First Do No Harm: Medical Ethics in International Humanitarian Law
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
By
Sigrid Mehring
LEIDEN | BOSTON
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
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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
5 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
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
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 con- flicts. 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 vic- tims 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 grati- tude 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 pro- viding 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.
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.
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 air- plane 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 achieve- ment 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 medi- cal personnel, to the personnel of civilian hospitals, to members of humanitar- ian 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 carry- ing 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 inter- changeably, though the former should be given preference as it emphasizes the humanitar- ian character of this area of international law. 2 In modern conflicts, there is a wide range of actors providing medical care, including physi- cians, 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
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 dis- cussed 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 mat- ters ‘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 ill- treatment 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).
[t]he alleged participation of health personnel in the interrogation pro- cess and, either directly or indirectly, in the infliction of ill-treatment con- stituted 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 per- son 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 inter- national 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 mod- ern 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.
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
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 com- mitted 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. 10 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’ involve- ment 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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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 combat- ants,1 the focus of their work has shifted with the focus of modern armed con- flicts. 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: phy- sicians’ 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’, mean- ing 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 war- fare 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 infor- mation, 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
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
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.
13 For example, the icrc in 2010 reported to regularly treat armed opposition in the non- international 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 interna- tional and national ngos, governments, un agencies and others, with the aim of estab- lishing 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 govern- ments 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.
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 pro- viding medical care, by which means, and to whom. While carrying out medi- cal 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 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. 18 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 disar- mament 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 Fact- Finding Mission on the Gaza Conflict (Goldstone Report), Doc. No. A/HRC/12/48 (25 September 2009), para. 907–908. 19 Preamble of the Statutes of the International Red Cross Movement and article 4 of the Statutes of the icrc. 20 Jean Pictet, Commentaire des principes fondamentaux de la Croix-Rouge (Institut Henry Dunant, 1979), p. 17–18.
1 Humanity The principle that forms the basis of international humanitarian law as dem- onstrated 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 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. 22 See for a more detailed discussion of the Martens Clause, see Chapter 7. 23 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). 24 Yves Sandoz, ‘International Humanitarian Law in the Twenty-First Century’, 6 Yearbook of International Humanitarian Law, 3 (2004), p. 7–8. 25 Francoise Bouchet-Saulnier, Dictionnaire practique du Droit Humanitaire (Éditions la Découverte & Syros, 1998), p. 294. 26 Pictet (ed), Commentary I, p. 108.
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 estab- lishes 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’.
34 icj, Nicaragua Case, para. 242. 35 Ibid. para. 243. 36 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 par- ties, namely parties to a war or conflict, freedom from sympathies and antipathies […]’. Hans Haug, Humanity for All (Paul Haupt Publishers, 1993), p. 460.
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 hospi- tal. 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 inter- ference 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 mem- bers 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, reli- gious, 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.
47 To be discussed in Chapter 2. 48 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 humani- tarian 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.
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 pro- tection 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 remain- ing 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
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. 55 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. 56 See for example Haug, Humanity for All, p. 469. 57 Kalshoven, ‘Impartialité et neutralité dans le droit et la pratique humanitaires’, p. 550. 58 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. 59 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.
Médecins Sans Frontières observes neutrality and impartiality in the name of universal medical ethics and the right to humanitarian assis- tance 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 reli- gious 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 con- certed 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.
64 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). 65 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. 66 Sara Davies, Global Politics of Health (Polity Press, 2009), p. 116. 67 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). 68 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.
69 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). 70 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. 71 This is established in articles 16 ap I and 10 ap II to be discussed in Part II and III. 72 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).
73 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 com- batants. 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 judg- ment and confirmed the conviction of Levy by general court-martial for violations of articles 90, 133 and 134 of the ucmj. 74 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. 75 To be discussed below.
76 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. 77 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. 78 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.
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 dif- ficult 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.
79 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. 80 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).
C 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 differ- ent.81 Some, like Pellegrino, believe there to be ‘extreme contingencies’ where this is not so.82 Leaving room for such vague exceptions seems rather undesir- able 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 ethi- cally challenging situations to the benefit of their patients. Others, most prom- inently 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 dedi- cated 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).
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 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. 85 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. 86 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.
87 Kuhse & Singer, ‘What is Bioethics?’, p. 6. 88 Rudolf Ramm, Ärztliche Rechts- und Standeskunde: der Arzt als Gesundheitserzieher (de Gruyter, 1943). 89 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. 90 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). 91 Steven H. Miles, ‘The Art of Medicine: Hippocrates and Informed Consent’, 374 The Lancet, 1322 (2009).
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 ada- mant 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 clini- cal 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 inter- pret the Oath from a modern point of view but rather convincingly considers it in its his- torical 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.
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.
102 Kuhse & Singer, ‘What is Bioethics?’, p. 4. 103 Van Rensselaer Potter, Bioethics – Bridge to the Future (Prentice-Hall Inc., 1971). 104 For a brief overview, see Kuhse & Singer, ‘What is Bioethics?’, p. 3–4; 7–10. 105 Though the McCormick bases his discussion on the Judeo-Christian tradition, this article nonetheless provides an interesting essay on the dilemmas provided by modern medi- cine, 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.
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 men- tioned, and bundle different theories, such as virtue ethics and ethics of care, together as Communitarianism.
3 Beauchamp and Childress’ Principles of Biomedical Ethics According to Beauchamp and Childress, four principles form the basis of bio- medical ethics: respect for autonomy, beneficence, non-maleficence, and jus- tice.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 prac- tice’, 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 presup- poses certain principles or maxims, secondly, that case analyses may also lead to conflict- ing 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.
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 con- flicts 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.
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.
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.
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 prob- ably, 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.
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.
145 Beauchamp & Childress, Principles of Biomedical Ethics, p. 216. 146 Ibid. p. 243. 147 As for example in Rawls, A Theory of Justice. 148 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.
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.
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 spe- cifically, 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 enlighten- ing. 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.
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 humanitar- ian 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.
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.
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 sug- gested 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.
173 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.
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 improv- ing the patient’s condition. It must be permissible to use new medica- ments 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 physi- cian 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.
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 inter- section of medical ethics and international humanitarian law. The legal assess- ment will be carried out where relevant in other sections of the book.
179 In articles 16 ap I and 10 ap II.
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 hostili- ties. The requirements for detention and interrogation and their rights to pro- tection 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 enlight- enment, still continues to be practiced to elicit information from rebels, dissi- dents, 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 endur- ance.183 Although the involvement of physicians in torture is nothing new, the extent of medical involvement in the coercive and at times torturous interro- gations 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’.
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, ter- rorist 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 com- batants 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).
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 back- ground 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 tech- niques 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 involv- ing 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 pre- vent 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 experi- encing 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).
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 iso- lation.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 availabil- ity 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 forego- ing 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 hear- ing loss’.194
191 It is not clear why Rumsfeld’s Memorandum of 16 April 2003 did not include all nine tech- niques 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’.
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 inter- rogation 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 inter- rogations 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 con- sidered 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’.
June 2004, the u.s. Supreme Court decided in Rasul v. Bush that Guantánamo Bay detainees could bring habeas corpus challenges concerning their deten- tion 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 prohibi- tion 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 secu- rity 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.
Association, amended their guidelines to explicitly prohibit medical involve- ment 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 ‘signifi- cant 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 ‘profes- sional provider-patient treatment relationship with detainees’. Medical per- sonnel 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 psychia- trists, 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, ‘waterboard- ing’, 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.
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 intel- ligence 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 per- sonnel 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 qual- ity 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 pro- gram, 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.
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 swell- ing of the limbs. After Rumsfeld’s approval of the new ‘counter-resistance tech- niques’ 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 com- bined impact of the 160 days of segregation from other detainees, 48 of 54 consecutive days of 18 to 20-hour interrogations, and the creative applica- tion 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.
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 medi- cal 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 unsuc- cessful 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
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. 227 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. 228 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. 229 This was on 6 December 2002. Ibid. p. 25. 230 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. 231 Interrogation Log Detainee 063, p. 27. 232 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. 233 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. 234 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 doc- tor and psychiatrist also look at the files to see what the interrogation plan recommends;
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 psychia- trists 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.
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 treat- ment apply. Civilian physicians, except those involuntarily drafted or otherwise working for authori- ties, are not faced with the problem of ill-treatment during detention and especially inter- rogation 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 facil- ities 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.
‘minimal physician participation’.244 The presence of physicians would thus ‘humanize’ torture. The arguments against this line of reasoning are manifold. In an interro- gation, 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 physi- cian 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 cru- elty, 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.
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.
It is controversially discussed whether physicians should even have inter- rogational functions. The Department of Defense argued that physicians work- ing 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 combat- ants, 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 psy- chologists, 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 inhu- man 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., compe- tence to stand trial, assessing criminal responsibility or child-custody evaluations), inde- pendent psychological evaluations for disability insurers, or employee screening for sensitive positions. Many psychologists also train others (e.g., police authorities, attor- neys 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,
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. 264 Bloche & Marks, ‘When Doctors go to War’, p. 5. 265 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. 266 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. 267 For example to identify ‘individual phobias’ as in Lt. Gen. Schmidt & Brig. Gen. Furlow, Schmidt Furlow Report, p. 14. 268 Bloche & Marks, ‘Doctors and Interrogators at Guantanamo Bay’, p. 7. 269 Ibid. p. 8.
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 exam- ple 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 men- tal 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.
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 ill- treatment 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 heal- ers’. 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 seri- ous 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 determina- tion 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
Golden, ‘Tough u.s. Steps in Hunger Strike at Camp in Cuba’, and Okie, ‘Glimpses of Guantanamo’, p. 2530. 280 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’. 281 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. 282 Declaration of John S. Edmondson, para. 10; 15. 283 See the relevant literature quoted in this section. 284 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. 285 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.
[Hunger strikes] are often a form of protest by people who lack other ways of making their demands known. In refusing nutrition for a signifi- cant period, they usually hope to obtain certain goals by inflicting nega- tive publicity on the authorities. Short-term or feigned food refusals rarely raise ethical problems. Genuine and prolonged fasting risks death or per- manent 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 vol- untary 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 usu- ally differentiated. In such cases, a physician should treat the cause of the men- tal 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
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. 291 Welsh, ‘Responding to Food Refusal’, p. 144. 292 Scott A. Allen & Hernán Reyes, ‘Clinical and Operational Issues in the Medical Management of Hunger Strikers’. Survival after ten weeks of fasting is ‘practically impos- sible’. 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). 293 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. 294 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.
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 phy- sicians.296 Detainees may perceive them as part of the (at times coercive) author- ity.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 physi- cian. Firstly, physicians have to decide whether to medically intervene when the health of the hunger striker deteriorates, and, secondly, whether to partici- pate 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 inten- tional 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 justifica- tion 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.
301 Incorrectly comparing hunger strike and suicide, authorities of detention facilities none- theless 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]hysi- cians 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 physi- cians, 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.
Where a prisoner refuses nourishment and is considered by the physi- cian as capable of forming an unimpaired and rational judgment con- cerning 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 nour- ishment 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 deci- sions’ 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 expli- cated 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.
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 hun- ger 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 depen- dency, 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 declara- tion 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).
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 supple- mented by the four guiding principles that form the basis of physicians’ behav- ior 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 medi- cal 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 par- ticipation of health personnel in such a process is contrary to interna- tional 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 speci- fied, 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 situa- tions. 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 stan- dards, 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.
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 guar- antee 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 univer- sal and legitimate concept of medical ethics in the international sphere. This could be a generally accepted specification of the four principles.
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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 medi- cal 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 pro- tection 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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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).
[…] des infirmiers et des infirmières volontaires, diligents, préparés et initiés à cette œuvre, et qui, reconnus par les chefs des armées en cam- pagne, 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 sol- diers 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 per- manent 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 orga- nization 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 Guillaume- Henry 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.
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; Auguste- Raynald 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 con- ference 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’.
19 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 interna- tional law. Herczegh, Development of international humanitarian law, p. 24.
26 Pictet (ed), Commentary I, p. 14. 27 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 pun- ish, 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 pres- ent convention’ (article 28).
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 popula- tions 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 discus- sion 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 dis- cussed in this book.
33 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 pre- ferred 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 bel- ligerents was not a party to it. 34 Liselotte B. Watson, ‘Status of Medical and Religious Personnel in International Law’, 20 jag Journal, 41 (1965), p. 44. 35 Article 2 Geneva Convention Relative to the Treatment of Prisoners of War of 1929. 36 To be discussed in Chapter 2.
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 pris- oners 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 suf- fered 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 medi- cal 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.
43 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 par- ties 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. 44 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. 45 Roberts & Guelff (eds), Documents on the Laws of War, p. 197; Herczegh, Development of international humanitarian law, p. 44. 46 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 rela- tive 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.
47 Fischer, ‘Protection of Prisoners of War’, p. 371. 48 See Chapter 3. 49 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. 50 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.
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 med- ical 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 com- mon 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 pur- poses 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 Jean- Marie 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.
55 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 per- son is entitled to the prisoner of war status of article 4 (A) gc iii. Article 12 is an elabora- tion 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.
61 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. 62 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. 63 Sandoz, et al. (eds), Commentary to the Additional Protocols, para. 444; Maurice Torrelli, Le Droit International Humanitaire (Presses Universitaires de France, 1985), p. 46. 64 Sandoz, et al. (eds), Commentary to the Additional Protocols, para. 451. 65 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. 66 Pictet (ed), Commentary I, p. 151–152.
67 Hilaire McCoubrey, International Humanitarian Law – Modern Developments in the Limitation of Warfare, 2nd Ed. (Ashgate Dartmouth, 1998), p. 82–83. The principle of non- discrimination 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.
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 con- tagion and infection committed by German medical personnel were to be pre- vented in future wars. It is apparent that the Geneva Conventions intended to prohibit all non-therapeutic experiments and only allow therapeutic experi- ments 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 biologi- cal 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-medi- cal grounds for discrimination by article 10 ap i. Moreover, certain acts of vio- lence 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 Articles 50 gc i and 51 gc ii. For further analysis of medical grave breaches, see Chapter 3. 73 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. 74 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. 75 Article 11 ap i provides a possible remedy, to be discussed below and in Chapter 3. 76 Customary international humanitarian law will be given more attention in Chapter 4.
77 This can also be found in articles 14 gc i and 16 gc ii. 78 For example by the United States and the United Kingdom, see for example the uk’s res- ervation to article 44 ap i which is available online at www.icrc.org/ihl.nsf/NORM/0A9E0 3F0F2EE757CC1256402003FB6D2?OpenDocument. 79 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). 80 Article 15 gc iii. 81 Article 15 gc iii. 82 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.
83 Kleffner, ‘Protection of the Wounded, Sick and Shipwrecked’, para. 603.2. 84 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. 85 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. 86 Fischer, ‘Protection of Prisoners of War’, para. 719 (3).
87 As discussed in Chapter 1. See Beauchamp & Childress, Principles of Biomedical Ethics, p. 216. 88 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. 89 The Additional Protocols build on this provision when they expand the protection of per- sons against unwarranted medical procedures. See the discussion below. 90 It is assumed that the attention referred to is medical because the third paragraph of this article refers to medical personnel. 91 Fischer, ‘Protection of Prisoners of War’, para. 719 (3). 92 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 con- cerning the retention of medical personnel, see below. 93 Articles 12 gc i and II and 10 ap I.
94 Article 31 gc iii. 95 The term ‘medical ethics’ will be analyzed in Part III. 96 The basis for articles 12–15 gc iii concerning the treatment of prisoners of war was intro- duced in article 2 Geneva Convention of 1906 and reiterated in articles 2–4 Geneva Convention relating to Treatment of Prisoners of War of 1929. 97 Articles 2 and 13 gc iv.
98 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. 99 Article 5 gc iv. 100 Article 27 gc iv. Notably, this provision is positioned at a less prominent point than com- parable provisions in the other Geneva Conventions. 101 See Uhler & Coursier (eds), Commentary IV, p. 134. For a more extensive discussion of article 10 ap I, see above. 102 Articles 18 and 19 gc iv. 103 Articles 18 and 19 gc iv. 104 Article 32 gc iv.
This is elaborated in detail in article 32 (2) gc iv stipulating that all ‘measures of brutality’ are prohibited, including mutilations, torture, and medical experi- ments which are not ‘necessitated by the medical treatment of a protected per- son’. 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 prohi- bition.106 The prohibition is, again, not specified and it remains unclear whether certain experimental treatments are allowed and under which condi- tion. 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 pro- scribes 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 respon- sible 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 civil- ian 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 pos- sibility of the reoccurrence of such experiments, including ethically highly questionable experiments, should not be excluded. According to Physicians for Human Rights, physi- cians at cia detention facilities experimented on detainees to perfect ‘enhanced interro- gation 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 occupa- tion, 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.
111 Uhler & Coursier (eds), Commentary IV, p. 272. 112 Article 56 gc iv. 113 Article 81 gc iv details this for persons interned under article 78 gc iv. 114 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.
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).
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.
128 Ibid. para. 478. 129 It is considered improbable that a person in the custody of an adversary party can volun- tarily 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.
However these procedures may only be carried out if the donation or graft is provided voluntarily and for therapeutic purposes, and under conditions con- sistent with generally accepted medical standards and specific medical con- trols. Here, consent is explicitly required although the donation of blood seems less invasive than a medical or scientific experiment. The requirement of voli- tion implies that a protected person physically or mentally incapable to con- sent 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 per- sons 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 oper- ations 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 pro- tected 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.
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 require- ment is absolute, whereas the second merely requires the best efforts. A pro- tecting 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 con- cerning ‘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 person- nel; 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 pro- tected if they are to provide adequate medical care. Physicians, as medical per- sonnel, 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 physi- cians 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.
142 Civilian physicians who do not fit in the categories, are additionally protected under arti- cles 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 administra- tion 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 pur- poses that medical units need to be assigned to fulfill and that are referred to in sub- paragraph (c): the ‘search for, collection, transportation, diagnosis or treatment – including first-aid treatment – of the wounded, sick and shipwrecked, or for the prevention of dis- ease’. 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.
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 hos- pital 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 estab- lishes that they ‘may in no circumstances be attacked or captured’. Concerning the spe- cific 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.
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.
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 deter- mined 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.
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. sub- paragraph (a) refers to ‘labour units’ in Geneva Convention I and to ‘working detach- ments’ 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 formu- lation of article 28 gc i which refers to ‘professional ethics’. 165 Preux (ed), Commentary III, p. 233.
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 per- manent or temporary medical personnel may be required to assist in the treat- ment 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 abso- lute 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 person- nel 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 permis- sible for belligerents mutually to authorize each other, by means of special agreements, to retain in the camps doctors and medical orderlies for the pur- pose of caring for their prisoner compatriots’.172 The Geneva Conventions have
166 Article 30 gc i. Rezek, ‘Protection of the Victims of Armed Conflicts’, p. 158. 167 Article 118 gc iii. 168 Article 29 gc i. 169 Article 32 gc iii. 170 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.
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 arti- cle 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 person- nel 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 identifi- cation apply equally to this category of medical personnel. 180 Regarding such concerns, Torrelli, ‘La Protection du Médecin dans les Conflits Armés’, p. 584.
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.
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.
192 Bock, ‘Der Schutz sanitätsdienstlicher, ärztlicher und seelsorgerischer Aufgaben’, p. 190. 193 Solf, ‘Studies in honour of Jean Pictet’, p. 244. 194 Bothe, et al., New rules for Victims of Armed Conflicts, p. 127. 195 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. 196 Torrelli, ‘La Protection du Médecin dans les Conflits Armés’, p. 597. 197 For an example of such punishments see McCoubrey, International Humanitarian Law, p. 95–96. 198 Sandoz, et al. (eds), Commentary to the Additional Protocols, para. 651. 199 See also Baccino-Astrada, Manuel des Droits et Devoirs du Personnel Sanitaire lors des Conflits Armés, p. 38.
Protocol I. Equally, they shall not be compelled to refrain from taking neces- sary 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 medi- cal 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 pre- venting 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 consid- ered 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 confidential- ity facilitates an atmosphere of trust between patient and treating physician. Because national laws and regulations can override international humanitar- ian 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 draft- ing 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 hon- our 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.
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.
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 terri- tory 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 con- trol over a part of its territory as to enable them to carry out sustained and concerted mili- tary 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 vio- lence 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 non- international armed conflicts. Yet after long discussions, only the most basic humanitar- ian principles and a minimum of regulations could be agreed upon. Pictet (ed), Commentary I, p. 46–51.
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 governmen- tal 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 ses- sions of Additional Protocol II. O.R. XI, CDDH/II/SR.25, delegate Ostern (Norway), p. 249.
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 circum- stances’. Humane treatment is not defined and depends on the circum- stances,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 unwar- ranted medical experiments. It is surprising that experiments are not expressly listed in the enumeration considering the emphasis placed on their prohibi- tion 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 dis- crimination in the treatment of a person is prohibited except if based on medi- cal 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.
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.
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.
Taking into account that international humanitarian law does not provide for a system of grave breaches for non-international armed conflicts, this prohibi- tion 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: ‘[para- graph] 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 restric- tively 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 insur- gents or guerilla fighters.238 Common article 3 gcs implicitly protected medi- cal 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 criminal- ization 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 internatio- naal 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 prosecu- tion 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
The protection provided for both permanent and temporary medical per- sonnel 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 com- pulsion’.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 con- cretization 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 spec- ified. 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 ques- tions 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 physi- cians, but all persons who carry out medical activities, e.g. midwives, nurses,
Protection of Independent Humanitarian Organizations and their Staff in International Humanitarian Law’, p. 120. 240 Medical and religious personnel are both protected, see article 9 ap II. This book concen- trates on the medical personnel. 241 O.R. XI, CDDH/II/SR.44, Statement by Mr Bothe, Rapporteur of the Drafting Committee, p. 485. 242 As neither the icrc Commentary offers an interpretation of this element, nor literature, it can be taken as a general recommendation to national authorities. 243 Sandoz, et al. (eds), Commentary to the Additional Protocols, para. 4676. 244 Ibid. para. 4677. 245 The term medical ethics will be scrutinized and more closely defined in Part III.
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
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 Solf, ‘Studies in honour of Jean Pictet’, p. 245. 252 In article 16 ap I the two aspects were drawn together in a single provision. 253 Sandoz, et al. (eds), Commentary to the Additional Protocols, para. 4705. 254 Abi-Saab, ‘Humanitarian Law and Internal Conflicts’, p. 219.
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 dis- cussed in Chapter 1.
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 inconsisten- cies, 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 nec- essary 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.
© koninklijke brill nv, leiden, 2015 | doi 10.1163/9789004279162_005
7 Uhler & Coursier (eds), Commentary IV, p. 590. 8 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. 9 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 Swaak- Goldman (eds), Substantive and Procedural Aspects of International Criminal Law – Commentary (Kluwer Law International, 2000), p. 70–72. 10 The Geneva Conventions require conditional universal jurisdiction: states should prose- cute 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 humani- tarian 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.
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
11 Israel District Court, Attorney General v. Eichmann, Judgment [1961] i.l.r., Vol. 36, para. 16. 12 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 juris- diction 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 Hans- Heinrich Jescheck, ‘War Crimes’, in Rudolf Bernhardt (ed), Encyclopedia of Public International Law (Elsevier, 1982), p. 1352. 13 Paul Julian Weindling, Nazi Medicine and the Nuremberg Trials – From Medical War Crimes to Informed Consent (Palgrave Macmillan, 2004), p. 1.
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]utila- tion, 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.
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 addi- tionally needs to have been committed willfully and have seriously endangered the health and integrity of the patient. To actually be considered a serious dan- ger, the effect of the medical procedure must affect the person treated in a ‘long-lasting or crucial’ manner.19 Usually, medical procedures without a thera- peutic 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 gen- erally also applies to a party’s own nationals, the denial of the provision’s protec- tion 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 ‘[per- sons] 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 per- son ‘in the power of a party other than the one on which he depends’.26 This
19 Sandoz, et al. (eds), Commentary to the Additional Protocols, para. 3474. 20 Ibid. para. 493. 21 Count 2 of the Indictment in u.s. Military Tribunal, The Doctors’ Trial, which will be dis- cussed 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, ddr- Justiz 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.
27 Sandoz, et al. (eds), Commentary to the Additional Protocols, para. 493 (b). 28 Bothe, et al., New rules for Victims of Armed Conflicts, p. 115. 29 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). 30 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. 31 Article 5 (1) ap II.
Protocol II does not determine what consequences a violation of the prohibi- tion has. The icrc Commentary states that: ‘[paragraph] 2 may be considered as a sort of guideline which may be developed, depending on the circum- stances 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 prose- cuted 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 pro- fessional 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 viola- tions 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 com- mitted during non-international armed conflicts. The requirements for medical
32 Sandoz, et al. (eds), Commentary to the Additional Protocols, para. 4581. See also Kleffner, ‘Protection of the Wounded, Sick and Shipwrecked’, para. 606. 33 The acts constituting grave breaches listed under article 85 (3) ap I are ‘[i]n addition to the grave breaches defined in Article 11 […]’. 34 Grave breaches under the Geneva Conventions of 1949 are serious violations of interna- tional 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. 35 On war crimes in non-international armed conflicts in general, see Eva La Haye, War Crimes in Internal Armed Conflicts (Cambridge University Press, 2008). 36 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 con- flicts see ICTY Tadić Decision on Jurisdiction, Separate Opinion of Judge Abi-Saab, para. IV. 37 La Haye, War Crimes in Internal Armed Conflicts, p. 121 et seq.
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.
2 Medical Aspects of the Classic Grave Breaches Articles 50 gc I, 51 gc II, 130 gc III and 147 gc IV exhaustively enumerate vio- lations of the Conventions considered serious enough to merit universal pros- ecution.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 medi- cal 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, irre- spective 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 even- tualis.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 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. 45 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. 46 Pictet (ed), Commentary II, p. 271. 47 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. 48 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. 49 Uhler & Coursier (eds), Commentary IV, p. 597. 50 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.
51 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 pursu- ant 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.
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 imple- mented 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 interna- tional law.63 The criminalization of medical grave breaches, but also the penal- ization 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
60 See comparatively articles 12 gc I and II, 13 gc III, 32 gc IV and the discussion in Chapter 2. 61 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 cus- tomary character of the relevant provisions in international humanitarian law. It includes an examination of some national codifications of medical grave breaches or war crimes.
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 experi- ments, 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 pros- ecuted 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 out- rages upon personal dignity that could be committed in a medical context,
64 ICTY Tadić Appeal Judgment para. 128–137. 65 Nevertheless, the Čelebići Indictment charged the accused with the willful killing of per- sons 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 for- mer 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 elabo- rated on this aspect separately.
2 The Rome Statute Article 8 of the Rome Statute enumerates all war crimes the icc has jurisdic- tion 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 per- sons.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
66 Under article 3 of the Special Court for Sierra Leone Statute mutilation as a form of vio- lence 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 pros- ecutions 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. 67 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. 68 Article 8 (1) Rome Statute. This requirement of a plan or policy has generated much con- troversy because it is thought to introduce criteria that were previously limited to geno- cide 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 seri- ous 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. 69 The provision is based on articles 12 gc I, 13 gc II, 13 gc III, 32 gc IV and 11 (2)(b) ap I. 70 Dörmann, ‘Article 8 (a)’, para. 21.
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 cumula- tive 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.
Article 8 (2)(e)(xi) criminalizes mutilations and medical and scientific experiments amongst ‘other serious violations of the laws and customs appli- cable 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 penal- ized 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-interna- tional 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 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. 76 The only difference is in the wording ‘another party to the conflict’ instead ‘adverse party’. Dörmann, Elements of War Crimes, p. 483. 77 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 defi- nitions of war crimes in non-international armed conflict. Schabas, An Introduction to the International Criminal Court, p. 54. 78 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). 79 In comparison, article 11 (1) ap I speaks of ‘indicated by the state of health of the person’. 80 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 ‘mutila- tion’ as a medical procedure lacking medical justification. Moir, ‘Conduct of Hostilities – War Crimes’, p. 513.
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 con- cerned and which is not consistent with generally accepted medical stan- dards 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 stan- dards 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.
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 insti- tuted for medical war crimes under the Rome Statute. The prohibition of muti- lations 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 perpetra- tor 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.
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, muti- lations and experiments, when committed in both international and non- international 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 proce- dures 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).
99 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. 100 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. 101 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. 102 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. 103 Especially in countries where the principle of nulla poena sine lege is considered princi- pal, it was difficult to prosecute persons without violating general principles of criminal law. Pictet (ed), Commentary I, p. 396.
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 per- sons, 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.
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
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 deter- mined 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 doc- umentation of the trial, see Joachim S. Hohmann, Der ‘Euthanasie’-Prozess Dresden 1947 – eine zeitgeschichtliche Dokumentation (Peter Lang, 1993). Following Cassese’s argumen- tation, 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 for- mer 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
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 rassen- hygienischen 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.
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 abet- ted’ 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 con- sequences 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.
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 dis- cussion 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.
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 ‘viola- tion 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 stat- ing 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.
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.
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
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 physi- cian 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 humani- tarian 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 mis- drijven 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 spe- cific 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
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 medi- cal 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 depar- ture.157 The prosecution alleged that Ntakirutimana by abandoning his hospi- tal 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 con- clusive 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 acquit- ted of the charges of a crime against humanity for inhuman treatment by
Prosecutor – La Caccia, p. 285; ‘Investigation of allegations of inhuman treatment of people and illicit trafficking in human organs in Kosovo’, para. 8. 155 International Tribunal for Rwanda, Prosecutor v. Elizaphan Ntakirutimana, Gérard Ntakirutimana & Charles Sikubwabo, Mugonero Indictment [2000], para. 4.6–4.7. 156 Prosecution’s Pre Trial Brief, Annex B. See ictr Ntakirutimana Trial Judgment, para 137–153. 157 Ibid. para. 137–138. 158 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. 159 ictr Ntakirutimana Trial Judgment, para. 151. 160 Ibid. para. 153.
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 physi- cian, 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 discrimina- tory 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 argu- ment 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.
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 con- nected with plans and enterprises involving medical experiments with- out 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, cru- elties, 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 with- out their consent. The relevant experiments were the well-known ‘high-altitude’, ‘low-pres- sure’ 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.
The criminal experiments were high altitude, freezing, malaria, mustard gas, sulfanilamide, bone muscle and nerve regeneration, bone transplant, sea- water, epidemic jaundice, sterilization, typhus (and other vaccines), poison and explosives experiments. Furthermore, R. Brandt and Sievers were specifi- cally charged with the illegal endeavor of killing 112 Jewish persons for com- pleting 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 ‘eutha- nasia’ 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.
In this case dealing exclusively with medical war crimes and almost exclu- sively with doctors, it was indispensable that the prosecution addressed medi- cal 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, par- ticularly the principle of primum non nocere (first do no harm).174 Basic stan- dards 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 trans- plant 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 con- centration 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.
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 con- sent. 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 sui- cide (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.
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 rab- bits 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 grave- yard 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 Cross- Examination 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.
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 manufactur- ing 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 arti- cle consists of a comment by former judge of the imtfe, Judge Röling, who appears genu- inely surprised and appalled by the revelation.
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 bacteriolo- gist, 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 physi- cians and bacteriologist.
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 bacterio- logical 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 predeter- mined. Boris G. Yudin, ‘Research on Humans at the Khabarovsk War Crimes Trial’, in Jing- Bao 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 disput- able validity, Yudin, ‘Research on Humans at the Khabarovsk War Crimes Trial’, p. 70–72. 207 Ibid. p. 66. 208 Ibid. p. 272.
4 General Observations Concerning Prosecution Prosecutions for medical war crimes per se are rare.212 With the horrific medi- cal crimes committed in the course of World War II – physicians’ involvement in the extermination machinery, their experiments and their role in the ‘eutha- nasia’ 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 arti- cle 8 (2)(b)(x) or (e)(xi) of the Rome Statute. From the perspective of modern
209 Ibid. p. 263. 210 Ibid. p. 395–404. 211 Ibid. p. 432–433. 212 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 com- mitted during an armed conflict but in the direct aftermath, the fact that the illegal traf- ficking 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.
213 Lifton classifies the rationale behind some research, for example the electroshock ther- apy 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 participa- tion 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 evi- dence. Another dentist, Dr. Willi Frank, was convicted for carrying out selections and super- vising 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
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 involve- ment in the extermination, he had shown some humanity in the work in the concentra- tion 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 addi- tion, 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 second- ary 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 experi- ments. 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
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 will- fully 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 extermina- tion process in concentration camps merely discussed the role of the physi- cian,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 Auschwitz- Museum (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 concentra- tion 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.
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 exter- mination 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 objec- tions and silenced their conscience’ (‘Sie haben aber diese Hemmungen und jegliche sit- tlichen 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 him- self 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 sub- mitted 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 discrep- ancy between the medical profession and the work physicians such as Fischer were doing at the concentration camps. Winter concluded that the physicians had knowingly vio- lated 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.
D Possible Defenses to Medical War Crimes
Like many national systems, international criminal law recognizes two catego- ries of circumstances excluding criminal liability: justifications and excuses.224 A justification is a circumstance whereby an act that violates the law is consid- ered 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 requi- site ‘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 crimi- nal 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.
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 dis- cussed 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 experi- ments 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.
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 knowl- edge 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 superior- subordinate 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 mutila- tion 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 dis- obey 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 respon- deat 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 deliv- ered 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.
2 Mistake of Fact A physician having committed a medical war crime out of an ‘honest and reason- able 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 mis- conception 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.
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, regard- ing 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 sub- jects 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. Rüter- Ehlermann & 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 crimi- nals. (Christiane Nill-Theobald, ‘Defences’ bei Kriegsverbrechen am Beispiel Deutschlands und der usa (Edition Iuscrim, 1998), p. 342). The reason for acquittal was however insuffi- cient 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.
3 Necessity and Duress The defenses of necessity and duress are closely connected, and often con- fused 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 doc- trine, 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 Swaak- Goldman (eds), Substantive and Procedural Aspects of International Criminal Law – Commentary (Kluwer Law International, 2000), p. 375.
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 con- sult 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.
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 establish- ing 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 ‘commit- ted 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-Verbrechen- Lfd. 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 involve- ment in ‘interrogational torture’, especially when faced with terrorist threats. For exam- ple, 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
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 neces- sitated. 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 con- sist of behavior that would probably equally violate medical ethics and would classify as manifestly unlawful. In combination with the explicit grant of dis- obedience 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 phy- sicians 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.
272 Nevertheless, consent can never be used as an excuse for an unwarranted medical procedure. 273 Bothe, ‘War Crimes’, p. 413.
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 prosecu- tion of physicians involved in the ill-treatment of detainees during interroga- tions and detention in general. In detention facilities discussed in Chapter 1 physicians were involved in a variety of tasks: monitoring the health of detain- ees prior to, during, and after interrogations, providing medical clearance for coercive interrogations, force-feeding detainees, and participating in the devel- opment 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 vari- ous reports of detention, e.g. Al Qahtani’s log, one could classify certain ele- ments 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 discus- sion on the prohibition of torture and cruel, inhuman, and degrading treatment in inter- national 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’.
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 autho- rized the torture of detainees have escaped discipline, accountability or even internal investigation’. Rubenstein & Xenakis, ‘Doctors without Morals’.
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 experi- ence 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 pre- cisely 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 mis- conduct is mandatory under both New York law and the agency’s own rules and regula- tions’. 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 pro- gram, 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).
286 The role of international courts in this respect is described in Cassese, International Criminal Law, p. 42.
When considering the legal framework of the role of physicians in armed conflicts, one cannot only examine treaty law. Even though treaties in interna- tional 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 pro- tection 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 provi- sions 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 organiza- tions, 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.
© koninklijke brill nv, leiden, 2015 | doi 10.1163/9789004279162_006
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 custom- ary 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 exten- sive 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 cus- tomary 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 inter- national 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 spe- cially 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 estab- lished 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
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 per- sonnel 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 inter- national 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 state- ment to that effect. See for example the reference to the ‘codification […] of the law of
None of the provisions explicitly declare to codify customary international law, nor can their declaratory character be inferred from the travaux prépara- toires.13 The Geneva Conventions I – III in their perambulatory clauses explic- itly 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 cus- tom. Geneva Convention IV states its purpose is the establishment of protec- tion 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 estab- lished 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 agree- ments.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
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 signifi- cantly. 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. 13 Sandoz, et al. (eds), Commentary to the Additional Protocols, General Introduction. 14 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. 15 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.
2 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 sta- tus. 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 experi- mentation and mutilations, but additionally provides a new and extended pro- tection 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 protec- tion against unwarranted medical procedures is so detailed and specific that it
16 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.
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 Ibid. para. 641. 23 icty Čelebići Trial Judgment, para. 296–306.
24 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. 25 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. 26 Henckaerts, ‘The Development of International Humanitarian Law and the Continued Relevance of Custom’, p. 119. 27 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. 28 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. 29 For a list of state parties, consult www.cicr.org/ihl.nsf/WebSign?ReadForm&id=470&ps=P. 30 For a list of state parties, consult www.icrc.org/ihl.nsf/WebSign?ReadForm&id=475&ps=P. 31 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.
Additional Protocols is not enough to establish whether certain of their provi- sions 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 prac- tice.34 By implementing the Geneva Conventions and Additional Protocols, especially by criminalizing the grave breaches, a state demonstrates its accep- tance of the relevant provisions. A new impetus for the implementation was given with the adoption of the Rome Statute which criminalized certain medi- cal 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 over- view 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
32 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. 33 This is the so-called ‘Baxter Paradox’. Baxter, ‘Treaties and Custom’, p. 64. 34 Michael Bothe, ‘Customary International Humanitarian Law – Some Reflections on the icrc Study’, 8 Yearbook of International Humanitarian Law, 143 (2005), p. 157. 35 For a list of instruments of domestic implementation of the Rome Statute which includes the grave breaches provisions, see www.iccnow.org/?mod=romeimplementation. 36 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).
37 Völkerstrafgesetzbuch (VStGB) of 26 June 2002 (BGBl. I p. 2254). 38 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. 39 Gerhard Werle, ‘Einleitung Völkerstrafgesetzbuch’, in Wolfgang Joecks & Klaus Miebach (eds), Münchner Kommentar zum Strafgesetzbuch: Nebenstrafrecht III: Völkerstrafgesetzbuch (C. H. Beck Verlag, 2009), p. 439. 40 Article 1 VStGB. This development is also in line with German jurisprudence. Kai Ambos, ‘§ 1: Anwendungsbereich’ in Ibid. p. 475. 41 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. 42 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. 43 Article 8 (1) (8) VStGB. 44 Article 8 (1) last sentence, respectively article 8 (4) VStGB. 45 Article 5 VStGB.
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 inter- est 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 com- ply 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 med- ication, giving an overdose of a certain medicine, or using surgery when medica- tion 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 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. 47 Deutscher Bundestag, bt-Drucksache, ‘Gesetzesbegründung eines Gesetzes zur Einführung des Völkerstrafgesetzbuches’, 14/8524, (13 March 2002), p. 27. 48 Ibid. p. 28. 49 Zimmermann & Geiß, ‘Kommentar § 8(2) Völkerstrafgesetzbuch’, p. 691. 50 The Explanatory Note proclaims that its application in both non- and international armed conflicts is accepted in customary international humanitarian law. 51 Bundestag, ‘Gesetzesbegründung eines Gesetzes zur Einführung des Völkerstrafgesetzbuches’, p. 28.
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 other- wise 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 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. 53 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.
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.
59 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. 60 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. 61 ‘[…]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. 62 Article 13 wim. 63 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 irratio- nele van de levenslange straf’, in A. Harteveld, et al. (eds), Systeem in ontwikkeling, Liber amicorum G.Knigge (Wolf Legal Publisher, 2005).
Under article 6 (2)(c) wim certain medical war crimes are criminalized if committed within a non-international armed conflict. They were listed sepa- rately from the violations of common article 3 gcs criminalized under sub- paragraph (a). Pursuant to article 6 (2)(c) wim mutilations and medical or scientific experiments on persons in the power of an adverse party are prohib- ited 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 proce- dures, have been implemented.69 Because of the dynamic reference, prosecu- tion 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 gen- erally 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.
Geneva Conventions (Amendment) Act of 1995 introduced universal jurisdic- tion for all such offences, yet limited it to those committed during an interna- tional 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 ‘whole- sale 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 resi- dent 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 juris- diction.81 It criminalizes the grave breaches of Additional Protocol I without
71 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’. 72 International Criminal Courts Act 2001 (c. 17) of 11 May 2001. 73 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. 74 Turns, ‘Aspects of National Implementation of the Rome Statute’, p. 351. 75 S. 50 (1), 51 (1) and 58 (1) icc Act 2001. Article 8 (2) Rome Statute is included in Schedule 8. 76 S. 51 (2) and 58 (2) icc Act 2001. 77 Turns, ‘Aspects of National Implementation of the Rome Statute’, p. 346–349. 78 Rowe & Meyer, ‘The Geneva Conventions (Amendment) Act 1995’; Turns, ‘Aspects of National Implementation of the Rome Statute’, p. 351–352. 79 The offences are punishable when committed with intent and knowledge unless other- wise provided for in the relevant criminal provision. Intent is specified as intent to com- mit 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. 80 S. 53 (6) and 60 (6) icc Act 2001. 81 S. 70 icc Act 2001 and Explanatory Notes to International Criminal Act 2001, (2001), para. 92.
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 commit- ted on South African territory, or if the person having committed is a South African citi- zen 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 (cah- wca – 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 pros- ecutable under Canadian law. Unwarranted medical procedures are generally criminal- ized 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 informa- tion, 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.
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
(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’.
92 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. 93 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. 94 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. 95 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.
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.
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.
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 mislead- ing the enemy as well as public opinion and foreign Governments. In appraising the forma- tion 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 deci- sions’. 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 cus- tomary 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 treat- ment 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.
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 ques- tion, 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.
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 medi- cal 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 find- ings concerning detention by Israeli armed forces. A similar conclusion can be drawn from a report concerning the non- international armed conflict in Syria. The un Human Rights Council pub- lished 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 combat- ants or civilians.118 Interestingly, it also describes cases where medical per- sonnel 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 dis- cussed 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 physi- cians 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 vio- lated 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.
4 Opinio Juris Due to the overwhelming number of state parties to the international humani- tarian 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 deci- sion. 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),
icrc Study Customary International Humanitarian Law Vol. 1: Rules, p. XXXII; ICTY Tadić Appeal Judgment, para. 131. 124 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. 125 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. 126 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. 127 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).
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 identi- cal 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.
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 dif- fering 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 reli- ance 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.
139 Ibid. para. 1719. 140 Ibid. para. 1715. 141 These laws of armed conflict are defined as ‘the result of long standing custom while oth- ers 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).
As only the Manual integrated the important provisions concerning medi- cal treatment, the Canadian documents do not provide coherent opinio juris regarding the obligation to abide by medical ethics or that medical proce- dures 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 pub- lics’.145 Although the preamble claims that ‘ce manuel n’a qu’une valeur indica- tive 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 pun- ished 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 con- flicts. 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 déontolo- gie’. Ibid. p. 21. This appears under the Keyword: ‘Règles de protection de Croix-Rouge en Croissant-Rouge’.
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 treat- ment is reiterated rather concisely in the Brochure ‘Principles of international humani- tarian 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.
156 Ibid. para. 0605, p. 91. 157 Wet Internationale Misdrijven (19 juni 2003). 158 Handleiding Humanitair Oorlogsrecht, para. 1053, p. 166. 159 Ibid. para. 0617, p. 96. 160 Ibid. para. 1057, p. 167. 161 United Kingdom Ministry of Defence, The Manual on the Law of Armed Conflict, 0-19- 924454-5 (2004).
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.
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 suf- ficient evidence of their acceptance by the United Kingdom as a legal obliga- tion 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 per- sonnel ‘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 refer- ence 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 further- more 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 follow- ing 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).
Offenses against the wounded, sick […]: willful killing; torture or inhu- man 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 stan- dards’ 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 princi- ples 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 mili- tary personnel may require treatment before u.s. military wounded or allied personnel. The principle of triage is consistent with this obligation’. The pro- tection 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, wound- ing, 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.
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.
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 treat- ing 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, accord- ing 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.
It has been noted that the Study chose ambiguous state practice, for exam- ple, by heavily relying on military manuals.185 In stating that ‘opinio juris is gen- erally 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 doc- trine’.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 vir- tually 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 sta- tus to provisions should never be to circumvent the express consent require- ment 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 sim- plification 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 cus- tomary rules may be seen as an attempt to circumvent the requirement of express con- sent 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
1 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 prison- ers 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 con- flicts, mutilations and unwarranted medical procedures are prohibited on per- sons taking no active part in hostilities.197 Furthermore, both mutilations and experiments are criminalized in article 8 of the Rome Statute for both non- and 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.
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’. 192 Henckaerts, et al. (eds), icrc Study Customary International Humanitarian Law Vol. 1: Rules, p. 320. 193 Articles 13 gc III, and 32 gc IV. 194 Articles 12 gc I and II, 13 gc III, and 32 gc IV. 195 Articles 50 gc I, 51 gc II, 130 gc III, and 147 gc IV. 196 Articles 11 and 85 ap I. 197 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. 198 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. 199 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.
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 manu- als and eleven national legislations explicitly establish applicability of the pro- hibition 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 practi- cable 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 pro- tect the wounded, sick and shipwrecked against ill-treatment and against pillage of their personal property’. Both Rules apply in international and non-international armed con- flict according to the icrc Study. Henckaerts, et al. (eds), icrc Study Customary International Humanitarian Law Vol. 1: Rules, p. 400–405. Denying their customary charac- ter, 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 (muti- lations and experiments). National Legislation: Australia (mutilations, experiments), Azerbaijan (experiments), Burundi (mutilations and experiments), El Salvador (experi- ments 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 mutila- tions are also prohibited in non-international armed conflicts.
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 experi- ments: 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 proce- dures), 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.
206 Explicitly including a requirement for consistency with generally accepted medical stan- dards: Military Manuals: Canada, Ecuador, Germany, New Zealand, Spain, uk, and u.s. Navy. National Legislations: Argentina, Armenia, Belgium, Colombia (reference to ‘gener- ally 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.
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.
214 Some states, like Canada, additionally call for respect for ngos that are not officially rec- ognized 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.
C Conclusion
Even though the Geneva Conventions due to their extensive history and uni- versal 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.
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 con- clusion of Benoit, ‘Mistreatment of the Wounded, Sick and Shipwrecked by the icrc Study on Customary International Humanitarian Law’, p. 216–217; Bethlehem, ‘The meth- odological 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.
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 con- currently 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 prohibi- tion of medical and scientific experimentation and the right to humane treat- ment. 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 con- tinue 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 guar- antee respect for the physical and mental integrity of the person’. (footnotes omitted).
© koninklijke brill nv, leiden, 2015 | doi 10.1163/9789004279162_007
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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, interna- tional 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 protec- tion 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 interna- tional law, a mutual awareness grew in the second half of the twentieth cen- tury. 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 interna- tional 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 Kolb, ‘Human Rights and Humanitarian Law’, para. 9. 10 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. 11 Kolb, ‘The Relationship between International Humanitarian Law and Human Rights Law’, p. 444 (French Version). 12 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. 13 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. 14 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)). 15 Final Act of the International Conference on Human Rights: Human Rights in Armed Conflict, Doc. No. A/Conf.32/41 (12 May 1968).
300854 The Relevant Human Rights 239 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 funda- mental 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 fur- thermore 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 concur- rent 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 gen- erali) 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 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. 17 Gasser, ‘The changing Relationship between International Criminal Law, Human Rights Law and Humanitarian Law’, p. 1114. 18 Abi-Saab, ‘Humanitarian Law and Internal Conflicts’, p. 222. 19 Sandoz, et al. (eds), Commentary to the Additional Protocols, para. 4429. 20 International Court of Justice, Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion [1996], icj Reports, 1996, para. 25.
300854 240 chapter 5 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 spe- cialis, 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 comple- mentary application of human rights law in armed conflicts and rejected the lex specialis approach.24
21 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 interna- tional humanitarian and human rights law. Schabas, ‘Lex Specialis? Belt and Suspenders?’, p. 597–598. 22 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. 23 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. 24 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 con- flict, 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 con- crete norms genuinely diverge, the lex specialis derogat legi generali principle can be used to determine which specific rule or norm provides a more ade- quate basis of protection for a (protected) person in a specific case.26 However,
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 Inter- American 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. 25 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 interna- tional 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. 26 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.
300854 242 chapter 5 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 reconcil- ing conflicting norms, the protection of persons should be the guiding princi- ple: 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 enforce- ment’ 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 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. 28 Allan Rosas & Monika Sandvik-Nylund, ‘Armed Conflicts’, in Asbjørn Eide (ed), Economic, Social and Cultural Rights: A Textbook (Martinus Nijhoff Publishers, 2001), p. 408. 29 Dröge, ‘The Interplay between International Humanitarian Law and International Human Rights Law in Situations of Armed Conflict’, p. 347–348. 30 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. 31 Kolb, ‘Human Rights and Humanitarian Law’, para. 42. 32 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. 33 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 medi- cal 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 prin- ciples 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 appli- cable 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.
3 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 per- sons 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
34 Article 14 of the Turku Declaration. 35 Gowlland-Debbas, ‘The Right to Life and the Relationship between Human Rights and Humanitarian Law’, p. 146. 36 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-à- vis 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 con- trast, 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 Human Rights Committee, General Comment No. 31, para. 8. 38 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. 39 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. 40 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. 41 Fleck (ed), The Handbook of International Humanitarian Law, para. 134.
300854 The Relevant Human Rights 245 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 obliga- tions. 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 pres- ence of representatives of the state party and publishes concluding observa- tions 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 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. 43 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 man- dated 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)). 44 Articles 40 iccpr and 16 and 17 icescr. 45 Article 41 iccpr. 46 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. 47 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. 48 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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complaint 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 ret- rospectively 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 consid- erations of a state.51 Nonetheless, the option of adjudication implies an indi- vidual 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 neu- trality, 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.
300854 The Relevant Human Rights 247 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 individu- ally hold a state responsible for violations of international humanitarian law.58 A remedy as such for victims of violations is lacking.59 Two notable develop- ments 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 interna- tional humanitarian law. Although this does not include all breaches of the Geneva Conventions, it includes the grave breaches, including medical grave
56 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. 57 The criminal prosecution of medical war crimes is scrutinized in Chapter 3. 58 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. 59 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, cer- tain 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. 60 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.
300854 248 chapter 5 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 interna- tional humanitarian law can be found in article 75 Rome Statute which estab- lishes 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 reha- bilitation.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 humanitar- ian law is that it contains specific and absolute obligations for parties to a con- flict, 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 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. 62 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). 63 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. 64 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. 65 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 humanitar- ian law. Where human rights law provides certain (limited) remedies for indi- viduals which target the responsible state, under international humanitarian law the only remedy for victims of violations thereof is a stately criminal pros- ecution 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 trea- ties allow for derogation in cases of public emergency including armed con- flict.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 con- cerning 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 dero- gation, the public emergency must threaten the life of the nation and the state of emergency must have been officially proclaimed. Furthermore, the deroga- tion 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 provi- sions 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 situ- ation 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 dero- gating: 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 ‘fro- zen’ 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 exam- ple 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 limita- tions 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 impermissi- ble, 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
ai Index: mde 16/02/94 (1994). Also mentioned by Oraá, Human Rights in States of Emergency in International Law, p. 22. 75 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. 76 See for example in the cescr, General Comment No. 14 (2000), para. 28. 77 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). 78 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. 79 Müller, ‘Limitations to and Derogations from Economic, Social and Cultural Rights’, p. 587; Rosas & Sandvik-Nylund, ‘Armed Conflicts’, p. 413–414. 80 cescr,General Comment No. 14 (2000), para. 47. 81 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.
300854 252 chapter 5 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 prac- ticable and with the least possible delay’.85 In all other cases where conces- sions due to military realities are not explicitly mentioned, the protection is complete and absolute.86 It should nonetheless be noted that in practice, espe- cially 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 com- bined with derogations from human rights obligations which leads to a dan- gerous 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 con- flict 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 Silja Vöneky, Die Fortgeltung des Umweltvölkerrechts in internationalen bewaffneten Konflikten (Springer Verlag, 2001), p. 287. 90 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. 91 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 exer- cised 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 con- duct, 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). 92 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. 93 Noam Lubell, ‘Challenges in applying Human Rights Law to Armed Conflict’, 87 International Review of the Red Cross, 737 (2005), p. 741.
300854 254 chapter 5 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 terri- tory or physical control over a person.95 The Human Rights Committee estab- lished 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, regard- less 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 influ- enced 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) deter- mined that the rights under the Convention are applicable on a territory where a member state to the echr has ‘effective overall control’.102 Despite disagree- ment 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 excep- tional 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 ‘[per- sons] 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 2004- VII, 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 deten- tion 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 jurisdic- tion 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, exer- cised 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 individu- als 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 com- munication 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 authorita- tive 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 trea- ties concerning civil and political rights apply extraterritorially in armed con- flict, 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 require- ment 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 terri- tory 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 person- nel 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 medi- cal 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 Human Rights Relevant to Medical Treatment
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 espe- cially 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 interfer- ence, 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 ‘inher- ent’.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 explic- itly 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 princi- ples 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 pro- portionality.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 refer- ence 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 per- sons 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 legisla- tive 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 pro- portional 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 determin- ing 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 applica- ble in armed conflict which is designed to regulate the conduct of hostili- ties’.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; Gowlland- Debbas, ‘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: arti- cles 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.
300854 260 chapter 5 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 life- saving 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 obliga- tions 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 far- reaching, it is desirable and commendable as states would be obliged to pro- vide 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 medi- cal 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, eco- nomic 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 char- acter of article 25 udhr. Toebes considers the right to health binding as part of custom- ary 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 neces- sary for peaceful and friendly relations among nations […] the United Nations shall pro- mote […] 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
300854 262 chapter 5 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 safe- guard 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 interna- tional 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 physi- cian 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 viola- tion 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 spe- cific 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 obliga- tion 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 med- ical ethics should also be viewed culturally. The General Comment does not provide a definition or interpretation of medical ethics or ‘ethical codes of con- duct’. 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.
300854 264 chapter 5 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 provi- sions 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 pro- tection 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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3 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 prohi- bition 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 provid- ing it and are vulnerable to ill-treatment. The possibility of medical involve- ment 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 men- tioned 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
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 prac- ticed torture in detention facilities in the ‘war on terror’ in Chapter 1. 161 Ibid. 162 Ibid. para. 127–128.
300854 266 chapter 5 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 suffer- ing is inflicted by or at the instigation of or with the consent or acqui- escence 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 consti- tutes torture when there is an active undertaking, intention, and purposeful- ness 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 inhu- mane treatment.165 Treatment that does not amount to ill-treatment may nev- ertheless 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 Inter- American 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.
300854 The Relevant Human Rights 267 rather be determined on a case-by-case basis.167 The cat operates on a ‘pyra- mid 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 distinguish- ing 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, inhu- man 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 ill- treatment but also private actors acting in a non-official capacity.171 The icty supports this approach.172 This means that both military and civilian physi- cians 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 for- mer Yugoslavia, Prosecutor v. Dragoljub Kunarac, Radomir Kovač, and Zoran Vuković, Appeals Chamber Judgment [2002], para. 148; International Criminal Tribunal for the for- mer 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’.
300854 268 chapter 5 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 concern- ing 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, inhu- man or degrading punishment, educate people about the prohibitions, pro- vide 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 consid- ered 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.
300854 The Relevant Human Rights 269 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 stan- dards.180 Because superior orders can never justify torture or ill-treatment, per- sons 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 inhu- man 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 interna- tional 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 experi- mentation’ during World War II, an explicit prohibition of medical experimen- tation 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: indi- vidual communications; state-to-state complaints; and inquiries. The individual com- plaints 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.
300854 270 chapter 5 his free consent to medical or scientific experimentation’.185 Originally, a sepa- rate 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 informa- tion concerning this prohibition in state reports and the very succinct nature of article 7 iccpr, human rights law offers little explanation concerning pro- hibited 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 exper- iments 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 pro- hibited.189 An exception to the prohibition aimed at allowing new, experimen- tal 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 scien- tific 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.
300854 The Relevant Human Rights 271 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 pro- vides 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 pro- tection 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 hos- pitals. 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 deten- tion 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.
300854 272 chapter 5 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, inhu- man or degrading treatment or punishment a ‘contravention of medical eth- ics’. 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 well- known in international humanitarian law.197 Both human rights law and inter- national humanitarian law prescribe a positive obligation for states to ensure humane and dignified treatment. An advantage of article 10 iccpr in compari- son 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 treat- ment 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 inter- national 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.
300854 The Relevant Human Rights 273 and limited, two essential provisions for the medical treatment of protected persons during armed conflicts, namely the prohibition of torture and ill-treat- ment 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 com- munications 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 hori- zontal effect, the treaty obligations under the treaties do not contain obliga- tions 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 situ- ation, it will have to be established whether the treaty is applicable extraterrito- rially 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 viola- tions 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.
300854 274 chapter 5 armed conflicts under international humanitarian law are better protected than their rights under international human rights law. The provisions in inter- national humanitarian law are more detailed and more specific.201 For exam- ple, article 11 ap I contains detailed guidance for medical treatment of persons deprived of their liberty during armed conflicts, whereas article 7 iccpr con- tains a simple prohibition. Only the reference to the open terms ‘medical eth- ics’ 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 repa- rations or remedies for victims of serious violations of international humani- tarian 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.
300854 part 3 Medical Ethics in Armed Conflict
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International humanitarian law has developed an extensive framework for mili- tary, civilian, and humanitarian physicians providing medical care in armed con- flicts. 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 arti- cles 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 dem- onstrated 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 protec- tion of persons. This protection is at times enhanced by the additional applica- tion 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 protec- tion 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 com- mitted such (medical) war crimes should be nationally or internationally pros- ecuted 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
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 medi- cal standards can lead to a prosecution for a medical war crime while a viola- tion of medical ethics indicates that a medical war crime may have been committed. The two terms ‘open’ international humanitarian law to consider- ations of medical ethics as they provide an extra-legal framework for physi- cians 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 conse- quences 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 examina- tion 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 eth- ics 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.
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 ‘gener- ally 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 comprehen- sive understanding of the system of medical care in armed conflicts, it is nec- essary 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 arti- cles 31 and 32 of the Vienna Convention on the Law of Treaties (vclt)1 contrib- utes 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 rep- resent 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.
© koninklijke brill nv, leiden, 2015 | doi 10.1163/9789004279162_008
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 look- ing 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 com- prises 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 pub- lished 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 pursu- ant 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.
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 ‘inter- temporal 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.
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 neces- sary 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 inter- pretations 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.
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 per- sons 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 phy- sician 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 protec- tion 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.
26 For the English language, reference will be had to The Oxford Dictionary of English.
French authentic version refers to ‘normes médicales généralement recon- nues’.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 stan- dards 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 qual- ity 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 omis- sion’. Following this general statement is the explicit prohibition of unwar- ranted medical procedures that do not comply with two requirements. The two-tier test for medical procedures in both articles entails that medical pro- cedures 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 com- patible with generally accepted medical standards. What is to be protected is
27 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’. 28 Le nouveau Petit Robert, Nouvelle édition du Petit Robert de Paul Robert, 40ème édition (Dictionnaires Le Robert, 2007). 29 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.
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.
World War II.31 If the aim was preventing medical war crimes, moral princi- ples 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 prison- ers 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 ‘prin- ciples 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 med- ical 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 fol- lows 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 non- international 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’.
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 médi- cales généralement reconnus qu’elles appliqueraient dans des circon- stances 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 condi- tions of freedom’.40 He thus pleads for a pluralistic concept of medical stan- dards. This conclusion is also supported by Solf who argues that medical
36 Bothe, et al. New rules for Victims of Armed Conflicts, p. 113. 37 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.
41 He thus clearly deems the standards national and community based, rather than interna- tional. Solf, ‘Studies in honour of Jean Pictet’, p. 241. 42 Gunn & McCoubrey, ‘Medical Ethics and the Laws of Armed Conflict’, p. 139. 43 Ibid. p. 140. 44 Bothe, et al. New rules for Victims of Armed Conflicts, p. 113.
45 Sandoz, et al. (eds), Commentary to the Additional Protocols, para. 475. 46 Ibid. para. 476–477. 47 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.
[the] idea of consistency with generally accepted medical standards applied to the party’s nationals was designed to avoid any kind of dis- crimination 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-discrim- ination is strongly anchored in international humanitarian law, 53 it was reiter- ated 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 mutila- tion or to medical or scientific experiments of any kind which are not justified by the medi- cal, 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.
Regrettably, neither the Australian explanation, nor the discussions at the dip- lomatic conference were able to shed light on the substance of such medical standards. What constituted generally accepted medical standards was also not dis- cussed 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 ‘per- sons 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 amend- ment was quickly adopted for the sake of compromise.59 The Official Records of the diplomatic conference do not reflect any discussion concerning the re- formulation 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
54 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 arti- cle 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.
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 com- prehensiveness of the provisions prohibiting unwarranted medical procedures would have benefited greatly from more clarity instead of the open term gener- ally 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 combat- ants 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 O.R. XI, CDDH/II/SR.29, Statement by delegate Marriott (Canada), p. 298. 61 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’. 62 International Conference on Human Rights, Final Act of the International Conference on Human Rights: Human Rights in Armed Conflict. 63 Sandoz, et al. (eds), Commentary to the Additional Protocols, General Introduction, p. xxx.
64 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. 65 Sandoz, et al. (eds), Commentary to the Additional Protocols, p. xxxii et seq. 66 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). 67 Bothe, et al. New rules for Victims of Armed Conflicts, p. 2–3; 8–10. 68 Sandoz, et al. (eds), Commentary to the Additional Protocols, para. 4363; 4368; 4395 et seq. 69 Articles 11 (4) and 85 (3) ap I. An extensive discussion of medical war crimes is carried out in Chapter 3. 70 Gunn & McCoubrey, ‘Medical Ethics and the Laws of Armed Conflict’, p. 140.
2 Medical Ethics The corollary to articles 11 ap I and 5 (2)(e) ap II which provide additional pro- tection 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 arti- cles, form the framework within which physicians are protected. As long as physicians comply with medical ethics, they cannot be punished. Hence per- sons carrying out medical activities cannot be coerced to violate medical eth- ics, 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 other- wise 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
71 Ibid. p. 139. 72 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.
73 The Oxford Dictionary of English. 74 Torrelli, ‘La Protection du Médecin dans les Conflits Armés’, p. 589. 75 Paul Robert & Josette Rey-Debove, Le nouveau Petit Robert, Nouvelle édition du Petit Robert de Paul Robert, 40ème édition (Dictionnaires Le Robert, 2007). 76 This applies to article 16 ap I as well as article 10 ap II.
77 Solf, ‘Studies in honour of Jean Pictet’, p. 244. 78 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 mem- bers 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 mod- ern 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.
79 Solf, ‘Studies in honour of Jean Pictet’, p. 238–239.
persons engaged in medical activities shall neither be compelled to per- form 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 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. 81 Proposal CDDH/II/212 of 11 February 1975, O.R. III, p. 81. 82 O.R. XI, CDDH/II/SR.16, Statement of delegate Pictet (icrc), p. 146. 83 Delegate Krasnopeev (ussr) advocated the use of the term ‘professional ethics’. O.R. XI, CDDH/II/SR.16, p. 151.
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 ori- gins 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 neu- tral.86 To ensure this neutrality, the reference to the medical personnel’s pro- fessional 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 See delegate Marriott (Canada), O.R. XI, CDDH/II/SR.16, p. 151. 85 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. 86 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. 87 Final Record, Vol. II B, Statement by delegate Lamarle (France), p. 215. 88 Ibid. Statement by delegate Lamarle (France), p. 215. 89 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
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 applica- tion 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 com- mittee 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.) 90 Final Record, Vol. II B, delegates Agathocles (Greece), p. 283; Cohn (Denmark), p. 285. 91 Ibid. Statement by delegate Lamarle (France), p. 217. 92 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 formula- tion at O.R. XI, CDDH/II/SR. 16, p. 150. Later, delegate Bothe (Germany), O.R. XI, CDDH/II/ SR.19, p. 183. 93 O.R. I, Part III, draft article 16, p. 38.
94 O.R. XI, CDDH/II/SR.16, Statement delegate Clark (Australia), p. 146: CDDH/II/SR.28, Statement delegate Clark (Australia), p. 283. 95 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. 96 For example, O.R. XI, CDDH/II/SR.41, Statement delegate Deddes (Netherlands), p. 449; CDDH/II/SR.42, Statement Chairman, p. 462. 97 O.R. XI, CDDH/II/SR.39, Statement delegate Schultz (Denmark), p. 422; 425. 98 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. 99 O.R. XI, CDDH/II/SR.19, Statement delegate Bothe (Germany), p. 183.
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 stan- dards 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 (medi- cal) situation. The technical character of the standards makes them prone to change with advances in medicine. Such technical medical standards are diffi- cult 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 dur- ing armed conflict but physicians should work in accordance with such mini- mum 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.
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 pos- sibility 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 viola- tions of medical ethics.
105 ICRC, Report on the Treatment of Fourteen “High-Value Detainees” in cia Custody as dis- cussed in Chapter 1. 106 Gunn & McCoubrey, ‘Medical Ethics and the Laws of Armed Conflict’, p. 139.
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 inter- national 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 unde- fined 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 rele- vant 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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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 pro- tected 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 cov- ered 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 stan- dards 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 rein- force 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 eth- ics 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.
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 for- mulate several further principles of medical ethics that, according to them, emanate from Geneva Law. Firstly, parties to a conflict should ensure the avail- ability 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 thera- peutic experiments. Gunn and McCoubrey consider the widely accepted prin- ciples 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 funda- mental 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 This can be based on articles 15 gc i and 18 gc II. 9 cescr, General Comment No. 14 (2000), para. 12 (a). 10 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. 11 Gunn & McCoubrey, ‘Medical Ethics and the Laws of Armed Conflict’, p. 147. See also, McCoubrey, International Humanitarian Law, p. 87; 90. 12 Gunn & McCoubrey, ‘Medical Ethics and the Laws of Armed Conflict’, p. 153.
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 sys- tem 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 vic- tims of war could logically be sought within this system. Nevertheless, this argument can only convince concerning the general rules and the basic prin- ciples. Articles 12 gc I and II, 10 ap I and 7 ap II indeed provide a basic princi- ple 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 medi- cal 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 Ibid. p. 158. 14 Ibid. p. 133. 15 Ibid. p. 136.
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 inter- national 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 See for example Clouser & Gert, ‘A Critique of Principlism’. 17 This argument is supported by Torrelli, ‘La Protection du Médecin dans les Conflits Armés’, p. 588. 18 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).
19 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 interna- tional law. 20 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. 21 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. 22 A discussion of article 7 iccpr is conducted in Chapter 5. The principle of informed con- sent is examined in Chapter 1. 23 cescr, General Comment No. 14 (2000), para. 12 (c).
1 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 prin- ciples 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
24 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’.
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.
[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 par- ticipation 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 Articles 12 gc I and II, 13 gc III, 16 gc IV, 10 ap I and 7 ap II. 35 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. 36 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.
37 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). 38 Article 25 (3)(c) Rome Statute. 39 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 princi- pal perpetrators and this support had a substantial effect. 40 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.
41 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, physi- cians would thus have to ascertain this on a case-by-case basis. Rodley & Pollard, The Treatment of Prisoners under International Law, p. 516. 42 For example article 13 gc III. Article 32 gc IV only mentions the ‘medical treatment’ not the interest of the affected civilian. 43 Uhler & Coursier (eds), Commentary IV, p. 221. 44 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. 45 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.
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 guid- ance 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 adop- tion 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 These are also points of critique by Rodley & Pollard, The Treatment of Prisoners under International Law, p. 515–518. 47 Preamble to the un Principles of Medical Ethics.
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 legis- lations, 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 con- ventions. 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 Non- Contractual 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.
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 princi- ples of bioethics addressing, amongst others, ‘issues related to medicine’,58 it needs to be examined whether it could possibly give substance to ‘medical eth- ics’ as used in the Additional Protocols. The unesco, one of seventeen specialized un agencies, provides the inter- national community with a ‘global platform to identify shared values and to assert universal principles’.59 One of the objectives of unesco is to set interna- tional 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.
61 To reflect on ethical and legal questions in the research in life sciences and their applica- tion, 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. 62 Work by the ibc is examined by the igbc which consists of 36 representatives of mem- bers states. Opinions by the igbc are submitted to the Director-General, to the unesco member states, executive board and General Conference. 63 ten Have & Jean, ‘Introduction’, p. 28.
64 Ibid. p. 40. 65 With 195 members and nine associate members, unesco has near universal member- ship. See online at http://portal.unesco.org/en/ev.php-URL_ID=11170&URL_DO=DO_ TOPIC&URL_SECTION=201.html. 66 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 dis- advantage 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. 67 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
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 inter- vention 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 per- son. (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’.
(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 disagree- ment 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 stan- dards’. 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 pro- tection for persons incapable of giving their informed consent (article 7), and the princi- ple regarding human vulnerability (article 8). 77 Kollek, ‘Schritte zur internationalen Verständigung über bioethische Prinzipien’, p. 42–43.
Human Sciences Department of the unesco is seized with ‘ethical dimen- sions of the current scientific and technological evolution’. Its mission state- ment declares that:
[ensuring] the world remains secure for everyone means that scientific and technological progress must be placed in a context of ethical reflec- tion 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 ‘over- stepping its mandate’.81 Nonetheless, the emphasis on bioethics in science and research is an impediment to the general applicability of the udbhr for inter- preting medical ethics in armed conflict. Not only is the emphasis on science and research problematic, it is also ques- tionable whether the udbhr can guide physicians. Article 1 (2) udbhr explic- itly 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 pro- vide ‘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.
82 Williams, ‘unesco’s proposed Declaration on Bioethics and Human Rights’, p. 212. 83 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. 84 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 indi- viduals, 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 insti- tutions, corporations or States’. See also unesco, Explanatory Memorandum, para. 24; 32. 85 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. 86 Kollek, ‘Schritte zur internationalen Verständigung über bioethische Prinzipien’, p. 46. 87 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. 88 European Court of Human Rights, Evans v. United Kingdom, Judgment (Application No. 6339/05) [2007], para 52.
89 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. 90 Kollek, ‘Schritte zur internationalen Verständigung über bioethische Prinzipien’, p. 48; ten Have & Jean, ‘Introduction’, p. 42–43. 91 Members of armed forces do not necessarily have full autonomy to make decisions for themselves. For a more detailed analysis, see Chapter 1. 92 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. 93 Statements on the Interpretation udbhr, p. 1–4. 94 The emphasis on human rights can be traced to the involvement of the member states. Wolinsky, ‘Bioethics for the World’, p. 355–357.
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.
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 Post- Cold 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 custom- ary 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 inter- national 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 prin- ciples 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.
108 For example icty Čelebići Trial Judgment, para. 403. However, the Trial Chamber eventu- ally 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 com- prehensive 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.
[…] 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-interna- tional character. There is no doubt that, in the event of international armed conflicts, these rules also constitute a minimum yardstick, in addi- tion 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).
In the Nuclear Weapons advisory opinion, the most elementary humanitarian requirements were extended by the icj to include three other ‘cardinal prin- ciples’ 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 interna- tional humanitarian law. Either way, the elementary considerations of human- ity 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 war- fare, 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 cer- tainly 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 com- patible 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 humanitar- ian 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.
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 perme- ate 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 prin- ciple 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 interre- lated – 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 med- ical 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.
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 tor- ture 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 medi- cal 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 sci- ence 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.
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 how- ever either too specific or too broad to have any practical relevance in the con- text 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 medi- cally 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 solu- tion to the problem on an international level that states could approve. Such a document could be adopted either within the system of general public inter- national law, for example within the who, or by member states upon propos- als 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, advo- cates an international, binding document on medical ethics by an interna- tional 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 appro- priate 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 medi- cal community. Hervé Ascencio, ‘Bioétique et Droit Humanitaire’, in Sandrine Maljean- Dubois (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.
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 con- sent. 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 con- cept of medical ethics which lacks concrete interpretation and cannot be rea- sonably 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 medi- cally 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.
© koninklijke brill nv, leiden, 2015 | doi 10.1163/9789004279162_010
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 compo- nent. 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 per- sons 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 plu- ralistic 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.
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.
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 eth- ics, 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’.
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 honor- able behavior for the physician’. The first, and most relevant, principle deter- mines 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 confi- dences 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 inter- national humanitarian law.15 The ama’s Code consists of a number of opinions clustered in nine catego- ries. The opinions concern a large range of issues, from practice matters to the patient-physician relationship. Although not specifically addressed to the situ- ation 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, lim- ited medical resources should be allocated in accordance with ‘ethically appro- priate criteria relating to medical need’, such as the urgency of need or the
13 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. 14 Principle VIII reads: ‘A physician shall, while caring for a patient, regard responsibility to the patient as paramount’. 15 Principle IX reads: ‘A physician shall support access to medical care for all people’.
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 tor- ture 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.
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 practi- cal 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 fun- damental 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 inhu- man 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.
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.
27 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). 28 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. 29 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). 30 Israeli Medical Association, General Duties of the Physician.
31 Israeli Medical Association, Position Paper on Assurance of Medical and Health Services during the Armed Conflict between Israelis and Palestinians. 32 Israeli Medical Association, Position Paper on Force-Feeding Hunger Strikers. 33 Available online at www.ima.org.il/ENG/ViewCategory.aspx?CategoryId=4549. 34 Most explicit in articles 10 (2) ap I and 7 (2) ap II. 35 Koninklijke Nederlandsche Maatschappij tot bevordering der Geneeskunst, Gedragsregels voor Artsen (2002). The reasons for this update are explicated in Koninklijke Nederlandsche
Maatschappij tot bevordering der Geneeskunst, Toelichting op “Gedragsregels voor artsen”, Doc. No. II.02 (2002). 36 Preamble of the Rules of Conduct. 37 Article I.9. It refers to ‘algemeen aanvaarde medisch-ethische opvattingen’. 38 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 rati- fied it on 21 December 1988 and the iccpr on 25 June 1969 and ratified it on 11 December 1978.
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
‘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’, ‘repre- sentatives 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’. 43 World Health Organization, Research and the World Health Organization: A History of the Advisory Committee on Health Research (who Press, 2010), p. 64. 44 From the English information available on the ioms website it is not entirely clear who adopted the Code and what its normative value is.
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 representa- tive 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 agree- ment 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 community- law-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.
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 pro- motion of the highest attainable standards of health for patients and the over- all 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 facili- tates 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 coun- tries. 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;
3 The Example of Medical Involvement in Interrogations and Torture Medical involvement in coercive interrogations, at times tantamount to tor- ture, 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 pre- amble, 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 politi- cal and institutional framework, the preamble establishes the primacy of med- ical 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 participa- tion. 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
[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 spe- cialist 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 pro- fession’. European Union of Medical Specialists, uems Strategy (2008). 52 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). 53 The use of coercion in interrogations is explicitly prohibited by article 17 gc III. 54 Israeli Medical Association, Position Paper on the Prohibition of Physician Participation in Interrogations and Torture (December 2007).
55 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. 56 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 reason- able. 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.
57 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. 58 Torrelli, ‘La Protection du Médecin dans les Conflits Armés’, p. 592. 59 This was analyzed in the discussion of articles 16 (3) ap I and 10 (3) and (4) ap II in Chapter 2. 60 See the discussion of physicians’ role in the ‘war on terror’ in Chapter 1.
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 dig- nity 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 legisla- tion) 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 con- tains a severely circumscribed version of the ethical principle.
61 There are some other differences. The ima Paper contains a clause prohibiting force- feeding if certain conditions are met. The ama Opinion allows the involvement of physi- cians in ‘developing effective interrogation strategies for general training purposes’. 62 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. 63 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 treat- ment, 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. 64 Article 75 (2) ap I and, for non-international armed conflicts, article 4 (2)(e) ap II. A viola- tion of the latter, however, does not constitute a grave breach.
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 medi- cal care to realistic needs and circumstances,65 the cma explicitly obliges phy- sicians 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’ involve- ment 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 fun- damental argument. On a preliminary level, codes and guidelines by national medical associa- tions 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 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. 66 This corresponds to the overall principle of international humanitarian law that the wounded and sick should be provided with medical care. 67 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’. 68 Torrelli, ‘La Protection du Médecin dans les Conflits Armés’, p. 589.
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 medi- cal 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 question- able, 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 physi- cians 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 ‘dif- férences 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 erbgesun- den 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 Ratzel & Lippert, Kommentar zur Musterberufsordnung der deutschen Ärzte (mbo), p. 26. 70 On legitimacy, consult Chapter 9 which discusses the legitimacy of the wma. 71 Torrelli, ‘La Protection du Médecin dans les Conflits Armés’, p. 589. 72 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).
[Die Häftlinge] waren also nicht Patienten des Arztes im Sinn der ärztli- chen 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 eth- ics as adopted by the Presidium of the Supreme Soviet in 1971. It required phy- sicians 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.
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 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. 78 The same is true for medical standards. For a general analysis of the meaning of generally accepted medical standards, see Chapter 6.
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.
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 foot- notes. As ‘duties […] defined by the […] international corps of the medical pro- fession’, 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 address- ees. 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 para- graphs 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
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 rec- ognized 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, par- ticularly 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 essentielle- ment 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 med- ical ethics in international humanitarian law. Similarly, Perrin states that phy- sicians 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 Ibid. para. 656. 6 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.
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.
16 She goes on to state that they may serve as ‘cadre de références au travail des organisa- tions non gouvernementales’. Bouchet-Saulnier, Dictionnaire practique du Droit Humanitaire, p. 123. 17 Gunn & McCoubrey, ‘Medical Ethics and the Laws of Armed Conflict’, p. 139. McCoubrey restates this opinion in McCoubrey, International Humanitarian Law, p. 87. 18 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. 19 Gunn & McCoubrey, ‘Medical Ethics and the Laws of Armed Conflict’, p. 147. 20 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.
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 medi- cine, the assembled doctors proposed to establish a new international associa- tion 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, present- ing a platform for information exchange, provision of information on specifi- cally 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 Alfred Cox, ‘Presidential Address given at the Annual Conference of the apim on September 7th, 1933’, British Medical Journal, 158 (1933), p. 158. 22 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). 23 As quoted in Walter Schaupp, Der ethische Gehalt der Helsinki Deklaration (Peter Lang Verlag, 1993), p. 172.
B The Status of the wma Documents
To assess the value of the wma documents for present purposes, their norma- tivity 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 gen- erates obligations that are, though different from hard law obligations, never- theless politically relevant. Being mainly based on the idea of reciprocity, violations of soft law can lead to consequences by the international commu- nity, for example retorsions or negative public opinion through the ‘mobiliza- tion 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.
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 orga- nizations can be categorized as soft law when such norms have a de facto nor- mative 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 draft- ing process of the unesco’s Declaration on Bioethics and Human Rights.34 It
29 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). 30 Daniel Thürer, ‘Soft Law’, in Rüdiger Wolfrum (ed), Max Planck Encyclopedia of Public International Law (Oxford University Press, 2012), para. 7. 31 Keller, ‘Codes of Conduct and their Implementation’, p. 221, 249. 32 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. 33 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. 34 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).
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 expecta- tions 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 pal- pable 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.
C The Legitimacy of the wma Documents
Whether a reference to wma documents can provide a justified and accept- able solution to the question of how to fill the open and extra-legal term medi- cal ethics in international humanitarian law, as argued in legal literature and by the icrc, will have to be carefully examined. Lacking normativity, the legiti- macy of these documents is all the more important if they are to guide physi- cians in armed conflicts. wma documents appear to be ‘self-regulatory codes of conduct43 for net- works 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 legiti- macy 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 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. 44 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. 45 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). 46 Keller, ‘Codes of Conduct and their Implementation’, p. 266.
1 A Concept of Legitimacy Legitimacy can be defined as the justification of the authority of an organiza- tion 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 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. 48 Keller, ‘Codes of Conduct and their Implementation’, p. 266. 49 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). 50 Wolfrum, ‘Legitimacy in International Law from a Legal Perspective’, p. 21–23. 51 An example for a discussion of the legitimacy of international organizations is José E. Alvarez, International Organizations as Law-Makers (Oxford University Press, 2005). 52 Institutions of so-called global governance require at least the on-going consent of demo- cratic 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. 53 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 com- parison 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
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
Global Governance Institutions’, p. 25. To establish the sociological legitimacy of an insti- tution, 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. 54 John Rawls’ concept of legitimacy is exemplary for the normative approach. Rawls, A Theory of Justice. 55 Bodansky, ‘The Legitimacy of International Governance’, p. 601. 56 Ibid. p. 603. 57 Wolfrum, ‘Legitimacy in International Law from a Legal Perspective’, p. 6. 58 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. 59 Bodansky, ‘The Legitimacy of International Governance’, p. 612.
60 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). 61 Section 1. Articles and Bylaws. The national medical associations discussed in Chapter 8 are all members of the wma. 62 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. 63 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. 64 The details concerning the Secretariat and its Secretary General can be found in Chapter 7 of the Articles and Bylaws. 65 Steve Charnovitz, ‘Nongovernmental Organizations and International Law’, 100 American Journal of International Law, 348 (2006), p. 350.
66 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’. 67 This can be established from the information published by the wma. Whether states have indirectly influenced the wma policies cannot be established. 68 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 acceptabil- ity, the comparative benefit such an organization brings, and its institutional integrity. The more of these criteria an institution or organization satisfies, the higher its legiti- macy. Buchanan & Keohane, ‘The Legitimacy of Global Governance Institutions’, p. 40; 50. 69 The number of physicians that are represented by the wma through their medical associa- tions 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 contribu- tions 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). 70 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
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). 71 Article 6 of the Rules applicable to wma Membership. 72 Article 10 of the Rules applicable to wma Membership. 73 As established in fn. 78, the wma represents ca. 943.325 physicians. 74 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.
75 This can be inferred from Chapter 1, Section 4 of the Articles and Bylaws which deter- mines that the obligations of constituent members merely entail ‘[promoting] knowl- edge 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.
A less traditional view would hinge the wma’s legitimacy not on (state) con- sent 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 involve- ment 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 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. 82 Delegates of the national medical associations must ‘hold a diploma or degree in medi- cine’ and ‘be licensed to practice medicine in that country’. Chapter 3, Section 3 of the Articles and Bylaws. 83 Bodansky, ‘The Legitimacy of International Governance’, p. 622. 84 Ibid. p. 620. 85 See the conclusions in Chapters 1 and 8. 86 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. 87 Ethics bodies, such as national ethics councils or committees, are most often multidisci- plinary with members of different professions. A comparison shows that most repre- sented are professionals with a background in science. Vöneky, Recht, Moral und Ethik, p. 515 et seq.
88 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. 89 Wolfrum, ‘Legitimacy in International Law from a Legal Perspective’, p. 6.
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 con- siders ‘resolutions submitted by constituent members provided that such reso- lutions 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 asso- ciations 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 con- cerns 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 reso- lutions 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 See Article 4 of the Articles and Chapter 3, Section 9 of the Bylaws. 91 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. 92 The provisions concerning the wma officers can be found in Article 6 of the Articles and Chapter 5 of the Bylaws. 93 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. 94 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.
95 The tasks can be found in Chapter 3.5.5 of the Procedures and Operating Policies. 96 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.
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 docu- ments 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 com- patibility with the wma’s objectives and delivers a recommendation for the Assembly. Even though the Assembly, according to the Articles, should ‘estab- lish 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 doc- uments 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.
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 mem- bers 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 associa- tions 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 associa- tion.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 usu- ally 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 phy- sician 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 associa- tions 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 rec- ognized 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.
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 humanmed- izinischer 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.
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 asso- ciations, the wma is unable to determine who may and who may not become a constitu- ent member other than the four criteria. Elmar Doppelfeld, ‘Offene Fragen, ungelöste Probleme’, 96 Deutsches Ärzteblatt, A 3161 (1999), p. A-3162.
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 mistreat- ment 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.
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 consid- ering 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.
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 sig- nificant 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 situa- tions 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 prin- cipal 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 mem- bers 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.
formalized, 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 deci- sion-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 finan- cial stability have more voting rights in both the Assembly and the Council. This leads to the third deficit: the influence of larger, wealthier medical asso- ciations 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 involve- ment 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.
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) legiti- macy. 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.
139 Article 2 of the Articles and Bylaws. 140 Bodansky, ‘The Legitimacy of International Governance’, p. 612. 141 See also the references in documents by national medical associations, see fn. 65. 142 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).
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 dis- ability, 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 con- trary to the laws of humanity’.
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.
Here the ethical principle is a valuable and unambiguous addition and clarifi- cation: 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 prin- ciple generated some controversy. It was codified with an emphasis on non- denunciation 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 ‘regula- tions 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 treat- ing 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 immi- nent 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 legiti- mately 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 con- sents 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 logi- cal. It was not included in article 10 (3) ap II. The icrc, however, deems it less problem- atic 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.
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, reli- gion 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.
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 begin- ning 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.
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 con- cerning 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 mem- bers 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 pro- tected person, providing inhumane treatment, and the attack of civilian populations as grave breaches.
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 con- flicts.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 rele- vant 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 interna- tional 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.
In addition to these common principles, the more elaborate Code contains sev- eral 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 humani- tarian 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’.
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 per- sonnel’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.
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 unwar- ranted 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 physi- cians addressed in article 11 ap I are generally military physicians treating protected per- sons 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.
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 ter- ror’. 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.
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 pri- mary obligation is to their patients and that in all their professional activities, physicians should adhere to international conventions on human rights, international humanitar- ian 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.
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 humanitar- ian law, see Chapter 2. 205 The emblem of Médecins for Frontières can be seen on the organization’s website: www. msf.org.
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 pre- requisite 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
exception applies to both situations, namely when ‘the encircled belligerent has the nec- essary 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 cap- ture, depicting him being medically examined were published by the u.s. Army ‘for over- riding 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 arti- cles 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.
213 Primarily in establishing the rules’ substantive legitimacy, their compatibility with inter- national 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, con- cerning the other modes of normative legitimacy. 214 Kleffner includes all five of these prohibitions as ‘deemed unethical for medical person- nel’, 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 legiti- mately 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 men- tioned here, see Chapter 3. For a detailed analysis of article 5 (2)(e) ap II, see Chapter 2.
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, ‘Physician- Soldier: 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 per- sonal information must not be given. Preux (ed), Commentary III, p. 174.
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 pri- vate 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 explic- itly 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 provi- sions, with the exception of the medical grave breach in article 11 (4) ap I which explicitly includes willful omissions.
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 occu- pied territory. Even though experiments are generally prohibited in interna- tional 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 humanitar- ian law and the Regulations prohibit non-therapeutic experiments on pro- tected persons. However, the group of persons protected under the Regulations is too limited. The enumeration only refers to ‘persons deprived of their lib- erty’. 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 per- sons 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 humanitar- ian 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 medi- cal 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 dis- cussion, see Chapter 2. 226 See articles 12 and 50 gc I and 12 and 51 gc II.
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 physi- cians 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.
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 arti- cles 24–26 gc I and 8 (c) and (e) ap I.
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.
241 The occupying power has a duty to ensure and maintain medical and hospital establish- ments 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.
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.
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.
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.
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, extra- legal 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.
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 physi- cian – 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 physi- cians who are members of national medical associations. This would, however, be a fairly strained chain of legitimacy. Neither can its procedures and struc- ture provide legitimacy. The three main procedural and structural deficits, an imbalance in power between the decision-making organs, unequal participa- tion 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 sub- stantive 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 guid- ance 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 rea- sonable 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 can- not hide the fact that many rules do not fit into the system and cannot be con- sidered as binding in armed conflicts.
4 Legitimacy through Reference in the icrc Commentaries The icrc Commentary devotes several paragraphs to the issue of medical eth- ics, 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:
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 commen- taries to legislation, they provide guidance, in casu on the application of inter- national humanitarian law. In areas where there is uncertainty, as is the case with the open terms discussed here, the Commentaries may contribute to find- ing a common interpretation or determination of the open terms, or may indi- cate 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 Sandoz, et al. (eds), Commentary to the Additional Protocols, para. 656. 252 Ibid. para. 653–659. Similarly concerning article 10 ap II, para. 4688. 253 Ibid. Foreword by Alexandre Hay. 254 Gasser states that ‘The icrc’s contributions to academic scholarship include the publica- tion 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 publi- cists of the various nations’ – a subsidiary means for the determination of rules of law pursu- ant 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 différen- tes 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.
Nonetheless, their status in scholarship and practice is difficult to deter- mine.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 interna- tional 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 can- not be binding. It would be a far cry to say that through a reference in an inter- pretative 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 guid- ance, 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 defi- cits 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.
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
∵
As the experiences of the early 21st century have demonstrated, the role of phy- sicians 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. deten- tion 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 commit- ted 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, civil- ian, 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 human- itarian 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 Ill- Treatment in Israel (October 2011). 2 Military physicians are in a special position because they are also restricted in their indepen- dence 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.
© koninklijke brill nv, leiden, 2015 | doi 10.1163/9789004279162_012
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 dele- gate 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.
6 Article 5 (2)(e) ap II does not establish a medical grave breach, yet violations of these provi- sions 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.
Convention on the Laws of Treaties found that medical ethics are moral prin- ciples 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 phi- losophers 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 bound- aries 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 gen- erality 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 pro- vide concrete protection for persons, it should rather be a reference to a uni- versal framework or code of medical ethics that provides more specific guidance and is more easily discernible and applicable. As Chapter 7 demon- strated, no such code has been established or adopted on an international level. The sparse literature available on the question of medical ethics in interna- tional humanitarian law suggests that medical ethics in the context of armed conflicts should either be taken to mean national medical ethics or as a refer- ence 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 prin- ciples of medical ethics but there are also differences that cannot be bridged.
9 The four principles were developed by Beauchamp and Childress, see the latest edition of their work: Beauchamp & Childress, Principles of Biomedical Ethics. 10 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’.
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 refer- ence 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, extra- legal 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 docu- ments 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 dis- course. This is not satisfactory in light of the importance of medical ethics in the legal framework for physicians in armed conflicts and, especially, its practi- cal 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 subjec- tive 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 ten- able as medical ethics differ greatly between different cultures. Torrelli, ‘La Protection du Médecin dans les Conflits Armés’, p. 589.
12 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. 13 Beauchamp & Childress, Principles of Biomedical Ethics, p. 197. 14 Preux (ed), Commentary III, p. 140. 15 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’. 16 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 […]
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. 17 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 prohi- bition 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. 18 icty Furundžija Trial Judgment, para. 182–183 (emphasis added). 19 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.
20 Beauchamp & Childress, Principles of Biomedical Ethics, p. 248–250. 21 The principle of non-discrimination can also be found in common article 3 gcs and arti- cles 12 gc I and II, 16 gc III, 27 gc IV, 10 ap I and 7 ap II.
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 unwar- ranted medical procedures.23 This is indeed to be prevented. The consent of a person never justifies unwarranted medical procedures, especially experi- ments 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 dis- course 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 under- stand, 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 compe- tence, 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.
28 This is also Baccino-Astrada’s interpretation. Baccino-Astrada, Manuel des Droits et Devoirs du Personnel Sanitaire lors des Conflits Armés, p. 42. 29 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. 30 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.
In the paternalistic system of international humanitarian law their inclu- sion 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 docu- ments can only serve as suggestions as long as their legitimacy is not enhanced. Future guidelines for all physicians in both international and non-interna- tional 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 situa- tions 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 guide- lines 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
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 aware- ness on an international level, they would also clarify and improve the protec- tion of medical personnel and, with that, the protection of all those who need medical care. Previously, the icrc has published other guidelines and ‘interpre- tive guidances’ that have generally enjoyed a high level of acceptance by states and practitioners.33 Being a non-governmental organization with legal person- ality,34 the icrc is not a classic subject of international law yet it enjoys legiti- macy. Although it cannot make legally binding rules for physicians, interpretive guidelines by the icrc for all physicians in armed conflict, not only those work- ing 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 According to Patrnogic, the development of such guidelines were discussed in confer- ences by the icrc yet also by military medical organizations. Patrnogic, ‘International Medical Law’. 32 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 inter- governmental 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. 33 See for example International Committee of the Red Cross, icrc position on hostage- taking’, 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). 34 Gasser, ‘International Committee of the Red Cross’.
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 treat- ment, 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
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 tradi- tions of the medical profession; My colleagues will be my sisters and brothers;
I will not permit considerations of age, disease or disability, creed, ethnic ori- gin, 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.
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 always exercise his/her independent professional judgment and maintain the highest standards of professional conduct. A PHYSICIAN SHALL respect a competent patient’s right to accept or refuse treatment. A PHYSICIAN SHALL not allow his/her judgment to be influenced by personal profit or unfair discrimination. A PHYSICIAN SHALL be dedicated to providing competent medical service in full professional and moral independence, with compas- sion and respect for human dignity. A PHYSICIAN SHALL 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. A PHYSICIAN SHALL not receive any financial benefits or other incentives solely for referring patients or prescribing specific products. A PHYSICIAN SHALL respect the rights and preferences of patients, colleagues, and other health professionals. A PHYSICIAN SHALL 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. A PHYSICIAN SHALL certify only that which he/she has personally verified. A PHYSICIAN SHALL strive to use health care resources in the best way to benefit patients and their community. A PHYSICIAN SHALL seek appropriate care and attention if he/she suffers from mental or physical illness. A PHYSICIAN SHALL respect the local and national codes of ethics.
Duties of Physicians to Patients
A PHYSICIAN SHALL always bear in mind the obligation to respect human life. A PHYSICIAN SHALL act in the patient’s best interest when providing medical care. A PHYSICIAN SHALL 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. A PHYSICIAN SHALL 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. A PHYSICIAN SHALL give emergency care as a humanitarian duty unless he/ she is assured that others are willing and able to give such care. A PHYSICIAN SHALL in situations when he/she is acting for a third party, ensure that the patient has full knowledge of that situation. A PHYSICIAN SHALL 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 behave towards colleagues as he/she would have them behave towards him/her. A PHYSICIAN SHALL not undermine the patient-physician relationship of colleagues in order to attract patients. A PHYSICIAN SHALL 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.
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, inter- national 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 thera- peutic 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 ethi- cal norms apply, not only in regard to treatment but also to all other interven- tions, 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
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 with- out their real and valid consent and never where they are deprived of liberty; • Give special consideration to the greater vulnerability of women and chil- dren 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;
• 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 prac- tices 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 com- promised 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 pos- sible with the subject’s consent, but in certain circumstances where the vic- tim 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.
Germany, Bundesverfassungsgericht, Pflichtmitgliedschaft in einer Industrie- und Handelskammer (NVwZ 2002, 335), [2002] njw 2002, 335. Germany, Verfassungsgericht Göttingen, Pflichtmitgliedschaft in einer Ärztekammer (1 A 223/06), [2008]. Israel, District Court, Attorney General v. Eichmann, Judgment [1961], Israel Law Review, Vol. 36. Israel, Supreme Court, Petitioners v. State of Israel, the General Security Service et al (Interrogations Case), Judgment [1999]. The Netherlands, Bijzondere Raad van Cassatie, Trial of Fritz Georg Hermann Pilz [“The Pilz Case”], Judgment [1950], Nederlandse Jurisprudentie, 1950. The Netherlands, Krijgsraad te Velde, [1951], Nederlandse Jurisprudentie, 1952, 247. Poland, Supreme National Tribunal, Trial of Obersturmbannführer Rudolf Franz Ferdinand Höss, Judgment [1947], Law Reports of Trials of War Criminals by the United Nations War Crimes Commission, Vol. VII. United Kingdom, House of Lords, Al-Skeini and Others v. Secretary of State for Defence, [2007] United Kingdom House of Lords, Vol. 26. United Kingdom, House of Lords, Regina (Bancoult) v. Secretary of State for Foreign and Commonwealth Affairs, 22 October 2008 [2008], United Kingdom House of Lords, 61. United States, Army Court of Military Review, United States v. William L. Calley, Opinion and Action on Petition for New Trial [1973], Court of Military Review, 46. United States, Supreme Court, Jocob J. Parker, Warden, et al., Appellants v. Howard B. Levy, [1974], 417 u.s. 733. United States, Supreme Court, Chavez v. Martinez, [2003], 538. United States, Supreme Court, 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]. United States, District Court, District of Columbia, Judge Gladys Kessler, 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]. United States, Supreme Court, Salim Ahmed Hamdan v. Donald H. Rumsfeld, Secretary of Defense, et al., [2006]. United States Court of Appeals for the Armed Forces, United States v. Rogelio M. Maynulet, Case No. 09–0073, Crim. App. No. 20050412, [2010]. United States, 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]. United States, Supreme Court, Boumediene v. Bush, 553 u.s. 723 [2008].
2 European Court of Human Rights/European Commission of Human Rights
European Commission of Human Rights, Cyprus v. Turkey, Decision (Application no. 6780/74 & 6950/75) [1975], European Commission Human Rights Decisions and Reports, Vol. 125. European Court of Human Rights, Loizidou v. Turkey, Judgment (Merits and Just Satisfaction) [1996], Reports 1996-VI. 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. European Court of Human Rights, Öcalan v. Turkey, [2003], Reports 2003. European Court for Human Rights, Ilaşcu and Others v. Moldova and Russia, Judgment [2004a], Reports 2004-VII. European Court of Human Rights, Issa and Others v. Turkey, Judgment (Application no. 31821/96) [2004b], Reporter 2004. European Court of Human Rights, Isayeva v. Russia, Judgment (Application no. 57950/00) [2005a]. European Court of Human Rights, Nachova and Others v. Bulgaria, Judgment (Applications nos. 43577/98 and 43579/98) [2005b]. European Court if Human Rights, Nevmerzhitsky v. Ukraine, Judgment (Applicant No. 54825/00) [2005c]. 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 [2007a]. European Court of Human Rights, Evans v. United Kingdom, Judgment (Application No. 6339/05) [2007b]. European Court of Human Rights, Al-Jedda v. United Kingdom, Grand Chamber Judgment on Application no. 27021/08 [2011a]. European Court of Human Rights, Al-Skeini and Others v. United Kingdom, Grand Chamber Judgment on Application no. 55721/07 [2011b].
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).
Human Rights Committee, Essono Mika Miha v. Equatorial Guinea, [1994], Communication No. 414/1990, Doc. No. CCPR/C/51/D/414/1990. Human Rights Committee, Lantsova v. Russian Federation, [2002], Communication No. 763/1997 (26 March 2002), Doc. No. CCPR/C/74/D/763/1997.
4 Inter-American Court of Human Rights/Inter-American Commission of Human Rights
Inter-American Court of Human Rights, Velásquez Rodríguez v. Honduras, Judgment [1988], Ser. C, No. 4. Inter-American Commission on Human Rights, Coard et al. v. United States, Report on the Merits (Case 10.951) [1999], Report No. 109/99. Inter-American Court of Human Rights, Bámaca-Velásquez v. Guatemala Judgment (Merits) [2000a], Series C No. 70. Inter-American Court of Human Rights, Las Palmeras v. Colombia, Judgment (Preliminary Objections) [2000b], Series C No. 67. Inter-American Commission on Human Rights, Decision on Request for Precautionary Measures (Detainees at Guantánamo Bay, Cuba) (12 March 2002). Inter-American Commission on Human Rights, Petition and Request for Precau tionary Measures to the Inter-American Commission on Human Rights by Djamel Ameziane (Prisoner, u.s. Naval Station, Guantánamo Bay, Cuba) (6 August 2008).
5 International Criminal Courts and Tribunals
Supreme Court of Leipzig, Judgment in Case of Commander Karl Neumann [‘The Dover Castle Case’], Judgment [1921a], American Journal of International Law, 16. Supreme Court of Leipzig, Judgment in Case of Lieutenants Dithmar and Boldt [‘The Llandovery Castle Case’], Judgment [1921b], American Journal of International Law, 16. 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 [1945a], War Crimes Trials, Vol. IV. Military Court for the Trial of War Criminals, Trial of Josef Kramer and Forty-Four Others [“The Belsen Trial”], Judgment [1945b] War Crimes Trials, Vol. II. 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], War Crimes Trials, Vol. VII. United States Military Tribunal II, United States of America v. Erhard Milch, Judgment [1947a], Trials of War Criminals before the Nuernberg Military Tribunals under Control Council Law No. 10, Vol. II. United States Military Tribunal I, United States of America v. Karl Brandt, et al. [‘The Doctors’ Trial’], Judgment [1947b], Trials of War Criminals before the Nuernberg Military Tribunals under Control Council Law No. 10, Vol. I & II. United States Military Tribunal II, United States of America v. Oswald Pohl, et al., Judgment [1947c], Trials of War Criminals before the Nuernberg Military Tribunals under Control Council Law No. 10, Vol. V. United States Military Tribunal II-A, United States of America v. Otto Ohlendorf, et al. [‘The Einsatzgruppen Trial’], Judgment [1948a], Trials of War Criminals before the Nuernberg Military Tribunals under Control Council Law No. 10, Vol. IV. Nuernberg Military Tribunals, United States v. von Leeb et al. [“The High Command Case”], Judgment [1948b], Trials of War Criminals before the Nuernberg Military Tribunals under Control Council Law No. 10, Vol. XI. Nuernberg Military Tribunal, United States v. Wilhelm List et al. [“The Hostage Case”], Judgment [1948c], Trials of War Criminals before the Nuernberg Military Tribunals under Control Council Law No. 10, Vol. XI. International Criminal Tribunal for the former Yugoslavia, Prosecutor v. Dusko Tadić a.k.a. ‘Dule’, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction [1995]. International Criminal Tribunal for the former Yugoslavia, Prosecutor v. Zdravko Mucić, Hazim Delić, Esad Landžo and Zejnil Delalić (Čelebići), Indictment [1996]. International Criminal Tribunal for the former Yugoslavia, Prosecutor v. Dražen Erdemović, Appeals Chamber Judgment [1997]. International Criminal Tribunal for the former Yugoslavia, Prosecutor v. Anto Furundžija, Trial Chamber Judgment [1998a]. International Criminal Tribunal for Rwanda, Prosecutor v. Jean-Paul Akayesu, Trial Chamber Judgment [1998b]. International Criminal Tribunal for the former Yugoslavia, Prosecutor v. Zdravko Mucić, Hazim Delić, Esad Landžo and Zejnil Delalić (Čelebići), Trial Chamber Judgment [1998c]. International Criminal Tribunal for Rwanda, Prosecutor v. Clément Kayishema and Obed Ruzindana, Trial Chamber Judgment [1999a]. International Criminal Tribunal for the former Yugoslavia, Prosecutor v. Dusko Tadić a.k.a. ‘Dule’, Appeals Chamber Judgment [1999b]. International Criminal Tribunal for Rwanda, Prosecutor v. George Rutanga, Trial Chamber Judgment [1999c], Case No. ICTR-96-3-T.
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 con- cerning the Testimony of a Witness [1999d], Case No. IT-95-9. International Criminal Tribunal for the former Yugoslavia, Prosecutor v. Zlatko Aleksovski, Trial Chamber Judgment [1999e], Case No.: IT-95-14/1-T. International Tribunal for Rwanda, Prosecutor v. Alfred Musema, Trial Chamber Judgment [2000a], Case No. ICTR-96-13-A. International Criminal Tribunal for the former Yugoslavia, Prosecutor v. Anto Furundžija, Appeals Chamber Judgment [2000b]. International Criminal Tribunal for the former Yugoslavia, Prosecutor v. Dusko Tadić a.k.a. ‘Dule’, Judgment in Sentencing Appeals [2000c]. International Tribunal for Rwanda, Prosecutor v. Elizaphan Ntakirutimana, Gérard Ntakirutimana & Charles Sikubwabo, Mugonero Indictment [2000d]. International Criminal Tribunal for the former Yugoslavia, Prosecutor v. Tihomir Blaškić, Trial Chamber Judgment [2000e]. International Criminal Tribunal for the former Yugoslavia, Prosecutor v. Zlatko Aleksovski, Appeals Chamber Judgment [2000f]. International Criminal Tribunal for the former Yugoslavia, Prosecutor v. Dario Kordić and Mario Čerkez, Trial Chamber Judgment [2001a]. International Criminal Tribunal for the former Yugoslavia, Prosecutor v. Dragoljub Kunarac, Radomir Kovač, and Zoran Vuković, Trial Chamber Judgment [2001b]. International Criminal Tribunal for the former Yugoslavia, Prosecutor v. Miroslav Kvočka, Dragoljub Prcać, Milojica Kos, Mlađo Radić and Zoran Žigić, Trial Chamber Judgment [2001c]. International Criminal Tribunal for the former Yugoslavia, Prosecutor v. Radislav Krstić, Trial Chamber Judgment [2001d]. International Criminal Tribunal for the former Yugoslavia, Prosecutor v. Zdravko Mucić, Hazim Delić, Esad Landžo and Zejnil Delalić (Čelebići), Appeals Chamber Judgment [2001e]. International Criminal Tribunal for the former Yugoslavia, Prosecutor v. Dragoljub Kunarac, Radomir Kovač, and Zoran Vuković, Appeals Chamber Judgment [2002a]. International Criminal Tribunal for the former Yugoslavia, Prosecutor v. Milorad Krnojelac, Trial Chamber Judgment [2002b]. International Criminal Tribunal for the former Yugoslavia, Prosecutor v. Mitar Vasiljević, Trial Chamber Judgment [2002c]. International Criminal Tribunal for Rwanda, Prosecutor v. Elizaphan and Gérard Ntakirutimana, Trial Chamber Judgment [2003a]. International Criminal Tribunal for the former Yugoslavia, Prosecutor v. Mladen Naletilić (a.k.a. Tuta) and Vinko Martinović (a.k.a. Štela), Trial Chamber Judgment [2003b].
International Criminal Tribunal for the former Yugoslavia, Prosecutor v. Stanislav Galić, Trial Chamber Judgment [2003c]. International Criminal Tribunal for the former Yugoslavia, Prosecutor v. Dario Kordić and Mario Čerkez, Appeals Chamber Judgment [2004a]. International Criminal Tribunal for Rwanda, Prosecutor v. Elizaphan and Gérard Ntakirutimana, Appeals Chamber Judgment [2004b]. International Criminal Tribunal for the former Yugoslavia, Prosecutor v. Mitar Vasiljević, Appeals Chamber Judgment [2004c]. International Criminal Tribunal for Rwanda, Prosecutor v. Ndindabahizi, Trial Chamber Judgment [2004d]. International Criminal Tribunal for the former Yugoslavia, Prosecutor v. Tihomir Blaškić, Appeals Chamber Judgment [2004e]. International Criminal Tribunal for the former Yugoslavia, Prosecutor v.Radoslav Brđanin, Trial Chamber Judgment [2004f]. International Criminal Tribunal for the former Yugoslavia, Prosecutor v. Vidoje Blagojević and Dragan Jokić, Trial Chamber Judgment [2005]. 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 [2006a]. International Criminal Tribunal for the former Yugoslavia, Prosecutor v. Vojislav Šešelj, Urgent order to the Dutch authorities regarding health and welfare of the accused [2006b], Case No. IT-03-67-T. International Criminal Tribunal for the former Yugoslavia, Prosecutor v. Radoslav Brđanin, Appeals Chamber Judgment [2007]. International Criminal Tribunal for the former Yugoslavia, Prosecutor v. Vujadin Popović, Ljubiša Beara, Drago Nikolić, Ljubomir Borovčanin, Radivoje Miletić, Milan Gvero, & Vinko Pandurević, Trial Chamber Judgment [2010], Case No. IT-05-88-T. International Criminal Court, 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.
6 International Court of Justice/Permanent Court of International Justice
Permanent Court of International Justice, The S.S. Lotus Case, [1927], Publications of the Permanent Court of International Justice, Series A, No. 10. International Court of Justice, Corfu Channel Case, Judgment [1949]. International Court of Justice, Colombian-Peruvian Asylum Case, Judgment [1950].
International Court of Justice, Fisheries (United Kingdom v. Norway), Judgment [1951a], icj Reports, 116. International Court of Justice, Reservation to the Convention on the Prevention and Punishment of the Crime of Genocide, Advisory Opinion [1951b]. International Court of Justice, South West Africa Cases (Ethiopia v. South Africa; Liberia v. South Africa), Preliminary Objections, Judgment [1962]. International Court of Justice, South West Africa Cases (Ethiopia v. South Africa; Liberia v. South West Africa), Second Phase Judgment [1966]. 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. International Court of Justice, Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America) (Merits), Judgment [1986], icj Reports, 14. International Court of Justice, Maritime Delimitation und Territorial Questions between Qatar and Bahrain, Jurisdiction and Admissibility, Judgment [1994]. International Court of Justice, Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion [1996]. International Court of Justice, Arrest Warrant (Democratic Republic of the Congo v. Belgium), [2000]. International Court of Justice, La Grand Case (Germany v. United States of America), Judgment [2001]. International Court of Justice, Oil Platforms (Islamic Republic of Iran v. United States of America), Judgment [2003]. International Court of Justice, Case concerning Avena and Other Mexican Nationals, Judgment [2004a]. International Court of Justice, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, Advisory Opinion [2004b]. International Court of Justice, Case Concerning Armed Activities on the Territory of the Congo (Democratic Republic of Congo v. Uganda), Judgment [2005]. 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].
7 Others
World Trade Organization Appellate Body (wto ab), United States – Import Prohibition of Certain Shrimp and Shrimp Products, WT/DS58/AB/R [1998].
C Documents
1 Intergovernmental Organizations 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). Committee on Economic, Social and Cultural Rights, Concluding Observations of the Committee on Economic, Social and Cultural Rights: Israel, Doc. No. E/C.12/1/ Add.27 (4 December 1998). Committee on Economic, Social and Cultural Rights, General Comment No. 3 – The Nature of State Parties’ Obligations, Doc. No. E/1991/23 (14 December 1990). 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). 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). Conference of the States Parties to the Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which May be Deemed to be Excessively Injurious or to Have Indiscriminate Effects, Protocol on Blinding Laser Weapons (Protocol IV) to the United Nations Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which May be Deemed to be Excessively Injurious or to Have Indiscriminate Effects, Doc. No. CCW/CONF.I/7 (13 October 1995, entry into force on 30 July 1998). Diplomatic Conference of Geneva of 1949, Final Record of the Diplomatic Conference of Geneva of 1949 (1949). Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts 1974–1966, Official Records (o.r.). 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). 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). 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). 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). 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). Human Rights Committee, Concluding Observations of the Human Rights Committee : Israel, Doc. No. CCPR/C/79/Add.93 (18 August 1998).
Human Rights Committee, General Comment No. 29 – State of Emergency (Article 4), Doc. No. CCPR/C/21/Rev.1/Add.11 (31 August 2001). 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). 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). 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). International Conference on Human Rights, Final Act of the International Conference on Human Rights: Human Rights in Armed Conflict, Doc. No. A/Conf.32/41 (12 May 1968). nato, Policy on Non-Lethal Weapons (13 October 1999). 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). unesco Universal Declaration on Bioethics and Human Rights (19 October 2005). 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). unesco, Draft Report of Commission III – Statements on the Interpretation of spe- cific Provisions of the Universal Declaration on Bioethics and Human Rights, Annex II, Doc. No. 33 C/83 (18 October 2005). unesco International Bioethics Committee, Preliminary Draft Declaration on Universal Norms on Bioethics, Doc. No. SHS/EST/CIB-EXTR/05/CONF.202/2 (9 February 2005). unesco International Bioethics Committee, Explanatory Memorandum on the Elaboration of the Preliminary Draft Declaration on Universal Norms on Bioethics, Doc. No. SHS/EST/05/CONF.203/4 (21 February 2005). un General Assembly, Universal Declaration of Human Rights, Doc. No. A/810/1948 (1948). un General Assembly, Optional Protocol to the International Covenant on Civil and Political Rights, Doc. No. A/RES/6316, 302 (16 December 1966). un General Assembly, Resolution 237 (1967), Doc. No. S/RES/237 (14 June 1967). un General Assembly, Resolution XXIIII Human Rights in Armed Conflict, Doc. No. A/ Conf.32/41 (12 May 1968). un General Assembly, Respect for Human Rights, Doc. No. A/7218 (1968) (19 December 1968). un General Assembly, Resolution 2675 (XXV) Basic Principles for the Protection of Civilian Populations in Armed Conflict, Doc. No. A/8028 (1970) (9 December 1970).
2 un Special Rapporteurs
Alston, Philip, un Special Rapporteur on extrajudicial, summary or abitrary execu- tions, ‘Study on Targeted Killings’, Doc. No. A/HRC/14/24/Add.6 (28 May 2010). Eide, Asbjørn, 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). Kooijmans, Pieter, un 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 (19 February 1986). Nowak, Manfred, un Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment of the Human Rights Council, ‘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. A/HRC/13/39/ Add.5 (5 February 2010). Questiaux, Nicole, 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). Mendez, Juan E., 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). Mendez, Juan E., 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). 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 (22 June 1998). Zerrougui, Leila (Chairperson-Rapporteur of the Working Group on Arbitrary Detention); Despouy, Leandro (Special Rapporteur on the independence of judges and lawyers); Nowak, Manfred (Special Rapporteur on Torture and other Cruel, Inhuman or Degrading Treatment or Punishment); Jahangir, Asma (Special Rapporteur on Freedom of Religion or Belief); and Hunt, Paul (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).
3 Non-Governmental Organizations
Amnesty International, Jordan: Human Rights Reforms: Achievements and Obstacles, ai Index: mde 16/02/94 (1994), at http://www.amnesty.org/en/library/asset/ MDE16/002/1994/en/0b6fe8e6-ec13-11dd-85b9-0939011eabc9/mde160021994en.pdf. Amnesty International, The Conflict in Gaza: A Briefing on applicable Law, Investigations and Accountability, ai Index: mde 15/007/2009 (2009), at http:// www.amnesty.org/en/library/info/MDE15/007/2009. Amnesty International, Bahrain: A Human Rights Crisis, ai Index: MDE/11/019/2011 (21 April 2011), at http://www.amnesty.org/en/library/asset/MDE11/019/2011/ en/40555429-a803-42da-a68d-0f016b908580/mde110192011en.pdf. Amnesty International, Health Crisis: Syrian Government targets the Wounded and Health Workers, ai Index: mde 24/059/2011 (2011), at http://www.amnesty.org/en/ library/info/MDE24/059/2011/en. Amnesty International, Squeezing the life out of Yarmouk – War crimes against besieged civilians, ai Index: mde 24/008/2014 (March 2014) at http://www.amnesty .org/en/library/info/MDE24/008/2014/en. Deutsches Rotes Kreuz, National Statutes of the German Red Cross (Bundessatzung nach Beschlusserfassung der Außerordentlichen Bundesversammlung am 20.03. 2009) (2009), at http://www.drk.de/fileadmin/Ueber_uns/DRK-Bundessatzung _2009.pdf. 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). Human Rights Watch, Israel: stop unlawful Use of White Phosphorus in Gaza (10 January 2009), at http://www.hrw.org/news/2009/01/10/israel-stop-unlawful-use -white-phosphorus-gaza. Johannes Wier Stichting voor Mensenrechten en Gezondheidszorg, Honger naar Recht – Honger als Wapen: Handleiding voor de Medische en Verpleegkundige Begeleiding van Hongerstakingen (2000), at http://www.johannes-wier.nl/content .php?page=55. International Committee of the Red Cross, Report on the Work of the Conference, Vol. 1, ce 1972 (3 May – 3 June 1972). International Committee of the Red Cross and International Federation of Red Cross and Red Crescent Societies, Statutes of the International Committee of the Red Cross (adopted by the 25th International Conference of the Red Cross at Geneva in 1986, amended in 1995 and 2006). International Committee of the Red Cross and International Federation of Red Cross and Red Crescent Societies, Statutes of the International Red Cross and Red
Crescent Movement (adopted by the 25th International Conference of the Red Cross at Geneva in October 1986). 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) at http://www.ifrc.org/ Docs/idrl/I259EN.pdf. International Committee of the Red Cross, The SIrUS Project: Towards a Determination of which Weapons cause “Superfluous Injury and Unnecessary Suffering” (1997). International Committee of the Red Cross, icrc position on hostage-taking, International Review of the Red Cross, No. 846 (2002). 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, in Karen J. Greenberg and Joshua J. Dratel (eds), The Torture Papers – The Road to Abu Ghraib (Cambridge University Press, 2004). International Committee of the Red Cross, News Release: The icrc’s work at Guantanamo Bay, 04/70 icrc Homepage (2004) at http://www.icrc.org/eng/ resources/documents/misc/678fk8.htm. 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, 87 International Review of the Red Cross, No. 858 (2005) at http://www.icrc.org/eng/ assets/files/other/irrc_858_violations_ihl.pdf. International Committee of the Red Cross Statement, The Relevance of ihl in the Context of Terrorism, icrc Homepage (2005) at http://www.icrc.org/eng/resources/ documents/misc/terrorism-ihl-210705.htm. 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 and Joshua J. Dratel (eds), The Torture Papers – The Road to Abu Ghraib (Cambridge University Press, 2005). 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). International Committee of the Red Cross, Nils Melzer, Interpretive Guidance on the Notion of Direct Participation in Hostilities under International Humanitarian Law (May 2009) at http://www.icrc.org/eng/assets/files/other/icrc-002-0990.pdf. International Committee of the Red Cross, Gaza: 1.5 million people trapped in despair (June 2009) at http://www.icrc.org/eng/assets/files/other/gaza-report-icrc -eng.pdf.
International Committee of the Red Cross, Operational Update: Afghanistan: icrc steps up efforts to help the sick and wounded (25 May 2010), at http://www.icrc.org/ eng/resources/documents/update/afghanistan-update-250510.htm. International Committee of the Red Cross, Libya: icrc makes urgent call for access to wounded (24 March 2011), at http://www.icrc.org/eng/resources/documents/ update/2011/libya-update-2011-03-24.htm. International Committee of the Red Cross, Health Care in Danger: A Sixteen Country Study (July 2011) at http://www.icrc.org/eng/what-we-do/safeguarding-health-care/ index.jsp. International Committee of the Red Cross, Health Care in Danger: Making the Case (August 2011), at http://www.icrc.org/eng/assets/files/publications/icrc-002-4072.pdf. International Committee of the Red Cross, Persons detained by the us in Relation to Armed Conflict and the Fight against Terrorism – The Role of the icrc, icrc Homepage (2012) at http://www.icrc.org/eng/resources/documents/misc/ united-states-detention.htm. International Red Cross and Red Crescent Movement, 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). International Committee of the Red Cross, Annual Report 2012 (May 2013) at http:// www.icrc.org/eng/resources/annual-report/. Médecins Sans Frontières International Movement, Financial Report 2012 (2012), at http://www.msf.org/international-financial-report-2012. Physicians for Human Rights and Farnoosh Hashemian, Broken Laws, Broken Lives – Medical Evidence of Torture by us Personnel and Its Impact (June 2008), at https:// s3.amazonaws.com/PHR_Reports/BrokenLaws_14.pdf. Physicians for Human Rights – Israel, Ill Morals: Grave Violations of the Right to Health during the Israeli Assault on Gaza (March 2009), at http://reliefweb.int/ sites/reliefweb.int/files/resources/C4A758BE6027D1ACC12575840034523E-Full _Report.pdf. Physicians for Human Rights and Sebastian van As, Alicia Vacas Moro, Ralf Syring, Jørgen Lange Thomsen and Shabbir Ahmed Wadee, 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). Physicians for Human Rights, Experiments in Torture: Evidence of Human Subject Research and Experimentation in the “Enhanced” Interrogation Program (June 2010), at http://phrtorturepapers.org/. Physicians for Human Rights, Neglect of Medical Evidence of Torture in Guantánamo Bay: A Case Series (26 April 2011), at http://www.plos.org/press/plme-08-04 -Iacopino.pdf?s_src=CAT%20press%20release&s_subsrc=PLoS.
Physicians for Human Rights, Do No Harm: A Call for Bahrain to end Systematic Attacks on Doctors and Patients (April 2011), at http://physiciansforhumanrights .org/issues/persecution-of-health-workers/bahrain/background.html. Physicians for Human Rights, phr Condemns Decision by Bahrain’s Highest Appeals Court to Uphold Conviction of Medics (10 January 2012), at http://physiciansforhu- manrights.org/press/press-releases/phr-condemns-decision-by-bahrain-court-to -uphold-conviction-of-medics.html. Physicians for Human Rights, Letter to Barack Obama (1 November 2013), at http:// physiciansforhumanrights.org/library/other/letter-to-president-obama-on-force -feeding-at-guantanamo.html. 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 (April 2010), at http://www2.ohchr.org/english/bodies/cat/docs/ngos/RCT _Jordan44.pdf. 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 Ill-Treatment in Israel (October 2011). Working Group on Detainee Interrogations in the Global War on Terrorism, Working Group Report: Assessment of Legal, Historical, Policy, and Operational Considera tions’, in Karen J. Greenberg and Joshua J. Dratel (eds), The Torture Papers – The Road to Abu Ghraib (Cambridge University Press, 4 April 2003).
4 Medical Associations
American Medical Association, Principles of Medical Ethics (adopted June 1957; revised June 1980; revised June 2001). American Medical Association, Opinion 2.03 – Allocation of Limited Medical Resources (June 1994), at http://www.ama-assn.org/ama/pub/physician-resources/ medical-ethics/code-medical-ethics/opinion203.page? American Medical Association, Opinion 8.08 – Informed Consent (June 2006), at http://www.ama-assn.org/ama/pub/physician-resources/medical-ethics/code -medical-ethics/opinion808.page? American Medical Association, Opinion 2.068 – Physician Participation in Interrogation (November 2006), at http://www.ama-assn.org/ama/pub/physician -resources/medical-ethics/code-medical-ethics/opinion2068.page. American Medical Association, Opinion 5.05 – Confidentiality (June 2007), at http:// www.ama-assn.org/ama/pub/physician-resources/medical-ethics/code-medical -ethics/opinion505.page?
American Medical Association, Code of Medical Ethics (2008), at http://www.ama -assn.org/ama/pub/physician-resources/medical-ethics/code-medical-ethics .shtml. American Medical Association, Annual Report 2010 (2010), at http://www.ama-assn .org/resources/doc/about-ama/2010-annual-report.pdf. Bundesärztekammer, (Muster-) Berufsordnung für die deutschen Ärztinnen und Ärzte (2008), at http://www.bundesaerztekammer.de/downloads/MBOStand 20061124.pdf. European Union of Medical Specialists, uems Strategy, uems 2008/05 (2008), at http://admin.uems.net/uploadedfiles/984.pdf. Israeli Medical Association, General Duties of the Physician, at http://www.ima.org.il/ ENG/ViewCategory.aspx?CategoryId=4532. Israeli Medical Association, Position Paper on Assurance of Medical and Health Services during the Armed Conflict between Israelis and Palestinians, at http:// www.ima.org.il/ENG/ViewCategory.aspx?CategoryId=4545. Israeli Medical Association, Position Paper on Force-Feeding Hunger Strikers, at http://www.ima.org.il/ENG/ViewCategory.aspx?CategoryId=4497. Israeli Medical Association, Position Paper on the Prohibition of Physician Participation in Interrogations and Torture (December 2007), at http://www.ima .org.il/ENG/ViewCategory.aspx?CategoryId=4529. Islamic Organization for Medical Sciences, Islamic Code of Medical Ethics, at http:// www.islamset.com/ethics/code/index.html. Koninklijke Nederlandsche Maatschappij tot bevordering der Geneeskunst, Toelichting op ‘Gedragsregels voor artsen’, Doc. No. II.02 (2002). South African Medical Association, Member Credo (2009), at http://www.samedical .org/index.php?option=com_content&task=view&id=37&Itemid=134. Standing Committee of European Doctors, Statutes, at http://www.cpme.be/content .php?c=aboutcpme_statutes. Standing Committee of European Doctors, The Medical Profession and Armed Conflict (17 March 2007). 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), at http://www.wma.net/en/30publications/10policies/g1/index.html. 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), at http://www .wma.net/en/30publications/10policies/c8/index.html. 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/30publica tions/10policies/a20/. 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), at http://www.wma.net/en/30publications/10policies/b3/ index.html. 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), at http://www .wma.net/en/30publications/10policies/c18/index.html. 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). 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), at http://www.wma.net/en/30publications/10policies/h31/index.html. World Medical Association, Rules applicable to wma Associate Membership (last amended the wma General Assembly, Helsinki 2003), at https://www.wma.net/ en/60about/10members/10signup/index.html. World Medical Association, Financial Statements 2008 (2008). 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). 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). World Medical Association, Resolution on Bahrain (adopted by the 62nd General Assembly, Montevideo, Uruguay, October 2011), at http://www.wma.net/ en/30publications/10policies/b2/index.html. 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), at http://www.wma .net/en/30publications/10policies/a10/index.html. World Medical Association, Council Resolution on Danger in Health Care in Syria and Bahrain (adopted by the 191st wma Council Session, Prague, April 2012), at http:// www.wma.net/en/30publications/10policies/30council/cr_13/index.html.
D Web Pages
American Civil Liberties Union Homepage: Accountability for Torture (American Civil Liberties Union), at http://www.aclu.org/accountability/. Canadian Medical Association Homepage, at http://www.cma.ca/cma.ca. Council for International Organizations of Medical Sciences Homepage, at http:// www.cioms.ch/index.html. International Committee of the Red Cross Customary ihl Homepage, at http://www .icrc.org/customary-ihl/eng/docs/home. International Committee of the Red Cross, Treaties and Documents, at http://www .icrc.org/ihl.nsf/INTRO?OpenView. International Committee of the Red Cross, Health Care in Danger, at http://www.icrc .org/eng/what-we-do/safeguarding-health-care/index.jsp Islamic Organization for Medical Sciences Homepage, at http://www.islamset.com/ ioms/code2004/index.html. Israeli Medical Association Homepage (Israeli Medical Association), at http://www .ima.org.il/ENG/Default.aspx. Koninklijke Nederlandsche Maatschappij tot bevordering der Geneeskunst Homepage (Dutch Royal Medical Association), at http://knmg.artsennet.nl/Home. htm. Médecins sans Frontières Homepage (Médecins sans Frontières), at http://www.msf .org/. Oath Betrayed: United States Military Medicine in War on Terror Prisons, Steven H. Miles, at http://www1.umn.edu/humanrts/OathBetrayed/. Oxford Dictionary of English, Online Edition, at http://www.oed.com. Speaking Books Website, at http://www.booksofhope.com/openbook/index.php?/ speaking-book-titles.html. South African Medical Association Homepage, at http://www.samedical.org/index .php?option=com_content&task=view&id=2&Itemid=98. Time Magazine, Interrogation Log Detainee 063 (2002–2003), at http://www.time .com/time/2006/log/log.pdf. Torturing Documentary (National Security Archive Washington Media Associates), at http://torturingdemocracy.org/. United Nations Treaty Collection, Status of Ratifications, Chapter IV, Human Rights, at http://treaties.un.org/Pages/Treaties.aspx?id=4&subid=A&lang=en. World Medical Association Homepage, at http://www.wma.net/en/10home/index .html.
Abu Ghraib 53, 400 civilian physicians 10, 19, 61n240, accountability 151, 187, 317, 376, 385–386 98, 103, 110, 113–114, 244, 263, 267, 273, Additional Protocols to the Geneva 288, 408 Conventions (1977) Clauberg, Carl 166 Adoption 89–90, 293–294 code of conduct 12, 411 Interpretation 280–283 Sphere project 12–13 Ratification 90 combatant 9–10, 43–44, 91–94, 95 advocacy 12, 410–411 unlawful enemy combatant 50n184 Al Jedda v. uk 255 Committee on Economic, Cultural and Al Qahtani, Mohammed 51, 57–60, 187 Social Rights 237, 245, 251, 256, See also Detention, Interrogations 261–264, 311, 410 Appellants v. Levy 23–24, 232–233 common article 3 119–123, 330–331 armed conflicts 89, 238n13 competence 36–39, 74, 431 Arab Spring 1–2 Corfu Channel case 230 Gaza 1–2, 13, 210–211 crimes against humanity 151, 158, 160–161, Rwanda 159–161 170–171, 184 Syria 2, 212, 423 customary law 87, 190–191, 233–235 War on Terror 2–3, 49–74, 212, Additional Protocols 191–193 350–353 Geneva Conventions 190 Armed Activities on the Territory of opinio juris 213–225 the Congo case 240 state practice 194–213 Arrest Warrant case 132 death certificate 60, 155–158, 186, 400 Beauchamp and Childress 34–42, 43, 75 defenses 175–183 autonomy 37–38, 43–46, 72–74, 326, Demmerich, Richard 157–158 430–431 denial of medical care 50, 93, beneficence 31, 39–40, 46–47, 72–74, 139–140, 149, 156–161, 171–173, 184, 308–310, 334, 415, 428–429 212, 260, 266–267, 271 justice 40–41, 47–48 denunciation 117, 126–127 non-maleficence 31, 38–39, 46, 63, déontologie 295–297 308–310, 334, 428–430 detainee 50n184 paternalism 39–40, 47, 72–74, 96–98 detention 49–50, 70–71, 101, 102, 255, Becker-Freyseng, Hermann 161–167 312–319, 271–272 Beiglböck, Wilhelm 161–167 u.s. detention facilities 50–57, 66–67, bioethics 27–28, 31–34, 311–312, 321–327 185–187, 267–268 biological experiments see experiments see also Abu Ghraib, Al Jedda v. uk, Blome, Kurt 161–167 Guantánamo Bay, interrogations, Brack, Viktor 161–167 occupation Brandt, Karl 152, 161–167 distinction 259, 308, 331 Brandt, Rudolf 161–167 distinctive emblem 17–18, 83–84, 115, 401–402 case law 148–175, 208 dual-loyalty conflict 22–26, 61–62, 72, see also prosecution 169–170, 400–401, 415, 429 Central Intelligence Agency 50–57 Dunant, Henry 80–81 civilians 98–102 duress 180–182
European Court of Human Rights Handloser, Siegfried 161–167 254–255, 268, 325–326 Hippocratic Oath 28–31, 35, 38, 164, 174, euthanasia 30, 149–150, 152–156, 163, 363, 389, 431, 437 170–173, 179, 289 hors de combat 46, 89, 91, 121–122, 234, experiments 40–41, 47, 88, 93–94, 96–98, 259, 307 100, 103–106, 121, 134, 139–148, 193, 198, hospital ships 108n150, 112n170 206–207, 228–231, 234, 269–271, 290–293, Höss, Rudolf Franz Ferdinand 162n164, 356, 407, 415, 428–432 173n217, 227 prosecution 161–170, 179–180, 182–184, Hoven, Waldemar 161–167 186 human dignity 14, 140, 327, 329, 331–333, see also consent, medical grave breaches, 353, 358, 396, 415, 429 Rome Statute, unwarranted medical human rights 12, 20, 22, 46, 49, 73, 186, procedures 236–274, 276–277, 311–312, 326–327, extra-legal terms 129, 277, 303–305, 368, 331–333, 358, 395, 397–399, 415, 424–425, 415–416 428–431 Human Rights Committee 244–246, 250, Fischer, Fritz 161–167 254, 260, 266–267, 269–270, 272 Fischer, Horst 172–174 humane treatment 86, 96, 98, 101, 119, Fisheries case 190 121–123, 140, 193–194, 212, 253, 266, 272, 276, force-feeding 67–74, 185–186, 262, 268 396, 408, 428–429 see hunger strike humanitarian aid organization 10–14, Frank, Willi 171n215, 174n221 19–20, 71, 107–108, 257, 434 humanity 13–16, 26, 43, 72, 96, 110, 121, Gebhardt, Karl 161–167 128, 191, 271–272–273, 329–331, 333, general principles of international 357–358, 393–394, 407–408, 413, humanitarian law 327–333 428, 430 generally accepted medical hunger strike 36, 40, 42, 67–74, 262, 268, standards 102–106, 123, 128–129, 351–352 134–136, 146, 207–208, 217–218, see also force-feeding 224–225, 229–231, 234–235, 277, 283–295, 303–305, 307, 336n4 ill-treatment 2–3, 49, 50–67, 88, 96, 101, Geneva Conventions 121, 128, 140–141, 156–157, 171, 181, 185–187, Geneva Convention of 1864 82–83, 212, 256, 265–273, 333, 316, 356, 429 87–88, 194 independence 13–14, 17–19, 21, 24–26, 72, Geneva Convention of 1906 84–85, 194 126–127, 295, 297–298, 301–302, 356–357, Geneva Conventions of 1929 85–87, 383–384, 402–403, 413 98, 112, 163 informed consent 29–30, 43–46, 47, Genzken, Karl 161–167 67–68, 71, 73–74, 95–98, 104–105, 134, 141, Goldstone Report 211–212 146, 164–167, 174–176, 182–184, 187, 193, 198, Gorgaß, Hans Bodo 154–156 207, 262, 269–271, 289, 308–311, 319, grave breaches 89, 93–94, 105, 117, 128, 321–322, 334, 353, 357–358, 391–392, 131–138, 139–144, 150, 185, 206–207, 214, 396–397, 399–400, 415, 430–433 227, 245–249, 304, 430 International Committee of the Red Guantánamo Bay 2n5, 50–57, 63, 67–69, Cross 11, 19–21, 109–110, 213, 246–247, 267–268 334, 403, 433–434 Hamdan v. Rumsfeld 54 Commentary to the Additional Rasul v. Bush 54 Protocols 45, 47, 100–103, 118, Gunn and McCoubrey’s Basic Principles of 123–125, 137, 144, 236, 280, 290, 316–317, Medical Ethics 307–310 336–338, 360–364, 391–392, 416–418
International Committee of the Red Cross medical experiments see experiments (cont.) medical grave breach 105, 128, 133–138, Guantánamo Bay 2–3, 56–75, 185–187, 141–142, 146, 148, 175, 181, 201–202, 267–268, 305 205–208, 214, 304, 314–315, 430 Study on Customary International medical personnel 9–10, 17–18, 22–26, Humanitarian Law 225–233 45, 61, 107–115, 124–125 International Court of Justice 189–190 medical record 58, 60, 63–66, 106, 185, interrogations 2–3, 49–67, 75, 185–187, 352, 400 212, 267–268, 315–316, 319, 350–353, 358, medical war crimes 133–148, 170–175, 390–391, 400, 405, 413, 415, 429 183–188, 196, 206–207, 247, 276–277, 287, interrogation techniques 51–52, 314–315, 335, 424–425, 430 57–60, 126 medication 153, 160, 198, 260–261, 409 impartiality 14–16, 21, 25–26, 110, 349, 357, Mengele, Joseph 166 392–393, 408, 413, 430 Michelson, Oskar 156–157 Islamic Code of Medical Ethics 346–348 Milch, Erhard 162n164 Military and Paramilitary Activities in and journalism 210 against Nicaragua case 16, 191, 208–209, 252, 330–332 Kazuo, Mitomo 167–170 military manuals 216–225 Kiyoshi, Kawashima 167–170 Canada 216–218 France 218–219 Legal Consequences of the Construction of Germany 219 a Wall in the Occupied Palestinian The Netherlands 219–220 Territories case 239–240, 254, 256 United Kingdom 220–222 Legality of the Threat or Use of Nuclear United States of America 222–224 Weapons case 239, 259, 331 military medical ethics 42–48 legislation 141, 149, 151, 181, 196–208, military necessity 14–15, 27, 84, 92–93, 225–233, 244, 326, 391 112, 123, 237, 252, 331 Canada 204n82 mistake of fact 178–180 Germany 197–199, 214 Mrugowsky, Joachim 64, 161–167, 356 Jordan 199–200 mutilations 96, 100, 103–105, 121, South Africa 204n82 134, 137, 142–148, 177, 184, 193, 201–202, The Netherlands 200–202 206–207, 224, 227–231, 234, 270, 291–292, United Kingdom 202–204 428, 431 United States of America 204–206 legitimacy 368–418 nationality 136n29 Lieber Code 79 national medical associations 338–346, Lucas, Franz 171n215 353–355, 358, 363–364, 367–368, 371–376, 380–388, 399, 416, 427, 430–432 Martens Clause 14, 329–331 American Medical Association Masao, Onoue 167–170 339–341, 350–353 Médecins sans Frontières 11, 21–22, British Medical Association 364 217, 401 Canadian Medical Association 341 medical clearance 51, 53, 55, 58–59, 66, Dutch Medical Association 344–345, 185, 352, 360n1 medical confidentiality 30–31, 54, 63–66, German Medical Association 117, 126, 232–233, 320, 351–353, 356, 342–343, 360n1 391–392, 408–409, 415, 432 Israeli Medical Association 343–344, medical duties 10, 26, 110–112, 115–118, 350–353, 360n1 125–127, 156–157, 173, 231–234, 264, South African Medical 296–298, 358, 390, 404, 407 Association 346
South West Africa case 328–329 Universal Declaration on Human Rights Standing Committee of European (1948) 16, 237, 249, 312 Doctors 348–349, 360n1 Unwarranted medical procedures 44–45, superior order 18, 23–24, 48, 61, 72, 116, 90, 102–106, 123–124, 136, 171, 177, 181–182, 126, 162, 176–178, 179, 181, 194, 196, 212, 234, 184, 189, 193–194, 196, 206, 227–231, 269, 300–301, 424 234–235, 285–286, 292–293, 305, 314, 358, 404–407, 415, 428–430 Takaatsu, Takahashi 167–170 Experiments 103–104 Tomio, Karasawa 167–170 Mutilation 103–104 torture 2–3, 27, 46, 49–51, 53, 60–63, Removal of Tissue and 67–68, 73, 93, 100, 139–140, 142, 185–186, Organs 104–105 205–206, 212, 252, 265–269, 271–272, 312–319, 340, 344, 350–353, 383n121, 395, Vienna Convention on the Law of Treaties 405–406, 412–413, 415, 429 (1969) 279–280 Toshihide, Nishi 167–170 transparency 376, 384–385 Wahlmann, Alfred 154–156 travaux préparatoires 290–293, waterboarding 51n190, 55–56, 62, 186, 299–302 267–268 triage 25, 41, 47–48, 93, 223, 308, 334, Weltz, Georg 161–167 340, 430 willful killing 139–140, 142, 155, 157–158, Turku Declaration 242–243 171–173, 223, 259 Wirths, Eduard 165 United Nations General Assembly World Health Organization 11, 261, 299, 208–209, 238–239, 247, 272, 293–294, 312, 324, 334 312–313, 318, 387 World Medical Association 4, 146, 281, Resolution 2444 (1968) 208, 239, 302, 338, 343, 360–419 294 Declaration of Geneva 4, 342–343, Resolution 2675 (1970) 208, 239, 294 389–400, 419 Resolution 3218 (1974) 312 Declaration of Helsinki 320, 407 Resolution 37/194 (1982) 64, Declaration of Malta 69, 72–74, 312–319, 415 Declaration of Tokyo 73, 313, 315, Resolution 60/147 (2005) 247 351–352 United Nations Educational, Scientific and International Code of Medical Cultural Organization 312–313, Ethics 389–400, 419 319–327, 333, 364 Regulations in Times of Armed United Nations Human Rights Conflict 146, 232, 349, 400–414, 419 Council 211–212, 245 World War I 83, 85–86, 96, 156–157 United Nations Security Council 210–211, World War II 25, 86–88, 92, 94, 100,104, 293, 386–387 115–117, 133, 149, 151, 170, 176, 181–183237, Resolution 237 (1967) 238, 293 269, 286–287, 293, 300, 355, 364, 389 Resolution 1860 (2009) 211 wounded and sick 90–91, 121–123, 410 United Nations Principles of Medical Ethics (1982) 312–319, 333 Yamada, Otozō 167–170 Universal Declaration on Bioethics and Yuji, Kurushima 167–170 Human Rights (2005) 319–327, 333, 366 Zensaku, Hirazakura 167–170