as an anticonvulsant in the treatment of epilepsy. World Health Organization, who Model List of Essential Medicines, 18th list (April 2013), p. 5. 126 Klee, ‘Euthanasie’ im ns-Staat, p. 429–439.

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a The Hadamar Trial In the most extensive trial for euthanasia, the Federal Republic of Germany charged two physicians, Dr. Alfred Wahlmann and Dr. Hans Bodo Gorgaß,127 with murder and aiding and abetting in the crime of murder under § 211 of the German Criminal Code.128 The trial was based on article III (d) of Control Council Law No. 10 that determined that German courts could try German perpetrators ‘if authorized by the occupying authorities’.129 From June to August 1941, Gorgaß had worked as assistant to the chief physician at the extermination institution Hadamar where about 15.000 German

127 There were 25 accused in total. For the (German) judgment, consult Rüter-Ehlermann & Rüter (eds), Justiz und ns-Verbrechen, Lfd. Nr. 017, p. 303–379. 128 The German Democratic Republic conducted a correlating trial in Dresden in 1947, see Rüter, ddr-Justiz, Vol. XII, Lfd. Nr. 1760, p. 495–511. For a thorough documentation of the trial, see Hohmann, Der ‘Euthanasie’-Prozess Dresden 1947. Among the fifteen accused were seven doctors of whom two could not be tried due to illness (Dr. Alfred Schulz and Dr. Emil Eichler) and two were acquitted (Dr. Esther Walter and Dr. Herbert Schulze). Dr. Paul Nitsche, the former chief psychiatrist of the extermination-institution ‘Sonnenstein’ was the main accused. Based on different roles in the different stages of the process of selecting physically and mentally disabled persons for death by gas or medication, all accused were charged with extermination as a crime against humanity under article II (1c) of Control Council Law No. 10: Dr. Nitsche as a principal under article II (2a), the others as ‘[accessories] to the commission of [the] crime’ or [having] ‘ordered or abetted’ it under article II (2b). The jurisdictional basis thus clearly differs from the legal basis in the Hadamar Trials in which the Federal Republic of Germany had prosecuted comparable crimes under national law. As the case concerned ‘murder-type’ crimes against humanity committed against German citizens, they were prosecuted as crimes against humanity. (For an analysis, see Cassese, International Criminal Law, p. 118–121). Three of the seven doctors accused were convicted. The convictions by the Landesgericht Dresden were confirmed by the Oberlandesgericht Dresden, Decision of 27 September 1947, 20.211/47 In: Rüter, ddr-Justiz, Vol. XII, Lfd. Nr. 1760b, p. 511. Nitsche was sentenced to death for, amongst other facts, establishing a new procedure of killing by Luminal medication. Nitsche stated: ‘Für uns war die Sache wirklich vom Kranken aus gesehen und bedeutete für diesen einen Gnadentod, eine Befreiung von dem Leben, das für ihn und seine Angehörigen nur noch eine Qual darstellen konnte’. Hohmann, Der ‘Euthanasie’-Prozess Dresden 1947, Statement Paul Nitsche, p. 245. Dr. Ernst Leonhardt and Dr. Günther Langer were also convicted, the latter for personally administering overdoses of medication to sick persons aware of or willingly accepting the deathly consequences thereof. de Mildt, The ‘Euthanasia’ and ‘Aktion Reinhard’ Trial Cases, p. 312–325. 129 See above, fn. 104. The killing of Polish and Russian forced laborers at the Hadamar Institution were subject of the American trial of 1945, to be discussed below.

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civilians were killed. Wahlmann, a retired doctor, had been the chief physician at Hadamar between August 1942 and March 1945.130 Gorgaß, after some initial hesitations, examined the patients who arrived from other institutions. After they were led into the gas chamber, the doctor controlled the gas flow, supervised the killing and ordered the corpses to be burned. Wahlmann took the chief physician position at Hadamar in August 1942, a year after Hitler’s official euthanasia stop. After refusing to kill patients without an examination, he agreed to select mentally ill patients to be killed after examining and monitoring them. If Wahlmann considered a mentally ill patient ‘suitable for euthanasia’ due to his or her state of health, he would order the nurses to give the respective patient an overdose of medication. Though not actively killing due to an intricate system of delegation, he again carried out the post-mortems and submitted false causes of death on the death certificates.131 Gorgaß was found directly responsible for intentionally killing at least 1.000 persons by gas, Wahlmann for intentionally killing 900 persons by over-medication. Both were sentenced to death.132 The judgment was confirmed on appeal.133 Two years prior to the Frankfurt euthanasia trial, a u.s. Military Commission appointed by the Commanding General of the u.s. Army in October of 1945 had already conducted a trial concerning the crimes committed within the ‘euthanasia’-program at the Hadamar institution.134 With six others, Wahlmann was prosecuted for the willful, deliberate and wrongful killing of over 400 Russian and Polish forced laborers at the Hadamar institution for the mentally

130 de Mildt, The ‘Euthanasia’ and ‘Aktion Reinhard’ Trial Cases, p. 97–99. 131 Rüter-Ehlermann & Rüter (eds), Justiz und ns-Verbrechen, Lfd. Nr. 017, p. 325–327. 132 The death penalty was abolished in 1949 with the adoption of the new German Grundgesetz hence the sentences were converted into life imprisonment. Patricia Heberer, ‘Early Postwar Justice in the American Zone – the “Hadamar Murder Factory” Trial’, in Patricia Heberer & Jürgen Matthäus (eds), Atrocities on Trial – Historical Perspectives on the Politics of Prosecuting War Crimes (University of Nebraska Press, 2008), p. 40. 133 Oberlandesgericht Frankfurt am Main, Judgment of 20 October 1948, Ss 160/48 and Ss 188/48 In: Rüter-Ehlermann & Rüter (eds), Justiz und ns-Verbrechen, Lfd. Nr. 017, p. 366– 379. The defense of legality due to a law legalizing the euthanasia process was denied because Hitler’s order of 1 September 1939 was not recognized as a law as such. See a discussion of the relevant defenses below. 134 Military Court for the Trial of War Criminals, Trial of Alfons Klein, Adolph Wahlmann, Heinrich Ruoff, Karl Willig, Adolf Merkle, Irmgard Huber, and Philipp Blum [‘The Hadamar Trial’], Judgment [1945], Vol. IV.

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ill.135 In his testimony, Wahlmann proved aware of the true circumstances but felt that it had been his duty under law and in war to carry out his orders.136 On the subject of his professional ethics he was asked: ‘Did you feel that you had a responsibility to the medical profession in permitting deaths in your hospital under those conditions based on a law which had not been shown to you?’ Wahlmann answered: ‘Yes, because there was a war going on, and I cannot imagine that a government would pass such a horrible and harsh law if very urgent reasons did not prevail’.137 Wahlmann was convicted by the u.s. Military Commission and sentenced to life long labor. Wahlmann’s medical profession played a role in both trials. With a German and an American trial, all aspects of the crimes committed at Hadamar had been prosecuted: both the murder of the German mentally-ill, as well as foreign nationals.138 In the u.s. Hadamar Trial, the indictment was based on ‘a violation of international law’, whereas his second indictment was based on the German Criminal Code. Despite some death sentences, De Mildt heavily criticizes the attitude of German courts towards physicians involved in the ‘euthanasia-program’ for being too lenient with suspects and too easily impressed by defenses and excuses.139 2

Denial of Medical Care and Neglect

a The Michelson Trial In 1922, the Reichsgericht in Leipzig charged with the trial of German war crimes committed during World War I tried and acquitted the gynaecologist Dr. Oskar Michelsohn who had been in charge of a lazaretto in Northern France.140 Michelsohn was officially charged with the ill-treatment of prisoners of war. Despite evidence to the contrary by French witnesses, the prosecution found 135 The arraignment does not specify the basis for the indictment, simply referring to a ‘violation of international law’. Ibid. p. 14. As in the case with the German victims, Wahlmann had provided the medication for lethal injections and signed false death certificates stating the deceased had died of natural causes, usually pneumonia or tuberculosis, after a stay of several weeks at the institution, see The Hadamar Trial, Evidence, p. 25–26. 136 For his complete statement see The Hadamar Trial, Statement by Dr. Wahlmann, p. 162–173. 137 Ibid. Statement by Dr. Wahlmann, p. 165. 138 Heberer, ‘Atrocities on Trial’, p. 38. 139 de Mildt, The ‘Euthanasia’ and ‘Aktion Reinhard’ Trial Cases, p. 312–325. 140 Reichsgericht Leipzig, Trial of Dr. med. Oskar Michelsohn, Judgment [1922], BA BL, R 3003, ora/rg Generalia (pa aa, R 48432v), Band 463; See also Wiggenhorn, Verliererjustiz, p. 332–339; Hankel, Die Leipziger Prozesse, p. 347–351.

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no evidence regarding other French claims, most importantly and credibly, criminal neglect causing the death of wounded prisoners of war.141 Eventually, Michelsohn was merely charged with aggravated battery (Körperverletzung) because of the mistreatment of several prisoners of war by, amongst other things, harsh corporal punishment. The Reichsgericht dismissed all charges basing its findings purely on evidence by German witnesses who exculpated Michelsohn.142 According to the judges, Michelsohn ‘ameliorated the lodgings of the wounded’ and could not have committed any act that would have ‘not only been inhuman, but also medically wrongful’. Because of his ‘honorable character’ and the alleged overt animosity of the French witnesses towards the German accused,143 the Court acquitted Michelsohn despite the fact that it had to concede that corporal punishment was practiced in the lazaretto and the conditions were abominable. The case is remarkable because neglect of medical duties was an official charge. b The Velpke Baby Home Trial The ‘baby home’ in Velpke consisted of several unheated barracks where infants who had been taken from their mothers after birth were kept. The mothers were Polish and Russian women brought to Germany for forced labor. Amongst other indictees, Dr. Richard Demmerich who had provided medical care to the infants on several occasions was charged with a war crime in 1946, i.e. acting in violation of the laws and customs of war for ‘killing by willful neglect […] a number of children, Polish nationals’.144 Demmerich had regularly given medical care to the infants when they were brought to him by the supervisor of the home, a German woman also indicted for neglect. Although he knew that the children were malnourished, e.g. that they had sores on their bottoms from constant diarrhea and lacking hygiene and that the death rate at the home was extremely high, he ceased his visits to the home and failed to take steps to ameliorate the situation of the infants.145 Under oath, Demmerich 141 The French claims also included abetting in a case of abortion or the misappropriation of food supplies. Wiggenhorn, Verliererjustiz, p. 334–335. 142 Trial of Dr. med. Oskar Michelsohn, p. 1. The Court heard the viva voce evidence of fifty-one German and had the written testimonies of fourteen French witnesses. The Reichsgericht considered ‘what the French witnesses testified on this point can be classified as idle talk’ (author’s translation), p. 12. The statements of the French crown witness, Dr. Pichard, were depicted as ‘of such severe bias against the accused, animosity even, that they have little evidentiary value’. 143 Wiggenhorn, Verliererjustiz, p. 337–339. 144 The Velpke Baby Home Trial, p. 3. 145 Ibid. p. 3.

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testified that he wrote death certificates truthfully and that he had treated the infants that were brought to him conscientiously.146 Nevertheless, Demmerich was convicted and sentenced to ten years of imprisonment. While the Court did not substantiate its judgment, it can be assumed to have been based on the grounds presented by the prosecution. Namely that in the months the infants were being brought to the home, Demmerich had not once examined the home or visited his former patients.147 Although Demmerich was merely involved with the home on a factual not an organizational level, as a physician and aware of the miserable circumstances the infants were kept in, he should have intervened. Although his medical care for the patients who had been brought to him had been adequate, he should have increased his efforts to administer medical care to these very sick children.148 c The Pilz Trial In 1950, the Dutch Special Court of Cassation addressed the denial of medical care as a war crime.149 Dr. Fritz Georg Hermann Pilz, a German doctor who between 1940 and 1945 had served in the German occupied Netherlands as a military physician in the German Wehrmacht, was charged with a war crime and alternately a crime against humanity for having denied medical assistance to a wounded person and for having subsequently ordered a subordinate to shoot the wounded person.150 Despite the fact that the Special Court considered the denial of medical care and the killing of a wounded person by a member of the medical profession a horrendous crime and a violation of humanity and the ‘calling of a physician’, it considered itself unqualified to judge as the offense had been committed under the ‘internal German jurisdiction’.151 146 Interrogation of Dr. Demmerich of 4 October 1945, Ibid. p. 74–82. 147 The prosecution asked: ‘Is it conceivable that a doctor with any feeling of his calling at all can go into a Home, look at the dead and sign the death certificate ad disregard the living, and then come out knowing that some of those living which he has not looked at may die in the room the next day and he will be singing death certificates for them?’ Ibid. Closing Speech for the Prosecution, p. 325. 148 Ultimately, the prosecution argued that ‘he did in fact neglect that Home, he failed to put it in the priority that it should have had, and that he deliberately confined his activities, after a good start, until he became […] a doctor whose sole function in the Home was to sign death certificates’. Ibid. Closing Speech for the Prosecution, p. 330–332. 149 Bijzondere Raad van Cassatie, Trial of Fritz Georg Hermann Pilz [‘The Pilz Case’], Judgment [1950], NederlJ, 1950. 150 The charge was based on article 6 (b) of the Nuernberg Charter. 151 Bijzondere Raad van Cassatie, The Pilz Case, p. 1211. According to the Court, though Pilz had committed an offense against a Dutch national, the victim had lost his rights to civilian

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The Pilz case is of interest as, despite denying its jurisdiction, the Special Court recognized the concept of medical war crimes, a willful act by a physician in the medical treatment of a protected person during armed conflict, i.e. the denial of medical care.152 The finding of the Special Court that the crime was not a war crime as it had not been committed against a protected person of the adversary party,153 is in line with the definition of medical grave breaches in article 11 (4) ap I and with the Rome Statute. d The Ntakirutimana Trial Before the ictr, one physician was tried for his actions during the genocide in 1994.154 Dr. Gérard Ntakirutimana was physician and medical director at

protection under international law when he voluntarily joined the German Wehrmacht and thereby the occupying party. The Special Court thus denied that Pilz had violated international humanitarian law, namely Section III of the Regulations Respecting the Laws and Customs of War on Land. Article 46 of the Regulations offered respect for the ‘lives of persons’ only to the civilian population in an occupied territory. Similarly, it denied application of the Geneva Convention of 1929 as in the opinion of the Special Court, this treaty only offered protection when victim and perpetrator were of adversary armies. The Special Court explicitly denied a nationality approach. Bijzondere Raad van Cassatie, The Pilz Case, p. 1210. It furthermore denied that it was dealing with a crime against humanity under article 6 (c) of the Nuernberg Charter. Neither was the victim part of the Dutch civilian population, nor was the crime committed within a system of ‘persecution on political, racial or religious grounds’. 152 The Special Court states that ‘the denial of medical assistance and the killing of a wounded person by a physician, if proven, are atrocious crimes in violation of all humanitarian principles and the calling of a physician’ (‘het onthouden van medische hulp en het doen doden van een gewonde door een medicus, indien bewezen, afschuwwekkende misdrijven zijn, in strijd met alle humanitaire beginselen en met de roeping van een medicus’) (author’s translation and emphasis added). Ibid. p. 1210–1211. 153 Cassese agrees with the Special Court in the Pilz case on that crimes by a combatant against one of his own cannot be prosecuted as war crimes. Cassese, International Criminal Law, p. 82. 154 ictr Ntakirutimana Trial Judgment. Similarly, the Čelebići indictment charged the accused under Count 5 and 6 with the willful killing of persons as a grave breach pursuant to article 2 (a) icty Statute and as a violation of the laws and customs of war pursuant to article 3 icty Statute which correlates to common article 3 (1)(a) gcs by denying medical care. icty Čelebići Indictment, para. 18. None of the accused were physicians, like Ntakirutimana, and the denial of medical care was considered part of the crime of willful killing. Neither the Trial nor the Appeals Chamber of the icty in their judgments elaborated on the specific medical aspect of the crime. The icty, despite initial investigations into medical war crimes, namely the extraction of kidneys from detained civilians by members of the Kosovo Libertation Army, never prosecuted such crimes. Del Ponte & Sudetic, Madame

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Mugonero hospital within the Mugonero complex, in the Kibuye prefecture in Rwanda. Although the initial indictment of 20 October 2000 did not charge Ntakirutimana with any medical crimes,155 the prosecution in its Pre Trial Brief charged Ntakirutimana under Count 5 with a crime against humanity, namely ‘other inhuman acts’ pursuant to article 3 (i) ictr Statute by ‘closing the medical store, denying treatment to Tutsi patients, and cutting off utility supplies’.156 As Ntakirutimana locked the medicine storage room and took the keys with him, the patients could not be provided with medical care after his departure.157 The prosecution alleged that Ntakirutimana by abandoning his hospital on 14 April 1994 while hundreds of wounded, mostly Tutsi patients were requiring treatment had denied them medical care. The Trial Chamber decided that there was insufficient evidence to prove that Ntakirutimana had acted with discriminatory intent, an element of crimes against humanity under article 3 ictr Statute.158 It found that ‘[under] these circumstances a remark by [Ntakirutimana] to the effect that he lacked the necessary means to treat Tutsi arriving at the hospital with shrapnel wounds […], or that he had no medication for Tutsi […was] not in itself conclusive evidence of any discriminatory intent’.159 Almost all patients were Tutsi at that point in time and medical supplies were generally scarce, so a discriminatory intent could not be inferred solely from these remarks. Yet the Trial Chamber determined that Ntakirutimana had abandoned his Tutsi patients when leaving the hospital on 14 April 1994 which the Trial Chamber noted ‘as part of the general context’ of the case.160 Ntakirutimana was acquitted of the charges of a crime against humanity for inhuman treatment by 155 156 157 158

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Prosecutor – La Caccia, p. 285; ‘Investigation of allegations of inhuman treatment of people and illicit trafficking in human organs in Kosovo’, para. 8. International Tribunal for Rwanda, Prosecutor v. Elizaphan Ntakirutimana, Gérard Ntakirutimana & Charles Sikubwabo, Mugonero Indictment [2000], para. 4.6–4.7. Prosecution’s Pre Trial Brief, Annex B. See ictr Ntakirutimana Trial Judgment, para 137–153. Ibid. para. 137–138. ictr Ntakirutimana Trial Judgment, para. 817. Pursuant to article 3 ictr Statute, a crime against humanity is committed ‘when committed as part of a widespread or systematic attack against any civilian population on national, political, ethnic, racial or religious grounds’. Cassese defines this special criminal intent as follows: ‘The intent must be to subject a person or group to discrimination, ill-treatment, or harassment, so as to bring about great suffering or injury to that person or group on religious, political or other grounds’. Cassese, International Criminal Law, p. 115. ictr Ntakirutimana Trial Judgment, para. 151. Ibid. para. 153.

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denial of medical care.161 He was found guilty of genocide and sentenced to twenty-five years’ imprisonment.162 It is clear that the medical aspects of the crimes allegedly committed by Ntakirutimana during the armed conflict only played a subsidiary role in the trial. Dominating aspect were his acts as a génocidaire after he had left the hospital. Hence, it comes as no surprise that the denial of medical care as a crime against humanity was not given much attention. However, the fact that it was added to the charges indicates that the prosecution at least considered this to be a circumstance worth mentioning and prosecuting. Further, the Trial Chamber superficially considered Ntakirutimana’s role as a physician in the events as an aggravating circumstance. As a doctor he had been better educated than most of the people in the region. The Trial Chamber found it, particularly egregious that, as a medical doctor, he took lives instead of saving them. He was accordingly found to have abused the trust placed in him in committing these crimes of which he was found guilty.163 With this reasoning, the Trial Chamber implied that Ntakirutimana, as a physician, had to meet higher moral standards. The assumptions the Trial Chamber made here would have benefited from a more elaborate explanation. 3 Experiments a The Doctors’ Trial The case of the United States of America against Karl Brandt and twenty-two other accused, known as the Doctors’ Trial or Medical Case, was the first to be 161 Ibid. para. 878, 924. 162 His conviction for genocide was criticized in literature because of a lack of a discriminatory intent. Olaoluwa Olusanya, ‘Commentary to Judgment, Prosecutor v. Elizaphan Ntakirutimana and Gérard Ntakirutimana’, in André Klip & Göran Sluiter (eds), Annotated Leading Cases of International Criminal Tribunals (Intersentia, 2008), p. 890–891. 163 ictr Ntakirutimana Trial Judgment, para. 910. The Appeals Chamber did not discuss the acquittal of the inhumanity charges. It did, however, discuss Ntakirutimana’s appeal argument that the Trial Chamber had come to a conclusion on the denial of medical care in paragraph 153 based on an ‘impression’ that was not proven beyond a reasonable doubt. According to the Appeals Chamber, the Trial Chamber had indeed used an ‘improper standard of proof’ but as there was sufficient other evidence, also by the accused himself, it judged the error on the part of the Trial Chamber as ‘harmless’. International Criminal Tribunal for Rwanda, Prosecutor v. Elizaphan and Gérard Ntakirutimana, Appeals Chamber Judgment [2004], para. 163–164.

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tried by the u.s. occupying force at the Nuernberg Military Tribunal (nmt).164 Of the twenty-three defendants, only three were not medical doctors, namely Wolfram Sievers, Rudolf Brandt and Viktor Brack.165 The four counts with which the defendants were charged were: (a) common design or conspiracy, (b) war crimes, (c) crimes against humanity, and (d) membership in criminal organization. The charge under count (2) held that: between September 1939 and April 1945 all of the defendants herein unlawfully, willfully and knowingly committed war crimes as defined in article II of Control Council Law No. 10, in that they were principals in, accessories to, ordered, abetted, took a consenting part in, and were connected with plans and enterprises involving medical experiments without subject’s consent, upon civilians and members of armed forces of nations then at war with the German Reich and who were in the custody of the German Reich in exercise if belligerent control, in the course of which experiments the defendants committed murders, brutalities, cruelties, tortures, atrocities and other inhuman acts. 164 United States Military Tribunal I, United States of America v. Karl Brandt, et al. [‘The Doctors’ Trial’], Judgment [1947] Trials of War Criminals, Vol. I & II. Of further relevance: the trial of the commander of Auschwitz, Rudolf Franz Ferdinand Höss, by the Supreme National Tribunal of Poland for several war crimes, including the supervision of experiments performed on the mostly Polish and Jewish prisoners, including experiments regarding castration, sterilization, premature termination of pregnancy, artificial insemination, and cancer research. Supreme National Tribunal of Poland, Trial of Obersturmbannführer Rudolf Franz Ferdinand Höss, Judgment [1947], lrtwc, Vol. VII and United Nations War Crimes Commission, ‘Case No. 38 Trial of Obersturmbannführer Rudolf Franz Ferdinand Höss,’ Law Reports of Trials of War Criminals (His Majesty’s Stationery Office, 1948); the trial of Erhard Milch who was charged, among other counts, with ‘unlawfully, willfully and knowingly’ having committed war crimes involving experiments at Dachau concentration camp on subjects in German custody without their consent. The relevant experiments were the well-known ‘high-altitude’, ‘low-pressure’ and ‘freezing’ experiments carried out on inmates by Dr. Siegfried Ruff, Dr. Sigmund Rascher and Dr. Hans Wolfgang Romberg. Milch was found not guilty of this count because he ‘never became particeps criminis and accessory in the low-pressure experiments’ although the Court went to great lengths to point out the criminal nature of the experiments. Ruff and Rascher were indicted and tried in the Doctors’ Trial. See United States Military Tribunal II, United States of America v. Erhard Milch, Judgment [1947], Trials of War Criminals, Vol. II. 165 Eighteen of the accused had been nsdap party members and the majority had held an influential position within either the Wehrmacht or the ss. For details see u.s. Military Tribunal, The Doctors’ Trial, Vol. I, Opening Statement of the Prosecution by Brigadier General Telford Taylor, 9 December 1946, p. 29–36. Remarkably, there was one female indictee, Herta Oberhauser.

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The criminal experiments were high altitude, freezing, malaria, mustard gas, sulfanilamide, bone muscle and nerve regeneration, bone transplant, seawater, epidemic jaundice, sterilization, typhus (and other vaccines), poison and explosives experiments. Furthermore, R. Brandt and Sievers were specifically charged with the illegal endeavor of killing 112 Jewish persons for completing a skeleton collection for the Reich’s University of Strasbourg; Blome and R. Brandt with the general murder and mistreatment of Polish nationals; and lastly K. Brandt,166 Blome, Brack, and Hoven for involvement in the ‘euthanasia’ program.167 All of these crimes were claimed to be in violation of articles 4, 5, 6, 7, and 46 of the Hague Regulations of 1907168 and of articles 2, 3, and 4 of the Geneva Convention Relative to the Treatment of Prisoners of War of 1929, the laws and customs of war, general principles of criminal law as derived from the criminal laws of all civilized nations, national penal laws and article II of the Control Council Law No. 10.169 Of the twenty-three accused, seven, all members of the ss, were sentenced to death,170 nine were sentenced to prison terms,171 and seven were acquitted.172

166 Dr. Karl Brandt had also been the recipient of Hitler’s ‘euthanasia order’, discussed above. 167 Marrus believes that an unbalanced amount of emphasis was placed on the experiments, whereas, not denying the unimaginable cruelty and barbarity of them, the ‘euthanasia’ and sterilization programs had lead a much greater number of people to death and should have been given more attention during the trial. Michael R. Marrus, ‘The Nuremberg Doctors’ Trial and the Limitations of Context’, in Patricia Heberer & Jürgen Matthäus (eds), Atrocities on Trial – Historical Perspectives on the Politics of Prosecuting War Crimes (University of Nebraska Press, 2008), p. 114–115. 168 These Regulations in general concern prisoners of war and their treatment. Article 46 concerns the treatment of the population under the military authority over a hostile state. Convention (IV) respecting the Laws and Customs of War on Land and its annex: Regulations concerning the Laws and Customs of War on Land. The Hague, 18 October 1907, u.k.t.s. 9 (1910), Cd. 5030. 169 U.S. Military Tribunal, The Doctors’ Trial, Vol. I, Indictment, p. 11–16. Comparable to u.s. Military Tribunal, The Milch Trial, Indictment, p. 362–363. The Milch case was tried almost simultaneously, beginning on 2 January 1947 – a month after the Doctors’ Trial. Its judgment was handed down before that of the Doctors’ Trial. 170 K. Brandt, Gebhardt, Mrugowksy, Brack, Sievers, R. Brandt, and Hoven were convicted and hanged on 2 June 1948. 171 Handloser, Schröder, Genzken, Poppendick, Rose, Becker-Freyseng, Beiglböck, Oberheuser and Fischer were convicted and sentenced to prison terms. 172 Blome, Rostock, Ruff, Romburg, Weltz, Schäfer, and Pokorny – all not members of the ss – were acquitted.

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In this case dealing exclusively with medical war crimes and almost exclusively with doctors, it was indispensable that the prosecution addressed medical ethics. According to Telford Taylor’s opening statement: The general decline of German medical conduct and the poisoning of German medical ethics which the Nazis brought about laid the basis for the atrocious experiments of which the defendants are accused.173 Talyor claimed that the defendants had all violated the Hippocratic Oath, particularly the principle of primum non nocere (first do no harm).174 Basic standards in the treatment of patients were violated by the physicians in charge of the experiments: the research subjects were never asked if they consented to the research, often forced into the medical wards,175 and not informed as to what was being done to them. For example during the bone and muscle transplant experiments, the research subjects were repeatedly surgically operated whereby pieces of bone or muscle were extracted.176 Most had not consented and all were unaware of the painful consequences and lasting scars of such an operation. Post-operative care was only given if relevant for the experiments: if they survived the torturous experiments,177 the research subjects were returned to the barracks in the camps with untreated wounds. Most were unable to work or function properly afterwards which practically meant death in a concentration camp. Those who survived, still carry the scars. This all raised serious questions of the standards of medical ethics in Germany at that time. During the trials, the questions of medical ethics and whether an experiment using human subjects was ethically justifiable were raised regularly.178 Several of the defendants referred to medical ethics in their

173 u.s. Military Tribunal, The Doctors’ Trial, Vol. I, Opening Statement of the Prosecution by Brigadier General Telford Taylor, 9 December 1946, p. 61. 174 Taylor: ‘All of them violated the Hippocratic commandments which they had solemnly sworn to uphold and abide by, including the fundamental principles never to do harm “primum non nocere”’. Ibid. Vol. I, Opening Statement of the Prosecution by Brigadier General Telford Taylor, 9 December 1946, p. 68. 175 Ibid. Vol. I, Voluntary Participation of Experimental Subjects, p. 980–992. 176 Ibid. Vol. I, Testimony of witness, Ms Karolewska, p. 412–413. 177 Most experiments resulted in the death of the research subject, see for example Ibid. Vol. I, Report of 10 October 1942 on Cooling Experiments on Human Beings, by Holzlöhner, Rascher and Fink, p. 230 et seq. 178 Taylor concentrated more on the political nature of the crimes and less on the impalpable concept of medical ethics. Weindling, Nazi Medicine and the Nuremberg Trials, p. 172.

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pleas and explained why the experiments had been in line with certain principles.179 The precise principles were not explicated; neither by the prosecution nor by the defense. In Taylor’s opinion: Were it necessary, one could make a long list of the respects in which the experiments which these defendants performed departed from every known standard of medical ethics. But the gulf between these atrocities and serious research in the healing art is so patent that such a tabulation would be cynical.180 The only principle that was subject of much debate was the principle of consent. With every experiment, during every examination, the question arose as to whether the research subjects had volunteered to be experimented upon.181 Generally, it was assumed that none of the experiments had been conducted on voluntary research subjects who had consented to the experiments.182 By this, the tribunal demonstrated the importance of consent, if not yet called ‘informed’ consent. Some critical notes concerning the trial are in order.183 First of all, a common criticism that cannot be overstated is that the trial did not try all those who should have been tried.184 Of course this was partly due to the fact that certain suspects feared for their brutality and involvement had either committed suicide (e.g. Standortarzt (chief physician) Dr. Eduard Wirths committed suicide in 179 See u.s. Military Tribunal, The Doctors’ Trial, Vol. II, Final Plea Defendant Gebhardt, p. 71–73 and Final Plea Defendant Beiglboeck, p. 74–77. 180 By the prosecution, see Ibid. Vol. I, Opening Statement of the Prosecution by Brigadier General Telford Taylor, 9 December 1946, p. 71. Otherwise, references can be found throughout the witness examinations. 181 This becomes clear when looking at testimonies by both witnesses and defendants. For example Ibid. Vol. I, p. 180, 188, 385; 980 et seq. 182 The judges of the trial established ten principles for ethically sound experiments on humans, the Nuernberg Code, Ibid. Judgment, Vol. II, p. 181–182. On the Nuernberg Code, see Ulf Schmidt, ‘The Nuremberg Doctors’ Trial and the Nuremberg Code’, in Ulf Schmidt & Andreas Frewer (eds), History and Theory of Human Experimentation (Franz Steiner Verlag, 2007). 183 See also Horst H. Freyhofer, The Nuremberg Medical Trial – The Holocaust and the origin of the Nuremberg Medical Code (Peter Lang Publishing, 2004), p. 86–103. 184 There were also national prosecutions regarding the experiments. An example is the trial of Dr. Kurt Heissmeyer (Rüter, ddr-Justiz, Vol. II, Lfd. Nr. 1057, p. 613–631). Taylor admitted that not all ‘co-conspirators’ were on trial. u.s. Military Tribunal, The Doctors’ Trial, Vol. I, p. 68.

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police custody in 1945),185 passed away (e.g. Prof. Carl Clauberg died in police custody on 9 August 1957)186 or could not be located (e.g. until the late 1980s, Dr. Joseph Mengele’s whereabouts were unknown).187 It is questionable whether those tried were thus representative of the crimes committed in the name of medicine by the Nazi apparatus. A further criticism is that the medical expert witness of the prosecution, Prof. Andrew Ivy, proved to have insufficient knowledge when questioned by the accused188 and was criticized for bias.189 A further medical expert, next to Ivy and the German expert Dr. Leibbrand, would have increased the credibility of proceedings. Lastly, the fact that several of the accused were drafted by the u.s. armed forces after the war,190 was an impediment to the neutrality of the trial. The use of the results of the experiments by the u.s. military should have been broadly discussed and assessed by the u.s. tribunal. A further often heard criticism was the tu quoque argument: the u.s. Army had also conducted human experiments without the consent of the

185 Hermann Langbein, Der Auschwitz-Prozess: eine Dokumentation, Vol. II, 2nd Ed. (Verlag Neue Kritik, 1995), p. 581. 186 Lifton, The Nazi Doctors, p. 277–278; Christian Dirks, ‘Die Verbrechen der anderen’ – Auschwitz und der Auschwitz-Prozeß der ddr: Das Verfahren gegen den kz-Arzt Dr. Horst Fischer (Schöningh, 2006), p. 195. On Clauberg, see u.s. Military Tribunal, The Doctors’ Trial, Vol. I, p. 699–701. Also, see his research proposal to Reich Leader of the ss, Heinrich Himmler, where he compares the research on female Auschwitz inmates to that on rabbits on p. 724–727. 187 An international investigation, instigated by the u.s. Department of Justice Office of Special Investigations, followed a thread on Joseph Mengele to a couple in Sao Paolo in whose apartment his diaries and letters were found. Remains of a body found at a graveyard nearby were also identified as Mengele’s. He is believed to have died in 1979. For a detailed account of the events of this discovery, see Department of Justice – Criminal Division, Report of the Office of Special Investigation (osi) – Striving for Accountability in the Aftermath of the Holocaust, p. 390–405. Lifton came to the same conclusion based on other sources. Lifton, The Nazi Doctors, p. 382. 188 He was questioned by defendants Ruff, Rose and Beiglböck personally. They mostly directed their cross-examination at lethal experiments conducted in the United States and Ivy’s expert knowledge. Transcript of the Doctors Trial, Direct Cross-Examination Defendant Ruff, 13 June 1947, 9285–9295; 14 June 1947, 9297–9315. Direct CrossExamination Defendant Rose, 16 June 1947, 9364–9378. Direct Cross-Examination by Defendant Beiglböck, 16 June 1947, 9381–9404. 189 Schmidt, ‘The Nuremberg Doctors’ Trial and the Nuremberg Code’, p. 98–99. 190 Blome was hired by the u.s. Army Medical Corps three years after the war, Ruff by the Aero-Medical Center of the u.s. Air Forces in 1945. Freyhofer, The Nuremberg Medical Trial, p. 87 and 92.

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research subjects.191 These deficiencies tarnished the image of the Tribunal. Nevertheless, because the trial was ‘concerned with permissible experiments on humans, and with wider questions as to what constituted ethical and nonethical experiments’,192 it is the only clearly ‘medical’ trial in history. b The Khabarovsk Trial In 1949, after the International Military Tribunal for the Far East had finished its work, the Soviet Union conducted a trial before a military tribunal in Khabarovsk of captured members of the Japanese Kwantung army who had been involved in bacteriological experiments.193 The trial demonstrates that physicians in the Japanese army were also involved in horrific experiments on research subjects who had not consented that were equally unethical as those conducted by National Socialist physicians in Germany.194 Most experiments concerned bacteriological warfare, others for example the effects of freezing, gas gangrene, syphilis, and other infectious diseases on prisoners of war and some so-called ‘comfort women’.195 These crimes were not prosecuted by the allied powers as such because evidence was deemed insufficient and the investigation 191 u.s. Military Tribunal, The Doctors’ Trial, Vol. I, p. 994–1002, Vol. II, p. 90–96. Also, for example, Transcript of the Doctors Trial, Direct Cross Examination by Dr. Sauter, 14 June 1947, 9319–9320; Direct Cross Examination by Defendant Rose, 16 June 1947, 9368–9373. For an non-exhaustive overview of medical experiments conducted in u.s. federal prisons before, during and after the war, see Suzy Wang, ‘Appendix B: The Experiments conducted under the us government’, in Jing-Bao Nie, et al. (eds), Japan’s Wartime Medical Atrocities: Comparative Inquiries in Science, History, and Ethics (Routledge, 2010). 192 Schmidt, ‘The Nuremberg Doctors’ Trial and the Nuremberg Code’, p. 82. 193 Materials on the Trial of former Servicemen of the Japanese Army charged with manufacturing and employing Bacteriological Weapons (Foreign Languages Publishing House, 1950). Unfortunately the transcripts of the trial are not accessible. John W. Powell, et al., ‘Special Report: Japan’s Biological Weapons: 1930–1945’, The Bulletin of the Atomic Scientists, 43 (1981), p. 49. There were some other trials conducted by the usa that addressed the Japanese experiments, but these focused on the ill-treatment of American prisoners of war and the experiments were just one form of cruel treatment and/or torture. See Suzy Wang, ‘Medicine-related War Crimes Trials and Post-War Politics and Ethics’, in Jing-Bao Nie, et al. (eds), Japan’s Wartime Medical Atrocities: Comparative Inquiries in Science, History, and Ethics (Routledge, 2010). 194 Keiichi Tsuneishi, ‘Unit 731 and the Japanese Imperial Army’s Biological Warfare Program’, in Jing-Bao Nie, et al. (eds), Japan’s Wartime Medical Atrocities: Comparative Inquiries in Science, History, and Ethics (Routledge, 2010). 195 A valuable article with quotes classified u.s. government memorandums is Powell, et al., ‘Special Report: Japan’s Biological Weapons: 1930–1945’, p. 50–51. The last part of the article consists of a comment by former judge of the imtfe, Judge Röling, who appears genuinely surprised and appalled by the revelation.

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team under u.s. Chief Prosecutor Joseph Keenan was unwilling to provide more evidence.196 Years later, information leaked to the public that the u.s. had traded immunity of those responsible within the Japanese military for the results of these ‘invaluable’ experiments.197 This trade received much criticism.198 Twelve men were indicted under article 1 of the Decree of the Presidium of the Supreme Soviet of the ussr of 19 April 1943 for manufacturing and employing bacteriological weapons.199 The experiments concerning the effectiveness of bacteriological weapons and human endurance of disease, infections, and pain had been conducted in secret institutions (Units 731, 100, and 1644) that held inner prison tracts for human research. Three of the accused (Kawashima, Karasawa and Nishi)200 who were all physicians were charged with taking part in ‘criminal and inhuman experiments on living people’, and one accused (Mitomo)201 was charged with having personally taken part in the ‘villainous

196 Arnold C. Brackman, The Other Nuremberg – the untold Story of the Tokyo War Crimes Trials (William Morrow & Co., Inc., 1987), p. 195–200. 197 Powell, et al., ‘Special Report: Japan’s Biological Weapons: 1930–1945’. 198 Neil Boister & Robert Cryer, The Tokyo International Military Tribunal – a Reappraisal (Oxford University Press, 2008), p. 63–64, 73; Brackman, The Other Nuremberg; Richard Drayton, ‘An Ethical Blanc Cheque – British and us Mythology About the Second World War Ignores Our Own Crimes and Legitimizes Anglo-American Warmaking’, The Guardian, (2005); Powell, et al., ‘Special Report: Japan’s Biological Weapons: 1930–1945’; Till Bärnigshausen, ‘Communicating “Tainted Science”: The Japanese Biological Warfare Experiments on Human Subjects in China’, in Ulf Schmidt & Andreas Frewer (eds), History and Theory of Human Experimentation (Franz Steiner Verlag, 2007). 199 Article 1 of the Decree ‘On measures of punishment for German-Fascist villains guilty of killing and torturing the Soviet population and captive Red Army soldiers, for spies and traitors to the Motherland from among Soviet citizens and their accomplices’ was formally limited to German, Italian, Romanian, Hungarian and Finnish war criminals. The Decree is reprinted in Irina V. Bezborodova, Generaly vermachta v plenu, translated by Hermine Pluegger (Rossijskij Gosudarstvennyj Gumanitarnyj Universitet, 1998), p. 273–275. See also George Ginsburgs, ‘Light shed on the story of Wehrmacht Generals in Soviet Captivity ‘, 11 Criminal Law Forum, 101 (2000), p. 105. 200 Kawashima Kiyoshi, a physician and bacteriologist, had been a Major General in the Japanese Army Medical Service; Karasawa Tomio, a physician and bacteriologist, had been a Major to the Medical Service, and Nishi Toshihide, also a physician and bacteriologist, had been a Lieutenant Colonel of the Medical Service. Materials on the Trial of former Servicemen, p. 35. 201 Although Mitomo Kazuo was not a physician, six of the twelve accused had been physicians and bacteriologist.

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killing of people by performing inhuman experiments upon them’.202 Furthermore, three other accused were accused of knowingly acquiescing to the experiments (Yamada, Kajitsuka, and Takahashi). The experiments were performed on Chinese and Russian male and female prisoners only; none survived.203 After having been subjected to experiments204 claimed to improve anti-epidemic measures and provide effective means of bacteriological warfare, the research subjects were killed, e.g. by injection of potassium cyanide, by an overdose of some sort of poison, or by gunfire. The accused all pleaded guilty in lengthy statements of knowledge and guilt, and were all convicted to two to twenty-five years of imprisonment.205 When reading the documents, especially the guilty and last pleas by the accused, many do not appear genuine. The trial has been labeled a ‘show trial’.206 The question of medical ethics was implicitly raised several times in the course of the trial. When speaking of his functions, Karasawa addressed a dualloyalty conflict he was faced with: his ‘sense of duty as an officer’ justified the experiments for him.207 Nevertheless, he also stated that ‘as a physician, whose mission is to heal people, [he] considered [the experiments] an evil thing’.208 Kawashima confirmed that as a doctor he had realized the inhumanity of 202 Materials on the Trial of former Servicemen, p. 36–37. The other accused were accused of the organization of dedicated units for the preparation and implementation of bacteriological warfare, the use of bacteriological weapons in the war against China, and activities undertaken in preparation for bacteriological warfare against the ussr. Materials on the Trial of former Servicemen, p. 7–27. 203 An estimated 3,000 persons died of these experiments, according to the Prosecution. Materials on the Trial of former Servicemen, p. 430. 204 A whole range of experiments were conducted over several years at the two research institutions, including subjecting small groups of prisoners to gas gangrene, or bombs spreading bacteria, poisoning food, contaminating civilian villages, infecting women with venereal diseases, inoculating persons with diseases, and causing frostbites in the limbs of prisoners. Ibid. for example p. 258–263, 323, 356, 354, 357, and others. 205 The death penalty had been abolished, even though it was re-instituted shortly in 1950, after the end of the trial. The relatively lenient punishments had, arguably, been predetermined. Boris G. Yudin, ‘Research on Humans at the Khabarovsk War Crimes Trial’, in JingBao Nie, et al. (eds), Japan’s Wartime Medical Atrocities: Comparative Inquiries in Science, History, and Ethics (Routledge, 2010). Leniency was probably given in exchange for research results. Sholok as quoted in Yudin, ‘Research on Humans at the Khabarovsk War Crimes Trial’, p. 69. 206 Arguing in favor of the reliability of the evidence used in the trial despite the trials disputable validity, Yudin, ‘Research on Humans at the Khabarovsk War Crimes Trial’, p. 70–72. 207 Ibid. p. 66. 208 Ibid. p. 272.

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human experimentation.209 These are some of the only instances where the medical profession of the accused played a role. The ‘medico-legal experts’ consulted by the Soviet Military Tribunal were not asked and did not answer any questions concerning medical ethics. They were only consulted about the purpose and set-up of the experiments and possible consequences of the use of bacteriological weapons.210 The Khabarovsk Trial, unlike the Doctors’ Trial, failed to address questions of medical ethics despite the medical character of the offenses. The prosecution only once drew a comparison to the crimes committed by the National Socialists when condemning pressure experiments similar to those conducted by Rascher in Dachau.211 Hence, even though the facts provide all the criteria for a medical war crimes trial, the opportunity to establish norms and principles and address the special role of the medical profession was missed. 4 General Observations Concerning Prosecution Prosecutions for medical war crimes per se are rare.212 With the horrific medical crimes committed in the course of World War II – physicians’ involvement in the extermination machinery, their experiments and their role in the ‘euthanasia’ process – crimes committed by physicians during armed conflict had for a short period come to the center of legal attention. The lapse of time between the wave of trials for medical crimes and the Ntakirutimana Trial demonstrates the lack of interest in such crimes in international law and politics. Often these medical offenses were prosecuted as crimes against humanity or on the basis of national criminal concepts, such as murder. For example, the Federal Republic of Germany after 1949 tried war criminals under the regular German Penal Code and not under the Control Council Law No. 10. From the perspective of modern international criminal law, the cases concerning ‘pseudo-medical’ experiments could have been prosecuted on the basis of article 8 (2)(b)(x) or (e)(xi) of the Rome Statute. From the perspective of modern 209 210 211 212

Ibid. p. 263. Ibid. p. 395–404. Ibid. p. 432–433. All trials of international crimes were rare during the Cold War. Kleffner, Complementarity in the Rome Statute and National Criminal Jurisdictions, p. 35. Although not directly committed during an armed conflict but in the direct aftermath, the fact that the illegal trafficking of kidneys during the Balkan conflict, which involved their removal by surgeons, was never prosecuted is another example for the impunity of physicians – although, of course, other factors played a role such as insufficient evidence. Del Ponte & Sudetic, Madame Prosecutor – La Caccia, p. 285.

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international humanitarian law, most of the acts prosecuted could have fallen under article 11 (4) ap I, namely when it concerned one of the actions prohibited by article 11 (2) ap I like unwarranted experiments on protected persons, such as foreign civilians and prisoners of war, or actions or omissions in violation of the requirements in article 11 (1) ap I like the denial of medical care to the detriment of a wounded and sick protected person, and the cases of illtreatment and killing of mentally-ill protected persons. What can be surmised is that certain medical actions are considered criminal, namely conducting unscientific and non-consensual experiments,213 killing protected persons in the name of ‘euthanasia’ or science, and the denial of medical care to certain persons or groups of persons. These actions have in common that they are all carried out by physicians or medical personnel: the experiments were carried out by physicians in the name of medicine and science, physicians injected patients in their institutions or hospitals with lethal substances or wrote false death certificates, and physicians denied medical care that they could have provided to those in need. All these actions are undeniably medical. Yet it should be made clear that in the case of the experiments and the ‘euthanasia’ program, what contributed to the medical context of the crimes should be classified as ‘pseudo-medical’ rather than having to do with the usual work of the medical profession. Pursuant to the generally recognized principles of beneficence and non-maleficence, physicians should work towards healing and alleviating suffering, not towards endangering the health of and killing patients.214 Overall, few of the trials explicitly addressed medical war crimes (or medical crimes against humanity) in accordance with the definition used in this Chapter because not necessarily all criteria were met. Some, namely the trials concerning the extermination process like the Auschwitz Trial of 1965215 and 213 Lifton classifies the rationale behind some research, for example the electroshock therapy experiments as ‘genuine research’ but notes that ‘no research escaped the Auschwitz taint’ because subjects were not healed but gassed after participation in the research. Lifton, The Nazi Doctors, p. 298–300. 214 For a discussion of the ethical principles of beneficence and non-maleficence, see Chapter 1. 215 Twenty-four accused were tried in the Auschwitz Trial in Frankfurt am Main for participation in or aiding and abetting the murder of numerous people pursuant to § 211 of the German Criminal Code. One dentist, Dr. Willi Schatz, was acquitted due to a lack of evidence. Another dentist, Dr. Willi Frank, was convicted for carrying out selections and supervising the killings on at least six occasions and, as the chief dentist from February 1943 till August 1944, for callously organizing the collection of dental gold from the dead. Dr. Franz Lucas, a gynaecologist and SS-Lagerarzt in Auschwitz Birkenau, was sentenced to

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the Fischer Trial of 1965,216 did not concern specifically medical work at all.217 The acts, appalling and gruesome as they were, cannot be classified as medical because they did not require medical knowledge or skills. The euthanasia trials clearly concerned medical war crimes. In providing or being responsible for providing medical care, the physicians acted to the detriment of the persons in their care who were not taking part in hostilities and seriously endangered their health. The same can be said about the experiments conducted in the concentration camps by physicians on non-voluntary and non-consensual research subjects in the Doctors’ and the Khabarovsk Trial. The physicians willfully seriously endangered the health of these persons.

three years imprisonment for his role in the selection process at the ramp where Lucas participated on at least four occasions during his time in Auschwitz. The judges were lenient in their judgment because they were convinced that despite his overall involvement in the extermination, he had shown some humanity in the work in the concentration camp. Namely, Lucas had given inmates medical treatment and provided them with medication. In other concentration camps, he had openly defied orders to be involved in the killing. The original Indictment can be consulted at the Hessisches Hauptstaatsarchiv, (4 Ks 2/63, Hauptakten, Bd. 1-Bd. 128, Abt. 461, Nr. 37638). For the judgment consult Landesgericht Frankfurt am Main, Judgment of 19/20 August 1965, 4 Ks/63 and Bundesgerichtshof, Judgment of 20 February 1969, 2 StR 280/67 In: Irene Sagel-Grande, et al., Justiz und ns-Verbrechen – Sammlung deutscher Strafurteile wegen nationalsozialistischer Tötungsverbrechen 1945–1966, Vol. XXI (University Press Amsterdam, 1979), Lfd. Nr. 595. See also Langbein, Der Auschwitz-Prozess, p. 599–642, (esp. 617–620) and 689–708 (esp. 698–699). 216 In response to the trial in the Federal Republic of Germany, the Supreme Court of the German Democratic Republic in 1965 tried Dr. Horst Fischer, a ss physician who had been employed in Auschwitz Birkenau. Fischer was indicted with crimes against humanity for exterminating the lives of ten-thousands of people based on article 6 (c) of the Nuernberg Charter. Like all physicians, he was ordered to carry out the selection at the ramp, the supervision of the gas chamber and the certification of death of the gas-victims. In addition, Fischer ‘medically’ approved and supervised the corporal punishment of inmates. His last position from 1943 till 1945 was that of ss-Lagerarzt in Auschwitz III – the secondary ig Farben camp Monovice – where he was responsible for the health of the inmates and was in charge of the ‘inmate-doctors’. Since 1943, he was also stellvertretender Standortarzt (deputy to the Chief of the Medical Staff) at Auschwitz. Like most Auschwitz physicians, Fischer who had a background in surgery was also involved in medical experiments. Fischer was sentenced to death. See Oberlandesgericht vom 25.03.1966, 1 zt (I) 1/66 In: Rüter, ddr-Justiz, Vol. II, Lfd. Nr. 1060. For a comprehensive analysis, see Dirks, Das Verfahren gegen den kz-Arzt Dr. Horst Fischer. 217 Next to ordinary medical tasks but also the execution of horrific experiments, physicians’ tasks in concentration camps included the selection of arriving inmates at the infamous ramps, supervision of the gassing procedure, and the determination of death of those

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It is more difficult to classify the cases of omissions, notably the denial of medical care or neglect, as medical war crimes. In the Velpke Baby Home Trial and the Ntakirutimana Trial it is difficult to establish whether the accused willfully neglected patients or whether this was a consequence of other events or the overall circumstances. In those cases, the mens rea requirement might be difficult to ascertain. None of the trials classified the crimes committed by physicians as ‘medical’ crimes, mostly because the focus of the trials was on the overall atrocities that had been committed. Only Pilz and Michelsohn were explicitly charged with acts contrary to their medical duties, i.e. denial of medical care and neglect. A differentiation between ‘regular’ and specifically medical crimes would have been insightful to elicit the specificity of medical crimes. Especially in the Doctors’ Trial, the judges would have had ample opportunity to discuss what distinguished these crimes from regular war crimes. The development of the concept of medical war crimes would have benefited greatly from a more focused discussion. Nonetheless, some trials, for example the euthanasia trials and the Doctors’ Trial, placed emphasis on a discussion of medical ethics of physicians in times of armed conflict. In general, all courts had higher expectations of physicians to act morally and to adhere to their ethical code than regular defendants. While the Auschwitz Trials addressing the role of physicians in the extermination process in concentration camps merely discussed the role of the physician,218 the ictr Ntakirutimana Trial judgment considered that Ntakirutimana should have acted differently as a doctor and have set an example for others.219 The Landesgericht in the Hadamar Trial noted that Gorgaß’ ärztlicher Berufsethos (medical ethos) should have deterred him from cooperating in the killings. He should have realized that the events were not reconcilable from a

prisoners who had been killed. Former Auschwitz Commander, Rudolf Höss, described the ‘non-medical’ tasks of physicians in charge of the concentration camp inmates in a note written in 1947 while in police custody in Krakow. See Staatliches AuschwitzMuseum (ed.), Auschwitz in den Augen der SS. Rudolf Höß, Pery Broad, Johann Paul Kremer (Verlag Interpress, 1992), p. 75–94 reprinted in Fritz Bauer Institut Frankfurt am Main and Staatliches Museum Auschwitz-Birkenau, Der Auschwitz Prozess (Directmedia, 2004) p. 40169 et seq. These tasks were after 1943 no longer limited to the Lagerärzte. Dirks, Das Verfahren gegen den kz-Arzt Dr. Horst Fischer, p. 104–105. Not all physicians in concentration camps carried out these tasks. A few were truly concerned with providing medical care. Lifton, The Nazi Doctors, p. 227; 309. 218 Sagel-Grande, et al., Justiz und ns-Verbrechen, Lfd. Nr. 595, Judgment (Strafzumessung), p. 619–620. 219 ictr Ntakirutimana Trial Judgment, para. 910.

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medical or moral perspective.220 Not only can it thus be surmised from judgments and sentencing that physicians are held to higher standards, several courts also explicitly referred to ethical guidelines such as the Hippocratic Oath or ethical principles, such as informed consent. In the Auschwitz Trials, the courts stated that persons having taken the Hippocratic Oath should have refused involvement in such practices and set an example for others.221 The Supreme Court in the Fischer Trial spoke of the discrepancy of the acts committed and the oath a doctor takes.222 The discussions concerning the consent of research subjects (or the lack thereof), particularly in the Doctors’ and Khabarovsk Trials, can be seen as an indicator of the acceptance of the principle that research subjects should be given an opportunity to consent to their involvement in experiments. Involvement should be voluntary at all times. The 220 The judgment states in the relevant part: ‘Hätte der Angeklagte hohe sittliche Werte und einen starken Berufsethos in sich getragen, so hätte er erkennen müssen, dass das, was dort geschah, weder vom ärztlichen noch vom menschlich-sittlichen Standpunkt aus tragbar war’. Rüter-Ehlermann & Rüter (eds), Justiz und ns-Verbrechen, Lfd. Nr. 017, p. 358. 221 Noting that the medical profession fulfilled an important role in the course of the extermination process, the Frankfurt Landesgericht deplored that physicians ‘whose task is to heal sick people and preservation of health’ could have participated. According to the Court the physicians had ‘overcome their reservations and any moral and ethical objections and silenced their conscience’ (‘Sie haben aber diese Hemmungen und jegliche sittlichen und moralischen Bedenken überwunden und ihr Gewissen zum Schweigen gebracht’. (author’s translation)). Sagel-Grande, et al., Justiz und ns-Verbrechen, Lfd. Nr. 595, Judgment, p. 619. In determining the sentence of one of the dentists accused, the Court explored the importance of the Hippocratic Oath for dentists. Because Frank had studied a similar subject to physicians, he was believed to have been familiar with the Hippocratic Oath and medical ethics. The Court strongly deplored that Frank had let himself be used for the ‘pseudo-medical’ tasks he had committed. Sagel-Grande, et al., Justiz und ns-Verbrechen, Lfd. Nr. 595, Sentencing, p. 632. 222 The medical aspects were of lesser importance, even though the prosecution called upon a medical expert. Prof. Dr. Kurt Winter gave his expert opinion on the hygienic situation at Auschwitz and the work of Fischer from a medical ethical and moral angle. Winter submitted a report on ‘Die hygienische Lage, die Arbeits- und Lebensbedingungen in den Konzentrationslagern von Auschwitz und zur Einschätzung der Tätigkeit des Dr. Horst Fischer als ss-Lagerarzt des Konzertrationslagers Auschwitz III – Monovice vom Standpunkt der ärztlichen Ethik und Moral’. While Winter mainly explored the profit the industries made on the backs of the inmates, at one point he also discussed the discrepancy between the medical profession and the work physicians such as Fischer were doing at the concentration camps. Winter concluded that the physicians had knowingly violated the Hippocratic Oath and placed themselves outside the bounds of generally accepted medical ethics. Dirks, Das Verfahren gegen den kz-Arzt Dr. Horst Fischer, p. 279, 285.

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judgment in the Doctors’ Trial went farthest and established the Nuernberg Code. The Nuernberg Code provides ten ethical principles for conducting research on human subjects.223 It can be concluded that although medical ethics do not factor into medical war crimes as such – article 11 (4) ap I requires adherence to generally accepted medical standards – medical ethics played a role in most trials. In the trials concerning the experiments, the principle of consent of the person concerned played a great role. In many other trials, physicians were held to higher expectations, especially to act in accordance with the principles of beneficence and non-maleficence. From this it can be taken that medical war crimes are not only willful acts or omissions that seriously endanger the mental or physical health or integrity of a protected person who is in the power of a party due to the armed conflict committed by a physician in her professional work during an armed conflict. They are mostly also violations of medical ethics. D

Possible Defenses to Medical War Crimes

Like many national systems, international criminal law recognizes two categories of circumstances excluding criminal liability: justifications and excuses.224 A justification is a circumstance whereby an act that violates the law is considered lawful due to special circumstances. An excuse is a circumstance whereby a violation of the law is considered unlawful yet not punishable because the relevant mens rea was lacking.225 For a medical grave breach, the required mens rea is ‘willfulness’, as established in article 11 (4) ap I, or to have the requisite ‘intent and knowledge’, as established in article 30 Rome Statute. Thus, for a defense to be successful it needs to be proven whether the physician’s criminal will was absent when committing a medical war crime or whether his actions, though unlawful, should not be punished. 223 The Nuernberg Code is part of the judgment and can be found in u.s. Military Tribunal, The Doctors’ Trial, Vol II, p. 181. 224 This distinction was abandoned in the Rome Statute, choosing ‘exclusion of criminal responsibility’ instead. Ilias Bantekas, ‘Defences in International Criminal Law’, in Dominic McGoldrick, et al. (eds), The Permanent International Criminal Court – Legal and Policy Issues (Hart Publishing, 2004), p. 266. 225 Antonio Cassese, ‘Justifications and Excuses in International Criminal Law’, in Antonio Cassese, et al. (eds), The Rome Statute of the International Criminal Court: A Commentary (Oxford University Press, 2002), p. 951–952.

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Most defenses against war crimes are based on superior orders, mistake of fact and duress, or, for medical crimes, on the consent of the victim. Many physicians accused of medical war crimes committed under the Nazi regime, further based their defense on the fact that they had attempted to sabotage the work of the Nazis and had cooperated so that they could somehow improve the conditions of those persons in their care.226 This defense will not be discussed as it lacked a legal element and often, additionally, was not credible. An analysis of the legally relevant excuses and justifications will be carried out below. 1 Superior Orders Even though nothing can or should diminish the inhumanity of the experiments and the guilt of those persons in charge of and conducting them, the defense of several of the physicians in the Doctors’ Trial that they had been unable to disobey orders given by superiors cannot be ignored.227 The defense was aimed at negating liability due to the impossibility to disobey orders by superiors. The defense of ‘superior orders’ has rarely been recognized in international criminal law.228 After World War II, article 8 Nuernberg Charter and article II (4)(b) Control Council Law No. 10 denied this defense and, as a slight deviation from the principle of absolute liability, established superior orders as a mere mitigating circumstance.229 Article 7 (4) icty Statute and article 6 (4) ictr Statute followed this line, as does customary international law.230 Article 33 226 This defense only succeeded for the physician Franz Lucas in the Frankfurt Auschwitz Trials due to the credibility of his animosity. See Rüter-Ehlermann & Rüter (eds), Justiz und ns-Verbrechen, Lfd. Nr. 017, Judgment, p. 620. 227 For example, u.s. Military Tribunal, The Doctors’ Trial, Vol. II, Final Statement of Defendant Fischer, p. 169–170. 228 A rare example is the Supreme Court of Leipzig, Judgment in Case of Commander Karl Neumann [‘The Dover Castle Case’], Judgment [1921], ajil, 16, p. 707–708. In the Llandovery Castle Case the defense of superior orders was denied as the attack on the shipwrecked survivors was manifestly illegal. Supreme Court of Leipzig, Judgment in Case of Lieutenants Dithmar and Boldt [‘The Llandovery Castle Case’], Judgment [1921], ajil, 16, p. 721–722. 229 Article II (4)(b) Control Council Law No 10: ‘The fact that any person acted pursuant to the order of his Government or of a superior does not free him from responsibility for a crime, but may be considered in mitigation’. 230 Paola Gaeta, ‘The Defence of Superior Orders: The Statute of the International Criminal Court versus Customary International Law’, 10 European journal of international law, 172 (1999). Gaeta comes to the conclusion on p. 186 that customary international law in this respect has emerged.

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Rome Statute re-introduced the defense of superior orders yet limited it according to the ‘manifest illegality principle’.231 Superior orders can excuse war crimes when the perpetrator was under a legal obligation to obey the order, did not know the order was unlawful, and the order was not manifestly unlawful. An order is manifestly unlawful if ‘a layman with only a basic knowledge of international humanitarian law should have considered the action to be unlawful and to constitute a punishable crime’.232 Thus, only if ignorance is excusable, can liability be denied.233 It remains to be seen whether the Rome Statute’s approach will affect customary international law. For the defense to succeed, the physician has to have been in a superiorsubordinate relationship with the person ordering the unlawful deed234 and the order has to have resulted in a legal obligation. Yet an order to carry out an unwarranted medical procedure, a non-consensual experiment, or a mutilation is always manifestly unlawful.235 Not only would unwarranted ‘medical’ procedures violate medical ethics, but a violation of medical ethics should alert physicians that such procedures are manifestly unlawful and constitute war crimes. Moreover, the defense can never succeed ‘where the one to whom the order is given has free latitude of decision whether to accept the order or reject it’.236 The physicians in the cases discussed were generally able to disobey the orders without facing consequences that would have justified the crimes.237 As the question of superior orders is an undeniable problem for doctors within the military, article 16 ap I has taken up just this point: no person giving 231 This principle is a compromise between the recognition of the defense per se (the respondeat superior doctrine) and the absolute liability approach. Albin Eser, ‘“Defences” in War Crimes Trials’, in Yoram Dinstein & Mala Tabory (eds), War Crimes in International Law (Martinus Nijhoff Publishers, 1996), p. 259. 232 Andreas Zimmermann, ‘Superior Orders’, in Antonio Cassese, et al. (eds), The Rome Statute of the International Criminal Court: A Commentary (Oxford University Press, 2002), p. 970. 233 United States Military Tribunal II-A, United States of America v. Otto Ohlendorf, et al. [‘The Einsatzgruppen Trial’], Judgment [1948], Trials of War Criminals, Vol. IV, p. 473. 234 This person could be both military or civilian. Yet in the case of the latter, the civilian superior would have to have a certain degree of control over the physician. Ibid. p. 480. Mutatis mutandi, icty Čelebići Trial Judgment, para. 378 refers to ‘effective command’. 235 Charles Garraway, ‘Superior Orders and the International Criminal Court: Justice delivered or justice denied’, 836 International Review of the Red Cross, 785 (1999), p. 790. 236 u.s. Military Tribunal, The Doctors’ Trial, Vol. II, Judgment, p. 227. 237 In the Doctors’ Trial, the defense of superior orders was rejected. Ibid. Vol. II, Judgment, p. 227; 263.

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medical care can be ordered to act in violation of medical ethics and, possibly secondarily, the laws of armed conflict. Under international humanitarian law physicians are, thus, at all times justified to disobey an illegal order to commit a medical war crime.238 This means that the defense of superior orders would never succeed regarding medical war crimes; it could only act as a mitigating circumstance.239 2 Mistake of Fact A physician having committed a medical war crime out of an ‘honest and reasonable belief that there existed factual circumstances making his conduct lawful’ could excuse his unlawful conduct based on the defense of a mistake of fact.240 Though the Statutes of the ictr and icty do not recognize this defense, article 32 (1) Rome Statute re-introduced the exclusion of criminal responsibility due to a mistake of fact if the mental element of a crime is negated.241 For a physician working in armed conflict to rely on a mistake of fact defense, she would have to be able to prove that she held the honest and reasonable belief that her actions at the time of the offense were lawful. This lack of willfulness – the required mens rea for medical war crimes – would negate the criminal mens rea.242 The u.s. Court Martial in William L. Calley succinctly restated this principle: ‘the mistaken belief must be of such a nature that the conduct would have been lawful had the facts actually been as they were believed to be’.243 An example would be the belief that the medical procedure was the standard procedure at the time and the physician was unaware of the detrimental effects on the patient. 238 If despite this a physician feared that not carrying out an order would threaten his life, he should resort to the defense of duress, as discussed below. 239 Kai Ambos, ‘Zur strafbefreienden Wirkung des “Handelns auf Befehl”’, 6 Juristische Rundschau, 221 (1998), p. 225. 240 Cassese, International Criminal Law, p. 290. The defense of mistake of law aims at a misconception regarding a legal rule or concept. It does not apply here. Eser, ‘Defences’, p. 267. It was also denied in most trials addressing medical crimes, for example the Doctors’ Trial. See Otto Triffterer, ‘Article 32: Mistake of Fact or Mistake of Law’, in Otto Triffterer (ed), Commentary on the Rome Statute of the International Criminal Court (C.H. Beck, 2008), p. 897. 241 For a critical evaluation of the Rome Statute’s defense regime, especially regarding the defense of mistake of fact in article 32 Rome Statute, see Eser, ‘Mental Elements’, p. 934–946. 242 Schabas, An Introduction to the International Criminal Court, p. 113. On willfulness as the mental element for medical war crimes, see Dörmann, Elements of War Crimes, p. 233; 239. 243 u.s. Army Court of Military Review, United States v. William L. Calley, Opinion and Action on Petition for New Trial [1973], cmr, 46, p. 1179.

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In the aftermath of the Third Reich, many physicians used the excuse in combination with the defense of superior orders. They argued that the acts they were charged with had been lawful under the law applicable at that time, such as Hitler’s ‘euthanasia-order’244 which they, at that point in time, believed to be lawful.245 The Landesgericht Frankfurt extensively discussed the possible defenses for the actions of the personnel and came to the conclusion, regarding the defense based on Hitler’s ‘euthanasia order’, that ‘[e]in Gesetz mit so elementar unsittlichem Inhalt ist immer und unter allen Umständen wegen dieses Inhalts rechtsungültig’.246 A further defense based on mistake of fact was that the medical and scientific experiments had been a substitute for the punishment of convicts.247 Physicians in the Doctors’ Trial argued that convicted criminals were spared punishment if they agreed to participate in ‘medical’ experiments248 or that the research subjects were ‘condemned to death and in any event marked for legal execution’.249 The argument was rightfully rejected in the judgment.250 The research subjects 244 Though dated 1 September 1939, the order is believed to have been signed by Hitler in October 1939. Klee, ‘Euthanasie’ im ns-Staat, p. 100–101, available online at www.ns-archiv .de/medizin/euthanasie/faksimile/. 245 For example in the Frankfurt Euthanasia Trial, see Rüter-Ehlermann & Rüter (eds), Justiz und ns-Verbrechen, Lfd. Nr. 017, p. 347. And in the Dresden Euthanasia Trial, see Rüter, ddr-Justiz, Vol. XII, Lfd. Nr. 1760a, p. 501, 507. 246 This statement is taken from the judgment in another ‘euthanasia’ case by the Landesgericht Frankfurt, Rüter-Ehlermann & Rüter (eds), Justiz und ns-Verbrechen, Lfd. Nr. 014, p. 254. In the Frankfurt Euthanasia Trial, the Court relied on concepts emanating from natural law to explain the inherently unlawful nature of certain laws. RüterEhlermann & Rüter (eds), Justiz und ns-Verbrechen, Lfd. Nr. 017, p. 348. This, naturally, echoes the Radbruch Formula which entailed that if ‘der Widerspruch des positiven Gesetzes zur Gerechtigkeit ein so unerträgliches Maß erreicht’ the respective law as ‘unrichtiges Recht’ would have to give way to justice. Gustav Radbruch, ‘Gesetzliches Unrecht und übergesetzliches Recht’, Süddeutsche Juristen-Zeitung, Vol. 1 (1946). 247 This defense relates to the defense of consent, see below. 248 For example as argued by Ruff, Romberg and Weltz. u.s. Military Tribunal, The Doctors’ Trial, Judgment, Vol II, p. 273–274. 249 As argued, among others, by Gebhardt to excuse the sulfanilamide experiments. Ibid. Vol. II, p. 224; 227. 250 Ibid. Vol. II, p. 44–49. Nill-Theobald wrongly claims that Romburg, Ruff and Weltz were acquitted based on the mistaken belief that their research subjects were convicted criminals. (Christiane Nill-Theobald, ‘Defences’ bei Kriegsverbrechen am Beispiel Deutschlands und der usa (Edition Iuscrim, 1998), p. 342). The reason for acquittal was however insufficient proof. u.s. Military Tribunal, The Doctors’ Trial, Judgment, Vol. II, p. 275–276. Equally, see u.s. Military Tribunal, The Milch Trial, p. 837.

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were not criminals and even if they had been, no person would ever deserve being treated as the research subjects were. Here, the mens rea could not be denied and there could not have been an honest and mistaken belief in the lawfulness of such actions. To honestly consider unwarranted medical procedures and experiments, that every sane person would consider inhuman, to be lawful would never succeed as a mistake of fact defense with regard to medical war crimes. 3 Necessity and Duress The defenses of necessity and duress are closely connected, and often confused with each other or with other defenses.251 Both rely on the fact that the defendant had ‘no viable moral choice’252 to act because of compelling overall circumstances (necessity) or compulsion emanating from another person (duress). Duress, requiring the threat of severe and irreparable harm to life and limb, is narrower than necessity.253 In the current international criminal doctrine, duress as a defense to war crimes is highly contested.254 It is agreed that customary law is lacking,255 but the consequences drawn from this conclusion for the defense of duress, especially cases involving the death of the victim(s), can be quite different.256 Pursuant to article 31 (1)(d) Rome Statute necessity 251 Albin Eser, ‘Article 31: Grounds for excluding Criminal Responsibility’, in Otto Triffterer (ed), Commentary on the Rome Statute of the International Criminal Court (C.H. Beck, 2008), para. 49, p. 884. 252 Schabas, An Introduction to the International Criminal Court, p. 113. 253 International Criminal Tribunal for the former Yugoslavia, Prosecutor v. Dražen Erdemović, Appeals Chamber Judgment [1997], Dissenting Opinion Judge Cassese, para. 50. 254 The icty Appeals Chamber did not allow the defense of duress to be used as a complete defense against a charge of murder as a war crime. Ibid. Joint Separate Opinion of Judges McDonald and Vorah, regarded as the majority opinion, para. 75. Critical appraisals of the judgment can be found in Dissenting Opinions of Judges Stephen (para. 66) and Cassese, para. 18; in literature Jan Christoph Nemitz & Steffen Wirth, ‘Legal Aspects of the Appeals Decision in the Erdemovic-case: the Plea of Guilty and Duress in International Humanitarian Law’, 11 Humanitäres Völkerrecht, 43 (1998); Stephen C. Newman, ‘Duress as a Defense to War Crimes and Crimes against Humanity – Prosecutor v. Dražen Erdemović’, 166 Military Law Review, 158 (2000), p. 164. 255 icty Erdemović Appeals Judgment, Vorah & McDonald, para. 55; Stephen, para. 24 and Cassese para. 40. 256 This ambivalence was demonstrated by the icty Erdemović Judgment, see fn. 254. According to Dinstein’s view on the Erdemović judgment, ‘there is no excuse for the deprivation of the victim’s life only because the accused felt he had to act in order to save his own life’. Yoram Dinstein, ‘Defences’, in Gabrielle Kirk McDonald & Olivia SwaakGoldman (eds), Substantive and Procedural Aspects of International Criminal Law – Commentary (Kluwer Law International, 2000), p. 375.

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and duress, conflated into a single defense, are admissible defenses before the icc. A successful defense has to meet three criteria: an imminent threat, a necessary and reasonable reaction,257 and a subjective ‘lesser-evil balancing’.258 In order to justify an action, the threat must have been ‘imminent, real and inevitable’.259 The defense of duress is often combined with a defense of superior orders as a superior order can cause a circumstance under which the perpetrator was unable to make a moral choice. Disobedience to a military order incurs consequences in most military criminal legislations.260 For the defense to succeed the stricter duress prerequisites have to be met.261 The defense of duress would only lead to an acquittal if the situation that caused a physician to commit a medical war crime fulfilled the criteria above. The physician accused of a medical grave breach would have to prove that his life was threatened by another, he had not voluntarily placed himself in the situation of duress, and had complied to avert (greater) danger. For example, he did not mean to harm the patient but was forced due to compulsion by another person or due to an imminent threat.262 Looking at possible medical war crimes, involvement in torture or ill-treatment, unwarranted medical treatments and experiments, and the denial of medical care, it is not very probable that a physician could argue that he could not have refused to carry them out and that his life would have been in immediate danger. These are procedures that require preparation and time – time that a physician could use to re-think his actions or to object. Only when his life was directly threatened in the very moment of treatment, for example by a gun pointed at the physician, would the defense of duress be plausible. The post World War II courts addressing medical war crimes denied the defense of duress because none of the doctors

257 The proportionality requirement was thus eased. Eser, ‘Article 31’, p. 886–887, para. 59. 258 For a useful analysis, consult Kai Ambos, ‘Other Grounds for excluding Criminal Responsibility’, in Antonio Cassese, et al. (eds), The Rome Statute of the International Criminal Court: A Commentary (Oxford University Press, 2002), p. 1035–1047. 259 u.s. Military Tribunal, The Einsatzgruppen Trial, p. 480. In casu, the duress defense was tied into the defense of superior orders. 260 For example articles 89, 127, 130 of the Wet Militair Strafrecht (Dutch Military Criminal Code) unless the order concerned an ‘unlawful act’ (article 131). Equally, for Germany consult article 11 Soldatengesetz (Law concerning Soldiers), article 144 of the German Military Manual and § 5 Wehrstrafgestz (Military Law). 261 Peter Rowe, ‘Duress as a Defence to War Crimes after Erdemović: A Laboratory for a Permanent Court?’, 1 Yearbook of International Humanitarian Law, 210 (1998), p. 216. 262 Schabas, An Introduction to the International Criminal Court, p. 113.

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were ever actually punished (for example by internment in a concentration camp or execution) for refusing to participate in the (medical) war crimes.263 Several physicians in the post World War II trials reverted to a defense based on the ‘necessity of the state’. Because Germany was losing innumerable soldiers involved in ‘a life and death struggle’ on the battlefield, the situation called for drastic measures. The effects of certain weapons had to be studied and this required experimentation on human subjects. The individual interests of the ‘convicted inmates’ were evaluated as inferior to the public interest of the nation.264 International criminal law then and now does not recognize the defense of state necessity.265 Necessity is a threat ‘to life and limb emanating from objective circumstances’266 which is not the case when the state is threatened. 4 Consent of the Patient A defense that was used by several physicians in the trials after World War II was that of consent. They argued that because the research subject or patient (or if incapable her family) had consented to the ‘medical’ procedures or experiments, the physician should not be found guilty of carrying them out. All courts and tribunals rightfully rejected this defense.267 Acceptance of it would have created a dangerous precedent, not to mention the difficulty of establishing whether a person can ever consent to unwarranted medical procedures and at what point consent is to be considered voluntary and informed.268 Here, international case law and literature on consent to sexual crimes can be helpful. That coercive circumstances negate consent was established by the ictr. It held that genuine consent cannot be given when the act was ‘committed by force, or by threat of force or coercion, such as that caused by fear of violence, duress, detention, psychological oppression or abuse of power’.269 263 Concerning the Frankfurt Auschwitz Trial, Sagel-Grande, et al., Justiz und ns-VerbrechenLfd. Nr. 595, p. 617–618; Concerning the Frankfurt Euthanasia Trial, Rüter-Ehlermann & Rüter (eds), Justiz und ns-Verbrechen, Lfd. Nr. 017, Judgment, p. 354. 264 u.s. Military Tribunal, The Doctors’ Trial, Vol. II, p. 11; 29. 265 Eser, ‘Defences’, p. 262. However, the argument is still raised to justify medical involvement in ‘interrogational torture’, especially when faced with terrorist threats. For example, Gross, Bioethics and Armed Conflict . 266 Cassese, International Criminal Law, p. 281. 267 u.s. Military Tribunal, The Milch Trial, Judgment, p. 776. 268 Eser, ‘Defences’, p. 266–267. 269 See International Criminal Tribunal for Rwanda, Prosecutor v. Jean-Paul Akayesu, Trial Chamber Judgment [1998], para. 688, the Elements of Crimes to article 8 (2)(b)(xxii) Rome Statute and the analysis by Dörmann, Elements of War Crimes, p. 325. It could be

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This conclusion is in line with article 11 ap I and article 8 (2)(b)(x) Rome Statute. Article 11 (2) ap I determines that the prohibited procedures are not justified even when the person to be subjected to the procedure has consented. This principle which applies to ‘all medical acts which are not performed in the interests of the person undergoing the treatment’ was expressly included to ‘prevent any possibility of justification on such grounds’.270 The same is true for the Rome Statute. The Elements of Crime concisely state that ‘[c]onsent is not a defence to this crime’.271 5 Evaluation Due to the fact that medical war crimes are mostly inherently inhuman and manifestly unlawful, valid and justified defenses for medical war crimes are rare. It is imaginable that a physician charged with a medical war crime claims that his actions, though seemingly unlawful, were medically sound and necessitated. The physician would have to prove that she considered the procedure ethically, medically and legally sound. This could then be excused as a mistake of fact. So far, such a defense has not been raised in the cases discussed and is also highly unlikely: offenses that meet the criteria for medical war crimes consist of behavior that would probably equally violate medical ethics and would classify as manifestly unlawful. In combination with the explicit grant of disobedience in article 16 ap I, it is unlikely that a traditional defense will ever succeed concerning medical war crimes. E Conclusion The concept of medical international crimes was used and developed by the courts in the aftermath of World War II, after the atrocities committed by physicians in the name of science and medicine, the killing of life ‘unworthy of

argued, as is the case with the crime of rape, that ‘[t]he manifestly coercive circumstances that exist in all armed conflict situations establish a presumption of non-consent and negate the need for the prosecution to establish a lack of consent as an element of the crime’. Special Rapporteur of the Working Group on Contemporary Forms of Slavery, Final Report on Systematic Rape, Sexual Slavery and Slavery-like Practices during Armed Conflict, Doc. No. E/CN.4/Sub.2/1998/13, para. 25. 270 And ‘to prevent pressure being improperly exerted on the persons concerned here to obtain their consent’. Sandoz, et al. (eds), Commentary to the Additional Protocols, para. 484. 271 icc Elements of Crimes, p. 25.

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living’, and torturous, non-consensual and involuntary experiments had come to light. Physicians were specifically and individually prosecuted for these heinous crimes. It would have been insightful had the Nuernberg Military Tribunal explicated what makes these crimes different from other crimes because medical crimes are indeed different from other crimes: the accused are held to higher standards than regular perpetrators and often ethical codes, such as the Hippocratic Oath, or principles, such as the principle of autonomy, play a role. Never defined by courts or tribunals, it can be inferred from the sparse case law and implementations in international criminal legislation that war crimes by physicians committed in a medical context represent a separate category besides regular international crimes and even besides war crimes. These crimes, usually prosecuted as crimes against humanity when committed against physicians’ own people, consist of willful acts or omissions that seriously endanger the mental or physical health or integrity of a protected person who is in the power of a party to the armed conflict due to the armed conflict committed by a physician in her professional work. Such crimes are always violations of medical ethics and, vice versa, a violation of medical ethics may also be an indicator for such a crime. Often, the lack of consent of the person concerned is an indicator as to the lack of justification for a procedure.272 Yet this book does not propose to introduce medical war crimes as a separate or new category of crimes. As envisaged by Additional Protocol I, medical crimes should be prosecuted as war crimes. In criminalizing unwarranted mutilations and non-consensual medical and scientific experiments committed in both international and non-international armed conflicts, the Rome Statute made certain medical war crimes prosecutable. Unfortunately, it unnecessarily limited the scope of protection to protected persons of the adversary (in the case of an international armed conflict) and to ‘persons who are in the power of another party to the conflict’ (in the case of a non-international armed conflict). This corresponds to article 11 (4) ap I, but not to the broad scope of protection offered by article 11 (1) ap I which could have been adopted instead. Moreover, the Rome Statute regrettably limited the prohibitions to mutilations and experiments.273 It could have provided a basis for prosecutions for all unwarranted medical procedures or denials thereof as conducted by physicians on all persons deprived of their liberty during an armed conflict.

272 Nevertheless, consent can never be used as an excuse for an unwarranted medical procedure. 273 Bothe, ‘War Crimes’, p. 413.

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The icrc’s Report on The Treatment of Fourteen ‘High-Value Detainees’ in cia Custody raises the suspicion that the example of Ntakirutimana is not the only modern example of physicians involved in acts that could amount to medical war crimes. The small number of prosecutions and the silence of most courts on the specifically medical aspects of such crimes leads to the discouraging conclusion that there is de facto impunity for medical war crimes. Successful prosecutions of physicians who have committed war crimes in their medical capacity depend on a comprehensive implementation of article 11 (4) ap I in national and international criminal law and an analogous criminalization of medical war crimes committed during all armed conflicts. Only when all aspects of medical war crimes are criminalized, can they also be prosecuted. A thorough criminalization could then also provide a basis for the prosecution of physicians involved in the ill-treatment of detainees during interrogations and detention in general. In detention facilities discussed in Chapter 1 physicians were involved in a variety of tasks: monitoring the health of detainees prior to, during, and after interrogations, providing medical clearance for coercive interrogations, force-feeding detainees, and participating in the development of interrogational tactics, at times with the use of medical records. The icrc has labeled the medical participation in the treatment of cia detainees a ‘gross breach of medical ethics and, in some cases, […] participation in torture and/or cruel, inhuman or degrading treatment’.274 It would be a grave breach to subject a protected person, whether or not he is a prisoner of war, to torture or inhuman treatment during coercive interrogations.275 Looking at the various reports of detention, e.g. Al Qahtani’s log, one could classify certain elements of detainee’s treatment as inhuman, at times torturous which was affirmed by the icrc and un Special Rapporteurs.276 The medical supervision of ill-treatment and the medical examination to assess fitness for interrogation would furthermore meet the definition of medical war crime because both acts were committed willfully and seriously endangered the mental and physical health of the detainees of the adversary being coercively interrogated and even tortured, and the perpetrators had been physicians, psychiatrists who carried 274 ICRC, Report on the Treatment of Fourteen “High-Value Detainees” in cia Custody, p. 26–27. 275 Coercive interrogations of prisoners of war are explicitly prohibited in article 17 gc III. Ill-treatment is prohibited in common article 3 gcs which prohibits torture, inhuman treatment, and outrages on the personal dignity of persons hors de combat. For a discussion on the prohibition of torture and cruel, inhuman, and degrading treatment in international human rights law, see Chapter 5. 276 ICRC, Report on the Treatment of Fourteen “High-Value Detainees” in cia Custody, p. 26; Leila Zerrougui, et al., ‘Report on the Situation of Detainees at Guantánamo Bay’.

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out medical duties.277 The fact that most acts can also be classified as violations of medical ethics contributes to this finding. Force-feeding of a detained adversary by a physician could be considered a medical war crime if the feeding seriously endangers the mental or physical health or integrity of that person. As it is always degrading and inhuman, it could also be prosecuted as such. Whenever possible, physicians should have objected against involvement in such unethical and unlawful practices because of the oath they have taken, yet also in light of the fact that they were thus committing or aiding and abetting violations of international humanitarian law. The signing of death certificates for false reasons or not reporting violations of international humanitarian law or human rights law should be classified as mere violations of medical ethics.278 Deplorable as such acts may be, they would not meet the requirements of medical war crimes because they do not directly seriously endanger the health or integrity of a person.279 Notably, the non-governmental organization Physicians for Human Rights (phr) claims that medical personnel not only monitored interrogations but that the collection and use of data on ‘waterboarding’, sleep deprivation, and the cumulative use of interrogation methods on the level of pain endurance of detainees meets the definition of human subject experiments. They concentrated on the ‘enhanced interrogation techniques’ used by the cia on ‘high-value detainees’. phr suggests that such unlawful experimentation makes the physicians who monitored such techniques prosecutable for war crimes or crimes against humanity.280 Yet, despite such and other claims, there have been hardly any consequences for medical personnel involved in the ill-treatment and torture in u.s. detention facilities.281 The 2005 Surgeon General report commissioned to investigate 277 The involvement of physicians in interrogations was discussed extensively in Chapter 1. See also ICRC, Report on the Treatment of Fourteen “High-Value Detainees” in cia Custody, p. 21–23. This does not include the usual psychological assessment of detained persons by psychiatrists or psychologists. 278 This is alleged by Physicians for Human Rights claiming that until there is a thorough, impartial investigation into the alleged torture and ill-treatment in Guantánamo Bay, ‘the ethical integrity of medical and other healing professions remains compromised’. See PHR, ‘Neglect of Medical Evidence of Torture in Guantánamo Bay: A Case Series’, p. 4. 279 Although, by not reporting violations, a physician may perpetuate the abuse and thus endanger the health of the persons subjected to such treatment. Whether this would meet the criteria for a medical war crime would depend on the exact circumstances. 280 See PHR, ‘phr Report: Experiments in Torture’. 281 ‘In contrast, the government doctors and psychologists who participated in and authorized the torture of detainees have escaped discipline, accountability or even internal investigation’. Rubenstein & Xenakis, ‘Doctors without Morals’.

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alleged medical cooperation in ill-treatment in u.s. detention facilities did not find any misbehavior.282 The lack of accountability, whether through disciplinary actions by medical associations,283 through criminal prosecution, through court martial, or merely through internal military investigations, is perplexing.284 It will have to be seen whether the newest revelations concerning physicians’ involvement in cia interrogation in the u.s. Senate Committee Report will lead to accountability.285 Because the definition of medical war crimes still lacks some specificity, the essential elements of medical crimes should be further developed to see exactly what role medical ethics play in such crimes, when violations of medical ethics may constitute war crimes, and what role the consent of the patient

282 For example, the Report claimed that only in five occasions was medical personnel involved in interrogations and that no medical personnel with Guantánamo Bay experience questioned had provided medical care during interrogations and been aware of or suspected detainee abuse. See ‘u.s. Surgeon General Report 2005’. 283 There are exceptions. The Texas State Board of Examiners of Psychologists, for example, sought the withdrawal of Dr. James Mitchell’s license for unethical behavior, more precisely for violating the standards demanded by the Psychologists’ Licensing Act and the Board’s Rules of Practice. Mitchell had assisted the cia in the interrogation of so-called ‘high-value detainees’ abroad. Andrew Welsh-Huggins, ‘Psychology Group backs cia Detainee Abuse Claim’, Associated Press, (10 July 2010). The Board of Examiners dismissed the claim in February 2011 for lack of proof. The actions Mitchell was allegedly responsible for are described in detail in the interview with Abu Zubaydah, see ICRC, Report on the Treatment of Fourteen “High-Value Detainees” in cia Custody, p. 28–31. 284 After a licensing complaint for violations of professional standards against psychologist Major John Leso who was part of the bcst responsible for the interrogation of Al Qahtani was dismissed by the New York Office of Professional Discipline (opd), a petition was made before the Supreme Court of New York ‘to order the opd to perform its duty to investigate the complaint against Dr. Leso, arguing that the opd erred in its interpretation of the law and noting that the opd’s duty to investigate allegations of professional misconduct is mandatory under both New York law and the agency’s own rules and regulations’. The petition was denied. Supreme Court of the State of New York, Steven Reisner v. Louis Catone, Director of the New York Office of Professional Discipline, New York State Department of Education; The Office of Professional Discipline of the New York State Department of Education; and the New York State Department of Education, Decision on the Respondents’ Cross-Motion to dismiss the verified Petition [2011]. Major Leso is referred to in the interrogation blog twice as ‘Maj L’. Interrogation Log Detainee 063, p. 1; 12. 285 See Greg Miller, Adam Goldman, & Ellen Nakashima, ‘cia misled on interrogation program, Senate report says’, The Washington Post (1 April 2014); Greg Miller & Adam Goldman, ‘Senate panel votes to release cia interrogation report’, The Washington Post (3 April 2014).

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can, does or should play. International courts could play an essential role in this respect to more clearly define, clarify, and specify these aspects to ensure that medical crimes are adequately addressed and legal specificity is ensured.286 States can contribute by criminalizing and thereby defining medical war crimes in national criminal codes. Physicians who willfully commit war crimes while practicing medicine, wearing their medical attire, and seemingly adhering to medical ethics, including the principle of beneficence and non-maleficence, should not be granted impunity. 286 The role of international courts in this respect is described in Cassese, International Criminal Law, p. 42.

chapter 4

Customary Status of International Humanitarian Law When considering the legal framework of the role of physicians in armed conflicts, one cannot only examine treaty law. Even though treaties in international humanitarian law are widely accepted, states may also be bound by customary international law. Customary international law, a separate source of international law pursuant to article 38 (1)(b) Statute of the International Court of Justice (icj Statute),1 generally binds all states. If customary rules emanate from a treaty and equal the treaty provisions, they can also bind states not members to the treaty. De facto, customary rules are at times even better respected than (especially unimplemented) treaty norms.2 It is thus crucial to examine whether the provisions concerning protection against unwarranted medical procedures, articles 11 ap I and 5 (2)(e) ap II, and concerning the protection of medical duties, articles 16 ap I and 10 ap II, are accepted as customary rules of international law. If they are, this furthers their applicability especially in states that have not ratified the Additional Protocols or for non-state actors.3 It is furthermore relevant to examine whether their customary status makes them applicable in both international and non-international armed conflicts,4 particularly because the prohibition of unwarranted medical procedures is much more elaborate for international armed conflicts. For the relevant provisions in the Geneva Conventions of 1949 concerning the protection of medical personnel and the treatment of the wounded and sick in armed conflicts, this question is of lesser importance due to their universal acceptance. 1 Statute of the International Court of Justice of 26 June 1945, 77 u.n.t.s. (1945) (hereafter icj Statute). 2 Theodor Meron, ‘The Geneva Conventions as Customary Law’, 81 American Journal of International Law, 348 (1987), p. 349. 3 Non-state actors includes both insurgents or terrorists as well as non-governmental organizations, e.g. Médecins sans frontiers (msf), or inter-governmental organizations, e.g. the United Nations. Theodor Meron, ‘The Continuing Role of Custom in the Formation of International Humanitarian Law’, 90 American Journal of International Law, 238 (1996), p. 246. 4 See also Henckaerts, et al. (eds), icrc Study Customary International Humanitarian Law Vol. 1: Rules, p. xxviii; James P. Benoit, ‘Mistreatment of the Wounded, Sick and Shipwrecked by the icrc Study on Customary International Humanitarian Law’, 11 Yearbook of International Humanitarian Law, 175 (2008), p. 189.

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In discussing the status of the relevant provisions, this Chapter will dedicate a brief examination to the customary status of the Additional Protocols. This provides a basis for the subsequent assessment of the state practice as well as the relevant opinio juris of the previously discussed provisions of international humanitarian law, namely articles 11 ap I and 5 (2)(e) ap II and articles 16 ap I and 10 ap II. The icrc Study of Customary International Humanitarian Law will be discussed in comparison to present findings.5 The examination will consider whether the open term medical ethics is possibly specified in customary international humanitarian law. A

Customary International Humanitarian Law

International customary law has been explicitly defined in article 38 (1)(b) icj Statute ‘as evidence of a general practice accepted as law’. In order to obtain the status of customary international law a rule has to be supported by extensive and virtually uniform state practice (‘evidence of a general practice’)6 and by opinio juris sive necessitatis (‘accepted as law’).7 The opinio juris requirement entails that a state should be acting out of a sense of legal obligation. Only if these two elements are sufficiently satisfied, can a rule be considered as customary international law and, thus, legally binding on all states, including those that have not explicitly consented to it. Generally, the Geneva Conventions are considered part of customary international law. This is partly because of their wide acceptance, partly due to the fact that the provisions are considered morally indispensable.8 The question of 5 Henckaerts, et al. (eds), icrc Study Customary International Humanitarian Law Vol. 1: Rules. 6 International Court of Justice, Fisheries (United Kingdom v. Norway), Judgment [1951], icj Reports, 116, p. 128. 7 In its North Sea Continental Shelf judgment, the icj determined that for the establishment of customary international law ‘state practice, including that of States whose interest are specially affected, should have been both extensive and virtually uniform in the sense of the provision involved and should moreover have occurred in such a way as to show a general recognition that a rule of law or legal obligation is involved’. International Court of Justice, North Sea Continental Shelf Cases (Federal Republic of Germany v. Denmark; Federal Republic of Germany v. the Netherlands) [1969], icj Reports, 3, para. 74. 8 Kalshoven & Zegveld, Constraints on the Waging of War, p. 4 and 82; Roberts & Guelff (eds), Documents on the Laws of War, p. 196 and 420. In United States of America v. Wilhelm von Leeb et al., the Nuernberg Military Tribunal (nmt) under Control Council Law No. 10 plainly established that certain articles of the Geneva Convention Relative to the Treatment of Prisoners of War of 1929 had been rules of customary international law. ‘Most of the provisions of the

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the status of treaties, such as the Additional Protocols of 1977, in relation to customary international law has been the topic of an abundant legal discourse9 and several icj decisions.10 1 The Customary Status of the Additional Protocols of 1977 Considering their basis in the most fundamental principle of international humanitarian law, one would assume that all treaty provisions in the Additional Protocols relating to the protection of the wounded and sick and medical personnel were part of customary international law and binding on all states, not only state parties.11 Yet the assumption requires further substantiation and exploration regarding articles 11 ap I and 5 (2)(e) ap II and articles 16 of ap I and 10 ap II. They are not mere re-statements of the principle of humanity. The Geneva Conventions and Additional Protocols cannot simply be called declaratory of customary international humanitarian law in their entirety.12 […] Geneva Conventions, considered in substance, are clearly an expression of the accepted views of civilized nations’. nmt, us v. von Leeb et al. p. 535. It did not, however, explain the reasons for coming to this conclusion or give a definition of customary international law.  9 Michael Byers, Custom, Power and the Power of Rules – International Relations and Customary International Law, 1st (Cambridge University Press, 1999); Maurice H. Mendelsohn, ‘The Formation of Customary International Law’, in Académie de Droit International (ed), Recueil des Cours – Collected Courses of The Hague Academy of International Law 1998 (Martinus Nijhoff Publishers, 1999); Richard Reeve Baxter, ‘Treaties and Custom’, 129 Recueil des cours/Académie de Droit International de La Haye, 27 (1970); Anthony D’Amato, ‘Trashing Customary International Law’, 81 American Journal of International Law, 101 (1987); Karol Wolfke, ‘Treaties and Custom: Aspects of Interrelation’, in Jan Klabbers & René Lefeber (eds), Essays on the Law of Treaties – A Collection in Honour of Bert Vierdag (Martinus Nijhoff Publishers, 1998); Michael Akehurst, ‘Custom as a Source of International Law’, in Martti Koskenniemi (ed), Sources of International Law (Ashgate Dartmouth, 2000); Yoram Dinstein, ‘The Interaction between Customary International Law and Treaties’, in Hague Academy of International Law (ed), Recueil des Cours Collected Courses of the Hague Academy of International Law 2006 (Martinus Nijhoff Publishers, 2007). 10 See icj, Nicaragua Case; icj, North Sea Continental Shelf Cases; and International Court of Justice, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion [2004], icj Reports, 2004. 11 This line of reasoning was accepted for common article 3 to the Geneva Conventions. icj, Nicaragua Case, para. 218; icty Čelebići Trial Judgment, para. 296–306; ictr Akayesu Trial Judgment, para. 608; icty Tadić Appeal Judgment, para. 609; International Criminal Tribunal for the former Yugoslavia, Prosecutor v. Anto Furundžija, Trial Chamber Judgment [1998], para. 138. 12 A treaty can be considered declaratory of customary international law, if it entails a statement to that effect. See for example the reference to the ‘codification […] of the law of

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None of the provisions explicitly declare to codify customary international law, nor can their declaratory character be inferred from the travaux préparatoires.13 The Geneva Conventions I – III in their perambulatory clauses explicitly state that their ‘purpose’ is the revision of the existing treaties of international humanitarian law.14 This is a clear referral to treaty law, not custom. Geneva Convention IV states its purpose is the establishment of protection for civilians in international armed conflicts – a novelty. The preamble to Additional Protocol I uses similar language where it states that Additional Protocol I is necessary ‘to reaffirm and develop the provisions protecting the victims of armed conflicts and to supplement measures intended to reinforce their application’. Additional Protocol I thus also builds on the previous Conventions, expands them and, in part, provides new rules. Article 1 (2) ap I, however, states that ‘the principles of international law derived from established custom’ should govern the protection of the victims of war in all those cases that are not covered by Additional Protocol I or other international agreements.15 This reference acknowledges that there are customary rules besides the Convention and Protocol provisions. Except recalling the basic protection provided by common article 3, the preamble of Additional Protocol II is silent on its basis or purpose. Nevertheless, article 1 (1) ap II clearly states that the Protocol ‘develops and supplements’ common article 3 to the Geneva Conventions. If the Geneva Conventions and Additional Protocols are not declaratory in their entirety, it needs to be investigated whether the relevant rules are

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treaties’ in the perambulatory clauses of the Vienna Convention on the Law of Treaties of 1969 (Vienna Convention on the Law of Treaties of 23 May 1969, 1155 u.n.t.s. 331). A treaty can lose its declaratory character if general custom outside the treaty changes significantly. Consequently, some take a cautious approach to declaratory treaties due to the fluidity and changeability of customary international law. See Dinstein, ‘The Interaction between Customary International Law and Treaties’, p. 346; 351–352; Akehurst, ‘Custom as  a Source of International Law’, p. 295; Wolfke, ‘Treaties and Custom: Aspects of Interrelation’, p. 35. Sandoz, et al. (eds), Commentary to the Additional Protocols, General Introduction. Geneva Conventions I refers to the Geneva Convention for the Relief of the Wounded and Sick in Armies in the Field of 1929, Geneva Convention II refers to the Xth Hague Convention of 1907 for the Adaptation to Maritime Warfare of the Principles of the Geneva Convention of 1906, Geneva Convention III refers to the Geneva Convention Relative to the Treatment of Prisoners of War of 1929. This is a restatement of the so-called Martens Clause which provides residual protection in cases not covered by treaty law on the basis of custom, principles of humanity and dictates of public conscience. For a discussion, see Chapter 7.

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customary for other reasons, for example by being constitutive of customary international law.16 First of all, their evolutionary development will be briefly analyzed. It will then be considered whether the provisions are supported by the required state practice,17 beyond mere ratification, and opinio juris,18 in particular by states not party to the Additional Protocols to ascertain their possible customary status.19 The Evolution of the Provisions as Evidence of their Customary Character Some of the provisions relating to the medical treatment of those in need of medical care have an extensive history that might affect their customary status. Proof of the customary character of articles 11 and 16 ap I may be their evolution over time from previous versions of the Geneva Conventions.20 Article 11 ap I has greatly expanded the protection of persons in the power of an adverse party or deprived of liberty.21 It is partly a restatement of known principles of protection and respect for the victims of war and their humane treatment. Previously, the only requirement for medical treatment was that the wounded and sick not be discriminated against and that mutilations and experiments were prohibited. Now, article 11 ap I not only prohibits experimentation and mutilations, but additionally provides a new and extended protection that introduces specific innovative requirements for all medical procedures, such as adherence to generally accepted medical standards and consent for surgical operations. It also introduced medical grave breaches. The scope of persons protected is also new: all persons in the power of a party to the conflict or all those in any way deprived of their liberty. Hence, the protection against unwarranted medical procedures is so detailed and specific that it

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In the case of a constitutive treaty, the treaty contains innovative features that codify lex ferenda. Dinstein, ‘The Interaction between Customary International Law and Treaties’, p. 348. See also, more generally, Christopher Greenwood, ‘Customary Law Status of the 1977 Additional Protocols’, in Astrid J.M. Delissen & Gerard J. Tanja (eds), Humanitarian Law of Armed Conflict – Challenges Ahead – Essays in Honour of Frits Kalshoven (Martinus Nijhoff Publishers, 1991), p. 113; Meron, ‘The Geneva Conventions as Customary Law’, p. 358. 17 Together with further evidence, a constitutive treaty can be seen as state practice and an affirmation by states of certain rules of international law. Baxter, ‘Treaties and Custom’, p. 43 and 52; D’Amato, ‘Trashing Customary International Law’, p. 103. 18 If states believe that rules from such treaties also entail a legal obligation beyond that emanating from the treaty, the rules can become part of customary international law. 19 Byers, Custom, Power and the Power of Rules, p. 345. 20 Meron, ‘The Geneva Conventions as Customary Law’, p. 353 and 364. 21 Sandoz, et al. (eds), Commentary to the Additional Protocols, para. 455.

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cannot be considered to have evolved over the course of the different Geneva Conventions. Its customary status cannot follow from the provision’s evolution in international humanitarian law. The protection of military medical personnel, as elaborated in article 16 ap I, was first codified in article 79 of the Lieber Code and article 2 Geneva Convention of 1864, then articles 9 and 10 Geneva Convention of 1906, articles 9 and 10 Geneva Convention of 1929, and lastly articles 24, 25 and 28 gc I, articles 36 and 37 gc II, and articles 20 and 56 gc IV for civilian medical personnel followed. Yet article 16 ap I should rather be seen as a reaffirmation of article 5 Geneva Convention of 1864 and a supplement to article 18 (3) gc I.22 Similar to its predecessors, it establishes the protection of those aiding the wounded and sick, yet it concentrates on medical personnel. Because it goes farther than the previous provisions in providing protection not only against attacks but also against punishment, and determining that physicians may reject unlawful or unethical orders, it should not be taken as a pure restatement of old principles. It needs further affirmation to be considered a customary rule of international humanitarian law. Before 1977, only common article 3 gcs addressed non-international conflicts. It is generally considered to be customary international law.23 Although article 5 (2)(e) ap II could be seen as an expansion of the principle of humane treatment and the prohibition of violence to life and person in common article 3 gcs, this would be a far stretch. Article 5 (2)(e) ap II provides for much more, namely a prohibition of unwarranted medical procedures on persons deprived of their liberty. Article 10 ap II is an innovation in non-international armed conflicts because the protection of medical personnel was not yet regulated in common article 3 gcs. Neither provision is thus a concrete restatement of old principles or provisions due to the relatively recent development of rules in non-international armed conflicts in Additional Protocol II. Not having developed directly out of provisions in the Geneva Conventions, the relevant state practice and opinio juris concerning the relevant provisions regulating medical treatment in armed conflicts will need to be scrutinized. 3 State Practice The requisite state practice can partly be found in the ratification of Additional Protocols, in national legislation concerning the application of the relevant provisions, as well as to some extent in decisions by international judiciary organs, and resolutions by international organizations, and limited battlefield 22 23

Ibid. para. 641. icty Čelebići Trial Judgment, para. 296–306.

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practice.24 An analysis of the different sources should provide an overview of the relevant state practice though an extensive in-depth analysis would exceed the limits of this book. a Ratification The number of states that have ratified the Geneva Conventions – at the time of writing 19525 – demonstrates an overwhelming, universal state practice.26 Considering the universal acceptance of the Geneva Conventions, an examination of the customary character of its provisions would be purely academic.27 Arguably, universal acceptance also proves the requisite opinio juris.28 Additional Protocol I regarding international armed conflicts has been ratified by 173 states at the time of writing.29 Additional Protocol II relating to noninternational armed conflicts has been ratified by a smaller number of states, at the time of writing 167.30 States not party to the Protocols include India, Sri Lanka, Pakistan, Eritrea, Sudan, Somalia, Israel, Iran, Thailand, Vietnam, and the United States of America.31 Yet, the mere number of ratifications of the 24

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The value of actions, statements and documents by the icrc will be considered as well. Two disputed sources of evidence for state practice are actual battlefield practice during armed conflicts and national military manuals. The latter as well as official statements by states will be discussed as opinio juris even though it can be seen as evidence of either. For a list of state parties, consult www.cicr.org/applic/ihl/ihl.nsf/vwTreaties1949.xsp. In comparison: the United Nations has 193 member states, see www.un.org/en/members/ index.shtml. The two states that are parties to the Geneva Conventions but not the United Nations are the Holy See and the Cook Islands. In a letter of 21 June 1989, Palestine declared its adherence to the Geneva Conventions and Additional Protocol. However, it is not a state party. Henckaerts, ‘The Development of International Humanitarian Law and the Continued Relevance of Custom’, p. 119. Indicating a contrary opinion, see Susan Breau, ‘Protected Persons and Objects’, in Elizabeth Wilmshurst & Susan Breau (eds), Perspectives on the icrc Study on Customary International Humanitarian Law (Cambridge University Press, 2007), p. 170. Villiger even refers to ‘communis opinio’ in these cases of (nearly) universal ratification. Mark Eugen Villiger, Customary international Law and Treaties – a Manual on the Theory and Practice of the Interrelation of Sources, 2nd (Kluwer Law International, 1997), para. 237–239. For a list of state parties, consult www.cicr.org/ihl.nsf/WebSign?ReadForm&id=470&ps=P. For a list of state parties, consult www.icrc.org/ihl.nsf/WebSign?ReadForm&id=475&ps=P. Bethlehem calls them the ‘“who’s who” of many of the states that have been engaged in conflicts over the past 30 years’. Daniel Bethlehem, ‘The methodological Framework of the Study’, in Elizabeth Wilmshurst & Susan Breau (eds), Perspectives on the icrc Study on Customary International Humanitarian Law (Cambridge University Press, 2007), p. 7.

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Additional Protocols is not enough to establish whether certain of their provisions are also accepted as customary international law independent of the treaty. Here, the practice of states who have ratified the Additional Protocols and their opinio juris is relevant, although the practice of states not party to them may be of even greater value.32 If too great a number of states is party to a treaty, the relevance of the state practice of non-parties increases but also becomes rarer and more difficult to ascertain.33 This is also the case for the provisions of the Additional Protocols. Although the number of non-parties is great enough and includes states that could provide sufficient and valuable state practice, it cannot easily be ascertained. b National Legislation National legislation can provide valuable and attainable proof of state practice.34 By implementing the Geneva Conventions and Additional Protocols, especially by criminalizing the grave breaches, a state demonstrates its acceptance of the relevant provisions. A new impetus for the implementation was given with the adoption of the Rome Statute which criminalized certain medical war crimes in its article 8, as discussed in Chapter 3,35 for both non- and international armed conflicts. The following examination of national legislation provides a cursory overview of the overall implementation of the prohibition of unwarranted medical procedures as found in articles 11 ap I and 5 (2)(e) ap II and criminalized in the Rome Statute for both non- and international armed conflicts. There is little evidence for the implementation of articles 16 ap I and 10 ap II in national legislations. Exceptions concern the right to refuse an unlawful order, although not all unethical orders are necessarily unlawful.36

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icj, North Sea Continental Shelf Cases, para. 43–44. See also Yoram Dinstein, ‘The icrc Customary Humanitarian Law Study’, 36 Israel Yearbook on Human Rights, 1 (2006), p. 10–11. This is the so-called ‘Baxter Paradox’. Baxter, ‘Treaties and Custom’, p. 64. Michael Bothe, ‘Customary International Humanitarian Law – Some Reflections on the icrc Study’, 8 Yearbook of International Humanitarian Law, 143 (2005), p. 157. For a list of instruments of domestic implementation of the Rome Statute which includes the grave breaches provisions, see www.iccnow.org/?mod=romeimplementation. Refusal to obey a lawful order is considered a crime in many different jurisdictions. See for example article 92 (failure to obey order or regulation) of the u.s. Uniform Code of Military Justice (ucmj, 64 Stat. 109, 10 u.s.c. Chapter 47); articles 125–134 of Titel V of the Dutch Wetboek van Militair Strafrecht of 27 April 1903, Stb. 111, last amended by Stb.2006, 11; and § 19–22 of the German Wehrstrafgesetz of 24 May 1974 (BGBl. I S. 1213), last amended on 22 April 2005 (BGBl. I S. 1106).

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i Germany Medical war crimes are criminalized under the International Criminal Code (Völkerstrafgesetzbuch (VStGB)) which is applicable in addition to the German Criminal Code.37 With the VStGB, Germany adapted its legislation to the Rome Statute but, further than that, also finally aligned its legislation with Additional Protocol I38 and integrated rules of (customary) international humanitarian law.39 Adhering to the principle of universal jurisdiction, the VStGB enables the prosecution of all enumerated acts even when committed abroad without a nexus to Germany.40 As an innovative feature, article 8 VStGB eliminates the distinction between international and non-international armed conflicts: all crimes against protected persons during either an international or a non-international armed conflict are punishable.41 In order for a crime to be prosecuted, there has to be a general nexus with the armed conflict.42 All medical acts that risk the death of a protected person or severely endanger her health are prosecutable as war crimes.43 The prescribed penalty for medical war crimes is a minimum of two years imprisonment. If such a crime leads to the death of the protected person or severe damage to the person’s health, the penalty is augmented by one year to a minimum of three years imprisonment.44 There is no statute of limitations on the crime.45 37 38

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Völkerstrafgesetzbuch (VStGB) of 26 June 2002 (BGBl. I p. 2254). Andreas Zimmermann, ‘Implementing the Statute of the International Criminal Court: the German Example’, in Lal Chand Vohrah, et al. (eds), Man’s Inhumanity to Man – Essays on International Law in Honour of Antonio Cassese (Kluwer Law International, 2003), p. 986–987. Gerhard Werle, ‘Einleitung Völkerstrafgesetzbuch’, in Wolfgang Joecks & Klaus Miebach (eds), Münchner Kommentar zum Strafgesetzbuch: Nebenstrafrecht III: Völkerstrafgesetzbuch (C. H. Beck Verlag, 2009), p. 439. Article 1 VStGB. This development is also in line with German jurisprudence. Kai Ambos, ‘§ 1: Anwendungsbereich’ in Ibid. p. 475. Protected persons are defined as such persons as designated in the Geneva Conventions and Additional Protocols, namely in international armed conflicts the wounded, sick, and shipwrecked, prisoners of war, and civilians; in non-international armed conflicts the wounded, sick and shipwrecked, and persons not taking active part in hostilities and who are in the power of the adversary party; and in both adversaries who have put down their arms or who are unable to defend themselves. Article 8 (6) VStGB. Kai Ambos, ‘Vorbemerkungen § 8: Kriegsverbrechen’, in Wolfgang Joecks & Klaus Miebach (eds), Münchner Kommentar zum Strafgesetzbuch: Nebenstrafrecht III: Völkerstrafgesetzbuch (C.H. Beck Verlag, 2009), p. 638. See also International Criminal Tribunal for the former Yugoslavia, Prosecutor v. Dragoljub Kunarac, Radomir Kovač, and Zoran Vuković, Trial Chamber Judgment [2001], para. 568. Article 8 (1) (8) VStGB. Article 8 (1) last sentence, respectively article 8 (4) VStGB. Article 5 VStGB.

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Three sub-paragraphs of article 8 (1) VStGB specify which medical acts are considered war crimes. The first sub-paragraph criminalizes involuntary experiments the patient has not explicitly consented to or that are neither medically necessary nor in the interest of the patient. This includes medical, scientific and biological experiments, as long as they have a direct or indirect effect on the body.46 Even though the formulation raises doubts whether a patient can consent to an experiment that is neither therapeutic nor in his interest but in the interest of someone else, the Bundestag’s Explanatory Note clarified that experiments that are neither medically justified nor in the interest of the patient are prohibited even if the patient consented.47 Transfer of tissue and organs, except the withdrawal of blood or skin for therapeutic purposes, is prohibited pursuant to the second sub-paragraph. According to the Explanatory Note, the sub-paragraph is best regarded as a category of the prohibition of inhuman treatment.48 A withdrawal has to comply with the generally accepted medical standards and the person has to have voluntarily and explicitly consented to the withdrawal. The phrase ‘generally accepted medical standards’ is not further elaborated on.49 It can be inferred that these standards refer to those that are generally accepted in Germany. Lastly and beyond the provisions of the Rome Statute, the third sub-paragraph criminalizes procedures that are medically not accepted if they are not medically required and the person has not given her voluntary and explicit consent. These cumulative requirements are based on article 11 (1) ap I.50 Using unsuitable medication, giving an overdose of a certain medicine, or using surgery when medication is unavailable are named as examples in the Explanatory Note.51 By being prominently included in all three sub-paragraphs, the informed consent of the person being medically treated appears to be an essential requirement. A procedure carried out without the patient’s informed consent generally entails a medical war crime under the VStGB. Despite the emphasis on this principle of general medical ethics, the sub-paragraph that specifically 46

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Andreas Zimmermann & Robin Geiß, ‘§ 8 (2): Kriegsverbrechen gegen Personen’, in Wolfgang Joecks & Klaus Miebach (eds), Münchner Kommentar zum Strafgesetzbuch: Nebenstrafrecht III: Völkerstrafgesetzbuch (C.H. Beck Verlag, 2009), p. 690–691. Deutscher Bundestag, bt-Drucksache, ‘Gesetzesbegründung eines Gesetzes zur Einführung des Völkerstrafgesetzbuches’, 14/8524, (13 March 2002), p. 27. Ibid. p. 28. Zimmermann & Geiß, ‘Kommentar § 8(2) Völkerstrafgesetzbuch’, p. 691. The Explanatory Note proclaims that its application in both non- and international armed conflicts is accepted in customary international humanitarian law. Bundestag, ‘Gesetzesbegründung eines Gesetzes zur Einführung des Völkerstrafgesetzbuches’, p. 28.

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addresses unwarranted medical procedures does not explicate that generally accepted medical standards or medical ethics are to be adhered to. This is especially striking considering that the overall wording remained close to the wording of article 11 ap I. ii Jordan Jordan ratified the Additional Protocols on 1 May 1979 and the Rome Statute on 11 April 2002.52 To implement these international instruments, it adopted a new Military Penal Code in 2002.53 Among other things, the Military Penal Code of 2002 criminalizes war crimes. First of all, pursuant to article 40 (a)(2) all biological experiments are criminalized as war crimes when committed in the event of armed conflict. This is in line with the Geneva Conventions’ prohibition of experiments. Furthermore, pursuant to article 41(a)(2) medical war crimes are also criminalized when committed by military personnel or by civilians (article 44). They are defined as follows. Any act or omission committed during an armed conflict that causes injury to the physical or mental health and integrity of persons who are in the power of the adverse party or who are interned, detained, or otherwise deprived of liberty. It is prohibited to subject these persons to any medical procedure which is not indicated by the state of health of the person concerned and which is not consistent with generally accepted standards that would be applied under similar medical circumstances to persons who are nationals. The formulation of the definition is clearly based on article 11 ap I including the two elements for medical grave breaches. With this, Jordan criminalized medical war crimes and transposed these crimes into national legislation. Nevertheless, it has not given an explanation of what generally accepted medical standards 52

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Jordan signed the Additional Protocols in the year they were adopted and ratified them two years later. See www.icrc.org/ihl.nsf/WebSign?ReadForm&id=470&ps=P. It also signed the Rome Statute when it was adopted and ratified it in 2002 as the first Arab state. See www.icc-cpi.int/en_menus/asp/states%20parties/asian%20states/Pages/jordan.aspx. The Jordanian Military Penal Code of 1952 (No. 43 of 195,238) was replaced by Military Penal Code No. 30 of 16 June 2002 and an additional law (No. 58 of 2006). The Military Penal Code entered into force on 17 July 2002. This information is based on Rehabilitation and Research Centre for Torture Victims (rct), ‘Submission to the un Committee against Torture for its consideration of the 2nd Periodic Report of Jordan’ and International Committee of the Red Cross Customary ihl Homepage at http://www.icrc.org/customary -ihl/eng/docs/home.

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are and whether medical war crimes are also prosecutable in non-international armed conflicts. iii The Netherlands Even though the grave breaches of the Geneva Conventions had been criminalized in the Netherlands under the War Offences Code (Wet Oorlogsstrafrecht (wom)) of 1952,54 with the ratification of the Rome Statute on 17 July 2001, the Netherlands decided to adopt new legislation with which to criminalize all international crimes.55 In 2003, it introduced the International Crimes Act (Wet Internationale Misdrijven (wim)).56 The Netherlands thereby finally fulfilled its obligations under Additional Protocol I to incorporate the crimes in national legislation and thereby lay the basis for prosecutions of grave breaches.57 The International Crimes Act provides the Netherlands with universal jurisdiction over international crimes.58 Rejecting the equalization of the law in armed conflicts, the crimes are divided among crimes committed in the context of international and those committed in non-international armed 54

Article 8 of the Wet Oorlogsstrafrecht criminalized all violations of the laws and customs of war which included ‘grave breaches of common article 3’. With this broad jurisdiction, it remained open for interpretation. 55 In 2010, France also finally adopted a new amending its penal code to the Rome Statute, although it had long ratified the Geneva Conventions, the Additional Protocols, and the Rome Statute. In book IV which was added to the penal code, medical war crimes are criminlized in both international and non-international armed conflicts. Article 461:3 is limited in scope to the criminalization of medical war crimes in the Rome Statute. (Loi n° 2010–930 du 9 août 2010 portant adaptation du droit pénal à l’institution de la Cour pénale internationale at www.legifrance.gouv.fr/affichTexte.do?cidTexte=JORFTEXT0000226812 35&dateTexte=&categorieLien=id). For more information on the amendment, see http:// www.cfcpi.fr/spip.php?rubrique4. 56 Wet van 19 juni 2003, houdende regels met betrekking tot ernstige schendingen van het internationaal humanitair recht – Wet internationale misdrijven (wim), Stbl. 270 (2003). Translated in Netherlands Yearbook of International Law, (2004) Vol. 35: 426–437. With the wim, the War Crimes Code became obsolete for the prosecution of war crimes. Erwin van der Borght, ‘Prosecution of International Crimes in the Netherlands: an Analysis of recent Case Law’, Criminal Law Forum, 87 (2007), p. 98. 57 The Netherlands ratified the Geneva Conventions on 3 August 1954 and the Additional Protocols on 26 June 1987. See Göran Sluiter, ‘Implementation of the icc Statute in the Dutch Legal Order’, 2 Journal of International Criminal Justice, 158 (2004), p. 178. 58 Article 2 (1)(a) wim. International crimes committed by members of the Royal Netherlands Army will be prosecuted under the Military Criminal Code. Roel van Rossum, ‘De berechting van internationale misdrijven in Nederland’, 100 Militair Rechtelijk Tijdschrift, 1 (2007), p. 2.

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conflicts.59 Pursuant to article 2 (b) and (c) wim, both passive and active ratione personae are accepted as a basis for prosecution.60 The Dutch Office of the Prosecutor can only prosecute international crimes if the suspect is in the Netherlands.61 There is no statute of limitations on the prosecution of international crimes in the Act.62 The punishment for medical war crimes is either lifelong imprisonment,63 imprisonment of a maximum of thirty years, or a fine of to the discretion of the judge. Article 5 (2) wim explicitly criminalizes the grave breaches of Additional Protocol I when committed against therein protected persons during an international armed conflict, listing under sub-paragraph (b) the medical grave breaches. Any willful act of commission or omission by an offender that endangers the health of a protected detained person being a national of the adverse party can be prosecuted as a war crime if the act also fulfills the criteria of one of the sub-paragraphs. Sub-paragraph (b) offers four separate crimes based on article 11 ap I. The first is a medical procedure that is not indicated by the health of the treated persons and not in accordance with generally accepted medical ‘norms’ which would be applied under similar medical circumstances to persons who are nationals of the party carrying out the procedure and in no way deprived of their liberty. This is a clear and almost literal restatement of article 11 (1) second sentence ap I except that the word ‘standards’ was replaced by the, in Dutch more common, word ‘norms’. Physical mutilations, medical and scientific experiments, and the removal of tissue or organs for transplantation are blankly criminalized in numbers 2 to 4 even when consented to by the patient. This correlates to paragraph 2 of article 11 ap I. Hence, the wim has clearly criminalized medical grave breaches in international armed conflicts on an equal footing to all other grave breaches of the Geneva Conventions and Additional Protocol I. 59

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On the Dutch rationale, see Machtheld Boot-Matthijssen & Richard Van Elst, ‘Key Provisions of the International Crimes Act 2003’, 35 Netherlands Yearbook of International Law, 251 (2004), p. 267–270. A.J.R. Buisman, Internationaal strafrecht in Nederland: de uitvoering van de internationale verplichting tot strafbaarstelling en vervolging van internationale misdrijven (Wolf Legal Publishers, 2008), p. 66–69. ‘[…]wanneer de verdachte zich in Nederland bevindt’. Article 2 wim. In addition, article 16 wim determines that persons with immunity in the Netherlands cannot be prosecuted while carrying out their public function. Article 13 wim. A lifelong sentence in the Netherlands actually means life long imprisonment but there is a possibility for clemency which is regularly granted. See W.F. van Hattum, ‘Het irrationele van de levenslange straf’, in A. Harteveld, et al. (eds), Systeem in ontwikkeling, Liber amicorum G.Knigge (Wolf Legal Publisher, 2005).

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Under article 6 (2)(c) wim certain medical war crimes are criminalized if committed within a non-international armed conflict. They were listed separately from the violations of common article 3 gcs criminalized under subparagraph (a). Pursuant to article 6 (2)(c) wim mutilations and medical or scientific experiments on persons in the power of an adverse party are prohibited if they are neither medically indicated, nor in the person’s interest. Such acts are only prosecutable if they cause the death of the person or seriously endanger the person’s health. The article is a combination of article 11 (4) ap I and 5 (2)(e) ap II which means the protection is more limited than the concept of medical war crimes presented in Chapter 3. iv United Kingdom The United Kingdom ratified the Additional Protocols in 1998.64 For a treaty to have effect within the United Kingdom, domestic legislation needs to be adopted to implement the relevant treaty provisions.65 Pursuant to section 1 A of the Geneva Conventions Act of 1957, amended in 1995,66 all grave breaches of the Geneva Conventions and Additional Protocol I are considered offences under uk law. Medical grave breaches under article 11 (4) ap I are explicitly mentioned in sub-paragraph (b) as breaches of Additional Protocol I.67 All such offences, including medical grave breaches, are upon conviction liable to imprisonment for a term not exceeding thirty years.68 In this way, the grave breaches provisions, including those regarding unwarranted medical procedures, have been implemented.69 Because of the dynamic reference, prosecution is thus not bound by a static text but has room for interpretation.70 The 64 The uk signed the Additional Protocols on 12 December 1977. Only with the adoption of the Rome Statute were the Additional Protocols however ratified on 18 January 1998. 65 The ‘well-established doctrine that [international law] does not form part of domestic law’ was recently confirmed by Lord Hoffmann in House of Lords, Regina (Bancoult) v. Secretary of State for Foreign and Commonwealth Affairs, 22 October 2008 [2008], ukhl, 61, para. 66. The debate concerning the ‘dualist’ approach taken in the uk will not be repeated or commented on here. 66 Geneva Conventions Act 1957 (c. 52) and amended by the Geneva Conventions (Amendment) Act 1995 (c. 27) of 20 July 1998. 67 Additional Protocol I is reproduced in the Fifth Schedule which was inserted in section 6 of the Geneva Conventions (Amendment) Act 1995. 68 S. 1 A (6) Geneva Conventions Act 1957. 69 Peter Rowe & Michael A. Meyer, ‘The Geneva Conventions (Amendment) Act 1995: A generally Minimalist Approach’, 45 International and Comparative Law Quarterly, 476 (April 1996), p. 478. 70 Kathrin Bremer, Nationale Strafverfolgung internationaler Verbrechen gegen das humanitäre Völkerrecht (Europäischer Verlag der Wissenschaften, 1999), p. 375–376.

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Geneva Conventions (Amendment) Act of 1995 introduced universal jurisdiction for all such offences, yet limited it to those committed during an international armed conflict.71 The International Criminal Court Act (ICC Act) of 200172 is the enabling act implementing the Rome Statute. War crimes are recognized as offences in both England and Wales, and Northern Ireland.73 Despite the usual re-formulation of the offences upon implementation, the icc Act 2001 simply provides a ‘wholesale incorporation’74 for the substantive aspects of war crimes and refers to article 8 (2) Rome Statute which includes the medical war crimes.75 War crimes are prosecutable under this Act when committed on English, Welsh or Northern Irish territory and extraterritorially when committed by a uk national or resident or ‘a person subject to uk service jurisdiction’.76 This denial of universal jurisdiction has received much criticism,77 as has the ‘minimalist approach’ of the uk concerning implementation of international treaties in general.78 The required mens rea is detailed in a section that restates article 30 Rome Statute.79 The maximum punishment is also thirty years’ imprisonment.80 The Geneva Conventions Act 1957 and the International Criminal Court Act 2001 continue to co-exist. The Geneva Conventions Act 1957 has a wider jurisdiction.81 It criminalizes the grave breaches of Additional Protocol I without

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74 75 76 77 78 79

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S. 1(2) Geneva Conventions (Amendment) Act 1995 applies to ‘any person, whatever his nationality, who, whether in or outside the United Kingdom, commits […] a grave breach’. International Criminal Courts Act 2001 (c. 17) of 11 May 2001. Scotland has a separate International Criminal Court (Scotland) Act which was passed on 13 September 2001: Scottish Parliament Official Report, vol. 3, No 17, col 2527. However s. 50(3) and (4), 70 and 71 to 73 of the uk icc act 2001 also extend to Scotland. Turns, ‘Aspects of National Implementation of the Rome Statute’, p. 351. S. 50 (1), 51 (1) and 58 (1) icc Act 2001. Article 8 (2) Rome Statute is included in Schedule 8. S. 51 (2) and 58 (2) icc Act 2001. Turns, ‘Aspects of National Implementation of the Rome Statute’, p. 346–349. Rowe & Meyer, ‘The Geneva Conventions (Amendment) Act 1995’; Turns, ‘Aspects of National Implementation of the Rome Statute’, p. 351–352. The offences are punishable when committed with intent and knowledge unless otherwise provided for in the relevant criminal provision. Intent is specified as intent to commit the act and intent to cause the consequences or the awareness that they may occur; knowledge is ‘the awareness that a circumstance exists or a consequence will occur in the ordinary course of events’. S. 66 (2) and (3) icc Act 2001. S. 53 (6) and 60 (6) icc Act 2001. S. 70 icc Act 2001 and Explanatory Notes to International Criminal Act 2001, (2001), para. 92.

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dividing them into grave breaches and other serious violations like article 8 (2) (a) and (b) Rome Statute. Medical war crimes under article 11 ap I are thus prosecutable in the uk as violations of the Geneva Conventions Act 1957 or, under article 8 (2)(b)(x) and (2)(e)(xi) Rome Statute, as violations of the International Criminal Court Act 2001.82 v United States of America The usa has neither ratified the Additional Protocols, nor the Rome Statute. All grave breaches have been criminalized under the War Crimes Act 1997 (wca).83 The jurisdiction is restricted in paragraph (b): either the victim or the offender needs to be of American nationality. Thus, u.s. courts have no universal 82

Similarly, South Africa adopted the Implementation of the Rome Statute of the International Criminal Court Act in 2002 (Act 27 of 2002), Doc. No. 23,642, s. 3 (28 July 2002). By fulfilling its obligation under the Rome Statute, it also criminalized the grave breaches and other violations of international humanitarian law in South African criminal law. In section 1 (1) (ii) the war crimes of article 8 Rome Statute are reproduced, including medical war crimes. The icc Act gives South African courts jurisdiction over all listed crimes committed on South African territory, or if the person having committed is a South African citizen or resident or present on South African territory, or if the victim is a South African citizen or resident. Immunities shall not be accepted as defenses or grounds for reduction in the case of international crimes. An Implementation of the Geneva Conventions Act was adopted in 2011. It is mainly concerned with the criminalization of all grave breaches, including the medical grave breach of article 11 ap I, see Implementation of the Geneva Conventions Act, Doc. No. 33734 (12 November 2010).  Furthermore, Canada adopted the Crimes against Humanity and War Crimes Act (cahwca – s.c. 2000) in 2000 to fulfill its obligations under the Rome Statute and to remedy criticism in Supreme Court of Canada, Regina v. Finta, s.c.r. 701, (24 March 1994). Section 4 (4) establishes that ‘[war]crimes described in […] paragraph 2 of Article 8 of the Rome Statute are, as of July 17, 1998, crimes according to customary international law’. They are prosecutable because of the conditional universal jurisdiction that section  8 cahwca affords the Canadian prosecution. Medical war crimes, if codified in the Rome Statute or if further developed under customary international law are thus equally prosecutable under Canadian law. Unwarranted medical procedures are generally criminalized in s. 216 of the Criminal Code: ‘Every one who undertakes to administer surgical or medical treatment to another person or to do any other lawful act that may endanger the life of another person is, except in cases of necessity, under a legal duty to have and to use reasonable knowledge, skill and care in so doing’. (R.S., c. C-34, s. 198.) For more information, see Till Gut & Max Wolpert, ‘Prosecutions of International Crimes in Canada’, in Albin Eser, et al. (eds), National Prosecutions of International Crimes (Duncker & Humblot, 2005); Turns, ‘Aspects of National Implementation of the Rome Statute’. 83 18 u.s.c. § 2441, War Crimes Act 1997. The wca also criminalizes violations of articles 23, 25, 27 and 28 of the Annex to the 1907 Hague Convention IV.

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jurisdiction over war crimes.84 In paragraph (d) the wca also criminalizes ‘grave breaches’ of common article 3 by providing an extensive list of prosecutable offenses in non-international armed conflicts. The choice to call these violations ‘grave breaches’ implying an equal status to the grave breaches of the Geneva Conventions has received criticism,85 especially as the wca did not penalize the violations of all prohibited acts under common article 3 gcs. For example ‘outrages upon personal dignity, in particular humiliating and degrading treatment’ are not criminalized.86 Under the wca, neither medical grave breaches as established in article 11 (4) ap I nor medical war crimes pursuant to article 8 Rome Statute are criminalized as such. However, medical war crimes could be prosecuted if fulfilling the criteria for one of the common grave breaches, namely inhuman treatment or willfully causing great suffering or serious injury to body or health, when committed in an international armed conflict. Medical experiments are penalized as a part of the prohibition of inhuman treatment. In non-international armed conflicts, medical war crimes could possibly, if meeting the criteria, be prosecuted as cruel treatment. However, the criminalization of acts in violation of common article 3 gcs was severely circumscribed in 2006.87 The wca was partly amended by the Military Commissions Act 2006 (mca)88 which was itself amended in 2009 to 84

Emily Silverman, ‘Prosecution of International Crimes in the United States of America’, in Albin Eser, et al. (eds), National Prosecutions of International Crimes (Duncker & Humblot, 2005), p. 443. 85 James G. Stewart, ‘The Military Commissions Act’s Inconsistency with the Geneva Conventions: An Overview’, 5 Journal of International Criminal Justice, 26 (2007), p. 33. 86 The u.s. Supreme Court affirmatively assumed that any use of torture to get information of a person pre-conviction would violate the due process clause of the u.s. Constitution, particularly the 5th and 14th Amendment. Noting that due process prohibits conduct that ‘shocks the conscience’, ‘[t]he justices disagreed about the specific conclusions to be drawn from the facts in the case, but all who addressed the issue of deliberate infliction of pain in order to compel an individual to talk agreed that this practice would shock the conscience and violate the Constitution. See. u.s. Supreme Court, Chavez v. Martinez [2003], u.s., 538, p. 775 (opinion of Justice J. Thomas). 87 Michael J. Matheson, ‘The Amendment of the War Crimes Act’, 101 American Journal of International Law, 48 (2007), p. 51. Matheson criticizes the mca, e.g. ‘The net effect is not to achieve greater clarity, but rather to limit in an uncertain way the scope of acts to which criminal sanctions apply’ p. 52. 88 The mca adds a new Chapter to Title 10 of the United States Code (u.s.c.): Chapter 47 A – Military Commissions. Thereby ‘a military commission […] shall have jurisdiction to try any offense made punishable by this chapter or the law of war when committed by an alien unlawful enemy combatant before, on, or after September 11, 2001’. 10 u.s.c. § 948d

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address constitutional concerns from the u.s. Supreme Court.89 Since 2006, lawful enemy combatants violating the ‘laws of war’ have been tried by court martial under 10 u.s.c. Chapter 47.90 Among the classic offenses like torture, inhuman treatment and intentionally causing serious bodily (not mental) injury, mutilating and maiming is criminalized. The offense is defined as ‘intentionally [injuring] one or more protected persons by disfiguring the person or persons by any mutilation of the person or persons, or by permanently disabling any member, limb, or organ of the body of the person or persons, without any legitimate medical or dental purpose […]’.91 Under u.s. criminal legislation, the prosecution of medical war crimes is almost impossible due to the fact that the implementation is limited to the grave breaches of the Geneva Conventions. A modern penalization in accordance with the Rome Statute is lacking. Unless fulfilling the criteria of another grave breach, medical war crimes will hardly incur prosecution in the u.s. criminal system. vi Evaluation of National Legislations This cursory examination of the implementation of the medical grave breaches by different national legislations has demonstrated that explicit implementation of the prohibition of unwarranted medical procedures and the related grave breach as a war crime is extremely rare. That countries which have ratified the Additional Protocols have ratified the relevant provision, comes as no surprise. Commendably, Jordan chose to implement article 11 ap I and criminalize medical war crimes, not only mutilations and experiments, like article 8 Rome Statute. The Netherlands provides an example of a very conscious and extensive implementation of article 11 ap I. It explicitly re-formulated and penalized medical war crimes in its national legislation concerning international crimes. Germany’s criminalization is also very comprehensive and spans both international and non-international armed conflicts. As civil law countries, both adopted a separate criminal code criminalizing international

(a). For a definition of ‘unlawful enemy combatant’, see 10 u.s.c. § 948a (1). See also Marco Sassòli, ‘Combatants’, in Rüdiger Wolfrum (ed), Max Planck Encyclopedia of Public International Law (Oxford University Press, 2012), para. 23–28. 89 u.s. Supreme Court, Boumediene v. Bush, 553 u.s. 723 (2008). 90 10 u.s.c. § 948d (b). 91 10 u.s.c. § 950v (14), the equivalent to 10 u.s.c. § 924. Possible punishment for this offense, determined by the military commission, includes the death penalty if death of the victim occurs and otherwise any other punishment ‘as a military commission under this chapter may direct’.

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crimes.92 Where Germany in its extensive regulation of medical crimes emphasizes the importance of the consent of a patient, the Dutch wim expects physicians to act in accordance with ‘generally accepted medical norms’. The requirement of consent of the person treated is explicated neither in the Dutch, nor in the Jordanian legislation. The example of the uk shows that most criminalizations of war crimes, including provisions concerning medical grave breaches and war crimes, are clearly based on the duty to ratify the Rome Statute rather than out of a belief of legal obligation.93 In cases where implementation through an enabling act was chosen,94 the penalization of medical grave breaches consists of a referral to the restricted provision of the Rome Statute which only penalizes mutilations and medical and scientific experiments. However, the uk has clearly formulated that according to the Geneva Conventions Act 1957 grave breaches of Additional Protocol I, explicitly including article 11 (4) ap I, are prosecutable offenses under uk law. That the usa, as a state not having ratified the Additional Protocols, has not included medical crimes in its legislation demonstrates that the implementation of article 11 ap I on a national level is not uniform and cannot alone provide sufficient state practice despite the Additional Protocols’ near universal acceptance. Overall, the general provisions relating to the medical treatment of the wounded and sick and to the medical personnel of the Geneva Conventions of 1949 have been implemented.95 Yet, the implementation of the relevant provisions of Additional Protocol I, particularly articles 11 (4), 16 and 85 (3), is 92

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Even though article 94 of the Dutch Constitution determines ‘[s]tatutory regulations in force within the Kingdom shall not be applicable if such application is in conflict with provisions of treaties that are binding on all persons or of resolutions by international institutions’. Whereby treaty rules can supersede the Constitution, to satisfy the nullum crimen sine lege principle, codification was necessary (article 16 Dutch Constitution and article 1 (1) Wetboek van Strafrecht (Dutch Penal Code)). See also van der Borght, ‘Prosecution of International Crimes in the Netherlands’, p. 92. This is also the case with Jordan. In order not to incur prosecutions of their own nationals for war crimes due to inability to prosecute international crimes properly, many states codified the prohibitions. Kleffner, Complementarity in the Rome Statute and National Criminal Jurisdictions, p. 43; Turns, ‘Aspects of National Implementation of the Rome Statute’, p. 380; Zimmermann, ‘Implementing the Statute of the International Criminal Court: the German Example’, p. 980. See also Canada and South Africa, fn. 82. Although Canada presents an untypical example of a common law country that implemented a new Code, beyond a simple enabling act. Turns, ‘Aspects of National Implementation of the Rome Statute’, p. 379. See also the examination by the icrc in Rules 109–111 of the Henckaerts, et al. (eds), icrc Study Customary International Humanitarian Law Vol. 1: Rules.

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severely lagging behind. National criminal law often contains a criminalization of sorts of the grave breaches provisions of the Geneva Conventions and Additional Protocol I, but usually stops short of classifying medical treatment not in line with generally accepted medical standards as war crimes, especially not in non-international armed conflicts. c National Judicial Decisions Disregard for the relevant articles in the Additional Protocols or violations against the rights of protected persons in the hands of physicians or against physicians themselves have generally not been prosecuted. National prosecution of medical grave breaches is, as was demonstrated in Chapter 3, rare. This can be explained by the fact that modern conflicts ‘have generated judicial decisions to a lesser extent’.96 None of the decisions discussed in Chapter 3 concerned the application of articles 11 or 16 ap I or articles 5 (2)(e) or 10 ap II. d Resolutions in the United Nations General Assembly Resolutions concerning international humanitarian law adopted in the United Nations General Assembly (un ga) demonstrate state practice because they are ‘official acts’.97 By giving support to a resolution, demonstrated in votes, speeches and drafting lists, a state shows its approval of the principles therein which in turn reaffirms their status in international law. The un ga has over the years adopted numerous resolutions relating to international humanitarian law,98 including in 2008 the unanimously adopted a resolution concerning the Status of the Protocols Additional to the Geneva Conventions of 1949 and relating to the Protection of Victims of Armed Conflicts.99 It urges the ‘universal 96

Bothe, ‘Customary International Humanitarian Law – Some Reflections on the icrc Study’, p. 158. 97 icj, Nicaragua Case, para. 72. However, voting behavior in the un ga should not be taken as a state’s solid support for a rule to be of customary international law; many political factors influence a vote in a United Nations body such as the ga. Mendelsohn, ‘The Formation of Customary International Law’, p. 367–368; Obed Y. Asamoah, The Legal Significance of the Declarations of the General Assembly of the United Nations (Martinus Nijhoff, 1966), p. 53–54. 98 See un General Assembly, ‘Resolution 2444 (XXIII) Respect for Human Rights in Armed Conflict’, Doc. No. A/7433 (19 December 1968); un General Assembly, ‘Resolution 2675 (XXV) Basic Principles for the Protection of Civilians Populations in Armed Conflict’, Doc. No. A/RES/2675 (9 December 1970). 99 un General Assembly, ‘Status of the Protocols Additional to the Geneva Conventions of 1949 and relating to the Protection of Victims of Armed Conflicts’, A/RES/63/125. For the voting records, see un General Assembly, ‘Official Record of the 67th Plenary Meeting of the 63rd Session of the United Nations General Assembly on 11 December 2008’, A/63/PV.67 (11 December 2008), p. 5.

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acceptance’ and ‘full implementation of [humanitarian] law’ and ‘affirms the necessity of making the implementation of international humanitarian law more effective’.100 In the relevant parts, the resolution refers to international humanitarian law in general which implies both treaty and customary international law, but fails to specify provisions. Neither in this resolution, nor in any of the older un ga resolutions are there statements concerning the specific topic of the boundaries of medical treatment of the wounded and sick, the protection of medical personnel or medical ethics in international armed conflicts.101 e Battlefield Practice It is precisely in armed conflicts that states frequently breach relevant treaty law provisions.102 Breaches of international humanitarian law can, on the one hand, if consequent and by a great number of states negate established state practice. If such breaches, on the other hand, are accompanied by justifications and/or explanations they implicitly reaffirm the original rule and its legally binding character.103 In situations of armed conflict, one would be tempted to refer to actual practice on the battlefield to establish state practice104 but this might prove more difficult, even in the age of modern communication.105 States are wary 100 During the drafting sessions in the un ga Sixth Committee several states reaffirmed their support for the Geneva Conventions of 1949 and the Additional Protocols of 1977. See un General Assembly, ‘Official Record of the 13th Meeting of the Sixth Committee at the 63rd Session of the United Nations General Assembly on 23 October 2008’, Doc. No. A/C.6/63/ SR.13 (2008); un General Assembly, ‘Official Record of the 14th Meeting of the Sixth Committee at the 63rd Session of the United Nations General Assembly on 24 October 2008’, Doc. No. A/C.6/63/SR.14 (2008); un General Assembly, ‘Official Record of the 26th Meeting of the Sixth Committee at the 63rd Session of the United Nations General Assembly on 14 November 2008’, Doc. No. A/C.6/63/SR.26 (2008). 101 For a discussion of the un ga resolution on the ‘Principles of Medical Ethics’ of 1982, see Chapter 7. That resolution does not, however, specifically deal with situations of armed conflict, but rather with the involvement of physicians in torture in general. 102 Meron, ‘The Geneva Conventions as Customary Law’, p. 363. 103 icj, Nicaragua Case, para. 186. 104 David Turns, ‘Military Manuals and the Customary Law of Armed Conflict’, in Nobuo Hayashi (ed),  National Military Manuals on the Law of Armed Conflict (International peace Research Institute, 2008), p. 72. 105 In this respect, the icty stated: ‘When attempting to ascertain State practice with a view to establishing the existence of a customary rule or a general principle, it is difficult, if not impossible, to pinpoint the actual behaviour of the troops in the field for the purpose of establishing whether they in fact comply with, or disregard, certain standards of behaviour.

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towards observers on battlefields and in prisoner of war camps, and at times even misinform the public and other states for military purposes.106 Conversely, embedded journalism has been on the rise in modern wars.107 Although limited to that which the armed forces want the embedded journalist to witness, it may provide much needed evidence of battlefield practice. Battlefield practice can hardly be drawn from states’ own statements as these may be bias or given for political reasons. More reliable evidence can be found in reports and documents on modern armed conflicts by independent and un observers. For example, following the Gaza conflict in 2008/2009, different organizations issued reports on the events.108 The Security Council also adopted a resolution which called for ‘unimpeded provision and distribution

This examination is rendered extremely difficult by the fact that not only is access to the theatre of military operations normally refused to independent observers (often even to the icrc) but information on the actual conduct of hostilities is withheld by the parties to the conflict; what is worse, often recourse is had to misinformation with a view to misleading the enemy as well as public opinion and foreign Governments. In appraising the formation of customary rules or general principles one should therefore be aware that, on account of the inherent nature of this subject-matter, reliance must primarily be placed on such elements as official pronouncements of States, military manuals and judicial decisions’. ICTY Tadić Decision on Jurisdiction, para. 99. On the other hand, Meron believes a ‘persuasive discussion of operational practice’ could actually convince states of the customary character of certain provisions. Meron, ‘The Continuing Role of Custom in the Formation of International Humanitarian Law’, p. 239–240. 106 This allegedly happened in the ‘war on terror’ with respect to the whereabouts and treatment of detainees, see Chapter 1. 107 For more information see Hans-Peter Gasser, ‘The Journalist’s Right to Information in Time of War and on Dangerous Missions’, 6 Yearbook of International Humanitarian Law, 366 (2003), p. 383–384 where he writes that ‘for international humanitarian law purposes, ‘embedded journalism’ has not changed anything with regard to the status of journalists in a war zone. A journalist may be a war correspondent in the sense of the Third Geneva Convention’s Article 4, or an ordinary journalist as mentioned by Article 79 of the Fourth Geneva Convention. In both cases he or she is not a legitimate target for military action and must be dealt with like any civilian person’. For an account of embedded journalism in the Iraq war of 2003, see Howard Tumber & Jerry Palmer, Media at War: The Iraq Crisis (Sage Publications, 2004). 108 Amongst others, Amnesty International, ‘The Conflict in Gaza: A Briefing on applicable Law, Investigations and Accountability’; ‘Gaza – Civilians in the firing line: Interview with Dr. Khaled Jouda, Head of the Palestine Red Crescent Society (prcs) in the Gaza Strip’, 1 The Magazine of the Red Cross and Red Crescent Movement, 18 (2009); van As, et al., Final Report: Independent fact-finding mission into violations of human rights in the Gaza Strip during the period 27.12.2008–18.01.2009; Physicians for Human Rights – Israel, Ill Morals: Grave Violations of the Right to Health during the Israeli Assault on Gaza (March 2009); and Human Rights Watch, Israel: stop unlawful Use of White Phosphorus in Gaza.

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throughout Gaza of humanitarian assistance, including […] medical treatment’.109 The report by the fact-finding mission under Richard Goldstone established by the un Human Rights Council to investigate violations of international law110 noted violations of medical neutrality and the protection of medical transport and hospitals.111 Because it found that the Palestinian side to the conflict had not misused medical facilities and ambulances ‘as cover for terrorist operations’ against the Israeli armed forces,112 it came to the conclusion that by shelling hospitals (at times with white phosphorous),113 the Israeli armed forces had violated the protection of civilian hospitals and the customary principle of proportionality.114 Although not personally targeted, generally the protection for physicians working therein had decreased. Furthermore, the Goldstone Report criticized the overall denial of access to provide medical care to the wounded and sick to ambulances of the icrc and the Palestinian Red 109 This could be interpreted as a carefully placed criticism towards Israel. un Security Council, Resolution 1860 The situation in the Middle East, including the Palestinian question, Doc. No. S/RES/1860 (8 January 2009), article 2. 110 UN Fact-Finding Mission, ‘Report of the United Nations Fact-Finding Mission on the Gaza Conflict (Goldstone Report)’, Doc. No. A/HRC/12/48 (25 September 2009). For an overview of articles mostly critical of the Goldstone Report, consult mfa.gov.il/MFA/ForeignPolicy/ Terrorism/GazaFacts/Pages/The-Goldstone-Mission.aspx. Israel criticized and rejected the report, see mfa.gov.il/MFA/ForeignPolicy/Terrorism/GazaFacts/Pages/Gaza-Facts-FAQ. aspx. Goldstone withdrew his opinion that Israel had intentionally attacked civilians in Richard Goldstone, ‘Reconsidering the Goldstone Report on Israel and war crimes’, The Washington Post (2 April 2011). His co-authors recanted in a statement which said they did not support a reconsideration of the report. Hina Jilani, et al., ‘Goldstone Report: Statement issued by members of un mission on Gaza war’, The Guardian (14 April 2011). 111 See also International Committee of the Red Cross, Gaza: 1.5 million people trapped in despair (June 2009), p. 2–5. 112 Goldstone Report, para. 466–474. 113 The Goldstone Report criticized the use of certain weapons because of the wounds they caused in Ibid. para. 887 et seq. This includes bombs containing depleted uranium (dense inert metal explosives (dime)) and white phosphorous. Neither is prohibited by the Hague Law, but the use of such weapons was internationally condemned, see UN Security Council, ‘Report on the Protection of Civilians in Armed Conflict’, para. 36; Human Rights Watch Israel: stop unlawful Use of White Phosphorus in Gaza. Also by physicians, see van As, et al., Final Report: Independent fact-finding mission into violations of human rights in the Gaza Strip during the period 27.12.2008–18.01.2009, p. 24 et seq.; Gwladys Fouché, ‘Norwegian doctors call for investigation into weapons used on Gaza’, 338 British Medical Journal, 170 (2009) in 2009. 114 ‘Goldstone Report’, para. 626; 629; 646. See also ‘Gaza – Civilians in the firing line: Interview with Dr. Khaled Jouda, Head of the Palestine Red Crescent Society (prcs) in the Gaza Strip’ on the plight of personnel of the prcs in 2009.

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Crescent Society by the Israeli armed forces. It explicitly labeled this a ‘violation of the principle of humane treatment’.115 Yet, the Goldstone Report was silent on the actual medical treatment, medical procedures or the violation of medical ethics. Many wounded persons had to be amputated but it was never claimed that such amputations were unwarranted or constituted physical mutilations. The only reference to actual medical treatment is in the context of detention where medical care was initially denied before a detainee was brought to a prison facility.116 This is, however, not listed separately in the findings concerning detention by Israeli armed forces. A similar conclusion can be drawn from a report concerning the noninternational armed conflict in Syria. The un Human Rights Council published a report in which it claims that the denial of medical care to civilians and combatants of the adversary party by the government and government armed forces was used as a policy.117 Not only does the report speak of attacks on hospitals and the use of hospitals for military purposes, it also refers to situations where medical personnel was targeted for treating enemy combatants or civilians.118 Interestingly, it also describes cases where medical personnel was forced to denounce patients and explicitly labeled this as a violation of article 10 ap II. It furthermore dedicates several paragraphs to involvement of medical personnel in ill-treatment and their role in caring for patients before and after they are interrogated or tortured.119 Further examples regarding medical treatment in armed conflicts were discussed in Chapter 1. During the ‘war on terror’ some physicians violated the protection of persons deprived of their liberty in their care and willfully failed to act in their best interest or in accordance with medical ethics by being actively involved in coercive interrogations and force-feeding. These physicians obeyed unethical and unlawful orders. The unlawfulness of treatment of detainees and the involvement of medical personnel has generally been denied and justified by the u.s., yet condemned by others. Which rules had been violated was, however, never specified. 115 Goldstone Report, para. 820. Examples of denial of medical care can be found throughout the Report, for example in para. 471; 717 et seq.; 732 et seq.; 817; 1133. 116 Ibid. para. 1137. 117 un Human Rights Council, Assault on medical care in Syria, Doc. No. A/HRC/24/CRP.2 (13 September 2013). See furthermore, Amnesty International, Squeezing the life out of Yarmouk – War crimes against besieged civilians, ai Index: mde 24/008/2014 (March 2014). 118 un Human Rights Council, ‘Assault on medical care in Syria’, para. 21 et seq. 119 Ibid. para. 32–37.

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f Actions, Statements and Documents by the icrc The icty Appeals Chamber in its Interlocutory Appeal Decision in Prosecutor v. Dusko Tadić considered ‘particular action of the icrc […] an element of actual international practice’.120 The icrc’s afore referred to Commentaries to the Geneva Conventions and Additional Protocols and other studies could influence the opinio juris of states, if not even state practice. This statement is, however, much contested.121 The icrc as an international non-governmental organization is unable to accede to its own treaties and lacks rule-making authority – all treaties are eventually adopted by state representatives. Therefore it cannot contribute to new rules that will bind states. While recognizing its crucial role and scholarly authority, the icrc cannot provide state practice or opinio juris. Its documents and instruments should be used for interpretative ends. 4 Opinio Juris Due to the overwhelming number of state parties to the international humanitarian law treaties, it is nearly impossible to establish whether states are acting pursuant to their obligations from the treaties or out of a conviction of a legal obligation beyond the treaty, thus with the relevant opinio juris. Despite this difficulty, previous international courts and tribunals have relied more heavily on opinio juris to establish the customary character of a rule than on the sparse state practice.122 The most common sources of opinio juris will be discussed: official statements, reservations to the relevant articles and national military manuals.123 120 ICTY Tadić Decision on Jurisdiction, para. 108–109. 121 On an even more critical note on the evidentiary value of practice of the icrc, see Dinstein who states that ‘ngos, whatever their standing, can never contribute directly through their own practice to the creation of customary norms’. Dinstein, ‘The icrc Customary Humanitarian Law Study’, p. 5. 122 Meron refers to the u.s. v. von Leeb, the icj Nicaragua judgment, and the icty Tadic decision. Meron, ‘The Continuing Role of Custom in the Formation of International Humanitarian Law’, p. 239. The position that opinio juris is more important than state practice can also be found in literature, Bin Cheng, ‘United Nations Resolutions on Outer Space: “Instant” International Customary Law?’, 5 The Indian Journal of International Law, 23 (1965), p. 36; Turns, ‘Military Manuals and the Customary Law of Armed Conflict’, p. 66; Andrew T. Guzmán, ‘Saving Customary International Law’, 27 Michigan Journal of International Law, 115 (2005), p. 122; and more recently Andrew T. Guzmán & Timothy L. Meyer, ‘Customary International Law in the 21st century’, in Russell A. Miller & Rebecca M. Bratspies (eds), Progress in International Law (Martinus Nijhoff Publishers, 2008), p. 206. 123 Others classify military manuals as state practice: Ian Brownlie, Principles of Public International Law, 7th Ed. (Oxford University Press, 2008), p. 6; Henckaerts, et al. (eds),

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a Official Statements Evidence of statements concerning articles 11 and 16 ap I yet also articles 5 (2) (e) and 10 ap II is scant. Either this could mean that the medical treatment of protected persons during armed conflict is not controversial or that it is simply not on the radar of international politics. One rare statement was made in 1989 by Michael Matheson, Deputy Legal Advisor to the u.s. Department of State. At an American Red Cross conference he stated that ‘[the United States] support the principle reflected in article 11’.124 The value of Matheson’s statement is not entirely clear: an ‘errata sheet’ distributed with the u.s. Operational Law Handbook denies its value,125 whereas a letter concerning the icrc Study by the u.s. Congress to the President of the icrc from 2006 contains an official reference to Matheson’s statement.126 Further cautious proof of the opinio juris of the u.s. for the prohibition of medical grave breaches can be found in a resolution by the u.s. House of Representatives of 19 June 2000 in which Congress called upon Japan to apologize for its war crimes, including the biochemical warfare experiments conducted on prisoners of war.127 In connection with the implementation of the German International Criminal Code, the German Bundestag expressed its conviction that the grave breaches provisions in article 11 (4) ap I, prohibiting medical experiments, unwarranted transfer of blood or tissue and unwarranted medical procedures in general are applicable in both international as well as non-international 124

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icrc Study Customary International Humanitarian Law Vol. 1: Rules, p. XXXII; ICTY Tadić Appeal Judgment, para. 131. Martin D. Dupuis, et al., ‘Remarks of Michael J. Matheson at the 6th Annual American Red Cross – Washington College of Law Conference on International Humanitarian Law: A Workshop on Customary International Law and the 1977 Protocols additional to the 1949 Geneva Conventions’, Vol. 2 American University Journal of International Law and Policy (1989), p. 423. The errata sheet states: ‘[Matheson’s interpretation] takes an overly broad view of the us position and as a result may cause some confusion as to u.s. policy’. As quoted by Garraway in Charles Garraway, ‘The Use and Abuse of Military Manuals’, 7 Yearbook of International Humanitarian Law, 425 (2004), p. 437. See also a discussion in Benoit, ‘Mistreatment of the Wounded, Sick and Shipwrecked by the icrc Study on Customary International Humanitarian Law’, fn. 22. John B. Bellinger III & William J. Haynes II, Department of State, ‘Initial Response of u.s. to icrc Study on Customary International Humanitarian Law with Illustrative Comments’, fn. 30. House of Representatives of the 106th United States Congress, hcon, Concurrent Resolution expressing the sense of Congress concerning the war crimes committed by the Japanese Military during World War II (19 June 2000).

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armed conflicts. It explicitly stated that it thought this confirmed by customary international humanitarian law.128 b Reservations to the Additional Protocols Reservations to treaties are valuable evidence of opinio juris. They are discussed separately from the official statements due to their importance. The here relevant reservations are those by Ireland and Canada concerning article 11 ap I. There are no reservations concerning articles 16 and 85 (3) ap I or articles 5 (2)(e) and 10 ap II.129 Canada made a reservation concerning article 11 (2)(c) to the effect that it not be bound by the prohibition of tissue transplantations as long as transplantations of tissue or blood on protected persons are ‘in accordance with Canadian laws and applicable to the population generally and the operation is carried out in accordance with normal Canadian medical practices, standards and ethics’.130 The reference to medical ethics should be noted. Ireland’s reservation is similar: Ireland also denies the prohibitive character of article 11 (2)(c) ap I concerning the donation of tissue or organs by a detained protected person if for the benefit of a ‘close relative’ and ‘for medical reasons, […] in accordance with Irish law and the operation is carried out in accordance with normal Irish medical practice, standards and ethics’. Furthermore, in investigations of breaches of the Geneva Conventions and the Additional Protocols, Ireland reserves its right to take samples of bodily fluids of detained persons for dna comparisons ‘in accordance with Irish law and normal Irish medical practice, standards and ethics’.131 Concerning article 11 (2)(c) ap I, the rationale and formulations are practically identical, even though what ‘normal’ Irish or Canadian medical ethics entail, remains unclear. As article 120 Rome Statute prohibits reservations and the few general declarations made upon ratification do not refer to the provisions criminalizing behavior from article 11 ap I, valuable official statements regarding the acceptance of article 8 (2)(b)(x) and (2)(e)(xi) Rome Statute are lacking. 128 Bundestag, Gesetzesbegründung eines Gesetzes zur Einführung des Völkerstrafgesetzbuches p. 27–28. 129 Interestingly, neither Canada nor Ireland made the same reservation to the almost identical article 5 (2)(e) ap II. 130 The reservation made by Canada at time of ratification on 20 November 1990 is available online at www.icrc.org/ihl.nsf/NORM/172FFEC04ADC80F2C1256402003FB314?OpenDoc ument. 131 The reservation made by Ireland at time of ratification on 19 May 1999 is available online at www.icrc.org/ihl.nsf/NORM/27BBCD34A4918BFBC1256402003FB43A?OpenDocument.

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c National Military Manuals National military manuals are an invaluable additional source of evidence for establishing rules accepted as customary international law.132 Although often restating obligations from treaties or conventions, due to their origin in national policy the formulation in military manuals demonstrates what a state considers legally binding by international law for its own forces during armed conflicts.133 Despite some controversy, this book discusses national military manuals as opinio juris.134 However, their importance should not be overemphasized.135 States have become cautious in drafting military manuals due to their frequent quotation as evidence of the state’s legal position.136 To count as evidence of opinio juris, a manual should be published by an official and authorized state source. As the character, status, addressees and origins of military manuals vary, not all manuals are comparable.137 Whether it is a guide to officers or a manual to all soldiers, whether it is a summary of treaty law or an independent set of rules, these aspects affect the level of evidence it can provide. i Canada Chapter 9 of the Canadian Laws of Armed Conflict Manual reiterates and restates Canada’s obligations in international humanitarian law concerning the wounded, sick and shipwrecked.138 Though unwarranted medical procedures are not prohibited as such, violations of article 11 (2) and (3) ap I are

132 The ‘evidentiary value’ of military manuals was already recognized in Nuernberg Military Tribunal, United States v. Wilhelm List et al. [“The Hostage Case”], Judgment [1948], Trials of War Criminals, Vol. XI, p. 1237; Meron, ‘The Geneva Conventions as Customary Law’, p. 361. 133 Turns, ‘Military Manuals and the Customary Law of Armed Conflict’, p. 67 and 72. 134 The subsequent actions of states on the battlefield establish the state practice and, if differing from theory, should however outweigh the latter. Yoram Dinstein, ‘Comments on the uk Manual of the Law of Armed Conflict’, in Andreas Fischer-Lescano, et al. (eds), Frieden in Freiheit – Festschrift für Michael Bothe zum 70. Geburtstag (Nomos & Dike, 2008), p. 377. 135 Garraway, ‘The Use and Abuse of Military Manuals’, p. 434; 440. 136 See for example the u.s. Department of State: ‘We are troubled by the Study’s heavy reliance on military manuals’. Bellinger III & Haynes II, ‘Initial Response of u.s. to icrc Study on Customary International Humanitarian Law with Illustrative Comments’. 137 Dinstein, ‘The icrc Customary Humanitarian Law Study’, p. 6–7. 138 Office of the Judge Advocate General, jag, loac Manual – The Law of Armed Conflict at the Operational and Tactical Level (1999). Chapter 10 deals with the treatment of prisoners of war.

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criminalized as required under article 11 (4) ap I. Generally accepted medical standards should regulate blood transfusions and skin grafts. Furthermore, it determines that medical personnel may not be compelled to carry out acts incompatible with or be punished for acts in accordance with medical ethics and their ‘humanitarian mission’: a new provision. Non-international armed conflicts are addressed in a separate chapter where article 10 (1) to (3) ap II is restated and explicated. Notably, the Manual refers to the physician’s ‘own’ medical ethics for guidance. This is an important clarification which is lacking in the corresponding provisions for international armed conflicts.139 Article 5 (2)(e) is decimated to that ‘[the] physical and mental health and integrity [of detained persons] shall not be endangered by any unjustified act or omission’.140 Due to the extensive reference to the relevant treaty provisions, the Manual is best seen as a guidebook for military personnel to quickly understand the relevant rules. Nevertheless, it demonstrates Canada’s interpretation of the relevant provisions as legal obligations enforceable on a national level. Next to the Manual, the Code of Conduct for all Canadian Forces (cf) provides ‘simple and understandable instructions to ensure that cf members apply as a minimum, the spirit and principles of the Law of Armed Conflict141 in all cf operations other than Canadian domestic operations’.142 From this, one can infer that it is not a restatement of the treaty rules that Canada is bound to follow, but rather an interpretation of the relevant rules in armed conflicts, whether international or not, as applied by the cf.143 It determines that the wounded and sick be protected, respected and treated humanely, and also be provided with adequate medical care.144 Prisoners of war should be medically examined and ‘be afforded the necessary medical care’. Under rule 10 medical personnel – both permanent and temporary – shall be protected and respected at all times. This rule includes personnel of not formally and legally recognized non-governmental organizations, such as msf, if and when they are evidently providing medical care to the wounded and sick. 139 Ibid. para. 1719. 140 Ibid. para. 1715. 141 These laws of armed conflict are defined as ‘the result of long standing custom while others have been established by international treaties such as the Hague Rules and the Geneva Conventions’. Office of the Judge Advocate General, Code of Conduct for Canadian Forces Personnel (4 June 2001), Chapter 1. 142 Ibid. Introduction to Chapter 1. 143 The Code of Conduct provides the sources for its rules, yet from the relevant articles, only article 11 ap I is explicitly referred to as a source. Additional Protocol II is only mentioned as a source regarding the treatment of civilians and looting. 144 Code of Conduct for Canadian Forces Personnel, Rule 7 (1) and (4).

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As only the Manual integrated the important provisions concerning medical treatment, the Canadian documents do not provide coherent opinio juris regarding the obligation to abide by medical ethics or that medical procedures should be consistent with generally accepted medical standards. This seems at odds with the relatively wide reference in its reservation to article 11 ap I, providing a limit in ‘normal Canadian medical practices, standards and ethics’. ii France The Manuel de Droit des Conflits Armés, published by the Ministry of Defense 2001, is addressed to all French forces. It details the laws that ‘représentent la traduction en normes juridiques des engagements internationaux de la France, ainsi que des principes d’organisation et de fonctionnement des pouvoirs publics’.145 Although the preamble claims that ‘ce manuel n’a qu’une valeur indicative et ne peut en aucun cas être considéré comme un texte de référence ayant force juridique’, it is still to be considered valuable as it contains a summary and interpretation of France’s international legal obligations. Concerning the wounded, sick and shipwrecked, the French Manual determines that the authorities are guilty of a war crime if they refuse to provide necessary medical care or if they deliberately endanger the health of a protected person.146 Amongst references to different articles and the Rome Statute, article 11 ap I is listed here yet is not explicitly restated. Although the Manual is fairly succinct, it states that medical personnel, generally to be protected, shall not be punished for providing medical care in accordance with medical ethics.147 This is a restatement of article 16 ap I and important as it apparently recognizes the value of medical ethics for the conduct of medical personnel in armed conflicts. A further explanation or definition of medical ethics would have been helpful. The rules governing non-international conflicts are not specifically listed. It can be inferred that the Manual applies to both international and non-international conflicts. Even though silent on the specifics of non-international armed conflicts, the French Manual still provides evidence of opinio juris for the rule that doctors 145 Ministère de Défense, Manuel des Droits des Conflits Armés (2001). 146 ‘Elles sont coupables de crimes de guerre si elles refusent que les soins nécessaires leur soient prodigués, ou si elles mettent délibérément la santé des individus en danger’. Ibid. p. 13. 147 ‘[…] de ne pas être puni pour toute activité de caractère médical conforme à la déontologie’. Ibid. p. 21. This appears under the Keyword: ‘Règles de protection de Croix-Rouge en Croissant-Rouge’.

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should be protected when abiding by medical ethics and for the prohibition of unwarranted medical procedures. iii Germany The German Handbuch Humanitäres Völkerrecht in bewaffneten Konflikten relies heavily on the documents of international humanitarian law.148 With every reference to a treaty provisions, it determines whether the rule is also applicable in non-international armed conflicts.149 Chapter 6 determines that the wounded, sick and shipwrecked should be protected and respected in all circumstances and be treated humanely.150 Furthermore, paragraph 606 explicitly prohibits subjecting the wounded, sick and shipwrecked to any medical procedure not in conformity with the generally accepted medical standards. Specifically prohibited are mutilations, scientific or medical experiments and organ transfers. This reaffirms the provisions in article 11 ap I concerning these standards. The protection of the medical personnel is addressed separately.151 Medical personnel should enjoy special protection and neither be attacked, nor hindered in the fulfillment of their duties.152 The broad protection afforded to medical personnel in carrying out their duties in accordance with medical ethics in articles 16 ap I and 10 ap II is not reiterated in the German Manual. Thus, there is no special mention of the obligation of medical personnel to respect medical ethics.153 iv The Netherlands The Dutch Handleiding Humanitair Oorlogsrecht of 2005,154 even though addressed to officers of the land forces, is an informational instrument that intends to clearly set out the rules of international humanitarian law applicable in international armed conflicts.155 It is based heavily on the formulations 148 Bundesministerium der Verteidigung, Handbuch Humanitäres Völkerrecht in bewaffneten Konflikten (August 1992). 149 Ibid. para. 211, p. 18. 150 Ibid. para. 601, p. 49–54. 151 Ibid. p. 51–52. 152 Section 4 of Chapter 6 in Ibid. para. 624, p. 51. 153 The protection of the wounded, sick and shipwrecked and the required equality in treatment is reiterated rather concisely in the Brochure ‘Principles of international humanitarian law in armed conflicts’. Bundesministerium der Verteidigung, Druckschrift Einsatz Nr. 3 – Humanitäres Völkerrecht in bewaffneten Konflikten – Grundsätze, dsk SF009320187, (August 2006), p. 5. 154 Koninklijke Landmacht, Handleiding Humanitair Oorlogsrecht (September 2005). 155 Ibid. para. 0101–0102, p. 11.

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of the Geneva Conventions and Additional Protocol I. In Chapter 6, the provisions concerning the wounded, sick and shipwrecked are reiterated. While the basic requirements of article 11 ap I are confirmed, the reference to ‘generally accepted medical standards’ is only restated concerning blood transfusions and skin grafts. The general requirements for medical treatments are not reiterated.156 For the medical grave breaches, the Handbook refers to the Dutch Code of International Crimes.157 Article 5 (2)(e) ap II is included in the chapter addressing non-international armed conflicts. The requirement of compatibility with generally accepted medical standards is included, yet the first requirement of the state of health of a patient was omitted.158 The protection of medical personnel was also integrated. Article 16 (1) and (2) ap I are literally translated and restated for international armed conflicts.159 In both international and non-international armed conflicts, medical personnel may not be compelled to carry out tasks in violation of their ‘humanitarian mission’. Medical ethics are not referred to here, but according to the third sentence of the paragraph, medical personnel may not be punished for acts in conformity with medical ethics, irrespective of who benefits from the act.160 Overall, the Handbook has a limited circle of addressees yet is actually used by all sections of the Dutch armed forces. Its value as an interpretative source is thus great. It appears from this Handbook that articles 11 and 16 ap I as well as articles 5 (2)(e) and 10 ap II are roughly accepted. Medical personnel should, on the one hand, not be punished when acting in accordance with medical ethics. But the other hand, the requirement that medical treatment be to the benefit of the person treated and in accordance with generally accepted medical standards was heavily circumscribed in international armed conflicts. Interestingly, in non-international armed conflicts unwarranted medical procedures were prohibited when not compatible with the generally accepted medical standards, as established in article 5 (2)(e) ap II. v United Kingdom The 2000 United Kingdom’s Manual of the Law of Armed Conflict extensively formulates the lex lata for all United Kingdom Services in armed conflicts.161 Yet the preface also clearly declares that the Manual in no way binds the uk to 156 157 158 159 160 161

Ibid. para. 0605, p. 91. Wet Internationale Misdrijven (19 juni 2003). Handleiding Humanitair Oorlogsrecht, para. 1053, p. 166. Ibid. para. 0617, p. 96. Ibid. para. 1057, p. 167. United Kingdom Ministry of Defence, The Manual on the Law of Armed Conflict, 0-19924454-5 (2004).

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one interpretation of international humanitarian law, as the authors consider the laws of war a field prone to changes and developments. The Manual is meant to ‘enable all concerned to apply the law of armed conflict when conducting operations and when training or planning for them’.162 It thus provides an interpretation of the laws of war. Considering it as opinio juris does not impede a flexible interpretation while recognizing the Manual’s importance for the development of international humanitarian law.163 The Manual reaffirms the principle that all wounded and sick should be protected and respected without discrimination, and treated humanely with priority in treatment given according to medical and no other indications (para. 7.3).164 Interestingly, military medical personnel in the field are not obliged to treat civilian wounded and sick and can refuse treatment if circumstances do not allow for their treatment. If treatment is indicated by the medical need of a patient – the Manual refers to ‘patients’ rather than ‘the wounded and sick’ – it determines that ‘the law repeats the fundamental medical ethics’ (para. 7.5.1). This implies that medical treatment should be in accordance with medical ethics. Yet the ‘fundamental medical ethics’ are not explicated. As, according to the Manual, international humanitarian law aims for the prevention of experiments and ‘unjustified medical operations’ – which assumably includes other unjustified medical procedures –, it reiterates the protective provisions of article 11 (2) and (3) ap I. The protection of medical duties performed by medical personnel165 and others providing medical care of article 16 ap I is plainly restated in paragraph 7.14. Being a re-statement, there are no further explanations concerning the uk’s interpretation of medical ethics in armed conflicts.166 Chapter 15 of the Manual is dedicated to non-international armed conflicts. Article 5 (2)(e) and 10 ap II are both literally restated. For the former, no explanation is given, whereas the protection of medical duties in non-international armed conflicts is commented. According to the explanation, the article was justified by the ‘delicate position’ of physicians in non-international armed conflicts, so the provision is aimed at guaranteeing the neutrality of medical activities.167 162 Ibid. Preface, p. 1. 163 This is also the opinion of Garraway even though he is cautious not to over-emphasize its value. Garraway, ‘The Use and Abuse of Military Manuals’, p. 434. 164 Chapter 7 the Manual addresses the ‘wounded, sick and dead’. The Manual on the Law of Armed Conflict, p. 121–137. 165 The Manual bases its definition of medical personnel in paragraphs 7.10 and 7.11 purely on the definition of Additional Protocol I. 166 The Manual on the Law of Armed Conflict, para. 7.14, p. 128. 167 Ibid. para. 15.46.1, p. 405.

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The Manual remains close to the provisions of Geneva law, but by clearly restating articles 11 and 16 ap I and articles 5(2)(e) and 10 ap II it provides sufficient evidence of their acceptance by the United Kingdom as a legal obligation and thus offers evidence of an opinio juris. vi United States of America The United States does not have one multi-service military manual for the laws of armed conflicts. The sources, though official and authoritative, are rather proliferated. The Operational Law Handbook, addressed to judge advocates practicing operational law, is officially ‘not intended to represent official u.s. policy regarding the binding application of varied sources of law, though the Handbook may reference source documents which themselves do so’.168 It states that the u.s. ‘believes some provisions of the [Additional Protocol I] to be customary international law’.169 This does not apply to Additional Protocol II. Chapter 2. XII establishes the basics of medical treatment of the wounded and sick and prisoners of war in international armed conflicts.170 Medical personnel ‘exclusively engaged in medical duties’ should not be ‘intentionally attacked’, omitting the general protection and respect usually called for in the Geneva Conventions. A reference to Additional Protocol I is, as expected, not included,171 nor are its provisions implicitly referred to, i.e. there is no reference to generally accepted medical standards or medical ethics.172 The Commander’s Handbook on the Law of Naval Operations173 is more explicit: it provides that the ‘physical or mental well-being of enemy wounded and sick personnel may not be unjustifiably endangered, nor may the wounded and sick be subjected to any medical procedure not called for by their condition 168 International and Operational Law Department The Judge Advocate General’s Legal Center and School, The Operational Law Handbook, ja 422, (July 2007), Preface. It furthermore states that it is ‘not a substitute for official references’. 169 Ibid. p. 15. 170 Ibid. p. 28 et seq. The Handbook explains that ‘the Law of War applies to all cases of declared war or any other armed conflicts that arise between the u.s. and other nations, even if the state of war is not recognized by one of them’. The Operational Law Handbook, p. 15. 171 The main sources of reference are the Geneva Conventions I–III. 172 Additional Protocol I is referred to as a source for the rules concerning the treatment of civilians. Thus, e.g. civilian medical personnel should be protected and respected following article 15 ap I. The Operational Law Handbook, p. 30. 173 Office of the Chief of Naval Operations and Headquarters Department of the Navy, u.s. Marine Corps, Department of Homeland Security and u.s. Coast Guard, The Commander’s Handbook on the Law of Naval Operations, nwp 1-14/MCWP 5–12.1/COMDTPUB P5800.7A, (July 2007).

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or inconsistent with accepted medical standards’.174 It furthermore determines that the following should be reported ‘through the chain of command’: Offenses against the wounded, sick […]: willful killing; torture or inhuman treatment, including biological, medical or scientific experiments; physical mutilation; removal of tissue or organs for transplantation; any medical procedure not indicated by the health of the person and which is not consistent with generally accepted medical standards […].175 Like in other national military manuals, the ‘generally accepted medical standards’ are not defined. Nevertheless the provisions clearly echo, if not literally, article 11 ap I. Even though the Navy’s Handbook does not affirm articles 16 ap I or 10 ap II – the United States not having ratified the Additional Protocols – it still provides some evidence of the customary status of article 11 ap I. It should be reiterated at this point that the Navy’s Handbook is not applicable to the other sections of the American forces. The Army and the Air Force have their own Handbooks.176 Of further importance is the Force Health Protection in a Global Environment Field Manual 4–02 (fm 4–02) addressed to u.s. Health Services177 and the Medical Company Field Manual.178 Both reiterate the most important principles of the Geneva Conventions: that the wounded and sick ‘whether friend or foe’ be protected and respected, and treated equally and humanely. The Medical Company Field Manual elaborates that ‘wounded or sick enemy military personnel may require treatment before u.s. military wounded or allied personnel. The principle of triage is consistent with this obligation’. The protection of medical personnel is superficially restated, concentrating on the

174 Ibid. Section 11–6. 175 Ibid. p. 6–7 – 6–8. Moreover, Chapter 6.2.6 lists examples of grave breaches of the Geneva Conventions including ‘offenses against the sick and wounded, including killing, wounding, or mistreating enemy forces disabled by sickness or wounds’. 176 There is a range of field manuals on different topics for the Army, Navy and Air Forces respectively. A joint manual for all sections of the us armed forces is being developed, see Garraway, ‘The Use and Abuse of Military Manuals’, p. 433. 177 Department of the Army, Field Manual 4–02 (8–10) Force Health Protection in a Global Environment (13 February 2003). 178 Department of the Army, fm 4–02.6 (8-10-1) The Medical Personnel – Tactics, Techniques and Procedures (1 August 2002). See also Department of the Army, fm 8-10-6 Medical Evacuation in a Theater of Operations – Tactics, Techniques and Procedures (14 April 2000), Appendix A.

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identification rather than the rights and duties of medical personnel.179 fm 4–02 expressly states that the Additional Protocols do not apply. These Manuals, addressed specifically to the u.s. military medical personnel, thus do not support the customary status of the relevant provisions of the Additional Protocols. vii Evaluation and Comparison of Military Manuals Generally, article 11 ap I is more often reiterated, included or restated in military manuals than the other articles. Even though generally accepted medical standards are to restrict medical procedures in several manuals, not one of the manuals details, interprets or explains this term. This is regrettable because even a statement as to whether the implied standards are only national standards would have been helpful. The requirement that medical procedures be consistent with ‘generally accepted medical procedures’ is often reiterated solely in connection with blood transfusions and skin grafts, as is the case in Canada and the Netherlands. Certain countries also attach consequences to unjustified medical procedures: France lists deliberately endangering a person’s health as a war crime, and the u.s. Navy’s Handbook prescribes that experiments, mutilations and unjustified medical procedures not consistent with generally accepted medical standards be reported. Two manuals stand out for going farther than the others: the uk Manual and the German Manual. The former because next to reiterating article 11 (2) and (3) ap I, the uk Manual also determines that medical treatment should be within the bounds of ‘the fundamental medical ethics’. The latter, for its prohibition of medical procedures not in conformity with generally accepted medical ethics, specifically mutilations, experiments and organ transfer. Article 16 ap I is insufficiently implemented in national military manuals. So far only the first paragraph is included in some national military manuals and not on a consistent basis. The uk Manual restated the whole article, the French Manual only the first paragraph and the Dutch Handbook literally translated paragraphs 1 and 2. None provided further explanation. The Canadian Manual integrated the first and second paragraphs of article 16 and added a compatibility requirement with the physician’s ‘humanitarian mission’. The German and u.s. Manuals do not restate or reiterate the article. The relevant u.s. Field Manual even expressly denies the applicability of the Additional Protocols. Article 16 ap I is thus hardly accepted as a customary legal obligation as the rather sporadic restatement of the reference to medical ethics demonstrates.

179 Field Manual 4–02 (8–10) Force Health Protection in a Global Environment, Chapter 4; fm 4–02.6 (8-10-1) The Medical Personnel – Tactics, Techniques and Procedures, Appendix A.

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What is more, an interpretation of ‘medical ethics’ just as of ‘generally accepted medical standards’ is lacking in all military manuals. The provisions from Additional Protocol II are rarely restated or integrated, with three exceptions. The Dutch Handbook integrated both articles 5 (2)(e) and 10 ap II in a somewhat limited manner, the Canadian Manual also included both articles and more closely defined the relevant medical ethics as those of the treating physician and the uk Manual literally restated the provisions, explaining the necessity of article 10 ap II in guaranteeing the ‘neutrality’ of medical activities. Despite the fact that the relevant articles regarding medical treatment in armed conflicts are included in military manuals, they are often solely a restatement of treaty obligations. It can rarely be assumed that the relevant state feels bound beyond the Additional Protocols. More solid and consistent evidence of the relevant opinio juris of a greater number of states is needed. B The icrc Study on Customary International Humanitarian Law The icrc Study on Customary International Humanitarian Law is an insightful tool into the status quo of state practice relating to international humanitarian law.180 Mandated by states at the 26th International Conference of the Red Cross and Red Crescent in 1995 and written as a report, not a handbook,181 it provides a wealth of information on different provisions of international humanitarian law. This evidence from 186 states has amounted to a catalogue of 161 rules that, according to the icrc, represent existing customary international humanitarian law, most of them in both international as well as non-international armed conflicts.182 The Study relies on evidence in treaties, other instruments, military manuals, national legislation, national case-law, other national practice, and documents by the United Nations, other international organizations, international conferences, international and mixed judicial and quasi-judicial bodies, the icrc Movement, and others.183 All this evidence is classified as state practice.184 180 Henckaerts, et al. (eds), icrc Study Customary International Humanitarian Law. Also available online at International Committee of the Red Cross, Customary ihl Homepage available online at http://www.icrc.org/customary-ihl/eng/docs/home. 181 Jean-Marie Henckaerts, ‘Customary International Law – A Rejoinder to Judge Aldrich’, 76 British Yearbook of International Law, 525 (2005), p. 532. 182 The practice is regularly updated. It becomes available online at International Committee of the Red Cross, Customary ihl Homepage. 183 A list of sources is also available online at Ibid. 184 Henckaerts, et al. (eds), icrc Study Customary International Humanitarian Law Vol. 1: Rules, p. xxxii.

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It has been noted that the Study chose ambiguous state practice, for example, by heavily relying on military manuals.185 In stating that ‘opinio juris is generally contained within [sufficiently dense] practice and, as a result, it is not usually necessary to demonstrate separately the existence of opinio juris’,186 the icrc moreover overemphasized this state practice while ignoring opinio juris. At times, even negative state practice was taken as evidence for a rule – despite the lack of opinio juris.187 This has been widely criticized because ‘[p]ositive affirmation of the existence of a customary rule, in international law, demands strict proof; to extrapolate the existence of a rule from a lack of State practice to the contrary is, at the very least, wrong as a matter of doctrine’.188 Furthermore, it seems that almost all provisions of the Additional Protocols are considered customary by the Study – a conclusion that could be challenged. There should be solid evidence of a widespread, extensive and virtually uniform state practice and convincing opinio juris before the provisions of the Additional Protocols are labeled ‘customary’ and bind states that have purposefully refused to recognize them.189 The aim of attesting customary status to provisions should never be to circumvent the express consent requirement for binding treaty rules.190 Because of the criticism and commentary it has received for its wide concept of state practice, its conflation of lex lata and lex ferenda, its wide application to non-international armed conflicts, its simplification of treaty rules, its at times blotchy evidence, and its disregard for opinio juris,191 the icrc Study should not simply be taken by its face value. 185 Bothe, ‘Customary International Humanitarian Law – Some Reflections on the icrc Study’, p. 156. 186 Henckaerts, et al. (eds), icrc Study Customary International Humanitarian Law Vol. 1: Rules, Introduction, p. xl. 187 Ibid. p. xliv. 188 David Turns, ‘Weapons in the icrc Study on Customary International Humanitarian Law’, 11 Journal of Conflict and Security Law, 201 (2006), p. 210. 189 Bothe, ‘Customary International Humanitarian Law – Some Reflections on the icrc Study’, p. 148. 190 Bethlehem, ‘The methodological Framework of the Study’, p. 8: ‘When heavy reliance is placed on treaties to which a number of states are not parties, initiatives to derive customary rules may be seen as an attempt to circumvent the requirement of express consent necessary for a state to be bound by the treaty-based rule’. See also George H. Aldrich, ‘Customary International Humanitarian Law – An Interpretation on Behalf of the International Committee of the Red Cross’, 76 British Yearbook of International Law, 503 (2005), p. 505–506. 191 Dinstein, ‘The icrc Customary Humanitarian Law Study’; Bothe, ‘Customary International Humanitarian Law – Some Reflections on the icrc Study’; Elizabeth Wilmshurst & Susan

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Rule 92: Prohibition of Mutilations, Experiments and Unwarranted Medical Procedures According to Rule 92, ‘[m]utilation, medical or scientific experiments or any other medical procedure not indicated by the state of health of the person concerned and not consistent with generally accepted medical standards are prohibited’ in both international and non-international armed conflicts.192 The Rule is based on treaties of international humanitarian and criminal law. In international armed conflicts, mutilation is prohibited concerning prisoners of war and civilians in the Geneva Conventions,193 experiments are not only prohibited,194 they are also considered grave breaches of the Geneva Conventions.195 Unwarranted medical procedures, including mutilations, experiments and unwarranted transplantations, are prohibited and classified as grave breaches in Additional Protocol I.196 In non-international armed conflicts, mutilations and unwarranted medical procedures are prohibited on persons taking no active part in hostilities.197 Furthermore, both mutilations and experiments are criminalized in article 8 of the Rome Statute for both nonand international armed conflicts. Furthermore, according to the Study, the Rule is supported by some other treaties, the military manuals of twenty-five states and national legislations of sixty-five states.198 Furthermore, the Study quotes six national cases, including the Milch, Höss, and Doctors’ Trials which addressed unlawful and unethical experiments,199 and some judgments by international judicial organs that all concerned mutilations.

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Breau (eds), Perspectives on the icrc Study on Customary International Humanitarian Law (Cambridge University Press, 2007); Bellinger III & Haynes II, ‘Initial Response of u.s. to icrc Study on Customary International Humanitarian Law with Illustrative Comments’; Turns, ‘Weapons in the icrc Study on Customary International Humanitarian Law’; Aldrich, ‘Customary International Humanitarian Law’. Henckaerts, et al. (eds), icrc Study Customary International Humanitarian Law Vol. 1: Rules, p. 320. Articles 13 gc III, and 32 gc IV. Articles 12 gc I and II, 13 gc III, and 32 gc IV. Articles 50 gc I, 51 gc II, 130 gc III, and 147 gc IV. Articles 11 and 85 ap I. Mutilations are prohibited in common article 3 to the Geneva Conventions and article 4 ap II. Unwarranted medical procedures are prohibited in article 5 (2)(e) ap II. Previously, Jean-Marie Henckaerts, et al. (eds), Customary International Humanitarian Law, Vol. 2, Practice, Pt. 2, 1st Ed. (Cambridge University Press, 2005), Chapter 32, para. 1407–1554. Now, International Committee of the Red Cross, Customary ihl Homepage. Discussed in Chapter 3. Two other judgments, by Chile’s Appeal Court of Santiago and Colombia’s Constitutional Court, approved the prohibition of mutilations, while a u.s.

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Building on Rules 110 and 111 providing for a duty of medical care,200 the prohibition of mutilations, experiments and unwarranted medical procedures seems uncontroversial. However, it holds some less agreeable aspects and the evidence provided cannot remedy possible doubts. The first doubt concerns the claim that mutilations, experiments and unwarranted medical procedures are customarily prohibited in both international and non-international armed conflicts. This cannot necessarily be ascertained when looking at the evidence presented in the Study, namely military manuals and national legislation. Several military manuals and national legislation cited refer to the acts as grave breaches of either the Geneva Conventions or the Geneva Conventions and the Additional Protocol(s). In national legislation, sixteen states criminalized grave breaches of the Geneva Conventions only and six states grave breaches of the Geneva Conventions and Additional Protocol I. As grave breaches are traditionally only penalized in international armed conflicts, this also limits the criminalization to international armed conflicts. Only three military manuals and eleven national legislations explicitly establish applicability of the prohibition in non-international armed conflicts.201 Implicitly, by integrating the Rome Statute in national legislations, seven states also prohibit mutilations



Court of Military Appeals case characterized ‘maiming’ as a war crime. Henckaerts, et al. (eds), icrc Study Customary International Law Vol. 2, Pt. 1 Practice, para. 1534–1539. 200 Rule 110: ‘The wounded, sick and shipwrecked must receive, to the fullest extent practicable and with the least possible delay, the medical care and attention required by their condition. No distinction may be made among them founded on any grounds other than medical ones’. Rule 111: ‘Each party to the conflict must take all possible measures to protect the wounded, sick and shipwrecked against ill-treatment and against pillage of their personal property’. Both Rules apply in international and non-international armed conflict according to the icrc Study. Henckaerts, et al. (eds), icrc Study Customary International Humanitarian Law Vol. 1: Rules, p. 400–405. Denying their customary character, Benoit, ‘Mistreatment of the Wounded, Sick and Shipwrecked by the icrc Study on Customary International Humanitarian Law’. 201 Explicit application in non-international armed conflicts: Military manuals: Canada (only mutilations and experiments), Russian Federation (only experiments), and the uk (mutilations and experiments). National Legislation: Australia (mutilations, experiments), Azerbaijan (experiments), Burundi (mutilations and experiments), El Salvador (experiments and unwarranted medical procedures), Georgia, Germany, Iraq (mutilations and experiments), the Netherlands (mutilations and experiments), Nicaragua (experiments and unwarranted medical procedures), Tajikistan, and South Africa (mutilations and experiments). Chile’s Appeal Court of Santiago, furthermore, determined that mutilations are also prohibited in non-international armed conflicts.

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and experiments in non-international armed conflicts.202 Overall, it seems that the military manuals often do not mention their field of application. The evidence for the acceptation of the rule in both armed conflicts cannot be sufficiently established. Secondly, one could challenge whether the prohibition of unwarranted medical procedures is accepted as a legal obligation. Sixteen of the military manuals and forty-four national legislations prohibit either experiments or mutilations or both mutilations and experiments.203 Yet states do not share the conviction that medical procedures not indicated by the state of health of a person and not consistent with generally accepted medical procedures should be prohibited. The Study only cites ten out of twenty-five military manuals and thirteen out of sixty-five legislations as evidence for the prohibition of unwarranted medical procedures violating generally accepted medical standards.204 To this number one could add the eight legislations that explicitly criminalize grave breaches of Additional Protocol I in general.205 This, however, is a simple matter of implementation hardly counting as state practice or opinio juris. This leads to the conclusion that of those states having included a prohibition of unwarranted medical procedures in their military manuals, Ecuador, Senegal and the u.s. Navy did not criminalize such medical procedures in their national legislation. Fourteen of the twenty-one states which have in some way criminalized unwarranted medical procedures, have not included the prohibition in their military manuals thus providing practice without the relevant opinio juris. A total of seven states prohibits unwarranted medical procedures in both military manuals and national legislation. What is more, all states having criminalized or prohibited unwarranted medical procedures have also ratified the Additional Protocols. Considering all these numbers and facts, there is little evidence of positive state practice – considering 202 Integration of the Rome Statute: Australia, Canada, Congo, New Zealand, South Africa, Trinidad and Tobago, and the uk. 203 Military Manuals prohibiting mutilations only: Bosnia and Herzegovina, Burkina Faso, Greece, and Morocco. Prohibiting experiments only: Belgium, Côte d’Ivoire, Israel, Nigeria, South Africa, Sweden, and Switzerland. Prohibiting both mutilations and experiments: Australia, France, Italy, Russian Federation, and the United States. 204 Military manuals of Argentina, Canada, Ecuador (only unwarranted medical procedures), Germany, the Netherlands, New Zealand, Senegal (only unwarranted medical procedures), Spain, the uk and the us Navy. Nota bene, the u.s. appears in both lists because the us Navy, as the only u.s. instance, also prohibits unwarranted medical procedures. National legislation of Argentina, Armenia, Australia, Belgium, Colombia, El Salvador, Georgia, Germany, Netherlands, Nicaragua, Niger, Romania, Spain, and Tajikistan. 205 Australia, Canada, Cook Islands, Ireland, New Zealand, Norway, uk, and Zimbabwe.

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there is no other practice concerning unwarranted medical procedures given in the Study – or opinio juris to substantiate Rule 92 with regard to unwarranted medical procedures. A third challenge to Rule 92 is the fact that few military manuals and national legislations include a reference to generally accepted medical standards. The requirement of consistency with medical standards stems directly from articles 11 (1) ap I and 5 (2)(e) ap II and was reiterated in article 8 of the Rome Statute. Nonetheless, only seven military manuals and thirteen national legislations explicitly state the requirement of consistency with medical standards.206 Of the twelve, two included this requirement for physical mutilations and experiments without even prohibiting unwarranted medical procedures.207 Furthermore, ten national legislation implicitly include a requirement of consistency with generally accepted medical standards through reference to Additional Protocol I and the Rome Statute.208 This leads to a total of twelve states’ military manuals and twenty-three states’ national legislations requiring consistency with generally accepted medical standards – not sufficient state practice or opinio juris to prove the customary character of this aspect of Rule 92. Lastly, the military manuals and national legislations quoted are often a direct re-statement of the treaty provisions. It is questionable whether the relevant state practice would need more than that. This is where the relevant opinio juris would play a role. Even when, as above, military manuals are considered as opinio juris there is not enough evidence to substantiate Rule 92 in all aspects. Though the Study claims that Rule 92 is customary, it is only customary concerning experiments and mutilations. States generally agree that medical, biological and scientific experimentation as well as physical mutilations should be prohibited in armed conflicts.209 As demonstrated, the evidence for the 206 Explicitly including a requirement for consistency with generally accepted medical standards: Military Manuals: Canada, Ecuador, Germany, New Zealand, Spain, uk, and u.s. Navy. National Legislations: Argentina, Armenia, Belgium, Colombia (reference to ‘generally recognized medical norms’), Georgia, Germany, Lebanon, Jordan, The Netherlands, Nicaragua, Niger, Spain, and Tajikistan. 207 This concerns the national legislation of Jordan and Lebanon. 208 Implicitly including the requirement by reference to Additional Protocol I: Australia, Canada, Cook Islands, Ireland, New Zealand, Norway, uk, and Zimbabwe. By reference to the Rome Statute: Australia, Canada, Congo, New Zealand, South Africa, Trinidad and Tobago, and the uk. 209 Françoise Hampson, ‘Fundamental Guarantees’, in Elizabeth Wilmshurst & Susan Breau (eds), Perspectives on the icrc Study on Customary International Humanitarian Law (Cambridge University Press, 2007), p. 292.

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prohibition of unwarranted medical procedures in international and noninternational armed conflicts is sparse. It is generally provided by state parties to either the Additional Protocols or to the Rome Statute, and not by states not parties to the relevant treaty rules.210 There is thus no general consensus on the prohibition of unwarranted medical procedures or the requirement of consistency with generally accepted medical procedures. This result is underscored by the fact that the Study’s paragraph providing evidence for Rule 92 is entitled ‘Mutilation and Medical, Scientific or Biological Experiments’.211 Although the general duty to provide medical care is uncontroversial,212 the evidence regarding unwarranted medical procedures in general, the application of their prohibition is non-international armed conflicts and the role of generally accepted medical standards is insufficient. 2 Rule 26: Respect for Medical Activities That ‘[m]edical personnel exclusively assigned to medical duties must be respected and protected in all circumstances’ and ‘[t]hey lose their protection if they commit, outside their humanitarian function, acts harmful to the enemy’ under Rule 25 is overall accepted and restated in forty-five national military manuals and twenty-four national legislations.213 Generally, most 210 Here it should have been clarified why the state practice quoted is not a mere application of the relevant treaty but more than that. See the warning in this respect in icj, North Sea Continental Shelf Cases, para. 76 and a discussion of this in Ian Scobbie, ‘The Approach to Customary International Law in the Study’, in Elizabeth Wilmshurst & Susan Breau (eds), Perspectives on the icrc Study on Customary International Humanitarian Law (Cambridge University Press, 2007), p. 30 et seq.. 211 See equally footnote 79 in Jean-Marie Henckaerts, ‘Study on Customary International Humanitarian Law: A Contribution to the Understanding and Respect for the Rule of Law in Armed Conflicts’, 87 International Review of the Red Cross, 175 (2005), p. 195 where Henckaerts lists the fundamental guarantees, yet omits the prohibition of unwarranted medical procedures. 212 This duty is declared customary by the icrc Study in Rules 110 and 111. See also Bothe, ‘Customary International Humanitarian Law – Some Reflections on the icrc Study’, p. 171. Conversely, Benoit, ‘Mistreatment of the Wounded, Sick and Shipwrecked by the icrc Study on Customary International Humanitarian Law’ who believes there is not enough evidence of state practice and opinio juris to ascertain the customary status of these Rules. 213 Rule 25 can be found at Henckaerts, et al. (eds), icrc Study Customary International Humanitarian Law Vol. 1: Rules, p. 79–88. The state practice includes the manuals of Israel and the usa. Previously, Jean-Marie Henckaerts, et al. (eds), Customary International Humanitarian Law, Vol. 2, Practice, Pt. 1, 1st Ed. (Cambridge University Press, 2005), Chapter 7, para. 1–179. Now, International Committee of the Red Cross, Customary ihl Homepage.

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states subscribe to the idea that medical personnel, whether permanent or temporary, civilian or military – there are some differences in this aspect – should be protected and respected in international armed conflicts.214 The Study furthermore describes some additional evidence that supports the military manuals. Hence, the rule seems well supported by both national state practice and opinio juris. Nonetheless, the support for the provision of article 16 ap I and 10 ap II as restated in Rule 26 is scarce in comparison. Rule 26, which claims to apply in both international and non-international armed conflicts, determines that ‘punishing a person for performing medical duties compatible with medical ethics or compelling a person engaged in medical activities to perform acts contrary to medical ethics is prohibited’.215 Next to the provisions in international humanitarian law,216 the Study cites nine states’ military manuals,217 five states’ national legislations, the Appellants v. Levy case,218 statements by the uk and the usa, several un ga and Commission on Human Rights resolutions and the Regulations of the wma219 as evidence for the customary character of the respect for medical ethics. To attest the customary character of the respect for medical confidentiality – included in the provisions of the Additional Protocols but not in Rule 26 itself – the Study quotes five states’ military manuals, three states’ national legislations, statements by states at the diplomatic conference, a report by the International Law Association and the Regulations by the wma. All states whose military manuals or national legislations are cited, are state parties to the Additional Protocols. Generally, there is so little evidence cited, that this cannot prove the acceptance of the rule in both international and non-international armed conflicts. From the handful of military manuals it can be surmised that these fourteen

214 Some states, like Canada, additionally call for respect for ngos that are not officially recognized in the international legal arena. Rule 10 of Code of Conduct for Canadian Forces Personnel. 215 Henckaerts, et al. (eds), icrc Study Customary International Humanitarian Law – Vol. 2, Pt. 2 Practice, Chapter 7, para. 235–242. Now, International Committee of the Red Cross, Customary ihl Homepage. 216 Articles 18 (3) gc I, 16 ap I and 10 ap II. 217 Namely Argentina, Australia, Canada, the Netherlands, New Zealand, Senegal, Spain, the uk, and the Socialist Federal Republic of Yugoslavia. It should be noted that the Socialist Federal Republic of Yugoslavia disintegrated in the 1990s. 218 The case was discussed in Chapter 1, see the discussion of Appellants v. Levy. 219 The Study quotes the wrong document, but it can be inferred that it is referring to the Regulations in Times of Armed Conflict.

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states agree that no person should be punished for acting in accordance with medical ethics or compelled to act or not act in violation of medical ethics. Several military manuals also refer to a physician’s ‘humanitarian mission’, yet always in combination with medical ethics.220 With the exception of Ethiopia which criminalizes compelling a person to act (or fail to act) in violation of medical ethics, the other four states’ legislations are all criminalizations of grave breaches in general or of articles 16 ap I and 10 ap II. The other evidence provided is equally sparse. The Appellants v. Levy case, the only case cited, concerns a physician who objected to a non-medical task out of considerations of medical ethics. As it did not concern Levy’s medical duties per se, it may not be the best evidence for Rule 26. There is no evidence from battlefield practice or practice of international judicial bodies. The statements and un resolutions quoted are equally meager evidence. The reference to non-legal documents, including by the wma,221 can also not convince. Concerning the respect for medical confidentiality as established in articles 16 (3) ap I and 10 (3 and 4) ap II, the icrc Study discusses the difficulty of drafting the provision in the Additional Protocols because of states’ wariness towards giving up their right to certain medical information. The resulting support for this relatively weak provision from eight states cannot justify its customary character.222 It is also surprising that the Study refers to statements in the Diplomatic Conference as evidence when clearly the statements where aimed at drafting the Protocols. It is interesting that there is one reference to a national regulation calling for the reporting of certain wounds when it is quite common in many states that physicians have to report gun shot wounds or infections with communicable diseases. The further evidence, including reference to the wma, is extremely sparse. From this, it clearly cannot be concluded that states accepted the respect for medical ethics and medical confidentiality as customary international law, neither in international nor in non-international conflicts.223 C Conclusion Even though the Geneva Conventions due to their extensive history and universal ratification enjoy customary status, this does not automatically transfer 220 Military manuals referring to a humanitarian mission: Australia, Canada, the Netherlands, and New Zealand. 221 The legitimacy of the wma and its documents will be discussed in Chapter 9. 222 The details of this provision are discussed in detail in Chapter 2 and 6. 223 This is also the conclusion of Breau, ‘Protected Persons and Objects’, p. 178–179.

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to the Additional Protocols. The status of each provision of the Additional Protocols is relevant because articles that are considered customary apply equally to a small but decisive number of states not parties to the treaties, including the usa and Israel. The protection of those hors de combat could be ameliorated if more provisions also applied customarily, especially in noninternational armed conflicts. After the prosecutions following the atrocities committed by physicians during World War II, questions regarding medical treatment during armed conflicts have slipped into oblivion. Experiments and physical mutilations are generally prohibited by customary international humanitarian law considering they were developed in Geneva Law and find sufficient support in state practice and opinio juris. The same cannot be said about the prohibition of unwarranted medical procedures that violate generally accepted medical standards. Some state practice is provided in national legislations criminalizing unwarranted medical procedures. Some opinio juris is provided in the reservations to article 11 ap I by Ireland and Canada, in some military manuals, especially by civil law countries such as the Netherlands and Germany, and rare statements. However, most references do not include the requirement of adherence to generally accepted medical standards but refer to other requirements for medical treatment. The equivalent prohibition in article 5 (2)(e) ap II is even less recognized by states, although the prohibition of experiments and mutilations is part of customary international humanitarian law in all armed conflicts. Contrary to the icrc Study, it cannot yet be claimed that the prohibition of unwarranted medical procedures in both international and non-international armed conflicts is part of customary international humanitarian law. Looking at the thin state practice and opinio juris regarding articles 16 ap I and 10 ap II, the rule concerning the protection of physicians when adhering to medical ethics and the prohibition of unethical orders is not accepted as legally binding by states. Although the protection of medical duties is based on article 18 (3) gc I, there is hardly any state practice or opinio juris as evidence for the customary character of this rule in either international or non-international armed conflicts. If one looks at the military manuals, one finds that some states have integrated article 16 ap I in their manuals. Yet integration is often limited to the first, possibly the second paragraph. The medical ethics requirement is mostly repeated without further explanation. One significant exception is provided by the Canadian Manual which clearly refers to treating physicians’ ‘own’ medical ethics. Regrettably, states often better regulate international than non-international armed conflicts. Acceptance of the rule in non-international armed conflicts is almost none. In the cases where the rule

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is accepted, for example in the uk Manual, this is purely an implementation of treaty obligations. The analysis showed that there is neither sufficiently dense state practice, nor the relevant opinio juris to positively establish that the prohibition of unwarranted medical procedures that are not indicated by the state of health of a person and violate generally accepted medical standards on the one hand (articles 11 ap I and 5 (2)(e) ap II), and the protection of physicians when adhering to medical ethics on the other (articles 16 ap I and 10 ap II) are customary rules of international humanitarian law. State practice and opinio juris is sparse so a classification as customary would be premature. It cannot simply be assumed that the prohibition of unwarranted medical procedures and the protection of physicians acting in accordance with medical ethics are accepted as rules of customary international law. Such an assumption cannot be substantiated, as is demonstrated by the sparse evidence provided by the icrc Study. Despite the fact that bindingness of these rules based on their customary status would be desirable as they expand protection for persons receiving medical treatment and persons providing medical care, the icrc Study has jumped to untenable conclusions. Unable to provide ‘sufficiently dense practice’ for Rule 92 and almost none for Rule 26, it would have been all the more necessary to ‘demonstrate separately the existence of an opinio juris’.224 The fact that states, and especially states that have not ratified the Additional Protocols, have not provided positive state practice, should not be taken as negative state practice or acquiescence. The Study attested customary status to the regulations concerning medical treatment from the Additional Protocols and the Rome Statute for both international as well as non-international armed conflicts without being able to provide sufficient positive state practice and opinio juris to support such a claim. Unlike the inference by the icrc Study, the conclusion should be that these rules are not yet accepted as customary international humanitarian law. Until now, the provisions are purely treaty law. To increase their applicability, it would be desirable if they were further developed. The recent events in the ‘war on terror’ may contribute to this development. 224 Henckaerts, et al. (eds), icrc Study Customary International Humanitarian Law Vol. 1: Rules, Introduction, p. xl. That the practice provided was not sufficient, was also the conclusion of Benoit, ‘Mistreatment of the Wounded, Sick and Shipwrecked by the icrc Study on Customary International Humanitarian Law’, p. 216–217; Bethlehem, ‘The methodological Framework of the Study’, p. 10 and, though generally more positive, Dieter Fleck, ‘International Accountability for Violations of the Ius in Bello: The Impact of the icrc Study on Customary International Humanitarian Law’, 11 Journal of Conflict and Security Law, 179 (2006), p. 197.

chapter 5

The Relevant Human Rights Norms Applicable to the Work of Physicians in Armed Conflict While international humanitarian law grew out of an acceptance of the reality of war and a wish to provide limits for states when waging war in order to ensure the protection of those not participating in hostilities, human rights law developed a parallel system of protection for individuals against states in times of peace. Especially when an individual is in a situation of dependency of a state, such as prisoners of war or civilians in detention, the rules from the two areas of law may provide overlapping, yet different levels of protection. An example is the strict prohibition of medical experiments in human rights law (article 7 iccpr) that corresponds to international humanitarian law with the difference that the latter allows for exceptions if certain conditions are met (article 13 gc III and 11 (2)(b) ap I). Generally, as recognized by the icrc Commentary to Additional Protocol II, ‘[human] rights continue to apply concurrently in time of armed conflicts’.1 This chapter will scrutinize the intersection and relationship of human rights and international humanitarian law in general, the application of human rights treaties extraterritorially and, lastly, provide an in-depth analysis of specific human rights provisions and their relevance for the treatment of those in need of medical care in armed conflict, namely the right to life, the right to health, the prohibition of torture and cruel, inhuman or degrading treatment, the prohibition of medical and scientific experimentation and the right to humane treatment. The examination will concentrate on the International Covenant on Civil and Political Rights (iccpr) and the International Covenant on Economic, 1 Sandoz, et al. (eds), Commentary to the Additional Protocols, para. 4429. The paragraph reads: ‘The Conventions and their additional Protocols have the same purpose as international instruments relating to human rights, i.e., the protection of the human person. However, these are two distinct legal systems, each with its own foundations and mechanisms, and international humanitarian law applies in situations of armed conflict. Human rights continue to apply concurrently in time of armed conflict. The human rights treaties provide that some rights may be suspended “in time of public emergency which threatens the life of the nation,” i.e., when there is serious strife or conflict, and then only insofar as is strictly required by the exigencies of the situation. However, the provisions made in this respect do not allow for derogation from so-called fundamental rights protecting the human person, which guarantee respect for the physical and mental integrity of the person’. (footnotes omitted).

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Social and Cultural Rights (icescr).2 Regional treaties will be addressed when relevant. Both iccpr and icescr have been ratified almost universally. Amongst the countries that have not ratified the icescr are the usa and South Africa.3 A

Applicability of Human Rights in Armed Conflicts

1 The Development of the Two Branches of International Law In the early stages of their development, international humanitarian law and the human rights regime represented two separate branches of international law.4 Where international humanitarian law evolved out of concern to find a balance between humanitarian concerns and military necessity in order to objectively regulate the behavior of warring actors in armed conflict, international human right law came forth from a need to regulate the relationship between a state and its citizens through subjective constitutional-like rights.5 After World War II both regimes went through great, yet separate changes. With its goal ‘to save succeeding generations from the scourge of war’,6 the United Nations discarded discussions of the laws of war. The un saw itself as a ‘guarantor of international human rights’.7 Thus the Universal Declaration on Human Rights of 1948 (udhr) neglects human rights in armed conflict.8 2 International Covenant on Civil and Political Rights and International Covenant on Economic, Social and Cultural Rights, A/RES/2200A(XXI) of 16 December 1966. 3 The iccpr has 168 state parties, while the icescr has 162 state parties. Status of Ratifications of all major human rights treaties available online at http://treaties.un.org/Pages/Treaties .aspx?id=4&subid=A&lang=en. 4 Recognizing the efforts to reconcile international humanitarian and human rights law, Schabas argues that ‘[b]ecause of this fundamental incompatibility of perspective with regard to jus ad bellum, human rights law and international humanitarian law can only be reconciled, as both the International Court of Justice and the Human Rights Committee desire, if human rights law abandons the right to peace and develops an indifference to the jus ad bellum’. William A. Schabas, ‘Lex Specialis? Belt and Suspenders? The Parallel Operation of Human Rights Law and the Law of Armed Conflict, and the Conundrum of Jus ad Bellum’, 40 Israel Law Review, 592 (2007). 5 Robert Kolb, ‘Human Rights and Humanitarian Law’, in Rüdiger Wolfrum (ed), Max Planck Encyclopedia of Public International Law (Oxford University Press, 2012), para. 13. 6 Preamble of the United Nations Charter of 1945. 7 Robert Kolb, ‘The Relationship between International Humanitarian Law and Human Rights Law: A brief History of the 1948 Universal Declaration of Human Rights and the 1949 Geneva Conventions’, 324 International Review of the Red Cross, 409 (1998), p. 439 (French Version). 8 The udhr cannot be classified as a treaty as such as it is a non-binding resolution of the un ga that, arguably, has attained customary status. Asbjørn Eide (ed), The Universal Declaration of Human Rights: A Commentary (Oxford University Press, 1992), p. 7.

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Guarding one of its main principles, namely that of neutrality, the icrc was equally wary of the ‘political’ United Nations.9 Even though the basic protection in the Geneva Conventions of 1949 is ‘derived from one and the same ideal’ as the Universal Declaration,10 the icrc did not explicitly consider human rights. The protection afforded to protected persons in the Conventions was based on their status in international humanitarian law and not on supreme subjective rights ‘solely from the quality of being human’.11 Nevertheless, common article 3 gcs which, like human rights law, concerns the treatment of persons by their own state, is clearly influenced by human rights considerations.12 Also, articles 7 gc I, II and III and 8 gc IV determine that protected persons cannot renounce their rights under the Conventions. Despite the divergent initial developments of the two branches of international law, a mutual awareness grew in the second half of the twentieth century. This was in parts due to the increase of non-international armed conflicts.13 In non-international armed conflicts, a state remains obliged to fulfill its obligations under human rights law regarding its citizens and persons on its territory. Thus, the human rights conference in Teheran in 1968, held just after the 1967 Arab-Israeli war,14 called for the further development of international humanitarian law in order to ‘ensure the better protection of civilians, prisoners and combatants in all armed conflicts’.15 The call was reaffirmed by  9 10

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Kolb, ‘Human Rights and Humanitarian Law’, para. 9. That being: ‘freeing human beings and nations from the suffering which they are often at once the authors and victims’.Diplomatic Conference of Geneva of 1949, ‘Final Record of the Diplomatic Conference of Geneva of 1949’, Vol. II Section B, Statement by President of the Diplomatic Conference Petitpierre, p. 536. Kolb, ‘The Relationship between International Humanitarian Law and Human Rights Law’, p. 444 (French Version). Hans-Peter Gasser, ‘The changing Relationship between International Criminal Law, Human Rights Law and Humanitarian Law’, in José Doria (ed), The Legal Regime of the International Criminal Court – Essays in honour of Professor Igor Blishchenko (Koninklijke Brill nv, 2009), p. 1113. Since 2001, there were two international armed conflicts, between India and Pakistan and between Iraq and the usa and its allies, whereas there were twenty-seven inter-state armed conflicts. Of these, ten were ‘internationalized’. sipri Yearbook 2011, Appendix 2A: Patterns of Major Armed Conflicts: 2001–2010. In Resolution 237 concerning the conflict in the Middle East, the un General Assembly had already considered that ‘that essential and inalienable human rights should be respected even during the vicissitudes of war’ (un General Assembly, Resolution 237 (1967), Doc. No. S/RES/237 (1967) (14 June 1967)). Final Act of the International Conference on Human Rights: Human Rights in Armed Conflict, Doc. No. A/Conf.32/41 (12 May 1968).

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the un ga when it recognized ‘the necessity of applying basic humanitarian principles in all armed conflicts’.16 The two Additional Protocols adopted in 1977 demonstrate that the call was heard and answered. For instance, article 75 ap I is clearly rooted in ideas borrowed from international human rights law: it protects the minimum fundamental rights of persons in the power of a party to the conflict.17 This protection is, pursuant to article 72 ap I, additional to ‘other applicable rules of international law relating to the protection of fundamental human rights during international armed conflict’. Additional Protocol II addressing non-international armed conflicts is also greatly influenced by human rights. The Preamble serves as an excellent example by ‘recalling furthermore that international instruments relating to human rights offer a basic protection to the human person’. It is an explicit reference to international human rights instruments.18 The icrc subsequently also affirmed the concurrent application of human rights law and international humanitarian law.19 Recognizing the rapprochement of the two areas of international law, the International Court of Justice (icj) in its advisory opinion concerning the Legality of the Threat or Use of Nuclear Weapons of 1996, stated that: the protection of the International Covenant of [sic] Civil and Political Rights does not cease in times of war, except by operation of Article 4 of the Covenant whereby certain provisions may be derogated from in a time of national emergency. According to the icj, whether the right to life applies in armed conflict ‘is to be determined by the applicable lex specialis, namely, the law applicable in armed conflict which is designed to regulate the conduct of hostilities’.20 This approach, international humanitarian law as a lex specialis (derogat legi generali) to human rights law, was reaffirmed in the advisory opinion concerning Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territories. Additionally, the icj offered three options for the interaction of 16

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UN General Assembly, Resolution 2444 (XXIII) Respect for Human Rights in Armed Conflict. The follow-up resolution reaffirmed that fundamental human rights continue to apply during armed conflict. UN General Assembly, Resolution 2675 (XXV) Basic Principles for the Protection of Civilians Populations in Armed Conflict. Gasser, ‘The changing Relationship between International Criminal Law, Human Rights Law and Humanitarian Law’, p. 1114. Abi-Saab, ‘Humanitarian Law and Internal Conflicts’, p. 222. Sandoz, et al. (eds), Commentary to the Additional Protocols, para. 4429. International Court of Justice, Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion [1996], icj Reports, 1996, para. 25.

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international humanitarian law and human rights law, namely that ‘some rights may be exclusively matters of international humanitarian law; others may be exclusively matters of human rights law; yet others may be matters of both these branches of international law’.21 Omitting the reference to lex specialis, in drc v. Uganda the icj affirmed the complementary interpretation of the two branches of law.22 It thus confirmed that international humanitarian and human rights law ‘operate side by side during armed conflict’.23 International and regional human rights bodies have accepted the complementary application of human rights law in armed conflicts and rejected the lex specialis approach.24

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icj, Consequences of the Construction of a Wall Case, para. 106. In casu, the Court used the third option and came to the conclusion that Israel’s obligations under the iccpr and the icescr were valid even in the situation of the Occupied Palestinian Territories and that Israel had violated some of its obligations stemming from these treaties. In general, the approach has been criticized for a lack of practicability. See Marko Milanović, ‘Norm Conflicts, International Humanitarian Law, and Human Rights Law’, in Orna Ben-Naftali (ed), International Humanitarian Law and International Human Rights Law (Oxford University Press, 2011), p. 100. Milanović also criticizes the use of the lex specialis rule to solve conflicts between international humanitarian and human rights law because of its ambiguity, p. 114–115. Schabas adds to this that the lex specialis rule is generally used to solve conflicts between competing norms which is not always the case between international humanitarian and human rights law. Schabas, ‘Lex Specialis? Belt and Suspenders?’, p. 597–598. International Court of Justice, Case Concerning Armed Activities on the Territory of the Congo (Democratic Republic of Congo v. Uganda), Judgment [2005], icj Reports, 2005, para. 216. Vera Gowlland-Debbas, ‘The Right to Life and the Relationship between Human Rights and Humanitarian Law’, in Christian Tomuschat, et al. (eds), The Right to Life (Martinus Nijhoff Publishers, 2010), p. 140. In general, Human Rights Committee, General Comment No. 31 – Nature of the General Legal Obligation imposed on States Parties to the Covenant, Doc. No. CCPR/C/21/Rev.1/ Add.13 (29 March 2004), para 11. In the specific situation of Israel, the Human Rights Committee found that ‘the Committee emphasizes that the applicability of rules of humanitarian law does not by itself impede the application of the Covenant or the accountability of the State under article 2, paragraph 1, for the actions of its authorities’. Human Rights Committee, Concluding Observations of the Human Rights Committee: Israel, Doc. No. CCPR/C/79/Add.93 (18 August 1998), para. 10. Even though neither the European Commission nor the Court apply international humanitarian law itself, the application of human rights law in armed conflicts is accepted. European Commission of Human Rights, Cyprus v. Turkey, Decision (Application no. 6780/74 & 6950/75) [1975], Vol. 125; European Court of Human Rights, Isayeva v. Russia, Judgment (Application no.

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2 Relationship of International Humanitarian and Human Rights Law Despite remaining discussions in literature and opposition by certain states, it is generally accepted that the two branches of international law complement each other.25 Based on article 31 (3)(c) Vienna Convention on the Law of Treaties, in time of armed conflict one set of rules should be interpreted in the light of the other. For protected persons receiving medical care in armed conflict, especially those deprived of their liberty, it can be valuable if human rights concerning their treatment and the more extensive case law concerning these rights by international human rights bodies apply. However, it may even be beneficial to their protection if obligations of international humanitarian law, if possible, are interpreted from a human rights perspective. Where concrete norms genuinely diverge, the lex specialis derogat legi generali principle can be used to determine which specific rule or norm provides a more adequate basis of protection for a (protected) person in a specific case.26 However,

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57950/00) [2005], para. 173. The IAComHR has a very inclusive approach in Inter-American Commission on Human Rights, Coard et al. v. United States, Report on the Merits (Case 10.951) [1999], Report No. 109/99, para. 38–49; Inter-American Commission on Human Rights, Decision on Request for Precautionary Measures (Detainees at Guantanamo Bay, Cuba) (12 March 2002); whereas the Inter-American Court considers international humanitarian law as an interpretative tool rather than directly applicable, in InterAmerican Court of Human Rights, Las Palmeras v. Colombia, Judgment (Preliminary Objections) [2000], Series C No. 67, para 32–33; Inter-American Court of Human Rights, Bámaca-Velásquez v. Guatemala Judgment (Merits) [2000], Series C No. 70, para. 208. Some scholars use a strict lex specialis approach whereby international humanitarian law would always override human rights law in armed conflicts. Michael J. Dennis, ‘Application of Human Rights Treaties Extraterritorially in Times of Armed Conflict and Military Occupation’, 99 American Journal of International Law, 119 (2005), p. 139. A newer approach would be the ‘integrational approach’ whereby the two branches of international law are considered to ‘forment un meme ensemble normatif’. According to Guellali this would best correspond to the exigencies of modern wars, that are often neither clearly international nor clearly non-international. Anna Guellali, ‘Lex Specialis, Droit International Humanitaire et Droits de l’Homme: leur Interaction dans les Nouveaux Conflits Armés’, 111 Revue Générale de Droit International Public, 539 (2007), p. 541. See critically, Noam Lubell, ‘Parallel Application of International Humanitarian Law and International Human Rights Law: an Examination of the Debate’, 40 Israel Law Review, 648 (2007), p. 655. Opposition by states come mainly from Israel, for example in un Secretary General, Report of the Secretary-General prepared pursuant to General Assembly Resolution ES-10/13, Annex I: Summary Legal Position of the Government of Israel, Doc. No. A/ES-10/248 (24 November 2003), para. 4. Cordula Dröge, ‘The Interplay between International Humanitarian Law and International Human Rights Law in Situations of Armed Conflict’, 40 Israel Law Review, 309 (2007), p. 340.

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rather than using the lex specialis principle to force a choice between either human rights or international humanitarian law as a whole, the relevant norms and provisions should be seen as complementary or subsidiary.27 In reconciling conflicting norms, the protection of persons should be the guiding principle: human rights should apply in armed conflicts where they complement international humanitarian law or provide a more comprehensive protection. More generally, during conduct of hostilities international humanitarian law provides a better and more detailed set of rules,28 whereas in ‘law enforcement’ scenario’s, such as occupation, human rights law provisions seem more appropriate.29 This division is, however, not always black and white.30 Advantageous for the application of human rights in armed conflict is a development towards a set of minimum human rights – ‘a complex mix of [international humanitarian law] and [human rights law]’31 – that should be applicable at all times and in all circumstances. This would be in line with article 72 ap I which also speaks of ‘fundamental’ human rights.32 The most far-reaching proposal in this respect is the Turku Declaration of Minimum Humanitarian Standards.33 Article 12 of the Turku Declaration states that. [in] every circumstance, the wounded and sick, whether or not they have taken part in acts of violence, shall be protected and treated humanely and shall receive, to the fullest extent practicable and with the least possible 27 28 29 30

31 32

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Kolb, ‘Human Rights and Humanitarian Law’, para. 33; 36. Arguing in favor of a more restrictive view, Dennis, ‘Application of Human Rights Treaties Extraterritorially’, p. 139. Allan Rosas & Monika Sandvik-Nylund, ‘Armed Conflicts’, in Asbjørn Eide (ed), Economic, Social and Cultural Rights: A Textbook (Martinus Nijhoff Publishers, 2001), p. 408. Dröge, ‘The Interplay between International Humanitarian Law and International Human Rights Law in Situations of Armed Conflict’, p. 347–348. Gloria Gaggioli & Robert Kolb, ‘A Right to Life in Armed Conflicts? The Contribution of the European Court of Human Rights’, 37 Israel Yearbook on Human Rights, 115 (2007), p. 159. Kolb, ‘Human Rights and Humanitarian Law’, para. 42. Dagmar Richter, ‘Humanitarian Law and Human Rights: Intersecting Circles or Separate Spheres?’, in Thomas Giegerich (ed), A Wiser Century? Judicial Dispute Settlement, Disarmament and the Laws of War 100 Years after the Second Hague Peace Conference (Duncker & Humblot, 2009), p. 270. Expert Meeting convened by the Institute for Human Rights of Åbo Akademi University, Declaration of Minimum Humanitarian Standards (Turku Declaration), Doc. No. E/ CN.4/1995/116 (1995). See also Theodor Meron, ‘A Declaration of Minimum Humanitarian Standards ‘, 85 American Journal of International Law, 375 (1991). The Turku Declaration is also used as evidence for Rule 92, but curiously enough not as evidence for Rule 26 of the icrc Study.

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delay, the medical care and attention required by their condition. There shall be no distinction among them on any grounds other than their medical condition. This would provide a human rights basis for a basic right to medical care for all persons beyond those rights provided in international humanitarian law. In a further article, the provisions of articles 16 ap I and 10 ap II are rephrased: [medical] and religious personnel shall be respected and protected and shall be granted all available help for the performance of their duties. They shall not be compelled to carry out tasks which are not compatible with their humanitarian missions. Under no circumstances shall any person be punished for having carried out medical activities compatible with the principles of medical ethics, regardless of the person benefitting therefrom.34 If developed, adopted and implemented such minimum standards would make the most basic provisions of protection for those needing medical care and those providing it also applicable on another level, namely that of human rights. By implication, state obligations and remedial mechanisms of human rights law would also apply. This would benefit the protection of persons against state interference. If ever adopted, human rights would thus be applicable through these minimum standards even beyond mere interpretative purposes and would profoundly impact on the protection of persons in armed conflict. However, as the Turku Declaration has since its introduction in 1995 not been adopted by states, the concept of minimum standards of human rights will have to be developed on another track. Differences between International Human Rights Law and International Humanitarian Law In general, human rights law applies as soon as a state has ratified the relevant treaty irrespective of the circumstances in that state. It then applies to all persons under the state’s jurisdiction, irrespective of status or actions.35 Due to the different origins of human rights and international humanitarian law, they differ in some further aspects of application and implementation.36 3

34 35 36

Article 14 of the Turku Declaration. Gowlland-Debbas, ‘The Right to Life and the Relationship between Human Rights and Humanitarian Law’, p. 146. For a thorough analysis of the similarities and differences between the branches, consult René Provost, International Human Rights and Humanitarian Law (Cambridge University Press, 2002).

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Although human rights law protects all persons, whether combatants or civilians, it primarily applies vertically in providing rights for individuals vis-àvis a state. States and state organs can be held responsible for violations of the rights provided in the treaties through individual complaints or inter-state communications. Other private persons cannot be held directly responsible for violations of human rights treaties.37 This is especially pertinent in armed conflicts where, save those physicians working for a party to the conflict, many physicians treating wounded and sick civilians and combatants are civilians. States should, however, ensure the protection of individuals against third party interference – a limited horizontal effect.38 A state can, and according to the General Comments should, adopt legislation or take other measures to ensure, for example, ‘that medical practitioners and other health professionals meet appropriate standards of education, skill and ethical codes of conduct’.39 In case of a violation of such legislation by a civilian physician, the victim of the violation should be entitled to an appropriate and effective remedy.40 In contrast, international humanitarian law applies vertically as well as horizontally: it provides obligations for states regarding individuals but also obligations for individuals vis-à-vis each other.41 Concerning medical aspects, this is especially clear in the prohibitions contained in article 11 ap I that are clearly addressed to military as well as civilian medical personnel. Individuals can thus also be 37 38

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Human Rights Committee, General Comment No. 31, para. 8. Manfred Nowak, u.n. Covenant on Civil and Political Rights – Commentary, 2nd Ed. (N.P. Engel Verlag, 2005), p. 39–40. This was confirmed by the Human Rights Committee in its General Comment No. 31 which reads: ‘[…] the positive obligations on States Parties to ensure Covenant rights will only be fully discharged if individuals are protected by the State, not just against violations of Covenant rights by its agents, but also against acts committed by private persons or entities that would impair the enjoyment of Covenant rights in so far as they are amenable to application between private persons or entities’. Human Rights Committee, General Comment No. 31, para. 8. Committee on Economic Social and Cultural Rights, General Comment No. 14 – The Right to the Highest Attainable Standard of Health (Article 12), Doc. No. E/C.12/2000/4 (11 August 2000), para. 35. See also Human Rights Committee, General Comment No. 20 – Torture or Cruel, Inhuman or Degrading Treatment or Punishment (Article 7), Doc. No. HRI/GEN/1/Rev.1 at 30 (10 March 1992), para. 10, and Human Rights Committee, General Comment No. 31, para. 8, 13 and 18. Article 2 (3) iccpr. States are required to take measures to provide effective remedies for human rights violations. All individuals who avail themselves of a corresponding remedy have a right to a decision of a competent, independent and impartial domestic authority. While this authority can be an administrative, legislative or judicial organ, states are obliged to place priority on judicial remedies. Nowak, ccpr Commentary, article 2, para. 59. Fleck (ed), The Handbook of International Humanitarian Law, para. 134.

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held responsible for violations of international humanitarian law through individual criminal prosecution of grave breaches and war crimes. Though both the rights of persons under human rights law and those of protected persons in armed conflict should be respected and protected, the two systems have entirely different supervision and remedial mechanisms.42 The Human Rights Committee and the Committee on Economic, Social and Cultural Rights (cescr) have three mechanisms at their disposal43: state reports,44 inter-state communications of gross violations,45 and individual complaints.46 Reporting procedures ensure regular and systematic inventories of progress made by state parties in the implementation of their treaty obligations. State parties are obliged to submit such reports on a regular basis and provide in-depth information not only about the formal state of the law within their jurisdiction, but also about the manner of its practical application.47 A treaty body or committee examines and discusses these reports in the presence of representatives of the state party and publishes concluding observations that, despite their non-binding nature, can have political effects as they serve as a public ‘report card’ for the respective state party.48 Inter-state

42

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44 45 46

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On the differences in the enforcement of rights, see Asbjørn Eide, ‘The Laws of War and Human Rights – Differences and Convergences’, in Christophe Swinarski (ed), Studies and Essays on International Humanitarian Law and Red Cross Principles in honour of Jean Pictet (Martinus Nijhoff Publishers, 1984), p. 694. Furthermore, since 2007 the Human Rights Council also evaluates state reports and can receive individual complaints. un Human Rights Council, Resolution 5/1 un Human Rights Council: Institution Building, Doc. A/HRC/RES/5.1 (18 June 2007) which was mandated by un General Assembly, Resolution 60/251: Human Rights Council, Doc. A/ RES/60/251 (15 March 2006).This is a follow-up to the previous complaints procedure under the Human Rights Commission (as established by Resolution 1503 (XLVII)). Articles 40 iccpr and 16 and 17 icescr. Article 41 iccpr. un General Assembly, Optional Protocol to the International Covenant on Civil and Political Rights, Doc. No. A/RES/6316, 302, (16 December 1966); at the time of writing ratified by 115 states. With more than ten ratifications or accessions, the Optional Protocol entered into force on 5 May 2013. un General Assembly, Optional Protocol to the International Covenant on Economic, Social and Cultural Rights, Doc. No. A/RES/63/117 (10 December 2008), at the time of writing ratified by fifteen states. It entered into force on 5 May 2013. State reporting procedures are established in most human rights treaties; see Article 9 icerd, 40 iccpr, 16–17 icescr, 18 cedaw, 19 cat, 44 crc, 73 icrmw, and 35 crpd. Sarah Joseph, et al., The International Covenant on Civil and Political Rights: Cases, Materials and Commentary, 2nd Ed. (Oxford University Press, 1994), Introduction, para. 1.39.

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c­ omplaint procedures have so far never been used in international human rights law.49 Only the third option provides an individual with standing before an international body. The individual complaints procedure ensures an option by which human rights violations, such as torture of prisoners of war, can retrospectively be judged by the Human Rights Committee, an organ other than the state itself, on their justification. This can be criticized for being too late.50 Also, the recourse to courts is not always satisfactory for victims of a violation, as their rights will be balanced against the rights of others and security considerations of a state.51 Nonetheless, the option of adjudication implies an individual remedy on an international level that is unknown to international humanitarian law.52 International humanitarian law has a more limited supervision. Protecting powers have rarely been established53 and the fact-finding commissions has never dealt with a case.54 Thus, there are two mechanisms left. First of all, the icrc has visitation rights of prisoners of war pursuant to article 126 gc III and of persons deprived of their liberty pursuant to article 143 gc IV.55 This enables the icrc to evaluate the performance of detention facilities in regard to the treatment of persons in their care. In strictly adhering to the principle of neutrality, the icrc hardly ever publicizes its evaluations but rather confidentially communicates these to the authorities in charge of the detention facility or the 49

Geir Ulfstein, ‘Human Rights, State Complaints’, in Rüdiger Wolfrum (ed), Max Planck Encyclopedia of Public International Law (Oxford University Press, 2012). 50 Louise Doswald-Beck & Silvain Vité, ‘International Humanitarian Law and Human Rights Law’, 75 International Review of the Red Cross, 94 (1993), p. 113–114 (French Version). 51 Dröge, ‘The Interplay between International Humanitarian Law and International Human Rights Law in Situations of Armed Conflict’, p. 350. 52 Liesbeth Zegveld, ‘Remedies for Victims of Violations of International Humanitarian Law’, 85 International Review of the Red Cross, 497 (2003), p. 507. 53 Protecting powers are referred to yet never defined as such in international humanitarian law. Mostly, they are to ‘safeguard the interests of the parties to the conflict’. For example in articles 7 gc I, 6 and 7 gc II, 8, 11, 84, 100, and 128 gc III, and articles 9, 14, and 30 gc IV. 54 Article 90 ap I establishes an International Fact-Finding Commission which has never dealt with a case. Also, it cannot hear individual complaints for violations of international humanitarian law. Zegveld, ‘Remedies for Victims of Violations of International Humanitarian Law’, p. 514. 55 The icrc also carries out such visits with the consent of a government when persons are detained as a result of internal troubles or tensions. See Alexandre Hay, ‘The icrc and International Humanitarian Issues’, 238 International Review of the Red Cross, 3 (1984), p. 7; Theodor Meron, Human Rights in Internal Strife: Their International Protection (Grotius Publications Limited, 1987), p. 113–115.

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respective state.56 The second mechanism is that of the grave breaches system by which a violation of certain provisions, including of article 11 (4) ap I, can incur criminal prosecution.57 A victim of a medical war crime can passively contribute to the criminal prosecution of the perpetrator but cannot individually hold a state responsible for violations of international humanitarian law.58 A remedy as such for victims of violations is lacking.59 Two notable developments aimed at providing victims of violations of international humanitarian law with a right to remedy deserve attention. First of all, in 2005 the un ga adopted the Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law.60 They urge states to provide victims of serious violations of international humanitarian law with, amongst others, access to justice, reparation for the harm suffered and access to factual information concerning the violations. It should be noted that remedy and reparation is limited to victims of serious violations of international humanitarian law. Although this does not include all breaches of the Geneva Conventions, it includes the grave breaches, including medical grave 56

57 58

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See a detailed discussion in Chapter 1. For information on such visits, see International Committee of the Red Cross: Purpose and Conditions of icrc visits, at http://www.icrc .org/web/eng/siteeng0.nsf/html/detention-visits-010407. The criminal prosecution of medical war crimes is scrutinized in Chapter 3. There have been examples of mass claims procedures, such as the un Compensation Committee which decided claims against Iraq for its invasion of Kuwait in 1990/1991. Other examples, see Liesbeth Zegveld, ‘Remedies for War Victims’, in Carsten Stahn & Larissa van den Herik (eds), Future Perspectives on International Criminal Justice (tmc Asser Press, 2011), p. 614 et seq. Zegveld, ‘Remedies for Victims of Violations of International Humanitarian Law’, p. 514. See also Paola Gaeta, ‘Are Victims of Serious Violations of International Humanitarian Law entitled to Compensation?’, in Orna Ben-Naftali (ed), International Humanitarian Law and International Human Rights Law (Oxford University Press, 2011). In the past, certain regional human rights bodies have dealt with cases which concerned the situation of armed conflicts, but hardly touched upon international humanitarian law itself. Robert Kolb, ‘Human Rights and Humanitarian Law’, in Rüdiger Wolfrum (ed), Max Planck Encyclopedia of Public International Law (Oxford University Press, 2012), para. 38. The Report by the un Commission on Human Rights, prepared by Cherif Bassiouni, Basic Principles and Guidelines on the Right to a Remedy and Reparations for Victims of Violations of International Human Rights and Humanitarian Law, Doc. No. E/CN.4/2000/62 (18 January 2000), was adopted by the un ga in 2005. un General Assembly, Resolution 60/147 Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law, Doc. No. A/RES/60/147.

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breaches, that constitute war crimes. Being a resolution by the un ga, the bindingness of the Basic Principles and Guidelines is limited. Second of all, a step towards the realization of individual remedies for violations of international humanitarian law can be found in article 75 Rome Statute which establishes a principle of reparation concerning victims. Victims can also participate in proceedings before the icc pursuant to article 68 (3) Rome Statute.61 Upon request or in exceptional circumstances upon the Court’s own motion, such reparation may be granted in the form of restitution, compensation or rehabilitation.62 In a decision concerning the case against Thomas Lubanga, the icc granted reparation to victims to be distributed through a Trust Fund for Victims.63 Lastly, state obligations under human rights law are not as specific and explicit as those under international humanitarian law.64 It does not spell out how exactly a state is to protect the rights contained in the treaties and states have a margin of appreciation concerning the actual implementation of the provisions. Conversely, essential to the character of international humanitarian law is that it contains specific and absolute obligations for parties to a conflict, whether states and private actors, that ensure that humanitarian principles are respected.65 It thus contains clearer guidelines for physicians practicing medicine in armed conflicts as well.

61

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For a detailed analysis, see Nino Tsereteli, ‘Victim Participation in icc Proceedings’, in Carsten Stahn & Larissa van den Herik (eds), Future Perspectives on International Criminal Justice (tmc Asser Press, 2011). Yet, Zegveld is critical of the early involvement of victims in icc proceedings as she fears it may cause delays and endanger a trial’s fairness. She suggest implementing mass claims procedures. Zegveld, ‘Remedies for War Victims’, p. 617–617. The judges of the icc have a margin of appreciation. For a detailed analysis, see David Donat-Cattin, ‘Article 75: Reparations of Victims’, in Otto Triffterer (ed), Commentary on the Rome Statute of the International Criminal Court – Observers’ Notes, Article by Article (H.C. Beck Verlag, 2008). International Criminal Court, The Prosecutor v. Thomas Lubanga Dyilo, Trial Chamber Decision establishing the principles and procedures to be applied to reparations [2012], Case No. ICC-01/04-01/06. An exception can be found if one accepts a duty to prevent, investigate, and punish all violations of human rights whether or not committed by a state agent, as was established in Inter American Court of Human Rights, Velásquez Rodríguez v. Honduras, Judgment [1988], Ser. C, No. 4, para. 172. Dröge, ‘The Interplay between International Humanitarian Law and International Human Rights Law in Situations of Armed Conflict’, p. 344.

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Nonetheless, human rights law may complement international humanitarian law. Where human rights law provides certain (limited) remedies for individuals which target the responsible state, under international humanitarian law the only remedy for victims of violations thereof is a stately criminal prosecution of an individual for grave breaches and war crimes. 4 Derogation Even though human rights in general could offer additional protection in armed conflicts, this statement needs to be qualified. Most human right treaties allow for derogation in cases of public emergency including armed conflict.66 An armed conflict would classify as the most extreme example of a public emergency threatening the life of a nation.67 In general, the emergency justifying a derogation must be imminent, effecting the whole population, contain a threat to the very existence of the nation, and derogation must be used as a temporary measure of last resort.68 States have to strictly limit

66

See articles 4 iccpr, 15 echr, 27 Inter-American Convention on Human Rights (iachr) and 2 Convention against Torture (cat). The African Charter of Human and Peoples’ Rights (achpr) does not contain a derogation clause, neither does the Universal Declaration of Human Rights. In detail, see Nicole Questiaux, un Commission on Human Rights – Sub-Commission on Prevention of Discrimination and Protection of Minorities, Study of the Implications for Human Rights of recent Developments concerning Situations known as States of Siege or Emergency, Doc. No. E/CN.4/Sub.2/l982/15 (27 July 1982).  Article 15 echr determines that ‘in time of war or other public emergency threatening the life of the nation’ derogation is allowed if the notification requirements are met and such derogation is not discriminatory or ‘inconsistent with other international obligations’.  Under article 27 iachr, derogation is allowed ‘in time of war, public danger, or other emergency that threatens the independence or security of a State Party’. Implied by this is that any reason for a derogation needs to threaten the independence and security of the state wishing to derogate; it needs to constitute a threat to the integrity or existence of a State’s people, territory or legal order. (See Martins, the Protection of Human Rights, OAS/ Ser/L/V/II.15, Doc. 12 (11 October 1966), in The Organization of American States and Human Rights, Washington 1972. p. 153.) Hence, it needs to be of a certain gravity to justify a derogation from human rights. (Jaime Oraá, Human Rights in States of Emergency in International Law (Claredon Press, 1992), p. 15.). 67 Thomas Buergenthal, ‘To Respect and to Ensure: State Obligations and Permissible Derogations’, in Louis Henkin (ed), The International Bill of Rights – The Covenant on Civil and Political Rights (Columbia University Press, 1981), p. 79. 68 Oraá, Human Rights in States of Emergency in International Law, p. 27–30.

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­measures to those required by the exigencies of the emergency.69 Moreover, measures cannot violate states’ other obligations under international law, including international humanitarian law.70 Though armed conflict as a case of public emergency is not explicated in article 4 iccpr, it is generally accepted that the derogation regime of the iccpr also applies to situations of armed conflict.71 For there to be a legitimate derogation, the public emergency must threaten the life of the nation and the state of emergency must have been officially proclaimed. Furthermore, the derogation must be non-discriminatory, consistent with other obligations under international law, proportional and communicated to the other member states. Failure to meet the requirements does, however, not invalidate the derogation which leaves the door open to abuse.72 The Human Rights Committee in General Comment No. 29 recognized the complementary nature of the provisions contained in the iccpr and international humanitarian law, and allowed for derogation in time of armed conflict ‘only if and to the extent that the situation constitutes a threat to the life of the nation’.73 A threat to the life of a nation can also emanate from a conflict beyond the territory of the state derogating: Jordan, for example, declared a state of emergency based on the 1967 Arab-Israeli war and the overwhelming number of refugees on its territory.74

69

Human Rights Committee, General Comment No. 29 – State of Emergency (Article 4), Doc. No. CCPR/C/21/Rev.1/Add.11 (31 August 2001), para. 4. 70 Buergenthal, ‘State Obligations and Permissible Derogations’, p. 82. 71 Dröge, ‘The Interplay between International Humanitarian Law and International Human Rights Law in Situations of Armed Conflict’, p. 319. The iccpr was not to contain a reference to war or armed conflict because ‘it was felt that the Covenant should not envisage, even by implication, the possibility of war’. un Secretary General, Annotations on the Text of the Draft International Covenants on Human Rights, Doc. No. A/2929, A/10/ Annexes (Part II) (1955), p. 28, para 39. Higgins criticized this ‘head-in-the-sand attitude’. Rosalyn Higgins, ‘Derogations under Human Rights Treaties’, 48 British Yearbook of International Law, 281 (1977), p. 287. 72 Meron, Human Rights in Internal Strife, p. 53. See also, Questiaux, Study of the Implications for Human Rights of recent Developments concerning Situations known as States of Siege or Emergency, para. 39–70. 73 Human Rights Committee, General Comment No. 29 (2001)’, para. 3. 74 In 1967, Jordan declared martial law applicable. Although officially, martial law was ‘frozen’ in 1989, it was not until April 1992 that the state of emergency was lifted and martial law abolished. Human Rights Committee, Jordan, Third Periodic Report, Consideration of Reports submitted by States Parties under Article 40 of the Covenant, Doc. No. CCPR/C/76/ Add.1 (18 January 1993), para. 6 et seq. Jordan was heavily criticized for this, see for example Amnesty International, Jordan: Human Rights Reforms: Achievements and Obstacles,

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Under the icescr, there is no derogation regime.75 States can limit rights pursuant to article 4 icescr for the benefit of ‘general welfare’. This gives states a considerable leeway despite the fact that certain requirements need to be met: the limitation must be in accordance with the law, compatible with the icescr, have a legitimate aim, benefit the general welfare and be proportional. The burden of proof regarding the justification of limitations lies with the state.76 Pursuant to article 2 (1) icescr states can also apply ‘retrogressive measures’ when facing severe resource constraints.77 Recently, however, the cecsr has stated, regarding the for the wounded and sick relevant right to health, that ‘[the] adoption of any retrogressive measures incompatible with the core obligations under the right to health […] constitutes a violation of the right to health’.78 In particular, an armed conflict alone cannot justify limitations or retrogressive measures but more is needed to prove the necessity of such measures.79 Moreover, derogations are considered inconsistent with the general nature of the rights protected under the icescr and thus impermissible, at least concerning the core minimum rights which according to the cescr includes the right to primary health care.80 In cases of armed conflict, states are thus expected to do their best to respect, protect and fulfill the rights under the icescr as far as possible, especially the core minimum rights such as the right to essential primary health care. Certain rights are absolute and non-derogable yet the list of non-derogable rights differs between the different human rights instruments.81 The right to 75

76 77 78

79 80 81

ai Index: mde 16/02/94 (1994). Also mentioned by Oraá, Human Rights in States of Emergency in International Law, p. 22. For a valuable and rare discussion of limitations and derogations of the icescr see Amrei Müller, ‘Limitations to and Derogations from Economic, Social and Cultural Rights’, 9 Human Rights Law Review, 557 (2009), esp. p. 591–599. See for example in the cescr, General Comment No. 14 (2000), para. 28. Concerning the obligations of state parties, see cescr, General Comment No. 3 – The Nature of State Parties’ Obligations, Doc. No. E/1991/23 (14 December 1990). Concerning the right to health, see cescr, General Comment No. 14 (2000), para. 48 but see also para. 32. In general, however, it suffices if a state ‘[demonstrates] that every effort has been made to use all resources that are at its disposition in an effort to satisfy, as a matter of priority, those minimum obligations’. cescr, General Comment No. 3 (1990), para. 10. Müller, ‘Limitations to and Derogations from Economic, Social and Cultural Rights’, p. 587; Rosas & Sandvik-Nylund, ‘Armed Conflicts’, p. 413–414. cescr,General Comment No. 14 (2000), para. 47. See articles 15 (2) echr, 4 (2) iccpr, and 27 (2) iachr. Only the African Charter of Human and People’s Rights does not have a system of derogations.

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life and the right to be free from torture and cruel, inhuman and degrading treatment are non-derogable under all human rights regimes because they are ‘absolutely fundamental [rights] for the protection of the human being in emergencies’.82 A desirable extension of the list of non-derogable rights through the development of minimum or core human rights would include the right to life-saving medical care in emergency situations such as armed conflicts.83 However, these minimum human rights will have to be closely scrutinized so as not to water down the extensive protection that the absolute non-derogability of rights offers. Hence, to assess the value of certain human rights in armed conflict, the option of derogation or limitation cannot be neglected as realistically states can and will derogate from treaties especially in non-international armed conflicts.84 Conversely, international humanitarian law does not contain a derogation regime. Military necessity can override humanitarian concerns, if this is clear from the wording of a provision. An example is article 10 ap I that determines that medical care and attention should be provided ‘to the fullest extent practicable and with the least possible delay’.85 In all other cases where concessions due to military realities are not explicitly mentioned, the protection is complete and absolute.86 It should nonetheless be noted that in practice, especially states involved in non-international armed conflicts, at times deny the application of international humanitarian law altogether, often because they oppose a classification of the conflict.87 In addition, such denial is often combined with derogations from human rights obligations which leads to a dangerous lack of protection of citizens against their state.88

82 Oraá, Human Rights in States of Emergency in International Law, p. 94. 83 Eide, ‘The Laws of War and Human Rights’, p. 679. Notably, this right was not included in the Turku Declaration. 84 Meron, Human Rights in Internal Strife, p. 52. Meron believes the true value of human rights treaties should be assessed by looking at their derogation regimes. 85 Sandoz, et al. (eds), Commentary to the Additional Protocols, para. 451. 86 Doswald-Beck & Vité, ‘International Humanitarian Law and Human Rights Law’, p. 104– 106 (French Version). 87 Meron, Human Rights in Internal Strife, p. 43–44. An example is the conflict in Nicaragua which the icj in its Judgment classified as a non-international armed conflict while Nicaragua denied the armed conflict all together. icj Nicaragua Case, para. 217–219. See also Meron, Human Rights in Internal Strife, p. 47. 88 Meron, Human Rights in Internal Strife, p. 135–136.

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5 Extra-Territorial Applicability In general, human rights treaties are not based on the principle of reciprocity per se but rather justified by a common, independent objective: the protection of persons.89 The icj emphasized this common goal regarding the Genocide Convention when it said that ‘[in] such a convention the contracting States do not have any interests of their own; they merely have, one and all, a common interest, namely, the accomplishment of those high purposes which are the raison d’être of the convention’.90 Accordingly, the continued applicability of human rights obligations during armed conflicts, whether international or non-international, is desirable.91 In practice, their application depends on the armed conflict in question. In non-international armed conflicts, human rights treaties continue to apply because generally in such conflicts the jurisdiction of the state is not in question.92 In international armed conflicts, it needs to be assessed on a case-by-case basis whether human rights can effectively be applied while hostilities persist.93 Moreover, when a state is involved in a conflict beyond its own territory, the applicability of a human rights treaty hinges on whether it exercises extraterritorial jurisdiction. Once applicable, human rights guarantees can only be claimed by victims of violations who are under the jurisdiction of a state. Pursuant to article 2 iccpr, state parties are obliged to respect all the rights contained in the Covenant and ensure that all subjects within their territory 89 90 91

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Silja Vöneky, Die Fortgeltung des Umweltvölkerrechts in internationalen bewaffneten Konflikten (Springer Verlag, 2001), p. 287. International Court of Justice, Reservation to the Convention on the Prevention and Punishment of the Crime of Genocide, Advisory Opinion [1951], icj Reports, 1951, p. 69. Hampson argues that it is not a question of applicability because human rights treaties do apply extra-territorially, but rather a question of justiciability. She believes that this is where the question of effective jurisdiction becomes relevant. Jurisdiction is defined as ‘a claim of authority to perform certain acts’. This can be established when the state, for example in the situation of an occupation, exercised ‘the kind of power normally exercised by a government’. Then there is jurisdiction in the sense of the iccpr and the echr. Applicability is always present when a state has factual control over harm inflicting conduct, no matter where. Françoise Hamspon, ‘The Scope of extra-territorial Applicability of International Human Rights Law’, in Geoff Gilbert, et al. (eds), The Delivery of Human Rights – Essays in Honour of Professor Sir Nigel Rodley (Routledge, 2011). The difficult relationship of international humanitarian law and human rights law in non-international armed conflicts is often overlooked. Lubell, ‘Parallel Application: an Examination of the Debate’, p. 659. Noam Lubell, ‘Challenges in applying Human Rights Law to Armed Conflict’, 87 International Review of the Red Cross, 737 (2005), p. 741.

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and subject to their jurisdiction benefit from them. The two requirements are generally considered alternatives on which the jurisdiction also depends.94 The iccpr is applicable abroad when a state has effective control over a territory or physical control over a person.95 The Human Rights Committee established that whenever a state party is involved in an armed conflict, it has a legal obligation to ensure and protect the rights of persons ‘within the power or effective control of the forces of a State Party acting outside its territory, regardless of the circumstances in which such power or effective control was obtained’.96 To exercise extraterritorial jurisdiction, a state has to have such effective, factual authority and control over persons that it is able to secure the Convention’s rights – examples are the authority over military prisons abroad97 or occupation.98 This approach conforms to the object and aim of the iccpr99 and was confirmed by the icj in the Wall Case.100 However, there have been objections to the extraterritorial application of the iccpr by member states, namely the usa and Israel.101 The regime of extraterritorial applicability of the iccpr was heavily influenced by the developments concerning the European Convention of Human

94

Arguing in favor of a cumulative application of these requirements, Dennis, ‘Application of Human Rights Treaties Extraterritorially’, p. 122–124. 95 Theodor Meron, ‘Extraterritoriality of Human Rights Treaties’, 89 American Journal of International Law, 78 (1995), p. 79; Françoise Hampson, ‘The Scope of extra-territorial Applicability of International Human Rights Law’, in Geoff Gilbert, et al. (eds), The Delivery of Human Rights – Essays in Honour of Professor Sir Nigel Rodley (Routledge, 2011), p. 169. 96 Human Rights Committee, General Comment No. 31, para. 10. 97 House of Lords, Al-Skeini and Others v. Secretary of State for Defence [2007], ukhl, Vol. 26, para. 97. 98 icj, drc v. Uganda Case, para. 70. For an analysis, see Thomas Buergenthal, ‘The icj, Human Rights and Extraterritorial Jurisdiction’, in Stephan Breitenmoser, et al. (eds), Human Rights, Democracy and the Rule of Law (Dike Verlag, 2007). 99 Nowak, ccpr Commentary, p. 44. 100 icj, Consequences of the Construction of a Wall Case, para. 108–111. Dennis argues that the icj thus limited the applicability of human rights to situations beyond mere military occupation. Dennis, ‘Application of Human Rights Treaties Extraterritorially’, p. 123. 101 usa, see Human Rights Committee, Consideration of Reports submitted by States Parties under Article 40 of the Covenant, The second and third Periodic Reports of the United States of America, Doc. No. CCPR/C/USA/3 (2005), Annex I: Territorial Scope of the Application of the Covenant, p. 109; Human Rights Committee, Summary Record of the 2380th Meeting – Consideration of Reports under Article 40 of the Covenant – The second and third Periodic Reports of the United States of America (continued), Doc. No. CCPR/C/SR.2380 (2006), p. 3. For Israel, see icj, Consequences of the Construction of a Wall Case, para. 102; 110.

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Rights (echr). Article 1 echr solely refers to the requirement of jurisdiction. In its jurisprudence, the European Court of Human Rights (ECtHR) determined that the rights under the Convention are applicable on a territory where a member state to the echr has ‘effective overall control’.102 Despite disagreement in literature and contradictions with subsequent case law, the ECtHR in Banković denied that nato had effective overall control in casu but reaffirmed the extraterritorial application of the echr in exceptional cases.103 An exceptional case is that of the uk’s echr obligations in Iraq. In 2011, the ECtHR found that exclusive control over a detention facility and maintaining security, on the one hand, and engaging in security operations, on the other, meant that the uk exercised authority and control over detainees and persons killed respectively. Thus the ECtHR accepted extraterritorial jurisdiction in the sense of article 1 echr.104 In comparison, according to the wide, teleological approach of the Inter-American Commission on Human Rights (IAComHR) the rights under the American Convention of Human Rights benefit all ‘[persons] subject to a state’s authority and control’.105

102 This approach was first proposed in European Court of Human Rights, Loizidou v. Turkey, Judgment (Merits and Just Satisfaction) [1996], Reports 1996-VI, para. 51. The ‘effective overall control’ approach, even beyond European territory, was reaffirmed in European Court of Human Rights, Öcalan v. Turkey [2003], Reports 2003; European Court for Human Rights, Ilaşcu and Others v. Moldova and Russia, Judgment [2004], Reports 2004VII, para. 386–394; and European Court of Human Rights, Issa and Others v. Turkey, Judgment (Application no. 31821/96) [2004]. 103 European Court of Human Rights, Banković and Others v. Belgium and 16 Other Contracting States, Decision as to the Admissibility of Application No. 52207/99 [2001], Reports 2001-XII, para. 67, 70–71 and 80–82. 104 In the first case, the ECtHR rejects the uk’s argument that acts of soldiers in the uk detention facilities were purely attributable to the un, see European Court of Human Rights, Al-Jedda v. United Kingdom, Grand Chamber Judgment on Application no. 27021/08 [2011], para. 85. Arguments on the basis of European Court of Human Rights, Behrami and Behrami v. France and Saramati v. France, Germany and Norway, Grand Chamber Decision as to the Admissibility of Application no. 71412/01 and Application no. 78166/01 [2007] were rejected. In the second case, the ECtHR determined that a state has jurisdiction when it exercises physical power and control over persons or effective control over an area outside of national territory. In casu, being exceptional circumstances, the uk had temporarily exercised governmental powers by providing security in Iraq and, thus, exercised authority and control over Iraqi individuals. European Court of Human Rights, Al-Skeini and Others v. United Kingdom, Grand Chamber Judgment on Application no. 55721/07 [2011], para. 144. 105 IAComHR, Coard et al. v. United States, para. 37.

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The icescr does not contain a jurisdictional provision. This leads some to conclude that extraterritorial application was never envisioned.106 However, article 13 of the Optional Protocol determines that: A State Party shall take all appropriate measures to ensure that individuals under its jurisdiction are not subjected to any form of ill-treatment or intimidation as a consequence of communicating with the Committee pursuant to the present Protocol. If persons under the jurisdiction of a state party are entitled to submit a communication to the cescr, this implies that persons under the jurisdiction of that state should also enjoy the rights under the Covenant. This corresponds to the findings of the icj in the Wall case where it applied the ‘jurisdiction test’ to ascertain the extraterritorial applicability of the iccpr mutatis mutandi to the icescr.107 The cescr similarly established in its non-binding yet authoritative observations that ‘the State’s obligations under the Covenant apply to all territories and populations under its effective control’.108 This position has been endorsed in literature and will also be followed here: if human rights treaties concerning civil and political rights apply extraterritorially in armed conflict, consequently and coherently so should treaties concerning economic, social and cultural rights, as far as implementation is possible.109 It can be surmised from the different human rights treaty regimes that states exercise extraterritorial jurisdiction in two instances. One situation is when a state has effective control over a territory.110 This corresponds to the requirement of ‘established and exercised authority’ which triggers certain obligations for an occupying power pursuant to article 42 Hague Regulations of 1907. Human rights obligations are, however, generated more easily than obligations for occupying powers pursuant to international humanitarian law because ‘authority’ provides a higher threshold than ‘effective control’. The latter can also arise, and human rights thus apply, in situations falling short of an occupation.111 106 Dennis, ‘Application of Human Rights Treaties Extraterritorially’, p. 127. 107 icj, Consequences of the Construction of a Wall Case, para. 112. 108 Committee on Economic, Social and Cultural Rights, Concluding Observations: Israel, Doc. No. E/C.12/1/Add.27 (4 December 1998), para. 8. 109 Elizabeth Mottershaw, ‘Economic, Social and Cultural Rights in Armed Conflict: International Human Rights Law and International Humanitarian Law’, 12 The International Journal of Human Rights, 449 (2008), p. 453–454. 110 Dröge, ‘The Interplay between International Humanitarian Law and International Human Rights Law in Situations of Armed Conflict’, p. 325. 111 Ibid. p. 332.

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This mode of jurisdiction would be relevant when the victim of a human rights violation was not physically in the power of the respective state but in the territory of an adversary. Secondly, human rights may apply extraterritorially when a state exercises jurisdiction over persons of a foreign state, particularly when physically in its power.112 This requirement also plays a role in the protection of persons in international humanitarian law, for example in article 11 ap I. Human rights would thus apply when a wounded person is treated by medical personnel of a state, for example a military physician. The person treated would then physically be in the power of that state. However, not all those providing medical care during armed conflict are state agents. States would not necessarily be responsible for violations of the rights of patients by civilian medical personnel or physicians working for humanitarian aid organizations.113 To be able to seek redress for a violation of human rights, a persons would have to be under the jurisdiction of the relevant state and that state would have to have had effective control over the person committing the harm inflicting conduct.114 B

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International humanitarian law provides safeguards for protected persons and rules of behavior for all actors in armed conflicts. Its protection is non-derogable and applicable as soon as there is an armed conflict, whereas the protection of human rights depends on whether they apply in a conflict and on a territory and on the measures taken by states to ensure their respect. Nonetheless, in certain situations human rights complement international humanitarian law and provide additional remedies or securities for the wounded and sick especially when in the power of an adverse party to the conflict. Hence, five human rights relevant in situations where medical care is given or required will be discussed below. 112 Buergenthal prefers this approach. Buergenthal, ‘State Obligations and Permissible Derogations’, p. 74. See for example Human Rights Committee, Lopez Burgos v. Uruguay, Doc. No. CCPR/C/13/D/52/1979 (29 July 1981), para. 12.3; European Court of Human Rights, Issa and Others v. Turkey, Judgment (Merits) [2005], para 71. 113 Such medical personnel is not directly bound by human rights obligations as only states and state agents are immediately bound. Of course, there is a limited horizontal effect: states should ensure the rights of individuals are protected against third party interference, as discussed above. 114 Hampson, ‘The Scope of extra-territorial Applicability of International Human Rights Law’, p. 182.

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1 The Right to Life The most fundamental and supreme human right is the right to life. It provides a ‘prerequisite’ for all other human rights. Codified in article 6 iccpr, the right to life is the only right under the Covenant that is explicitly defined as ‘inherent’.115 Pursuant to article 4 (2) iccpr, the right to life is an absolute right that cannot be derogated from. Perhaps more precisely, article 15 (2) echr explicitly determines that that the right to life can be derogated from ‘in respect of deaths resulting from lawful acts of war’. Although what constitutes a lawful act is not determined, this is a clear recognition of the supersession of principles of international humanitarian law over the right to life regime in times of armed conflict. An analysis of the ECtHR’s jurisprudence regarding the right to life in non-international armed conflicts reveals that three factors play a role in establishing an alleged violation to the right to life: legality, necessity and proportionality.116 However, due to a lack of official declarations of derogation based on the situation of an armed conflict, the ECtHR has never evaluated violations by a state of the laws of armed conflict. Even in cases where reference to the laws of armed conflict seemed unavoidable, the ECtHR ignored any and all similarities.117 Article 6 iccpr contains a positive obligation for states to respect the right to life, but also to actively ensure individuals’ protection against arbitrary deprivation thereof.118 This includes an effort to reduce threats to lives of persons by private actors,119 such as doctors, but also threats to life due to armed conflict.120 The main avenue for states to protect the right to life is by legislative measures, including but not limited to national criminal legislation.121

115 The right to life can also be found in articles 2 echr, 4 (1) iachr, and 4 achpr. 116 Most prominently, see ECtHR, Isayeva v. Russia, para. 180; European Court of Human Rights, Nachova and Others v. Bulgaria, Judgment (Applications nos. 43577/98 and 43579/98) [2005], para. 95. See also Guellali, ‘Lex Specialis, Droit International Humanitaire et Droits de l’Homme’, p. 553; Louise Doswald-Beck, ‘The Right to Life in Armed Conflict: does International Humanitarian Law provide all the Answers?’, 88 International Review of the Red Cross, 881 (2006), p. 887. 117 Guellali, ‘Lex Specialis, Droit International Humanitaire et Droits de l’Homme’, p. 549– 550; 554. 118 Article 2 (1) iccpr. See also Human Rights Committee, General Comment No. 31, para. 8. 119 Yoram Dinstein, ‘The Right to Life, Physical Integrity, and Liberty’, in Louis Henkin (ed), The International Bill of Rights – The Covenant on Civil and Political Rights (Columbia University Press, 1981), p. 119. 120 Nowak, ccpr Commentary, p. 123. 121 Ibid. p. 123.

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Life can never be taken ‘arbitrarily’, as stipulated in the third sentence of article 6 (1) iccpr. This would constitute a violation of article 6 iccpr. In the drafting sessions, the idea to exhaustively stipulate exceptions to the right to life like in article 2 (2) echr, including medical exceptions such as ‘killing by medical operation in absence of gross negligence or malpractice’,122 were rejected. Since no single interpretation of the word ‘arbitrary’ has crystallized in literature or case law,123 whether a deprivation was arbitrary depends on the circumstances of the case124; generally whether the killing of a person is proportional to the goal pursued.125 Questions about the right to life are particularly crucial in armed conflict where the absolute, non-derogable character of the right to life needs to be qualified. Even though the wounded and sick, prisoners of war and civilians who are hors de combat are generally protected,126 in armed conflict the life of combatants or civilians actively participating in hostilities can lawfully be taken without violating international humanitarian law.127 It depends on the individual’s status or involvement in hostilities.128 Based on the principle of distinction, lives taken have to be in proportion to the military advantage. In its Nuclear Weapons advisory opinion, the icj went a step further in determining that ‘[the] test of what is an arbitrary deprivation of life, however, then falls to be determined by the applicable lex specialis, namely, the law applicable in armed conflict which is designed to regulate the conduct of hostilities’.129 Conceding that the different levels of protection in international 122 Economic and Social Council, Commission on Human Rights, Report of the Drafting Committee to the Commission on Human Rights, Doc. No. E/CN.4/95 (21 May 1948), p. 18. 123 Regarding the discussion in the drafting sessions and the subsequent compromise, see C.K. Boyle, ‘The Concept of Arbitrary Deprivation of Life’, in B.G. Ramcharan (ed), The Right to Life in International Law (Martinus Nijhoff Publishers, 1985), p. 230–232. 124 Nowak, ccpr Commentary, p. 129. 125 In literature, see Doswald-Beck, ‘The Right to Life in Armed Conflict’, p. 886; GowllandDebbas, ‘The Right to Life and the Relationship between Human Rights and Humanitarian Law’, p. 146. In case law, see Human Rights Committee, Camargo and de Guerrero v. Colombia [1982], Communication No. R.11/45, u.n. Doc. Supp. No. 40 (A/37/40), para 13.2. 126 Regarding the wounded and sick: article 12 (2) gc I and II states that ‘[a]ny attempts upon their lives […] shall be strictly prohibited’. Regarding prisoners of war, less explicitly: articles 13 and 14 gc III; and regarding civilians: articles 27 gc IV, 75 ap I, and 4 ap II. 127 International humanitarian law concerning non-international armed conflicts does not distinguish between combatants and civilians. In practice such a distinction may exists, but in theory the protection of a person in a non-international armed conflict depends on his active participation in hostilities. See common article 3 gc’s and article 4 (1) ap II. 128 Gaggioli & Kolb, ‘A Right to Life in Armed Conflicts?’, p. 135. 129 icj, Nuclear Weapons Case, para. 25.

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humanitarian law represent norms with lex specialis character, international humanitarian law should not be considered as the lex specialis to human rights law by default.130 Beyond the basic protection of the right to life, Hestermeyer follows an extensive interpretation of the right to life.131 He argues that the right to life includes ‘basic survival conditions’, including access to life-saving medication. If applied analogously, this could imply an obligation for states to ensure lifesaving medical care as well. The provision of life-saving medical care to the wounded and sick is also required by international humanitarian law in armed conflicts. Drawing rights from article 6 iccpr would make its protection all the more relevant in armed conflicts because states would thus have an obligation to provide such medical care and a failure to do so would violate their obligations under the iccpr. In its findings on the Lanstova v. Russian Federation case, the Human Rights Committee came to a similar conclusion. It found that under article 6 iccpr, a state has a positive obligation to ensure the health of persons deprived of their liberty, including medical care.132 Thus, applied to the medical care of persons in armed conflict this would complement article 11 ap I especially if applied beyond the context of detention. Critical of this approach is Dinstein who limits the protection of article 6 iccpr to a negative obligation for states, namely purely the protection against homicide.133 Only a purposeful denial of life-saving medical treatment could, according to Dinstein, be an arbitrary deprivation of life. Although the idea of a positive obligation for states to ensure basic survival requirements based on article 6 iccpr is farreaching, it is desirable and commendable as states would be obliged to provide the existential basics for survival, especially for persons in need of medical care and not able to obtain it freely. 130 Doswald-Beck, ‘The Right to Life in Armed Conflict’, p. 882; 900. 131 Holger Hestermeyer, ‘Access to Medication as a Human Right’, 8 Max Planck Yearbook of United Nations Law, 101 (2004), p. 150–151. Comparable, but less extensive see Bertrand G. Ramcharan, ‘The Concept and Dimensions of the Right to Life’, in B.G. Ramcharan (ed), The Right to Life in International Law (Martinus Nijhoff Publishers, 1985), p. 10. 132 The hrc found that: ‘the essential fact remains that the State party by arresting and detaining individuals takes the responsibility to care for their life. […] The Committee considers that a properly functioning medical service within the detention centre could and should have known about the dangerous change in the state of health of Mr Lantsov. It considers that the State party failed to take appropriate measures to protect Mr Lantsov’s life during the period he spent in the detention centre’. Human Rights Committee, Lantsova v. Russian Federation [2002], Communication No. 763/1997 (26 March 2002), Doc. No. CCPR/C/74/D/763/1997, para. 9.2. 133 Dinstein, ‘The Right to Life, Physical Integrity, and Liberty’, p. 116.

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It is furthermore an essential part of states’ obligation under article 6 icppr to ensure the right to health.134 This additional obligation based on human rights law can fill gaps left by international humanitarian law if suitable in a certain case, especially as the right to life is a non-derogable human right and the iccpr is equipped with a relatively elaborate remedial apparatus. Nevertheless, international humanitarian law already provides an absolute obligation for states regarding life-saving medical care.135 In that sense, the norms in international humanitarian law concerning the obligation to supply the wounded and sick, whether civilian or combatant, with the necessary medical care is a lex specialis norm to the broad human rights obligation to protect persons against deprivation of life. 2 The Right to Health Article 12 icescr establishes the right to health as an international human right.136 It obliges states to recognize a right to the highest attainable standard of health of all persons. This formulation is consistent with the preamble of the Constitution of the World Health Organization (who): ‘The enjoyment of the highest attainable standard of health is one of the fundamental rights of every human being without distinction of race, religion, political belief, economic or social condition’.137 According to the cescr, the right to health as a bare minimum includes a right to basic health care.138 This would include medical care provided to 134 Human Rights Committee, General Comment No. 6 – The Right to Life (Article 6), Doc. No. HRI/GEN/1/Rev.1 at 6 (30 April 1982), para. 5. 135 For international armed conflicts, see articles 15 gc I, 18 gc II, 15 gc III, 10 (2) ap I, and for non-international armed conflicts, see articles 7 (2) ap II and common article 3 (2) gcs. 136 Article 12 icescr furthered article 25 udhr. There is no agreement on the binding character of article 25 udhr. Toebes considers the right to health binding as part of customary international law. Brigit Toebes, The Right to Health as a Human Right in International Law (Intersentia, 1999), p. 40. Conversely, Hestermeyer denies the binding nature of the provision. Hestermeyer, ‘Access to Medication as a Human Right’, p. 156–157. Furthermore, see article 24 of the Convention on the Rights of the Child, article 11 of the European Social Charter and article 16 achpr. In addition, article 55 un Charter determines that ‘[with] a view to the creation of conditions of stability and well-being which are necessary for peaceful and friendly relations among nations […] the United Nations shall promote […] solutions of international economic, social, health, and related problems’. 137 World Health Organization, Constitution of the World Health Organization (adopted by the International Health Conference, signed on 22 July 1946, and entered into force on 7 April 1948) (1946). 138 cescr, General Comment No. 14 (2000), para. 43. Though the General Comment is not binding on the members of the cescr, it is of interpretative value. Magdalena Sepúlveda, The Nature

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protected persons in armed conflict and correspond to article 10 ap I.139 The highest attainable standard of health does not mean ‘being healthy’ but to be free from interference, explicitly from non-consensual medical treatment and experiments.140 With this, General Comment No. 14 introduced a safeguard against medical treatment that was rejected in the drafting of article 12 icescr.141 It corresponds to the protection against unwarranted medical procedures in international humanitarian law. In the context of the economic, social and cultural rights, states have an obligation to ‘respect, protect and fulfill’ the rights.142 The duty to respect as a negative obligation and to protect as a positive obligation is comparable to the obligation in international humanitarian law, for example article 10 ap I. Concerning the right to health, the obligation to respect means that states should not limit detained persons’ access to health care or subject patients to medical treatment without their consent. Although non-consensual medical interventions, including force-feeding, are not explicitly proscribed by international law, it can be surmised that hunger strikers have clearly not given their consent to being force-fed. In respecting a person’s right to health, the physician may only intervene medically when the competent hunger striker has given his informed consent to being fed. A change of conditions may at times justify artificial, never force-feeding.143 Force-feeding would thus mean a violation of the right to health.144

of the Obligations under the International Covenant on Economic, Social and Cultural Rights (Intersentia, 2003), p. 40–42; Hestermeyer, ‘Access to Medication as a Human Right’, p. 121. 139 Additionally, article 12 (2) icescr contains a number of specific, illustrative measures that states should take to contribute to the health of their citizens. These are not of specific relevance in armed conflict as they do not concern the basic needs that the wounded and sick have in armed conflicts. 140 cescr, General Comment No. 14 (2000), para. 8. Article 12 (1) icescr provides that: ‘The States Parties to the present Covenant recognize the right of everyone to the enjoyment of the highest attainable standard of physical and mental health’. 141 Toebes, The Right to Health as a Human Right in International Law, p. 50–51. 142 The ‘tripartite typology’ was introduced in: Asbjørn Eide, Economic and Social Council Commission on Human Rights, The New International Economic Order and the Promotion of Human Rights – Report on the Right to Adequate Food as a Human Right, Doc. No. E/ CN.4/Sub.2/1987/23 (1987), para. 66–69. For an analysis, consult Sepúlveda, The Nature of the Obligations under the International Covenant on Economic, Social and Cultural Rights, Chapter V. 143 WMA Journal Editors, ‘A Background Paper on the Ethical Management of Hunger Strikes’, p. 40. 144 This was also the conclusion in Leila Zerrougui, et al., ‘Report on the Situation of Detainees at Guantánamo Bay’, para. 72–82.

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The obligation to fulfill is a rather vague obligation that includes an obligation for a state to provide for access to quality and acceptable health services and information.145 As the right to health ‘must be understood as a right to the enjoyment of a variety of facilities, goods, services and conditions necessary for the realization of the highest attainable standard of health’, an essential element of acceptability of health facilities, goods and services should be that they are ‘respectful of medical ethics and culturally appropriate’.146 It includes the insurance of ‘appropriate standards of education, skill and ethical codes of conduct’ for all medical practitioners.147 Interestingly, the cescr directly linked cultural appropriateness and medical ethics. This could imply that medical ethics should also be viewed culturally. The General Comment does not provide a definition or interpretation of medical ethics or ‘ethical codes of conduct’. Hence, there is also a blind spot concerning medical ethics in the context of the right to health. Furthermore, the state should ensure that physicians as private actors enjoy an environment ‘that enables them to optimize their efforts’.148 Whether private actors, such as civilian doctors, could also have individual responsibilities under the icescr calls for further examination.149 If a state is unwilling to fulfill its obligations, for example by denying access to health facilities,150 the cescr considers this a violation of the right to health. States unable to fulfill even the bare minimum and able to prove their efforts, should not be considered unwilling.151 Victims of violations of the right to health should be provided with access to effective and appropriate remedies, amongst others judicial remedies. General Comment No. 14 calls upon the legal profession to be alert to violations of the right to health.152 As a last resort,

145 Brigit Toebes, ‘The Right to Health’, in Asbjørn Eide (ed), Economic, Social and Cultural Rights: A Textbook (Martinus Nijhoff Publishers, 2001), p. 180; 184. Notably, the African Charter on Human and Peoples’ Rights contains an explicit positive obligation in article 16 (2) achpr: ‘States parties to the present Charter shall take the necessary measures to protect the health of their people and to ensure that they receive medical attention when they are sick’. 146 cescr, General Comment No. 14 (2000), para 9 and 12 (c). 147 Ibid. para. 34–35; 44 (e). 148 Eibe Riedel, ‘The International Protection of the Right to Health’, in Rüdiger Wolfrum (ed), Max Planck Encyclopedia of Public International Law (Oxford University Press, 2012), para 43. 149 Toebes, ‘The Right to Health’, p. 189. 150 For examples, see Ibid. p. 180–181. 151 Hestermeyer, ‘Access to Medication as a Human Right’, p. 143. 152 cescr, General Comment No. 14 (2000), Sections 3 and 4.

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victims of violations could bring an individual communication before the cescr.153 In general the obligation for states to respect, protect and fulfill a right to health of all people under their effective control can be limited in accordance with article 4 icescr but the minimum core of the right to health which should include emergency medical care may not be limited or derogated from.154 As the icescr can apply extraterritorially, states also need to ensure the highest attainable standard of health when involved in international armed conflicts abroad or acting as occupying power.155 In armed conflicts, states have an obligation to ensure that the wounded and sick have access to a minimum of medical care which should, according to General Comment No. 14, be respectful of medical ethics and cultural aspects. So far, this correlates to the provisions in international humanitarian law. According to articles 10 (2) ap I and 7 (2) ap II every wounded and sick person should ‘to the fullest extent practicable and with the least delay, receive the medical care and attention required by their condition’. It also corresponds to articles 16 ap I and 10 ap II concerning the protection of medical duties if carried out in accordance with medical ethics. Even though some believe human rights to be more detailed,156 the provisions concerning medical care of protected persons under international humanitarian law, especially articles 11 ap I and 5 (2)(e) ap II concerning the actual medical treatment, provide more detail than the rather broad right to health. Furthermore, the right to health beyond emergency medical care can be limited pursuant to article 2 (1) icescr, whereas the obligations under Geneva Law are absolute and cannot be derogated from. In that sense, the protection offered by international humanitarian law provides better protection for protected persons requiring medical care during armed conflict. The right to the highest attainable standard of health can be used as a subsidiary to the general humanitarian rules. Particularly the extensive state obligations are an advantage over and could supplement international humanitarian law. 153 Article 2 of the Optional Protocol to the icescr. 154 Although Toebes concludes that a core content should be applicable in armed conflicts, she does not include basic medical care in her core content of the right to health. Toebes, The Right to Health as a Human Right in International Law, p. 79; 284. 155 Lubell argues that this is only in case of a ‘prolonged occupation’, as is the case in the Occupied Palestinian Territories. Lubell, ‘Challenges in applying Human Rights Law to Armed Conflict’, p. 753. 156 Concerning the right to health: Ibid. p. 751. In general: Mottershaw, ‘Economic, Social and Cultural Rights in Armed Conflict’, p. 456–457.

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The Prohibition of Torture and Cruel, Inhuman or Degrading Treatment The right to be free from torture or cruel, inhuman or degrading treatment or punishment is recognized both in international humanitarian law and human rights law.157 The relevant human rights norms can be found in articles 7 iccpr and 5 udhr and the Convention against Torture (cat).158 Article 7 iccpr’s non-derogable character also flows from article 4 (2) iccpr. Though the prohibition is absolute and part of jus cogens,159 torture is still widely practiced, also in the context of armed conflicts.160 In armed conflicts, the rights in article 7 iccpr are especially relevant for prisoners of war and civilians deprived of their liberty as they are most vulnerable to acts of torture or ill-treatment. Nonetheless, all persons in need of medical care depend on the persons providing it and are vulnerable to ill-treatment. The possibility of medical involvement in torture or ill-treatment is often neglected. The Report on Torture and other Cruel, Inhuman or Degrading Treatment or Punishment by un Special Rapporteur Manfred Nowak of 5 February 2010, for example, not once mentioned the direct involvement of medical personnel in torture or ill-treatment.161 Only ethical implications for physicians working in detention facilities and their role in documentation and reporting were included.162 However, in a more recent report by un Special Rapporteur Juan E. Méndez, it is emphasized

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157 In international armed conflicts, articles 12 gc I and gc II, 17 gc III, 32 gc IV, and 11 and 75 (2)(ii) and (iv) ap I and in non-international armed conflicts common article 3 gcs and article 4 (2)(a) ap II prohibit torture and call for humane treatment. Cruel, inhuman and/ or degrading treatment is not explicitly prohibited though inhuman treatment is one of the ‘classic’ grave breaches. 158 Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, A/RES/39/46 of 10 December 1984. See also article 37 (a) Convention on the Rights of the Child. On a regional level, the prohibition of torture can be found in article 5 iachr, article 5 echr, and article 5 achpr. 159 Article 53 Vienna Convention of the Law of Treaties. See icty Furundžija Trial Judgment, para. 155–157. See also Nowak, ccpr Commentary, p. 158. 160 See for example inhuman or degrading treatment or punishment of the Human Rights Council, Special Rapporteur on Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, Manfred Nowak, Report on Torture and other Cruel, Inhuman or Degrading Treatment or Punishment: Study on the phenomena of torture, cruel, inhuman or degrading treatment or punishment in the world, including an assessment of conditions of detention, Doc. No. A/HRC/13/39/Add.5 (5 February 2010). Also, see the claims that the usa practiced torture in detention facilities in the ‘war on terror’ in Chapter 1. 161 Ibid. 162 Ibid. para. 127–128.

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that physicians should not ‘consent or acquiesce to torture or other ill-treatment, let alone take active part in any such ill-treatment’.163 Pursuant to article 1 cat, torture is defined as: any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. This definition serves as an interpretational basis for the iccpr although the Human Rights Committee has widened the scope of protection. An act constitutes torture when there is an active undertaking, intention, and purposefulness on the part of the perpetrator, and severe pain for the victim.164 Victims of torture and cruel, inhuman or degrading treatment are often persons deprived of their liberty, for example prisoners or war, or in a situation of vulnerability or dependency, for example patients in hospitals. The denial or deprivation of medical care to persons deprived of their liberty can constitute cruel or inhumane treatment.165 Treatment that does not amount to ill-treatment may nevertheless violate the humanity and dignity of a person detained as protected by article 10 iccpr.166 Whether in a concrete case treatment constituted torture or cruel, inhuman or degrading treatment should not be subject to a static interpretation but 163 Juan E. Mendez, un Special Rapporteur on Torture, Interim Report of the Special Rapporteur on Torture and other cruel, inhuman or degrading treatment or punishment, Doc. No. A/68/295, (9 August 2013), para. 56. 164 Nowak, ccpr Commentary, p. 161. 165 For example in Human Rights Committee, Essono Mika Miha v. Equatorial Guinea [1994], Communication No. 414/1990, Doc. No. CCPR/C/51/D/414/1990, para. 6.4. Currently, a petition is pending before the Inter-American Commission on Human Rights, see InterAmerican Commission on Human Rights, Petition and Request for Precautionary Measures to the Inter-American Commission on Human Rights by Djamel Ameziane (Prisoner, u.s. Naval Station, Guantánamo Bay, Cuba) (6 August 2008), para. 166–177. Ameziane alleges a violation of articles I and XXV in conjunction with article XI of the American Declaration on the Rights and Duties of Men based on the denial of medical care. 166 Nowak, ccpr Commentary, p. 166.

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rather be determined on a case-by-case basis.167 The cat operates on a ‘pyramid theory’ by which ‘acts [which] do not amount to torture’168 constitute cruel, inhuman and degrading treatment. Yet, the sliding scale formula of the pyramid theory is too uncertain and subjective to provide valuable protection against torture. An approach using the purpose behind the act as a distinguishing factor, for example in the Elements of Crime concerning article 8 (2)(c)(i)-4 Rome Statute, is preferable.169 Pursuant to the Elements of Crimes cruel, inhuman and degrading treatment is the infliction of ‘severe physical or mental pain or suffering upon one or more persons’.170 According to the Human Rights Committee’s interpretation, not only public officials can commit torture or illtreatment but also private actors acting in a non-official capacity.171 The icty supports this approach.172 This means that both military and civilian physicians should be aware that active or passive involvement in ill-treatment or torture and the denial of medical treatment can be violations of article 7 iccpr. Looking at the reports of treatment of detainees in cia detention facilities and Guantánamo Bay, one can draw the conclusion that the use of extensive sleep deprivation, stress positions, environmental manipulation, intense fear, forced nudity, humiliation, and ‘waterboarding’ is cruel and inhuman.173 Yet

167 Human Rights Committee, General Comment No. 20 (1982), para. 4. 168 Article 16 cat. 169 Nigel S. Rodley, ‘The Prohibition of Torture: Absolute means Absolute’, in Wolfgang Kaleck, et al. (eds), International Prosecution of Human Rights Crimes (Springer, 2007), p. 196; Manfred Nowak, ‘Challenges to the Absolute Nature of the Prohibition of Torture and Ill-Treatment’, 23 Netherlands Quarterly of Human Rights, 674 (2005), p. 678. 170 icc Elements of Crimes, article 8 (2)(c)(i)-4, p. 34. 171 Human Rights Committee, General Comment No. 20 (1982), para. 2. 172 See icty Kunarac Trial Judgment, para. 496; International Criminal Tribunal for the former Yugoslavia, Prosecutor v. Dragoljub Kunarac, Radomir Kovač, and Zoran Vuković, Appeals Chamber Judgment [2002], para. 148; International Criminal Tribunal for the former Yugoslavia, Prosecutor v. Milorad Krnojelac, Trial Chamber Judgment [2002], para. 187. This approach was previously rejected in icty Čelebići Trial Judgment, para. 473; icty Furundžija Trial Judgment, para. 162; and International Criminal Tribunal for the former Yugoslavia, Prosecutor v. Anto Furundžija, Appeals Chamber Judgment [2000], para. 111. 173 For an extensive collection of backgrounds documents, see American Civil Liberties Union Homepage: Accountability for Torture. See also International Committee of the Red Cross, icrc Report 2004, p. 393; ICRC, Report on the Treatment of Fourteen “High-Value Detainees” in cia Custody, p. 26–27; and Hashemian, ‘Broken Laws, Broken Lives – Medical Evidence of Torture by us Personnel and Its Impact’.

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also the medical supervision of ill-treatment and the medical examination to assess fitness for interrogation was inhuman, degrading and cruel.174 At times it even amounted to torture.175 Non-consensual medical interventions and force-feeding also meet this threshold because such interventions are often painful and degrading for detainees.176 Although feeding by force is inhuman per se177 and may violate an individual’s bodily integrity, the European Court of Human Rights introduced an exception to this in its decision in Nevmerzhitsky v. Ukraine of 2005. It determined that force-feeding only constitutes a violation of article 3 echr which prohibits torture and cruel, inhuman and degrading treatment when there is no medical necessity and it is carried out in a manner inconsistent with the provision.178 The judgment was supported by the International Criminal Tribunal for the former Yugoslavia in an order concerning a hunger strike by Vojislav Šešelj.179 Through the indicator of medical necessity, both courts left the door ajar for justified force-feeding. However, in many cases detainees are still strong enough to resist feeding in such a way that they need to be severely restrained. This would then demonstrate a lack of medical necessity. Overall, states are under an obligation to penalize torture and cruel, inhuman or degrading punishment, educate people about the prohibitions, provide special safeguards for vulnerable groups, such as detained persons, and provide effective remedies and complaint procedures. To prevent medical 174 ICRC, Report on the Treatment of Fourteen “High-Value Detainees” in cia Custody, p. 26; Leila Zerrougui, et al., ‘Report on the Situation of Detainees at Guantánamo Bay’. Torture and inhuman treatment are also prohibited in common article 3 gcs and articles 12 gc I and II, 13 gc III, and 27 and 32 gc IV, as well as article 75 ap I. Such practices are considered grave breaches when committed in an international armed conflict. See articles 50 gc I, 51 gc II, 130 gc III, and 147 gc IV. 175 Sands, Torture Team, p. 207–210. 176 For an example of non-consensual medical treatment with intravenous drips, see Ibid. p. 205. Concerning force-feeding, see Leila Zerrougui, et al., ‘Report on the Situation of Detainees at Guantánamo Bay’, para. 54; Juan E. Mendez, un Special Rapporteur on Torture, Statement the Expert Meeting on the situation of detainees held at the u.s. Naval Base at Guantanamo Bay, (3 October 2013). 177 This position is supported by Reyes, ‘Medical and Ethical Aspects of Hunger Strikes in Custody and the Issues of Torture’, p. 309. An ethical discussion of force-feeding can be found in Chapter 1. 178 European Court if Human Rights, Nevmerzhitsky v. Ukraine, Judgment (Applicant No. 54825/00) [2005], para. 93–99. 179 International Criminal Tribunal for the former Yugoslavia, Prosecutor v. Vojislav Šešelj, Urgent Order to the Dutch Authorities regarding Health and Welfare of the Accused [2006], para. 12 et seq.

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involvement in ill-treatment and torture, all physicians should, as proposed by the Human Rights Committee, be targeted in training and instruction by states. The prohibition in article 7 iccpr should be included in their ethical standards.180 Because superior orders can never justify torture or ill-treatment, persons should never be punished in any way for disobeying orders to commit the prohibited acts.181 This echoes the protection offered to medical personnel in article 16 ap I and 10 ap II. In this respect, international humanitarian law and human rights law are aligned. Even though international humanitarian law prohibits torture and inhuman treatment and calls for its prosecution as a grave breach, article 7 iccpr has additional value due to its non-derogable character, the explicit, as such unbeknown to international humanitarian law, prohibition of cruel, inhuman and degrading treatment, and the provision of remedies. These remedies include the option of individual complaints both under the iccpr and the cat.182 Its protection is thus complementary to the protection under international humanitarian law. In practice, it will have to be seen whether a victim of torture finds a more satisfactory remedy in the options provided by human rights law or prosecution of torture as a war crime.183 4 The Prohibition of Medical and Scientific Experimentation As a response to the atrocities committed under the guise of ‘medical experimentation’ during World War II, an explicit prohibition of medical experimentation was introduced in article 7 iccpr next to the prohibition of torture and ill-treatment.184 Pursuant to article 7 iccpr ‘no one shall be subjected without

180 Human Rights Committee, General Comment No. 20 (1982), para. 10. 181 Pursuant to article 2 (3) cat: ‘An order from a superior officer or a public authority may not be invoked as a justification of torture’. Concerning disobedience of unlawful orders, Human Rights Committee General Comment No. 20 (1982), para. 13. 182 Under the Convention against Torture there are three enforcement mechanisms: individual communications; state-to-state complaints; and inquiries. The individual complaints procedure is established under article 22 cat. 183 In criminal prosecutions, human rights law can play a great role as interpretational tool but it should be kept in mind that provisions in international human rights and criminal law are not necessarily compatible. See, Robert Cryer, ‘The Interplay of Human Rights and Humanitarian Law: The Approach of the icty’, 14 Journal of Conflict and Security Law, 511 (2009). 184 UN Secretary General, Annotations on the Text of the Draft International Covenants on Human Rights, Ch. VI, para. 14.

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his free consent to medical or scientific experimentation’.185 Originally, a separate article prohibiting ‘any form of physical mutilation or medical or scientific experimentation against [someone’s] will’ was proposed by the usa with an enumeration of exceptions.186 Regrettably, a circumscribed version of the draft article with a focus on experimentation was adopted. Due to sparse information concerning this prohibition in state reports and the very succinct nature of article 7 iccpr, human rights law offers little explanation concerning prohibited medical procedures or experiments. Only in one case before the Human Rights Committee was ill-treatment by medical experimentation alleged. The Human Rights Committee found inhuman treatment in the case but did not specify reasons for its finding.187 However, the Human Rights Committee in 1982 called upon states to pay more attention to the observance of this provision.188 The fact that the prohibition is introduced with ‘in particular’ implies that involuntary experiments are considered as cruel, inhuman and degrading treatment or even torture. Literature assumes a restrictive view that only experiments that also meet the criteria of cruel, inhuman and degrading treatment or that are carried out without the free consent of the research subject are prohibited.189 An exception to the prohibition aimed at allowing new, experimental treatment in emergency situations was generally accepted: ‘failure to obtain the consent of a sick, sometimes unconscious, person should not make any dangerous experimentation illegal where “such was required by his state of physical or mental health”’.190 Despite the presumption that a non-consensual experiment on a patient is cruel, inhuman or degrading, in rare cases, and here a restrictive interpretation should be applied, where experimental treatment is 185 The same formulation and prohibition can also be found in article 15 of the Convention on the Rights of Persons with Disabilities, A/61/611 of 6 December 2006. 186 The envisioned exceptions were compulsory vaccination, legitimate medical and scientific experimentation in hospitals for the insane, with the consent of parent or guardian, of the patient, emergency operations undertaken to save the life of patient, where the patient is unable to give his consent or where a person empowered to give consent on behalf of the patient, gives such consent, and possibly others. Economic and Social Council, Commission on Human Rights, Report of the Drafting Committee to the Commission on Human Rights, Doc. No. E/CN.4/95 (21 May 1948), p. 18–19. 187 Human Rights Committee, Antonio Viana Acosta v. Uruguay [1984], Communication No. 110/1981 (31 March 1983), Doc. Supp. No. 40 (A/39/40), para 2.7 and 13.2–15. 188 Human Rights Committee, General Comment No. 20 (1982), para. 7. 189 Nowak, ccpr Commentary, p. 189; 191. 190 UN Secretary General, Annotations on the Text of the Draft International Covenants on Human Rights, Ch. VI, para. 15.

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to the benefit of the person’s physical or mental health such treatment is not considered a violation of article 7 iccpr. This exception to the prohibition of experimentation is broader than that found in international humanitarian law for persons deprived of their liberty who are due to their situation most often at risk. Article 12 gc I and II contains an absolute prohibition of experiments on wounded and sick combatants. Yet medical and scientific experiments are allowed on persons deprived of their liberty and prisoners of war if justified by a person’s health and in her interest, as well as when consistent with generally accepted medical standards.191 The norms of international humanitarian law should in this context thus be seen as lex specialis to the human rights prohibition as they provide more protection against non-consensual experiments. However as these provisions are limited to prisoners of war and persons of the adversary party who are deprived of their liberty, article 7 iccpr, which is non-derogable and protects all persons, whether citizens of a state or persons in the power or jurisdiction of that state, might provide a valuable safety-net. Moreover, human rights law provides the option of personal remedy where international humanitarian law only provides for criminal prosecution which is highly dependable on the state. 5 The Right of Detainees to be Treated with Humanity and Dignity Article 10 iccpr introduces a positive obligation for states to ensure the protection of the right to humanity and dignity of all persons deprived of liberty.192 Besides interned civilians or prisoners of war, this includes all persons in hospitals. The right under article 10 iccpr is derogable, though implementation should not depend on material resources.193 In general, violations of article 10 iccpr require a lower degree of intensity than violations of the prohibition of torture of article 7 iccpr.194 Whether conditions of detention violate the humanity and dignity of persons deprived of their liberty, depends on the circumstances. The general state of a detention facility contributes to establishing whether the conditions are humane and dignified. The denial or inadequate provision of medical care for detained persons can result in a violation of article 10 iccpr.195 In order to prevent 191 Articles 13 gc III and 11 ap I. Concerning the latter, see Sandoz, et al. (eds), Commentary to the Additional Protocols, para. 479. 192 Human Rights Committee, General Comment No. 21 – Human Treatment of Persons deprived of Liberty (Article 10), Doc. No. HRI/GEN/1/Rev.1 at 33 (10 April 1992), para. 2. 193 Ibid. para. 4. 194 Nowak, ccpr Commentary, p. 245. 195 Lantsova v. Russian Federation, para. 2.5; 9.2.

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violations of article 10 by physicians in hospitals or detention facilities, General Comment No. 21 explicitly invites states to ensure the application of the Principles of Medical Ethics relevant to the Role of Health Personnel, particularly Physicians, in the Protection of Prisoners and Detainees against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (1982).196 These Principles, adopted by the un ga, classify any active or passive contribution of health personnel, particularly physicians, to torture or other cruel, inhuman or degrading treatment or punishment a ‘contravention of medical ethics’. They do not define medical ethics and they also do not venture into a condemnation of such practices. In armed conflicts, prisoners of war and others deprived of their liberty due to an armed conflict benefit from the general protection of detained persons that article 10 iccpr provides. The principle of humane treatment is wellknown in international humanitarian law.197 Both human rights law and international humanitarian law prescribe a positive obligation for states to ensure humane and dignified treatment. An advantage of article 10 iccpr in comparison to the right to humane treatment in international humanitarian law, is that under article 10 iccpr states should monitor the effective application of rules regarding the humane treatment of persons deprived of their liberty and, most importantly, if a state violates its obligations, individuals should be provided with a remedy.198 The only remedy under international humanitarian law can be sought on a criminal law level and depends on the willingness of the state. Nevertheless, in international humanitarian law the right to humane treatment is absolute, non-derogable and a violation thereof is a grave breach of the Geneva Conventions. In this sense, the protection is thus stronger and more complete than that under human rights law. C Conclusion Human rights law can provide valuable additional protection to vulnerable persons in armed conflict complementing and, at times, supplementing international humanitarian law. Although human rights law can be derogated from 196 See the reference in Human Rights Committee, General Comment 21 (1992), para. 5. It refers to the un General Assembly’s Principles of Medical Ethics. The un General Assembly’s Principles of Medical Ethics will be discussed in detail in Chapter 7. 197 Articles 13 gc III and 27 gc IV, and 10 (2) ap I and common article 3 gcs and articles 5 (1) (a) and 7 (2) ap II. 198 Human Rights Committee, General Comment 21 (1992), para. 6–7.

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and limited, two essential provisions for the medical treatment of protected persons during armed conflicts, namely the prohibition of torture and ill-treatment and the right to life, are non-derogable. This ensures the additional value of these provisions if applicable: they can provide persons whose rights have been violated with a right to a remedy against the state who has violated the right, even during an armed conflict, on the condition that the state exercised jurisdiction. National judicial and other remedies should be provided pursuant to articles 2 (3) iccpr. Ideally, the rights under the treaties should be directly enforceable by a victim. If a remedy cannot be obtained on a national level, victims whose civil and political rights have been violated can use the communications procedure under the Optional Protocols.199 Hence, states are faced with an obligation to adopt legislation that protects the treaty rights, ensure that third parties do not violate them and provide remedies. These extensive state obligations under human rights law enhance the importance of human rights, also in armed conflicts.200 Nonetheless, the above discussed human rights, though not conflicting with international humanitarian law, are also limited in their value. Firstly, they do not bind all actors in an armed conflict directly but are limited to state actors. Though states are to protect, respect and fulfill the rights of all persons within their geographical or physical jurisdiction, meaning there is an indirect horizontal effect, the treaty obligations under the treaties do not contain obligations for independent civilian physicians. Secondly, of the above discussed rights, the right to health and the right of detainees to be treated with humanity and dignity can be limited or derogated from. Especially in non-international armed conflict, states often derogate from the iccpr or limit the rights under the icescr. Their applicability in armed conflict, thus, depends on the state, whereas international humanitarian law is absolute when there is an armed conflict. Thirdly and more generally, the protection of human rights depends on whether a specific treaty is applicable in a certain situation, especially in an international armed conflict not on the territory of a state party. In such a situation, it will have to be established whether the treaty is applicable extraterritorially and whether the state allegedly responsible for the human rights violation exercised effective control over the territory where the rights of the person were violated or over the person. Only then can a victim of a violation seek redress. The rights of protected persons who receive medical treatment during 199 The Optional Protocol to the ICCPR entered into force on 23 March 1976. The Optional Protocol to the icescr entered into force on 5 May 2013. The icescr does not address violations or remedies, the protection for victims of violations of the right to health is limited. 200 Abi-Saab, ‘Humanitarian Law and Internal Conflicts’, p. 222.

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armed conflicts under international humanitarian law are better protected than their rights under international human rights law. The provisions in international humanitarian law are more detailed and more specific.201 For example, article 11 ap I contains detailed guidance for medical treatment of persons deprived of their liberty during armed conflicts, whereas article 7 iccpr contains a simple prohibition. Only the reference to the open terms ‘medical ethics’ and ‘generally accepted medical standards’ is unspecific. Human rights law avoided such a pitfall in its simple formulations – regrettably it also does not shed light on how to interpret these open terms. Hence, the protection of persons in need of medical care in international humanitarian law is sufficiently specific to, at least in theory, guarantee the rights of protected persons in armed conflict. The human rights described above can be used as a safety-net for persons when protection under Geneva Law fails and as means of interpretation. A remedial apparatus providing reparations or remedies for victims of serious violations of international humanitarian law, as presently available for violations of civil and political rights, would benefit the overall protection of persons in armed conflict, including the most vulnerable as the wounded and sick. 201 Meron, Human Rights in Internal Strife, p. 23.

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Part 3

International humanitarian law has developed an extensive framework for military, civilian, and humanitarian physicians providing medical care in armed conflicts. It is centered around the principle of humanity on which the notion that persons not actively participating in hostilities should be protected and respected, treated humanely and receive medical care is built. Medical care should be provided impartially, as soon as practicable and in accordance with certain standards. These standards can be found throughout Geneva Law, such as the prohibition of experiments or the principle of humane treatment. Thereby, those in need of medical care can best be treated and their survival ensured. The basis of this care is also accepted as a rule of customary international law. However, there are additional regulations in the Additional Protocols that provide more detailed guidance for the provision of medical care, namely articles 11 and 16 ap I and 5 (2)(e) and 10 ap II. Because they are included in the Additional Protocols, they are less widely accepted and have been implemented to a lesser extent than the Geneva Conventions. The examination in Part II demonstrated that these detailed articles that establish additional requirements for medical treatment on the one hand, and additional protection for physicians on the other are not yet considered customary, contrary to the result of the icrc Study. Nevertheless, they are essential to the provision of medical care by all physicians in the system of international humanitarian law and for the protection of persons. This protection is at times enhanced by the additional application of international human rights law, which may provide additional enforcement mechanisms and remedies. Yet generally, the legal framework in international humanitarian law concerning medical treatment and the protection of persons treated should suffice. It is expanded by the fact that willful acts or omissions seriously endangering the mental or physical health or integrity of a protected person who is in the power of a party to the armed conflict due to the armed conflict committed by a physician in her professional work during an armed conflict can be prosecuted as medical war crimes. Hence, physicians can be held responsible when they commit medical war crimes and/or subject the wounded and sick to torturous, cruel, inhuman or degrading treatment. This is a relevant conclusion for the examples in Chapter 1. Physicians who have committed such (medical) war crimes should be nationally or internationally prosecuted and victims should be able to seek redress for human rights violations. States could furthermore prevent such unethical and unlawful acts to occur in the future by improving ethical and legal education or by structural reforms within the health services of armed forces.1 1 Brewer and Arrigo suggest special training for medical personnel on how to disobey unethical orders. Brewer & Arrigo, ‘Places that Medical Ethics can’t find’, p. 18. Other recommendations

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The relevant legal framework hinges on the essential provisions concerning medical treatment in the Additional Protocols. These provisions delimit the work of physicians by referring to two extra-legal terms: generally accepted medical standards and medical ethics. A violation of generally accepted medical standards can lead to a prosecution for a medical war crime while a violation of medical ethics indicates that a medical war crime may have been committed. The two terms ‘open’ international humanitarian law to considerations of medical ethics as they provide an extra-legal framework for physicians from a source other than international law.2 Yet they are not further defined, interpreted or limited in international humanitarian, human rights or criminal law. In the interest of legal specificity this may be a drawback. The provisions concerning medical grave breaches should clearly indicate which conduct is prohibited – both the objective and the subjective elements.3 In turn, addressees, namely physicians, should be able to foresee what consequences certain conduct may incur. As was demonstrated, international courts that are usually responsible for specifying the law in this respect have neither provided a specification of medical war crimes, nor of medical ethics. Hence, a discussion of the role of physicians in armed conflict mandates an examination of the references to medical ethics and generally accepted medical standards.

to ‘increase the likelihood of ethical behavior’ like the use of counter-narratives or better ethics education, can be found in Jonathan H. Marks, ‘Looking Back, Thinking Ahead’, in Ryan Goodman & Mindy Jane Roseman (eds), Interrogations, Forced Feeding, and the Role of Health Professionals – New Perspectives on International Human Rights, Humanitarian Law, and Ethics (Human Rights Program at Harvard Law School, 2009), p. 35 et seq. 2 Torrelli, ‘La Protection du Médecin dans les Conflits Armés’, p. 589. 3 The discussion on the principle of specificity is based on Cassese, International Criminal Law, p. 41 et seq.

chapter 6

The Interpretation of the Reference to Medical Ethics and Generally Accepted Medical Standards pursuant to the Vienna Convention on the Law of Treaties Based on the principle of humanity, international humanitarian law provides a framework of protection for the wounded and sick in armed conflict. Physicians are given the task to provide medical care to the victims of armed conflicts. The boundaries of medical treatment are to be found in the ‘generally accepted medical standards’ (articles 11 ap I and 5 (2)(e) ap II) and ‘medical ethics’ (articles 16 ap I and 10 ap II) that physicians should adhere to. Through this reference, international humanitarian law is opened to extra-legal ethical principles and standards beyond the laws of armed conflict. The terms bring with them a plethora of questions and uncertainties. To reach a comprehensive understanding of the system of medical care in armed conflicts, it is necessary to develop an understanding of these two references. They are essential to the relevant articles and thus to the protection of those receiving medical care. An interpretation in accordance with the rules of interpretation in articles 31 and 32 of the Vienna Convention on the Law of Treaties (vclt)1 contributes to understanding the exigencies of medical care in armed conflict and especially the exact rights and duties of physicians in armed conflict. A

Articles 31 and 32 of the Vienna Convention on the Law of Treaties

Pursuant to article 31 vclt, the interpretation of a treaty provision is carried out in three steps that appear separate but are highly dependent on each other. 1 Vienna Convention on the Law of Treaties, Doc. No. A/Conf39/28 (1969). The articles both represent customary international law. See for example International Court of Justice, La Grand Case (Germany v. United States of America), Judgment [2001], icj Reports, 2001, para. 99; icj, Consequences of the Construction of a Wall Case, para. 94; International Court of Justice, Case concerning Avena and Other Mexican Nationals, Judgment [2004], icj Reports, 2004, para. 83; International Court of Justice, Case concerning the Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment [2007], icj Reports, 2007, para. 160.

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First of all, the ordinary meaning of a treaty term is determined by looking at the everyday meaning of the term, wherefore dictionaries provide guidance, and the technical meaning if such a meaning was intended by the drafters.2 The ordinary meaning of the terms should, pursuant to article 33 vclt, take into account all authentic versions and treat them equally.3 The Additional Protocols are authenticated in the six languages of the un, i.e. Arabic, Chinese, English, French, Russian and Spanish.4 Second of all, the context of a treaty can clarify the results gained from looking at the ordinary meaning, especially ‘where the ordinary meaning of a treaty provision is vague’.5 Article 31 (3) vclt provides that the context not only comprises the treaty text, its preambles and annexes, but also agreements or other instruments related to the treaty, as well as subsequent practice or subsequent agreements regarding the interpretation of the treaty. No such agreements or instruments were concluded or adopted by state parties with regard to the rules concerning medical treatment in the Additional Protocols. Examining subsequent agreements yet also subsequent practice will also not lead to results. Such agreements were not made. Arguably, the icrc Commentary could be seen as such an agreement as it regards the interpretation of the treaty. However, as it was produced by the icrc, not by state parties, and published after the adoption of the Additional Protocols, it cannot be taken into account despite its authoritative status.6 Subsequent state practice concerning medical ethics or generally accepted medical standards is extremely sparse.7 Even tacit agreement concerning the interpretation of the terms is lacking in practice. Hence, these additional tools to ascertain the context of the terms cannot help in interpreting the here relevant provisions of the Additional Protocols. Article 31 (3)(c) vclt furthermore determines that ‘any relevant rules of international law applicable in the relations between parties’ can ‘be

2 Ulf Linderfalk, On the Interpretation of Treaties – The Modern International Law as expressed in the 1969 Vienna Convention on the Law of Treaties (Springer, 2007), p. 63; 67. If the parties intended for a term to have a ‘special meaning’ this should be taken into consideration pursuant to article 31 (4) vclt. 3 Article 33 vclt is also considered to reflect customary international law. See icj, La Grand Case, para. 101. 4 Articles 102 ap I and 28 ap II determine that the texts are ‘equally authentic’. 5 Linderfalk, On the Interpretation of Treaties, p. 102. To understand the context of terms used in a provision, regard can be had to the sentence, its grammar, punctuation and syntax, but also to the title of the provision, the chapter and the treaty it is contained in. Ibid. p. 180. 6 Also, Aust, Modern Treaty Law and Practice, p. 236. 7 This was established and analyzed in detail in Chapter 4.

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taken into account together with the context’ when interpreting treaty terms. Through this loophole, other rules of international law, independent of the treaty in question, that are recognized as sources of law pursuant to article 38 icj Statute can be taken into consideration in the interpretation of treaty terms.8 This would exclude rules by non-governmental organizations, such as the World Medical Association, that are neither binding nor sources of international law.9 As article 31 (3)(c) vclt is not entirely clear on whether international law at the time of the conclusion of the treaty should be taken into account or international rules that exist at the time of the dispute,10 modern views suggest that the latter can be included in the interpretation process.11 A combinational approach is chosen to interpret the relevant provisions of the Additional Protocols because other rules can substantially contribute to the determination of the meaning of the ‘generally accepted medical standards’ and ‘medical ethics’. Third of all, the object and purpose of a treaty can add precision to a vague meaning and clarify uncertainties. Referring to the raison d’être of a treaty, the object and purpose include both the desired rights and obligations of a provision as well as the general aim of a treaty.12 Not only the preambles may provide clues, but also the type of treaty that was chosen by the drafters – thus their intent – and the title of it.13 From this wide range of options, it becomes clear that there is not always one single object and purpose.14 Nonetheless, an attempt should be made to find the relevant object and purpose for the interpretation  8

Villiger argues that ‘non-binding rules cannot be relied upon’. Villiger, Commentary on the vclt, p. 433.  9 The wma and its documents will be scrutinized in Chapter 9. 10 For example Gardiner, Treaty Interpretation, p. 256–258. Gardiner warns interpreters of the ‘laconic nature of the provision’. 11 Aust, Modern Treaty Law and Practice, p. 244. More traditional is the controversial ‘intertemporal rule’ of interpretation by which only those rules of international law that were also in force at the time of the conclusion of the treaty in question should be taken into account. Villiger, Commentary on the vclt, p. 433. The words ‘in force at the time of its conclusion’ could not be agreed upon during the drafting sessions. 12 Linderfalk, On the Interpretation of Treaties, p. 209. 13 On the problematic concept of intent, see Jan Klabbers, The Concept of Treaty in International Law (Kluwer Law International, 1996), Chapter 3. 14 This was for example recognized by the World Trade Organization Appellate Body: ‘Furthermore, the Panel failed to recognize that most treaties have no single, undiluted object and purpose but rather a variety of different, and possibly conflicting, objects and purposes’. World Trade Organization Appellate Body (wto ab), United States – Import Prohibition of Certain Shrimp and Shrimp Products, WT/DS58/AB/R [1998], para. 17.

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of the terms in a provision that is under consideration. By including the object and purpose requirement, a purely textual interpretation is counterbalanced with the teleological approach.15 Neither of the two should however outweigh the other. While the ordinary meaning of a provision is the starting point in an interpretation, it should always be carried out in combination with the context of the provision and its object and purpose.16 An overarching requirement is that interpretation should at all times be carried out in good faith. The supplementary17 means for interpretation in article 32 vclt are used to confirm the results of an interpretation pursuant to article 31 vclt, or to determine the meaning of a term when the interpretation was ‘ambiguous or obscure’ or ‘manifestly absurd or unreasonable’. If either is the case, the interpreter can turn to the travaux préparatoires or the circumstances of conclusion.18 Recourse to the supplementary means is generally accepted, as long as it is not invoked at the outset of interpretation.19 When considering the circumstances, the interpreter can refer to the ‘political, social and cultural factors […] surrounding a treaty’s conclusion’.20 Usually, they are closely interwoven with the travaux préparatoires.21 Both aspects can shed light on the meaning of an expression, yet do not suffice independently to interpret a treaty term. Especially in order to confirm the object and purpose of a treaty or a term used, the travaux préparatoires may prove more helpful. They are often believed to convey the intentions of the drafters of the treaty. Yet a considerable amount of caution is justified as the intentions of the drafters are not

15 Villiger, Commentary on the vclt, p. 427–428. 16 Aust, Modern Treaty Law and Practice, p. 234; Gardiner, Treaty Interpretation, p. 161–162; Villiger, Commentary on the vclt, p. 435. 17 The French term for ‘supplementary’ being ‘complémentaire’. Gardiner, Treaty Interpretation, p. 180. 18 Reference to the supplementary means to confirm an interpretation is not always necessary when the interpretation pursuant to article 31 vclt is clear and unambiguous. The icj at times avoids looking at the travaux préparatoires when it deems its interpretation based on article 31 vclt sufficient, see icj, La Grand Case, para. 104. 19 Villiger, Commentary on the vclt, p. 447–448. It should, however, be noted that most interpretations refer to these means whether or not the interpretation based on the ordinary meaning, context and object and purpose was successful or not. Jan Klabbers, ‘International Legal Histories: the Declining Importance of Travaux Préparatoires in Treaty Interpretation?’, Netherlands International Law Review, 267 (2003), p. 281. 20 Villiger, Commentary on the vclt, p. 445. 21 Gardiner, Treaty Interpretation, p. 344.

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always discernible and not always resulted in the eventual treaty text.22 Ultimately, it is the final treaty text that needs to be interpreted.23 Both the circumstances of conclusion and the travaux préparatoires should thus always be considered as a supplement to the regular means of interpretation and used in combination with the primary means of interpretation under article 31 vclt.24 B

An Interpretation of the Open Terms in Geneva Law pursuant to articles 31 and 32 of the Vienna Convention on the Law of Treaties

International humanitarian law leaves discretion to physicians in providing medical treatment to civilian and military wounded and sick or detained persons by referring to the ‘generally accepted medical standards’ and ‘medical ethics’. These two open terms are not mentioned anywhere else in the Geneva system25 and are not defined in international humanitarian law. Because they are so important to delimit the power of physicians on the one hand, and to optimize the protection of protected persons on the other, the terms should be interpreted. This interpretation will be carried out in accordance with the rules of interpretation as laid out above. As the terms that are to be interpreted appear in several articles in both Additional Protocols, they will be interpreted concordantly. 1 Generally Accepted Medical Standards Articles 11 ap I and 5 (2)(e) ap II both aim to ameliorate the protection of detained persons against unwarranted medical procedures performed by a physician from another party to the armed conflict. Although, as can be surmised from Chapter 2, article 11 (1) ap I in its entirety provides more detailed protection than article 5 (2)(e) ap II, both articles depend on a definition of ‘generally accepted medical standards’. The interpretation of the term will be based on a thorough analysis of article 11 ap I. The result of the interpretation of the term applies mutatis mutandi to the reference in article 5 (2)(e) ap II unless indicated 22 Aust, Modern Treaty Law and Practice, p. 246. 23 Klabbers calls the text the ‘objective truth’ which ‘can only make sense in light of some subjective truth’. Klabbers, ‘The declining Importance of Travaux Préparatoires in Treaty Interpretation?’, p. 287. 24 Gardiner, Treaty Interpretation, p. 325–326. 25 With the exception of the references to ‘professional ethics’ and ‘professional etiquette’ in articles 28 gc I and 33 gc III. These references will be discussed as well.

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otherwise. Intricacies of article 5 (2)(e) ap II will be referred to where necessary. a

An Interpretation of the Ordinary Meaning, the Context and the Object and Purpose of Generally Accepted Medical Standards A first step towards determining the meaning of the phrase ‘generally accepted medical standards’ is looking at the ordinary meaning of the separate terms. Pursuant to the Oxford Dictionary of English, a standard is ‘a required or agreed level of quality or attainment’.26 When used in plural, standards are ‘principles of conduct informed by notions of honour and decency’. As the article specifies that these are medical standards, these are such standards as ‘relating to the science and practice of medicine’. They should, and this is an important aspect, be generally accepted. According to the dictionary, to accept means to ‘believe or come to recognize (a proposition) as valid or correct’. This recognition must be general – which entails ‘by or to most people’ or ‘widely’. Medical standards are, thus, accepted when they are widely recognized as valid and correct. Two questions cannot be solved by looking at the ordinary meaning alone. First of all, it remains unclear whether ‘standards’ as used in these provisions refer to a ‘level of quality’ or rather to ‘principles of honor’. Second of all, the question needs to be answered how wide the acceptance must be and who determines when the criterion of being ‘generally accepted’ is fulfilled. Looking at the ordinary meaning in light of the context and the object and purpose, the meaning of the term ‘generally accepted medical standards’ begins to take better shape.

i Medical Standards The ordinary meaning of ‘medical standards’ leaves vagueness and ambiguity as it could either be a reference to ‘levels of quality’ or to ‘principles of honor’. These are interpretations with different connotations that entail different obligations and requirements. ‘Levels of quality’ are objective, technical rules for the medical treatment of patients that could be discerned independently of the treating physician, whereas ‘principles of honor’ are subjective moral codes that should guide a physician in his work and would always depend on the treating physician’s morals and conscience. Because pursuant to article 33 (3) vclt expressions have the same meaning in all authentic versions of a treaty, an interpretation of the French version may provide greater clarity. The 26

For the English language, reference will be had to The Oxford Dictionary of English.

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French authentic version refers to ‘normes médicales généralement reconnues’.27 The Petit Robert, defines ‘norme’ literally as ‘type concret ou formule abstraite de ce qui doit être’ and more technically ‘ensemble de règles d’usage, de prescriptions techniques, relatives aux caractéristiques d’un produit ou d’une méthode, édictées dans le but de standardiser et de garantir les modes de fonctionnement, la sécurité et les nuisances’.28 The former defines standards as abstract rules of how something should be. The latter provides a rather technical definition of rules that standardize procedures and guarantee their functioning and security. Neither definition refers to morals or honor. Taking this into account when looking at the meaning of the English terms, this indicates that ‘standards’ should mean ‘a required or agreed level of quality or attainment’ rather than ‘principles of honor’. Although the latter play a role in the treatment of patients, the non-moral meaning is also supported by the context. From the context, it becomes clear that articles 11 (1) ap I and 5 (2)(e) ap II are aimed at protecting persons against unwarranted medical procedures. Article 11 (1) ap I determines that the ‘physical or mental health and integrity’ of detained persons is not to be ‘endangered by any unjustified act or omission’. Following this general statement is the explicit prohibition of unwarranted medical procedures that do not comply with two requirements. The two-tier test for medical procedures in both articles entails that medical procedures are only justified when indicated by the state of health of a person and consistent with certain medical standards. These criteria are cumulative. From the wording of article 11 ap I it can be surmised that the first criterion is necessary to prohibit procedures detrimental to or not required by the health of a patient. Medical procedures should be therapeutic or prophylactic.29 To offer comprehensive protection, a medical procedure must then also be compatible with generally accepted medical standards. What is to be protected is

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The provision continues as follows: ‘[…] que la Partie responsable de l’acte appliquerait dans des circonstances médicales analogues à ses propres ressortissants jouissant de leur liberté’. The terms ‘accepted’ (reconnu) and ‘medical’ (médicale) have the same meaning in the French language. Reconnu is defined as ‘admis pour vrais ou pour important’. Médicale is defined as ‘qui concerne la médicine’. Le nouveau Petit Robert, Nouvelle édition du Petit Robert de Paul Robert, 40ème édition (Dictionnaires Le Robert, 2007). International Committee of the Red Cross, Report on the Work of the Conference of Government Experts on the Reaffirmation and Development of International Humanitarian Law applicable in Armed Conflicts (3 May–3 June 1972), Vol. 1, ce 1972 (July 1972), p. 33–34; also Solf, ‘Studies in honour of Jean Pictet’, p. 241.

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thus the health and integrity of persons to be medically treated through the safeguard of ‘generally accepted medical standards’. The subsequent paragraph specifies procedures that are always prohibited, namely mutilations, experiments, and tissue organ removal. Moreover, article 11 ap I establishes procedural safeguards against unwarranted medical procedures by providing technical details to prevent misconduct by medical personnel. Examples for this technical approach are article 11 (3) ap I dealing with donations of blood or skin and article 11 (5) ap I concerning consent to surgical operations. Overall, the general aim is the prohibition of unwarranted medical procedures against which generally accepted medical standards should be a guarantee. Though formulated much simpler and without any specification, the same is the aim of article 5 (2)(e) ap II. The safeguard is thus procedural. Viewed in this technical context, standards should be seen to mean ‘levels of quality’. The general raison d’être of the Additional Protocols is ameliorating the fate of victims of armed conflict through their improved protection. This can be drawn from the title of the treaty, the ‘1977 Geneva Protocol I Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts’ (emphasis added). The preamble to Additional Protocol I explicitly also states this where it says that the high contracting parties ‘[believe] it necessary to nevertheless reaffirm and develop the provisions protecting victims of armed conflicts […]’.30 What is more, article 11 ap I is titled ‘protection of persons’ whereby the title of the Additional Protocol is repeated clarifying the aim of this provision. The title of article 5 (2)(e) ap II is less revealing: ‘persons whose liberty has been restricted’. Both articles expand the protection of persons deprived of their liberty and in the hands of an adversary. Medical standards should contribute to the protection of detained persons in need of medical care. The general object and purpose of article 11 ap I is providing the best possible protection of persons who are in the power of an adversary party or deprived of their liberty and in need of medical care. Beyond the general aim, there are several more specific goals behind this provision. Firstly, the provision is clearly inspired by the Doctors’ Trial and thus aimed at preventing atrocities similar to those committed by National Socialist physicians or by other physicians involved in experiments during 30

For Additional Protocol II, things are more difficult. Although the title of the treaty is the same (yet aimed at non-international armed conflicts), the preamble only ‘[emphasizes] the need to ensure a better protection for the victims of those armed conflicts’. However, both treaties are aimed at ameliorating the protection of victims of armed conflicts.

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World War II.31 If the aim was preventing medical war crimes, moral principles would most likely have been the object and purpose of the phrase. Here, medical ethics could have been referred to instead. Secondly, ‘[dramatic] advances in the art of organ and tissue transplants generated fears that prisoners of war and other persons in the power of an enemy might be exploited as the sources of organs or tissue for transplant or transfusion’.32 As medical advances were eyed with skepticism, the provision was an attempt to deal with such progress in the situation of an armed conflict where supervision can be flawed or lacking altogether. The general technical aim of the article is a further indicator that ‘medical standards’ should be levels of quality. Taking into account the context and object and purpose of the provision, it should be concluded that ‘medical standards’ are such that provide a certain level of quality so that the integrity and health of detained persons may be best protected when receiving medical treatment. If standards were meant as ‘principles of honor’, the term ‘medical ethics’, as used in article 16 ap I, could have been used to convey a sense of morality in the work of physicians. ii Generally Accepted Having determined that medical standards are technical levels of quality, it still needs to be determined at what point they are generally accepted and by whom. As it stands, the reference to generally accepted medical standards ‘might seem to import the very subjectivism which it is surely the purpose of such a provision to exclude’.33 The comparison with the French version does not offer much assistance.34 However, the requirement of compliance with generally accepted medical standards is specified: a procedure has to comply with those medical standards a physician would also apply ‘under similar medical circumstances to persons who are nationals of the party conducting the procedure and who are in no way deprived of their liberty’.35 The sentence follows without punctuation thus being directly linked to the generally accepted 31 McCoubrey, International Humanitarian Law, p. 87. 32 Solf, ‘Studies in honour of Jean Pictet’, p. 240. 33 Gunn & McCoubrey, ‘Medical Ethics and the Laws of Armed Conflict’, p. 39. 34 The French term ‘généralement’ is defined as ‘d’un point de vue general, à prendre les choses en général’ or ‘dans l’ensemble ou la grande majorité des individus’. See Le Petit Robert. 35 In comparison, article 5 (2)(e) ap II is formulated differently due to the context of a noninternational armed conflict and to avoid reference to nationality or parties. It determines that the generally accepted medical standards should be those ‘applied to free persons under similar medical circumstances’.

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medical standards. From this specification, it could be inferred that the relevant standards are generally accepted national medical standards of the military or civilian physician carrying out the medical tasks.36 As Article 11 ap I was introduced to protect detained persons against the adversary detaining power, they should particularly be protected against discriminate treatment by physicians of the adverse party because of their vulnerable and dependent position. Whether a pluralistic approach would contradict the purpose of protecting the most vulnerable who are ‘in the power of the adverse party of a conflict or in any way deprived of their liberty’,37 including hospitalization, has been discussed in literature. Baccino-Astrada sees medical ethics as a virtually universal construct, while she believes that medical standards ‘varient encore considérablement d’une région à l’autre’.38 She furthermore notes the discrepancy between the formulation in article 11 ap I which seems to refer to national standards, while international humanitarian law in general intends to set universal and generally applicable rules: A cet égard, le droit international humanitaire ne peut donc exiger des norms universelles et se contente de demander aux parties au conflit de faire appliquer aux personnes protégées en leur pouvoir les norms médicales généralement reconnus qu’elles appliqueraient dans des circonstances médicales analogues à leurs propres ressortissants jouissant de leur liberté.39 Beigbeder infers from this that ‘international humanitarian law accordingly does not demand the application of universal standards and limits itself to calling upon the parties of a conflict to apply to protected persons in their power the generally recognized medical standards which they would apply in comparable medical circumstances on their own countrymen living in conditions of freedom’.40 He thus pleads for a pluralistic concept of medical standards. This conclusion is also supported by Solf who argues that medical 36 37

Bothe, et al. New rules for Victims of Armed Conflicts, p. 113. This solely means being ‘in the territory under the control’ of the adverse party. Sandoz, et al. (eds), Commentary to the Additional Protocols, para. 468. 38 Baccino-Astrada, Manuel des Droits et Devoirs du Personnel Sanitaire lors des Conflits Armés, p. 39. 39 Ibid. p. 39. 40 Beigbeder, The Role and Status of International Humanitarian Volunteers and Organizations – the Right and Duty to Humanitarian Assistance, p. 340–341.

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standards would need to be ‘widely’ accepted by physicians of a common nationality or background.41 He speaks of ‘accepted community medical standards’ yet this raises the question whether this is the patient’s or the physician’s community and introduces another term unknown to international humanitarian law. Interpretations as narrow as those by Solf and Beigbeder should be rejected as they contradict the context, object and purpose of the article which is to set minimum standards for the protection and equal medical treatment of all detained persons. Applying nationally accepted medical standards, as accepted in the country of origin of the physician, would do exactly what was to be prevented: make persons in detention dependent on and subject to the detaining power and its rules and regulations, particularly if such rules depend on the subjective standards of a physician.42 All persons in need of medical treatment should be able to expect equal treatment, independent of national susceptibilities of the treating physician. Especially in armed conflicts, medical standards between those detained and those in charge of detention may conflict. Persons in detention would most probably benefit more – if only in their level of comfort – from the application of universal and neutral medical standards than those of the detaining power. Issues of conflict could concern morally controversial questions such as euthanasia or informed consent. Hence, medical standards are ‘certain basic parameters for the actual nature of the medical procedures to be followed and in particular that they should be in accordance with the practices as approved by general, meaning mainstream, professional medical opinion’ (emphasis added).43 Nonetheless, BaccinoAstrada’s argument that medical standards, as opposed to medical ethics, may vary has some value but should be nuanced. In a similar vein, according to Bothe the reference ‘excludes national standards which are not generally accepted; it also excludes standards generally accepted elsewhere but not generally accepted by the party in question’.44 With this, Bothe implies that there are relevant national standards but that physicians should ensure that the applied standards are not only generally accepted within their own country, but also conform to standards that are internationally recognized. Most reasonably, this would mean the referred to generally accepted medical standards are universal minimum standards. According to the icrc Commentary, all 41 42 43 44

He thus clearly deems the standards national and community based, rather than international. Solf, ‘Studies in honour of Jean Pictet’, p. 241. Gunn & McCoubrey, ‘Medical Ethics and the Laws of Armed Conflict’, p. 139. Ibid. p. 140. Bothe, et al. New rules for Victims of Armed Conflicts, p. 113.

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standards ‘[contain] a universal element […] tempered by an element related to local medical conditions’.45 As medical standards should be seen as technical rules that determine how a physician is to treat a patient in a certain (medical) situation, realistically the medical standards that form the framework and boundaries of medical treatment in armed conflict are the very minimum standards that a physician from whichever country could agree to and can comply with in the situation of an armed conflict. Because of the exigencies of an armed conflict, for example scarce financial or material resources, the minimum standards may not always be state of the art but they are such norms that physicians around the world could widely agree to and apply under comparable circumstances. Naturally, if a better option is available and can be applied, a physician should apply this – however the situation determines what is feasible. This would bar the application of new, experimental medical procedures that are not widely accepted. Generally accepted medical standards are thus universally accepted technical minimum standards that are hinged on the practical realities of a situation. Physicians should abide by the minimum standards that are widely accepted, but have a margin of appreciation. This conclusion is supported by the icrc Commentary which explains that there are undefined, universal ‘minimum standards’.46 b

Supplementary Means of Interpretation: the Travaux Préparatoires and the Circumstances of Conclusion Considering the ordinary meaning, the context and the object and purpose, the meaning of ‘generally accepted medical standards’ has begun to take shape. Pursuant to article 32 vclt recourse can furthermore be had to the travaux préparatoires and the circumstances of conclusion to determine the meaning and clarify those aspects that remain ambiguous or obscure.

i The Travaux Préparatoires When the first proposal for an article concerning the protection of persons was introduced for Additional Protocol I at the diplomatic conference,47 it merely counted two paragraphs and no reference to generally accepted 45 46 47

Sandoz, et al. (eds), Commentary to the Additional Protocols, para. 475. Ibid. para. 476–477. The diplomatic conferences to discuss drafts by the icrc for protocols to the Geneva Conventions were held in Geneva from 20 February – 29 March 1974; 3 February – 18 April 1975; 21 April – 11 June 1976; and 17 March – 10 June 1977. The two Additional Protocols were adopted on 8 June 1977.

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medical standards. While generally prohibiting ‘unjustified acts and omissions harmful to the health or to the physical or mental well-being of a person’, the second paragraph prohibited mutilations, experiments, grafts and organ transplants that were neither medically justified nor in the interest of a person treated.48 This draft corresponded to the formulation used in article 13 gc III.49 Article 11 ap I, almost in its present form, was introduced in a joint amendment on 12 March 1974 by Australia together with Austria, Hungary, the Netherlands, Poland, Sweden, Switzerland, the ussr, the uk and the usa.50 In this proposal, the requirement that medical procedures be ‘consistent with accepted medical standards which would be applied to other nationals of the Party under similar medical circumstances’ was introduced. The two tier test of medical justification and consistency with medical standards developed from this proposal. Concerning the medical standards requirement, the representative of Australia explained that [the] idea of consistency with generally accepted medical standards applied to the party’s nationals was designed to avoid any kind of discrimination against individual persons or groups or persons on racial, religious, economic or any other grounds.51 This explanation was confirmed by the rapporteur of the drafting committee, the German representative Bothe.52 Even though the principle of non-discrimination is strongly anchored in international humanitarian law, 53 it was reiterated at this point because of the special situation of persons in detention. 48 Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts, Official Records (O.R.) I, Part III, p. 6. 49 Article 13 gc III: ‘[…] In particular, no prisoner of war may be subjected to physical mutilation or to medical or scientific experiments of any kind which are not justified by the medical, dental or hospital treatment of the prisoner concerned and carried out in his interest’. 50 O.R. III, Table of Amendments to the Draft Additional Protocols, Amendment CDDH/ II/43, p. 60. Article 11 ap I was adopted at the diplomatic conference by consensus on 20 March 1975, its fourth paragraph regarding the medical grave breaches was adopted later, namely on 13 May 1977. 51 Minogue, Australian Representative, in O.R. XI, CDDH/II/SR.10, p. 80. 52 ‘In order that there should be no excuse for applying different standards to free and to detained persons, it should be made clear that the standards to be applied were those applicable to free persons in similar medical circumstances’. Bothe, Rapporteur of the Drafting Committee, O.R. XI, CDDH/II/SR.39, p. 420, para 7. 53 It was also reiterated in the previous article, article 10 ap I.

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Regrettably, neither the Australian explanation, nor the discussions at the diplomatic conference were able to shed light on the substance of such medical standards. What constituted generally accepted medical standards was also not discussed in drafting article 5 (2)(e) ap II (draft articles 8 and 12 (3) and (4)).54 Primarily, the prohibition of unwarranted medical procedures, mutilations and experiments was proposed in draft article 12 addressing the wounded, sick and shipwrecked which later became article 7 ap II. However, after several unsuccessful amendments,55 it was removed from draft article 12 to show that the prohibition was not limited to the wounded and sick but was to have the same scope as article 11 ap I.56 It was moved to draft article 8 dealing with ‘persons whose liberty has been restricted’. Paragraph 2 was to include mandatory ‘minimum requirements’57 to amplify the provisions of protection of common article 3 gcs. Only late in the drafting process was paragraph (e) included in an amendment introduced by Pakistan.58 Pakistan’s short and simplified amendment was quickly adopted for the sake of compromise.59 The Official Records of the diplomatic conference do not reflect any discussion concerning the reformulation of the prohibition of unwarranted medical procedures, why or when it was moved to draft article 8, and what was expected of the reference to generally accepted medical standards. From what can be drawn from the extensive and well documented Official Records, yet even more so from what was omitted, it appears that the drafters had a clear idea when including the reference to medical standards in the drafts. Although ‘generally accepted’, they are those standards that a physician applies when carrying out his profession in times of peace, particularly when treating detained persons from the adversary party or from an opposed group

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O.R. I, Part I, p. 35–37. Draft article 12 read: ‘(3) All unjustified acts or omissions harmful to the health or to the physical or mental well-being of the persons referred to in paragraph 1 are prohibited. This prohibition applies even if those persons give their consent. (4) It is accordingly prohibited to carry out on the persons referred to in paragraph 1 physical mutilations or medical or scientific experiments, including grafts and organ transplants, which are not justified by their medical treatment and are not in their interest’. 55 One amendment included a wording almost identical to article 11 (1), (2) and (3) ap I.O.R. XIII, CDDH/221/Rev.1, Amendment CDDH/II/225, p. 119–120. It was later proposed as article 12 bis, O.R. XIII, CDDH/II/287, p. 227–228. 56 O.R. XI, CDDH/II/SR.26, Statements delegates Heredia (Cuba), Makin (uk) and Bujard (icrc), p. 266–267. 57 O.R. VIII, CDDH/I/SR.32, Statement Bujard (icrc), p. 336. 58 O.R. IV, CDDH/427, p. 28. 59 Moir, The Law of Internal Armed Conflict.

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within a non-international armed conflict. The reference was adopted to ensure that patients were not discriminated against in their treatment because of their affiliation. The limits to the freedom of physicians and their options were seen in the practical realities: a physician should provide the optimal treatment with regard to the circumstances. In this work, she should be guided by the interest of the patient and generally accepted medical standards. She should attempt to treat all patients as she would her own in time of peace so far as possible in the situation at hand. Thus, the travaux préparatoires seem to accentuate the principle of non-discrimination. Regrettably, they did not shed light on whether these standards should be more technical or rather moral. On a side note, it appears that the question of abuse by physicians was hardly an issue at the diplomatic conference or in the Commentary although article 11 ap I can clearly be classified as a consequence of the events of World War II and the horrific medical experiments. Only the Canadian delegate drew attention to this when he said that: The maintenance of professional ethics even in peacetime could never be guaranteed: all professions had their black sheep.60 However, this was used as an argument against detailed regulations. The comprehensiveness of the provisions prohibiting unwarranted medical procedures would have benefited greatly from more clarity instead of the open term generally accepted medical standards. ii Circumstances of Conclusion The direct impetus for the development of the Additional Protocols came, as discussed in Chapter 5, from the human rights conference in Teheran in 1968. This conference was held shortly after the end of the six day war in the Middle East61 and called for the further development of international humanitarian law in order to ‘ensure the better protection of civilians, prisoners and combatants in all armed conflicts’.62 Before, the icrc had also already considered a further development of international humanitarian law, as is evident from a memorandum of 19 May 1967.63 The un ga took up this call in its agenda and 60 61

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O.R. XI, CDDH/II/SR.29, Statement by delegate Marriott (Canada), p. 298. In Resolution 237 of 1967 concerning the conflict in the Middle East, the un Security Council had already considered that ‘that essential and inalienable human rights should be respected even during the vicissitudes of war’. International Conference on Human Rights, Final Act of the International Conference on Human Rights: Human Rights in Armed Conflict. Sandoz, et al. (eds), Commentary to the Additional Protocols, General Introduction, p. xxx.

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recognized ‘the necessity of applying basic humanitarian principles in all armed conflicts’.64 Between 1974 and 1977, four Diplomatic Conferences on the Reaffirmation and Development of International Humanitarian Law applicable in Armed Conflicts were held where the Additional Protocols were drafted.65 During the diplomatic conferences, recent conflicts played an important role in shaping the political will to improve international humanitarian law. Firstly, the war in Vietnam had a large impact66; secondly the war in the Middle East in 1967 also influenced the discussions.67 Especially important were the question of internal armed conflicts and the treatment of ‘insurgent combatants’.68 c

Evaluation of the Interpretation of the Term Generally Accepted Medical Standards Based on the interpretation carried out above, it becomes clear that the protection against unwarranted medical procedures depends on the ‘generally accepted medical standards’, particularly in the context of medical treatment in armed conflicts. Yet, it is a term that is difficult to narrow down to a simple meaning. This vagueness harms the legal certainty of physicians depending on articles 11 ap I and 5 (2)(e) ap II, both important provisions of international humanitarian law. Especially when one considers that violations of article 11 (1) ap I – willed acts or omissions that violate the interest of a patient as well as these medical standards – can be prosecuted as grave breaches of international humanitarian law.69 The interpretation has shown that standards, as interpreted in the context of the provision, are levels of technical quality relating to the practice of medicine. They set the ‘basic parameters for the actual nature of the medical procedures to be followed’70 and can, in combination

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UN General Assembly, Resolution 2444 (XXIII) Respect for Human Rights in Armed Conflict. Follow-up Resolution 2675 (XXV) reaffirmed that fundamental human rights continue to apply during armed conflict. UN General Assembly, Resolution 2675 (XXV) Basic Principles for the Protection of Civilians Populations in Armed Conflict. Sandoz, et al. (eds), Commentary to the Additional Protocols, p. xxxii et seq. Bothe, et al. New rules for Victims of Armed Conflicts, p. 9–10; George H. Aldrich, ‘Some Reflections on the Origins of the 1977 Geneva Protocols’, in Christophe Swinarski (ed), Studies and Essays on International Humanitarian Law and Red Cross Principles in honour of Jean Pictet (Martinus Nijhoff Publishers, 1984). Bothe, et al. New rules for Victims of Armed Conflicts, p. 2–3; 8–10. Sandoz, et al. (eds), Commentary to the Additional Protocols, para. 4363; 4368; 4395 et seq. Articles 11 (4) and 85 (3) ap I. An extensive discussion of medical war crimes is carried out in Chapter 3. Gunn & McCoubrey, ‘Medical Ethics and the Laws of Armed Conflict’, p. 140.

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with regard to the physical and mental integrity of persons, guarantee the wellbeing of patients and their equal treatment. Furthermore, such standards are minimum standards for extreme situations that are widely recognized as practicable and acceptable by the mainstream of the medical profession. They heavily depend on the practical realities concerning material and financial resources of a situation. However, the second important point that can be drawn from the interpretation is that a physician should make an effort to treat all patients equally and especially not worse than he would normally treat patients. This is the rationale behind the formulation used. Primarily, the article thus concerns non-discrimination while the minimum standards play a secondary role. The phrase in its entirety is thus rather an allusion to the practical realities of an armed conflict than to the origin of these standards.71 2 Medical Ethics The corollary to articles 11 ap I and 5 (2)(e) ap II which provide additional protection to the wounded and sick can be found in articles 16 ap I and 10 ap II. To guarantee that those in need of medical care receive the best treatment in all circumstances – not only detention – the independence of physicians has to be ensured. Medical ethics, referred to in the first two paragraphs of both articles, form the framework within which physicians are protected. As long as physicians comply with medical ethics, they cannot be punished. Hence persons carrying out medical activities cannot be coerced to violate medical ethics, other rules designed for the benefit of the wounded and sick, or international humanitarian law. Nevertheless, medical ethics can only protect if they are more narrowly defined so that they can prevent discrepancies to the detriment of protected persons.72 The analysis below will focus on article 16 (1) and (2) ap I but should apply mutatis mutandi to article 10 (1) and (2) ap II unless otherwise indicated. a

An Interpretation of the Ordinary Meaning, the Context and the Object and Purpose Relating to Medical Ethics Articles 16 ap I and 10 ap II introduce the term ‘medical ethics’ to the system of international humanitarian law. An interpretation of the term will start with the ordinary meaning of medical ethics. According to the Oxford Dictionary of English, ‘medical’ refers to such acts that ‘[relate] to the science and practice of

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Ibid. p. 139. An example that is relevant for persons deprived of their liberty during armed conflict would be national guidelines concerning physicians’ involvement in interrogations, see Chapter 8. Its relevance is demonstrated in current situations, see Chapter 1.

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medicine’. This is clear enough as the article addresses the ‘protection of medical duties’. ‘Ethics’ are the ‘moral principles that govern a person’s behavior or the conducting of an activity’.73 Hence, those moral principles that govern physicians’ behavior when carrying out tasks that relate to the practice of medicine, most probably the medical treatment of a patient. It is not clear whether ‘medical ethics’ govern a physician’s interaction with patients only or whether they should also concern interaction with colleagues. The French version uses the term ‘déontologie’ which entails both the rules of the profession as well as the rules concerning the doctor-patient relationship.74 Déontologie is defined as ‘ensemble des devoirs qu’impose à des professionnels l’exercise de leur métier’.75 Apparently, the word ‘étique’ was discarded even though, also in French, étique is defined as ‘ensemble de valeurs, des règles morales proper à un milieu, une culture, un groupe’ (emphasis added) and would have been the equivalent to the English term ‘ethics’. As it stands, the French version using the term ‘déontologie’ increases the uncertainty rather than decreasing it. Furthermore, the ordinary meaning cannot resolve whether the moral principles introduce a pluralistic or universal concept or whether it may even be a subjective standard depending on the moral conscience of a physician alone. In light of legal certainty and the equal protection of all wounded and sick, this would be highly undesirable. The context, purpose and object can however remedy this. Only when the persons providing medical care are sufficiently safe, can persons in need of medical care also safely receive it. From the context of the article it becomes clear that the provisions, on the one hand, aim to protect physicians and, on the other, to benefit patients in their treatment. Medical activities cannot be punishable when ‘compatible with medical ethics’. As the protection of physicians carrying out work during armed conflict is also essential for their patients, the provision provides a safeguard for both patients as well as physicians. This becomes more evident when looking at the title of the treaties – ‘protection of victims of […] armed conflict’ – and of the provisions – ‘general protection of medical duties’.76 In addition, article 16 ap I is part of the chapter that addresses the wounded, sick and shipwrecked; more specifically the section concerning the ‘general protection’. Thus the protection of medical treatment to the benefit of protected persons is indirectly central. From this, it 73 74 75 76

The Oxford Dictionary of English. Torrelli, ‘La Protection du Médecin dans les Conflits Armés’, p. 589. Paul Robert & Josette Rey-Debove, Le nouveau Petit Robert, Nouvelle édition du Petit Robert de Paul Robert, 40ème édition (Dictionnaires Le Robert, 2007). This applies to article 16 ap I as well as article 10 ap II.

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can be inferred that the reference to medical ethics is intended to ameliorate the physician-patient relationship. Article 16 (2) ap I establishes that medical personnel cannot be compelled to violate ‘the rules of medical ethics or […] other medical rules designed for the benefit of the wounded and sick’ (emphasis added). This adds to this interpretation. Again, the eventual beneficiaries of the article are those in need of medical care. It can be surmised from the context that ‘medical ethics’ should be those moral principles that benefit the persons to be treated.77 The meaning of the terms would then point towards the rules that benefit the patients directly, leaving aside the internal rules of the medical profession. A similar conclusion can be drawn by looking at the predecessors of the presently discussed reference to medical ethics, namely the reference to ‘professional ethics’ and ‘professional etiquette’ in the Geneva Conventions. This examination of ‘any relevant rules of international law applicable in the relations between parties’ pursuant to article 31 (3)(c) vclt can contribute to establishing the context. In the Geneva Conventions, there are two references to ethics of the medical profession: article 28 gc I refers to ‘professional ethics’ and article 33 gc III refers to ‘professional etiquette’. These references are included in the framework within which medical personnel should operate when in prisoners of war camps.78 The predominantly identical articles address the situation of retained medical personnel and their rights and duties. In general, as established in Chapter 2, physicians as part of medical personnel can be retained to provide medical care preferably, but not necessarily, to prisoners of war of their own party to the conflict. In carrying out medical duties, they are placed under the authority of the medical services of the detaining power in charge the prisoner of war camp. Though restricted in their freedom, the articles nevertheless determine that retained medical personnel should carry out medical duties ‘in accordance with their professional ethics’. Here it is clear, that a reference was included to ensure the independence of the physicians in 77 78

Solf, ‘Studies in honour of Jean Pictet’, p. 244. Interestingly, article 28 gc I refers to the ‘professional ethics’ of the medical personnel, whereas article 33 gc III uses the term ‘professional etiquette’. Pursuant to the Oxford Dictionary etiquette is ‘the customary code of polite behavior in a society or among members of a particular profession or group’; ethics are, as established, ‘moral principles that govern a person’s behavior or the conducting of an activity’. Although both could be used, the latter better conveys the meaning that would be attributed to medical ethics in modern language. Rather than placing an emphasis on polite behavior, ethics deals with moral principles. For these reasons, the formulation in article 28 gc I (‘professional ethics’) is preferable.

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a situation where their liberty is impeded. In the context of retention, ‘professional ethics’ should be seen as a reference to physicians’ subjective moral principles or possibly medical ethics that they would otherwise apply in a different situation, thus ‘national’ medical ethics. Such ethics play an important role in the interaction between physicians and patients, especially when both the treating physician as well as his patient are deprived of their liberty. The independence to carry out their medical duties without harassment or interference would, of course, also benefit the prisoners of war treated, namely those of the same party as the medical personnel. The freedom of conscience was included to ensure the best possible treatment of patients, not to ensure a smooth interaction between colleagues or other aspects of the medical profession’s organization. Questions concerning conflicting ethics between the retained physician and the detaining power were not solved. It remains unclear whether the detaining power can provide rules or guidelines for retained physicians that would infringe their independence to act in accordance with their own professional ethics. The conclusion that medical ethics are those moral rules governing the interaction with patients, not between physicians, is also in line with the object and purpose of both provisions as well as both treaties. Among other purposes, the furtherance of the protection of certain persons during armed conflict is one object and purpose of the Additional Protocols. As much is stated in the preambles to both Protocols. Primarily the extended and more detailed protection of articles 11 ap I and 5 (2)(e) ap II concerns those in need of medical attention, thus the wounded and sick, especially prisoners of war. This can only be ensured when those treating them are also protected. Here, independence of the medical profession and neutrality is key. This is the purpose of articles 16 ap I and 10 ap II: to ensure the ‘general protection of medical duties’ as the title indicates.79 Medical duties are clearly those medical activities that concern the work of physicians involving interaction with patients. Thus the object and purpose also support the meaning that medical ethics should benefit the wounded and sick and not relate to the internal rules of the medical profession. This leaves the question whether medical ethics are a national or an international concept. The object and purpose of the provisions, that is in line with the overall character of the relevant chapters of the Additional Protocols, is that all persons in need of medical treatment should receive equal treatment and equal protection. This is an extension of the principle of non-discrimination. Regarding medical treatment, this means that the medical ethics that a physician works by 79

Solf, ‘Studies in honour of Jean Pictet’, p. 238–239.

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should be the same for all patients. Persons requiring medical care in armed conflicts should thus be able to rely on a common standard of medical ethics. Who treats them should never affect the manner of treatment, as a different set of medical ethics in certain circumstances could. If medical ethics were thus a national concept, this would defy the purpose of equality of treatment. b

Supplementary Means of Interpretation: the Travaux Préparatoires and the Circumstances of Conclusion The travaux réparatoires confirm the finding concerning the meaning of medical ethics in articles 16 ap I and 10 ap II. The circumstances of the conclusion are the same as for articles 11 ap I and 5 (2)(e) ap II so the same should apply. A brief analysis of the travaux préparatoires as supplementary means of interpretation pursuant to article 32 vclt can shed additional light on the meaning of medical ethics.

i The Travaux Préparatoires At the diplomatic conference, the term medical ethics was first introduced in a collaborative draft for Additional Protocol I80: persons engaged in medical activities shall neither be compelled to perform acts or carry out work contrary to, nor refrain from acts required by (a) the rules of medical ethics or other rules designed for the benefit of the wounded and sick.81 The article was to guarantee the protection of those providing medical care necessitated by their medical task in armed conflict.82 For those reasons the protection was also drawn widely. It included all persons providing medical care and did not limit the prohibition to legal prosecutions but embraced all forms of punishment. In the drafting sessions, the terms ‘medical ethics’ and ‘professional ethics’ were discussed comparatively. The Russian delegate explicitly pointed to the problem of definition. He suggested consulting the World Health Organization’s definition of medical ethics to determine whether to refer to ‘medical’ or ‘professional’ ethics.83 This idea was not taken up. 80 81 82 83

The article as it stands today was adopted by the diplomatic conference by consensus on 25 February 1975. O.R. XIII, CDDH/221/Rev.1, Annex II (Article 16), p. 174. Proposal CDDH/II/212 of 11 February 1975, O.R. III, p. 81. O.R. XI, CDDH/II/SR.16, Statement of delegate Pictet (icrc), p. 146. Delegate Krasnopeev (ussr) advocated the use of the term ‘professional ethics’. O.R. XI, CDDH/II/SR.16, p. 151.

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Although some countries voiced preferences, the actual difference between ‘professional’ and ‘medical’ ethics was not further discussed.84 The discussion recalls that regarding articles 28 gc I and 33 gc III. A small excursion into their drafting history might contribute to understand the origins of article 16 ap I and 10 ap II. The drafting sessions of articles 28 gc I (draft article 22) and 33 gc III (draft article 29 B) at the diplomatic conference of Geneva of 1949 centered around the question whether medical personnel in the hands of an adverse party should be treated as prisoners of war or whether they should have a special or different status.85 The medical profession’s ethics were considered to place them outside of the conflict. Rapporteur Lefebvre asserted that ‘the Medical Service is after all detached from the conflict, by the very nature of its professional ethics’. Medical personnel was generally believed to carry out a ‘universal, non-national […] mission’ which made them neutral.86 To ensure this neutrality, the reference to the medical personnel’s professional ethics was included. Experience in World War II had taught that neutral, retained medical personnel was often ‘harassed and hampered in their work by the Detaining Power in a way which seriously prejudiced them in their professional duties’.87 The French delegate spoke of ‘[orders given] by the German doctors which were against the French doctors’ professional ethics. For instance, a doctor has on occasion been ordered to amputate a limb which his professional conscience led him to believe he could save’.88 In the process of introducing a copy of article 28 gc I in Geneva Convention III,89 several 84 85 86

87 88 89

See delegate Marriott (Canada), O.R. XI, CDDH/II/SR.16, p. 151. See for example Diplomatic Conference of Geneva of 1949, Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II Section A (1949), p. 123–127; 169. Diplomatic Conference of Geneva of 1949, Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II Section A, Report of Committee I to the Plenary Assembly of the Diplomatic Conference of Geneva by Rapporteur, General Lefebvre, p. 186. Lefebvre even went so far as to predict that: ‘The same reason will prevent them, also on account of their professional ethics, from attempting to escape, which is the converse of what is legitimate and honourable in the case of a prisoner of war’. p. 186. Final Record, Vol. II B, Statement by delegate Lamarle (France), p. 215. Ibid. Statement by delegate Lamarle (France), p. 215. Article 28 gc I (draft article 22) was part of the original draft that was submitted to the diplomatic conference by the icrc. Diplomatic Conference of Geneva of 1949, Final Record of the Diplomatic Conference of Geneva of 1949, Vol. I, p. 51. Article 33 gc III (draft article 29B) was not in the original draft. The retention of medical personnel to treat the wounded and sick was considered to be within the realm of Geneva Convention I. Draft article 29 B was introduced in the discussions regarding Geneva Convention III by the Netherlands and several other states in July 1949 to reiterate the duties, privileges and prerogatives of retained medical personnel in prisoner of war camps in that Convention

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inconsistencies with article 28 gc I (draft article 22) were acknowledged, yet not explicated or amended.90 For example the change from ‘professional ethics’ to ‘professional etiquette’ was never addressed, even though draft article 29 B was meant to replicate draft article 22. The difference in terminology between ‘ethics’ and ‘etiquette’ must stem from a simple drafting mistake. Nevertheless, it is clear that the original reference to professional ethics was intended as a safeguard for medical personnel retained by the adversary party against being subjected to control in their professional duties by the detaining power.91 Ethics were used to indicate the level of independence retained physicians should have. Independence from orders of superiors, especially from the adversary party, but also neutrality regarding the conflict. This neutrality and independence would then also benefit those treated. In drafting the Additional Protocols, ‘medical’ ethics were introduced and chosen over ‘professional’ ethics to indicate that the rules should benefit the wounded and sick, and were not intended to benefit or regulate the medical profession itself.92 The treatment of the wounded and sick was to be consistent with medical ethics; the relations between physicians, concerning their cooperation, education and sanctions were of lesser interest. The draft for article 10 ap II (draft article 16) was based on its counterpart in Additional Protocol I, except for certain differences in the formulation such as that it referred to ‘professional ethics’ rather than ‘medical ethics’.93 This inconsistency with article 16 ap I was swiftly remedied by an Australian



90 91 92

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as well. (Final Record, Vol. II B, Statement by delegate Baistrocchi (Italy), p. 282.) Draft article 22 was to be reproduced in Geneva Convention III in order to ensure its application by those in charge of a prisoner of war camp in a situation where a state only ratified that Convention and not Geneva Convention I. The scenario never materialized, but the drafters included the reproduction as a precaution. It was adopted by the drafting committee with great hesitation and discussions. (For example Final Record, Vol. II A, Statements by delegates Morosov (ussr) and Day (uk) p. 392). Draft article 29 B was adopted with 24 votes in favor, 16 against and three abstentions. (Final Record, Vol. II B, p. 286.) Final Record, Vol. II B, delegates Agathocles (Greece), p. 283; Cohn (Denmark), p. 285. Ibid. Statement by delegate Lamarle (France), p. 217. The original draft formulation was ‘professional rules’ which was changed to ‘professional ethics’ and later to ‘medical ethics’. See ICRC, Report on the Work of the icrc Conference of Government Experts 1972, p. 39–40. Delegate W. Solf of the usa introduced the formulation at O.R. XI, CDDH/II/SR. 16, p. 150. Later, delegate Bothe (Germany), O.R. XI, CDDH/II/ SR.19, p. 183. O.R. I, Part III, draft article 16, p. 38.

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amendment.94 Furthermore, an amendment introduced the sentence, already contained in article 16 ap I, ‘designed for the benefit of the wounded and sick’. Delegate Solf of the usa, introducing the amendment to the second paragraph, explained that this was to reiterate that the rules of medical ethics were to protect the wounded and sick and were not referring to rules regulating the medical profession as such.95 This mirrors the discussion concerning article 16 ap I. Just like with article 16 ap I, the discussion on article 10 ap II concentrated on the third (and fourth) paragraphs. The Committee tried to find a compromise between the necessary protection of physicians when providing medical treatment against punishment or prosecution and the sovereignty of states to determine rules interfering with the independence of physicians.96 The delegate of Denmark believed the question of non-denunciation to be sufficiently dealt with by reference to medical ethics. He asserted that the World Medical Association had already established this.97 Overall the conviction prevailed that physicians would at all times be guided by their conscience rather than the law.98 Medical ethics, for the drafters, seemed to represent this conscience. It remains unclear whether there was exact agreement on what these rules of medical ethics really are and who the reference is aiming at. From the travaux préparatoires, it can be inferred that the delegates at the conference felt that they had clarified the rules which would guide physicians in carrying out their duties during armed conflict by including the reference to medical ethics in both article 16 ap I and article 10 ap II.99 c Evaluation of the Interpretation of Medical Ethics The meaning of medical ethics can be determined quite specifically. Reference is made to those moral principles that govern a physician’s behavior when medically treating a patient. This excludes those rules that govern the relationships between and among physicians. From the context but also the object and purpose of the provisions, it appears that they are to specifically, even if 94 95 96 97 98 99

O.R. XI, CDDH/II/SR.16, Statement delegate Clark (Australia), p. 146: CDDH/II/SR.28, Statement delegate Clark (Australia), p. 283. Amendment CDDH/II/53 as introduced in O.R. XI, CDDH/II/SR.16, Statement delegate Solf (usa), p. 150, see also Statement delegate Bothe (Germany), p. 183. For example, O.R. XI, CDDH/II/SR.41, Statement delegate Deddes (Netherlands), p. 449; CDDH/II/SR.42, Statement Chairman, p. 462. O.R. XI, CDDH/II/SR.39, Statement delegate Schultz (Denmark), p. 422; 425. For example, O.R. XI, CDDH/II/SR.41, Statement delegate Gayet (France), p. 453; CDDH/ II/SR.42, Statement delegate Dariimaa (Mongolia), p. 458. O.R. XI, CDDH/II/SR.19, Statement delegate Bothe (Germany), p. 183.

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indirectly, benefit those in need of medical treatment. Although internal rules of the medical profession and the organization thereof also contribute to a smooth administration of medical treatment, they are not at issue in the Additional Protocols. Articles 16 ap I and 10 ap II both acknowledge that acts contrary to medical ethics can be punished, yet they do not specify who determines medical ethics, whose medical ethics, whether there are universal medical ethics and when the punishment for medical activities would ever be allowed. As it has been argued that medical ethics differ from country to country,100 it is indispensible to determine which and whose medical ethics are envisioned in the Additional Protocols. C Conclusion The interpretation pursuant to articles 31 and 32 vclt of the open, extra-legal terms used in the provisions concerning the protection of persons receiving medical care during armed conflict was based on the means available. The original meaning alone leaves ambiguities and vagueness that can only be remedied by looking at the overall context of the relevant provisions and their, as well as the Additional Protocols’ object and purpose. Surprisingly, the travaux préparatoires do not provide much substance for interpretation, though they do clarify the intention of the drafters. Although the terms medical ethics and generally accepted medical standards are often used synonymously, the concepts represent two aspects of the medical profession’s work. Generally accepted medical standards are technical rules that determine how a physician should treat a patient in a certain (medical) situation. The technical character of the standards makes them prone to change with advances in medicine. Such technical medical standards are difficult to enumerate or analyze in a non-medical book.101 In an armed conflict, these medical standards are widely accepted universal minimum standards. Medical treatment may not be state of the art in all regions of the world or during armed conflict but physicians should work in accordance with such minimum norms that physicians around the world could agree to and would apply 100 Torrelli, ‘La Protection du Médecin dans les Conflits Armés’, p. 589. 101 The icrc Commentary states in this context that ‘it is certainly beyond the scope of this commentary to attempt to list these standards’. Sandoz, et al. (eds), Commentary to the Additional Protocols, para. 476. For further research, one could consult clinical practice guidelines. This would be beyond the scope of this book.

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in the situation of an armed conflict where material and financial resources may be limited.102 The minimum standards should be objective to best protect the physical and mental health and integrity of all persons deprived of their liberty as intended by articles 11 ap I and 5 (2)(e) ap II. In providing medical treatment, physicians are to apply standards which they would also apply to their own nationals in other circumstances. As supported by the travaux préparatoires, the specification was included to re-emphasize the principle of non-discrimination. Hence, a physician should make an effort to treat all patients equally and especially not worse than he would normally treat patients.103 The minimum standards guarantee that if the state of the art methods are not available, physicians nevertheless use methods that are considered best practice in such circumstances by the professional mainstream opinion. Medical ethics are moral principles that physicians should adhere to in carrying out their professional duties. They govern a physician’s behavior when treating a patient; it is thus a reference to the principles that govern the physician-patient interaction. Although article 16 ap I and 10 ap II are phrased negatively, no physician may be punished for acts in conformity with medical ethics, this also means that physicians should act in accordance with them. Not only does this provision ensure the protection of medical personnel, including physicians, it also guarantees the protection of those to be treated against unethical medical procedures. A violation of medical standards need not also be a violation of medical ethics and vice versa. A physician could, for example, in violating the generally accepted medical standards still act in the interest of his patient. This would then be in accordance with the principle of beneficence despite a possible violation of medical standards. Considering that a willful violation of generally accepted medical standards can constitute a medical grave breach, a prosecution could better be based on technical, objectively discernible rather than moral standards.104 While medical standards are concerned with the actual medical procedures performed by physicians, medical ethics appear to be an overarching concept 102 Ibid. para. 477. 103 It should be noted that the formulations of the provisions could just not be materialized because it is rather unrealistic that a physician, indifferent of his origin, even has the possibility of treating patients during armed conflict as he would treat his patients in times of peace. Baccino-Astrada, Manuel des Droits et Devoirs du Personnel Sanitaire lors des Conflits Armés, p. 39. 104 Nevertheless, as was established in Chapter 3, medical war crimes are always also violations of medical ethics.

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providing ethical principles to guide physicians in their overall interaction with patients, including medical treatment. This leads to an aspect that is left unanswered, despite the extensive interpretation carried out above. If medical ethics are moral rules, are they purely subjective or should there be general and universal ethics. An answer providing an exact interpretation of the open reference to medical ethics is highly relevant because the binding provisions can only be of true guidance to physicians in armed conflict, if they can be narrowly defined. The opening to medical ethics as extra-legal standards has the advantage that physicians are left with a measure of discretion that may benefit them and their patients. This was also the intention of the drafters who believed the rules of the medical profession to provide a safeguard against violations. That medical ethics can also be abused or violated, was demonstrated in the Doctors’ Trial and recently claimed by the icrc in its report concerning cia detention.105 Hence, an effort should be made to establish whether there are universal, objective, and internationally recognized medical ethics. Especially in situations of dependency, subjective standards of treatment or ethics would be undesirable considering the object and purpose of the provisions: protected persons should be treated equally and protected against unwarranted medical procedures, whereas physicians should never be punished when carrying out their work in accordance with universally accepted medical ethics. A broader interpretation of medical ethics benefits the protection of patients.106 It should be noted that the subsequent Chapters will concentrate on the term medical ethics, rather than on generally accepted medical standards. The reason for this, as has been explicated, is that technical standards cannot be sufficiently analyzed in a legal analysis due to their technical, medical character, whereas medical ethics have been addressed in international forums and by international organizations. An examination of the intersection between medical ethics and international humanitarian law will thus be carried out subsequently.

105 ICRC, Report on the Treatment of Fourteen “High-Value Detainees” in cia Custody as discussed in Chapter 1. 106 Gunn & McCoubrey, ‘Medical Ethics and the Laws of Armed Conflict’, p. 139.

chapter 7

Medical Ethics in International Law Medical ethics as an extra-legal set of moral rules were introduced into the laws of armed conflict through an opening in the Additional Protocols. As states were responsible for adopting the relevant provisions which contain the reference to medical ethics, one should investigate whether states might also have adopted other international treaties or conventions containing principles of medical ethics. A widely and internationally accepted international treaty or document containing a set of internationally recognized ethical principles could provide the means to fill the open term in international humanitarian law. If medical ethics were defined or interpreted in an official source of international law,1 this would provide a convincing solution to fill the open terms in articles 16 ap I and 10 ap II. States would more readily accept filling in an undefined term with international law than with philosophical concepts. To ascertain whether such an internationally accepted and, through state consent, legitimized2 set of medical ethics exists, an examination of two relevant documents addressing bio- and medical ethics and of two principles of international law will be conducted. This Chapter intends to establish whether public international law provides internationally recognized principles of medical ethics that could be used to give meaning to the open term ‘medical ethics’ in the Additional Protocols. First, a solution proposed by Gunn and McCoubrey will be scrutinized. They claim that international humanitarian law itself may provide a sufficiently clear set of guidelines on medical ethics. Such an inherent system of medical ethics within the laws of armed conflict would imply the acceptance of a great number of states – all members to the Geneva Conventions or Additional Protocols. A

Medical Ethics as Found in International Humanitarian Law

International humanitarian law already contains detailed regulations for the treatment of the wounded and sick; these were scrutinized in Chapter 2. Gunn 1 A source in accordance with article 38 (1)(a) icj Statute. 2 Legitimacy in international law as a justification for authority traditionally stems from state consent. Rüdiger Wolfrum, ‘Legitimacy in International Law from a Legal Perspective: Some Introductory Considerations’, in Rüdiger Wolfrum & Volker Röben (eds), Legitimacy in International Law (Springer Verlag, 2008), p. 6.

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and McCoubrey, in one of the only academic essays specifically broaching the issue of medical ethics and armed conflict, argue that medical ethics need not be searched for beyond international humanitarian law, but that basic principles of medical ethics relevant in armed conflicts can be extracted from Geneva Law itself.3 1 Gunn and McCoubrey’s Basic Principles of Medical Ethics Gunn and McCoubrey argue that there is a ‘specific code of medical ethics in international armed conflict which is built into the relevant provisions of 1949 Geneva Conventions I and II and of 1977 Additional Protocol I’.4 They find the basic principle inherent to the laws of armed conflicts in article 12 gc I and II and in article 10 ap I. These articles determine that all those hors de combat due to wounds or sickness are entitled to medical care without distinction on other than medical grounds. Furthermore, the basic principle is supplemented by the ‘code’ provided by article 11 ap I according to which medical procedures on protected persons should be to their benefit and in accordance with generally accepted medical standards. These generally accepted medical standards, according to Gunn and McCoubrey, are not the subjective standards of the treating physician. Rather, they are ‘a minimum “safety net” for matters not covered either by the fundamental general norms or by specific requirements’5 that is implicit in the provisions of Geneva Law. The standards refer to medical standards relevant to the actual medical treatment. Physicians should treat patients ‘in accordance with the practices approved by general, meaning mainstream, professional medical opinion’.6 This confirms the view expressed in Chapter 6 that the standards referred to are widely accepted technical standards. Mainly, Gunn and McCoubrey argue that generally accepted medical standards reinforce those principles of professional medical ethics as found in Geneva Law.7 3 Gunn & McCoubrey, ‘Medical Ethics and the Laws of Armed Conflict’. Their theory is also explicated in McCoubrey, International Humanitarian Law. It should be emphasized that their essay is the only academic analysis of medical ethics and armed conflict. Others, for example Torrelli, address medical aspects of armed conflict, but do not focus on medical ethics alone. 4 Gunn & McCoubrey, ‘Medical Ethics and the Laws of Armed Conflict’, p. 133. Their argument is in parts supported by Torrelli who notes that ‘les règles de droit humanitaire qui viennet d’être rappelées font incontestablement partie de la déontologie mais elles ne couvrent pas tous les aspects de celle-ci’. Torrelli, ‘La Protection du Médecin dans les Conflits Armés’, p. 588. 5 Gunn & McCoubrey, ‘Medical Ethics and the Laws of Armed Conflict’, p. 140. 6 Ibid. p. 140. 7 Ibid. p. 142.

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As a general basis for medical treatment, all persons in an armed conflict have a duty to rescue and provide assistance to the best of their abilities in prevailing circumstances.8 This is a prerequisite for valuable medical care in armed conflicts. Having established this basis, Gunn and McCoubrey then formulate several further principles of medical ethics that, according to them, emanate from Geneva Law. Firstly, parties to a conflict should ensure the availability of medical facilities in order to be able to fulfill their obligation to treat all wounded and sick. This requirement is implicit in the obligation to provide the wounded and sick with medical care, yet it cannot be found in Geneva Law as such. Availability is, however, an element of the right to health. 9 Secondly, all wounded and sick should be treated without distinction. Prioritization in treatment through triage should be based on medical needs and the ‘material possibilities existing in the place and at the time that the wounded person is cared for’.10 Thirdly, based on article 11 ap I, medical treatment should be to the benefit of the patient at all times, especially when persons are used for therapeutic experiments. Gunn and McCoubrey consider the widely accepted principles of beneficence and non-maleficence also applicable in armed conflict. They deem it ‘fairly obvious’ that these fundamental principles, as restated in article 11 (1) ap I, should be respected.11 Lastly, although the principle of informed consent is not explicit in Geneva Law, except in article 11 (5) ap I, physicians should make an honest attempt to acquire the informed consent of their patient for any medical procedure. Gunn and McCoubrey argue that patients should always be given the appropriate information in a language they can understand in order to be able to make such a decision. However, realistically they see the question of consent as secondary to the more fundamental question of ensuring proper medical care for all wounded and sick in armed conflict.12 According to Gunn and McCoubrey, these basic and further principles, extracted from Geneva Law and applicable in armed conflicts, provide not an exhaustive guide to medical care in armed conflicts but minimum standards that physicians should adhere to. Furthermore, ‘the wounded have the right to  8  9 10

11 12

This can be based on articles 15 gc i and 18 gc II. cescr, General Comment No. 14 (2000), para. 12 (a). Sandoz, et al. (eds), Commentary to the Additional Protocols, para. 451. Gunn and McCoubrey clearly advocate triage in armed conflicts. Gunn & McCoubrey, ‘Medical Ethics and the Laws of Armed Conflict’, p. 147. Gunn & McCoubrey, ‘Medical Ethics and the Laws of Armed Conflict’, p. 147. See also, McCoubrey, International Humanitarian Law, p. 87; 90. Gunn & McCoubrey, ‘Medical Ethics and the Laws of Armed Conflict’, p. 153.

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demand at least the standards set out by the applicable norms of international humanitarian law’.13 2 Evaluation It is regrettable that Gunn and McCoubrey explicitly limit their analysis to international armed conflicts, basing their system of basic principles purely on the Geneva Conventions and Additional Protocol I.14 They are of the opinion that the provisions in these treaties are accepted as customary international humanitarian law whereas the provisions in Additional Protocol II have not yet reached that status.15 As pointed out in Chapter 4, this is true for articles 5 (2)(e) and 10 ap II yet not for all provisions in Additional Protocol II. Moreover, a classification of the term medical ethics should not depend on the status of an armed conflict. If a concept of medical ethics was further developed, it should apply analogously to situations of non-international armed conflict despite the fact that the relevant provisions in Additional Protocol II may not be classified as customary international law. The status is only important in the sense that Gunn and McCoubrey draw the principles from those provisions they deem customarily accepted – it is not relevant for filling the open terms. The solution that Gunn and McCoubrey propose and defend is that the system of international humanitarian law suffices in and on itself. They contend that it operates independently of outside influence, hence medical ethics should also be interpreted within the general framework of Geneva Law. The argument is convincing in that it foregoes a strenuous search for outside sources that could be used to give meaning to medical ethics in the Additional Protocols. As international humanitarian law was developed specifically to regulate armed conflicts, answers to questions regarding the treatment of victims of war could logically be sought within this system. Nevertheless, this argument can only convince concerning the general rules and the basic principles. Articles 12 gc I and II, 10 ap I and 7 ap II indeed provide a basic principle for the treatment of all those in need of medical care: that they be protected, respected and treated humanely. However, international humanitarian law alone does not suffice to establish medical ethics. Especially considering the ‘code’ in article 11 ap I, it is not apparent how this article entails an aspect of medical ethics. Surely, it does contain rules for physicians that concern medical treatment but they are clear prohibitions that rely on the basic premise that a physician should put the patient’s interest above all. Beneficence and 13 14 15

Ibid. p. 158. Ibid. p. 133. Ibid. p. 136.

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non-maleficence may indeed be principles of medical ethics, but they are not a comprehensive code of medical ethics.16 Moreover, article 11 ap I also refers to another open term, generally accepted medical standards. These open terms, medical ethics and generally accepted medical standards, were chosen to enhance the protection of the wounded and sick by referring to norms beyond classic international humanitarian law. Hence, Gunn and McCoubrey seem caught in a circular argumentation: if medical ethics are contained within the basic principles of international humanitarian law, a reference to such a term would have been futile. Furthermore, the protection of medical personnel causes an additional problem: the prerequisite that they are protected when adhering to medical ethics is an important aspect of their protection. It would seem senseless if this formulation was chosen when it would have sufficed to say ‘under no circumstances shall any person be punished for carrying out medical activities compatible with the principles of humanity’. The decision to refer to medical ethics was a deliberate one as demonstrated by the travaux préparatoires discussed in Chapter 6. In that sense, Gunn and McCoubrey’s argument is unpersuasive. It does not solve the question of medical ethics in armed conflict. It does, however, clarify which basic principles of international humanitarian law should guide physicians in their work. Taken together with the principles of medical ethics, this would serve the purpose of providing physicians with sufficient guidance to efficiently and successfully carry out their tasks in armed conflict.17 B

Medical Ethics in Other Sources of International Law

The reference in the Additional Protocols could be seen as a dynamic, indirect reference to other documents or principles regarding medical ethics in international law. Both dynamic and indirect, as the reference does not point to a specific instrument. If general public international law, whether hard or soft law,18 provided a more detailed set of principles of medical ethics, this could 16 17 18

See for example Clouser & Gert, ‘A Critique of Principlism’. This argument is supported by Torrelli, ‘La Protection du Médecin dans les Conflits Armés’, p. 588. Soft law is a term used to classify non-binding rules that were adopted by actors who are usually, but not necessarily, subjects of international law. It will be further discussed in Chapter 9. In literature, see Daniel Thürer, ‘Soft Law’, in Rüdiger Wolfrum (ed), Max Planck Encyclopedia of Public International Law (Oxford University Press, 2012).

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be used to give meaning to the open terms in international humanitarian law; even more so, if such principles were contained in an official source of international law. Treaties and conventions are particularly important as they are official sources of international law19 and legitimized by their origin in state consent.20 General principles of international law could provide further guidance. However, the few documents that explicate principles of medical ethics on an international level were adopted by different forums years after the Additional Protocols and not all are necessarily recognized sources of international law. Some are also regionally limited. The handful of documents and principles that could fill the legal gap on an international level, will be analyzed below. They will be discussed in comparison to principles of international humanitarian law to establish their compatibility with the laws of armed conflict. It should be stressed that there is a discussion in literature about the general desirability of merging human rights and bio- or medical ethics. Some argue that merging the two areas is inevitable and desirable.21 An example of a provision that merges the two areas is article 7 iccpr.22 In its relevant part, it determines that ‘no one shall be subjected without his free consent to medical or scientific experimentation’. The provision thus integrated the principle of (informed) consent, an ethical principle. Furthermore, according to the cescr respect for medical ethics is an aspect relevant to the acceptability of health care services and information, an element of the right to health.23 A document effectively combining human rights and bio- or medical ethics would surely be interesting and valuable. Others are skeptical of the ‘challenge’ that international human rights pose to the existing normative order of medical ethics. Faunce argues that medical ethics should either remain an independent normative order untainted by some of the problems of international human rights 19

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Article 38 (1)(a) icj Statute lists ‘international conventions, whether general or particular, establishing rules expressly recognized by the contesting states’ as a source of international law. Allen Buchanan & Robert O. Keohane, ‘The Legitimacy of Global Governance Institutions’, in Rüdiger Wolfrum & Volker Röben (eds), Legitimacy in International Law (Springer Verlag, 2008), p. 36–40. Robert Baker, ‘Bioethics and Human Rights: a Historical Perspective’, 10 Cambridge Quarterly of Healthcare Ethics, 241 (2001). Ashcroft as quoted in Howard Wolinsky, ‘Bioethics for the World’, 7 European Molecular Biology Organization Reports, 354 (2006), p. 355. A discussion of article 7 iccpr is conducted in Chapter 5. The principle of informed consent is examined in Chapter 1. cescr, General Comment No. 14 (2000), para. 12 (c).

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such as claims of arbitrariness and Western imperialism or they should be influenced by human rights and assimilate in language and interpretation.24 Annas argue that the Universal Declaration of Human Rights suffices and should be the starting point.25 The following statement by Asamoah concerning the udhr, may also apply to other principles: ‘Even if […] the Declaration is only of moral authority, the present writer does not see an antithesis between law and morality; law is the synthesis of a number of factors including morality’.26 Even more so than human rights, medical ethical principles are moral standards. Their legal significance is thus not a given, but their moral value should not be underestimated.27 The United Nations General Assembly Resolution on Principles of Medical Ethics In 1982, the un ga adopted Resolution 37/194 containing, in its annex, the Principles of Medical Ethics.28 They are of interest here as they explicate principles of medical ethics as recognized by the members of the un ga. The Principles are based on a draft by the Council for International Organizations of Medical Sciences (cioms), a non-governmental organization established jointly by the World Health Organization (who) and the United Nations Educational, Scientific and Cultural Organization (unesco),29 which had been entrusted with the drafting of such principles by the who.30 Despite their broad title, the Principles are limited to medical ethics ‘relevant to the role of health personnel, particularly physicians, in the protection of prisoners

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Thomas Alured Faunce, ‘Will International Human Rights subsume Medical Ethics? Intersections in the unesco Universal Bioethics Declaration’, 31 Journal of Medical Ethics, 173 (2005). 25 Annas as quoted in Wolinsky, ‘Bioethics for the World’, p. 355. 26 Asamoah, The Legal Significance of the Declarations of the General Assembly of the United Nations, p. 191. 27 Nigel S. Rodley & Matt Pollard, The Treatment of Prisoners under International Law, 3rd Ed. (Oxford University Press, 2009), p. 517. 28 UN General Assembly, Resolution 37/194 Principles of Medical Ethics. 29 For more information on cioms, consult Council for International Organizations of Medical Sciences Homepage, at http://www.cioms.ch/index.html. 30 The drafting process can be traced back to a delegation of the drafting of ‘an outline on the principles of medical ethics’ of relevance in such situations to the who in article 5 of un General Assembly, Resolution 3218 (XXIX) Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment in Relation to Detention or Imprisonment, Doc. No. A/9631 (1974) (6 November 1974). The who was explicitly called upon to ‘[take] into account the various declarations on medical ethics adopted by the World Medical Association’.

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and detainees against torture, and other cruel, inhuman and degrading treatment or punishment’. In the operative clauses, governments are called upon to disseminate information, inter- and non-governmental organizations are invited to raise awareness of the principles within the medical profession, and the six Principles of Medical Ethics are adopted. As they address the specific situation of torture and cruel, inhuman and degrading treatment of prisoners and detainees, they would be applicable to prisoners of war and interned civilians in the context of an armed conflict. The rationale behind their adoption can be found in the preamble to the accompanying resolution: ‘alarmed that not infrequently members of the medical profession or other health personnel are engaged in activities which are difficult to reconcile with medical ethics’. Thus, the Principles came forth out of a desire to raise awareness among un member states and the medical profession about the involvement of physicians and other health care professionals in torturous activities. The un ga desired ‘to set further standards […] which ought to be implemented by health personnel, particularly physicians, and by government officials’. By using the word ‘further’, the resolution implies that certain standards already exist that the Principles build on, possibly human rights. This is, however, not entirely clear. As the resolution also calls for implementation on a national level, it would appear that the resolution itself does not purport to contain directly applicable legal norms. Notably, the preamble takes note of the Declaration of Tokyo of 1975,31 a document by the World Medical Association (wma).32 It suggests a number of measures required by and drawn from the Declaration of Tokyo, yet the Principles also differ from the Declaration of Tokyo. For example, the Principles have a wide circle of addressees whereas the Declaration of Tokyo is limited to physicians only.33 The Declaration of Tokyo is the only wma document referred to although others could have provided additional, more general guidelines of medical ethics for physicians, whether treating detainees or not.

31 The Declaration of Tokyo was last revised in 2006. World Medical Ass0ciation, Declaration of Tokyo – Guidelines for Physicians Concerning Torture and other Cruel, Inhuman or Degrading Treatment or Punishment in Relation to Detention and Imprisonment. For an elaborate discussion of the wma and its documents, see Chapter 9. 32 Presumably the reference to the World Medical Assembly is the General Assembly of the World Medical Association. 33 For an extensive comparison of the two documents, see Rodley & Pollard, The Treatment of Prisoners under International Law, p. 512–523.

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a The un Principles of Medical Ethics The first principle contains a duty for physicians and other health personnel to protect prisoners and detainees in their care and treat them equally to free patients. In general, this is compatible with the principle of protection and of non-discrimination in international humanitarian law. However, a duty to protect specifically addressed to physicians cannot be found in international humanitarian law. An equivalent positive obligation would only be the general obligation to respect and protect the wounded and sick.34 International humanitarian law contains more negative obligations explicating what physicians should refrain from doing. An example is article 11 (1) ap I which establishes what constitutes an unwarranted medical procedure. The article does, however, also call on physicians to treat those in need of medical care as they would treat free patients in times of peace and to act in their benefit which is an aspect of protection. While international humanitarian law prohibits torture and inhuman treatment per se, it does not single out physicians as possible perpetrators.35 The Principles are more specific. Pursuant to the second principle: [it] is a gross contravention of medical ethics, as well as an offence under applicable international instruments, for health personnel, particularly physicians, to engage, actively or passively, in acts which constitute participation in, complicity in, incitement to or attempts to commit torture or other cruel, inhuman or degrading treatment or punishment. Active involvement in torture or cruel, inhuman or degrading treatment also constitutes a grave breach of the Geneva Conventions and an international crime.36 The second principle not only prohibits the perpetration of the crime but also other forms of participation. In international criminal law, passive participation is prohibited if the physician’s moral support or encouragement 34 35

36

Articles 12 gc I and II, 13 gc III, 16 gc IV, 10 ap I and 7 ap II. Torture is prohibited, in international armed conflicts, in articles 12 gc I and II, 17 gc III, and 32 gc IV, and in non-international armed conflicts, in common article 3 gcs and article 4 (2)(a) ap II. In general, international humanitarian law only prohibits torture and, when it comes to interrogation of prisoners of war, ‘any other form of coercion’. Cruel, inhuman and/or degrading treatment is not explicitly prohibited as such, although inhuman treatment is one of the ‘classic’ grave breaches pursuant to articles 50 gc I, 51 gc II, 130 gc III, and 147 gc IV. On the prohibition of torture, see Chapter 5. Article 2 cat and, for example, articles 7 (1)(f), 8 (2)(a)(ii) and 8 (2)(c)(i) Rome Statute. And see Chapter 3 and Introduction Part Three.

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in the commission of such acts had substantial effect37 or facilitated torture or cruel, inhuman or degrading treatment.38 Countenance and condonation of torture or cruel, inhuman or degrading treatment, as also proscribed by the Declaration of Tokyo, should only fall under passive participation if it had substantial effect on the commission of the crime.39 Medical knowledge can contribute greatly to the suffering of the interrogated or punished person because a physician knows confident and intimate information about the persons she treats.40 Any assistance in the interrogation of detained persons as well as certification of the fitness of prisoners for a certain form of punishment ‘in a manner that may adversely affect the physical or mental health or condition of such prisoners or detainees, and which is not in accordance with the relevant international instruments’ is explicitly prohibited pursuant to the fourth principle. By adopting a separate principle prohibiting such acts that can have a significant medical component, the Principles have placed a justified emphasis: even the facilitation of torture or cruel, inhuman or degrading treatment by physicians is incompatible with the Principles and, arguably, medical ethics. It is an aspect that was neglected by international humanitarian law, particularly Geneva Convention III. Article 17 gc III merely prohibits ‘physical or mental torture, [and] any other form of coercion […] to secure from [the prisoner of war] information of any kind whatsoever’. Physicians and their direct or indirect involvement are not mentioned – an omission that could thus be remedied. For legal certainty, prohibited actions should, however, meet the requirements of participation. The prohibition in the fourth principle was weakened by its reference to ‘relevant international instruments’. Because acts in accordance with international legal instruments

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Principally, see icty Furundžija Trial Judgment, para. 235, but for the entire discussion see para. 190–235. For an elaborate analysis, consult Kai Ambos, ‘Article 25: Individual Criminal Responsibility’, in Otto Triffterer (ed), Commentary on the Rome Statute of the International Criminal Court (C.H. Beck, 2008). Article 25 (3)(c) Rome Statute. Conversely, in article 1 Declaration of Tokyo condoning and countenance of torture and cruel, inhuman or degrading treatment is prohibited on the same level as participation in or facilitation of such acts. This should only be prohibited or rather physicians should only be responsible for such acts, when they morally supported or encouraged the principal perpetrators and this support had a substantial effect. A recent example being the involvement of medical personnel in coercive interrogations in Guantánamo Bay. See Leila Zerrougui, et al., ‘Report on the Situation of Detainees at Guantánamo Bay’, para. 75; and in other cia detention sites, see icrc, Report on the Treatment of Fourteen “High-Value Detainees” in cia Custody, p. 21–22.

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that have an adverse effect on persons medically treated are not prohibited, the Principles have here created a dangerous loophole. 41 The fifth principle contains a very detailed prohibition. It prohibits physicians’ contribution to restraining practices with one general exception: if the physician, based on ‘purely medical criteria’, deems restraining ‘necessary for the protection of the physical or mental health or the safety of the prisoner or detainee’. The reference to ‘medical criteria’ for decision-making is more concrete than criteria used in the Geneva Conventions where several provisions, in other contexts, refer to a justification ‘by the medical, dental or hospital treatment’ and the interest of the person being treated.42 Presumably, such justifications are also informed by ‘medical criteria’. The icrc Commentary explicates that ‘medical reasons’ should guide physicians.43 In the case of restraining practices on persons in detention, a non-medical intervention must be medically justified, a high threshold for the treating physicians. Yet if a physician can justify such measures based on the safety of the detainee, he is provided with a considerable amount of leeway in determining when a prisoner or detainee should be restrained. It is not clear how a safety exception not concerning the health of the detained person could be medically justified. The principle does not provide sufficient guidance on this. As abuse is imaginable, it is questionable whether this principle should guide or even bind physicians.44 The sixth and final principle contains a non-derogation clause. Even public emergencies cannot justify derogation from the Principles.45 It can be surmised that armed conflicts are public emergencies. Hence, armed conflict can also not provide an exception: the Principles should also, and maybe especially, apply in armed conflicts to all prisoners of war or persons detained. 41

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Also being skeptical of this reference, Rodley and Pollard argue that the requirement that physicians’ assistance in interrogations or evaluation of patients’ fitness be ‘in accordance with relevant international instruments’ limits the applicability as, theoretically, physicians would thus have to ascertain this on a case-by-case basis. Rodley & Pollard, The Treatment of Prisoners under International Law, p. 516. For example article 13 gc III. Article 32 gc IV only mentions the ‘medical treatment’ not the interest of the affected civilian. Uhler & Coursier (eds), Commentary IV, p. 221. Restraining should also at all times be in accordance with international human rights law, particularly the prohibition of cruel, inhuman and degrading treatment in article 7 iccpr and the right of detainees to be treated with humanity and dignity in article 10 iccpr. This Principle is comparable to the non-derogation clauses in international human rights law, see Chapter 5. In all international human rights treaties, the prohibition of torture and cruel, inhuman or degrading treatment is non-derogable.

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b

Relevance of the un Principles of Medical Ethics for International Humanitarian Law The Principles have several weaknesses. Even though they label the involvement in torture and cruel, inhuman and degrading treatment by physicians as ‘contraventions of medical ethics’, they do not stipulate what consequences such a contravention should have.46 In this respect, the accompanying resolution states the following: Convinced that under no circumstances a person shall be punished for carrying out medical activities compatible with medical ethics regardless of the person benefiting therefrom, or shall be compelled to perform acts or to carry out work in contravention of medical ethics, but that at the same time, contravention of medical ethics for which health personnel, particularly physicians, can be held responsible should entail accountability.47 It should be noted that the formulation chosen was taken from articles 16 ap I and 10 ap II yet adds accountability. As the relevant articles in the Additional Protocols were aimed at protecting physicians, they did not contain provisions concerning possible consequences of a violation of medical ethics. Here, accountability could refer to criminal consequences but also consequences within the internal organization of the medical profession. States will thus, on a national level, have to determine if and how to implement a regime that enforces the prohibition of ‘contraventions of medical ethics’. They should then also re-think some of the formulations and concepts chosen in the Principles, as scrutinized above. For example, whether the emphasis on restraining is justified or whether other important, yet neglected aspects, such as force-feeding or a duty of physicians to report torture, should also be included. The Principles were adopted five years after the Additional Protocols. The text of articles 16 ap I and 10 ap II or the icrc Commentary provides no guidance on whether this is a dynamic reference. Possibly, a subsequently adopted document such as the Principles could be used to fill the gap. Since the adoption of the Principles in 1983, the subject of medical ethics has not been tabled and there has been no subsequent action by the un ga on the issue. Arguably,

46 47

These are also points of critique by Rodley & Pollard, The Treatment of Prisoners under International Law, p. 515–518. Preamble to the un Principles of Medical Ethics.

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due to lacking subsequent state practice,48 they have in practice not attained the status of anything more than exhortations of the un ga. Generally, as part of a un ga resolution, the Principles are not legally binding as such.49 Their value is thus limited despite the fact that some resolutions indeed formulate norms that may attain legal status making them more widely applicable.50 To attain customary status, the Principles would need to be supported by state practice and opinio juris.51 A classification as general principles of international law would also hinge on their customary status as general principles are derived from customary international law.52 Yet, the Principles lack the characteristic of generality which distinguishes general principles of international law.53 The Principles are general normative propositions. They urge states to modify their existing rules concerning torture and the involvement of physicians therein. Through dissemination, awareness for the non-derogability of the rights protected in the Principles can be raised.54 Because the Principles concern the treatment of prisoners and detained persons, they complement Geneva Conventions III and IV and article 11 ap I. An explicit prohibition of 48

Assessing the relevant state practice and opinio juris regarding the Principles would be beyond the scope of this book. Although torture is generally prohibited in national legislations, the involvement of physicians is generally not. 49 In general, pursuant to article 10 un Charter, the un ga has the power to make general recommendations. Specifically, pursuant to article 13 (1) un Charter, the un ga is to make recommendations ‘[…] encouraging the progressive development of international law and its codification’ and ‘promoting international co-operation in the economic, social, cultural, educational, and health fields, and assisting in the realization of human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion’. 50 Although un ga resolutions are ‘official acts’, they are not considered as treaties or conventions. icj, Nicaragua Case, para. 73. However, they can contribute to the formation of customary international law by providing relevant state practice. Asamoah, The Legal Significance of the Declarations of the General Assembly of the United Nations, p. 50. 51 Gaetano Arangio-Ruiz, The United Nations Declaration on Friendly Relations and the System of the Sources of International Law (Sijthoff & Noordhoff, 1979), p. 46; 48. 52 Ibid. p. 68; Fabián O. Raimondo, General Principles of Law in the Decisions of International Criminal Courts and Tribunals (Martinus Nijhoff Publishers, 2008), p. 41. 53 Krysztof Skubiszewski, ‘The Elaborations of General Multilateral Conventions and NonContractual Instruments having a Normative Function or Objective – Resolutions of the General Assembly of the United Nations’, in Institut de Droit International (ed), Yearbook – Session of Helsinki – Preparatory Work (Editions A. Pedone, 1985), p. 49. 54 Alfred Gellhorn, ‘Medicine, Torture and the United Nations’, 315 The Lancet, 428 (1980), p. 429.

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physicians’ involvement in acts or omissions that amount to an active or passive participation in torture or cruel, inhuman or degrading treatment cannot be found in international humanitarian law. On the one hand, the Principles hence provide an extra layer of protection for detained persons and prisoners of war, like the applicable human rights discussed in Chapter 5.55 If states fail to ameliorate their efforts to prevent or regulate physicians’ involvement in interrogations or punishment of prisoners or detainees, the Principles provide a very general basis for physicians to be able to refer to for guidance or in their defense in situations where torture is likely, such as interrogations or punishment.56 In that sense, the Principles are a valuable addition to the protection of detained persons receiving medical care. However, the Principles cannot substantiate the open term ‘medical ethics’ in general as they are aimed at a specific situation, namely detention, and the subject of torture and cruel, inhuman and degrading treatment. This bars their applicability to all medical activities in armed conflict. On issues such as triage or consent, they are silent. Most of them can be used as guidelines for situations of detention, even in extension of article 11 ap I, but they cannot fill the opening to medical ethics in the Additional Protocols. 2 The unesco Universal Declaration on Bioethics and Human Rights In 2005, unesco’s General Conference consensually adopted the Universal Declaration on Bioethics and Human Rights (udbhr).57 As it provides principles of bioethics addressing, amongst others, ‘issues related to medicine’,58 it needs to be examined whether it could possibly give substance to ‘medical ethics’ as used in the Additional Protocols. The unesco, one of seventeen specialized un agencies, provides the international community with a ‘global platform to identify shared values and to assert universal principles’.59 One of the objectives of unesco is to set international normative standards in the sphere of global ethics.60 In questions relating 55 Namely articles 7 and 10 iccpr and the Convention against Torture in general. 56 Beigbeder, The Role and Status of International Humanitarian Volunteers and Organizations – the Right and Duty to Humanitarian Assistance, p. 340. 57 United Nations Educational Social and Cultural Organization, Universal Declaration on Bioethics and Human Rights, unesco Publ. No SHS/EST/BIO/06/1 (19 October 2005). 58 Article 1 (1) udbhr. 59 Henk A.M.J. ten Have & Michèle S. Jean, ‘Introduction’, in Henk A.M.J. ten Have & Michèle S. Jean (eds), The unesco Universal Declaration on Bioethics and Human Rights: Background, Principles and Application (unesco Publishing, 2009), p. 23. 60 Ibid. p. 19.

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to the ethics of science and technology, unesco is advised by thirty-six independent representatives in the International Bioethics Committee (ibc).61 The udbhr was drafted and prepared by the ibc and commented upon by the Intergovernmental Bioethics Committee (igbc)62 before it was sent to the General Conference where it was adopted by consensus on 19 October 2005. In the drafting phase, the who and the wma were among the consulted stakeholders, as well as national bioethics committees.63 a

Medical Ethics in the unesco Universal Declaration on Bioethics and Human Rights From the preamble, it can be surmised, that the unesco intended to adopt universal principles as a ‘global response to the ethical implications of [developments in science and technology]’. A wide-ranging list of human rights documents on the one hand and documents relating to bioethics, including the wma’s Declaration of Helsinki, on the other are ‘noted’. Documents relating to medical ethics as such are not included. The udbhr proclaims fifteen principles that form the core of the Declaration. The basis forms the principle of respect for human dignity, human rights and fundamental freedoms (article 3). It is supplemented by the principle of benefit and harm (article 4). From the principle of autonomy and individual responsibility (article 5), the principles of informed consent (articles 6 and 7), of personal integrity (article 8) and of privacy and confidentiality (article 9) are drawn. Furthermore, it establishes the principles of equality, justice and equity (article 10) and non-discrimination and non-stigmatization (article 11). Concerning bioethics in a wider community, it contains a principle of cultural diversity and pluralism (article 12), of solidarity and cooperation (article 13) and of social responsibility and health (article 14). Lastly, the principle of benefit sharing (article 15), of the protection of future generations (article 15) and of the protection of the environment, the biosphere and biodiversity (article 17) 61

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To reflect on ethical and legal questions in the research in life sciences and their application, it established the International Bioethics Committee in 1993. The ibc consists of 36 independent experts from different cultures, disciplines and geographic regions. They are appointed by the Director-General upon suggestion by their national governments. See article 3 ibc Statutes. For statistics on the ibc, see Vöneky, Recht, Moral und Ethik, p. 361 et seq. Work by the ibc is examined by the igbc which consists of 36 representatives of members states. Opinions by the igbc are submitted to the Director-General, to the unesco member states, executive board and General Conference. ten Have & Jean, ‘Introduction’, p. 28.

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concern  humanity as a whole. According to ten Have, the principles are ‘arranged according to a gradual widening of the range of moral objects’: from human beings to their overall environment.64 The principles are supplemented by articles concerning the application (articles 18–21) and regarding their dissemination and implementation (articles 22–28). Being addressed mainly to member states, the udbhr calls upon them to take administrative and legislative steps to meet the principles and aims proclaimed therein (article 22). b

Relevance of the unesco Declaration on Bioethics and Human Rights for International Humanitarian Law From the title, one assumes that the udbhr can shed light on universal medical ethics. It is, after all, a document specifically addressing bioethics adopted by the member states of an international organization that applies to all states.65 This needs to be discussed. Article 6 (1) udbhr stipulating the requirements for informed consent is the sole principle that addresses only medical ‘interventions’.66 In contains a valuable indication of an internationally accepted principle of medical ethics. The principle stands in stark contrast to the absolute lack of a provision concerning informed consent in international humanitarian law. The only provision that touches the principle of informed consent is article 11 (5) ap I which gives patients the right to refuse surgery. Here, international humanitarian law clearly presents a lacuna where article 6 (1) udbhr could provide guidance. However, not all states agree on what informed consent entails – Belgium, for example, in an official explanation of vote, provided its own interpretation of informed consent.67 As in all emergency situations, article 6 (1) udbhr would 64 65

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Ibid. p. 40. With 195 members and nine associate members, unesco has near universal membership. See online at http://portal.unesco.org/en/ev.php-URL_ID=11170&URL_DO=DO_ TOPIC&URL_SECTION=201.html. Article 6 (1) udbhr: ‘Any preventive, diagnostic and therapeutic medical intervention is only to be carried out with the prior, free and informed consent of the person concerned, based on adequate information. The consent should, where appropriate, be express and may be withdrawn by the person concerned at any time and for any reason without disadvantage or prejudice’. The ibc’s draft was even more explicit and split the requirements for informed consent for science and medical treatment omitting the requirement of ‘prior, free, informed and express consent’ for medical diagnosis and treatment in the draft. For the Belgian explanation of vote, see unesco, Draft Report of Commission III – Statements on the Interpretation of specific Provisions of the Universal Declaration on Bioethics and Human Rights, Annex II, Doc. No. 33 C/83 (18 October 2005), p. 1. Concerning article 6 udbhr it reads: ‘With regard to Articles 6 (a) and 7 (a), Belgium declares that, in

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have to be adjusted to the situation of armed conflict where there is not always the possibility to attain ‘prior, free and informed’ consent. In armed conflicts, persons are not necessarily in the position to make a ‘free’ decision because of their status, for example as members of an army, and because there may not always be time to receive the consent ‘prior’ to the taking of emergency measures. The reservation ‘where appropriate’ is not sufficient. Nonetheless, the principle could provide guidance on finding an appropriate form of informed consent for the situation of armed conflict. As the udbhr addresses bioethics it encompasses not only ethics governing the medical practice – the classic medical ethics – but also ethics concerning other sciences, especially life sciences.68 In its preliminary draft, the ibc defined bioethics as ‘a systematic, pluralistic and interdisciplinary field of study involving the theoretical and practical moral issues raised by medicine and life sciences as applied to human beings and humanity’s relationship with the biosphere’.69 Bioethics is thus a much broader concept than medical ethics per se. The ibc had originally envisaged that principles would address scientific research and medical treatment separately. For example, the principle of informed consent, now article 6 udbhr, was split into application in scientific research and in medical treatment.70 This division is the only one that was kept in the eventual version. Although there are certain principles that are relevant for medical treatment such as the balance of benefits and harm

accordance with its domestic law, it will interpret these provisions as follows: when, in an emergency, appropriate consent or authorization cannot be obtained, any medical intervention for the benefit of the person concerned may be effected without delay’. 68 The development of bio- and medical ethics is analyzed in Chapter 1. 69 International Bioethics Committee of unesco, Explanatory Memorandum on the Elaboration of the Preliminary Draft Declaration on Universal Norms on Bioethics, Doc. SHS/EST/05/CONF.203/4, para. 17. 70 Draft article 10 of the unesco International Bioethics Committee, Preliminary Draft Declaration on Universal Norms on Bioethics reads: ‘(a) Any decision or practice in the field of scientific research shall only be made or carried out with the prior, free, informed and express consent of the persons concerned. Such consent may be withdrawn by the person concerned at any time and for any reason without any disadvantage or penalty. (b) Any decision or practice regarding the medical diagnosis and treatment of a person shall only be made or carried out with the consent of the person concerned, based on information appropriate to the decision, and with the ongoing participation of such person. (c) In any decision or practice involving persons who do not have the capacity to consent, special protection shall be given to such persons. Such protection shall be based on ethical and legal standards adopted by States, consistent with the principles set out in this Declaration’.

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(article 4)71 or the principles of consent for persons without the capacity to consent, equality and non-discrimination (articles 7, 10 and 11),72 it is clear that this is not the main aspiration of the udbhr. Regulating medical practice or finding solutions for ethical problems in medicine is of secondary importance to setting standards for science and research.73 Initially there was disagreement whether the udbhr should only address medicine and life sciences or whether it should include environmental and social aspects.74 Eventually a compromise was agreed upon – the principles in the udbhr move through these aspects with different emphases. Desirable as this may be on a political level,75 for present purposes the udbhr places too little emphasis on medical aspects and too much emphasis on science and technology. Symptomatic of this is the fact that the word medicine is mentioned a mere four times and medical practice three times,76 whereas science appears thirteen times and research twenty-seven times. Although several of the principles could also apply to medical practice, the overall focus of the document, which is in line with the mission of unesco, remains science and research.77 The Social and 71

See also the discussion by Pellegrino that is based on the inference that the article addresses medical treatment and medical research – he does not mention life sciences. Edmund D. Pellegrino, ‘Article 4: Benefit and Harm’, in Henk A.M.J. Ten Have & Michèle S. Jean (eds), The unesco Universal Declaration on Bioethics and Human Rights: Background, Principles and Application (unesco Publishing, 2009), esp. p. 107. 72 Article 7 udbhr has, like article 6 udbhr, also raised concerns. Germany has stated that it ‘reaffirms its position on research on persons lacking the capacity to consent and approves the Declaration on Bioethics with the express note that the determination of international minimum standards that differ from German legislation does not give the Federal Republic of Germany any cause to deviate from the stricter German legal standards’. Statements on the Interpretation udbhr, p. 2. 73 See also Kollek who only speaks of ‘international akzeptierte Leitlinien für das Handeln im Bereich der biomedizinischen Forschung und der Lebenswissenschaften’ leaving aside medical practice altogether. Regine Kollek, ‘Schritte zur internationalen Verständigung über bioethische Prinzipien’, in Deutsche unesco Kommission (ed), Allgemeine Erklärung über Bioethik und Menschenrechte: Wegweiser für die Internationalisierung der Bioethik (Deutsche unesco Kommission, 2006), p. 42. 74 ten Have & Jean, ‘Introduction’, p. 35; 39. 75 Kollek is a proponent of this compromise, Kollek, ‘Schritte zur internationalen Verständigung über bioethische Prinzipien’, p. 47. 76 Medical practice as such is only mentioned in the principle regarding benefit and harm which explicitly speaks of patients’ benefits (article 4), the principle addressing the protection for persons incapable of giving their informed consent (article 7), and the principle regarding human vulnerability (article 8). 77 Kollek, ‘Schritte zur internationalen Verständigung über bioethische Prinzipien’, p. 42–43.

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Human Sciences Department of the unesco is seized with ‘ethical dimensions of the current scientific and technological evolution’. Its mission statement declares that: [ensuring] the world remains secure for everyone means that scientific and technological progress must be placed in a context of ethical reflection rooted in the cultural, legal, philosophical and religious heritage of all our communities.78 Questions relating to medicine and health fall within the ambit of the who, whereas only questions concerning science as such are within the area of responsibility of unesco.79 The who made this very clear in its critical response to a draft of the udbhr.80 unesco has also been criticized for ‘overstepping its mandate’.81 Nonetheless, the emphasis on bioethics in science and research is an impediment to the general applicability of the udbhr for interpreting medical ethics in armed conflict. Not only is the emphasis on science and research problematic, it is also questionable whether the udbhr can guide physicians. Article 1 (2) udbhr explicitly declares that it is addressed to states. The aim of the udbhr, pursuant to article 2 (a), is ‘to provide a universal framework of principles and procedures to guide states in the formulation of their legislation’. The guidance it can provide ‘to decisions or practices of individuals, groups, communities, institutions and corporations, public and private’ is secondary and only when ‘appropriate 78 Available online at www.unesco.org/new/en/social-and-human-sciences/about-us/ how-we-work/mission/. 79 Article 2 (1) Agreement between unesco and who: ‘In particular, it is recognized by unesco that who shall have the primary responsibility for the encouragement of research, education, and the organization of science in the fields of health and medicine, without prejudice to the right of unesco to concern itself with the relations between the pure and applied sciences in all fields, including the sciences basic to health’. World Health Organization, Agreement between the United Nations Educational, Scientific and Cultural Organization and the World Health Organization, Official Records who (1955) 13, 96, 323 (17 July 1948). 80 The response by the who is reprinted in unesco, Results of the Written Consultation on the Third Outline of the Text of a Declaration on Universal Norms on Bioethics (27 August 2004) (10 January 2005), p. 37. 81 Willem Landman & Udo Schüklenk, ‘unesco “declares” Universals on Bioethics and Human Rights – Many Unexpected Universal Truths by un Body’, 5 Developing World Bioethics, iii (2005); John R. Williams, ‘unesco’s proposed Declaration on Bioethics and Human Rights – A Bland Compromise’, 5 Developing World Bioethics, 210 (2005), p. 212.

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and relevant’. The appropriateness and relevance is not specified.82 The actors addressed include physicians or medical associations.83 If the udbhr is only secondarily addressed to individuals, it is questionable whether it could ever have an effect on physicians in practice. Originally, the ibc draft had primarily addressed private actors, and secondarily states.84 This would have led to a drastically different document. Rather than aspiring to bind states, it would have been a purely ethical guideline for physicians and researchers. Such a scope of application was rejected by the igbc. The udbhr was adopted as a non-binding, guiding document primarily addressing states.85 Its title was changed from the working title ‘Universal Norms on Bioethics’ to ‘Universal Declaration on Bioethics and Human Rights’. ‘Norms’ was thought to imply a bindingness that was not desired. ‘Universal’ was retained to indicate the wide acceptance of the document.86 Although the udbhr could in the future attain customary status, so far it should be classified as soft law: it has considerable influence on states, yet lacks binding character.87 As a guide, it was referred to by the European Court of Human Rights in its judgment in Evans v. uk of 2007.88 It is imaginable that the udbhr may serve as a basis for a future international convention on bioethics, such an endeavor 82 83

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Williams, ‘unesco’s proposed Declaration on Bioethics and Human Rights’, p. 212. Pellegrino assumes that article 4 addresses physicians, and not states necessarily. Pellegrino, ‘Article 4: Benefit and Harm’, p. 108. Kirby, on the other hand, only refers to those faced with ‘ethical questions presented by any aspect of biology’ to be addressed by the udbhr. Michael Kirby, ‘Article 1: Scope’, in Henk A.M.J. Ten Have & Michèle S. Jean (eds), The unesco Universal Declaration on Bioethics and Human Rights: Background, Principles and Application (unesco Publishing, 2009) p. 79. Article 2 of the Preliminary Draft Declaration on Universal Norms on Bioethics reads: ‘The principles set out in this Declaration apply as appropriate and relevant: (i) to decisions or practices made or carried out in the application of medicine, life and social sciences to individuals, families, groups and communities; and (ii) to those who make such decisions or carry out such practices, whether they are individuals, professional groups, public or private institutions, corporations or States’. See also unesco, Explanatory Memorandum, para. 24; 32. Hélène Boussard, ‘The “Normative Spectrum” of an ethically-inspired Legal Instrument: the 2005 Universal Declaration on Bioethics and Human Rights’, in Francesco Francioni (ed), Biotechnologies and International Human Rights (Hart Publishing, 2007), p. 110–111. Kollek, ‘Schritte zur internationalen Verständigung über bioethische Prinzipien’, p. 46. This classification is supported by Vöneky, Recht, Moral und Ethik, p. 369; Hélène Boussard, ‘Article 22: Role of States’, in Henk A.M.J. Ten Have & Michèle S. Jean (eds), The unesco Universal Declaration on Bioethics and Human Rights: Background, Principles and Application (unesco Publishing, 2009), p. 293. European Court of Human Rights, Evans v. United Kingdom, Judgment (Application No. 6339/05) [2007], para 52.

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has, however, not yet been undertaken. It is doubtful whether an international convention on bioethics could succeed. The few ratifications of the Council of Europe’s Oviedo Convention89 demonstrate how difficult it is to adopt a binding document on bioethics, even on a regional level. The udbhr is thus of relevance as a political signal and a guide in international standard-setting.90 Other more general problems with certain principles could hinder an application of the udbhr. Certain principles would be difficult to apply in armed conflict because of the special situation of some of those in need of medical care. For example the autonomy of members of the armed forces is severely restricted in armed conflict and thus the principle of autonomy in article 5 could not be applied as such.91 Another problem is the frequent reference to domestic legislations in the udbhr. Not only the principle of consent in article 7 contains a reference to domestic law, article 27 determines that limitation of the application of the principles is allowed if the reason for such a limitation can be found in national legislation, for example when in the interest of public safety. These exceptions leave states with greater discretion than most human rights treaties.92 Such a conditionality on domestic law limits the universality and generality of the principles. This is exactly what is to be avoided in giving substance to medical ethics to be applicable in armed conflict where it is important that all persons be treated equally and without considerations of nationality. In addition, several member states have given differing interpretations of certain principles in their explanations of vote.93 The udbhr is an attempt to merge ethics and human rights in order to provide international guidance94: human rights providing an already established 89

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Council of Europe, Convention for the Protection of Human Rights and Dignity of the Human Being with regard to the Application of Biology and Medicine: Convention on Human Rights and Biomedicine (Oviedo Convention), Doc. No. cets 164 (4 April 1997). To date, the Oviedo Convention has been ratified by 29 members of the Council of Europe. Some major players have not yet ratified it, including the uk, Russia and Germany. See www .coe.int/t/dg3/healthbioethic/Activities/01_Oviedo%20Convention/default_en.asp. Kollek, ‘Schritte zur internationalen Verständigung über bioethische Prinzipien’, p. 48; ten Have & Jean, ‘Introduction’, p. 42–43. Members of armed forces do not necessarily have full autonomy to make decisions for themselves. For a more detailed analysis, see Chapter 1. Patrick Robinson, ‘Article 27: Limitations on the Application of the Principles’, in Henk A.M.J. Ten Have & Michèle S. Jean (eds), The unesco Universal Declaration on Bioethics and Human Rights: Background, Principles and Application (unesco Publishing, 2009), p. 338–339. Statements on the Interpretation udbhr, p. 1–4. The emphasis on human rights can be traced to the involvement of the member states. Wolinsky, ‘Bioethics for the World’, p. 355–357.

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framework and bioethics providing professional norms and principles.95 Despite the fact that several principles are clearly inspired by international human rights law, such as the principle of equality and the principle of human dignity, most are not formulated sufficiently abstract to be generally applicable as human rights.96 They have the character of recommendations rather than actual conferrals of rights. Moreover, the human rights aspects in the udbhr seem to be limited to frequent references to human rights and the reminder to respect or act in accordance with them.97 Hence, the udbhr represents a political document that provides guidance for states on how to address questions of bioethics in areas of science and research while respecting human rights.98 In the area of medicine as carried out in armed conflicts, the udbhr is of little practical value.99 Awareness of the udbhr depends on unesco member states and their efforts to disseminate it among the medical profession. Only few principles of the udbhr are sufficiently general to guide physicians who provide medical treatment in armed conflict. 3 General Principles of International Humanitarian Law Several general principles of international humanitarian law have crystallized in international law. It needs to be examined whether they could contribute to finding an interpretation within international law for the undefined, open terms. International criminal courts have demonstrated in practice that the application of general principles of law is important in the ‘modern’ area of international criminal law due to a greater number of lacunae than in general international law where treaty and customary norms have reduced the chance of ‘legal gaps’.100 This realization has caused a certain, if cautious, revival of

 95 Hans Christian Wilms, Die Unverbindlichkeit der Verantwortung – Ethikkodizes der Wissenschaft im deutschen, europäischen und internationalen Recht (Duncker & Humblot, 2014)., p. 331.  96 Boussard, ‘The “Normative Spectrum” of an ethically-inspired Legal Instrument’, p. 114. See also the who response, Results of the Written Consultation on the Third Outline of the Text of a Declaration on Universal Norms on Bioethics (27 August 2004), p. 37.  97 In general, see articles 2 (c) and (d). Among the principles, see articles 3, 6 (2), 7 (2), 9, 11 and 12.  98 Of course, for states without the relevant legal infrastructure, the udbhr is an important first step. ten Have & Jean, ‘Introduction’, p. 42–43.  99 Some argue, that unesco should have left questions concerning medical treatment to the who. Williams, ‘unesco’s proposed Declaration on Bioethics and Human Rights’. 100 Raimondo, General Principles of Law in the Decisions of International Criminal Courts and Tribunals, p. 193.

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interest in general principles of law that might also benefit principles relevant to international humanitarian law.101 Even states not party to parts of international humanitarian law and other actors are bound by these principles ‘at all times, in all places and under all circumstances’.102 General principles of international law are general principles as derived from customary international law.103 They have to meet the same requirements as customary international law.104 Furthermore, they should be distinguished from general principles of law as a source pursuant to article 38 (1)(c) icj Statute.105 The latter must be of a legal nature.106 In the South West Africa case, the icj established that moral principles can only be included in considerations when they ‘are given a sufficient expression in legal form’.107 Even in the cases of international criminal courts elaborating on general principles of law, those principles are legal principles, such as the principle of nullum

101 Antonio Cassese, ‘The Contribution of the International Criminal Tribunal for the former Yugoslavia to the Ascertainment of General Principles of Law recognized by the Community of Nations’, in Sienho Yee & Wang Tieya (eds), International Law in the PostCold War World – Essays in Memory of Li Haopei (Routledge, 2001), p. 46. The influence of such principles was recognized and is supported by the formulation of article 21 Rome Statute which refers to ‘established principles of the international law of armed conflict’. 102 Pictet, Development and Principles of International Humanitarian Law, p. 59. 103 Raimondo, General Principles of Law in the Decisions of International Criminal Courts and Tribunals, p. 41. 104 Gaja classifies general principles of international law as principles that would be customary law but lack sufficient state practice. They would thus be ‘inchoate customary law’. Giorgio Gaja, ‘General Principles of Law’, in Rüdiger Wolfrum (ed), Max Planck Encyclopedia of Public International Law (Oxford University Press, 2012), para. 18–19. For a critique of this view, see Olufemi Elias & Chin Lim, ‘“General Principles,” “Soft Law” and the Identification of International Law’, 28 Netherlands Yearbook of International Law, 3 (1997), p. 35–37. 105 General principles of law are ‘unwritten legal norms of a wide-ranging character; and recognized in municipal laws of States; moreover they must be transposable at the international level’. Andreas Zimmermann, et al. (eds), The Statute of the International Court of Justice – A Commentary (Oxford University Press, 2006), p. 766, para 250. As unwritten rules of law, they are derived from a comparison of the most common and general principles of the major legal systems of the world and transposed to international law. An example is the principle of good faith. 106 Ibid. p. 767. 107 International Court of Justice, South West Africa Cases (Ethiopia v. South Africa; Liberia v. South West Africa), Second Phase Judgment [1966], icj Reports, para. 49.

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crimen/nulla poena sine lege.108 Some authors believe that the general principles of law pursuant to article 38 (1)(c) icj Statute also include general principles of international law which would be principles without a parallel in municipal legal systems.109 This view will not be followed: general principles of international law do not fall under the classical categories as used by the International Court of Justice. General principles of law are only those principles that are transposed from the municipal level to the international level.110 Below, two general principles of international humanitarian law will be analyzed and discussed, namely the principle of respect for humanity and the principle of respect for human dignity.111 a The Principle of Respect for Humanity The first indication of the existence of the principle of humanity has to be sought in the Martens Clause. The Martens Clause determines that if there are no relevant rules in the laws of war that a decision can be based upon, all actions should be in line with, amongst others, the principles of humanity. The principles of humanity are the ultimate minimum rules that states should respect in armed conflicts. The clause was first introduced in the preamble to the 1899 Hague Convention (IV) respecting the Laws and Customs of War on Land. In article 1 (2) ap I, the phrase ‘laws of humanity’ was replaced by ‘principles of humanity’.112 Although the Martens Clause is generally considered as

108 For example icty Čelebići Trial Judgment, para. 403. However, the Trial Chamber eventually rejected the application of the principles. For a general overview, see Cassese, ‘The Contribution of the icty to the Ascertainment of General Principles of Law’; for a comprehensive analysis, see Raimondo, General Principles of Law in the Decisions of International Criminal Courts and Tribunals. 109 Gaja, ‘General Principles of Law’, para. 17–20. 110 Zimmermann, et al. (eds), icj Statute Commentary, p. 767; Raimondo, General Principles of Law in the Decisions of International Criminal Courts and Tribunals, p. 41–42. 111 For a discussion of several principles, see Bruno Simma & Philip Alston, ‘The Sources of Human Rights Law: Custom, Jus Cogens, and General Principles’, 12 Australian Yearbook of International Law, 82 (1988). 112 Article 1 (2) ap I reads: ‘In cases not covered by this Protocol or by other international agreements, civilians and combatants remain under the protection and authority of the principles of international law derived from established custom, from the principles of humanity and from the dictates of public conscience’. The preamble to Additional Protocol II contains a circumscribed version of the Martens Clause which only refers to the principles of humanity and the dictates of public conscience.

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part of customary international law,113 its relevance in battlefield practice is limited.114 The principle of respect for humanity was re-introduced and reinvented in the Corfu Channel judgment. The icj established that some international obligations are based on ‘elementary considerations of humanity’.115 Meron equals the ‘principles of humanity’ in the Martens Clause to the elementary considerations of humanity as established in the Corfu Channel case.116 Though the icj did not explicitly classify these considerations as general principles of law, it introduced them as ‘general and well-recognized principles’. In the findings, the icj referred to the ‘breach of the principles of humanitarian law’ as ‘a breach of […] obligations under customary international law’117 indicating that the general principle of respect for humanity belongs to the realm of customary international law and not to the general principles of law. This view is also supported in literature.118 In the Nicaragua Judgment, the icj confirmed its stance119 and then moved to give more substance to such ‘elementary considerations of humanity’ and included common article 3 gcs as an example: […] in its view the conduct of the United States may be judged according to the fundamental general principles of humanitarian law; in its view, the Geneva Conventions are in some respects a development, and in other respects no more than the expression, of such principles. […] Article 3 which is common to all four Geneva Conventions of 12 August 1949 defines certain rules to be applied in the armed conflicts of a non-international character. There is no doubt that, in the event of international armed conflicts, these rules also constitute a minimum yardstick, in addition to the more elaborate rules which are also to apply to international conflicts; and they are rules which, in the Court’s opinion, reflect what the Court in 1949 called “elementary considerations of humanity” […].120 113 icj, Nuclear Weapons Case, para. 84. 114 Theodor Meron, ‘The Martens Clause, Principles of Humanity, and Dictates of Public Conscience’, 94 American Journal of International Law, 78 (2000), p. 88. 115 International Court of Justice, Corfu Channel Case, Judgment [1949], icj Reports, 1949, p. 22. 116 Meron, ‘The Martens Clause, Principles of Humanity, and Dictates of Public Conscience’, p. 82. 117 Ibid. para. 292 (8). 118 Fabián O. Raimondo, ‘The International Court of Justice as a Guardian of the Unity of Humanitarian Law’, 20 Leiden Journal of International Law, 593 (2007), p. 598. 119 The icj defined the laying of mines without notification ‘a breach of the principles of humanitarian law’. icj, Nicaragua Case, para. 215. 120 icj, Nicaragua Case, para. 218 (emphasis added).

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In the Nuclear Weapons advisory opinion, the most elementary humanitarian requirements were extended by the icj to include three other ‘cardinal principles’ of humanitarian law: the principle of distinction, the prohibition to cause unnecessary suffering to combatants and the Martens Clause.121 Thus, the elementary considerations of humanity have to be kept in mind at all times, just like the principles of humanity according to the Martens Clause. These considerations could either include the Martens Clause as an aspect of humanity or the Martens Clause could be an overarching principle of international humanitarian law. Either way, the elementary considerations of humanity and the principles of humanity should be the limit of actions in armed conflict. The here recognized principles, on the one hand, concern methods of warfare, and on the other include the general protection of the Martens Clause and common article 3 gcs. As established in Chapter 2, common article 3 does not contain additional protection regarding medical procedures and most certainly does not outline medical ethics or medical standards. Neither does the general residual protection of the Martens Clause. Regrettably the recognized general principles of respect for humanity thus do not enhance the clarity of the reference to ‘medical ethics’ in international humanitarian law. Although assuring humanity and respect for human dignity are values that physicians also respect, the principles do not clarify the term medical ethics. b The Principle of Respect for Human Dignity Similar to the principle of respect to humanity, the respect for human dignity is an important principle in international humanitarian law. As formulated by Pictet, who subsumes this principle as a fundamental ‘principle of human law’, ‘military necessity and the maintenance of public order must always be compatible with respect for the human person’.122 To avoid confusion with human rights law, which is of great influence on this principle, the term ‘principle of respect for human dignity’ is given preference. In 1998, the icty Trial Chamber discussed the principle of respect for human dignity when considering the definition of the crime of rape. The following paragraph is instrumental to its argument:

121 These, the icj in the next paragraph, defined as part of ‘a great many rules of humanitarian law applicable in armed conflict […] so fundamental to the respect of the human person’ that ‘they constitute intransgressible principles of international customary law’. icj, Nuclear Weapons Case, para. 78–79. 122 Pictet, Development and Principles of International Humanitarian Law, p. 61.

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The essence of the whole corpus of international humanitarian law as well as human rights law lies in the protection of the human dignity of every person, whatever his or her gender. The general principle of respect for human dignity is the basic underpinning and indeed the very raison d’être of international humanitarian law and human rights law; indeed in modern times it has become of such paramount importance as to permeate the whole body of international law. This principle is intended to shield human beings from outrages upon their personal dignity, whether such outrages are carried out by unlawfully attacking the body or by humiliating and debasing the honour, the self-respect or the mental well being of a person.123 The principle is not used often but the icty does refer to it as an ultimate limit that may even overcome legal barriers. Despite the correlation with the principle of respect for humanity, the Trial Chamber does not refer to the Nicaragua judgment. These two general principles of international humanitarian law thus stand separately, upon themselves. Nevertheless, they are clearly interrelated – international humanitarian law is based on the principle of humanity and informed by the principle of human dignity.124 The principle of respect for human dignity surely entails that a physician treat his patient with humanity – yet it does not explicate how. In this sense, articles 11 ap I and 5 (2)(e) ap II and 16 ap I and 10 ap II themselves provide much more detail. Although human dignity is integral in the provision of medical care, it lacks specificity to be of further guidance in medical aspects. Already being part of in international humanitarian law and accepted on an international level, the principle of human dignity is essential for situations where international humanitarian law does not apply.125 123 icty Furundžija Trial Judgment, para. 182–183 (emphasis added). 124 Benvenisti limits his discussion on the question of the influence of the principle of human dignity on the treatment of civilians in hostilities and argues that ‘the principle of human dignity recognizes a general attenuated duty to reduce harm to enemy civilians and more specific rules […] The human dignity principle informs the interpretation of the law on the conduct of hostilities and provides a built-in mechanism for improving armies’ treatment of enemy civilians’. Eyal Benvenisti, ‘Human Dignity in Combat: The Duty to Spare Enemy Civilians’, 39 Israel Law Review, 81 (2006). 125 Meron argues that there is also a more specific right to humane treatment for detainees and that this is a general principle of international law. He bases his argument on article 10 iccpr proclaiming a right of detainees to be treated with humanity and dignity, and its general acceptance. Theodor Meron, Human Rights and Humanitarian Norms as Customary Law (Claredon Press, 1991), p. 96.

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c

Relevance of the General Principles of International Humanitarian Law The discussion on the general principles of humanitarian law above demonstrates that there are basic principles behind international humanitarian law that may also be at the core of medical ethics: a physician should respect the dignity of those in need of medical care and treat them according with the principle of humanity. However, a true principle of medical ethics cannot be extracted from the general principles of international (humanitarian) law. They are too general for application and do not add meaning to the open terms. Rather, one could argue that the fact that a physician is to treat patients in armed conflict in accordance with medical ethics should be seen as part of the principles of humanity and human dignity.

4 Evaluation The examination has demonstrated that there is no common understanding on medical ethics in general international law. This can initially be explained by the fact that medical care concerns two individuals and not states directly. As was demonstrated, it is only when human rights of individuals are affected by states’ actions that international law steps in. Usually, international law addresses medical ethics in very specific contexts only. Looking at its title, one would assume that the un ga’s Principles of Medical Ethics would be insightful. Yet closer inspection demonstrates that the Principles were drafted to address the rules guiding physicians involved in torture or ill-treatment. They do not provide guidance on medical ethics for the medical profession in general questions. A similar conclusion needs to be drawn regarding the unesco Declaration on Bioethics and Human Rights. As the unesco’s assignment is science and research rather than health and medical treatment, the udbhr is also restricted thereby. Even though some articles of the udbhr address general questions that concern all physicians providing medical care, for example the principle of consent in article 6 udbhr or the principle of non-discrimination in article 11 udbhr, the overall focus on science and research stands in the way of any practical relevance of the udbhr in situations as complex as armed conflict. Lastly, an attempt to draw principles of medical ethics from the general principles of international humanitarian law also failed. The principles are, as the name indicates, too general to provide anything more than very general standards that should influence all activities in armed conflicts. Surely, medical ethics have much in common with and are based on the principle of humanity, but the open terms need specification not further generalization.

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C Conclusion Neither general public international law, nor international humanitarian law itself can provide a satisfactory solution to the question of how to interpret medical ethics. The former provides several points of guidance that are however either too specific or too broad to have any practical relevance in the context of medical care during armed conflict. The latter, drawing the principles of medical ethics from international humanitarian law itself, is an intriguing argument that fails due its circularity. It does, however, point the way towards the issues and aspects of medical care that are important for physicians in armed conflict. These are the principle of non-discrimination in triage and general medical care, the principles of beneficence and non-maleficence implying that treatment should always be to the benefit of the person medically treated and respect for the principle of informed consent. It would be beneficial for clarity and general legal certainty if there was an international document adopted by states setting out the basic principles of medical ethics as recognized in international law.126 This would provide a solution to the problem on an international level that states could approve. Such a document could be adopted either within the system of general public international law, for example within the who, or by member states upon proposals by the irc Movement. The latter would be preferable for coherency sake. Imaginable is a further, specific (fourth) Additional Protocol to the Geneva Conventions. A different option would be to establish such a document within another forum informed by the medical profession. Torrelli, for instance, advocates an international, binding document on medical ethics by an international organization for medicine. The wma would come to mind, yet as it is a non-governmental organization, it cannot adopt documents that bind states.127 Eventually, it is important that more clarity is established to facilitate appropriate and high-quality medical care in armed conflict. 126 Torrelli regards the international harmonization of medical ethics in armed conflict on a state level as desirable and germane. Torrelli, ‘La Protection du Médecin dans les Conflits Armés’, p. 590–591. On previous developments in that direction, Jovica Patrnogic, ‘International Medical Law – New Trends’, 11 International Review of the Red Cross, 121 (1971). A similar call was made by Ascencio who believes the development of what he calls the ‘lex medicalis’ should be driven by the icrc in cooperation with experts of the medical community. Hervé Ascencio, ‘Bioétique et Droit Humanitaire’, in Sandrine MaljeanDubois (ed), La Société Internationale et les Enjeux bioétiques – Treizième Rencontres Internationales d’Aix en Provence – Colloques de 3 et 4 décembre 2004 (Éditions A. Pédone, 2005), p. 106–107. 127 The wma will be discussed in more detail in Chapter 9.

chapter 8

A Pluralistic Approach to Medical Ethics The opening of the Additional Protocols to medical ethics, defined in Chapter 6 as moral principles that physicians should adhere to in carrying out their professional duties, leaves room for interpretation by individual physicians – a situation that may prove detrimental to the wounded and sick to be treated, and to the treating physician. Those in need of medical care may not known what to expect when being treated by a physician from another culture or state that may also adhere to a different set of medical ethics. This may be to their detriment if the treating physician adheres to immoral or illegal ethics. A lack of clear guidelines can also lead to mis- or abuse by the treating physicians. But, on a lesser scale, it may even be problematic if the treating physician has a different concept of basic principles, such as the principle of informed consent. Lacking legal certainty as to what constitutes correct treatment during armed conflict, physicians are more vulnerable to prosecution for medical war crimes.1 Because the framework of medical treatment hinges on the open concept of medical ethics which lacks concrete interpretation and cannot be reasonably applied, it has been suggested to interpret medical ethics pluralistically. This would be an alternative to interpreting medical ethics through documents of international law which did not lead to conclusive results in Chapter 7. Following the pluralistic approach, national regulations, codes, or guidelines by national medical associations that determine how physicians should medically treat patients would also regulate the interaction between physicians and the protected persons they treat in armed conflict. This means that medical treatment by physicians would depend on national medical ethics as generally applied within their country or region of origin or affiliation. The idea of a universal set of principles of medical ethics would thus be abandoned for a solution based on the guidelines in the country of origin of the treating physician. The pluralistic interpretation should not be confused with a subjective interpretation which would mean that every physician would follow his or her own principles of medical ethics. A subjective interpretation would most probably lead to an application of principles of medical ethics from the ethical 1 It should be noted, that a violation of medical ethics per se cannot be prosecuted as a war crime – the act or omission would also have to meet the definition of medical war crimes, as analyzed in Chapter 3.

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discourse.2 An advantage of the pluralistic approach, as advocated by some scholars, is that physicians are generally well acquainted with their national regulations or guidelines. This would facilitate their application and lead to coherence among treating physicians.3 Yet there are also disadvantages to the pluralistic approach. Advantages and disadvantages will be discussed below. Following the interpretation in Chapter 6, the present chapter will concentrate on the open term ‘medical ethics’ and exclude an examination of ‘generally accepted medical standards’.4 Where relevant for argumentation sake, reference may be had to aspects of the reference to ‘generally accepted medical standards’. A

A National Concept of Medical Ethics in International Humanitarian Law

The formulation of articles 16 ap I and 10 ap II is unambiguous: the provisions simply establish that physicians who comply with medical ethics cannot or should not be punished and that no physician should be compelled to violate medical ethics in his work. Due to the lack of an explanation on the nature and origin of medical ethics in armed conflict, the term should also be looked at from a pluralistic perspective. According to the icrc Commentary, medical ethics have a national component. In commenting on article 16 ap I, the Commentary establishes that part 2 For example Beauchamp and Childress’ four principles of medical ethics, as discussed in Chapter 1. 3 However, this may not always be the case. See Rudolf Ratzel & Hans-Dieter Lippert, Kommentar zur Musterberufsordnung der deutschen Ärzte (mbo), 4th Ed. (Springer Verlag, 2006), p. 26. 4 The interpretation in Chapter 6 has led to the conclusion that generally accepted medical standards are universal minimum standards of a technical nature as accepted as applicable by the mainstream opinion of the medical profession that depend on the circumstances of a situation. Physicians have a margin of appreciation concerning these standards – they have to decide what medical action is needed in a certain situation depending on financial and material resources. That a physician should apply the standards she would apply to free persons of her own country of origin or affiliation is meant to ensure equal treatment and should not bluntly be taken as a reference to national standards. Rather, it is a reiteration of the principle of non-discrimination. Although the formulation in article 11 (1) ap I makes a pluralistic approach to the open term ‘generally accepted medical standards’ seem plausible, a discussion will not be conducted for reasons of practicability: generally accepted medical standards are too technical to be discussed by the present author here.

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of medical ethics are ‘[such] duties […] generally decreed by the medical corps of each state in the form of professional duties’.5 In general, national medical associations regulate such decrees or regulations. Despite the fact that the Commentary subsequently also considers international medical ethics, the icrc also argues that medical ethics can be found in the national systems. A preference for one or the other cannot be discerned from the Commentary. The preference for a national interpretation is also voiced by some scholars. Bothe expounds that because medical ethics are not defined in the Additional Protocols the articles ‘[refer] to the various national systems’. Upon finding that a common concept of medical ethics is difficult to ascertain, although he concedes that the ‘state of the art’ is ‘to a great extent internationalized’, he determines that ‘[what] the requirements of medical ethics are is determined by the national (legal or non-legal) rules to which a person engaged in medical activities is subject’.6 More explicitly, he concludes with the statement that ‘the concept remains, for the time being, a national one’. To interpret the open term ‘medical ethics’, Bothe suggests to take the reference as one to purely national principles of ethics until an international consensus emerges. Without giving his own interpretation, Kalshoven endorses Bothe’s conclusion in his work.7 Coming to the same conclusion but following a different line of argumentation, Bouchet-Saulnier proposes that there are no differences in the principles of medical ethics recognized in different countries. Hence, physicians would always be bound by the ethical guidelines as provided by their own medical order. In her opinion, this is unproblematic because ‘les règles contenues dans ces différents instruments nationaux ne présentent pas de grandes divergences, et les principes essentiels de l’étique médicale sont identiques dans tous les pays’.8 Conversely, Baccino-Astrada, Beigbeder, and McCoubrey seem convinced of the fact that there are international medical ethics and that this is a universal concept.9 McCoubrey states in this respect that the reference in the Additional 5 Sandoz, et al. (eds), Commentary to the Additional Protocols, para. 655. Such decrees, often in the form of codes, guidelines or opinions, will be examined below. 6 Bothe, et al., New rules for Victims of Armed Conflicts, p. 128. 7 Kalshoven, ‘International Humanitarian Law and Violation of Medical Neutrality’, p. 1014. 8 Bouchet-Saulnier, Dictionnaire practique du Droit Humanitaire, p. 123. 9 Although Baccino-Astrada also concedes that medical ethics, as used in international humanitarian law, are undefined. Baccino-Astrada, Manuel des Droits et Devoirs du Personnel Sanitaire lors des Conflits Armés, p. 38–39; Beigbeder, The Role and Status of International Humanitarian Volunteers and Organizations – the Right and Duty to Humanitarian Assistance, p. 339–340.

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Protocols ‘is not simply a validation of whatever, possibly abysmal, standards might happen to be accepted by any given state or group of states’.10 Many of those who believe in the universality of principles of medical ethics refer to the World Medical Association’s documents for details.11 Among the few commentaries on the reference to medical ethics there is considerable disagreement on how to interpret this term that is so important for physicians and those they treat in armed conflicts.12 Because even the icrc Commentary recognizes the significance of national principles of medical ethics, it is deserves consideration whether a pluralistic solution could provide a practicable answer to an interpretation of the open term ‘medical ethics’ in international humanitarian law. The medical ethics adhered to by physicians should, in this view, be national medical ethics. Hence, there would neither be a uniform, universal set of medical ethics, nor would medical ethics depend on the subjective understanding of medical ethics by independent physicians. Rather the principles of medical ethics to guide physicians in the provision of medical care would depend on the national background of the treating physician. B

National Medical Ethics

Taking a pluralistic approach to the term medical ethics in articles 16 ap I and 10 ap II, one should look at which principles of medical ethics are included in national guidelines on medical ethics. In order to understand whether national guidelines can provide physicians with a practicable framework for medical care in armed conflict and at the same time ensure the protection of those in need of medical care, a brief examination of some codes of medical ethics as adopted by six different national medical associations will be conducted. In this comparison, the focus will be on whether the national guidelines can provide sufficient and comparable protection for those treated in armed conflict. To establish their value in armed conflict, they will be compared with international 10 McCoubrey, International Humanitarian Law, p. 86. 11 See especially the Declaration of Geneva, the International Code of Medical Ethics and the Regulations in Times of Armed Conflict, all contained in the Annex and available on the World Medical Association Homepage, at http://www.wma.net/en/10home/index.html. 12 It should be noted that Gunn and McCoubrey do not advocate either solution as they advance their theory that medical ethics can be found in international humanitarian law itself, as examined in Chapter 7. Gunn & McCoubrey, ‘Medical Ethics and the Laws of Armed Conflict’.

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humanitarian law. As there are discrepancies concerning the issue of medical involvement in interrogations of detained persons, part of the examination is dedicated to this specific issue. The examination will be followed by a discussion of the desirability of a pluralistic concept of medical ethics. 1

National Principles of Medical Ethics

a The American Medical Association The American Medical Association (ama) has published Principles of Medical Ethics and an extensive Code of Ethics that is applicable to members of the ama.13 The ama’s nine Principles address both the interaction of physicians amongst each other and with their patients. According to the Preamble, they are standards of conduct not law and serve to define ‘the essentials of honorable behavior for the physician’. The first, and most relevant, principle determines that a physician ‘shall be dedicated to providing competent medical care, with compassion and respect for human dignity and rights’. This should be the basis of all medical treatment. Among several principles addressed to the honorability of the physician and his desired law-abidingness, the Principles also call for respect for the rights of patients, the safeguarding of their confidences and privacy ‘within the constraints of law’. Besides respect for the patient and her dignity, principle VIII re-states the principle of beneficence. It is comparable to article 11 ap I where it prohibits medical procedures that are ‘not indicated by the state of health of the person concerned’.14 Principle IX confirms the principle of non-discrimination which also corresponds to international humanitarian law.15 The ama’s Code consists of a number of opinions clustered in nine categories. The opinions concern a large range of issues, from practice matters to the patient-physician relationship. Although not specifically addressed to the situation of armed conflict and possibly not applicable, the opinions on allocation of limited medical resources, on confidentiality and on informed consent all contain basic guidelines on ethically responsible treatment. Accordingly, limited medical resources should be allocated in accordance with ‘ethically appropriate criteria relating to medical need’, such as the urgency of need or the 13

14 15

American Medical Association, Principles of Medical Ethics (adopted June 1957; revised June 1980; revised June 2001) and American Medical Association, Code of Medical Ethics (2008). A newer version is available. Principle VIII reads: ‘A physician shall, while caring for a patient, regard responsibility to the patient as paramount’. Principle IX reads: ‘A physician shall support access to medical care for all people’.

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amount of resources required for successful treatment.16 Triage is generally accepted as essential in armed conflicts. This means that allocation of material and financial resources will play a role but should be decided based on medical reasons. As international humanitarian law lacks specificity in this respect, more detailed guidelines may be helpful. The confidentiality of patient information cannot be disclosed except with the ‘express consent’ of the patient or when prescribed by law. In the latter case, the opinion determines that the patient must be notified of such disclosure. In u.s. detention facilities, these guidelines were not adhered to and detainees were not notified that their confidential information was being passed on to others besides the physicians.17 Lastly, the opinion on informed consent establishes that it is a physician’s obligation to ensure that patients receive all relevant information to be able to make an informed choice about their treatment, except when the patient is ‘unconscious or otherwise incapable or consenting and harm from failure to treat is imminent’.18 As in all three opinions, there is no guidance on whether this is limited to civilian medical practice in to times of peace. If applicable in armed conflicts, however, the opinions would provide member physicians a framework of medical ethics that could provide some guidance and help protect those in need of medical care against violations. Most relevant for the protection of those requiring medical care in armed conflict, especially for persons in any way deprived of their liberty, are the opinions concerning torture19 and physicians’ involvement in interrogations in the social policy issues cluster.20

16

American Medical Association, Opinion 2.03 – Allocation of Limited Medical Resources (June 1994). 17 See Medical Program 2005 and the discussion in Chapter 1. 18 American Medical Association, Opinion 8.08 – Informed Consent (June 2006). 19 Opinion 2.067 – Torture reads: ‘Torture refers to the deliberate, systematic, or wanton administration of cruel, inhumane, and degrading treatments or punishments during imprisonment or detainment. Physicians must oppose and must not participate in torture for any reason. Participation in torture includes, but is not limited to, providing or withholding any services, substances, or knowledge to facilitate the practice of torture. Physicians must not be present when torture is used or threatened.  Physicians may treat prisoners or detainees if doing so is in their best interest, but physicians should not treat individuals to verify their health so that torture can begin or continue. Physicians who treat torture victims should not be persecuted. Physicians should help provide support for victims of torture and, whenever possible, strive to change situations in which torture is practiced or the potential for torture is great’. 20 This opinion will be discussed in comparison to a position paper on medical involvement in interrogations issue by the Israeli Medical Association below.

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Together, the ama’s Principles and its Code provide duties and obligations for the members of the ama. Members of the ama are American physicians and medical students. Pursuant to the introduction to the Code, ‘[violation]of these principles and opinions represents unethical conduct and may justify disciplinary action such as censure, suspension, or expulsion from medical society membership’. Although the opinions and Principles could have practical consequences, only an estimated third of American physicians is member to the ama and thus concerned.21 As a limitation on the application of the Principles and the Code is lacking, both theoretically bind members of the ama in times of peace, as well in times of armed conflict. b The Canadian Medical Association A commendable example of an ethical guideline is the Code of Ethics by the Canadian Medical Association (cma) which provides ‘an ethical framework for Canadian physicians, residents and medical students’.22 It is a modern, extensive, comprehensive code that is, however, purely advisory. The most fundamental responsibility of a physician is the well-being of a patient (para. 1). This means that physicians should treat all patients with respect and dignity (para. 2) and ‘refuse to participate in or support practices that violate basic human rights’ (para. 9). This is the only reference to violations of international law, implicitly including a prohibition of torture and cruel, degrading or inhuman treatment.23 Among the responsibilities that would also apply in armed conflict are the duty to prevent harm to patients, an equivalent of the duty to respect and protect (para. 14), the principle of non-discrimination (Nr. 17) and the obligation to provide emergency medical care (para. 18). The cma’s Code then lists several aspects of the principle of informed consent (para. 21–30). This includes the right of a ‘competent patient’ to reject medical procedures which coincides with article 11 (5) ap I yet is clearly much broader. Informed consent is also to be obtained of research subjects after the research has been scientifically and ethically evaluated (Nr. 38 and 40). Lastly, the confidentiality of medical information should be guaranteed unless disclosure is consented to by the patient or provided by law. This corresponds to articles 16 (3) ap I and 10 (3) ap II. 21

That less than a third of American physicians are also a member of the ama was taken from Miles, Oath Betrayed, p. 128. 22 Canadian Medical Association Homepage, at http://www.cma.ca/index.php?ci_id= 53556&la_id=1. 23 Canada signed the Convention against Torture on 23 August 1985 and ratified it on 24 June 1987. It ratified the International Covenant on Civil and Political Rights on 19 May 1976.

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c The German Bundesärztekammer The ethical principles as proclaimed by the German Medical Association (Bundesärztekammer) can be found in several articles of the (Exemplary) Professional Code.24 The Code serves as a model for the medical associations of the federal states (Bundesländer) of which all physicians are mandatory members. The medical associations of the states determine the relevant standards for the physicians in their state.25 Next to setting out the general conduct of medical treatment, the Code contains a general oath, based on the wma’s Declaration of Geneva. All physicians pledge to prioritize the sustainability and recovery of their patients’ health, to respect all medical secrets confided in them, and not to differentiate between patients based on religion, nationality, race, political affiliation or social status. The oath is concretized in the Code. Generally, physicians should practice medicine in concordance with their conscience, medical ethics and humanity. Any action in violation of these principles is prohibited (article 2 (1)). In comparison, where the Code contains a negative right – a prohibition –, article 16 ap I and 10 ap II contain both a negative and a positive right – the prohibition of punishment for acts in accordance with medical ethics and the right to refuse to violate medical ethics. Concerning the duties of physicians regarding their patients, the Code explicates that all medical treatment should respect human dignity and the rights and desires of the patient, especially the patient’s right to autonomous decision-making (article 7 (1)). In addition, the Code establishes the principle of prior informed consent (article 8), the principle of confidentiality unless waived by a patient or prescribed by law (article 9), and the duty of documentation for physicians (article 10). Except the principle of informed consent, these principles are also recognized, yet in a more limited manner, in international humanitarian law. The principle of informed consent would need to be adapted to the situation of an armed conflict – it is not always clear whether the prior informed consent of the wounded and sick can be obtained in emergency situations.26 In more specific questions, such as torture, experimentation or physicians’ involvement in interrogations, the German Medical Association follows the 24 Bundesärztekammer, (Muster-) Berufsordnung für die deutschen Ärztinnen und Ärzte (2008). 25 The Medical Associations of the federal states have self-regulatory powers and can set binding rules for their members – all physicians in that respective state. See Bundesverfassungsgericht, Facharztbeschluss (1 BvR 518/62 u. 308/64) [1972], 1504, p. 159 et seq. 26 Ratzel & Lippert, Kommentar zur Musterberufsordnung der deutschen Ärzte (mbo), p. 83, concerning unconscious patients, p. 101–102.

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declarations as adopted by the World Medical Association. For example, in the case of medical experimentation it explicitly refers to the wma’s Declaration of Helsinki for ethical principles concerning experimentation on human subjects (article 15 (4)).27 d The Israeli Medical Association Despite the fact that the Israeli Medical Association (ima) is often faced with questions of medical ethics in the continuous armed conflict in the country28 and is also actively involved in drafting documents of medical ethics for the World Medical Association, the ima has not adopted a comprehensive code of medical ethics for its members. Specific position papers, drafted and disseminated by the ima Ethics Board comprised of senior physicians from various fields, fulfill the role of guidelines.29 They have no legal value as such but can provide guidance to members of the ima. Membership within the ima is optional for Israeli physicians. The most basic ima document is the position paper on the General Duties of the Physician.30 This can be seen as a general code of medical ethics concerning physicians’ relationship with patients and with each other. Regarding physicians’ relationship with patients, the Duties determine that it is a physician’s ‘mission’ to ‘maintain the physical and mental health of humans’ and ‘alleviate their suffering’. The welfare of patients should take priority over all else. This duty also integrates the principle of non-discrimination. As a basis for medical care, these duties are compatible with international humanitarian law. Like international humanitarian law, however, the Duties also do not establish a principle of informed consent. They merely suggest that a patient should receive information concerning her condition but that a physician may decide not to provide this information according to her ‘better judgment and conscience’. Patients are entitled to refuse medical treatment ‘provided [they are] aware of

27

28 29

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This reference was included in all professional codes of the individual Bundesländer. For a discussion on the Declaration of Helsinki, see Chapter 9. World Medical Association, Declaration of Helsinki – Ethical Principles for Medical Research Involving Human Subjects (adopted by the 18th wma General Assembly, Helsinki, Finland, June 1964, and last amended by the 59th wma General Assembly, Seoul, October 2008). As acknowledged on the Israeli Medical Association Homepage, at http://www.ima.org.il/ ENG/Default.aspx, specifically the Ethical Dilemmas in Medicine in Time of Conflict. Some of the position papers of relevance here concern Restraining Prisoners and Detainees in Hospitals, (6 August 1997); Force-Feeding Hunger Strikers (unknown date); or the Prohibition of Physician Participation in Interrogations and Torture (December 2007). Israeli Medical Association, General Duties of the Physician. .

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the risk involved’. This paternalistic focus of the Duties can be compared to that of Geneva Law where the only provision mentioning consent is article 11 (5) ap I. It is surprising in view of the modern discourse on medical ethics and in comparison to the ethical guidelines of other national medical associations. The ima has also issued several documents concerning and of relevance in armed conflicts. In a position paper on Assurance of Medical and Health Services during the Armed Conflict between Israelis and Palestinians, the ima’s position is explicated, especially its independence and political neutrality.31 It clarifies the organization’s position in the Israeli-Palestinian conflict and calls upon the parties to ‘strike a balance between the assurance of medical and health services and the need for security’. Hardly addressing the physician– patient–relationship, the position paper on Assurances is thus a political and advocacy statement, not a document on medical ethics. More relevant for present purposes are the position papers on Physicians’ Involvement in Torture and Interrogations, which will be discussed below, and on Force-Feeding Hunger Strikers.32 In addition, the ima and the Palestinian Medical Association have adopted a common Declaration for Medicine in Time of Armed Conflict succinctly stating basic principles of medical ethics.33 Besides declaring their dedication to the Hippocratic Oath, the two associations also pledge their neutrality in view of the Arab-Israeli conflict, re-emphasize the principle of nondiscrimination as a ‘universal [norm] of morality and ethics’ and condemn the hinderance of medical care. The latter only in so far as ‘not necessitated by the realities of the situation’ which corresponds to international humanitarian law where it establishes that medical care should be provided ‘to the fullest extent practicable and with the least possible delay’.34 The other basic principles equally correspond to international humanitarian law. e

The Dutch Koninklijke Nederlandsche Maatschappij tot bevordering der Geneeskunst In 2002, the Royal Dutch Medical Association (Koninklijke Nederlandsche Maatschappij tot bevordering der Geneeskunst – knmg) adopted an updated version of its Rules of Conduct for Physicians.35 Drafted and adopted by the

31 32 33 34 35

Israeli Medical Association, Position Paper on Assurance of Medical and Health Services during the Armed Conflict between Israelis and Palestinians. Israeli Medical Association, Position Paper on Force-Feeding Hunger Strikers. Available online at www.ima.org.il/ENG/ViewCategory.aspx?CategoryId=4549. Most explicit in articles 10 (2) ap I and 7 (2) ap II. Koninklijke Nederlandsche Maatschappij tot bevordering der Geneeskunst, Gedragsregels voor Artsen (2002). The reasons for this update are explicated in Koninklijke Nederlandsche

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members of the knmg, they should be seen as guidelines for physicians. They are a self-regulatory instrument without legal value as such. Yet, according to their Preamble, the Rules of Conduct have further relevance because they may be relied upon in disciplinary hearings concerning disputes between knmg members and they may be referred to or used as interpretative guides by judges and policy makers.36 The scope of application of the Rules of Conduct includes all physicians in all circumstances. In their general part, the Rules of Conduct determine that a physician should always be guided by the health and wellbeing of her patient, the quality of care, respect for the patient’s autonomy, and the interest of general welfare. The first of these general considerations corresponds to the requirements in international humanitarian law that persons in need of medical care be respected and that medical treatment be in their interest. Another basic rule is that physicians should not accept tasks that violate ‘generally accepted medical-ethical beliefs’.37 Although formulated as medical-ethical beliefs, this provision matches the reference to medical ethics in articles 16 ap I and 10 ap II. As they should be ‘generally accepted’, this could either mean those accepted in the Netherlands or on an international level. This is not clear. The general part of the Rules of Conduct is supplemented by more specific rules concerning the physician-patient relationship, including the principle of nondiscrimination (II.2), the adjustment to realistic needs and circumstances (II.3), the principle of informed consent (II.8 and 9), and confidentiality (II.15). In a separate chapter addressing medical experiments, the Rules of Conduct establish that a physician needs the approval of a medical-ethical committee before being allowed to carry out any medical experiments. Experiments with human subjects require their express informed consent (IV.2 and 3). The Rules of Conduct do not provide any guidance on the controversial question of physicians’ involvement in interrogations – they also do not address or prohibit torture.38 36 37 38

Maatschappij tot bevordering der Geneeskunst, Toelichting op “Gedragsregels voor artsen”, Doc. No. II.02 (2002). Preamble of the Rules of Conduct. Article I.9. It refers to ‘algemeen aanvaarde medisch-ethische opvattingen’. It should be noted that torture is prohibited by Dutch law. Pursuant to articles 93 and 94 of the Grondwet, relevant treaties of international law supersede even the Grondwet which means that the Convention against Torture and the iccpr apply above national laws. The Netherlands signed the Convention against Torture on 4 February 1985 and ratified it on 21 December 1988 and the iccpr on 25 June 1969 and ratified it on 11 December 1978.

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f The South African Medical Association The South African Medical Association (sama)39 has only a short Member Credo40 which resembles the Hippocratic Oath or the wma’s Declaration of Geneva.41 Among the ten principles a physician pledges to strive by are several that might be important for physicians practicing medicine in armed conflict. Firstly, the principle of non-discrimination prohibiting discrimination based on ‘race, gender, sexual orientation, creed, social standing, political allegiance or the nature of the disease’ conforms with the principle in international humanitarian law, only the criteria are different. Secondly, the principle of informed consent is succinctly established. A physician pledges to ‘respect the rights of my patients to full information about their condition in order to take informed decisions regarding acceptance or refusal of proposed treatment’. Its brief nature ensures that it is practicable in a variety of situations, including armed conflict where it would enhance the short reference to consent in article 11 (5) ap I. Lastly, physicians pledge to respect confidential information. The principle has no exceptions which would realistically, however, apply in certain situations as prescribed by law. The sama’s Member Credo thus provides the very basic principles of medical ethics that due to their succinct nature could also be applied in an armed conflict. It is not a surprise that such a brief Credo does not contain rules on torture or physicians’ involvement in interrogations. 2 Regional Codes of Medical Ethics Before devoting Chapter 9 to the universal documents of the World Medical Association, some attention will be paid to an Arabic and a European initiative. a The Islamic Code of Medical Ethics The Islamic Organization for Medical Sciences (ioms) is an association of a variety of Muslim actors.42 One of the aims of the ioms is to ‘unify, publish and

39

According to its website, about 70% of South Africa’s private and public physicians are members of the South African Medical Association. See South African Medical Association Homepage, at http://www.samedical.org/index.php?option=com_content&t ask=view&id=2&Itemid=98. 40 South African Medical Association, Member Credo (2009). 41 The wma’s Declaration of Geneva is reprinted in Annex II and further discussed in Chapter 9. 42 Information regarding membership is available at the Islamic Organization for Medical Sciences Homepage, at http://www.islamset.com/ioms/code2004/index.html. It includes

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propagate […] Islamic moral concepts for the medical professions’. The ioms’ role in research has been recognized by the who.43 In adopting and publishing an Islamic Code of Medical Ethics, the ioms has realized its aims.44 The Code is separated into different chapters, for example concerning the doctor-patient relationship or doctor’s duty in war time. It is clear that the Code is based on and inspired by the Islamic faith. Physicians are seen as ‘catalyst[s] through whom God, the Creator, works to preserve life and health’. Taking this as the basis, the provisions of the Code largely correspond to the four basic principles of international humanitarian law and international humanitarian law. Physicians should be impartial and neutral, and respect human dignity. In respecting their patients, they should keeps secrets which entails respecting patients’ confidential information. It is repeatedly stated that physicians should not discriminate between friends and foes. Furthermore, the Code expects patients to ‘accept’ treatment by a physician. Although this means that they accept everything the physician may prescribe, there is room for refusal except when ‘necessity overrides prohibitions’. A refusal should be attained in writing. The rules for this acceptance and refusal are not as detailed as rules concerning informed consent. They do, however, suggest that every person being treated should be able to make an informed choice concerning their treatment. This does not include decisions that could be seen as ‘self-destructive’. Here the Code gives physicians the right to overrule the patients’ wishes for their own good. In the situation of a hunger strike, this would mean that the principle of beneficence would overrule the principle of autonomy. In the chapter addressing armed conflicts, the Code explicitly reiterates that Islam mandates that the wounded and ‘captives’, i.e. prisoners of war, be respected, provided with medical care, and not discriminated against. It also determines that physicians, in their humanitarian mission, should not utilize ‘technical scientific or other resources […] in any sort of harm or destruction

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‘notable Muslim personalities selected by the Board of Trustees’, ‘natural or legal persons, who are natives of the base country, contributing efforts or money to the activities of the ioms’, ‘Muslim personalities who are interested in Islamic medicine in the world’, ‘representatives of the medical societies or centers, allover the world, which join the ioms’, and ‘representatives of medical societies or centers or other interested parties not included in the above categories’. World Health Organization, Research and the World Health Organization: A History of the Advisory Committee on Health Research (who Press, 2010), p. 64. From the English information available on the ioms website it is not entirely clear who adopted the Code and what its normative value is.

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or infliction upon physical, psychological, moral or damage regardless of all political, military considerations’. Lastly, the Code also contains an Oath of the Doctor.45 The Oath emphasizes the principle of humanity, which includes respecting human dignity and protecting human life, confidentiality, impartiality, and the principles of beneficence and non-maleficence. The principle of autonomy as such plays a lesser role. b

The Standing Committee of European Doctors’ Resolution on the Medical Profession and Armed Conflict The Standing Committee of European Doctors (Comité Permanente des Médecins Européens – cpme) is an international association of European medical associations that aims to set standards for medical care.46 The cpme’s main objective is ‘the study and promotion of the highest level of medical training, medical practice, health and health care within the European Union’.47 45 The ioms Oath of the Doctor reads: ‘I swear by God The Great To regard God in carrying out my profession; To protect human life in all stages and under all circumstances, doing my utmost to rescue it from death, malady, pain and anxiety; to keep peoples’ dignity, cover their privacies and lock up their secrets; to be, all the way, an instrument of God’s mercy, extending my medical care to near and far, virtuous and sinner and friend and enemy; to strive in the pursuit of knowledge and harnessing it for the benefit but not the harm of Mankind; to rever my teacher, teach my junior, and be brother to members of the Medical Profession joined in piety and charity; to live my Faith in private and in public, avoiding whatever blemishes me in the eyes of God, His apostle and my fellow Faithful. And may God be witness to this Oath’. For the entire Islamic Code of Medical Ethics, see Islamic Organization for Medical Sciences, Islamic Code of Medical Ethics. 46 cpme members are 27 medical associations representing around two million physicians. To become a member, the respective medical association must be the most representative non-governmental national medical association in a member of the European Union or in a country meeting the other criteria. The criteria for medical associations are: ‘(a) one of the member states of the European Union, (b) one of the countries of the European Economic Area Agreement, or (c) an European State that is party of a treaty or an agreement with the European Union and all its member states, constituting individual rights to the citizens of all parties at least in the area of free movement of persons and services in accordance with and application of the community law, including its acquis and the European Court jurisdiction, and guaranteeing the full application of the communitylaw-based rules of automatic mutual recognition of diplomas of training and specialised training in medicine’. Article 4 of the Statutes. Standing Committee of European Doctors, Statutes. 47 Besides this overall goal, the organization represents the national medical associations in interaction with the European Union, advises the European Union on medical questions and informs the national medical associations on the European Union and its policies. Article 3 of the Statutes.

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In 2007, the cpme adopted a resolution on The Medical Profession and Armed Conflict.48 Aside from endorsing the wma’s Regulations in Times of Armed Conflict,49 the resolution also sets out the viewpoint of the cpme. According to the cpme, the core values of the medical profession are the promotion of the highest attainable standards of health for patients and the overall population. This, physicians should accomplish with ‘compassion, respect for others and concern for the vulnerable’. Physicians are bound by ‘strong moral obligations’. Moreover, the resolution discusses the incompatibility of the work of physicians – aimed at saving lives – with armed conflict – an endeavor to taking them. The cpme clearly advocates an active involvement of physicians in taking special responsibility by caring for all patients, being impartial despite possible dual-loyalty conflicts, minimizing the damage caused by armed conflict and using their status and knowledge to influence political and individual players. Interestingly, the cpme lastly calls upon the warring parties to fulfill their international obligations and ‘not […] impede doctors from fulfilling these ethical responsibilities’. This is a relevant aspect in modern wars where physicians are often targeted instead of being protected.50 Although the value of the cpme’s resolution on the medical profession and armed conflict is limited to European physicians only and overall awareness of this resolution is limited, it demonstrates what the physicians of twenty-seven countries deem essential: the impartiality of their profession, the principle of non-discrimination, and the overall neutrality of physicians in armed conflict.51 48

Standing Committee of European Doctors, The Medical Profession and Armed Conflict (17 March 2007). 49 The Regulations in Times of Armed Conflict are reprinted in Annex IV and discussed in Chapter 9. 50 See in this respect: International Committee of the Red Cross, Health Care in Danger: Making the Case and Chapter 1. 51 Other organizations that may be of importance are the European Forum of Medical Associations – an independent organization of European medical associations that facilitates the interaction with the World Health Organization – and the European Union of Medical Specialists (Union Européenne des Médecins Specialistes – uems). The uems is another European initiative to align the medical practices in the different European countries. However, as the uems is mostly concerned with the more practical aspects of the medical profession in Europe, it has no document relevant for present purposes. Its tasks are ‘maintenance and further development of the professional autonomy of European medical specialists; [the] study, promotion, harmonization and access to high quality ongoing education and training for medical specialists and their medical practice;

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3 The Example of Medical Involvement in Interrogations and Torture Medical involvement in coercive interrogations, at times tantamount to torture, has engendered much discussion and controversy as discussed in Chapter 1. After the revelations concerning the role of physicians in interrogations of detainees of the ‘war on terror’ in u.s. detention facilities, the ama in 2006 adopted an extensive opinion on Physician Participation in Interrogation.52 It presents an attempt to balance both political and ethical concerns. In its preamble, the opinion establishes that the ama believes that interrogations are necessary to prevent harm or danger to individuals, the public, or national security. The ama clarifies that ‘interrogations must avoid the use of coercion’ (emphasis added) which is slightly weaker than prohibiting coercion.53 Medical ethics continue to apply for all physicians ‘who engage in any activity that relies on their medical knowledge and skills’. Next to providing the political and institutional framework, the preamble establishes the primacy of medical ethics. It is followed by five principles that physicians should be guided by when involved in interrogations. Physicians may carry out regular medical examinations on detainees, yet ‘must neither conduct nor directly participate in an interrogation’. Monitoring of interrogations is considered to be participation. Direct participation is thus given a wide interpretation. Furthermore, although physicians ‘may participate in developing effective interrogation strategies for general training purposes’, these should never ‘threaten or cause physical injury or mental suffering and must be humane and respect the rights of individuals’. Lastly, physicians are to report to the appropriate authorities if they have reason to believe that interrogations were coercive. In comparison, such a duty is not established in the ama’s opinion regarding torture. In 2007, the ima adopted a position paper on the same topic, namely on the Prohibition of Physician Participation in Interrogations and Torture.54 In the



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[the] promotion of free movement of specialist doctors within the eu; [and the] active participation in, and representation within the framework of the organised medical specialist profession in Member States of the eu, to all relevant statutory eu agencies and any other authority and/or organisation dealing with issues relating to the medical profession’. European Union of Medical Specialists, uems Strategy (2008). The opinion on Physician Participation in Interrogation is based on a report by the ama Council on Ethical and Judicial Affairs (ceja Report 10-A-06) on physician participation in interrogation (Res. 1, I-05) of June 2006. It was adopted in November 2006. American Medical Association, Opinion 2.068 – Physician Participation in Interrogation (November 2006). The use of coercion in interrogations is explicitly prohibited by article 17 gc III. Israeli Medical Association, Position Paper on the Prohibition of Physician Participation in Interrogations and Torture (December 2007).

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background information to its concise position paper, the ima first and foremost expresses its endorsement of the wma’s Declaration of Tokyo regarding torture and other cruel, inhuman or degrading treatment or punishment. Specifying its ratification of the Declaration of Tokyo, the ima’s view is explicated in eight substantive principles. The position paper stresses physicians’ commitment ‘to respect the dignity of every other human being’. With this basis of humanity, it prohibits physicians from participating in torture, cruel or degrading treatment. Physicians are not even to be present during interrogations. It furthermore determines that physicians should not provide medical authorization or even medical knowledge, instruments or substances for torture. Whether they could use their medical knowledge and skills to facilitate interrogations is left unanswered. An emphasis is placed on medical confidentiality – physicians who medically examine detainees should ensure the confidentiality of personal medical information and shall not use it for interrogations or torture. Physicians who witnessed ‘interrogation or torture conducted contrary to international treaties’ should report such acts to the appropriate authorities. It should be noted that previous versions of the position paper were less adamant:55 ‘moderate physical pressure’ in interrogations was previously condoned.56 Concerning hunger strikes, the ima’s position paper prohibits force-feeding upon the condition that the hunger striker’s ‘decision is based 55

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Yoram Blachar, the president of the ima, denies that anything has changed in the ima’s policy. Yoram Blachar & Malke Borow, ‘Health Professionals and Dual Loyalty: a World Medical Association and Israeli Medical Association Perspective’, in Ryan Goodman & Mindy Jane Roseman (eds), Interrogations, Forced Feeding, and the Role of Health Professionals – New Perspectives on International Human Rights, Humanitarian Law, and Ethics (Human Rights Program at Harvard Law School, 2009), p. 184. This practice was defended by Blachar in a public disagreement between him and Derek Summerfield published in the Lancet. Yoram Blachar, ‘The Truth about Israeli Medical Ethics’, 350 The Lancet, 1247 (1997), p. 1247. Physical coercion used in interrogations was, regrettably with exceptions, outlawed by the Israeli Supreme Court in its 1999 judgment regarding various petitions. In this judgment, the Supreme Court established that ‘all these methods do not fall within the sphere of a “fair” interrogation. They are not reasonable. They infringe the suspect’s dignity, his bodily integrity and his basic rights in an excessive manner’. But also that ‘general directives governing the use of physical means during interrogations must be rooted in an authorization prescribed by law and not in defenses to criminal liability’ (emphasis added) whereby, while not classifying any of the forms of coercion used as torture, the Supreme Court has approved the use of ‘physical means for interrogation’ if prescribed by law. Supreme Court of Israel, Petitioners v. State of Israel, the General Security Service et al (Interrogations Case), Judgment [1999], para. 27 and 37.

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on unimpaired and rational judgment’ and a second, independent physician confirmed the hunger striker’s capacity to make such a decision. This corresponds to the more detailed position paper on force-feeding hunger strikers.57 When compared, it becomes apparent that the ama and ima guidelines on physicians’ involvement in interrogations coincide in some aspects and differ in others. Both prohibit physicians’ participation in torture, although the ima advocates an absolute prohibition, whereas the ama prohibits only ‘direct’ participation. Furthermore, reporting coercive interrogations (ama) or violations of international treaties (ima) is a duty for physicians under both documents. This emphasizes the importance of the role of ‘guardian’ accorded to physicians.58 Concerning medical monitoring and clearance, the ima explicitly prohibits authorizations of torture, but allows medically examining detainees before interrogations. As physicians should, according to the ima, not even be present during interrogations, this would also preclude monitoring. The ama explicitly prohibits monitoring. Where the two differ greatly is the aspect of confidentiality of medical records. The question has generated quite some controversy in international humanitarian law59 and in the discussion of recent events in the ‘war on terror’.60 The ima prescribes the confidentiality of medical records and explicitly determines that physicians should not provide medical information on detainees for use in interrogations or torture. Highlighting a different aspect, the ama establishes that physicians should inform patients who will have access to their medical records; this implies that medical records are not completely confidential. Lastly, there are differences in tone. Most importantly, the ima does not voice an opinion on interrogation in general but rather focuses on the role of physicians whereas the ama apparently desires to position itself regarding the topic (seeing interrogations as a necessary guarantee of national and public security) before discussing physicians’ involvement. In this sense, the ama’s opinion does not provide an absolute prohibition of physicians’ involvement in interrogations. The ima, on the other hand, is clear on the prohibition yet seems to regard the occurrence of 57

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It should be noted that according to the position paper on force-feeding hunger strikers, physicians are to decide according to their ‘better judgment and conscience’ on whether or not to feed a person once the person is unconscious, irrespective of the hunger strikers previous wishes. Torrelli, ‘La Protection du Médecin dans les Conflits Armés’, p. 592. This was analyzed in the discussion of articles 16 (3) ap I and 10 (3) and (4) ap II in Chapter 2. See the discussion of physicians’ role in the ‘war on terror’ in Chapter 1.

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torture and ill-treatment as a fact when it speaks of ‘a detainee or prisoner that may face interrogation or torture’ or ‘a place in which interrogations or torture take place’ (emphasis added).61 The two documents thus demonstrate by the example of the role of physicians in interrogations that principles of medical ethics may diverge, even between countries that are often considered like-minded. 4 Evaluation A general comparison of guidelines on medical ethics by national and regional medical associations demonstrates that there are some common denominators on medical ethics that can be distilled from all codes and guidelines. Although they are defined differently and explicated to various degrees, the respect for the patient and his human dignity, the principle of non-discrimination, the principle of informed consent,62 and the principle of confidentiality seem to be accepted by most medical associations. These principles are generally already part of international humanitarian law: the principle of respect for human dignity can be found in the provisions calling for humane treatment of protected persons63 and the provisions prohibiting outrages upon personal dignity,64 the principle of non-discrimination is explicitly codified in articles 12 gc I and II, 16 gc III, 27 gc IV, 10 (2) ap I and 7 (2) ap II, and the principle of confidentiality (though only in the Additional Protocols and dependent on national legislation) in articles 16 (3) ap I and 10 (3 and 4) ap II. The only exception is the principle of informed consent – from an ethical and medical point of view, this seems to be one of the principles that practitioners and ethicists agree on, yet that was not included in international humanitarian law. Article 11 (5) ap I contains a severely circumscribed version of the ethical principle. 61

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There are some other differences. The ima Paper contains a clause prohibiting forcefeeding if certain conditions are met. The ama Opinion allows the involvement of physicians in ‘developing effective interrogation strategies for general training purposes’. Here the Islamic Code of Medical Ethics by the ioms may be an exception. It requires consent for medical treatment but gives physicians the right to overrule consent when they believe this to be in the interest of the person treated. See Islamic Code of Medical Ethics, Responsibility and Liability. Common article 3 gcs and articles 12 gc I and II, 13 and 14 gc III, 27 gc IV, 10 (2) and 75 ap I and 4 and 7 ap II. It should be noted that these are all references to humane treatment, not human dignity per se. An explicit reference to human dignity was neither included in the Geneva Conventions, nor in the Additional Protocols. Inhuman treatment also constitutes a grave breach. Article 75 (2) ap I and, for non-international armed conflicts, article 4 (2)(e) ap II. A violation of the latter, however, does not constitute a grave breach.

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Nonetheless, the national ethical codes and guidelines also differ in many more or less aspects. Some ethical principles are recognized only by certain medical associations. For example, the knmg calls for the adjustment of medical care to realistic needs and circumstances,65 the cma explicitly obliges physicians to provide emergency medical care,66 and the German Manual provides a duty of documentation.67 These are important aspects that correspond to provisions of international humanitarian law. Even if they were not considered worthy of mention by other medical associations, they are not controversial. Other differences, however, raise serious concerns about the adequate level of protection of those in need of medical care in armed conflicts. The opinions of the American and Israeli Medical Associations concerning physicians’ involvement in interrogations serve as an example. C

The Desirability of a Pluralistic Approach

Keeping in mind the opinion of several distinguished scholars that a reference to ethics in international humanitarian law cannot be a reference to universal guidelines due to a lack thereof, it is pertinent to discuss the desirability of a pluralistic approach to medical ethics in armed conflicts. The comparison of national medical association’s codes and positions provided an overview of the variety of forms that national medical ethics can take. The discussion on the relevance of national medical association’s guidelines on medical ethics has to be divided into two arguments, a preliminary argument and a more fundamental argument. On a preliminary level, codes and guidelines by national medical associations cannot suffice. Not all national medical associations have adopted codes or guidelines of medical ethics.68 Israel just very recently adopted a position paper on the General Duties of Physicians and South Africa only has a simple 65

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This mirrors the formulation found in articles 10 (2) ap I and 7 (2) ap II which determine that medical care should be provided ‘to the fullest extent practicable and with the least possible delay’. It is also in line with the analysis of the reference to ‘generally accepted medical standards’ in article 11 (1) ap I as carried out in Chapter 6. This corresponds to the overall principle of international humanitarian law that the wounded and sick should be provided with medical care. The duty of documentation is less established in international humanitarian law. It is only mentioned in article 11 (6) ap I which suggests that ‘each party to a conflict shall endeavor to keep a record of all medical procedures’. Torrelli, ‘La Protection du Médecin dans les Conflits Armés’, p. 589.

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Credo. The variety of documents, guidelines, codes, opinions and papers that were examined above demonstrates how proliferated guidance on medical ethics is. As not in all states all physicians are members of their national medical associations, it is not surprising that many physicians are not familiar with the existing codes of ethics by national medical associations. Even the German Professional Code, which was adopted by the German Medical Association whose membership is mandatory for German physicians, enjoys a surprisingly modest level of recognition.69 Thus the dissemination of the codes is questionable, as is their legitimacy. Without being able to scrutinize the normative legitimacy of every national medical association here discussed,70 national medical associations that not even represent all physicians in their state and not always provide fair and adequate procedures for establishing guidelines on medical ethics, may lack legitimacy to make binding rules for physicians. Yet there are more fundamental arguments against the pluralistic approach to medical ethics in the Additional Protocols. Even though the idea of relying on national guidelines to fill open, undefined extra-legal terms in international humanitarian law appears practical, it is not a desirable solution. Most physicians from a common background share a concept of medical ethics. However, not all nationally accepted principles of medical ethics would offer the level of protection that international humanitarian law requires. Not only can ‘différences considérables’71 appear, but medical ethics, as the above comparison has demonstrated, can vary. A radical, historic, example of an unacceptable concept of medical ethics are the ethical beliefs exclaimed by the physicians accused in the Doctors’ Trial after World War II. The concept of medical ethics under the National Socialist ideology entailed ‘dass es oberste Pflicht sein müsse, dem gesunden Volksteil und den gesunden, noch erbtüchtigen Familien Leben und Auskommen zu ermöglichen, um so den Bestand eines erbgesunden und rassenreinen Volkes bis in alle Zukunft zu sichern’.72 Theirs was a vision of medical ethics that is today considered immoral and discriminatory. Additionally, many National Socialist physicians also believed that treatment 69 70 71 72

Ratzel & Lippert, Kommentar zur Musterberufsordnung der deutschen Ärzte (mbo), p. 26. On legitimacy, consult Chapter 9 which discusses the legitimacy of the wma. Torrelli, ‘La Protection du Médecin dans les Conflits Armés’, p. 589. Gütt’s book concerns the reform of the general health care in Germany. Arthur Gütt, Der Aufbau des Gesundheitswesens im Dritten Reich (Juncker und Dünnhaupt Verlag, 1935), p. 9. On the medical ethics of National Socialist doctors, see Andreas Frewer & Florian Bruns, ‘Zuerst Arzt oder Soldat? Zwischen medizinischer Ethik und militärischer Pflicht im “totalen Krieg”’, in Deutsche Hygiene-Museum & Wellcome Collection (eds), Krieg und Medizin (Wallstein Verlag, 2009).

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in accordance with medical ethics was reserved for certain persons. In that sense, the accused in the Doctors’ Trial, Joachim Mrugowsky, stated in justification for criminal experiments on inmates of concentration camps: [Die Häftlinge] waren also nicht Patienten des Arztes im Sinn der ärztlichen Ethik und der Auffassung, des Verhältnisses zwischen Arzt und Patienten. Deshalb ist auch das, was wir unter ärztlicher Ethik verstehen, auf diesen Fall nur sehr bedingt anwendbar.73 Although the ill-treatment in u.s. detention facilities cannot be compared to the criminal experiments conducted in the name of science in the Third Reich, the physicians’ justifications are similar: if the person is not considered a patient, the physician is not bound by medical ethics.74 A physician could, for example, decide to violate medical confidentiality for reasons that would not have been accepted when providing medical care in times of peace. Another, less outrageous, example of different medical ethics is the oath of medical ethics as adopted by the Presidium of the Supreme Soviet in 1971. It required physicians to act according to the communist ideology at all times.75 Nowadays, such a pledge would be seen as a violation of a physician’s (political) neutrality and independence. However, if the reference to medical ethics in the Additional Protocols was taken as a reference to guidelines on medical ethics by national medical association, one would not and could not differentiate between the different standards and values. Even ‘immoral’ ethical standards could set the framework for medical treatment if the open term was interpreted pluralistically. A universal concept of medical ethics would provide a minimum of humane and ethical treatment for those seeking or requiring medical care. This was also the underlying rationale of the drafters of the Additional Protocols for both international and non-international armed conflicts.76 Although, realistically, 73

Transcript of the Doctors’ Trial, Direct Examination Defendant Mrugowsky, 26 March 1947, p. 5093. 74 This argument is not meant to compare the usa with National Socialist Germany or to trivialize the evils committed against innocent persons in the name of medical science under the National Socialist regime. It merely aims to reveal the danger of such an argumentation. 75 For example quoted in Torrelli, ‘La Protection du Médecin dans les Conflits Armés’, p. 589. See on some differences between Soviet and American ethics, Robert M. Veatch, ‘Medical Ethics in the Soviet Union’, 19 Hastings Center Report, 11 (1989). 76 The travaux préparatoires are discussed in detail in Chapter 6.

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physicians can never be completely neutral, impartial, or even independent, medical care in armed conflict should not depend on the treating physician alone, especially if she belongs to an adverse party. If international humanitarian law is to provide realistic protection for protected persons in all circumstances, they should receive the best medical care in accordance with widely accepted medical ethics that best protect their humanity and they should know what to expect when seeking or receiving medical treatment. This includes knowing which medical ethics govern their treatment. Moreover, protection should be equal for all. If interpreted pluralistically, the framework of medical treatment of protected persons would depend on the treating physician and his background. The medical care provided could vary greatly between different treating physicians. This could also cause problems when physician and patient belong to opposing parties to a conflict and the medical ethics in the adversaries do not correspond, especially regarding some controversial principles such as the principle of informed consent. It could be expected that in non-international armed conflicts, physicians from different parties to the conflict would at least share medical ethics due to their common national background. Contrary to the provisions for international armed conflicts, the wording of article 5 (2)(e) ap II (‘applied to free persons under similar medical circumstances’) lends itself to this interpretation.77 Nonetheless, the parties to the conflict may not always share convictions, even on medical questions. This may also entail different concepts of medical ethics. To ensure the protection of all victims of armed conflicts, medical ethics should rather be seen as a universal concept, regardless of the character of the armed conflict. Contrary to article 5 (2)(e) ap II, the formulation of article 10 ap II does not imply that it could be interpreted by looking at national medical guidelines. To avoid problems incurred by a pluralistic approach, medical care should be predictable and universally the same in both international and noninternational armed conflicts.78 D Conclusion A pluralistic approach to the reference to medical ethics in the Additional Protocols should be rejected. As Gunn and McCoubrey state ‘[very] obviously 77 78

It should be noted, as stated in Chapter 2, that there is no reference to the nationality of the patients due to the special character of non-international armed conflicts. The same is true for medical standards. For a general analysis of the meaning of generally accepted medical standards, see Chapter 6.

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something more is intended than the subjective, and possibly abominable, national standards of any particular power’.79 The drafters chose open, extralegal terms that have gained legal importance through their incorporation in the Additional Protocols for a reason. This reason is equal and proficient protection of the wounded and sick that is compatible with international humanitarian and human rights law. They could have chosen a reference to principles of humanity, a ‘humanitarian mission’ or even the basic principle of humanity, yet they consciously adopted a reference to medical ethics. This reference to medical ethics was not qualified by a sentence like that following the reference to generally accepted medial standards in articles 11 ap I and 5 (2)(e) ap II. Clearly, medical ethics was seen as a larger concept – beyond international humanitarian law. As the medical treatment of the wounded and sick was to be independent of national notions, the reference to medical ethics was to assure a universal standard of treatment for all persons in need of medical care in the precarious situation of an armed conflict. Although many national medical associations have adopted guidelines for their members, there is no overall coherence. Exceptions can be found in a few basic principles, namely that of non-discrimination, informed consent, confidentiality and human dignity. Except for the principle of informed consent, these principles are mirrored in general international humanitarian law. Because they enrich the protection in international humanitarian law of persons being treated, they are valuable as common minimum standards. National medical associations that adopt standards that exceed this minimum of protection should nonetheless continue to apply their additional standards. On questions of controversy, for example the involvement of physicians in interrogations, there is no general agreement. Most countries refer to the documents of the wma on such issues,80 and the only two medical associations with specific opinions, the American and the Israeli, differ in important aspects. Hence, the health and wellbeing of those in need of medical care and deprived of their liberty or in the power of an adverse party would depend solely on the policy of a national medical association if a pluralistic approach was followed. Unquestionably, this is not the rationale behind an article so essential for the protection of medical personnel and their medical duties on which the protection of persons against unwarranted medical procedures rests. A pluralistic, national interpretation of the reference would not promote,

79 Gunn & McCoubrey, ‘Medical Ethics and the Laws of Armed Conflict’, p. 139. 80 The wma and its documents will be discussed in Chapter 9.

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but rather harm the level of protection afforded to the wounded and sick in armed conflict. If there are universal, common ethics and standards of treatment, abusive treatment can more easily be detected, physician would be better guided in providing medical care in armed conflicts, and the patients could better defend their rights. This means they should know what to expect from any physician, also when detained and in the custody of another state. Making them susceptible to the moral inclinations of the treating physician or unethical national guidelines is clearly unacceptable.

chapter 9

The Documents by the World Medical Association (wma) In attempts to qualify and interpret the reference to medical ethics in articles 16 ap I and 10 ap II, most legal scholars and national medical associations1 refer to the documents of the World Medical Association (wma). When discussing the explicit reference to medical ethics in articles 16 ap I and 10 ap II, the icrc Commentary refers to documents by the wma,2 namely the Declaration of Geneva (1948), the International Code of Medical Ethics (1949), the Regulations in Times of Armed Conflict (1956), and the Rules to ensure Aid and Care for the Wounded and Sick, particularly in Time of Armed Conflict (1962).3 In the analysis of article 16 ap I, the relevant documents are largely reproduced in the footnotes. As ‘duties […] defined by the […] international corps of the medical profession’, the Commentary refers to them as the international counterpart to the rules ‘decreed by the medical corps of a State’.4 The Commentary specifies that: 1 For example, the German Bundesärztekammer and the European Standing Committee of European Doctors endorse the documents by the wma. Some medical associations do not even publish their own rules but refer to the wma documents only, for example the Israeli Medical Association (stating: ‘As a wma member, the ima accepts the contents of the Tokyo Declaration and ratifies its most recent version from May 2006, as specified below’. See its Position Paper on the Prohibition of Physician Participation in Interrogations and Torture). Others are more skeptical, such as the Royal Dutch Medical Association which acknowledges the work of the wma, but criticizes the wma’s lacks of a goal and a specific group of addressees. See the Koninklijke Nederlandsche Maatschappij tot bevordering der Geneeskunst Homepage, at http://knmg.artsennet.nl/Home.htm. For a general overview of the codes of ethics of a number of different medical associations, see Chapter 8. 2 Sandoz, et al. (eds), Commentary to the Additional Protocols, para. 656. See also the paragraphs in the icrc Commentary concerning article 10 ap II. Sandoz, et al. (eds), Commentary to the Additional Protocols, para. 4685–4691. When commenting on the phrase ‘generally accepted medical standards’ in the second sentence of article 11 (1) ap I, the icrc Commentary states that it is impossible to exhaustively list the medical standards applicable in an armed conflict, but that ‘it is possible to mention certain instruments which give some indications of this matter’. In the footnote to this statement, the Commentary lists the above mentioned wma documents. Sandoz, et al. (eds), Commentary to the Additional Protocols, para. 476. 3 The Rules to ensure Aid and Care for the Wounded and Sick, particularly in Time of Armed Conflict have not been updated or amended and are no longer part of wma policy. 4 Sandoz, et al. (eds), Commentary to the Additional Protocols, para. 4688 and 655 et seq.

© koninklijke brill nv, leiden, 2015 | doi 10.1163/9789004279162_011

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These rules have not been adopted by states and have no binding force in international law. Nevertheless, they constitute a valuable instrument of reference and no one contests the principles on which they are laid down. There is no doubt that these are the rules of medical ethics referred to in the context of the provision under consideration here.5 Hence, the icrc suggests that these are ethical guidelines that do not legally bind physicians. Nonetheless, it emphasizes the relevance of these rules by implying that the reference to medical ethics in article 16 ap I should be filled in with these rules.6 It views the rules as ‘common sense’ and exclaims that they provide the basic ethics of treatment that no physician would violate without ‘being aware of being in the wrong’.7 Despite their advisory character, according to the icrc, the wma documents represent universal, generally recognized principles of medical ethics. These principles, as established by the icrc, entail: It is never to act in conflict with the wounded person’s interests, to help him to the fullest extent of the means available, whoever he is (principle of non-discrimination), to be discreet regarding his condition and never to abuse his sense of dependence on the person administering care, particularly not with a view to gaining an advantage from him.8 Like the icrc Commentary, Baccino-Astrada regards the wma documents as important indicators for medical ethics in armed conflict despite their lack of legal bindingness. She states that ‘c’est bien à ces texts qu’il faudra essentiellement se referrer pour interpreter les dispositions de ce Protocol sur le sujet’.9 The wma documents should be relied upon to determine the meaning of medical ethics in international humanitarian law. Similarly, Perrin states that physicians and ‘health staff’ should have ‘recourse to the recommendations of the [wma]’. He believes that the legal framework of international humanitarian law is supplemented by the wma’s ethical framework.10 Kleffner classifies the  5  6

Ibid. para. 656. In comparison, concerning article 10 ap II, the Commentary states that the wma rules ‘serve as a point of reference’. Ibid. para. 4688, fn. 11.  7 Ibid. para. 657.  8 Ibid. para. 658.  9 Baccino-Astrada, Manuel des Droits et Devoirs du Personnel Sanitaire lors des Conflits Armés, p. 37–38. 10 Pierre Perrin, ‘The Right to Health in Armed Conflict’, in Andrew Clapham & Mary Robinson (eds), Realizing the Right to Health (Rüffer & Rub, 2009), p. 162.

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wma documents as ‘the relevant instruments’ to determine the content of medical ethics.11 He then enumerates certain basic principles of medical ethics that he draws from the wma’s Declaration of Geneva, the International Code of Medical Ethics and the Regulations in Time of Armed Conflict. Whether his enumeration is compatible with international humanitarian law and the status of these principles in international law, is left unanswered. In his examination of medical ethics, Beigbeder also looks at the duties and obligations for physicians as found in the wma’s Declaration of Geneva, the International Code of Medical Ethics, and the Regulations in Time of Armed Conflict. While he concedes that these documents are not legally binding, it can be inferred that he regards these documents as ‘widely recognized and accepted as international recommendations by the health professions, in particular the medical profession’.12 Others are somewhat more cautious but nonetheless address the wma documents. While Bothe believes that the wma and its declarations may provide ‘indications as to the relevant standards’ that should govern medical treatment pursuant to article 11 (1) ap I and refers to the wma documents when discussing the reference to medical ethics in article 16 ap I, this is less prominently tucked away in a footnote to his statement that the concept of medical ethics is ‘for the time being, a national one’.13 In this footnote, Bothe writes that ‘a number of elements of medical ethics have been “codified” by resolutions of the World Medical Association’. He prefers a pluralistic interpretation to the view that the wma can determine medical ethics on an international level.14 This explains the place of reference – in a footnote – and the cautious use of the quotation marks around the word codify. For Bothe, the wma is thus only a smaller player in the field of medical ethics that should first and foremost be determined nationally. In his call for harmonization and legal codification of medical ethics, Torrelli grazes the documents by the wma. He quickly dismisses them as ‘utiles mais leur portée est purement morale’.15 A similar position is taken by Bouchet-Saulnier who attributes the wma’s documents ‘aucune

11 Kleffner, ‘Protection of the Wounded, Sick and Shipwrecked’, para. 614 (3). 12 Beigbeder, The Role and Status of International Humanitarian Volunteers and Organizations – the Right and Duty to Humanitarian Assistance, p. 339–340. 13 Bothe, et al., New rules for Victims of Armed Conflicts, p. 128. 14 ‘Other medical rules’, referred to in articles 16 (2) ap I and 10 ap II, would refer to such ‘state of the art’ rules that are ‘of wider application’ than medical ethics. These could be interpreted internationally. Ibid. p. 128–129. 15 Torrelli, ‘La Protection du Médecin dans les Conflits Armés’, p. 590.

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valeur juridique contraignante’.16 Gunn and McCoubrey also do not seem convinced of the value of the wma documents.17 Noting the reference to the wma documents by the icrc Commentary, Gunn and McCoubrey reject a reliance on these documents because they firstly do not consider them to be customary international law and, secondly, because they believe they merely reformulate principles that can be found in Geneva Law itself.18 The only ethical code they draw from is the original Hippocratic Oath.19 Despite the fact that they deem the wma’s documents to represent the essence of international medical ethics, none of the international legal scholars discuss or analyze the wma or its documents in detail. It can be surmised that most scholars deny that the documents of the wma have any legal status or bindingness. The reason for this is, however, implied, rather than explicated. This is striking because it limits their interpretation of medical ethics to a dynamic reference to documents of questionable legal status by a non-governmental organization by and for physicians. Nonetheless, the fact that every legal scholar addressing medical ethics in armed conflict refers to these documents and that many national medical associations refer to them, demonstrates their influence. Due to the overall overwhelming reliance on, reference to and grappling with the wma’s documents to identify medical ethics in armed conflict, a detailed analysis of the wma is in order.20 If ethical guidelines by national medical associations cannot provide the applicable medical ethics, maybe the documents by the wma can succeed and provide universal guidelines for physicians practicing medicine during armed conflicts. The wma, being a non-governmental organization, claims that its documents should guide all physicians, occasionally also states, in determining medical ethics. It is thus essential to establish the legal status of the wma documents and the legitimacy of the wma’s claim to authority to come to a conclusion

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She goes on to state that they may serve as ‘cadre de références au travail des organisations non gouvernementales’. Bouchet-Saulnier, Dictionnaire practique du Droit Humanitaire, p. 123. Gunn & McCoubrey, ‘Medical Ethics and the Laws of Armed Conflict’, p. 139. McCoubrey restates this opinion in McCoubrey, International Humanitarian Law, p. 87. This aspect is the starting point for Gunn and McCoubrey’s argument that medical ethics can be surmised from the system of international humanitarian law itself. It is discussed in Chapter 7. Gunn & McCoubrey, ‘Medical Ethics and the Laws of Armed Conflict’, p. 147. All comments on the workings of the wma are based on information on the wma’s homepage, the documents available to the author and the author’s observations after attending the wma General Assembly in October 2009.

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concerning their value in setting standards for medical treatment in armed conflict. A

The World Medical Association

The idea of establishing an international association for physicians sprung from a meeting at the British Medical Association in July 1945, after the end of World War II. Learning of the atrocities committed by physicians in the name of medicine, the assembled doctors proposed to establish a new international association for physicians that was to set standards to prevent the re-occurrence of such crimes. Before the war, a trans-national organization for physicians founded in 1926 had existed, the Association Professionelle Internationale des Médecins (apim). The apim, which had counted 23 members, had expressly not ‘[established] international rules in either ethics or medical politics’.21 Its aim according to its statute had been ‘to found a centre of information and of liaison between the national medical groups, in order that they may each profit from the experience of the others in the study of the numerous problems which concern the doctor in his daily life and in his social relations’. During World War II, the apim had ceased its work. The World Medical Association was established on 18 September 1947 at a meeting of twenty-seven national medical associations in Paris.22 Originally, the wma’s seven goals were the promotion of closer ties between national medical associations, the honoring and protection of the medical profession, presenting a platform for information exchange, provision of information on specifically medical problems, representation of the medical profession globally in forum such as the un, unesco, or ilo, the promotion of the highest standards of health for all humans, and world peace.23 Nowadays, the objective of the wma is ‘to achieve the highest international standards in medical education, medical science, medical art and medical ethics, and health care for all people

21 22

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Alfred Cox, ‘Presidential Address given at the Annual Conference of the apim on September 7th, 1933’, British Medical Journal, 158 (1933), p. 158. The information concerning the history of the wma was drawn from the organization’s website. For further information, see Mira Chang, ‘The World Medical Association’, in Rüdiger Wolfrum (ed), Max Planck Encyclopedia of Public International Law (Oxford University Press, 2012). As quoted in Walter Schaupp, Der ethische Gehalt der Helsinki Deklaration (Peter Lang Verlag, 1993), p. 172.

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of the world’.24 The shift from the old goals that were clearly written from a physician’s perspective to the new objectives which focus on humanity in general and medical ethics is essential.25 The documents relevant in armed conflicts are the Declaration of Geneva, the International Code for Medical Ethics (Code), and the Regulations in Times of Armed Conflict (Regulations). B

The Status of the wma Documents

To assess the value of the wma documents for present purposes, their normativity should be analyzed. Normativity does not necessarily depend on the wma’s legitimacy, although normativity and legitimacy can influence each other. Considering that the wma’s documents are not sources of international law pursuant to article 38 icj Statute, the question should be asked if the wma’s documents could be considered as soft law, as is claimed by some voices in literature.26 This classification has gained importance because soft law generates obligations that are, though different from hard law obligations, nevertheless politically relevant. Being mainly based on the idea of reciprocity, violations of soft law can lead to consequences by the international community, for example retorsions or negative public opinion through the ‘mobilization of shame’.27 Soft law, though not legally binding, can nevertheless be a ‘potent political [weapon]’.28

24

This can be read in Article 2 of the Articles and Bylaws, see World Medical Association, Articles and Bylaws of the World Medical Association, Inc. (adopted by the 32nd World Medical Assembly, November 1978, last amended by the wma General Assembly, Pilanesburg, South Africa, 2006). 25 Schaupp, Der ethische Gehalt der Helsinki Deklaration, p. 172. 26 Anne Peters & Peter Bürkli, ‘Recht der Forschung am Menschen – Normgenese im Kontext von Soft Law, internationalen Abkommen und Gesetz’, I Zeitschrift für Schweizerisches Recht, 367 (2010), p. 382. More generally, Keller believes that all codes of conduct that are not legally enforceable ‘fall into the broad normative realm of soft law’. Helen Keller, ‘Codes of Conduct and their Implementation: the Question of Legitimacy’, in Rüdiger Wolfrum & Volker Röben (eds), Legitimacy in International Law (Springer Verlag, 2008), p. 221. 27 Hanspeter Neuhold, ‘The Inadequacy of Law-Making by International Treaties: “Soft Law” as an Alternative?’, in Rüdiger Wolfrum & Volker Röben (eds), Developments of International Law in Treaty Making (Springer, 2005), p. 50–51. 28 Ibid. p. 51.

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Soft law is a term used to classify non-binding rules that were adopted by actors who are usually, but not necessarily, subjects of international law29 and that de facto influence the conduct of states on the international plane. It is used as the counterpart to hard law. Although the traditional sources of law are categorized as hard law, something that is not hard law is not automatically soft law. For example, non-binding norms adopted by private actors should not be considered as soft law.30 Yet non-binding norms by non-governmental organizations can be categorized as soft law when such norms have a de facto normative influence, for example on the interpretation of binding, legal rules or on the behavior of states.31 Based on this description, the wma documents should not be categorized as soft law.32 The wma is a non-governmental organization adopting ethical guidelines for physicians. Thürer, for example, claims that only subjects of international law can adopt as soft law classifiable instruments. Most would agree that the wma, as a ngo, is not a subject of international law.33 Previously, the wma as a non-governmental organization has been involved in the drafting process of the unesco’s Declaration on Bioethics and Human Rights.34 It 29

30 31 32

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See Keller who includes non-governmental organizations, but excludes corporate actors. Keller, ‘Codes of Conduct and their Implementation’, p. 249. For a general discussion of soft law, see Dinah Shelton (ed), Commitment and Compliance: The Role of Non-Binding Norms in the International Legal System (Oxford University Press, 2000) and Thürer, ‘Soft Law’. More critically, Jan Klabbers, ‘The Redundancy of Soft Law’, 65 Nordic Journal of International Law, 167 (1996); Prosper Weil, ‘Towards Relative Normativity in International Law?’, 77 American Journal of International Law, 413 (1983). Daniel Thürer, ‘Soft Law’, in Rüdiger Wolfrum (ed), Max Planck Encyclopedia of Public International Law (Oxford University Press, 2012), para. 7. Keller, ‘Codes of Conduct and their Implementation’, p. 221, 249. This position is supported by Hohnel who denies the soft law character of the wma’s Declaration of Helsinki on the basis of general legitimacy deficits of the wma. For different reasons, her conclusion should apply, mutatis mutandi, to all wma documents. Brigitte Hohnel, Die rechtliche Einordnung der Deklaration von Helsinki – Eine Untersuchung zur rechtlichen Grundlage humanmedizinischer Forschung (Peter Lang Verlag, 2005), p. 58–60. Accepting non-governmental organizations as subjects of international law, Christian Walter, ‘Subjects of International Law’, in Rüdiger Wolfrum (ed), Max Planck Encyclopedia of Public International Law (Oxford University Press, 2012), para. 6. Involvement in drafting processes of international treaties and conventions is a more accepted form of ngo ‘law-making’, This role of non-governmental organizations, by the example of the international regulation of land mines, is analyzed in Richard L. Williamson Jr, ‘International Regulation of Land Mines’, in Dinah Shelton (ed), Commitment and Compliance: The Role of Non-Binding Norms in the International Legal System (Oxford University Press, 2000).

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thus created soft law. Yet even if one accepts that soft law can emanate from non-governmental organizations’ instruments that address individual, international actors,35 the soft law status of the Declaration of Geneva, the International Code of Medical Ethics, and the Regulations in Times of Armed Conflict should be denied. Although they meet certain requirements of soft law, namely that they are not formal sources of law and, as such, lack legal bindingness, and that they have a certain proximity to legal rules in that they ‘produce certain legal effects’,36 they lack the most intrinsic aspects of soft law. To claim influence in the international realm, only rules by non-governmental organizations that seek to influence states and that ultimately de facto also affect state behavior or the behavior of international organizations should be considered normatively influential enough to be classified as soft law.37 A norm should actually govern international relations.38 Despite the fact that the wma in its documents calls upon states to act,39 and in the Declaration of Helsinki determines that ‘[n]o national or international ethical, legal or regulatory requirement should reduce or eliminate any of the protections for research subjects set forth in this Declaration’,40 de facto its normative influence on state behavior is limited. There is no state practice that would attest such an effect on states, on their inter-state relations or on their national legislation.41 Although some national medical associations were influenced by wma documents and guidelines,42 this does not mean that the respective states endorse the wma’s documents as most medical associations are private, non-governmental organizations. If their normative influence cannot be ascertained, then calling the wma documents soft law would be futile. Classifying something as 35

Christine Chinkin, ‘Normative Development in the International Legal System’ in Ibid. p. 29 and 36. 36 Thürer identifies four intrinsic aspects of soft law: that they express common expectations regarding the conduct of subjects of international law in international relations; that they be created by subjects of international law; that due to their not being from a formal source of international law they lack legal bindingess; and that they have the capacity to produce certain legal effects. See Thürer, ‘Soft Law’, para. 9. 37 Hobe presents an interesting overview of examples yet in all cases there has been a palpable influence on the behavior of international actors. Hobe, ‘The Role of Non-State Actors, in particular of ngos’, p. 324–327. 38 Thürer, ‘Soft Law’, para. 5. 39 For example in article 5 of the Regulations in Times of Armed Conflict. 40 Article 10 of the Declaration of Helsinki. 41 Hohnel, Die rechtliche Einordnung der Deklaration von Helsinki – Eine Untersuchung zur rechtlichen Grundlage humanmedizinischer Forschung, p. 58–60. 42 This can be surmised from the examination in Chapter 8.

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soft law does not provide it with normativity. The wma documents are hence neither hard nor soft law. Their value in international humanitarian law can thus only be based on their legitimacy to bind physicians or states, not on their legal character. C

The Legitimacy of the wma Documents

Whether a reference to wma documents can provide a justified and acceptable solution to the question of how to fill the open and extra-legal term medical ethics in international humanitarian law, as argued in legal literature and by the icrc, will have to be carefully examined. Lacking normativity, the legitimacy of these documents is all the more important if they are to guide physicians in armed conflicts. wma documents appear to be ‘self-regulatory codes of conduct43 for networks of professional peoples’.44 It is not clear how they are intended to affect states or whether they are to lead to binding instruments. The wma’s Procedures and Operating Policies claim that the wma’s declarations and statements are ‘universally applicable’.45 It can thus be assumed that the wma’s intention is not only to bind its members and the physicians who are members of the national medical associations, but also physicians worldwide, states, governments, authorities, combatants and the media who are addressed in the documents relevant to armed conflicts. Although the relevant documents can generally be categorized as codes of conduct for physicians, in addressing other actors than physicians the wma makes a claim to authority.46 To establish whether these documents should govern physicians’ behavior in armed conflicts, the legitimacy of the wma’s claim to the authority to prescribe rules on medical ethics and whether these standards can be included in the international legal order 43

44

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Keller defines codes of conduct as regulatory concerns by, amongst others, non-­ governmental organizations that are ‘voluntary in nature rather than legally binding, and thus not legally enforceable’. Keller, ‘Codes of Conduct and their Implementation’, p. 221. The wma documents meet these criteria. Christine Chinkin, ‘Normative Development in the International Legal System’, in Dinah Shelton (ed), Commitment and Compliance: The Role of Non-Binding Norms in the International Legal System (Oxford University Press, 2000), p. 29. See Chapter 4.1.2 of the wma Procedures and Operating Policies, see World Medical Association, Procedures and Operating Policies of the World Medical Association (approved by the 186th wma Council Session in Vancouver, October 2010 and amended by the 188th wma Council Session in Sydney, April 2011). Keller, ‘Codes of Conduct and their Implementation’, p. 266.

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has to be positively established. Legitimacy would heighten the wma’s credibility in setting normative standards and contribute to a justified application of its documents in times of armed conflict. 1 A Concept of Legitimacy Legitimacy can be defined as the justification of the authority of an organization or institution to make binding rules.47 It is used here to establish whether the wma is justified in its ‘claim to authority’48 and to evaluate the ‘compliance pull’49 of its rules; it is not meant to merely describe the empirical acceptance of the wma’s rule-making. Legitimacy is especially important when the rights and duties of individuals, here physicians, are affected.50 When addressing legitimacy in international law, scholars usually discuss states or state-like entities where the question of legitimacy plays a role because citizens can be bound by rules set by the governing entity or international organizations51 because they can take decisions that bind member states.52 The legitimacy of non-governmental organizations is rarely discussed in the legal discourse. To establish the wma’s legitimacy, two different approaches to legitimacy could be considered. In sociological theory, legitimacy is based on a subjective perception of legitimacy which can be empirically determined (sociological legitimacy).53 Political theory addresses legitimacy from a normative and 47

48 49

50 51 52

53

This definition is based on a description of legitimacy by Bodansky in Daniel Bodansky, ‘The Legitimacy of International Governance: a Coming Challenge for International Environmental Law’, 93 American Journal of International Law, 596 (1999), p. 601. Keller, ‘Codes of Conduct and their Implementation’, p. 266. Thomas M. Franck, ‘The Power of Legitimacy and the Legitimacy of Power: International Law in an Age of Power Disequilibrium’, 100 American Journal of International Law, 88 (2006), p. 93. This article further develops Franck’s previous work, Thomas M. Franck, The Power of Legitimacy (Oxford University Press, 1990). Wolfrum, ‘Legitimacy in International Law from a Legal Perspective’, p. 21–23. An example for a discussion of the legitimacy of international organizations is José E. Alvarez, International Organizations as Law-Makers (Oxford University Press, 2005). Institutions of so-called global governance require at least the on-going consent of democratic states and should, if possible, meet as many additional criteria such as moral acceptability as possible. Buchanan & Keohane, ‘The Legitimacy of Global Governance Institutions’, p. 40. Sociological legitimacy bases legitimacy on the perception or acceptance of norms as legitimate by its addressees (‘Legalitätsglaube’). Weber’s theory of sociological legitimacy was further developed by Nicolas Luhmann and David Beetham. For an analysis and comparison of the approaches of Weber, Luhmann and Beetham, see Vöneky, Recht, Moral und Ethik, p. 133–135. The sociological approach considers an institution as legitimate if ‘it is widely believed to have the right to rule’. Buchanan & Keohane, ‘The Legitimacy of

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evaluative perspective (normative legitimacy).54 Both approaches should be seen as complementary because on the one hand, an institution is labeled ‘legitimate’ to increase its acceptance, and on the other hand, its non-acceptance contributes to its ‘illegitimacy’.55 Although the perception of institutions or organizations as legitimate may additionally ‘play a role in their long-term success’,56 an empirical and factual examination of the wma’s sociological legitimacy is beyond the bounds of this book. The wma’s normative legitimacy will be examined in relation to the different norm-addressees, its members, physicians worldwide, and states. States were chosen among the different addressees as the wma’s claim of authority over states is most controversial. Other addressees, such as media personnel and ‘other combatants’ – surely important actors in armed conflicts – are not official actors in international law. The wma’s claim in their respect will not be discussed. 2 Normative Legitimacy Legitimacy in a normative sense can be induced on different levels. It can be induced by the source the norms emanate from (origin), the procedures used to establish the norms, or a generally acceptable output. These three different sources of legitimacy can, naturally, also be combined.57 The relevant criteria are more objective in comparison to the sociological approach; the subjective beliefs of the addressees play no role in this approach.58 Once the criteria are met, legitimacy is assumed to be present. This would mean that the wma has the right to make binding rules – it would validate its claim to authority. a Legitimacy by Origin or Expertise According to this theory, normative legitimacy is based on the origin of the organization making the rule. Bodansky gives various examples of a legitimate origin such as tradition, religion, custom, or consent.59 Consent is most often

54 55 56 57 58 59

Global Governance Institutions’, p. 25. To establish the sociological legitimacy of an institution, one has to conduct a factual, empirical analysis of its acceptance by its addressees, here wma members, members of the medical profession worldwide, or states. This is impossible within the scope of this book. John Rawls’ concept of legitimacy is exemplary for the normative approach. Rawls, A Theory of Justice. Bodansky, ‘The Legitimacy of International Governance’, p. 601. Ibid. p. 603. Wolfrum, ‘Legitimacy in International Law from a Legal Perspective’, p. 6. An organization may even be legitimate if it meets the relevant criteria despite the fact that its addressees deem it illegitimate. Vöneky, Recht, Moral und Ethik, p. 136. Bodansky, ‘The Legitimacy of International Governance’, p. 612.

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used in international law and most relevant in casu. To establish whether the wma draws its legitimacy from its source of existence, one has to consider the origin and expertise of the wma. i Origin The wma is an association by and for physicians. It consists of national nongovernmental medical association, not individual physicians.60 Currently it has ninety-eight members. To be a constituent member of the wma, a national medical association has to meet certain criteria.61 It should be ‘broadly representative of the physicians of [its] country’, ‘not subject to or controlled by any office or agency of government’, limited to physicians and medical students,62 and the only member association for that country.63 Legally, the wma can be classified as a non-profit educational and scientific organization incorporated under the laws of the state of New York, usa. Ever since 1975, its seat is in FerneyVoltaire, France, from where the secretariat conducts the every-day business of the organization.64 Following Charnovitz’s definition of non-governmental organizations as ‘groups of persons or of societies, freely created by private initiative that pursue an interest in matters that cross or transcend national borders and are not profit seeking’,65 the wma is a non-governmental international organization without international legal personality. Being an organization of physicians, states have never been involved in the wma even though they are addressed in an authoritative manner, for example, in articles 5 and 12 of the Regulations. One of the conditions for membership within the wma is that the national medical association is independent of government authority. Although membership within the wma is organized by state

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Individual physicians can become associate members, see below and in general: World Medical Association, Rules applicable to wma Associate Membership (last amended the wma General Assembly, Helsinki 2003). Section 1. Articles and Bylaws. The national medical associations discussed in Chapter 8 are all members of the wma. It should be noted that there are some exceptions for medical associations that include dentists. See Section 1.C.ii and iii of the Bylaws. Regarding this last criterion, by ‘country’ the wma means ‘customs territory’. This can lead to interesting situations, for instance the medical associations of Hong Kong and China are both represented in the wma. The details concerning the Secretariat and its Secretary General can be found in Chapter 7 of the Articles and Bylaws. Steve Charnovitz, ‘Nongovernmental Organizations and International Law’, 100 American Journal of International Law, 348 (2006), p. 350.

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affiliation and the wma aspires universal membership,66 states themselves have never had any influence on the policies, nor elected physician representatives to become members of the wma.67 International law traditionally bases the legitimacy of binding rules by an international organization on the assumption of an ongoing consent of a sovereign, democratic state to be bound.68 Being an entity that is independent of states and their consent, the wma’s legitimacy to make ‘universally applicable’ and thus implicitly binding rules for states cannot be justified based on the documents’ origin. The same conclusion must be drawn concerning individual physicians worldwide. The wma guidelines originate from an organization that claims to represent physicians worldwide, but that in actuality represent only a small percentage, namely those that are members of a national medical association that is a member of the wma. Arguably, all physicians in the ninety-seven national medical associations could be represented within the wma. In reality, an estimated 943.325 physicians are represented by the wma.69 Not all physicians are members of their medical association, not all wma members represent states, such as the medical association of the Vatican City State,70 and not 66 67 68

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Chapter 1, Section 1 of the Articles and Bylaws proclaims that ‘[it] is the objective if the wma to expand its membership to be representative of all countries of the world’. This can be established from the information published by the wma. Whether states have indirectly influenced the wma policies cannot be established. pcij Lotus, p. 18. Buchanan and Keohane list the consent of democratic states as one requirement for the normative legitimacy of international institutions. This legitimacy can be increased depending on other requirements, namely a minimal moral acceptability, the comparative benefit such an organization brings, and its institutional integrity. The more of these criteria an institution or organization satisfies, the higher its legitimacy. Buchanan & Keohane, ‘The Legitimacy of Global Governance Institutions’, p. 40; 50. The number of physicians that are represented by the wma through their medical associations can be calculated on the basis of the wma’s income through dues and contributions. For 2008, the income from dues and contributions from constituent members was €1.632.873. These figures are based on the World Medical Association, Financial Statements 2008 (2008). National medical associations were obliged to pay between € 0,40 and € 2,00 per member physician of their organization to the wma. The overall income through dues and contributions in 2008 leads to the conclusion that about 943.325 physicians were in 2008 represented in the wma through their national medical associations. Doppelfeld, in 2000, estimated that the wma represented 8% of the 8 million physicians worldwide. Elmar Doppelfeld, ‘Ein Kompromiss “aus politischen Gründen”’, 97 Deutsches Ärzteblatt, A 2920 (2000). This is the Associazione Medica del Vaticano. While the Holy See represents the Roman Catholic Church, the Vatican City State is the political organ of the Roman Catholic Church. The Holy See and the Vatican City State are two separate entities connected by the Pope. There is some controversy whether the Vatican City State (together with or

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all 193 states of the world are represented within the wma. These practical limitations lead to the conclusion that only a minority of physicians in the world can be bound by wma rule-making. Indeed, individual physicians can become ‘associate members’ of the wma. Associate members can attend all wma meetings and their ‘representatives at the Assembly elected by the Associate Members shall have the right to speak in the Assembly, but shall not have the right to introduce additional business, nor to introduce an amendment, nor to make a motion, nor to vote’.71 Furthermore, ‘the Council may terminate the membership of any Associate Member for cause. Cause for termination of membership shall consist of any action by the member that is inconsistent with wma purposes and objectives, or action that tends to bring the wma or the medical profession into disrepute, or tends to harm the reputation of the wma in any way’.72 The rights of associate members are thus dependent on the Council and extremely restricted with no possibility to influence the policy of the wma. The only category of addressees over whom the wma due to its origin could legitimately exert authority are the constituent members including those physicians who are members of a national medical association that is a constituent member of the wma.73 Authority over constituent members and their members can be derived from the wma’s Articles and Bylaws to which all member associations have consented upon joining the organization. It could be argued that through giving their consent to join the wma, constituent member associations and their member physicians can legitimately be bound by the wma.74 They



71 72 73 74

separate from the Holy See) should be considered a state under international law or a sui generis entity. Both were established by the Lateran Treaty between Italy and the Vatican of 11 January 1929. In 2000, the Vatican City State adopted its new Constitution, Vatican City State, La Nuova Legge Fondamentale dello Stato della Città del Vaticano (November 2000). On the status of the Vatican City State and the Holy See, see Kurt Martens, ‘The Position of the Holy See and Vatican City State in International Relations’, 83 University of Detroit Mercy Law Review, 729 (2006); Gaetano Arangio-Ruiz, ‘On the Nature of the International Personality of the Holy See’, 29 Revue Belgue de Droit International, 354 (1996). Article 6 of the Rules applicable to wma Membership. Article 10 of the Rules applicable to wma Membership. As established in fn. 78, the wma represents ca. 943.325 physicians. Although it should be noted that national medical associations are mostly not based on democracy which, for states, is usually considered to be ‘the touchstone of legitimacy in the modern world’. Bodansky, ‘The Legitimacy of International Governance’, p. 599.

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have, however, not explicitly consented to being bound by its rules – bindingness is not provided in the Articles and Bylaws.75 Moreover, the chain of legitimacy from the individual physician to the wma is not direct and can be heavily strained depending on the internal organization of a national medical association. This argument has in the past also been used to deny legitimacy for international organizations making rules for the citizens of members states.76 Because of this questionable chain of legitimacy, only if a national medical association can claim legitimacy, can its decision to join the wma lead to the wma’s authority to set rules for individual physicians in that respective association. This is less problematic for medical associations with a broad membership, as for example the German Medical Association whose membership is mandatory for German physicians.77 It is more problematic for less representative associations, such as the American Medical Association which only represents circa 20% of American physicians.78 ii Expertise Next to legitimacy based on consent, the expertise of an organization may also contribute to its legitimacy and the credibility of its authority, and strengthen its claim to make valuable, substantive rules.79 According to the traditional state-centric opinion, experts are valuable in making scientific recommendations, but ultimately states decide on the feasibility and effectiveness of rules.80 75

This can be inferred from Chapter 1, Section 4 of the Articles and Bylaws which determines that the obligations of constituent members merely entail ‘[promoting] knowledge of, and an active interest in, the objectives and work of the Association’. 76 Wolfrum, ‘Legitimacy in International Law from a Legal Perspective’, p. 16. 77 The mandatory membership is established in the respective ‘Heilberufe-Kammergesetze’ of the Länder. It was confirmed by several courts, see vg Göttingen, Pflichtmitgliedschaft in einer Ärztekammer (1 A 223/06) [2008] which established that mandatory membership is not in violation of the Grundgesetz or the echr. The vg’s judgment is based on judgments by the Bundesverfassungsgericht, namely Facharztbeschluss; Bundesverfassungsgericht, Pflichtmitgliedschaft in einer Industrie- und Handelskammer (NVwZ 2002, 335) [2002]. 78 The ama represents an estimated 216.000 physicians. American Medical Association, Annual Report 2010 (2010), p. 26. The u.s. Department of Labor, Bureau of Labor Statistics, estimated that there were circa 661.400 physicians in the usa in 2008 (available online at http://www.bls.gov/oco/ocos074.htm). Roughly, this would mean that circa 30% of all u.s. physicians are members of the wma. See estimates in literature Hal Scherz, ‘Why the ama Wants to Muzzle Your Doctor’, The Wall Street Journal, (7 May 2010); Peggy Peck, ‘ama: After One-Year Increase, ama Membership Declines Again’, MedPage Today (2007). 79 The new possibilities of contribution to the development of rules through experts is also recognized in Wolfrum, ‘Legitimacy in International Law from a Legal Perspective’, p. 18. 80 Bodansky, ‘The Legitimacy of International Governance’, p. 621.

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A less traditional view would hinge the wma’s legitimacy not on (state) consent but on input by experts.81 The wma, consisting of physicians,82 appears to be an organization of experts. The principles as proclaimed by the wma are value judgments. As Bodansky states, ‘expertise can provide a basis of decision making with respect to issues where there is no significant disagreement over values’.83 Expertise as such can contribute to the legitimacy of rules if three requirements are met: the subject matter has better or worse answers, there are people who can identify what would be the right choice, and these persons can be identified.84 Of these premises, the first, the scientific resolvability of the question, is problematic regarding medical ethics. Questions of medical ethics do not have a right or wrong answer but are on a sliding scale. There are certain ethical principles that have been identified as generally accepted,85 yet this does not mean that medical experts could identify exactly which ethical principles are right and which are wrong for all circumstances. Medical ethics as such cannot be scientifically ascertained as, to take an often used example from general international law, limits of the continental shelf could.86 Even the national medical associations discussed in Chapter 8 do not always agree on principles of medical ethics, such as confidentiality, or moral actions, such as the involvement in coercive interrogations. Furthermore, in the area of medical ethics it is not always clear who the experts are. They could be physicians, as represented in the wma, but philosophers or ethicists should not be ignored.87 This means that the third requirement can also not be met. Legitimacy based on the wma’s expertise should thus be rejected as in questions of medical ethics, it is difficult to find true experts and also ‘right’ answers. 81 82

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Keller advocates a shift in perspective away from a required state consent to private actor law-making in Keller, ‘Codes of Conduct and their Implementation’, p. 248–249. Delegates of the national medical associations must ‘hold a diploma or degree in medicine’ and ‘be licensed to practice medicine in that country’. Chapter 3, Section 3 of the Articles and Bylaws. Bodansky, ‘The Legitimacy of International Governance’, p. 622. Ibid. p. 620. See the conclusions in Chapters 1 and 8. The Commission on the Limits of the Continental Shelf, based on article 76 (8) of the un Convention on the Law of the Sea, is the example Wolfrum uses for expert rulemaking. Wolfrum, ‘Legitimacy in International Law from a Legal Perspective’, p. 18. Ethics bodies, such as national ethics councils or committees, are most often multidisciplinary with members of different professions. A comparison shows that most represented are professionals with a background in science. Vöneky, Recht, Moral und Ethik, p. 515 et seq.

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iii Evaluation What can be surmised is that it is difficult to justify the legitimacy of the wma’s claim to authority by looking at its origin or its expertise. States have neither consented to the establishment of the organization nor provided it with the authority to bind them. Neither have physicians worldwide who are not a member of a medical association that is a member of the wma consented to the wma’s authority. Consent, as a source of origin, can thus not legitimately justify the bindingness of wma rules for states or individual physicians. Being an organization for and by national medical organizations, the only persons that could be bound are those physicians who are members of a national medical association that is a member of the wma. For this category of addressees, their consent to be part of the wma could indeed justify its claim to authority. Yet, as this only concerns a very limited number of physicians worldwide, the origin or source of wma rule-making cannot legitimize the binding use of these rules in armed conflict. The wma’s expertise can also not be established with certainty, so that expertise cannot legitimatize its claim to authority. b Procedural Legitimacy The legitimacy of the wma’s claim to authority could also be based on the procedures used to establish the wma’s documents, namely its codes and declarations. If these procedures are adequate and fair,88 the wma could legitimately claim that its guidelines and rules are authoritative. To consider the adequacy and fairness of procedures, the following aspects will be scrutinized: the division of power among the different organs within the organization, participation rights, and the overall representation of the group of persons the organization claims to represent. These factors may be influenced by the overall availability of access to the wma and its documents, its independence from external influence, its transparency, and accountability. If these minimum standards of procedural adequacy and fairness are met, the wma’s claim to authority can be considered legitimate. i

The Division of Power between the Different wma Organs in the Decision-Making Process Who participates to which extent in the decision-making process can heavily influence the overall fairness of an organization.89 The wma consists of a 88

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Or perceived as such which is not meant as a ‘purely descriptive-empirical observation’ but would, according to Franck, influence an organization’s normative legitimacy. Franck, ‘The Power of Legitimacy and the Legitimacy of Power’, p. 90–93. Wolfrum, ‘Legitimacy in International Law from a Legal Perspective’, p. 6.

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Secretariat, a Council, three Standing Committees and a General Assembly. The wma Assembly, according to the Articles and Bylaws, takes the ultimate decision on the policies of the wma, elects the President of the wma and considers ‘resolutions submitted by constituent members provided that such resolutions are within the objectives of the Association’.90 The Assembly is presided over by the Chairperson of the Council. wma officials and Council members do not have a right to vote in the Assembly. The Council is responsible for determining the policy and business aspects of the organization. It consists of representatives of medical associations of the different regions within the wma: Europe, Asia, Pacific, Latin America, Africa and North America.91 Prerequisite for membership is that medical associations have paid their subscription fees. The Council is headed by the Chairperson of the Council who is elected biannually. Where the President of the wma is the representative head of the organization, the Chairperson is its political head.92 The Council overlooks ‘the property, affairs, business and concerns of the Association’.93 In addition, the agenda of the Assembly is set by the Council who decides which documents of the Association and which resolutions submitted by constituent members are within the objectives of the Association.94 In its work, the Council is supported by three Standing Committees: Finance and Planning, Socio-Medical Affairs, and Medical Ethics. The Medical Ethics Committee advises the Council on ‘drafts of proposed declarations, statements, or resolutions of the Association which are primarily 90 91

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See Article 4 of the Articles and Chapter 3, Section 9 of the Bylaws. The Articles and Bylaws do not specify which countries are considered to belong to which region. The Financial Statements 2008 classified the wma members as follows: Europe counted 41 medical associations, Africa 16, Latin America 15, the Pacific 13, Asia seven, and North America two. Russia was counted as part of Europe and Israel as part of Asia. Since 2008, Cameroon, Italy, Malawi, Mozambique, Myanmar, Serbia, Sri Lanka, Sudan, Tanzania, Trinidad and Tobago and Uzbekistan have joined the wma. The provisions concerning the wma officers can be found in Article 6 of the Articles and Chapter 5 of the Bylaws. Article 5 of the Articles and Bylaws. This includes for example considering applications for constituent membership, determining the subscriptions of the members, considering documents of the Association and submitted by constituent members, appointing Council members for the Standing Committees, and all other and further business. For the details, see throughout the Articles and Bylaws and Chapter 3, Procedures related to the work of the wma Council, of the Procedures and Operating Policies. Chapter 2.1.1 (a) of the Procedures and Operating Policies. Resolutions by constituent members have to be submitted to the Secretariat prior to the annual Assembly meeting. Only proposals that are within the objectives of the wma are provided to the Assembly for consideration. See also, Chapter 3. Section 10 of the Articles and Bylaws.

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ethical in nature’ and on ‘any resolutions or motions properly submitted by constituent members or others which are primarily ethical in nature’.95 The wma uses resolutions, statements and declarations to express its policy and recommendations. Resolutions express a reaction to ‘a specific, usually urgent, situation’96; declarations and statements ‘[reflect] wma policy on an issue considered to be of significance, to be universally applicable and embodying principles that endure over time’.97 Declarations are broad, while statements are limited in scope. Only when an issue ‘is an important factor in human health; […] a matter of concern to physicians in all or most national medical associations; and the analysis and solution would benefit from the experience and/or expertise of physicians’ is a proposal considered to be adopted as a wma declaration or statement. Furthermore, it should represent ‘general consensus’.98 All documents with ‘ethical implications […] concerning the relationship between the medical profession, the other health care professions, the public and the national governments or authorities’ are first considered by the Medical Ethics Committee and presented to its members for comments.99 The Committee may decide to refer the document to national member associations for comment, postpone consideration or not approve the document. When the Committee does not approve, the Council will decide on the proposal. When national member associations have commented on a proposal, a new draft is developed and again considered by the Committee.100 The Council is eventually presented with all proposals, whether or not they have been approved by the Committee. After consideration, the Council may amend, approve without change, postpone, request further comments, or not approve a proposal based on whether a proposal is ‘within the objectives of the 95 96

The tasks can be found in Chapter 3.5.5 of the Procedures and Operating Policies. Chapter 4.1.1 of the Procedures and Operating Policies. For example the World Medical Association, Resolution supporting the Rights of Patients and Physicians in the Islamic Republic of Iran (adopted by the wma General Assembly, Delhi, India, 2009) which while acknowledging reports of, amongst several things, prisoners with signs of brutal torture, ‘[urges] the government of the Islamic Republic of Iran to respect the International Code of Medical Ethics and the standards included in the aforementioned declarations to which physicians are committed’. More recently, World Medical Association, Council Resolution on Danger in Health Care in Syria and Bahrain (adopted by the 191st wma Council Session, Prague, April 2012). 97 Chapter 4.1.2 of the Procedures and Operating Policies. 98 Chapter 4.2.1–4.2.3 of the Procedures and Operating Policies. 99 Chapter 3.5.5. and 4.4.3 of the Procedures and Operating Policies. 100 Chapter 4.4.6 of the Procedures and Operating Policies.

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Association’.101 Only if the Council approves, is a proposal submitted to the Assembly for approval, usually with a recommendation for adoption.102 When voting upon declarations, statements or resolutions deemed ‘ethical’ by the Council, a 3/4 majority of the Assembly is needed for adoption.103 The documents relevant in armed conflicts are all ethical statements and were adopted by this procedure. The Council is the organ that ultimately, upon recommendation by the Medical Ethics Committee consisting exclusively of Council members, has the power to decide whether a resolution is within the objectives of the wma.104 This demonstrates the overall imbalance between the decision-making organs within the wma structure. Looking at its tasks, it becomes clear that the Council is the organ of the wma with the most power, whereas the Assembly merely carries out the decisions of the Council. The Council decides on the agenda of the wma, it then considers all proposed documents on their compatibility with the wma’s objectives and delivers a recommendation for the Assembly. Even though the Assembly, according to the Articles, should ‘establish the policies of the organization’, it can only comment on proposals if so decided by a Committee and at no later point. Subsequently, the Assembly can vote on documents that were previously approved by the Council.105 Such documents are usually voted on without prior amendments and without much discussion.106 An exception is when proposals that have not been approved by the Council are nonetheless submitted to the Assembly by their initiator. In this situation, the Assembly may consider rejected proposals, but at least four members of the Council have to agree to this procedure and the Council will still provide a negative recommendation.107 101 Chapter 3. Section 10 (A) of the Articles and Bylaws and Chapter 2.1.1. (a) of the Procedures and Operating Policies. 102 Chapter 4.4 of the Procedures and Operating Policies. 103 Chapter 3. Section 6 of the Articles and Bylaws. 104 This is the usual procedure as described in Chapter 3. Section 10 (A) of the Articles and Bylaws. Urgent matters (‘matters of substantial importance which were unknown or unforeseen at the time the agenda was prepared and which require immediate action’) may be presented to the Assembly by constituent members, yet the Council nevertheless decides whether they are within the objectives of the organization and whether they are urgent. See Chapter 2.1.3 of the Procedures and Operating Policies. 105 In the Council, ethical statements, declarations and resolutions require a simple majority; in the Assembly such documents require a ¾ majority. 106 Observation by the author after attendance of the wma General Assembly in October 2009. 107 Chapter 4.4.10 of the Procedures and Operating Policies.

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This means that the most representative organ of the wma, the Assembly, has the least power, whereas the elective body with a limited number of members has the most influence. This is troubling because the Assembly is the forum where all constituent members could contribute to the policies to be adopted. In practice they can only influence those policies and suggestions as approved and forwarded by the Council.108 This imbalance in the distribution of power between the different decision-making organs of the wma is neither fair, nor adequate. ii Participation and Voting Rights within wma Organs Ethical statements and declarations ‘require the affirmative vote of ¾ of the delegates present and voting for adoption’.109 Although all member associations of the wma are represented in the annual Assembly, only those national medical associations that have paid their dues have a right to participate and vote in the Assembly.110 Every constituent member has one representative in the Assembly per 10.000 declared physician members of the respective association.111 Each individual representative has one vote. Member association with many members thus have more votes than smaller associations as the number of votes depends on financial stability and the national membership of the constituent wma member. Wealthier national medical associations can usually declare more physician members which means they receive more votes and a larger influence on decision making in the Assembly. Consequently, they are effectively also responsible for electing the Council members. The seats on the Council are distributed as follows: one seat per 50.000 physician members of national medical associations of a region that was selected, 108 This is also reflected in the actual practice at wma meetings where the considerations of the Council take up more time than the discussions and voting procedures of the Assembly. 109 Chapter 3. Section 6 of the Articles and Bylaws. 110 The dues are calculated per members a national medical association has and they are the same for all national medical associations. This can already be problematic for associations from less wealthy backgrounds. Schaupp, Der ethische Gehalt der Helsinki Deklaration, p. 174. 111 Delegates of constituent members should ‘(a) hold a diploma or degree in medicine recognized by the national medical association of [their] country; (b) be licensed to practice medicine in that country; (c) be a member of [their national medical association; and (d) be resident in the territory of that association’. Chapter 3, Section 3 of the Articles and Bylaws. Declarations of member physicians hinges on financial factors: the constituent will have to pay the required due per declared member which is a reason for less wealthy associations to limit their number of declarations. Ibid. p. 174.

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one seat per national medical association with a total of more than 50.000 members (and an extra seat per additional 50.000 members), and seats not filled by the second option will be filled by a national medical association elected by the members of its region. All Council members are selected, not elected, by their national medical association. Their national medical association should certify that their ‘character, integrity and competence are beyond reproach’ and they should be ‘in good standing with the Association’.112 This is not further substantiated but implies that criticism of the wma is not desired in the Council.113 The members of the Standing Committees advising the Council are appointed by the Council from among its members upon recommendation by the Secretary General.114 Due to the distribution of seats according to national membership, larger, wealthier associations also have more influence in the Council and the Standing Committees. Before coming to the question what this means for the representation, it can be established that the participation and voting rights within the wma decision-making organs are unequally distributed. This inequality in participation and voting rights most probably caused by financial realities, see the argument below, leads to the conclusion that in this respect the election and decisionmaking procedures cannot be considered fair and adequate. iii Fair and Adequate Representation States and individual physicians, although addressed in the wma’s documents, are not represented within the organization. Individual physicians can attend meetings, without voting rights, in the capacity of associate members. The procedures within the wma provide no opportunity for input from the wider medical profession beyond individual associate members and those physicians who are members of a constituent member. While the un has 193 member states, the wma only has ninety-eight members. Looking at its list of members, it becomes clear that not all regions of the world are equally represented. Only three national medical associations are from Arab countries, namely Egypt, Tunisia and Kuwait.115 Africa is also greatly

112 Chapter 6. Section 4 of the Articles and Bylaws. 113 Hohnel also affirms this, yet remains less critical in Hohnel, Die rechtliche Einordnung der Deklaration von Helsinki – Eine Untersuchung zur rechtlichen Grundlage humanmedizinischer Forschung, p. 31. 114 Chapter 3.5.1.1 of the Procedures and Operating Policies. 115 None of the Arab member associations was represented at the 2009 wma General Assembly.

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underrepresented with only twenty-one members,116 in comparison to the forty-three European member associations.117 Representation within the Assembly is not universal but rather euro-centric. This also applies to the Council. At the moment of writing, the Council consists of twenty-two members of whom eight are from the European region, five from the Pacific region, four from the Northern American region, two from the Asian and Latin American regions, and one from the African region.118 The representation within the Council, but also the Assembly demonstrates a heavy reliance on Western medical associations, whereas other regions of the world, such as Africa, with larger populations are underrepresented.119 The cause for this misrepresentation must be sought in the financial inequalities between the national medical associations from different regions of the world. Not all countries of the world have medical associations and not all medical associations are able to pay the dues that come with wma membership. Wealthier countries tend to have more physicians who can afford to become members of their national medical associations. Because a large national medical association has more income and is in a better position to pay its dues to the wma, wealthier associations can send more representatives to the annual wma Assembly. The representatives can then ensure that their association is also represented in the Council where larger medical associations are allowed more voting members. Financially weaker countries are less likely to be able to pay their fees, will have less votes, and will not be able to send many representatives with voting rights to the annual Assembly 116 This includes member associations from quite fragile states, for example Somalia. 117 The forty-two European member associations are twenty-six member associations from countries of the European Union, except Greece. Furthermore, Albania, Andorra, Croatia, Liechtenstein, Iceland, Macedonia, Norway, Serbia, Switzerland, Ukraine and the Holy Sea are also represented by medical associations. Turkey and Russia were also included in the European group. 118 In 2014, the members of the Council are the following, though some have more than one Council-member, indicated in brackets: Austria, Germany (2), Finland, France, Iceland, Russia, and uk (Europe); Australia, Japan (3), and Rep. Korea (the Pacific); usa (3) and Canada (North America); India and Israel (Asia); Brazil and Uruguay (Latin America); and South Africa (Africa). 119 For the constituent membership within the wma, only certain criteria matter, namely representation, independence, membership and financial stability. Who establishes whether these criteria are met, is unclear. In the case of a state with several medical associations, the wma is unable to determine who may and who may not become a constituent member other than the four criteria. Elmar Doppelfeld, ‘Offene Fragen, ungelöste Probleme’, 96 Deutsches Ärzteblatt, A 3161 (1999), p. A-3162.

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meetings. The influence of a medical association on the wma’s policy thus plainly depends on its financial resources.120 The inequality in the representation, especially within the Council, effects the agenda-setting for the Assembly because only issues deemed suitable by the members of the Council are submitted to the Assembly. Because the Council only represents certain constituent members of the wma, this means that only these privileged few eventually determine the policy of the wma. Hence, the overall policy of the wma is influenced by the wealthier, larger national medical associations due to their influence on the agenda-setting in the Council and due to the fact that they have more votes in the Assembly.121 This overrepresentation of mostly wealthy Western countries in the representative and especially the effective decision-making forums of the wma casts a doubt on the equal representation within the wma and thus its overall adequacy and fairness. iv Independence Consisting of national medical associations and individual associate members only, the wma is officially independent of states and other entities. This independence is emphasized in its Policies.122 Support by several pharmaceutical companies, its ‘corporate partners’, is claimed to be purely financial.123 According to its ‘Special Guidelines’ corporate partners should not be permitted or encouraged to influence the decision-making process within the wma.124 All wma activities should be funded, ‘whenever possible’, by multiple sources. Funds from corporate partners should not be used to support wma political advocacy activities, nor should the wma depend on corporate funding for its main governance activities. Which activities are part of its political advocacy

120 Hohnel, Die rechtliche Einordnung der Deklaration von Helsinki – Eine Untersuchung zur rechtlichen Grundlage humanmedizinischer Forschung, p. 30–31. 121 An example of this is the attitude of the wma towards reports of torture and mistreatment of prisoners: Iran and Bahrain were urged to respect wma policies and respect international law, whereas the wma has never explicitly addressed the issue of the role of physicians in the ill-treatment or torture of prisoners in Guantánamo Bay. 122 Chapter 6.2 of the Procedures and Operating Policies. 123 The four biggest pharmaceutical companies worldwide – Eli Lilly and Company, GlaxoSmithKline, Johnson & Johnson and Pfizer, Inc. – are listed as ‘important partners’ of the wma on World Medical Association Homepage. In 2008, the wma received €297.307 sponsorship, assumably from such ‘corporate partners’, as indicated in its Financial Statements 2008, p. 18. 124 Chapter 6.2.2 of the Procedures and Operating Policies.

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and which are part of its governance activities is not established in the Policies. Funding for wma meetings should be disclosed. An example of a corporate relationship, are the ‘speaking books’ concerning issues of public health, for instance a guide to clinical trials for (possible) research subjects who are less educated and possibly illiterate.125 They are published in cooperation with different national medical associations and in different languages. The publications are supported by the eu, the World Bank, unicef, and the Global Fund, yet financed by, amongst others, basf, Bayer, de Beers Diamonds, Ely Lilly and Company, Novartis, and Pfizer, Inc. Commentators voice concerns over the practical independence of an organization that needs the financial support of pharmaceutical companies.126 There is not sufficient information to clear the wma of this reproach or to confirm it, yet the overall result of such information is that the organization’s self-claimed independence and, with that, its adequacy is in doubt. v Access and Transparency Beneficial for the procedural legitimacy would additionally be a certain level of transparency and the possibility of public access.127 Although not necessarily a procedural deficit, the limited transparency and public access to the wma and its documents, especially for non-members, impacts the fairness of the wma’s procedures.128 Transparency concerning wma procedures and structures is limited because not all information about the wma, its meetings and the resulting policies are publicly available. For example, the most essential documents regarding the wma structure, the Articles and Bylaws and the Policies, cannot be found on the website and are only accessible for members or observers at wma meetings. Also transcripts of the discussions leading to the documents adopted are not published even though they would clarify why the wma chose certain courses of action. Furthermore, its financial statements are only accessible to members and not to the public. 125 See Speaking Books Website, at http://www.booksofhope.com/openbook/index.php?/ speaking-book-titles.html. 126 See Doppelfeld who stated in 1999 that ‘die Gefahr einer zukünftigen Abhängigkeit der wma von interessierten Sponsoren [sich] nicht leugnen [lässt]’. This remains true considering the consistent sponsoring of wma activities by pharmaceutical companies. Doppelfeld, ‘Offene Fragen, ungelöste Probleme’, p. A-3161. 127 Favoring ‘a very strong, but rebuttable presumption of transparency’, see Buchanan & Keohane, ‘The Legitimacy of Global Governance Institutions’, p. 58. 128 Transparency is not only important for the members of the organization, but also for all those who are in any way involved with the organization. Ibid. p. 53. In this book, this is demonstrated by the lack of access to wma documents beyond 2008.

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While access to wma documentation is significantly restricted, public access to wma meetings and to its archives can be attained. Individuals able to afford the travels are granted ‘observer status’ to attend the annual wma General Assembly and can request access to the wma archives in Ferney-Voltaire. This is an opportunity to gain an insider’s perspective into the workings of the wma. vi Accountability As a last aspect of legitimacy, the accountability of the wma could play a significant role. Accountability can be defined as having ‘to answer for one’s action of inaction, and depending on the answer, to be exposed to possible sanctions’.129 This would mean that the wma would have to answer to its ‘accountability-holders’ and be possibly subject to sanctions, ranging from legal sanctions to public shaming, for its actions. These actions include the documents it adopts and proclaims whereas its inactions could refer to situations in which it refuses to adopt a resolution or guideline. Accountability requires a distance between the organization and its addressees because only if the accountability holders are independent of the organization can there be true review and criticism. To enable this process of accountability, the wma would need fixed and transparent standards of review.130 When looking at the wma more closely, it is difficult to see how there could be accountability. Accountability-holders are those affected by wma policy being the wma’s members, national medical associations, as well as the principal addressees of its policies, individual physicians. There is no mechanism for individual physicians to review the wma, to call it to accountability for its policies or to expose it to sanctions. Moreover, between the wma and its members is not a sufficient amount of distance to enable independent supervision or review. All members are represented in the Assembly which adopts the documents prepared by certain members beforehand.131 These are regularly reviewed, at least every ten years. Review entails that the Council re-considers the relevant policies and brings changes, revisions or proposed rescissions before the Assembly with recommendation for approval.132 There is no 129 Ronald J. Oakerson, ‘Governance Structures for Enhancing Accountability and Responsiveness’, in James L. Perry (ed), Handbook of Public Administration (Jossey-Bass, 1989), p. 114. 130 These elements are drawn from Philipp Dann, ‘Accountability in Development Aid Law: The World Bank, undp and Emerging Structures of Transitional Oversight’, 44 Archiv des Völkerrechts, 381 (2006), p. 384–385. 131 Chapter 4 of the Procedures and Operating Policies. 132 Chapter 4.6 of the Procedures and Operating Policies.

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f­ ormalized, independent review mechanism as such. It would also need to be established by which standards the wma’s actions should be measured, for example democratic legitimacy or due diligence. A review mechanism should not only review the outcome documents yet also the organization itself. The supervision necessary to enable review could also include legal supervision which is not provided for in the Articles and Bylaws or the Policies. Outside supervision through peer reviews is also not formally provided for although there has been a de facto review in the critiques by medical professionals in medical journals.133 Public critique is the only consequence that comes close to a sanction. Yet it is still clear that the wma’s accountability mechanisms could be developed. vii Evaluation Only if the procedures are deemed adequate and fair can they lend legitimacy to the wma’s claim to authority. From the above analysis, it can be surmised that the wma’s procedures of decision- and policy-making rely heavily on structures that are neither adequate nor fair.134 The procedures, as laid out in the Articles and Bylaws and Policies, demonstrate several serious deficits that cast a doubt on the wma’s legitimacy. The first deficit in the wma’s procedure lies in the distribution of power of the different bodies involved in the decision-making process within the wma. Influence within the wma structure is not distributed equally, but rather imbalanced. Although the constituent members represented in the Council are elected by the Assembly, this alone cannot justify the Council’s power because of the second deficit: the unequal participation and voting rights. States with more members and greater financial stability have more voting rights in both the Assembly and the Council. This leads to the third deficit: the influence of larger, wealthier medical associations over smaller, less wealthy associations in all wma organs which affects the policy-choices of the organization. It would be more easily acceptable if a more broadly representative and elected council, like the un Security Council, 133 For example concerning how the wma should deal with a member accused of involvement in human rights abuses. Derek Summerfield, ‘Medical Ethics, the Israeli Medical Association, and the State of the World Medical Association’, 327 British Medical Journal, 561 (2003); Derek Summerfield, ‘Palestine: the Assault on Health and Other War Crimes’, 329 British Medical Journal, 924 (2004). 134 This conclusion is also reached by Hohnel and Doppelfeld. Hohnel, Die rechtliche Einordnung der Deklaration von Helsinki – Eine Untersuchung zur rechtlichen Grundlage humanmedizinischer Forschung, p. 31 and Doppelfeld, ‘Ein Kompromiss “aus politischen Gründen”’, p. A 2922.

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was responsible for the policy-decisions. Although membership in the un Security Council is limited to fifteen states and five seats are permanent, the other seats are geographically distributed and rotate biannually. Furthermore, all members of the un are equally represented with equal voting rights in the General Assembly.135 There is no such forum within the wma. Within the wma, the division of power is not balanced between the elected organ and the representative Assembly. Voting rights are distributed according to financial means and representation and decision making powers depend on financial resources and wealth. Due to these deficits, procedures are not fair. Although the wma offers public access to its meetings and policies, its transparency is limited. This, however, is only a small factor compared to the larger legitimacy deficits highlighted above. Yet, if the wma was also not independent of outside influence for example by pharmaceutical companies, as claimed by some, this would be detrimental to its alleged independence and would need to be monitored. Overall, the deficient procedures and structures within the wma lack adequacy and fairness. They do not fulfill the minimum standards required to qualify its legitimacy which in turn diminishes its claim to authority. c Substantive Legitimacy The legitimacy of the wma could, as a third and last option, be based on the substantive outcomes it has produced.136 If the wma’s guidelines are reasonable and valuable, then the wma’s ‘problem-solving effectiveness can give it legitimacy’.137 Generally, the fact that the wma is an actor that is moved by normative rather than self-interest motives, speaks in favor of its general expertise to make authoritative rules for physicians in armed conflict.138 Pursuant to its objectives, it aims to ‘achieve the highest international standards in […] 135 Concerning the membership in the Security Council, see Michael Wood, ‘United Nations, Security Council’, in Rüdiger Wolfrum (ed), Max Planck Encyclopedia of Public International Law (Oxford University Press, 2012). Article 9 of the un Charter determines that ‘[the] General Assembly shall consist of all the Members of the United Nations’. Article 18 of the un Charter furthermore establishes that ‘[each] member of the General Assembly shall have one vote’. 136 This derivation of legitimacy is based on Scharpf’s theory of output (and input) legitimacy. Scharpf’s theory will, however, not be discussed in detail as it is heavily intertwined with the concept of democracy, a concept that as such has no relevance concerning the wma. Fritz W. Scharpf, Regieren in Europa: Effektiv und Demokratisch? (Campus Verlag, 1999). 137 Bodansky, ‘The Legitimacy of International Governance’, p. 622. 138 Buchanan & Keohane, ‘The Legitimacy of Global Governance Institutions’, p. 30.

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medical ethics’.139 This does not yet legitimize its claim to authority over states – such a claim is nowhere accepted in literature and substantially does not conform to international law. Yet it would legitimize its claim of authority over physicians if it can be shown that the outcome is reasonable and, additionally, in conformity with international humanitarian law. Aside from the actual, substantive value of the rules, if the wma was generally considered as trustworthy and ‘good’ this would contribute to its substantive legitimacy.140 Short of being a belief in its legitimacy (Legitimitätsglaube), such a general belief in the wma ‘doing good’ can indeed be ascertained when looking at the references to its documents in literature and the icrc Commentary.141 Although this does not diminish the fact that some of its statements may be prejudiced and that its structure and procedures do not elicit much trust, there seems to be a general belief that the wma is doing a good job as an organization setting ethical standards for physicians. Establishing the wma’s substantive legitimacy requires analyzing its documents and establishing whether they are successful in producing a socially accepted outcome.142 In the case of the wma, this means ascertaining whether its documents on medical ethics applicable in armed conflict comply with international humanitarian law and whether they provide a valuable addition to the rules that already govern the treatment of those who need medical care. The documents relevant for physicians in armed conflict are the Declaration of Geneva, the International Code of Ethics, and, more specifically, the Regulations in Times of Armed Conflict.143 The in-depth discussion begins with a general description of the relevant document and its background, followed by a comparison with international humanitarian law, and concludes with an evaluation of the general compatibility with Geneva Law. This facilitates a conclusion on the value of the relevant document for filling the term medical ethics in armed conflicts.

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Article 2 of the Articles and Bylaws. Bodansky, ‘The Legitimacy of International Governance’, p. 612. See also the references in documents by national medical associations, see fn. 65. Bodansky, ‘The Legitimacy of International Governance’, p. 612; Keller, ‘Codes of Conduct and their Implementation’, p. 268. 143 The Declarations of Helsinki and Tokyo can also play a role yet will not be examined. Furthermore, the wma in 2011 adopted a ‘Statement on the Protection and Integrity of Medical Personnel in Armed Conflicts and Other Situations of Violence’ which is a purely political statement without ethical value as such. See World Medical Association, Statement on the Protection and Integrity of Medical Personnel in Armed Conflicts and Other Situations of Violence (adopted by the 62nd General Assembly, Montevideo, Uruguay, October 2011).

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i

The Declaration of Geneva and the International Code of Medical Ethics The Declaration of Geneva, as adopted by the 2nd General Assembly in Geneva in 1949, is a modernized version of the Hippocratic Oath.144 Upon the shocking accounts of the atrocities committed by physicians in World War II, the wma drafted a modern ethical oath, on the basis of national ethical oaths. It was ‘to impress on newly qualified doctors the fundamental ethics of medicine and would assist in raising the general standards of professional conduct’.145 The Declaration was supplemented by the International Code of Medical Ethics.146 The Code’s inception builds directly on a wma study on ‘war crimes and medicine’ which emphasizes the importance of medical aspects in armed conflicts.147 Both adopted in October 1949, together these documents provide the basis of the wma’s ethical framework. Overall, the Declaration is formulated as an oath written in the first person singular, whereas all duties provided in the Code are formulated as obligations: ‘a physician shall…’. The use of the verb ‘shall’ indicates a strong moral obligation that does not allow for excuses or justifications.148 Of the ten principles expressed in the Declaration, the most relevant are those addressing the physician-patient relationship.149 In upholding the Hippocratic tradition, the other principles concern the relationship between fellow physicians. The Code is divided into three parts concerning the duties of physicians in general, the

144 It was the first document to be adopted by the wma. World Medical Association, Declaration of Geneva (adopted by the 2nd General Assembly in Geneva, September 1948, last revised in Divonne-les-Bains, France, May 2006). See Steger, Das Erbe des Hippokrates, p. 38; Smith, ‘The Hippocratic Oath and Modern Medicine’, p. 495. 145 Taken from the World Medical Association Homepage. 146 World Medical Association, International Code of Medical Ethics (adopted by the 3rd WMA General Assembly, London, England, October 1949 and last amended by the WMA General Assembly, Pilanesberg, South Africa, October 2006). 147 Interestingly, between 1949 and 1953 physicians could report violations of medical ethics or war crimes committed by physicians in times of war to the wma. This information can be found on World Medical Association Homepage. 148 See concerning the Declaration of Helsinki, Harald Schmidt, et al., ‘Interpreting the Declaration of Helsinki (2008): “must,” “should” and different kinds of obligations’, 29 Medicine and Law, 565 (December 2010). This should apply mutatis mutandi to the Code. 149 The following are the five most important provisions for present purposes: ‘The health of my patient will be my first consideration; I will respect the secrets that are confided in me, even after the patient has died; […] I will not permit considerations of age, disease or disability, creed, ethnic origin, gender, nationality, political affiliation, race, sexual orientation, social standing or any other factor to intervene between my duty and my patient; I will maintain the utmost respect for human life; and I will not use my medical knowledge contrary to the laws of humanity’.

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duties of physicians to patients, and the duties of physicians to colleagues. Both are thus classic documents of medical ethics, in the sense that they also include guidelines on the interaction of physicians amongst each other – an aspect that was excluded in international humanitarian law, as established in Chapter 6.150 While the duties towards fellow physicians will be left aside, the duties in general and those towards patients will be thoroughly analyzed. The duties of the physician to his patients, fewer than the general duties and more than the duties to colleagues, remain surprisingly general. The analysis will be based on the principles found in the Declaration and supplemented by the principles of the Code. The principle of the primacy of a patient’s health is the first principle postulated in the Declaration. A physician pledges to prioritize the patient and her needs above all other considerations. An equivalent to this principle in international humanitarian law can be found in several articles, for example article 11 ap I which prohibits medical procedures ‘not indicated by the state of health of the person concerned’.151 Medical treatment of the wounded and sick should always be to the benefit of the patient and as indicated by his health – a ‘fundamental and obvious’ principle.152 That a physician should thus be guided by the health of a patient is anchored both in the Declaration and international humanitarian law. It is, however, stronger in the wma policy as the relevant provisions in international humanitarian law simply establish that the health of the patient should guide the physician, not that it should be his ‘first consideration’. This is essential. In armed conflicts, military physicians may realistically have conflicting loyalties: to their patients and to the military. Although it may not be compatible with their medical obligations, they may prioritize their military over their medical duties.153 An example in practice would be allowing the interrogation of a wounded or sick person for reasons of security of the state instead of providing her with medical treatment despite the fact that the health of the patient would require treatment before interrogation.

150 O.R. XI, CDDH/II/SR.16, Statement delegate Solf (usa), p. 150 and Statement delegate Bothe (Germany), p. 183. 151 The only exception to this principle can be found in article 11 (3) ap I concerning skin grafts and blood transfusions. 152 McCoubrey, International Humanitarian Law, p. 87; 90. Further, Hernán Reyes, ‘The Conflict between Medical Ethics and Security Measures’, in Neve Gordon & Ruchama Marton (eds), Torture – Human Rights, Medical Ethics and the Case of Israel (Zed Books, 1995), p. 46. 153 Dual loyalty issues are discussed in Chapter 1.

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Here the ethical principle is a valuable and unambiguous addition and clarification: the patient should come fist and above all. The principle of confidentiality of medical information can be found both in the Declaration and, more elaborate, in the Code.154 It is one of the basic ethical principles concerning the medical interaction between a physician and his patient.155 In international humanitarian law, the codification of the principle generated some controversy. It was codified with an emphasis on nondenunciation in articles 16 (3) ap I and 10 (3) ap II yet both provisions contain exceptions. The first exception is generally recognized: there may be ‘regulations for the compulsory notification of communicable diseases’.156 According to the second, more controversial exception physicians can be compelled to forsake confidentiality when disclosure in a certain situation is prescribed by the laws of the state they are nationals of, while physicians of an adverse party to the conflict cannot be compelled to disclose information by a foreign law. The affiliation of the patient is irrelevant in this respect.157 The protection of the wounded and sick seeking medical care is thus not universal in this respect but rather depends on national legislation governing the actions of the treating physician.158 In comparison to the wma principle, one notices that the patient’s consent to a revelation of confidential information, a requirement in the Code, plays no role in articles 16 ap I and 10 ap II. Also, the real and imminent harm criterion of the Code does not translate directly to international humanitarian law, although the icrc Commentary recognizes that ‘a doctor retains the freedom to denounce a patient on the basis that he may legitimately wish to prevent the patient pursuing activities which he considers to be 154 Pursuant to the Declaration: ‘I will respect the secrets that are confided in me, even after the patient has died’. Pursuant to the Code: ‘A physician shall respect a patients right to confidentiality. It is ethical to disclose confidential information when the patient consents to it or when there is a real and imminent threat of harm to the patient or to others and this threat can be only removed by a breach of confidentiality’. 155 The fact that this is an essential principle of medical ethics, is also recognized in the icrc Commentary. See Sandoz, et al. (eds), Commentary to the Additional Protocols, para. 682. 156 This is an exception that is also to the benefit of other patients, which in the context of prisoner of war camps or similar situations where diseases can spread rapidly proves logical. It was not included in article 10 (3) ap II. The icrc, however, deems it less problematic than the second exception because ‘in the case of communicable diseases, general interest takes precedence over special interests’. Ibid. para. 689. See also Bothe, et al., New rules for Victims of Armed Conflicts, p. 130. 157 Bothe, et al., New rules for Victims of Armed Conflicts, p. 129. 158 Sandoz, et al. (eds), Commentary to the Additional Protocols, para. 687–688. For a more elaborate discussion, consult Chapter 2.

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dangerous for other human beings, just as in peacetime, he may wish to prevent a criminal from continuing his criminal activities’.159 It would be difficult to establish what constitutes a threat when in armed conflicts most combatants present an imminent threat to others and the situation as such presents a real and imminent threat of harm to any patient, whether civilian or combatant, after his release from medical care. But this should then, according to the Code and Declaration as well as the Additional Protocols, be left to the discretion of the physician. The principle of consent of a patient, as argued below, should, in accordance with modern developments in medical care,160 be given a more prominent spot in international humanitarian law. Overall, the principle of confidentiality in the Declaration is too vague and static, but that in the Code provides a reasonable addition to that in international humanitarian law. The principle of non-discrimination is also one of the bases of international humanitarian law.161 It ensures physicians’ impartiality.162 However, whereas the Declaration enumerates prohibited grounds for discrimination, modern international humanitarian law prohibits distinction between patients based on ‘any grounds other than medical ones’.163 Nonetheless, certain categories of persons should be treated with priority: children, the elderly, and pregnant women.164 Although the criteria enumerated in the Declaration 159 Ibid. para. 676. 160 Modern medical care has moved away from paternalism to an informed and rational patient who can make his or her own decisions. See the ethical discourse Chapter 1. But see also the Islamic Code of Ethics for ethical guidelines that at times place beneficence over autonomy, in Chapter 8. 161 Pursuant to the Declaration: ‘I will not permit considerations of age, disease, or disability, creed, ethnic origin, gender, nationality, political affiliation, race sexual orientation, social standing or any other factor to intervene between my duty and my patient’. Pursuant to the Code: ‘A physician shall not allow his/her judgment to be influence by personal profit or unfair discrimination’. It is surprising that the generally more elaborate Code is more succinct, whereas the Declaration enumerates unethical grounds for discrimination. 162 Impartiality is one of the Fundamental Principles of the irc Movement which also guides the icrc. See article 4 (1)(a) of the Statutes of the icrc as discussed in Chapter 1. 163 Articles 10 ap I and 7 ap II. In articles 12 gc I and II a similar formulation was also used: ‘Only urgent medical reasons will authorize priority in the order of treatment to be administered’. Nonetheless, the Geneva Conventions still enumerated prohibited grounds for discrimination, namely sex, race, nationality, religion, or political opinions in articles 12 gc I and II, race, religion and political opinion in article 27 gc IV, and race, color, religion or faith, sex, birth and wealth in common article 3 gcs. 164 The ‘particular’ protection of ‘the infirm and expectant mothers’ can be found in article 16 gc IV. See article 77 ap I concerning the protection of children. Torrelli, ‘La Protection du Médecin dans les Conflits Armés’, p. 591.

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appear comprehensive and are probably non-exhaustive, the formulation in the Additional Protocols is wider because it excludes any and all ‘non-medical considerations’165 and thus can offer superior protection. This approach should also be preferred to the overly general formulation in the Code prohibiting ‘unfair discrimination’. Impartiality in armed conflicts is intended to ensure that physicians treat friends and foes alike which does not mean they cannot differentiate if medical reasons so require. They can independently decide whether to treat a severely wounded person with little chance of survival before a lightly wounded person with more chances of survival or vice versa, depending on the circumstances and resources. Such preferences in treatment should, however, never be based on discriminatory reasons.166 The ethical and legal provisions here have slightly different rationales. In international humanitarian law, the focus is on the prevention of differentiation in the order of treatment based on other than medical reasons. The wma documents focus more generally on discrimination by physicians in their overall interaction with patients and less on the question of preference in the eventual treatment. The Declaration, as well as the Code, establishes the principle of respect for human life.167 A general principle proscribing respect for human life as such cannot be found in international humanitarian law. Rather, there is a general spirit of protection of human life of those persons not involved in hostilities. Civilians, the wounded and sick, and prisoners of war are generally and widely protected.168 As the context is that of an armed conflict, combatants and civilians who are directly participating in hostilities are not included in the general protection of life. Due to this difference in perspective – international humanitarian regulating an endeavor aimed at taking lives, not at saving them – the life of persons is not as comprehensively protected in armed conflicts as it 165 Sandoz, et al. (eds), Commentary to the Additional Protocols, para. 453. 166 Rather, a physician should use ‘bon sens’. Baccino-Astrada, Manuel des Droits et Devoirs du Personnel Sanitaire lors des Conflits Armés, p. 41. 167 Pursuant to the Declaration: ‘I will maintain the utmost respect for human life’. Pursuant to the Code: ‘A physician shall always bear in mind the obligation to respect human life’. A previous version of the Declaration included the phrase ‘from its beginning even under threat’. A reason for its deletion would be that questions regarding the beginning of life, that were alluded to (‘from its beginning’), do not play an essential role in armed conflict. Surely, especially civilian physicians will still be faced with questions regarding the beginning of life, such as unwanted pregnancies, assisted reproduction or contraception. Nonetheless, this would be beyond the questions concerning the treatment of the wounded and sick by physicians in armed conflict. The phrase ‘even under threat’ was added to the prohibition of violations of patients’ rights in the Declaration. 168 Sandoz, et al. (eds), Commentary to the Additional Protocols, para. 411–412.

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would be in times of peace.169 This is one of the main differences between international humanitarian law and the Declaration. However, physicians, in treating those in need of medical care during armed conflict should attempt to save and respect all life. Here, international humanitarian law and the wma’s principle concerning the respect of life intersect. The Preamble to Additional Protocol II explicitly refers to the principle of respect where it reads that ‘the humanitarian principles enshrined in Article 3 common to the Geneva Conventions of 12 August 1949, constitute the foundation of respect for the human person in cases of armed conflict not of an international character’. More in detail and applicable to both non- and international armed conflicts, physicians are obliged to respect all protected persons and treat them humanely.170 They are not allowed to become directly involved in the war effort or use lethal force, other than in self-defense.171 Violations upon the right to life of protected persons172 are prohibited in non-international armed conflicts pursuant to common article 3 gc’s and article 4 (2) ap II. They are furthermore prescribed by the grave breaches provisions in the Geneva Conventions and Additional Protocol I which are also applicable to physicians.173 Thus, even though in situations of armed conflicts the protection of human life depends on the status of a person, physicians should nonetheless save lives. The respect for human life runs like a red threat through their legal rights and duties under international humanitarian law. Hence, in respect to the provision of medical treatment, this principle does not contradict international humanitarian law, yet needs to be interpreted accordingly. 169 Nota bene, even under human rights law lives may be taken when in an armed conflict and in accordance with international humanitarian law – thus not arbitrarily. Bertrand G. Ramcharan, ‘The Right to Life’, 30 Netherlands International Law Review, 297 (1983), p. 308–309. 170 The basic principle of respect for protected persons can be found in common article 3 gcs and articles 12 gc I and II, 14 gc III, 16 gc IV, 10 ap I and 7 ap II. The obligation concerning humane treatment can be found in common article 3 gcs and articles 12 gc I and II, 13 gc III, 17 gc IV, 10 (2) ap I, and 4, 5 (3) and 7 (2) ap II. 171 The prohibition of participation in hostilities is implicit in article 24 gc I and explicit in articles 13 ap I and 11 ap II. Pursuant to articles 22 (1) gc I and 13 (2) ap II physicians may carry small arms and use them in self-defense. 172 In the case of a non-international armed conflict and in the system of common article 3 gcs, protected are those persons ‘taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause’. 173 Articles 50 gc I, 51 gc II, 130 gc III, 147 gc IV and 85 ap I classify willfully killing a protected person, providing inhumane treatment, and the attack of civilian populations as grave breaches.

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The counterpart to the respect for human life is the prohibition of the use of medical knowledge for violations of the human rights and civil liberties of patients.174 This negative obligation can only be found in the Declaration, not in the Code. Civil liberties, an Anglo-Saxon notion of a guarantee of liberties of the individual as a citizen against his state, have no direct relevance in armed conflicts.175 Though human rights play a role in armed conflicts and most of the provisions concerning the wounded and sick in international humanitarian law correspond to human rights provisions, a direct principle of adherence was never explicated in Geneva Law and the use of medical knowledge for violations of human rights are not prohibited as such.176 Generally, the principle is relevant in armed conflicts where medical knowledge can, for instance, contribute greatly to the ‘effectiveness’ of torture or ill-treatment, both acts prohibited by international human rights and humanitarian law.177 Only the last aspect of the principle, that threats cannot justify such violations, is explicated in international humanitarian law. An essential innovation in this respect was introduced in articles 16 (1) ap I and 10 (2) ap II. Both establish that physicians cannot be coerced to violate medical ethics, medical rules for the benefit of the wounded and sick or Geneva Law. Thus, even under threat, as the Declaration demands, physicians should be able to maintain respect for human life and avoid using their professional skills in violation of human rights. The principle is reasonable where physicians pledge not to use medical knowledge to violate human rights, including the rights of persons under international humanitarian law. Yet where the principle refers to civil liberties, it is not relevant for international law. 174 Pursuant to the Declaration: ‘I will not use my medical knowledge to violate human rights and civil liberties, even under threat’. Previously, this principle read: ‘I will not use my medical knowledge contrary to the laws of humanity’. It was a ‘rhetorical call to decency rather than a specific injunction against specific practices’. James Welsh, ‘The Role of Codes of Medical Ethics in the Prevention of Torture’, in Neve Gordon & Ruchama Marton (eds), Torture – Human Rights, Medical Ethics and the Case of Israel (Zed Books, 1995), p. 49. The aspect of ‘even under threat’ was part of the principle of respect for human life. 175 Feldman defines civil liberties as ‘those which people enjoy by virtue of being citizens of a state rather than by reason of being merely members of the human society’. Human rights, on the other hand, he defines as ‘a legal term of art, referring to those rights which have been enshrined in international human rights treaties […] Such rights […] go beyond the scope of civil liberties, not at least because they apply to everyone subject to a state’s jurisdiction, not only to citizens of that state’. David Feldman, Civil Liberties and Human Rights in England and Wales (Oxford University Press, 2002), p. 4–5. 176 This is related to the development of the two areas of law, see Chapter 5 for an analysis of the applicability and value of the relevant human rights. 177 See the developments in recent history, as discussed in Chapter 1.

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In addition to these common principles, the more elaborate Code contains several further principles that are worthy of discussion. The Code determines that a physician shall show compassion and respect for a patient’s human dignity. The reference to human dignity is comparable to the articles in international humanitarian law that call for the humane treatment of protected persons.178 Still, human dignity is broader than mere humane treatment entailing a general level of respect for the other person’s inherent dignity. That all persons deprived of their liberty, including prisoners of war and the wounded and sick, should be treated ‘with humanity and with respect for their dignity is a fundamental and universally applicable rule’.179 Even though compassion is not explicitly called for in Geneva Law, the respect of human dignity is a reasonable requirement. Furthermore, a physician shall ‘respect a competent patient’s right to accept or refuse treatment’. This alludes to the principle of informed consent although curiously neither the Code, nor the Declaration at any point use the term ‘informed consent’.180 Still, the question of competency to give consent cannot sufficiently be addressed in a document as cursory as the Code and, hence, leaves many questions open for interpretation. This raises the question whether the Code’s simple allusion suffices to guide physicians on this matter, especially because neither the question of informed consent, nor the question of competency to give consent are addressed in international humanitarian law. To the contrary, international humanitarian law follows a paternalistic approach: physicians decide whether something is in the interest of a patient, not the patient herself.181 The only exception is that a patient has the right to 178 This principle in the Declaration was discussed above. In international humanitarian law, see articles 12 gc I and II, 13 gc III, 17 gc IV, 10 (2) ap I, and 4, 5 (3) and 7 (2) ap II. Rule 87 of the Customary International Humanitarian Law Study states that ‘[the] actual meaning of “humane treatment” is not spelled out, although some texts refer to respect for the “dignity” of a person or the prohibition of “ill-treatment” in this context’ and lists the necessary references. Henckaerts, et al. (eds), icrc Study Customary International Humanitarian Law Vol. 1: Rules, p. 307. The Preamble to the iccpr also recognizes the ‘inherent dignity and […] the equal and inalienable rights of all members of the human family’. Further, see the references to human dignity in articles 10 (1) iccpr, 5 (2) iachr, and 5 achpr. The latter two can be found in articles addressing the prohibition of torture and cruel, degrading or inhuman treatment. 179 Human Rights Committee, General Comment No. 21 – Human Treatment of Persons deprived of Liberty (Article 10), Doc. No. HRI/GEN/1/Rev.1 at 33 (10 April 1992). 180 On the principle of informed consent, see the discussion in Chapter 1. 181 An example of such a provision would be article 13 gc III determining that experiments are allowed when ‘justified by the medical, dental or hospital treatment of the prisoner concerned and carried out in his interest’.

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refuse surgical operations pursuant to article 11 (5) ap I. Partly, this paternalism can be explained by the exigencies of armed conflict: there will not always be time to fully inform a patient of the pending medical procedure and request his consent,182 partly it is a relic of an older conception of the physician-patient relationship.183 However, consent is difficult to obtain in all emergency situations, also in times of peace. This does not mean that the principle of consent should be forsaken. An attempt should be made to respect an individual’s informed consent as far as possible, in peace as in armed conflicts. Although the ethical principle is much broader than international humanitarian law and ‘the question of consent is essentially a secondary issue in comparison with the fundamental imperative of proper medical care for the wounded and sick’,184 the consent or lack thereof should influence physician’s professional decisions in all medical procedures, not only surgical operations, during armed conflicts.185 A physician shall also respect the patient’s rights and preferences. Rights include the human rights referred to in the Declaration – in the case of armed conflicts the fundamental human rights that cannot be derogated from.186 Arguably, the rights also include those concerning the wounded and sick under international humanitarian law which can never be renounced by protected persons.187 However, the formulation in the Code is weakened by the fact that rights are linked to preferences. ‘Preferences’ are alien to the treatment of the wounded and sick in international humanitarian law. During an armed conflict, there is a sense of emergency that does not leave space for preferences but rather requires fast decision-making and action. While a reference to preferences

182 Bothe believes this to be correct because ‘under battlefield conditions, it might well be impossible to do the necessary paperwork’ without considering that this may also be true in emergency situations in times of peace. Bothe, et al., New rules for Victims of Armed Conflicts, p. 116. 183 Ulf Schmidt & Andreas Frewer, ‘History and Ethics of Human Experimentation: The Twisted Road to Helsinki’, in Ulf Schmidt & Andreas Frewer (eds), History and Theory of Human Experimentation (Franz Steiner Verlag, 2007), p. 13. 184 Ibid. p. 153. 185 This seems to be supported by Kleffner who lists this principle as one of the medical personnel’s ‘primary obligations’ and Gunn and McCoubrey who state that ‘other medical procedures [than surgery] should surely also require consent’. Kleffner, ‘Protection of the Wounded, Sick and Shipwrecked’, para. 614; Gunn & McCoubrey, ‘Medical Ethics and the Laws of Armed Conflict’, p. 150. 186 For an analysis of the applicable human rights, see Chapter 5. 187 This provision can be found in articles 7 gc I, II and III and 8 gc IV.

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would not be appropriate in armed conflicts, a physician is legally, as well as ethically bound to respect human rights.188 Next to the obligation to respect life, as discussed above, a physician shall ‘act in the patient’s best interest when providing medical care’. Acting in the best interest of a patient can be referred to as a combination of the principles of beneficence and non-maleficence.189 In armed conflict, this is especially relevant concerning patients of an adversary party or patients in detention. Gunn and McCoubrey consider this requirement one of their basic principles of medical ethics in international humanitarian law.190 The principle of nonmaleficence is specifically anchored in the provisions addressing the prohibition of medical experiments and other unwarranted medical procedures.191 Overall, all medical treatment should be ‘indicated by the state of health’ of a patient. It can be surmised that medical treatment should be in her benefit.192 The Code determines that a physician shall ‘in situations when he is acting for a third party, ensure that the patient has full knowledge of that situation’. This principle is of great importance in armed conflicts where physicians are often employed by one of the parties to the conflict.193 Considering that all wounded and sick should ‘receive, to the fullest extent practicable and with the least possible delay, the medical care and attention required by their condition’,194 this means that any physician from whichever party to the conflict, whether civilian or military, could provide medical care. In the case where a physician is indeed part of the armed forces of one of the parties to the conflict, 188 Torrelli, ‘La Protection du Médecin dans les Conflits Armés’, p. 588. 189 More on fundamental principles of medical ethics in Chapter 1. 190 Gunn & McCoubrey, ‘Medical Ethics and the Laws of Armed Conflict’, p. 147–150. As does Kleffner, see Kleffner, ‘Protection of the Wounded, Sick and Shipwrecked’, para. 614. 191 Article 13 gc III requires that a medical experiment on a prisoner of war is ‘carried out in his interest’. The only other article mentioning the benefit of a patient is article 33 gc III determining that ‘[members of the medical personnel] shall continue to exercise their medical and spiritual functions to the benefit of prisoners of war’ (emphasis added). In these articles, the benefit of the patient is explicated. Article 11 ap I concerning unwarranted medical procedures does not refer to ‘benefit’ as such but implicitly requires that treatment should benefit a patient’s health. 192 This principle is drawn from the two requirements in article 11 (1) ap I. 193 Medical personnel is defined in article 8 (c), (e) and (k) ap I. See Chapter 2. The physicians addressed in article 11 ap I are generally military physicians treating protected persons who are in detention and who belong to the opposite party to the conflict. Bothe, et al., New rules for Victims of Armed Conflicts, p. 112. 194 Article 10 (2) ap I.

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this should be made clear to the patient. Especially in situations of dependency such as detention, should physicians clarify whose behalf they are acting upon and, preferably, also what the rules concerning confidentiality are.195 Only when this is clear to those in need of medical care, can a relationship of trust be possible. Although this is in line with the principles behind international humanitarian law, there is no legal provision in this respect. Lastly, physicians should ‘respect the local and national codes of ethics’. Respect could indeed be important – such a principle can be found in article 56 gc IV which addresses the duties of occupying powers concerning the health care system of occupied territories. In this respect, the provision determines that ‘the occupying power shall take into consideration the moral and ethical susceptibilities of the population of the occupied territory’ (emphasis added).196 However, respect does not imply assimilation because that would contradict the entire effort to find one set of principles of medical ethics, as considered here. The point is exactly that the protection of the wounded and sick should not depend on the treating physician and national ethics.197 Rather, a universal set of medical ethics should apply to all medical treatment in armed conflict – local or national ethics can be considered but should never be decisive. Overall, there are several areas, where the Declaration of Geneva and the International Code of Medical Ethics and international humanitarian law overlap. The principles where the overlap is reasonable and that add valuable protection to both patients and physicians in the Declaration are that the patient’s health should be the primary consideration of a physician and that physicians should not use their medical knowledge to violate human rights. The Code adds that physicians should always respect their patient’s human dignity and act to their benefit – which may at times mean taking no action at all –, that physicians should reveal to patients when and if they are acting for a third party, and certain requirements for confidentiality that could be useful in addition to those requirements in international humanitarian law, especially the requirement of informed consent should also guide medical 195 The principle of confidentiality and sharing of confidential information with third parties played a significant role in the ill-treatment in detention facilities during the ‘war on terror’. The principle as such and its alleged breach are scrutinized in Chapter 1. 196 The icrc Commentary states the following in this regard: ‘The purpose of the provision is to ensure respect for sentiments and traditions, which must not be disregarded. The occupation must not involve the sudden introduction of new methods, if they are liable to cause deep disquiet among the population’. Sandoz, et al. (eds), Commentary to the Additional Protocols, p. 315. 197 Gunn & McCoubrey, ‘Medical Ethics and the Laws of Armed Conflict’, p. 139.

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care in armed conflicts. That a patient should not discriminate between patients and should respect human rights and human dignity are principles that are noble but do not add additional value in armed conflicts because they are already sufficiently and abundantly regulated in international humanitarian law. Other aspects of the wma documents greatly diverge from Geneva Law. It is unreasonable to expect that the ‘preferences’ of patients should be respected in armed conflict where it is even a challenge to respect patient’s consent and that local and national ethics should be respected. The latter is understandable as it has been argued by many commentators as well, but the Additional Protocols explicitly refer to medical ethics as such, alluding that there are universal medical ethics. Hence, as they are incompatible with international humanitarian law and do not add value, these two principles should not be applied. ii The Regulations in Times of Armed Conflict Though not explicitly defined as such, the Regulations in Times of Armed Conflict by their form are an official wma declaration.198 Considering there is little literature on or analysis of the Regulations and the wma provides little information, what can be said is that they were first adopted in October 1956 and last amended in October 2012.199 Amendments in 2004 were an answer to a claim by Steven Miles that ‘medical personnel [at Abu Ghraib] evaluated detainees for interrogation, and monitored coercive interrogation, allowed interrogators to use medical records to develop interrogation approaches, falsified medical records and death certificates, and failed to provide basic health care’.200 In response, the wma amended the Regulations to highlight the importance of human rights and international humanitarian law, address the dual-loyalty conflict military physicians may face (article 1), and reiterate the unethical character of physicians involvement in interrogations and 198 World Medical Association, Regulations in Times of Armed Conflict (adopted by the 10th World Medical Assembly, Havana, Cuba, October 1956, as amended by the WMA General Assembly, Tokyo 2004, editorially revised at the 173rd Council Session, Divonne-les-Bains, France, May 2006, and revised by the 63rd WMA General Assembly, Bangkok, Thailand, October 2012). 199 With the 2006 revision ‘[the] wma also clarified advice in its Regulations in Times of Armed Conflict about physicians facing conflicting loyalties, confirming that their primary obligation is to their patients and that in all their professional activities, physicians should adhere to international conventions on human rights, international humanitarian law and wma declarations on medical ethics’. This is the only information about the revision that can be found on its website, World Medical Association Homepage. 200 Steven H. Miles, ‘Abu Ghraib: its Legacy for Military Medicine’, 364 The Lancet, 725 (2004), p. 728.

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torture (article 2 (d) and (e)).201 Unlike the Code and the Declaration, the Regulations address not only physicians but also other actors in armed conflict, for example governments, armed forces, combatants and media personnel.202 With the latest revision, the Regulations were divided into two parts: general guidelines and a code of conduct. The Guidelines contain several general paragraphs. The for the wma most fundamental principle concerning armed conflicts is that ‘medical ethics in times of armed conflict is identical to medical ethics in times of peace’.203 Implicit in this statement is the applicability of the Declaration of Geneva and the International Code of Medical Ethics in armed conflicts. It means physicians’ primary obligation should be to their patients even when faced with conflicting loyalties which is of particular relevance for military physicians. It also corresponds to the Declaration. The obligation to place considerations concerning a patient above all else is not explicated in international humanitarian law but that is in line with the humanitarian principles of the laws of war. Determining that physicians should adhere to ‘international conventions on human rights, international humanitarian law and wma declarations on medical ethics’ corresponds to the post 2004 approach of the wma. The reference to international legal documents as well as the wma’s own ethical documents demonstrates the importance of both sets of rules. However, although it might implicitly be required of physicians to adhere to human rights law in armed conflicts, it is not a duty under international humanitarian law. The paragraph addressing the identification of physicians and other medical personnel, to a certain extent conforms to articles concerning identification in Geneva Law.204 One difference is the open formulation ‘such as the Red Cross, Red Crescent or Red Crystal’ (emphasis added) by which the wma intends to include other humanitarian organizations providing medical care that use other emblems, for example Médecins sans Frontières.205 The red 201 The 2004 version of the Regulations can be found in ‘The World Medical Association Regulations in Times of Armed Conflict’, 50 World Medical Journal, 92 (2004). Lenzer quotes the then president-elect of the wma, Arthur Derse: ‘The wma is absolute right, ethics don’t change because you are in the military’. Jeanne Lenzer, ‘World Medical Association amends its Policy on Doctors’ Duty during Armed Conflict’, 329 British Medical Journal, 878 (2004). 202 See paragraphs 5 and 14 of the Regulations. 203 Paragraph 1 of the Regulations. 204 Paragraph 13 of the Regulations. For the relevant provisions in international humanitarian law, see Chapter 2. 205 The emblem of Médecins for Frontières can be seen on the organization’s website: www. msf.org.

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cross, crescent or crystal, however, still remain the internationally recognized symbols of medical personnel enjoying protection in armed conflicts.206 As Geneva Law is more detailed in this respect, the Regulations do not have additional value. Paragraphs 5, 8, 12 14 and 16 of the Regulations are addressed not to physicians but to governments, armed forces, combatants, media personnel, ‘and others’. The fifth paragraph calls upon ‘governments, armed forces and others in positions of power’ to comply with the Geneva Conventions – although not mentioned, probably also the Additional Protocols – ‘to ensure that physicians and other health care professionals can provide care to everyone in situations of armed conflict and other situations of violence’.207 The obligation not to punish or prosecute physicians in the eighth paragraph of the Regulations corresponds to articles 16 ap I and 10 ap II. According to the twelfth paragraph physicians should be provided with access to patients, medical facilities and equipment, as well as ‘patients in detention centers or prisons’.208 Furthermore, it is emphasized that physicians should be protected so as to be able to carry out their medical responsibilities freely, a reiteration of other paragraphs and parties to a conflict ‘must’ grant physicians ‘unimpeded passage’209 and ‘complete professional independence’. Addressing slightly different actors in armed 206 On the protective use of the distinctive emblem, see Kleffner, ‘Protection of the Wounded, Sick and Shipwrecked’, para. 628. 207 With the 2012 revision, every reference to armed conflict was amended to include ‘other situations of violence’. The paragraph is comparable to articles 24–26 gc I and 8 (c) and (e), 15 ap I and 9 ap II which establish the protection of medical personnel in armed conflicts. See fn. 238. 208 Such an obligation has only one equivalent in international humanitarian law: Article 15 (4) ap I. Access may be restricted if the provision of medical care is not ‘essential’ – a restriction that should be narrowly defined – and when access is not realizable due to security concerns. Sandoz, et al. (eds), Commentary to the Additional Protocols, para. 632– 634. There is no equivalent to this article for non-international armed conflicts. Despite this lacuna, Gunn and McCoubrey recognize a duty for states to provide medical facilities, yet they base this not on the wma’s Regulations but rather on the inherent requirements in an armed conflict. Gunn & McCoubrey, ‘Medical Ethics and the Laws of Armed Conflict’, p. 144–145. Nonetheless, as the access of medical personnel to patients is a prerequisite for their work in armed conflicts, this requires their access to medical facilities and equipment. Medical establishments, transports and units, as defined in article 8 (e) ap I, including the medical equipment, are protected under articles 19 gc I, 18 gc IV, 12 and 21 ap I and 11 ap II. 209 Article 15 (3) gc I ensures the free passage of all medical personnel for the removal of the wounded and sick of the armed forces from besieged or encircled areas, and article 17 gc IV ensures the same for civilian wounded and sick, the infirm, and maternity cases. An

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conflicts, the fourteenth paragraph of the Regulations addresses combatants and the media. They are called upon to respect ‘hospitals and health care facilities’.210 Furthermore, medical care and the provision thereof should never be used for ‘publicity or propaganda’211 and the privacy of the sick, wounded and dead, including political figures, must always be respected.212 In 2012, paragraph 16 was added to the Regulations which states that the wma’s support for ‘an international body’, possibly the icrc, which collects and disseminates data on assaults on physicians. States are called upon to investigate and prosecute such attacks. This is a political statement and has no relevance for the medical ethics of physicians in armed conflicts. Although these four paragraphs of the Regulations do not necessarily contradict international humanitarian law, they also add little to the intricate system of obligations in armed conflict that has been developed by international law over the last century. Two aspects are worth attention, namely that physicians be granted access to medical facilities, equipment and detention centers, and that physicians be guided by the principle of independence and this be safeguarded, as far as possible, by states. These two aspects would be reasonable, valuable additions to international humanitarian law. As far as principles of medical ethics applicable in armed conflicts are concerned, only those principles that do not contradict international humanitarian law and

exception applies to both situations, namely when ‘the encircled belligerent has the necessary hospitals and equipment within the encircled area to ensure that the wounded, sick, and other civilians in question are properly looked after’. Uhler & Coursier (eds), Commentary IV, p. 138. 210 Comparable to, see above in fn. 255. 211 Traditionally, the pictures of captured, tried or executed former monarchs or dictators are revealed to the public for a variety of reasons. Pictures of Saddam Hussein after his capture, depicting him being medically examined were published by the u.s. Army ‘for overriding needs of security – to demonstrate to the Iraqi people and the insurgents that Saddam Hussein was in fact in custody, which we believed was important to help quell the insurgency’. Pictures of Saddam Hussein clad in underwear were criticized by the icrc as a violation of his privacy and prohibited by international humanitarian law. See David E. Sanger & Alan Cowell, ‘Hussein Photos in Tabloids Prompt u.s. Call to Investigate’, New York Times (21 May 2005) and Bassem Mroue, ‘British tabloid publishes more Saddam photos’, Associated Press (21 May 2005). 212 Privacy as such is not established in international humanitarian law but the principle of respect clearly entails this aspect. Prisoners of war are to be protected of ‘public curiosity’. This implies respecting their privacy and the prohibition of (ab)using them for publicity. The icrc Commentary speaks of the prisoner’s ‘honor’. Preux (ed), Commentary III, p. 140. The dead should not be despoiled and ‘disposed of’ in a respectful manner. See articles 15–17 gc I, 18–20 gc II, 120 (4) gc III, 16 (2) and 130 gc IV, 34 ap I and 8 ap II.

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have additional value can legitimately be used to interpret medical ethics in the sense of the Additional Protocols. They are limited to the articles that address the relationship between a physician and those who require medical care in armed conflict. Articles that address other actors in armed conflicts or that contain duties for physicians beyond their medical duties do not add additional value necessary to substantively legitimize the wma. They can be disregarded in an effort to find universal medical ethics.213 The other paragraphs of the General Guidelines of the Regulations address physicians. The second paragraph restates the primacy of medical tasks over all other considerations: physicians are to ‘preserve health and save lives’. Though not stated as explicitly in the Geneva Conventions or Protocols, this is also the physicians’ task under international humanitarian law. The article then enumerates five actions the wma deems ‘unethical’.214 A comparison of the five prohibitions with international humanitarian law reveals the following. Firstly, medical procedures ‘not justifiable for the patient’s health care’ are also prohibited in article 11 ap I. Under international humanitarian law, physicians are legally bound to only carry out medical procedures if these are in the interest or to the benefit of the health of a wounded and sick person. Nonprophylactic, non-diagnostic, or non-therapeutic procedures are also legally prohibited. Secondly, the Regulations prohibit the ‘[weakening of] the physical or mental strength of a human being without therapeutic justification’. In general, international humanitarian law is not concerned with the weakening the strength of the wounded and sick. Yet endangering the physical or mental health or integrity of a protected person may, if the circumstances meet the requirements in article 11 (4) ap I, constitute a grave breach.215 Thus, although medical procedures without therapeutic justification should be prohibited, 213 Primarily in establishing the rules’ substantive legitimacy, their compatibility with international humanitarian law is especially important for them to have any practical value. However, their output value is highly uncertain due to the questionable legitimacy of the wma to make binding rules for others than its members. This was discussed above, concerning the other modes of normative legitimacy. 214 Kleffner includes all five of these prohibitions as ‘deemed unethical for medical personnel’, yet seems not to have paid closer attention to their compatibility with the laws of armed conflicts and their value. He also did not consider whether the wma can legitimately make these rules and claim their authority. Kleffner, ‘Protection of the Wounded, Sick and Shipwrecked’, para. 614. 215 In non-international armed conflicts, this prohibition can be found in article 5 (2)(e) ap II yet does not constitute a grave breach. For more details on the medical grave breach mentioned here, see Chapter 3. For a detailed analysis of article 5 (2)(e) ap II, see Chapter 2.

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the ethical prohibition in the second sub-paragraph is too broad. Legal certainty would require medical procedures to meet the legal standards. Thirdly, it is deemed unethical for physicians to ‘employ scientific knowledge to imperil health or destroy life’. Violations upon the lives of others are commonly prohibited by Geneva Law and can be prosecuted as war crimes. This includes medical involvement in experimentation. Nonetheless, a general prohibition of the employment of medical knowledge for acts that ‘imperil health or destroy life’ is not known to international humanitarian law. It is too vague to be of use in armed conflicts as it would imperil legal certainty. However, due to the importance of this issue and the lack of regulation on a legal level,216 it should be further developed. Fourthly, the use of personal information to facilitate interrogation is explicitly and separately listed as unethical. This is an innovation that can be traced to developments described in Chapter 1. It should be noted that the Regulations here do not refer to coercive interrogations: personal health information should not contribute to any kind of interrogation. Article 17 (4) gc III determines that ‘no physical or mental torture, or any other form of coercion, may be inflicted on prisoners of war to secure from them information of any kind whatever.217 Prisoners of war who refuse to answer may not be threatened, insulted, or exposed to unpleasant or disadvantageous treatment of any kind’. Medical knowledge could play a role in this respect. The ethical principle contains a much broader prohibition on a more specific subject. Despite greatly expanding the rules of international humanitarian law, this prohibition harmonizes with the spirit of it in strengthening the protection of those needing medical care: confidential medical information should not be used to coerce persons in interrogations. Fifthly, the list of 216 An example concerns the involvement of physicians in the development in both lethal and non-lethal weapons. Medical knowledge is highly important in the development of non-lethal weapons because only physicians can determine how much harm a person can bear without facing serious injury or death. For more information and an excellent, critical analysis of the legal questions concerning ‘non-lethal’ weapons, see David P. Fidler, ‘The International Legal Implications of “Non-Lethal” Weapons’, 21 Michigan Journal of International Law, 51 (1999). More generally, see also Sidel & Levy, ‘PhysicianSoldier: A Moral Dilemma?’, p. 305; Robin M. Coupland, ‘The Effect of Weapons on Health’, 347 The Lancet, 450 (17 February 1996); and Robin M. Coupland, ‘“Non-lethal” Weapons: Precipitating a New Arms Race’, 315 British Medical Journal, 72 (1997), p. 72. For a position in favor of physicians involvement in the development of weapons, especially ‘non-lethal weapons’ see Michael L. Gross, ‘Medicalized Weapons & Modern War’, Hastings Center Report, 34 (2010). 217 This bars interrogators from questioning regarding military information, but also personal information must not be given. Preux (ed), Commentary III, p. 174.

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unethical behavior includes condoning, facilitation of, or participation in torture or any other cruel, inhuman or degrading treatment. The prohibition of facilitation of or participation in torture and ill-treatment218 complies with the prohibition of torture and inhuman treatment which binds everybody, including physicians, under Geneva Law219 and also under general human rights law. Depriving a person requiring medical care of such care for a certain purpose, would be an intentional omission and, if carried out by the physician herself with a specific intent, fall under the prohibition of torture.220 Condoning such practices, however, does not fall under the legal prohibition.221 The condonation of torture by physicians means another person is carrying out the torturous act and the physician merely ‘[forgives] or [overlooks] (an offence), so as to treat it as non-existent’.222 Only ‘active’ omissions are prohibited in international humanitarian law, for example willfully leaving the wounded and sick without medical assistance or care.223 Although prohibiting the condonation of torture would be ethically desirable because it would lead to more activism by physicians rather than silent acceptance, it would be too wide a prohibition to meet the requirements of legal certainty. It is already difficult to establish whether an act constitutes torture, it would be even harder to establish which actions should be characterized as condoning.

218 Inhuman treatment, in human rights law, includes cruel and degrading treatment. See Nowak, ccpr Commentary, p. 160. International humanitarian law should be interpreted to include these aspects as well. See a detailed discussion in Chapter 5. 219 The general opinion is that, contrary to article 2 cat, it is customarily accepted that private actors, acting in a non-official capacity can also commit the war crime of torture or cruel, inhuman or degrading treatment. See Human Rights Committee, General Comment No. 20 – Torture or Cruel, Inhuman or Degrading Treatment or Punishment (Article 7), Doc. No. HRI/GEN/1/Rev.1 at 30 (10 March 1992), para 2; and the case law icty Kunarac Trial Judgment, para. 496; icty Kunarac Appeal Judgement, para. 148; icty Krnojelac Trial Judgment, para. 187. 220 Manfred Nowak & Elizabeth McArthur, The United Nations Convention against Torture – A Commentary (Oxford University Press, 2008), p. 66. 221 Neither the iccpr, nor the Convention against Torture list the modes of commission, neither do the icty or ictr Statutes or the Rome Statute. All these documents refer to ‘an act’ of torture by which it can be inferred they mean active participation. Nowak explicitly refers to an ‘active undertaking’ as a requirement for establishing torture under article 7 iccpr. Nowak, ccpr Commentary, p. 161. 222 The definition of condonation is taken from The Oxford Dictionary of English. 223 Articles 12 gc I and 12 gc II. Such omissions are not included in the grave breaches provisions, with the exception of the medical grave breach in article 11 (4) ap I which explicitly includes willful omissions.

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The third paragraph of the Regulations concerns ethical standards in research. Here, the wma’s Declaration of Helsinki provides more detail even though the Regulations provide rudimentary protection for potential research subjects. Not only do all ‘standard ethical norms’ apply, but the Regulations also forbid all ‘research involving experimentation on human subjects’, namely all persons in detention, whether civilian or military, and civilians in an occupied territory. Even though experiments are generally prohibited in international humanitarian law,224 there are instances where experimental treatment is allowed.225 While the Regulations thus strictly prohibit ‘research involving experimentation’ with human subjects, the same is not strictly prohibited under international humanitarian law. Yet as the requirements under which such experimentation would be justified under international humanitarian law will most probably never be met, essentially both international humanitarian law and the Regulations prohibit non-therapeutic experiments on protected persons. However, the group of persons protected under the Regulations is too limited. The enumeration only refers to ‘persons deprived of their liberty’. In international humanitarian law wounded and sick combatants are also protected against unwarranted medical experimentation.226 Hence, several aspects of paragraph 3 of the Regulations would have to be amended in order to be compatible with international humanitarian law: the prohibition would have to be specified to address non-therapeutic research and the group of persons protected would have to include the wounded and sick. The fourth paragraph of the Regulations recognizes physicians’ duty to treat all patients with humanity and respect. Even though international humanitarian law neither explicitly addresses physicians nor speaks of a ‘medical duty’, it calls for respect for all protected persons, which always includes the wounded

224 Articles 12 gc I and II, 13 gc III, 32 gc IV, and 11 (2) ap I prohibit biological and also medical and scientific experiments on protected persons. Articles 50 gc I, 51 gc II, 130 gc III, and 147 gc IV classify biological experiments as grave breaches. These provisions should be taken to include scientific and medical experiments as well. 225 Under certain conditions, therapeutic experiments to the benefit of the person can be justified. See article 13 gc III and article 32 gc IV which allows medical or scientific experiments if ‘necessitated by the medical treatment of a protected person’. Furthermore, article 11 (2) ap I which prohibits medical experiments on persons in the power of an adversary also contains the exception when they are carried out in the interest of the person and compatible with generally accepted medical standards. For an elaborate discussion, see Chapter 2. 226 See articles 12 and 50 gc I and 12 and 51 gc II.

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and sick,227 and for humane treatment.228 Furthermore, the principles of impartiality and non-discrimination, postulated in this paragraph, both also correspond to international humanitarian law.229 Particularly the principle of non-discrimination is essential to international humanitarian law where it evolved from an enumeration of grounds for discrimination to one legitimate reason for differentiation between patients, namely medical grounds.230 This ‘medical’ exception is lacking in paragraph 4 of the Regulations although it is highly relevant in all emergency medical situations, especially armed conflicts. It was, however, included in paragraph 11 of the Regulations which directly correlates to it. The first sentence of paragraph 11 of the Regulations contains the obligation that physicians in emergencies be ‘required to render immediate attention to the best of their ability’. This is a requirement that is self-evident in the situation of an armed conflict. Most situations where medical care is required are emergencies and most physicians, except civilian physicians who work in civilian hospitals, are in the area of conflict precisely to provide emergency medical care. The article then reiterates that the wounded and sick, both civilian and combatant, should be treated equally, receive prompt care, and not be differentiated between except based on ‘clinical need’. Systematically, it is unclear why the two articles were separated. Taken together, the two articles establish that all wounded and sick be respected, treated humanely, provided with the relevant medical care and not discriminated against on other than medical grounds. They are in conformity with international humanitarian law but do not have additional value over the existing rules of international humanitarian law. Pursuant to the sixth paragraph the same rules of confidentiality should apply in times of armed conflict and other situations of violence, as in peacetime. If a patient ‘poses a risk to other people’, physicians should ‘weigh their obligation to the patient against their obligation to other individuals threatened’.231 Articles 16 (3) ap I and 10 (3–4) ap II address confidentiality and nondenunciation in Geneva Law and provide that confidentiality in international humanitarian law can be breached when this breach does not ‘prove harmful 227 See articles 12 gc I and II, 14 gc III, 6 gc IV and 27 gc IV. 228 Humane treatment of all protected persons is one of the basic humanitarian principles. It can be found in articles 12 gc I and II, 13 gc III, and 5 (3) and 27 gc IV. 229 Impartiality is one of the core principles of the icrc and implicitly expected of all physicians in armed conflicts. The principle of impartiality can be found in article 4 (1)(a) of the Statutes of the International Committee of the Red Cross as discussed in Chapter 1. 230 See the discussion of this principle above concerning the Code above. 231 The article is comparable to the principle in the Declaration and the Code.

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to the patients concerned or to their families’.232 The Regulations only allow for an exception to the principle of confidentiality when the patient poses a security threat to others. International humanitarian law is thus less absolute than the principle of confidentiality postulated in the Regulations and leaves discretion to the physician. The Regulations better protect the confidentiality of protected persons, however it would have to be more closely determined what constitutes a risk to other people for the protection to be applicable. As a new paragraph, paragraph 15 of the Regulations raises physicians’ awareness for ‘unscrupulous practice and the distribution of poor quality/ counterfeit materials and medicines’. It calls upon physicians to ‘attempt to take action on such matters’. There is no equivalent to this paragraph in international humanitarian law. International humanitarian law does not contain a provision concerning the quality of medical care as such, only where it impacts on the protection of the wounded and sick. Moreover, it is not clear what the Regulations define as ‘unscrupulous practice’. The seventh paragraph determines that medical privileges and facilities should not be used for other than medical purposes. This is an appeal both to medical personnel itself, as well as the parties to a conflict. On the one hand, physicians and other medical personnel who enjoy the ‘privilege’ of protection should refrain from participating in hostilities. In international humanitarian law, all medical personnel is protected unless when committing ‘acts harmful to the enemy’233 or directly participating in hostilities.234 On the other hand, parties to a conflict should not abuse medical facilities for military purposes.235 The seventh article, though less specific than international humanitarian law, complies with the latter. The consequence of violations against this principle are not clear from the Regulations, but are quite clear in the context of the Geneva Conventions and Additional Protocols: the loss of protection. Pursuant to the eighth paragraph, physicians have ‘a clear duty to care for the sick and injured’. This is not a duty under international humanitarian law 232 Denunciation is in principle prohibited unless national legislation of the person carrying out the medical activity determines otherwise. Sandoz, et al. (eds), Commentary to the Additional Protocols, para. 686 et seq. 233 See articles 24–26 gc I and 8 (c) and (e) ap I, 15 ap I and 9 ap II. 234 ‘Acts harmful to the enemy’ encompasses a wider category of acts than ‘hostile acts’ which cause the loss of protection of the wounded and sick. Kleffner, ‘Protection of the Wounded, Sick and Shipwrecked’, para 612. 235 See articles 19 and 21 gc I, 13 ap I, and 11 (2) ap II. This can additionally be inferred by the formulation in several articles in Geneva Law that define medical personnel as persons exclusively engaged in providing medical care and some, limited other services. See articles 24–26 gc I and 8 (c) and (e) ap I.

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but a prerequisite for protection. Only when ‘engaged in the search for, or the collection, transport or treatment of the wounded and sick, or in the prevention of disease’ is medical personnel protected.236 Unlike international humanitarian law which uses the term ‘wounded and sick’,237 the Regulations call for the care of the ‘sick and injured’. Either this is a flawed reference or, alternately, the divergent formulation was intentional. The latter would be regrettable because the adjustment to the language of international humanitarian law would have contributed to the credibility of the Regulations. Furthermore, the eighth paragraph determines that the provision of medical care should not be impeded or treated as an offense and that physicians should not be ‘prosecuted or punished for complying with any of their ethical obligations’. This part of the article of the Regulations, though worded differently, finds an explicit equivalent in Geneva Law.238 Regrettably, the Regulations also contain an open formulation like the provisions in the Additional Protocols: where the latter refer to ‘medical ethics’, the former speaks of ‘ethical obligations’. Neither document defines such obligations or requirements leading to exactly the question that is being answered in this Part. Two articles concern the advocacy role of physicians, namely paragraphs 9 and 10 of the Regulations. Firstly, physicians should press their governments for the necessary infrastructure for adequate health care and its protection ‘where conflict appears to be imminent and inevitable’. Specifically, the Regulations list potable water, adequate food and shelter – all human rights contained in the icescr.239 They are also prerequisites for the right to health.240 Secondly, the tenth article extends this requirement to include that physicians should ‘ensure that authorities are planning for the repair of the public health infrastructure in the immediate post-conflict period’. Advocacy as a duty is not contained in international humanitarian law. However, parties to a conflict have

236 See articles 24–26 gc I, yet also 8 (c) and (e) ap I. 237 A definition of the wounded and sick can be found in article 8 (a) ap I, but the term was introduced in the Geneva Conventions, as established in Chapter 2. 238 See articles 18 (3) and 22 (5) gc I, 16 (1) ap I and 10 (1) ap II. 239 The right to an adequate standard of living as found in article 11 icescr contains the right to adequate food and housing. The cescr in a General Comment surmised that the right to an adequate standard of living furthermore entails the right to water. See Committee on Economic Social and Cultural Rights, General Comment No. 15 – The Right to Water (Articles 11 and 12), Doc. No. E/C.12/2002/11 (20 January 2003). 240 cescr, General Comment No. 14 – The Right to the Highest Attainable Standard of Health (Article 12), Doc. No. E/C.12/2000/4 (11 August 2000), para. 4 and 11.

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certain obligations, particularly in situations of occupation.241 Nevertheless, this does not concern medical personnel. What is more, international humanitarian law does not address post-conflict challenges. This recommendation would thus exceed the legal obligations of both physicians as well as parties to a conflict. Such an obligation would have to be sought in human rights law.242 As these two articles have little to do with the patient-physician relationship, they should be seen as purely hortatory having no practical value for physicians in armed conflicts. The extensive Code of Conduct in the Regulations contains a list of obligations physicians ‘must’ obey and a list of obligations they ‘should’ adhere to. The former contains obligations that concern the wounded and sick, advocacy obligations, a prohibition of non-consensual experimentation and an obligation to denounce ‘unscrupulous practice’. A last obligation is to ‘recognise that there are other situations where health care might be compromised but in which there are dilemmas’. This rather cryptic obligation is not explained. The obligations physicians ‘should’ adhere to are also varied. Regrettably, the refusal of an illegal or unethical obligation was listed in this section. Furthermore, physicians are called upon to consider dual-loyalties, to denounce torture and ill-treatment, to respect colleagues, advocate for the medical needs of persons requiring care and consider ways to shorten conflicts. The Code of Conduct again provides a variety of obligations that are addressed to patients, fellow physicians and authorities. It is regrettable that this is, like the Guidelines, rather chaotic and repetitive. Due to the number of obligations, namely twenty-eight, the Code of Conduct loses some of its focus. An extensive analysis of each obligation would be beyond this book. A few concluding observations on the Regulations are in order. The structure of the declaration is poor. Provisions are repeated in different articles, for example the principle of non-discrimination and the requirements of physicians to be impartial and independent. The articles are not listed in an orderly fashion but seem to have been placed in random order irrespective of addressee or content. Linguistically, whereas some obligations in the Code of Conduct 241 The occupying power has a duty to ensure and maintain medical and hospital establishments and services, food and medical supplies, and clothing, bedding, means of shelter, other supplies essential to the survival of the civilian population in an occupied territory. Articles 56 and 55 gc IV and 69 ap I. This duty has to be fulfilled ‘to the fullest extent of the means available’ so that the needs of the civilian population in occupied territories be satisfied. Article 14 ap I. 242 The relationship between human rights and international humanitarian law is further explicated in Chapter 5.

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comply with Geneva Law, the Guidelines in the Regulations deviate from it. Wherever Geneva Law refers to ‘medical’ facilities, establishments, personnel or such, the Regulations alternate between ‘health’ and ‘medical’ care. Where the common term in all Geneva documents is the ‘wounded and sick’, the Regulations refer to the ‘sick and injured’ and ‘sick and wounded’. Where the Regulations call upon governments, armed forces or combatants, they seem oblivious to the fact that in armed conflicts, when international humanitarian law applies, the laws of armed conflict refer to ‘parties to a conflict’, whether states are involved or not.243 This is precisely to avoid defining who the parties to a conflict are in a certain situation so obligations should be addressed either to all actors in an armed conflict, to parties to a conflict, or to states only.244 These inconsistencies suggest that the drafters within the wma were either not fully aware of obligations under and implications of international humanitarian law or deliberately used other formulations. Overall the document, despite calling for adherence to international humanitarian law, seems unaware of the laws of armed conflict. Even though the post-conflict period is essential in order to restore a country after an armed conflict and especially to restore its medical infrastructure, the international humanitarian law, like the Regulations, deals with armed conflicts where questions of relevance in post-conflict not yet play a role. Also, the advocacy role of physicians is not pertinent for their actions in caring for the wounded and sick. Though no paragraph of the Regulations blatantly contradicts the laws of armed conflict, not all have a material equivalent in international humanitarian law, like the protection against publicity. Other requirements for physicians in the Regulations are not realistic, such as the duty to refrain from weakening a person’s strength, the prohibition of the use of scientific knowledge to imperil health or destroy life, and the prohibition of the condonation of torture. Especially the latter, though possibly desirable, would imperil legal certainty in armed conflicts. Furthermore, the general point of departure that physicians have a general ‘duty’ to provide medical care is implicit in international humanitarian law – medical personnel is present in armed conflicts precisely for this task and loses its protection if it becomes actively involved in hostilities. Another obligation of the Regulations, that physicians adhere to ‘international conventions on human rights’, is not directly compatible with Geneva Law. Human rights, as established in Chapter 5, play a role in armed conflicts yet as their application 243 On the choice for ‘parties’ to address both the high contracting parties and others involved in conflicts, see Pictet (ed), Commentary I, p. 51. 244 Additionally, a reference to ‘states’ as the term most used in international law would have increased its credibility.

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depends on many factors, a duty to adhere to international human rights law is illusory. Several of the provisions calling on actors other than physicians also lack additional value. The question arises whether the wma’s call on states to adhere to international humanitarian law and protect physicians is necessary. As there are other forums that call on states to respect Geneva Law, it would have been preferable had the wma concentrated on physicians and their duties. Calling on the media and on combatants also does not befit an ethical declaration for physicians. Moreover, the articles that address the parties to the conflict or others cannot be accepted as applicable in armed conflicts for their output is highly questionable. Although they may not violate the laws of armed conflict, the above provisions do not provide a valuable contribution to the rules governing physicians’ behavior in armed conflicts.245 Other aspects of the Regulations correspond to international humanitarian law, for example that physicians should not violate international humanitarian law, identify themselves, not discriminate between patients except on medical grounds, not abuse their privileges, and be guided in the provision of medical care by the principles of respect and humanity. Furthermore the requirement that physicians not be punished for medical activities is consistent with articles 16 ap I and 10 ap II. These Regulations are not flawed but superfluous as international humanitarian law, with its almost 150 years of history, has provided more efficient solutions to such problems.246 A handful of provisions in the Regulations add valuable meaning to international humanitarian law and should apply in armed conflicts. These are the basic principle that medical ethics in armed conflict are equal to those in times of peace. Concerning the physician-patient relationship, they establish that the physician’s priority is the patient and not his military duties, that the confidentiality of medical information should be guaranteed except when the patient presents a security threat, that medical knowledge should not be used to facilitate interrogations or torture, and that physicians should not participate in torture or perform non-therapeutic procedures and medical experiments.247 Independence and impartiality of physicians should be general principles of guidance. All other provisions have an equivalent in international 245 The provisions that should be rejected for a variety of reasons are, complete or parts of, articles 1, 2 (b), (c), (e), 5, 9–12, and 14 of the Regulations. 246 The provisions that are compatible with international humanitarian law but where the latter provides better protection are articles 1, 4, 7, 8, and 13 of the Regulations. 247 The provisions that have valuable, additional meaning are articles 1, 2 (a), (d), (e), 3 and 6 of the Regulations.

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humanitarian law that in most instances is more detailed, better adapted to the situation of an armed conflict and provides sufficient ethical guidance to physicians working in armed conflicts. iii Evaluation of the Relevant wma Documents The examination of the Declaration of Geneva, the International Code of Medical Ethics and the Regulations in Times of Armed Conflict has demonstrated that the wma has established a broad framework for physicians, especially in times of peace but also in armed conflicts. Many provisions are compatible with international humanitarian law. There are no blatant discrepancies although in several aspects, international humanitarian has developed more detailed rules of guidance for physicians than the wma documents. This concerns especially those rules that Gunn and McCoubrey recognized as the ‘basic principles’ of international humanitarian law, for example the principle of non-discrimination or the necessity of emergency medical care.248 The substantive output of these documents is, hence, not reasonable and valuable for all provisions of the documents. This critique is particularly directed at provisions that determine appropriate behavior for other actors in armed conflicts, not physicians. Only a small percentage of rules postulated by the wma in its Declaration, Code, and Regulations are valuable and reasonable and thus increase the wma’s effectiveness in solving problems concerning physicians in armed conflict.249 Those rules that are both compatible with international humanitarian law and reasonably expand the protection of those in need of medical care when being medically treated in the spirit of international humanitarian law by explicating rules of medical ethics for physicians carrying out their professional activities during armed conflict, can be seen as a valuable addition to the present system of the laws of armed conflict. This conclusion concerns more provisions of the Declaration and the Code because they are addressed to physicians only, but it also includes some provisions of guidance in the Regulations. In summary, the following rules of medical ethics can be considered reasonable and valuable additions to international humanitarian law. A first and general rule that is a valuable addition and clarification is that medical ethics are the same in times of peace as in times of armed conflict. This assumption 248 Gunn & McCoubrey, ‘Medical Ethics and the Laws of Armed Conflict’. 249 A surprising omission in the Declaration, Code, and Regulations is that the watch-dog function of physicians, which plays a large role in the Declarations of Helsinki and Tokyo, does not figure into the duties of physicians. It could enhance the position of and respect for physicians in armed conflicts.

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forms the basis of the other rules. The health of those in need of medical care should be the primary consideration for physicians who should prioritize their patients and those they care for even over their military duties. The wma thus decides the dual-loyalty conflict in favor of the medical and against military duties which is reasonable and adds valuable protection to protected persons. This protection is then explicated by further provisions, namely that physicians should respect their patient’s inherent human dignity and should at all times act to the benefit of those in need of medical care. They should, if reasonably possible, require informed consent before conducting medical procedures and respect the confidentiality of personal, medical information, except when the person presents an imminent threat to others. In that case, confidentiality may be breached. If the confidentiality cannot be guaranteed because the physician is acting on behalf of a third party or in all other situations where the physician’s dependence may be relevant, this should be revealed to those they interact with, particularly when interacting with detained persons. Although implicit in international humanitarian law, it is important to clarify that physicians should not use medical knowledge to violate human rights, to facilitate interrogations or torture, participate in torture, or perform non-therapeutic procedures or experiments.250 3

Evaluation of the Legitimacy of the wma Documents

Even though the icrc and several legal scholars refer to the wma’s documents to interpret medical ethics in the Additional Protocols, its documents can only play a role in the laws of armed conflicts when it can be established that the wma can legitimately create authoritative, universal rules for physicians. This is even more important because a normative status of the wma’s documents was denied. The examination has answered the question whether the wma can legitimately claim that its three most relevant documents for physicians in armed conflicts contain ethical norms that can be used to fill the open, extralegal term in international humanitarian law and provide the principles of medical ethics that bind physicians in armed conflicts. That answer is negative.

250 The documents neglect to specify which consequences a violation of wma declarations should have. Here, the un Principles offered a more valuable contribution by clarifying that a ‘contravention of medical ethics’ should entail accountability. un ga, Resolution 37/194 Principles of Medical Ethics, as discussed in Chapter 7.

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There is no consent, neither of addressees such as states, nor of the medical profession worldwide, and not even of the wma members themselves for the wma to make a claim to authority in its codes and guidelines. The Articles and Bylaws do not claim that members, upon joining the wma, agree to be bound by the wma. Ultimately, the origin of the organization – being for and by physician – can thus not legitimate its claim to authority that appears in all of its documents. If anything, the wma can only legitimately bind its members, the national medical associations. They can then bind their members, the physicians who are members of national medical associations. This would, however, be a fairly strained chain of legitimacy. Neither can its procedures and structure provide legitimacy. The three main procedural and structural deficits, an imbalance in power between the decision-making organs, unequal participation and voting rights, and misrepresentation in the different forums based on financial differences between medical associations, lead to procedures that cannot be qualified as adequate or fair. Furthermore, the analysis of the substantive value of the wma’s most important documents for physicians in armed conflict to establish whether their output could legitimize its claim to authority has also led to a negative answer. Although a handful of rules of guidance in the Declaration, Code and Regulations are reasonable and valuable additions to international humanitarian law that expand the existing rules to include more specific principles of medical ethics, this cannot be said for the majority of wma rules. The overall output is not sufficiently valuable and reasonable to substantively legitimize the wma’s claim to authority to provide binding rules for physicians. In conclusion, it can be surmised that the wma cannot legitimately claim to make authoritative rules for physicians worldwide in the Declaration, the Code and the Regulations. Only few of the rules promulgated by the wma provide additional guidance to physicians. The blanket acceptance in literature and by the icrc that the term medical ethics be filled by the wma’s documents cannot hide the fact that many rules do not fit into the system and cannot be considered as binding in armed conflicts. 4 Legitimacy through Reference in the icrc Commentaries The icrc Commentary devotes several paragraphs to the issue of medical ethics, both in the discussion of article 16 ap I and regarding article 10 ap II. In addressing the international rules of medical ethics, Sandoz refers to the rules and guidelines by the wma, namely the Declaration, the Code, and the Regulations in Times of Armed Conflict. Acknowledging the non-binding nature of the wma documents, the Commentary states:

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Nevertheless, they constitute a valuable instrument of reference and no one contests the principles on which they are laid down. There is no doubt that these are the rules of medical ethics referred to in the context of the provision under consideration here.251 It, furthermore, surmises that there is an ‘essential maxim’ one can extract from the documents, guidelines and professional codes: an impartial and pure concern for the wounded.252 As the icrc Commentaries so prominently refer to the wma’s documents, the questions needs to be asked whether, despite the findings in this chapter, the reference by the icrc could give the documents the required legitimacy and justification. According to their editors, the Commentaries are a ‘scholarly work’ and do not represent the opinion of the icrc.253 This is also repeated in literature which sees them as ‘contributions to academic scholarship’.254 As all commentaries to legislation, they provide guidance, in casu on the application of international humanitarian law. In areas where there is uncertainty, as is the case with the open terms discussed here, the Commentaries may contribute to finding a common interpretation or determination of the open terms, or may indicate where a definition can be found.255 The icrc’s expertise and experience make its Commentaries to the Additional Protocols invaluable contributions to this effort.256 They can assist in finding the rules of law, although they are not sources of law themselves.257 In this sense, the icrc Commentaries are ‘very influential’258 and possibly even ‘authoritative’.259 251 252 253 254

Sandoz, et al. (eds), Commentary to the Additional Protocols, para. 656. Ibid. para. 653–659. Similarly concerning article 10 ap II, para. 4688. Ibid. Foreword by Alexandre Hay. Gasser states that ‘The icrc’s contributions to academic scholarship include the publication of comprehensive commentaries on the various Geneva law treaties’. Hans-Peter Gasser, ‘International Committee of the Red Cross’, in Rüdiger Wolfrum (ed), Max Planck Encyclopedia of Public International Law (Oxford University Press, 2012), para. 14. 255 They could even be considered as part of ‘the teachings of the most highly qualified publicists of the various nations’ – a subsidiary means for the determination of rules of law pursuant to article 38 (1)(d) icj Statute. Zimmermann, et al. (eds), icj Statute Commentary, p. 791. 256 They are also often quoted in this book and by other scholars, see Kleffner, ‘Protection of the Wounded, Sick and Shipwrecked’; McCoubrey, International Humanitarian Law. 257 André Oraison, ‘Réflexions sur “la doctrine des publicistes les plus qualifiés des différentes nations”’, 24 Revue Belge de Droit International, 507 (1991), p. 514; Zimmermann, et al. (eds), icj Statute Commentary, p. 784. 258 Aust, Modern Treaty Law and Practice, p. 238. 259 Shabtai Rosenne, Practice and Methods of International Law (Oceana Publications, 1984), p. 50–51.

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Nonetheless, their status in scholarship and practice is difficult to determine.260 The same scholar who called them ‘authoritative’ also makes the point that readers of the Commentaries should be aware of ‘the presence of an element of subjectiveness’. Moreover, they are only sparsely quoted in international trials, for example by the icty or ictr. Although many accept the icrc’s personality in international law, they believe that its powers are limited to that which is required to carry out its mandate ‘conferred on it by the international community through the Geneva Conventions and by the Statutes of the Movement’.261 As the Commentaries are neither sources of law, nor drafted by states, and are intended to provide guidance, their interpretation by itself cannot be binding. It would be a far cry to say that through a reference in an interpretative document drafted by an international organization the documents of another non-governmental organization would gain legitimacy. Even more so because the Additional Protocols themselves do not refer to the wma. Though the icrc Commentaries can be followed in many instances and often provide scholars and practitioners with the relevant interpretation and guidance, they cannot be followed in their reference to the wma for the reasons laid out in this chapter. Their reference alone cannot solve the legitimacy deficits of the wma. However, there is one caveat. The reference can be taken as a reference to the ‘principles on which [the wma documents] are laid down’262 and not to the documents themselves. This would then also complement the conclusion of this chapter that there are certain reoccurring, basic ethical principles that form the basis for the wma’s documents. D Conclusion In its documents, the wma has provided a valuable indicator of the principles of medical ethics relevant in times of peace as well as in armed conflicts. Nevertheless, a (dynamic) reference to the wma in articles 16 ap I and 10 ap II cannot be justified.263 Although the wma is the only supra-national forum in which physicians from different countries and backgrounds adopt guidelines 260 An in-depth study of the status of the icrc Commentaries would be desirable, especially in view of recent efforts to modernize them. 261 Gasser, ‘International Committee of the Red Cross’, para. 25. 262 See Sandoz, et al. (eds), Commentary to the Additional Protocols, para. 656. 263 All the more so as all wma documents are reviewed regularly, see Chapter 4.6 of the Procedures and Operating Policies.

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regarding medical ethics, the examination has demonstrated that its members have adopted statements and declarations that cannot be considered as legal but rather as moral documents of guidance to physicians. Despite the fact that most legal scholars would agree with the conclusion that the wma documents have no legal value and can only have influence as ethical guidelines, the icrc and other legal scholars are nonetheless convinced that the wma is the organization to look to for principles of medical ethics to give substance to the reference to medical ethics in international humanitarian law. Many legal scholars jump to the conclusion that wma rules are ‘widely recognized and accepted as international recommendations by the health professions’.264 The above examination cannot support this preposition concerning the Declaration of Geneva, the International Code of Medical Ethics and the Regulations in Times of Armed Conflict. These documents are recommendations by physicians and predominantly for physicians. Those who have adopted these recommendations hardly represent the medical profession. The ninetyeight medical associations represented in the wma do not sufficiently support the claim that the wma has the authority to make rules for physicians worldwide In particular, the reference to medical ethics in the Additional Protocols cannot be an exclusive reference to rules proclaimed by the wma because of its legitimacy deficits. As demonstrated, neither the origin of the organization and its rules, nor its deficient procedures can provide the relevant legitimacy. The organization would have to change its procedures to be more adequate and fair in order for them to exert legitimacy. Furthermore, its output can also not substantively legitimize its rules. Although some ethical principles are reasonable and have additional value to the provisions of international humanitarian law, others are superfluous as they attempt to regulate affairs that are contained in more detail in international humanitarian law itself or do not concern the physician-patient relationship. The principles which are reasonable and provide additional value are too few to legitimize three complete documents. Despite the fact that several valuable and reasonable principles can be drawn from the wma’s Declaration, Code and Regulations overall the output cannot legitimize the organization’s claim to make binding rules for physicians worldwide. The principles of medical ethics proclaimed in documents by the wma are not the medical ethics that should guide physicians in armed conflict according to international humanitarian law. 264 Beigbeder, The Role and Status of International Humanitarian Volunteers and Organizations – the Right and Duty to Humanitarian Assistance, p. 339–340.

part 4 Conclusion

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Conclusion, Recommendations and Outlook As the experiences of the early 21st century have demonstrated, the role of physicians in armed conflict still causes controversy. Not only are physicians involved in saving lives, as was demonstrated in recent conflicts by physicians in the hospitals in Mazar-i-Sharif, Gaza or Aleppo, but they are also, at times, involved in acts that can be characterized as violations of medical ethics or medical war crimes. An example is the participation of physicians in torturous interrogations of detained persons in armed conflict as it occurred in u.s. detention facilities or the alleged ill-treatment of detainees in hospitals that is claimed to occur in Israel and Syria.1 The role of physicians in armed conflict and their boundaries is thus not an issue of the past to be limited to the atrocities committed in the name of science in World War II. It should be addressed continuously. To provide realistic rules for physicians’ professional behavior in armed conflict, international humanitarian law has provided a legal framework of their rights and duties. Yet, the protection of the victims of armed conflict and those who provide them with medical care can still be optimized through medical ethics. A

Conclusion on Medical Ethics in International Humanitarian Law

The examination has demonstrated that all physicians, whether military, civilian, or working for humanitarian aid organizations, can be faced with ethical dilemmas when carrying out medical activities in armed conflict.2 During 1 See Chapter 1 for an account of physicians working in u.s. detention facilities which led to the conclusion that physicians may have been involved in violations of international humanitarian law, in the case of torturous interrogations, or in violations of medical ethics, in the case of force-feeding. For the situation in Syria, which in 2012 arguably crossed the threshold into a non-international armed conflict, consult Amnesty International, Health Crisis: Syrian Government targets the Wounded and Health Workers. For the situation in Israel, which is generally considered a continuous armed conflict, consult The Public Committee Against Torture in Israel and Physicians for Human Rights – Israel, Period Report: Doctoring the Evidence, Abandoning the Victim: The Involvement of Medical Professionals in Torture and IllTreatment in Israel (October 2011). 2 Military physicians are in a special position because they are also restricted in their independence and neutrality due to the fact that they are working for one of the parties to the armed conflict. Because of this, they may be faced with a dual-loyalty conflict as discussed in Chapter 1.

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armed conflicts, physicians treat civilians, persons who have been wounded or injured, or persons who have been detained. Ethical dilemmas surface when the treatment calls for a decision by the physician based on medical ethics in a case that may be controversial or where the decision could contradict orders received. Physicians may believe that medical ethics and international humanitarian law collide in these cases and are not compatible. For example, they could believe informed consent to be of lesser importance in armed conflicts where combatants’ autonomy is circumscribed. They could even believe consent to be dismissible in armed conflict.3 In such situations of doubt, articles 16 ap I and 10 ap II determine how medical ethics, as principles directly regulating the interaction between a physician and her patient, figure into international humanitarian law. Although physicians are generally guided by humanitarian principles which call for the humane treatment of the wounded and sick and by their conscience,4 medical ethics can provide more detailed, additional ethical guidance but also boundaries for physicians in armed conflict. Physicians are protected when adhering to medical ethics but may also not breach them.5 When passing a certain threshold, a breach of medical ethics can also be prosecuted as a medical war crime. For those receiving medical care, medical ethics can make a difference by ensuring that they are treated equally, their autonomy is respected, they are not harmed and they receive optimal care. In this way, their humanity can be respected and protected. Legally, the duties and obligations of physicians are explicated in the four Geneva Conventions of 1949 and the two Additional Protocols of 1977, yet also in international human rights law. According to these instruments, physicians have a broad role in caring for those in need of medical care, and are respected while carrying out their medical activities. Those who do not participate in hostilities, including persons detained and all those in need of medical care, should be respected, protected, and treated humanely. When applicable, international human rights law provides minimum standards for physicians on how to treat others, especially persons deprived of their liberty and the 3 See the statements in this respect during the Diplomatic Conference, O.R. XI, CDDH/II/SR.10, Statement by delegate Krasnopeev (ussr), p. 75; O.R. XI, CDDH/II/SR. 14, Statement of delegate Solf (usa), p. 123; O.R. XI, CDDH/II/SR.14, Statement by delegate Deddes (Netherlands), p. 125. 4 Delegate Dariima of Mongolia explicitly listed these three sets of norms to bind physicians in the drafting sessions concerning the relevant articles in the Additional Protocols. (OR. X.I. CDDH/II/SR.42, Statement delegate Dariima (Mongolia), p. 458). See in comparison the Martens Clause in article 1 (2) ap I. 5 Bothe, et al. New rules for Victims of Armed Conflicts, p. 116.

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wounded and sick. Human rights are a valuable addition to the protection offered in international humanitarian law, also because international human rights treaties provide additional instruments for implementation and enforcement as examined in Chapter 5. Nonetheless, Chapter 2 demonstrated that the framework of protection for situations where medical care is required is more detailed and more comprehensive in international humanitarian law. Particularly, articles 11 and 16 ap I and 5 (2)(e) and 10 ap II present soft and hard boundaries for medical treatment. They determine, on the one hand, that all medical procedures on a person deprived of liberty that are neither in accordance with generally accepted medical standards nor to the benefit of that person are prohibited.6 Physicians should be aware that willful actions and omissions that violate these requirements may be prosecuted as medical war crimes, a hard limit.7 On the other hand, the Additional Protocols provide a softer limit and determine that physicians should always respect medical ethics in carrying out their professional activities. Violations of medical ethics can be an indicator for breaches of international humanitarian law. Vice versa, medical war crimes are always clear violations of medical ethics, as was demonstrated by the examples given in Chapter 3. Although the examination of the relevant state practice and opinio juris in Chapter 4 has shown that these articles cannot yet be considered rules of customary international humanitarian law,8 they are integral to the wellbeing of protected persons when treated by physicians. Part II led to the conclusion that neither the drafters, nor the specific sections of the icrc Commentary were able to specify how to interpret the reference to medical ethics in articles 16 ap I and 10 ap II. While the legal framework could be ascertained, the ethical framework and its relation to the framework of international humanitarian law remained vague. The opening to the extralegal term needs further clarification and concretization to ensure the best protection for all persons in need of medical care in armed conflicts. An examination in Chapter 6 pursuant to the rules of interpretation in the Vienna 6 Article 5 (2)(e) ap II does not establish a medical grave breach, yet violations of these provisions can nevertheless incur criminal prosecution if they are criminalized as war crimes, as for example in article 8 of the Rome Statute. 7 It should be noted that the provisions concerning unwarranted medical procedures protect a limited group of persons, namely those persons ‘who are in the power of the adverse party or who are interned, detained or otherwise deprived of liberty as a result of [armed conflicts]’ (article 11 ap I). 8 This conclusion is contrary to the conclusion by the icrc in Henckaerts, et al. (eds), icrc Study Customary International Humanitarian Law, Rules 26 and 92.

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Convention on the Laws of Treaties found that medical ethics are moral principles that guide physicians when medically treating patients, especially in ethically challenging situations. This definition is, however, too vague to be applicable in armed conflicts and raises concerns regarding legal certainty. In the philosophical discourse, medical ethics are often subsumed under four common principles, namely beneficence, non-maleficence, autonomy, and justice.9 As demonstrated in Chapter 1, for a majority of ethicists and philosophers these principles form the basis for discussions on what is ethical and how a physician should behave.10 They are abstract and general and do not provide exact rules on how to act but rather leave room for the discretion of the physician who is faced with an ethical dilemma. A physician would need to specify them in a certain context, for example when facing ethically challenging situations when providing medical care during armed conflicts. Yet, the Additional Protocols refer to medical ethics to provide specific boundaries to enhance the protection of protected persons. Although the principles drawn from the ethical dialogue can form the basis for considerations and most physicians are aware of them or apply them subconsciously, they do not and cannot provide concrete rules for specific situations. Because of this generality and vagueness, the principles are not suitable to be applicable as such in armed conflicts. This means that the reference in articles 16 ap I and 10 ap II should not be taken as a reference to the ethical discourse as such. To provide concrete protection for persons, it should rather be a reference to a universal framework or code of medical ethics that provides more specific guidance and is more easily discernible and applicable. As Chapter 7 demonstrated, no such code has been established or adopted on an international level. The sparse literature available on the question of medical ethics in international humanitarian law suggests that medical ethics in the context of armed conflicts should either be taken to mean national medical ethics or as a reference to universal medical ethics as promulgated by the World Medical Association. The former would entail a pluralistic approach to medical ethics. An analysis of different codes of medical ethics adopted by national medical associations in Chapter 8 demonstrated that there are certain common principles of medical ethics but there are also differences that cannot be bridged. 9 10

The four principles were developed by Beauchamp and Childress, see the latest edition of their work: Beauchamp & Childress, Principles of Biomedical Ethics. As explained in Chapter 1, these four principles are not supported by all philosophers or ethicists, for example Clouser & Gert, ‘A Critique of Principlism’; Gert, et al. Bioethics: A Systematic Approach; Lindemann, ‘Autonomy, Beneficence and Gezelligheid’.

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Although medical ethics are not necessarily not universal,11 they are also not necessarily identical. As the adherence to national codes of ethics would lead to different levels of protection, at times protection of different quality, the pluralistic approach is not convincing. Taking the reference as a direct reference to the wma also proved unsatisfactory for reasons explicated in Chapter 9. Even if the wma were able to make legally binding rules for physicians in armed conflict, its documents could not be relied upon to fill the open, extralegal term medical ethics in the laws of armed conflicts. Its claim to authority to make binding rules for physicians fails due to a variety of procedural and representative legitimacy deficits, a lack of legitimacy by its origin or expertise, and no sufficiently valuable and reasonable output. Contrary to the conclusion by some voices in legal literature and the icrc Commentary, the wma’s documents can only be taken as guidance for physicians. They do not contain the universal principles of medical ethics. The conclusion to be drawn from Part III is that, at this point in time, there is no universal code containing principles of medical ethics. The reference to medical ethics in articles 16 ap I and 10 ap II should thus not simply be filled by reference to an existing code of medical ethics or the philosophical discourse. This is not satisfactory in light of the importance of medical ethics in the legal framework for physicians in armed conflicts and, especially, its practical relevance for the active protection of protected persons seeking medical care. As medical ethics should not be left to the conscience of physicians because this may leave those in need of medical care dependent on the subjective moral beliefs of physicians and there are no universal, internationally adopted guidelines on medical ethics in armed conflict yet, recourse should be had to those principles that can be agreed upon. B

Five Common Principles of Medical Ethics

Even though none of the solutions scrutinized delivered one set of principles of medical ethics that could be applied universally in all armed conflicts, there is agreement in legal scholarship, philosophical discourse, national medical associations, sources of international law, and the documents by the wma on a number of principles. These ethical principles enforce those legal principles that run like a red thread through international humanitarian law, especially 11

As argued by Torrelli who believes that the concept of universal medical ethics is not tenable as medical ethics differ greatly between different cultures. Torrelli, ‘La Protection du Médecin dans les Conflits Armés’, p. 589.

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that protected persons should be protected and respected, treated humanely and not discriminated against. They are also compatible with international human rights law. Generally accepted are the following principles of medical ethics: beneficence, non-maleficence, non-discrimination, informed consent, and confidentiality.12 They lead to specific requirements and prohibitions. Being more specific than the principles drawn from the ethical discourse and more generally accepted and focused on the physician-patient relationship than the documents by the wma, these five principles can provide a basis for further universal guidelines on medical ethics for all physicians working in armed conflict. The principle of beneficence requires ‘a moral obligation to act for the benefit of others’.13 It implies that medical treatment should always be to the benefit of the person treated. Accordingly, physicians should take positive steps towards the wellbeing of persons in need of medical care. Their sole objective should be ‘improving the patient’s condition’.14 This was already established in several articles in Geneva Law, for example article 13 gc III and 11 ap I, which determine that medical treatment should be in the wounded and sick’s best interest and in the interest of their health. The principle of non-maleficence, on the other hand, entails that the wounded and sick be respected and never harmed. Torture and inhuman treatment, experiments and mutilations are first and foremost prohibited, as well as unwarranted medical procedures not in the interest of a person. Experimental or mutilating procedures are only allowed when they are in the interest of a person. An example is a new medical procedure that is not yet universally accepted but may save the person’s life or a therapeutically justified amputation of a limb.15 Only medical treatment that is to the benefit of a person can also be in their interest and thus justified, with the exception of blood and skin donations as recognized in article 11 (3) ap I. Not only are the principles of beneficence and non-maleficence ancient principles of medical ethics binding physicians beyond the legal rules, they are also a practical consequence of the principle of humanity which guides not only the icrc, but international humanitarian law in general.16 Protected persons 12 13 14 15 16

This conclusion, although drawn from a different analysis, corresponds to the conclusion in Gunn & McCoubrey, ‘Medical Ethics and the Laws of Armed Conflict’, esp. p. 147–153. Beauchamp & Childress, Principles of Biomedical Ethics, p. 197. Preux (ed), Commentary III, p. 140. Articles 13 gc III and 32 gc IV. The latter forbids experiments on civilians that are not ‘necessitated by the medical treatment of a protected person’. The concept of human dignity plays a larger role in human rights law than in the laws of armed conflict. The Preamble to the iccpr also recognizes the ‘inherent dignity and […]

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should be treated humanely by all actors in armed conflict, as repeatedly established in Geneva Law.17 This includes physicians who provide medical care during armed conflict. The principle of human dignity is broader than the requirement of humane treatment entailing a general level of respect for the other person’s inherent dignity. It ‘is intended to shield human beings from outrages upon their personal dignity, whether such outrages are carried out by unlawfully attacking the body or by humiliating and debasing the honour, the self-respect or the mental well being of a person’.18 As an extension of one of the basic principles of international humanitarian law yet with a focus on the medical interaction, the principles of beneficence and non-maleficence should form the basis for medical ethics in armed conflict. They can be specified by several more detailed requirements and prohibitions that are compatible with international humanitarian law, yet provide additional guidance for physicians in their interaction with protected persons. First of all, medical care should always be to the benefit and in the interest of the person seeking care. Although this is implicit in all provisions of international humanitarian law, it should be specified in guidelines of medical ethics. Furthermore, physicians should be physicians first and as such dedicated to those needing medical care, and soldiers second. Second of all, there are absolute prohibitions that can be drawn from the principle of non-maleficence. Physicians should not use medical information of those they treat or that seek their advice to violate international human rights or humanitarian law. Moreover, they should not participate in torture, ill-treatment or coercive interrogations.19 They should also not facilitate or aid and abet in the commission of such acts. This includes covering such acts after they have been committed. Lastly, they should abstain from performing non-therapeutic medical



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the equal and inalienable rights of all members of the human family’. Further, see the references to human dignity in articles 10 (1) iccpr, 5 (2) iachr, and 5 achpr. The latter two can be found in articles addressing the prohibition of torture and cruel, degrading or inhuman treatment. Humane treatment is called for in common article 3 gcs and articles 12 gc I and II, 13 gc III, 27 gc IV, 10 (2) ap I, 4, 5 (3) and 7 (2) ap II. Rule 87 of the Customary International Humanitarian Law Study states that ‘[the] actual meaning of “humane treatment” is not spelled out, although some texts refer to respect for the “dignity” of a person or the prohibition of “ill-treatment” in this context’ and lists the necessary references. Henckaerts, et al. (eds), icrc Study Customary International Humanitarian Law Vol. 1: Rules, p. 307. icty Furundžija Trial Judgment, para. 182–183 (emphasis added). This can be based on the prohibition of the use of any form of coercion in interrogations of prisoners of war in article 17 gc III.

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procedures or experiments. These prohibitions are in line with the principle of humanity which guides all medical work in armed conflicts and conform to the un ga’s Principles on Medical Ethics, international criminal law and the grave breaches provisions in international humanitarian law. Violations all constitute medical grave breaches and should be prosecuted as medical war crimes. Non-discrimination is a basic principle of international humanitarian law which is also recognized in international human rights law and in international documents such as the un ga’s Principles of Medical Ethics and, as an aspect of the principle of justice, it is also part of the modern ethical discourse. Medical care should be distributed according to the fair opportunity rule and every person should get the social benefits, including medical care, they require.20 The principle of non-discrimination is also reflected in one of the icrc’s guiding principles, the principle of impartiality, and is generally recognized by national medical associations and the wma. In medical practice it means that physicians should treat all those seeking medical care, irrespective of their affiliation, equally and, more importantly, equally to how they treat patients in times of peace. This ensures physicians’ impartiality. International humanitarian law has accentuated this point in several of its articles in each of its documents.21 In article 11 (1) ap I it explicated this requirement in stating that physicians should treat patients in accordance with generally accepted medical standards which they would apply ‘under similar medical circumstances to persons who are nationals of the party conducting the procedure and who are in no way deprived of liberty’. A distinction may only be made based on medical grounds. This means that during triage where resources and material may be scarce and decisions of life and death made quickly, physicians may distinguish between patients on medical grounds in order to provide optimal treatment to all. Treatment should be, if materially possible, no worse than medical treatment in times of peace. Minimal technical standards for medical treatment that are generally accepted should be respected. These requirements should be clarified for the medical care of all protected persons in armed conflicts, not only those detained. The principle of informed consent drawn from the principle of autonomy is not well established in Geneva Law yet it was the cornerstone of the judgment in the Doctors’ Trial. Establishing ten principles for ethically sound experiments on humans, the judges of the trial extensively discussed consent in the 20 21

Beauchamp & Childress, Principles of Biomedical Ethics, p. 248–250. The principle of non-discrimination can also be found in common article 3 gcs and articles 12 gc I and II, 16 gc III, 27 gc IV, 10 ap I and 7 ap II.

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Nuernberg Code.22 Surprisingly, consent played no role in the subsequently drafted Geneva Conventions. Hence, article 11 (5) ap I is the only provision addressing informed consent in armed conflicts, namely in situations where a person has to undergo a surgical operation she may refuse. The drafters feared that an individual’s consent could be used as an argument to justify unwarranted medical procedures.23 This is indeed to be prevented. The consent of a person never justifies unwarranted medical procedures, especially experiments or mutilations as established in article 11 (2) ap II. In such a case consent would be invalid.24 The limited scope of this reference to informed consent is regrettable. The rules governing medical treatment in armed conflict could be expanded by this ethical principle as it has been important in the ethical discourse since the Hippocratic Oath and plays a role in international human rights law.25 The principle of informed consent is also included in most national medical associations’ ethical codes, in the unesco’s Declaration on Bioethics and Human Rights and in documents by the wma. Generally, what can be drawn from all these references taken together with the ethical discourse is that all competent patients who are capable of making a decision on their medical treatment, for instance excluding those unconscious due to wounds or children, should be given relevant information, in a language they understand, concerning their medical condition and proposed medical treatment.26 Based on this information, they should be given an opportunity to voluntarily consent or refuse.27 Of course, in emergency situations or foreign countries 22

u.s. Military Tribunal, The Doctors’ Trial, Judgment, Vol. II, p. 181–182. On the Nuernberg Code, see Schmidt, ‘The Nuremberg Doctors’ Trial and the Nuremberg Code’. 23 The icrc Commentary to article 5 (2)(e) ap II states that ‘this provision does not mention the patient’s consent. However, even with such consent, no procedure that is not based on medical grounds can be allowed’. Sandoz, et al. (eds), Commentary to the Additional Protocols, para. 4594. As discussed in Chapter 3, consent was indeed often used as a defense in medical war crimes trials after World War II. 24 This can be based on the fact that in international humanitarian law, a person may never renounce their rights which includes a right to therapeutic medical treatment. Articles 7 gc I, II, & III and 8 gc IV. Consent may not be used as a defense in criminal proceedings, see Chapter 3. 25 The most prominent reference being the reference to consent in article 7 (2) iccpr. 26 There is no obligation to be informed – patients may also not want to know and have the physician decide for them. See Beauchamp & Childress, Principles of Biomedical Ethics, p. 100. 27 According to Beauchamp and Childress informed consent consists of a patient’s competence, disclosure, understanding, voluntariness, and consent. To these five elements, Beauchamp and Childress furthermore add a recommendation (in the case of a medical procedure). The actual consent consists of a decision and an authorization (or refusal). Ibid. p. 120–121.

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consent may be difficult to obtain due to chaotic circumstances or impeded communication. Yet these problems may also occur in times of peace and should not prevent an attempt being made for a person to determine what is to happen to his body. Only with the consent of the person to be treated should a physician carry out medical treatment.28 Lastly, the principle of confidentiality, like the principle of informed consent, is a modern ethical principle that is a valuable addition to the laws of armed conflict.29 It stems from the ethical discourse and is supported in national medical associations’ codes of ethics and the wma. Confidentiality of medical information and records is an extension of the respect for protected persons that can increase their trust in the medical services provided to them.30 Armed conflict does not change the fact that medical information is first and foremost personal. Persons who fear that their medical information will be disclosed or used for other purposes may not be honest with the physician which could impact their medical care or they may not seek medical care at all. Hence, the interaction between a physician and a person seeking medical care should be based on confidentiality. Information attained by a physician in the medical treatment of a protected person should not be disclosed to third parties, including authorities. Confidentiality may only be breached if the physician is convinced that the person being treated poses an imminent and direct threat to others. Regular participation in hostilities as a combatant should not be seen as such a threat. Despite the narrow concept of confidentiality in articles 16 (3) ap I and 10 (3 and 4) ap II, acceptance of the ethical principle does not contradict international humanitarian law. Only if there are pertinent reasons, may national laws determine that personal medical information may be disclosed. National legislators should use this exception carefully. If a physician knows that the confidentiality of medical information will not be guaranteed because of legal obligations or for other reasons, he should clarify this in the first encounter with a person seeking medical care. These principles and their specifications play a role where medical care is provided in armed conflicts, as the examples used in Chapter 1 demonstrate.

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This is also Baccino-Astrada’s interpretation. Baccino-Astrada, Manuel des Droits et Devoirs du Personnel Sanitaire lors des Conflits Armés, p. 42. The importance of the principle of medical ethics was also recognized by the icrc Commentary. See Sandoz, et al. (eds), Commentary to the Additional Protocols, para. 682. The principle of respect of the wounded and sick can be found in common article 3 gcs and articles 12 gc I and II, 16 (1) gc IV, 10 ap I, and 7 ap II.

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In the paternalistic system of international humanitarian law their inclusion through the opening to medical ethics in the Additional Protocols will modernize the provisions concerning medical care and benefit those in need of it. Hence, they should form the basis of universal medical ethics in armed conflict. Although medical ethics in armed conflict should be the same as those in times of peace, a specification of the principles and what they entail in the very specific situation of an armed conflict is desirable. Physicians still have some discretion for decision-making but these minimal requirements and prohibitions should at all times be respected and followed. C Outlook So far, although there is general awareness of the possible ethical dilemmas physicians may face, this has not lead to any further guidance on the issue. The wma has addressed the role of physicians in armed conflicts, yet its documents can only serve as suggestions as long as their legitimacy is not enhanced. Future guidelines for all physicians in both international and non-international armed conflicts should add on to the existing provisions in the Additional Protocols and clarify the reference to medical ethics to shed light on where the boundaries of physicians’ actions lie. Consequences of a violation of the boundaries should continue to be regulated by international humanitarian and criminal law. However, more detailed guidance on medical work during armed conflict will serve physicians and their patients and can contribute to clarity, legal specificity, and ultimately protection. This can be helpful in situations where physicians may have violated not only medical ethics but also international humanitarian law. The five universal principles specified in requirements and prohibitions enumerated above, are the principles that find most agreement. Future guidelines for physicians in armed conflict should contain yet also specify and develop these five principles, their interaction and their limits. It should, for example, be clarified what is relevant to attain a person’s informed consent in armed conflict or where the boundaries of confidentiality lie. Practically, guidelines should be adopted by an organ which can adopt legally binding rules or with sufficient legitimacy so that the rules can reasonably guide physicians. One could imagine the icrc, perhaps together with the International Committee of Military Medicine, to develop guidelines for physicians in armed conflict that could lead to a new, fourth, Additional Protocol to the Geneva

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Conventions.31 This fourth Protocol would then be adopted by states which would ensure their consent to these guidelines. This would mean, it would be legally binding for all member states and a large number of individuals and it would be universal. Furthermore, it would be a necessary addition that would specify existing provisions of international humanitarian law. Hence, it would not lead to proliferation but rather to comprehensiveness. Alternatively, the icrc itself could adopt and disseminate ethical guidelines for physicians in armed conflict.32 Such guidelines would not only raise awareness on an international level, they would also clarify and improve the protection of medical personnel and, with that, the protection of all those who need medical care. Previously, the icrc has published other guidelines and ‘interpretive guidances’ that have generally enjoyed a high level of acceptance by states and practitioners.33 Being a non-governmental organization with legal personality,34 the icrc is not a classic subject of international law yet it enjoys legitimacy. Although it cannot make legally binding rules for physicians, interpretive guidelines by the icrc for all physicians in armed conflict, not only those working for humanitarian aid organizations, could have more normative value than the rules by the wma due to the latter’s legitimacy deficits. If guidelines were 31

32

33

34

According to Patrnogic, the development of such guidelines were discussed in conferences by the icrc yet also by military medical organizations. Patrnogic, ‘International Medical Law’. For more information on the icmm, see Christian Schaller, ‘International Committee of Military Medicine’, in Rüdiger Wolfrum (ed), Max Planck Encyclopedia of Public Inter­ national Law (Oxford University Press, 2012). The icmm is an international and intergovernmental organization consisting of 104 member states and five observers. Its goal is to facilitate the cooperation between the medical services of armed forces. In 2011, the icmm held its first annual workshop on military medical ethical dilemmas in disaster relief, humanitarian missions and conflict where not only military, but also humanitarian aid organizations were represented. See for example International Committee of the Red Cross, icrc position on hostagetaking’, International Review of the Red Cross, No. 846 (2002); Nils Melzer, International Committee of the Red Cross, Interpretive Guidance on the Notion of Direct Participation in Hostilities under International Humanitarian Law (May 2009) which had a major impact on discussions by legal scholars, see William J. Fenrick, ‘icrc Guidance on Direct Participation in Hostilities’, 12 Yearbook of International Humanitarian Law, 287 (2009); Dapo Akande, ‘Clearing the Fog of War? The icrc’s Interpretive Guidance on Direct Participation in Hostilities’, 59 International and Comparative Law Quarterly, 180 (2010); and a number of critical and appraising articles in ‘Forum: Direct Participation In Hostilities: Perspectives on the icrc Interpretive Guidance’, 42 New York University Journal of International Law and Politics, 637 (2010). Gasser, ‘International Committee of the Red Cross’.

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well-researched and persuasive, they could even have broader effect, for example on national legislators and courts.35 Guidelines adopted by the icrc are more easily imaginable than the adoption of a fourth Additional Protocol because of reluctance on the part of states. A document adopted by states would probably also mean a compromise that could be detrimental to the goal in sight. Whichever organization, subject, or organ adopts guidelines or an instrument of interpretive guidance, if medical ethics are to provide guidance on how to ameliorate the treatment of the victims of armed conflicts, both international humanitarian law and medical ethics will have to be connected and simultaneously developed. In sum, it can be established that the opening to medical ethics in international humanitarian law can provide essential additional protection for those who need it when requiring medical care. Yet in order for the protection to be effective, there is need for a specification of medical ethics in armed conflicts on an international level. Only then can violations of medical ethics and often resulting medical war crimes, as they have been committed in the past, be prevented in the future. 35

Fenrick, ‘icrc Guidance on Direct Participation in Hostilities’, p. 288.

Annexes

Annex I: The Hippocratic Oath as translated by Heinrich von Staden1

‘I swear by Apollo the Physician and by Asclepius and by Health and Panacea and by all the gods as well as goddesses, making them judges [witnesses], to bring the following oath and written covenant to fulfillment, in accordance with my power and my judgment; to regard him who has taught me this techné [art and science] as equal to my parents, and to share, in partnership, my livelihood with him and to give him a share when he is in need of necessities, and to judge the offspring [coming] from him equal to [my] male siblings, and to teach them this techné, should they desire to learn [it], without fee and written covenant, and to give a share both of rules and of lectures, and of all the rest of learning, to my sons and to the [sons] of him who has taught me and to the pupils who have both made a written contract and sworn by a medical convention but by no other. And I will use regimens for the benefit of the ill in accordance with my ability and my judgment, but from [what is] to their harm or injustice I will keep [them]. And I will not give a drug that is deadly to anyone if asked [for it], nor will I suggest the way to such a counsel. And likewise I will not give a woman a destructive pessary. And in a pure and holy way I will guard my life and my techné. I will not cut, and certainly not those suffering from stone, but I will cede [this] to men [who are] practitioners of this activity. Into as many houses as I may enter, I will go for the benefit of the ill, while being far from all voluntary and destructive injustice, especially from sexual acts both upon women’s bodies and upon men’s, both of the free and of the slaves. And about whatever I may see or hear in treatment, or even without treatment, in the life of human beings – things that should not ever be blurted out outside – I will remain silent, holding such things to be unutterable [sacred, not to be divulged]. If I render this oath fulfilled, and if I do not blur and confound it [making it to no effect], may it be [granted] to me to enjoy the benefits both of life and of techné, being held in good repute among all human beings for time eternal, If however, I transgress and perjure myself the opposite of these’.

1 von Staden, ‘“In a pure and holy way”’, p. 406–408.

© koninklijke brill nv, leiden, 2015 | doi 10.1163/9789004279162_013

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Annex II: wma Declaration of Geneva

Adopted by the 2nd General Assembly of the World Medical Association, Geneva, Switzerland, September 1948 and amended by the 22nd World Medical Assembly, Sydney, Australia, August 1968 and the 35th World Medical Assembly, Venice, Italy, October 1983 and the 46th wma General Assembly, Stockholm, Sweden, September 1994 and editorially revised by the 170th wma Council Session, Divonne-les-Bains, France, May 2005, and the 173rd wma Council Session, Divonne-les-Bains, France, May 2006. At the time of being admitted as a member of the medical profession: I solemnly to consecrate my life to the service of humanity; I will give to my teachers the respect and gratitude that is their due; I will practice my profession with conscience and dignity; The health of my patient will be my first consideration; I will respect the secrets that are confided in me, even after the patient has died; I will maintain by all the means in my power, the honour and the noble traditions of the medical profession; My colleagues will be my sisters and brothers; I will not permit considerations of age, disease or disability, creed, ethnic origin, gender, nationality, political affiliation, race, sexual orientation, social standing or any other factor to intervene between my duty and my patient; I will maintain the utmost respect for human life; I will not use my medical knowledge to violate human rights and civil liberties, even under threat; I make these promises solemnly, freely and upon my honour.

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Annex III: wma International Code of Medical Ethics

Adopted by the 3rd General Assembly of the World Medical Association, London, England, October 1949 and amended by the 22nd World Medical Assembly, Sydney, Australia, August 1968 and the 35th World Medical Assembly, Venice, Italy, October 1983 and the 57th wma General Assembly, Pilanesberg, South Africa, October 2006. Duties of Physicians in General A PHYSICIAN SHALL

A PHYSICIAN SHALL A PHYSICIAN SHALL A PHYSICIAN SHALL

A PHYSICIAN SHALL

A PHYSICIAN SHALL

A PHYSICIAN SHALL A PHYSICIAN SHALL

A PHYSICIAN SHALL A PHYSICIAN SHALL A PHYSICIAN SHALL A PHYSICIAN SHALL

always exercise his/her independent professional judgment and maintain the highest standards of professional conduct. respect a competent patient’s right to accept or refuse treatment. not allow his/her judgment to be influenced by personal profit or unfair discrimination. be dedicated to providing competent medical service in full professional and moral independence, with compassion and respect for human dignity. deal honestly with patients and colleagues, and report to the appropriate authorities those physicians who practice unethically or incompetently or who engage in fraud or deception. not receive any financial benefits or other incentives solely for referring patients or prescribing specific products. respect the rights and preferences of patients, colleagues, and other health professionals. recognize his/her important role in educating the public but should use due caution in divulging discoveries or new techniques or treatment through non-professional channels. certify only that which he/she has personally verified. strive to use health care resources in the best way to benefit patients and their community. seek appropriate care and attention if he/she suffers from mental or physical illness. respect the local and national codes of ethics.

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Duties of Physicians to Patients A PHYSICIAN SHALL A PHYSICIAN SHALL A PHYSICIAN SHALL

A PHYSICIAN SHALL

A PHYSICIAN SHALL

A PHYSICIAN SHALL

A PHYSICIAN SHALL

always bear in mind the obligation to respect human life. act in the patient’s best interest when providing medical care. owe his/her patients complete loyalty and all the scientific resources available to him/her. Whenever an examination or treatment is beyond the physician’s capacity, he/she should consult with or refer to another physician who has the necessary ability. respect a patient’s right to confidentiality. It is ethical to disclose confidential information when the patient consents to it or when there is a real and imminent threat of harm to the patient or to others and this threat can be only removed by a breach of confidentiality. give emergency care as a humanitarian duty unless he/ she is assured that others are willing and able to give such care. in situations when he/she is acting for a third party, ensure that the patient has full knowledge of that situation. not enter into a sexual relationship with his/her current patient or into any other abusive or exploitative relationship.

Duties of Physicians to Colleagues A PHYSICIAN SHALL A PHYSICIAN SHALL A PHYSICIAN SHALL

behave towards colleagues as he/she would have them behave towards him/her. not undermine the patient-physician relationship of colleagues in order to attract patients. when medically necessary, communicate with colleagues who are involved in the care of the same patient. This communication should respect patient confidentiality and be confined to necessary information.

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Annex IV: wma Regulations in Times of Armed Conflict

Adopted by the 10th World Medical Assembly, Havana, Cuba, October 1956;and edited by the 11th World Medical Assembly, Istanbul, Turkey, October 1957; and amended by the 35th World Medical Assembly, Venice, Italy, October 1983; and the 55th wma General Assembly, Tokyo, Japan, October 2004; editorially revised by the 173rd wma Council Session, Divonne-les-Bains, France, May 2006; and revised by the 63rd wma General Assembly, Bangkok, Thailand, October 2012. General Guidelines Medical ethics in times of armed conflict is identical to medical ethics in times of peace, as stated in the International Code of Medical Ethics of the wma. If, in performing their professional duty, physicians have conflicting loyalties, their primary obligation is to their patients; in all their professional activities, physicians should adhere to international conventions on human rights, international humanitarian law and wma declarations on medical ethics. The primary task of the medical profession is to preserve health and save life. Hence it is deemed unethical for physicians to: • Give advice or perform prophylactic, diagnostic or therapeutic procedures that are not justifiable for the patient’s health care; • Weaken the physical or mental strength of a human being without therapeutic justification; • Employ scientific knowledge to imperil health or destroy life; • Employ personal health information to facilitate interrogation; • Condone, facilitate or participate in the practice of torture or any form of cruel, inhuman or degrading treatment. During times of armed conflict and other situations of violence, standard ethical norms apply, not only in regard to treatment but also to all other interventions, such as research. Research involving experimentation on human subjects is strictly forbidden on all persons deprived of their liberty, especially civilian and military prisoners and the population of occupied countries. The medical duty to treat people with humanity and respect applies to all patients. The physician must always give the necessary care impartially and without discrimination on the basis of age, disease or disability, creed, ethnic origin, gender, nationality, political affiliation, race, sexual orientation, or social standing or any other similar criterion. Governments, armed forces and others in positions of power should comply with the Geneva Conventions to ensure that physicians and other health care

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professionals can provide care to everyone in need in situations of armed conflict and other situations of violence. This obligation includes a requirement to protect health care personnel and facilities. Whatever the context, medical confidentiality must be preserved by the physician. However, in armed conflict or other situations of violence, and in peacetime, there may be circumstances in which a patient poses a significant risk to other people and physicians will need to weigh their obligation to the patient against their obligation to other individuals threatened. Privileges and facilities afforded to physicians and other health care professionals in times of armed conflict and other situations of violence must never be used other than for health care purposes. Physicians have a clear duty to care for the sick and injured. Physicians should recognise the special vulnerability of some groups, including women and children. Provision of such care should not be impeded or regarded as any kind of offence. Physicians must never be prosecuted or punished for complying with any of their ethical obligations. Physicians have a duty to press governments and other authorities for the provision of the infrastructure that is a prerequisite to health, including potable water, adequate food and shelter. Where conflict appears to be imminent and inevitable, physicians should, as far as they are able, ensure that authorities are planning for the protection of the public health infrastructure and for any necessary repair in the immediate post-conflict period. In emergencies, physicians are required to render immediate attention to the best of their ability. Whether civilian or combatant, the sick and wounded must receive promptly the care they need. No distinction shall be made between patients except those based upon clinical need. Physicians must be granted access to patients, medical facilities and equipment and the protection needed to carry out their professional activities freely. Such access must include patients in detention centres and prisons. Necessary assistance, including unimpeded passage and complete professional independence, must be granted. In fulfilling their duties and where they have the legal right, physicians and other health care professionals shall be identified and protected by internationally recognized symbols such as the Red Cross, Red Crescent or Red Crystal. Hospitals and health care facilities situated in areas where there is either armed conflict or other situations of violence must be respected by all combatants and media personnel. Health care given to the sick and wounded, civilians or combatants, cannot be used for publicity or propaganda. The privacy of the sick, wounded and dead must always be respected. This includes visits from

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important political figures for media purposes and also when important political figures are among the wounded and the sick. Physicians must be aware that, during armed conflict or other situations of violence, health care becomes increasingly susceptible to unscrupulous practice and the distribution of poor quality/counterfeit materials and medicines, and attempt to take action on such practices. The wma supports the collection and dissemination of data related to assaults on physicians, other health care personnel and medical facilities, by an international body. Such data are important to understand the nature of such attacks and to set up mechanisms to prevent them. Assaults against medical personnel must be investigated and those responsible must be brought to justice.

Code of Conduct: Duties of Physicians Working in Armed Conflict and other Situations of Violence Physicians must in all circumstances: • Neither commit nor assist violations of international law (international humanitarian law or human rights law); • Not abandon the wounded and sick; • Not take part in any act of hostility; • Remind authorities of their obligation to search for the wounded and sick and to ensure access to health care without unfair discrimination; • Advocate and provide effective and impartial care to the wounded and sick (without reference to any ground of unfair discrimination, including whether they are the ‘enemy’;); • Recognise that security of individuals, patients and institutions are a major constraint to ethical behaviour and not take undue risk in the discharge of their duties; • Respect the individual wounded or sick person, his/her will, confidence and his/her dignity; • Not take advantage of the situation and the vulnerability of the wounded and sick for personal financial gain; • Not undertake any kind of experimentation on the wounded and sick without their real and valid consent and never where they are deprived of liberty; • Give special consideration to the greater vulnerability of women and children in armed conflict and other situations of violence and to their specific health-care needs; • Respect the right of a family to know the fate and whereabouts of a missing family member whether or not that person is dead or receiving health care;

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• Provide health care for anyone taken prisoner; • Advocate for regular visits to prisons and prisoners by physicians, if such a mechanism is not already in place; • Denounce and act, where possible, to put an end to any unscrupulous practices or distribution of poor quality/counterfeit materials and medicines; • Encourage authorities to recognise their obligations under international humanitarian law and other pertinent bodies of international law with respect to protection of health care personnel and infrastructure in armed conflict and other situations of violence; • Be aware of the legal obligations to report to authorities the outbreak of any notifiable disease or trauma; • Do anything within their power to prevent reprisals against the wounded and sick or health care; • Recognise that there are other situations where health care might be compromised but in which there are dilemmas. Physicians should to the degree possible: • Refuse to obey an illegal or unethical order; • Give careful consideration to any dual loyalties that the physician may be bound by and discuss these dual loyalties with colleagues and anyone in authority; • As an exception to professional confidentiality, and in line with wma Resolution on the Responsibility of Physicians in the Documentation and Denunciation of Acts of Torture or Cruel or Inhuman or Degrading Treatment and the Istanbul Protocol,2 denounce acts of torture or cruel, inhuman or degrading treatment of which physicians are aware, where possible with the subject’s consent, but in certain circumstances where the victim is unable to express him/herself freely, without explicit consent; • Listen to and respect the opinions of colleagues; • Reflect on and try to improve the standards of care appropriate to the situation; • Report unethical behaviour of a colleague to the appropriate superior; • Keep adequate health care records; • Support sustainability of civilian health care disrupted by the context; • Report to a commander or to other appropriate authorities if health care needs are not met; • Give consideration to how health care personnel might shorten or mitigate the effects of the violence in question, for example by reacting to violations of international humanitarian law or human rights law. 2 Manual on Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, ohchr, 1999.

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B

Table of Cases

1

Domestic Cases

Canada, Supreme Court, Regina v. Finta, [1994], Supreme Court of Canada Reports, 701. Canada, General Court Martial, R. v. Semrau cm 4010, [2010]. Germany, Reichsgericht Leipzig, Trial of Dr. med. Oskar Michelsohn, Judgment [1922], Bundesarchiv Berlin-Lichterfelde, R 3003, ora/rg Generalia, Band 462 and pa aa, R 48432v, Band 463. Germany, Bundesverfassungsgericht, Facharztbeschluss (1 BvR 518/62 u. 308/64), [1972], njw, 1504.

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3

Human Rights Committee

Human Rights Committee, Lopez Burgos v. Uruguay, Doc. No. CCPR/C/13/D/52/1979 (29 July 1981). Human Rights Committee, Camargo and de Guerrero v. Colombia, [1982], Communication No. R.11/45, Doc. Supp. No. 40 (A/37/40). Human Rights Committee, Antonio Viana Acosta v. Uruguay, [1984], Communication No. 110/1981 (31 March 1983), Doc. Supp. No. 40 (A/39/40).

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4

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5

International Criminal Courts and Tribunals

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Index Abu Ghraib  53, 400 accountability  151, 187, 317, 376, 385–386 Additional Protocols to the Geneva Conventions (1977) Adoption  89–90, 293–294 Interpretation  280–283 Ratification  90 advocacy  12, 410–411 Al Jedda v. uk  255 Al Qahtani, Mohammed  51, 57–60, 187 See also Detention, Interrogations Appellants v. Levy  23–24, 232–233 armed conflicts  89, 238n13 Arab Spring  1–2 Gaza  1–2, 13, 210–211 Rwanda  159–161 Syria  2, 212, 423 War on Terror  2–3, 49–74, 212, 350–353 Armed Activities on the Territory of the Congo case  240 Arrest Warrant case  132 Beauchamp and Childress  34–42, 43, 75 autonomy  37–38, 43–46, 72–74, 326, 430–431 beneficence  31, 39–40, 46–47, 72–74, 308–310, 334, 415, 428–429 justice  40–41, 47–48 non-maleficence  31, 38–39, 46, 63, 308–310, 334, 428–430 paternalism  39–40, 47, 72–74, 96–98 Becker-Freyseng, Hermann  161–167 Beiglböck, Wilhelm  161–167 bioethics  27–28, 31–34, 311–312, 321–327 biological experiments  see experiments Blome, Kurt  161–167 Brack, Viktor  161–167 Brandt, Karl  152, 161–167 Brandt, Rudolf  161–167 case law  148–175, 208 see also prosecution Central Intelligence Agency  50–57 civilians  98–102

civilian physicians  10, 19, 61n240, 98, 103, 110, 113–114, 244, 263, 267, 273, 288, 408 Clauberg, Carl  166 code of conduct  12, 411 Sphere project  12–13 combatant  9–10, 43–44, 91–94, 95 unlawful enemy combatant  50n184 Committee on Economic, Cultural and Social Rights  237, 245, 251, 256, 261–264, 311, 410 common article 3  119–123, 330–331 competence  36–39, 74, 431 Corfu Channel case  230 crimes against humanity  151, 158, 160–161, 170–171, 184 customary law  87, 190–191, 233–235 Additional Protocols  191–193 Geneva Conventions  190 opinio juris  213–225 state practice  194–213 death certificate  60, 155–158, 186, 400 defenses  175–183 Demmerich, Richard  157–158 denial of medical care  50, 93, 139–140, 149, 156–161, 171–173, 184, 212, 260, 266–267, 271 denunciation  117, 126–127 déontologie  295–297 detainee  50n184 detention  49–50, 70–71, 101, 102, 255, 312–319, 271–272 u.s. detention facilities  50–57, 66–67, 185–187, 267–268 see also Abu Ghraib, Al Jedda v. uk, Guantánamo Bay, interrogations, occupation distinction  259, 308, 331 distinctive emblem  17–18, 83–84, 115, 401–402 dual-loyalty conflict  22–26, 61–62, 72, 169–170, 400–401, 415, 429 Dunant, Henry  80–81 duress  180–182

Index European Court of Human Rights   254–255, 268, 325–326 euthanasia  30, 149–150, 152–156, 163, 170–173, 179, 289 experiments  40–41, 47, 88, 93–94, 96–98, 100, 103–106, 121, 134, 139–148, 193, 198, 206–207, 228–231, 234, 269–271, 290–293, 356, 407, 415, 428–432 prosecution  161–170, 179–180, 182–184, 186 see also consent, medical grave breaches, Rome Statute, unwarranted medical procedures extra-legal terms  129, 277, 303–305, 368, 415–416 Fischer, Fritz  161–167 Fischer, Horst  172–174 Fisheries case  190 force-feeding  67–74, 185–186, 262, 268 see hunger strike Frank, Willi  171n215, 174n221 Gebhardt, Karl  161–167 general principles of international humanitarian law  327–333 generally accepted medical standards  102–106, 123, 128–129, 134–136, 146, 207–208, 217–218, 224–225, 229–231, 234–235, 277, 283–295, 303–305, 307, 336n4 Geneva Conventions Geneva Convention of 1864  82–83, 87–88, 194 Geneva Convention of 1906  84–85, 194 Geneva Conventions of 1929  85–87, 98, 112, 163 Genzken, Karl  161–167 Goldstone Report  211–212 Gorgaß, Hans Bodo  154–156 grave breaches  89, 93–94, 105, 117, 128, 131–138, 139–144, 150, 185, 206–207, 214, 227, 245–249, 304, 430 Guantánamo Bay  2n5, 50–57, 63, 67–69, 267–268 Hamdan v. Rumsfeld  54 Rasul v. Bush  54 Gunn and McCoubrey’s Basic Principles of Medical Ethics  307–310

497 Handloser, Siegfried  161–167 Hippocratic Oath  28–31, 35, 38, 164, 174, 363, 389, 431, 437 hors de combat  46, 89, 91, 121–122, 234, 259, 307 hospital ships  108n150, 112n170 Höss, Rudolf Franz Ferdinand  162n164, 173n217, 227 Hoven, Waldemar  161–167 human dignity  14, 140, 327, 329, 331–333, 353, 358, 396, 415, 429 human rights  12, 20, 22, 46, 49, 73, 186, 236–274, 276–277, 311–312, 326–327, 331–333, 358, 395, 397–399, 415, 424–425, 428–431 Human Rights Committee  244–246, 250, 254, 260, 266–267, 269–270, 272 humane treatment  86, 96, 98, 101, 119, 121–123, 140, 193–194, 212, 253, 266, 272, 276, 396, 408, 428–429 humanitarian aid organization  10–14, 19–20, 71, 107–108, 257, 434 humanity  13–16, 26, 43, 72, 96, 110, 121, 128, 191, 271–272–273, 329–331, 333, 357–358, 393–394, 407–408, 413, 428, 430 hunger strike  36, 40, 42, 67–74, 262, 268, 351–352 see also force-feeding ill-treatment  2–3, 49, 50–67, 88, 96, 101, 121, 128, 140–141, 156–157, 171, 181, 185–187, 212, 256, 265–273, 333, 316, 356, 429 independence  13–14, 17–19, 21, 24–26, 72, 126–127, 295, 297–298, 301–302, 356–357, 383–384, 402–403, 413 informed consent  29–30, 43–46, 47, 67–68, 71, 73–74, 95–98, 104–105, 134, 141, 146, 164–167, 174–176, 182–184, 187, 193, 198, 207, 262, 269–271, 289, 308–311, 319, 321–322, 334, 353, 357–358, 391–392, 396–397, 399–400, 415, 430–433 International Committee of the Red Cross  11, 19–21, 109–110, 213, 246–247, 334, 403, 433–434 Commentary to the Additional Protocols  45, 47, 100–103, 118, 123–125, 137, 144, 236, 280, 290, 316–317, 336–338, 360–364, 391–392, 416–418

498 International Committee of the Red Cross (cont.) Guantánamo Bay  2–3, 56–75, 185–187, 267–268, 305 Study on Customary International Humanitarian Law  225–233 International Court of Justice  189–190 interrogations  2–3, 49–67, 75, 185–187, 212, 267–268, 315–316, 319, 350–353, 358, 390–391, 400, 405, 413, 415, 429 interrogation techniques  51–52, 57–60, 126 impartiality  14–16, 21, 25–26, 110, 349, 357, 392–393, 408, 413, 430 Islamic Code of Medical Ethics  346–348 journalism  210 Kazuo, Mitomo  167–170 Kiyoshi, Kawashima  167–170 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territories case  239–240, 254, 256 Legality of the Threat or Use of Nuclear Weapons case  239, 259, 331 legislation  141, 149, 151, 181, 196–208, 225–233, 244, 326, 391 Canada  204n82 Germany  197–199, 214 Jordan  199–200 South Africa  204n82 The Netherlands  200–202 United Kingdom  202–204 United States of America  204–206 legitimacy  368–418 Lieber Code  79 Lucas, Franz  171n215 Martens Clause  14, 329–331 Masao, Onoue  167–170 Médecins sans Frontières  11, 21–22, 217, 401 medical clearance  51, 53, 55, 58–59, 66, 185, 352, medical confidentiality  30–31, 54, 63–66, 117, 126, 232–233, 320, 351–353, 356, 391–392, 408–409, 415, 432 medical duties  10, 26, 110–112, 115–118, 125–127, 156–157, 173, 231–234, 264, 296–298, 358, 390, 404, 407

Index medical experiments  see experiments medical grave breach  105, 128, 133–138, 141–142, 146, 148, 175, 181, 201–202, 205–208, 214, 304, 314–315, 430 medical personnel  9–10, 17–18, 22–26, 45, 61, 107–115, 124–125 medical record  58, 60, 63–66, 106, 185, 352, 400 medical war crimes  133–148, 170–175, 183–188, 196, 206–207, 247, 276–277, 287, 314–315, 335, 424–425, 430 medication  153, 160, 198, 260–261, 409 Mengele, Joseph  166 Michelson, Oskar  156–157 Milch, Erhard  162n164 Military and Paramilitary Activities in and against Nicaragua case  16, 191, 208–209, 252, 330–332 military manuals  216–225 Canada  216–218 France  218–219 Germany  219 The Netherlands  219–220 United Kingdom  220–222 United States of America  222–224 military medical ethics  42–48 military necessity  14–15, 27, 84, 92–93, 112, 123, 237, 252, 331 mistake of fact  178–180 Mrugowsky, Joachim  64, 161–167, 356 mutilations  96, 100, 103–105, 121, 134, 137, 142–148, 177, 184, 193, 201–202, 206–207, 224, 227–231, 234, 270, 291–292, 428, 431 nationality  136n29 national medical associations  338–346, 353–355, 358, 363–364, 367–368, 371–376, 380–388, 399, 416, 427, 430–432 American Medical Association   339–341, 350–353 British Medical Association  364 Canadian Medical Association  341 Dutch Medical Association  344–345, 360n1 German Medical Association   342–343, 360n1 Israeli Medical Association  343–344, 350–353, 360n1 South African Medical Association  346

499

Index national Red Cross and Red Crescent societies  11, 22, 81, 109–113, 118 National Socialism  29, 64, 152–153, 161–167, 170, 286, 355–356 necessity  180–182 neglect  87–88, 93, 135, 147, 149, 151, 156–161 neutrality  12–14, 17–24, 72, 83–85, 106, 126, 166, 211, 221, 246, 298, 300–301, 356–357 non-discrimination  10, 12, 16, 25, 41, 92–94, 99–101, 111, 120–123, 125, 243, 261, 291–293, 295, 298, 307–308, 333–334, 353, 358, 392–393, 408, 414, 430 non-governmental organizations  1, 11, 186, 213, 217, 281, 312–313, 334, 363, 366–367, 369, 371, 418, 434 Norimitsu, Kikuchi  167–170 North Sea Continental Shelf cases  190, 196, 231 Ntakirutimana, Gérard  159–161 Nuernberg Charter  149–150, 158, 172, 176 Nuernberg Code  38, 165n182, 175, 430–431 Nuernberg Military Tribunal  87, 133, 162, 184, 190, 216 Oberheuser, Herta  161–167 occupation  98–102, 114–115, 117–118, 242, 254, 256, 399, 410–411 Physicians for Human Rights  56, 186 physician-patient relationship  64–65, 296–297, 304, 389, 397, 413, 419 Pilz, Fritz Georg Hermann  158–159 pluralistic approach  288–290, 296, 335–338, 354–359, 427 Pokorny, Adolf  161–167 Poppendick, Helmut  161–167 principlism  see Beauchamp and Childress prisoners of war  42–43, 47, 49–50, 53, 61, 67–68, 70, 73–74, 86–87, 94–98, 102–103, 110–113, 156–157, 167–170, 185, 214, 227–231, 246, 265–266, 271–273, 293, 297–298, 312–319, 396, 405 professional ethics  31, 98, 111, 283, 293, 297–302 proportionality  16, 181, 211, 258 prosecution  149–151, 170–175

The Auschwitz Trial  162, 171n215, 173–174, 176, 182 The Doctors’ Trial  29, 38, 64, 133, 135, 140, 161–167, 172–175, 227, 286–287, 305, 355–356 The Fischer Trial  172–174 The Hadamar Trial  154–156, 173 The Khabarovsk Trial  167–170, 172–174 The Michelson Trial  156–157 The Milch Trial  162n164, 227 The Ntakirutimana Trial  159–161, 173–174 The Pilz Trial  158 The Velpke Baby Home Trial  157–158, 173 psychologists  54–55, 59–60, 63–66, 125–126, 186–187 ratification  88, 195–196, 215, 233 reservations  95, 215–216, 234 Reservation to the Convention on the Prevention and Punishment of the Crime of Genocide case  253 respect and protect  84–85, 91–92, 95–96, 98–99, 106, 109., 112–113, 121–122, 128–129, 193, 232, 314, 407–408, 428 right to a remedy  244–249, 269, 271–273 right to health  73n305, 251, 261–264, 273, 308, 311, 410 right to humanity and dignity  266, 271–272 right to life  27, 239, 258–261, 273 Rome Statute  136–138, 143–148, 151, 159, 170, 175–184, 196–208, 215, 227–231, 248, 267, 314–315 Romberg, Wolfgang  161–167 Rose, Gerhard  161–167 Rostock , Paul  161–167 Ruff, Siegfried  161–167 Rumsfeld Memorandum  52, 58 Ryuji, Kajitsuka  167–170 Schäfer, Konrad  161–167 Schatz, Willi  171n215 Schröder, Oskar  161–167 scientific research  2, 322–324 Shunji, Sato  167–170 Sievers, Wolfram  161–167 soft law  310, 325–326, 365–368 Solferino  see Henry Dunant

500 South West Africa case  328–329 Standing Committee of European Doctors  348–349, 360n1 superior order  18, 23–24, 48, 61, 72, 116, 126, 162, 176–178, 179, 181, 194, 196, 212, 234, 269, 300–301, 424 Takaatsu, Takahashi  167–170 Tomio, Karasawa  167–170 torture  2–3, 27, 46, 49–51, 53, 60–63, 67–68, 73, 93, 100, 139–140, 142, 185–186, 205–206, 212, 252, 265–269, 271–272, 312–319, 340, 344, 350–353, 383n121, 395, 405–406, 412–413, 415, 429 Toshihide, Nishi  167–170 transparency  376, 384–385 travaux préparatoires  290–293, 299–302 triage  25, 41, 47–48, 93, 223, 308, 334, 340, 430 Turku Declaration  242–243 United Nations General Assembly   208–209, 238–239, 247, 272, 293–294, 312–313, 318, 387 Resolution 2444 (1968)  208, 239, 294 Resolution 2675 (1970)  208, 239, 294 Resolution 3218 (1974)  312 Resolution 37/194 (1982)  64, 312–319, 415 Resolution 60/147 (2005)  247 United Nations Educational, Scientific and Cultural Organization  312–313, 319–327, 333, 364 United Nations Human Rights Council  211–212, 245 United Nations Security Council  210–211, 293, 386–387 Resolution 237 (1967)  238, 293 Resolution 1860 (2009)  211 United Nations Principles of Medical Ethics (1982)  312–319, 333 Universal Declaration on Bioethics and Human Rights (2005)  319–327, 333, 366

Index Universal Declaration on Human Rights (1948)  16, 237, 249, 312 Unwarranted medical procedures  44–45, 90, 102–106, 123–124, 136, 171, 177, 181–182, 184, 189, 193–194, 196, 206, 227–231, 234–235, 285–286, 292–293, 305, 314, 358, 404–407, 415, 428–430 Experiments  103–104 Mutilation  103–104 Removal of Tissue and Organs  104–105 Vienna Convention on the Law of Treaties (1969)  279–280 Wahlmann, Alfred  154–156 waterboarding  51n190, 55–56, 62, 186, 267–268 Weltz, Georg  161–167 willful killing  139–140, 142, 155, 157–158, 171–173, 223, 259 Wirths, Eduard  165 World Health Organization  11, 261, 299, 312, 324, 334 World Medical Association  4, 146, 281, 302, 338, 343, 360–419 Declaration of Geneva  4, 342–343, 389–400, 419 Declaration of Helsinki  320, 407 Declaration of Malta  69, 72–74, Declaration of Tokyo  73, 313, 315, 351–352 International Code of Medical Ethics  389–400, 419 Regulations in Times of Armed Conflict  146, 232, 349, 400–414, 419 World War I  83, 85–86, 96, 156–157 World War II  25, 86–88, 92, 94, 100,104, 115–117, 133, 149, 151, 170, 176, 181–183237, 269, 286–287, 293, 300, 355, 364, 389 wounded and sick  90–91, 121–123, 410 Yamada, Otozō  167–170 Yuji, Kurushima  167–170 Zensaku, Hirazakura  167–170