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The Practical Guide to Humanitarian Law

« Calling things by the wrong name adds to the affliction of the world. » Albert Camus.

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Medical Ethics

Codes of ethics are meant to protect the quality and independence of a particular profession, such as medicine, journalism, or law. They are recognized and protected by national and international law. Given the power that doctors hold over the life and death of the sick, and over their physical and mental health, professional medical ethics developed since antiquity, notably with the famous Hippocratic Oath.

With time, these rules were reinforced in order to limit the participation of doctors in extreme and totalitarian forms of social control and political violence. World War II in particular revealed, for example, the participation of doctors in policies of torture and eugenics. Far from being an isolated phenomenon attributable to barbarism or dictatorship, studies and historical practices have shown that the misuse of medical knowledge and personnel is a constant temptation. The participation of military and civilian doctors in acts of torture and degrading treatments inflicted to detainees in the context of the war on terror is a new step in the awareness of the nature and extent of the phenomenon.

This has led to the adoption of new international rules in the field of medical ethics. These rules pursue two complementary objectives: to protect the patient against doctors’ misconducts and to protect doctors against social and political pressures.

Specific rules exist for situations where the patient or the doctor is vulnerable or at risk. These are applicable in situations of armed conflicts and detention, but also in medical research and generally in situations where a doctor finds himself under pressure of the dual obligation of defending the individual interest of the patient and the collective interests of society.

Non-compliance with the principles of medical ethics may be subject to disciplinary sanctions imposed by professional organizations to the doctor and give rise to compensation for the victim before civil courts. It can also constitute a criminal offense liable to prosecution before courts in the case of violation of medical secrecy or complicity of ill-treatment and of torture.

In armed conflict, some breaches of medical ethics rules can constitute war crimes and be subject to prosecution before national or international courts.

▸ Medical duties ▸ Universal jurisdiction ▸ Torture ▸ War crimes/Crimes against humanity

General Rules

There is no international convention that regulates the content of medical ethics in times of peace. This is regulated at the domestic level through codes drafted by health professional associations, which also have the authority to impose disciplinary sanctions. The most serious violations can be punished under national criminal law, while the less serious ones can give rise to compensation before civil courts. The content of the different national codes differ but the basic principles are recognized in every country.

The World Medical Association (WMA) drafted and adopted in November 1983 an International Code of Medical Ethics (amended in 2006), which illustrates the consensus on basic principles in matters of medical ethics. This document complements national rules and the ones contained in previous international texts, such as:

  • the Nuremberg Code of 1947, which concerns medical ethics and particularly experimentations on human subjects;
  • the Geneva Declaration of 1948;
  • specific international rules that regulate the medical mission in situations of armed conflict, notably the right for the wounded and sick to be treated according to reinforced medical rules (the Geneva Convention of 1949 and Additional Protocols of 1977);
  • specific international rules that regulate the medical mission in situations of detention.

The International Code of Medical Ethics drafted by the WMA develops the following principles and obligations:

  • Obligation of care: The obligation not to refuse care to those who need it and not to discriminate on financial or other grounds is linked to the obligation to respect life and to consider emergency care as a humanitarian duty. This ethical obligation may also be found in criminal law under the offense of failure to assist a person in danger. The obligation to provide medical care compels doctors to act in the exclusive interest of patients.
  • Respect of patients’ consent: The obligation to inform the patient and to obtain and respect his or her consent before any act of care is paramount in order to protect the balance in the relationship between the doctor and the patient, and to ensure that the patient’s dignity is respected. This obligation puts the power that the doctor has over the patient into perspective. Even if the doctor must always act in the patient’s best interest, he cannot substitute himself for the patient and decide what the patient wants. This duty is well spelled out in most national laws, and gives rise to compensation before courts.

When the patient cannot for medical or legal reasons (minor or unconscious patient) or when the consent cannot be free (detainees), the doctor is responsible for the ethical character of the decision and of the medical act. The ethical criteria can go beyond or against legal or administrative directives. The management of these dual obligations rests with the doctor and is regulated by specific ethical principles (infra).

  • Medical confidentiality: The obligation of medical confidentiality is an ethical imperative that binds the doctor to his or her patient, including after the death of the patient, according to the Geneva Declaration of 1948. Nonetheless, this duty has lost its absolute character in the formulation chosen by the International Code of Medical Ethics, as amended in 2006. The latter holds that it is consistent with medical ethics to disclose confidential information when the patient consents to it or when there is a dangerous, real, and imminent threat to the patient. The obligation of medical confidentiality is tempered by domestic law in some countries, with the obligation to notify information covered by medical confidentiality to national authorities in the name of the defense of public order (for victims of violence or mistreatment) and of public health (for patients suffering from certain pathologies). Medical secrecy is therefore at the center of dual obligations that must be arbitrated by the doctor on the basis of legal and ethical criteria (infra). When the disclosure of certain information may cause harm to the patient, the doctor has an ethical obligation to respect confidentiality and act in the patient’s best interest. Some national laws allow such ethical space for the practitioner’s decision. They establish the duty to report to the authorities to cover the breach of professional confidentiality and protect the doctor from patient complaint in such cases. But they do not entail or apply penalties against doctors failing to report a case.
  • Act in the patient’s best interest: The obligation to act in the patient’s best interest implies an obligation to refer the patient to a competent person when the medical case exceeds one’s own professional capacities. It is further prohibited to provide a treatment whose negative effects exceed the therapeutic benefits. This obligation also regulates the possibility to override consent and prohibits medical experiments if this is not in the direct interest of the patient, with a positive balance between risks and expected benefits and if the voluntary and informed consent of the patient has been secured.

These ethical principles are incorporated in professional codes of ethics in order to safeguard the quality and independence of their mission against external pressures, and are also incorporated in national laws, which make them legally binding.

Doctors are allowed to practice medicine in the country where they are registered with the college of physicians. With the exception of first aid acts (knows as Samaritan acts), the practice of medicine in a foreign country is permitted only in accordance with the rules of that country. Doctors working “in the field” in a foreign country remain subject to the ethics of the medical order to which they belong, as well as to the laws in force in the country where they are working.

There are also several international and regional associations representing the different health professions: the World Psychiatric Association, the International Council of Nurses, the Islamic Organization for Medical Sciences, or the Federation of Islamic Medical Associations, who debate on the ethical rules proper to their activities or mandates. The Islamic Code of Medical Ethics, also known as the Kuwait Declaration, was adopted in 1981 by the First International Conference on Islamic Medicine. It has been revised and enlarged in 2004 by the Islamic Organization for Medical Sciences.

The World Medical Association has also adopted several specific declarations:

  • The Helsinki Declaration of 1964, amended in 2008, concerning rules of medical ethics in the field of medical research (infra);
  • The Declaration of Tokyo, also known as the “Guidelines for Medical Doctors Concerning Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment in Relation to Detention and Imprisonment,” adopted in 1975. This declaration was completed by the 1977 Hawaii Declaration of the World Psychiatric Association;
  • The 1975 Declaration of the International Council of Nurses;
  • The Declaration of Physicians on Independence and Professional Freedom, adopted in 1986;
  • The Declaration of Lisbon on the Rights of the Patient, adopted in 1995; and
  • The Declaration of Hamburg Concerning Support for Medical Doctors Refusing to Participate in, or to Condone, the Use of Torture or Other Forms of Cruel, Inhuman, or Degrading Treatment, adopted in 1997.

Ethical Rules in the Field of Medical Research

The Nuremberg Code of 1947 sets out the basic principles of medical ethics in matters of medical research. The Code contains ten principles, among which are the necessity to ask the consent of the patient who participates in the research, the possibility for the patient to leave the research at any time, and the obligation for the researcher to evaluate the risks inherent to the research and to ensure that the patient suffers no physical harm.

These rules were reinforced to cover situations of armed conflicts and detention. Principle 22 of the “Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment,” adopted by the UN General Assembly in 1988, provides that “no detained or imprisoned person shall, even with his consent, be subjected to any medical or scientific experimentation which may be detrimental to his health.”

This provision is also spelled out in the context of international armed conflicts by Additional Protocol I of 1977 to the Geneva Conventions, which provides that it is prohibited to subject detainees or persons deprived of their liberty to any medical or scientific experiments or removal of tissue or organs for transplantation, except where these acts are justified by the state of health of the person concerned and are consistent with generally accepted medical standards that 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 (API Art. 11).

The Declaration of Helsinki, adopted in 1964 by the WMA and amended several times (last revision in 2008), completes the ethical rules applicable to medical research involving human subjects. This Declaration spells out thirty-five principles, among which are the following: the well-being of the patient must take precedence over all other interests (Principle 6); the research must be thoroughly described in a research protocol (Principle 14); such protocol must be submitted to an independent ethical committee (Principle 15); and the researcher has the obligation to seek the patient’s informed consent. In addition, no national or international ethical, legal, or regulatory requirement should reduce or eliminate any of the protections for research subjects set forth in the Declaration (Principle 10).

International rules applicable to medical research are less strict than some national rules, particularly in Western countries. This allows organizations that perform medical research in certain countries to apply minimum rules and standards of protection. In such cases, two criteria apply. The first concerns the actual freedom of a patient when he or she gives consent, including the absence of pressure on his or her right to care if he or she refuses. The second criterion concerns the balance between direct benefits and foreseeable risks borne by the patient. In order to ensure the application of these protective rules, international and European legislation provide a double obligation to respect the legal and ethical rules applicable in the country where the research is carried out and in the country of origin of the researchers performing the research.

Specific rules of medical ethics apply in situations of armed conflicts or detention, situations where the independence of doctors can be compromised. These rules notably regulate the respect for physical integrity and access to care of the sick and wounded and persons deprived of their liberty in armed conflict.

▸ Detention ▸ Wounded and sick persons

Rules Applicable in Situations of Armed Conflict

The overall protection that humanitarian law grants to the medical mission in times of conflict is tied to respect for the principles of medical ethics. Thanks to the Geneva Conventions, medical ethics rules have become mandatory norms of international humanitarian law. This means that national rules or military orders that would go against these principles cannot be imposed on medical personnel, whatever the circumstances. The obligation to respect medical ethics protects doctors from pressures by security or military forces to participate in acts of torture or ill treatment on the wounded and sick in situations of armed conflicts or on detainees and persons deprived of their liberty.

The Geneva Conventions and their Additional Protocols stipulate that no person may be punished for carrying out medical activities compatible with medical ethics, regardless of the circumstances and of the persons benefiting from their actions (API Art. 16.1, APII Art. 10.1).

Any act that is not in conformity with medical ethics or that endangers the physical or mental health of an individual, as well as any deliberate refusal to provide the necessary care to a wounded or sick person, is a war crime (GCI Art. 50, GCII Art. 51, GCIII Art. 130, GCIV Art. 147, and API Art. 11).

In situations of conflict, the Geneva Conventions stipulate the imperative to protect the wounded and sick, without discrimination and in respect of the rules of medical ethics. This requirement is at the heart of international humanitarian law since the first Geneva Convention of 1864. The Geneva Conventions do not give a precise definition of the content of medical ethics; nonetheless, several articles refer to the protection of the medical mission, which is organized along two lines. The first establishes the protection of the wounded and sick and prohibits any act that is not in conformity with medical ethics. The second protects the independence and autonomy of doctors who must, in return, defend the ethical, neutral, and impartial character of medical structures, units, and activities.

Obligation of Care and Protection of the Wounded and Sick

The protection of the medical mission in armed conflict is one of the main elements of customary and conventional international humanitarian law. Historically, the creation of the first Red Cross in 1864 by Henry Dunant intended to regulate the medical care provided to the wounded and sick on the battlefield. Under humanitarian law, no one can be left on purpose without medical assistance or medical care.

Withholding assistance or discriminating in providing care is strictly prohibited. Common Article 3 to the four Geneva Conventions—applicable in all circumstances and at all times—establishes that wounded and sick persons must be collected and cared for and that they will be treated with humanity and dignity and without discrimination based on race, religion, belief, gender, birth, wealth, or any other similar criteria. This obligation was reinforced in 1977 by the two Additional Protocols to the Geneva Conventions applicable to international (API) and non-international (APII) armed conflicts. Those Protocols state that all wounded, sick, and shipwrecked persons, to whichever party to the conflict they belong, shall be respected and protected. Besides, in all circumstances they shall be treated humanely and shall receive, to the fullest extent practicable and with the least possible delay, the medical care and attention required by their condition. There shall be no distinction among them founded on any grounds other than medical ones (API Art. 10, APII Art. 7).

Rule 110 of the customary IHL study published by the ICRC in 2005 recalls that the wounded and the sick have the right to access medical care, without distinction on any grounds other than medical ones. This rule is applicable both in international and non-international armed conflicts.

Concerning the prohibition of discrimination in the delivering of medical care, the International Code of Medical Ethics provides that a “physician shall not allow his/her judgment to be influenced by personal profit or unfair discrimination” and that he or she shall “always bear in mind the obligation to respect human life” and “give emergency care as a humanitarian duty unless he/she is assured that others are willing and able to give such care.” This Code is not binding as such on States, but its legal value in situations of armed conflict is upheld by the obligation to respect medical ethics, as provided by the Geneva Conventions and their Additional Protocols.

Grave Breaches to International Humanitarian Law

Willful killing, torture, or inhuman treatment, including biological experiments, and willfully causing great suffering or serious injury to body or health, committed against persons protected by the Geneva Conventions, including the wounded and sick, are grave breaches of humanitarian law (GCI Art. 50) and are therefore war crimes subject to international criminal prosecutions.

Common Article 3 also prohibits violence to life and person, in particular murder of all kinds, mutilation, cruel treatment, and torture, but also outrages upon personal dignity, notably against the wounded and sick. Violations to Article 3 have been recognized by the international jurisprudence as grave breaches to international humanitarian law. The willful withholding of care has been added to the grave breaches listed by Article 11 of the 1977 Additional Protocol I to the Geneva Conventions.

  1. The physical or mental health and integrity of persons who are in the power of the adverse Party or who are interned, detained or otherwise deprived of liberty [for reasons related to the conflict] shall not be endangered by any unjustified act or omission. Accordingly, it is prohibited to subject the persons described in this Article 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 medical standards which would be applied under similar medical circumstances to persons who are nationals of the Party conducting the procedure and who are in no way deprived of liberty.
  2. It is, in particular, prohibited to carry out on such persons, even with their consent:
  3. physical mutilations;
  4. medical or scientific experiments;
  5. removal of tissue or organs for transplantation, except where these acts are justified in conformity with the conditions provided for in paragraph 1.
  6. Exceptions to the prohibition in paragraph 2(c) may be made only in the case of donations of blood for transfusion or of skin for grafting, provided that they are given voluntarily and without any coercion or inducement, and then only for therapeutic purposes, under conditions consistent with generally accepted medical standards and controls designed for the benefit of both the donor and the recipient.
  7. Any willful act or omission which seriously endangers the physical or mental health or integrity of any person who is in the power of a Party other than the one on which he depends and which either violates any of the prohibitions in paragraphs 1 and 2 or fails to comply with the requirements of paragraph 3 shall be a grave breach of this Protocol.

Those prohibitions, like the requirement to protect the wounded and sick, are now part of customary international humanitarian law.

Rule 90 confirms the prohibition of torture, cruel or inhuman treatment, and outrages upon personal dignity. Rule 92 confirms that “mutilation, 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.” Those rules are applicable both in international and non-international armed conflicts.

▸ Torture ▸ War crimes/Crimes against humanity

Protection of the Independence of the Doctor and His or Her Mission

Humanitarian law establishes clear rules that protect the independence of medical personnel, and therefore their ability to respect and defend medical ethics against outside pressure.

  • Medical and religious personnel must be respected and protected. They must be granted all available help for the performance of their duties and must not be compelled to carry out tasks that are not compatible with their humanitarian mission (API Art. 15, APII Art. 9.1). Rules 25 and 28 of the customary IHL study spell out the obligation to respect and protect in all circumstances medical personnel as well as medical units and services.
  • “In the performance of their duties medical personnel may not be required to give priority to any person except on medical grounds” (APII Art. 9.2).
  • “Under no circumstances shall any person be punished for having carried out medical activities compatible with medical ethics, regardless of the person benefiting there from” (API Art. 16.1, APII Art. 10.1).
  • Persons carrying out medical activities must not be compelled to perform acts or to carry out work contrary to the rules of medical ethics, other rules designed for the benefit of the wounded and sick, or other provisions of international humanitarian law, nor must they be compelled to refrain from acts required by such rules (API Art. 16.2, APII Art. 10.2).
  • Rule 26 of the customary IHL study confirms these provisions: “punishing a person for performing medical duties compatible with medical ethics or compelling a person engaged in medical activities to perform acts contrary to medical ethics is prohibited.”

The rules governing medical secrecy and the principle of doctor–patient confidentiality in times of international or internal conflict are explained in the next section

Reinforced Medical Secrecy

The respect of medical secrecy is a fundamental issue in the protection of patients in situations of armed conflicts and detention. Medical secrecy may be limited in times of peace by forensic obligations stipulated by national law. These may require doctors to report to public authorities certain contagious pathologies or cases of violence; bullet wounded patients, victims of sexual violence, and children victims of mistreatment. The provisions of international humanitarian law, and notably the rules pertaining to medical ethics, put the principle of medical secrecy above any other conflicting regulations.

Even in the case of prosecution of the worst crimes, the ICC Rules of Procedure and Evidence protect medical secrecy and do not consider admissible information obtained in violation of such professional secrecy, unless the patient consents to it (Rule 73).

The Hippocratic Oath already assigned physicians to secrecy: “all that may come to my knowledge in the exercise of my profession or in daily commerce with men, which ought not to be spread abroad, I will keep secret and will never reveal.”

  • Medical secrecy is protected by international humanitarian law. In situations of disturbance or conflict, medical personnel who take care of the sick and wounded must strictly respect medical secrecy. Indeed, medical information passed to the authorities may prejudice the patient and be used as a means of pressure.
  • In situations of internal disturbances or armed conflict, the ethical rules imposing medical secrecy take precedence over opposite obligations set out by national law. A doctor cannot transfer information if this is not in the direct interest of the patient and if this transmission can be harmful for the patient. No sanctions may be taken against a doctor who refuses to violate medical secrecy in times of internal disturbances or armed conflict.
  • Only law can regulate the restrictions to the principle of medical secrecy. A simple order or regulation issued by a military or administrative authority does not authorize a doctor to breach his or her obligation of medical secrecy.
  • The current tendency is to clarify the dilemma between medical ethics and the law by recognizing an absolute ethical prohibition to disclose medical information if it is not in the interest and with the consent of the patient.

In situations of international armed conflicts, international humanitarian law sets medical secrecy vis-à-vis the opposing party to the conflict as an absolute principle. It provides that no person carrying out medical activities can be compelled to give out any information concerning the wounded and sick who are, or have been, under his or her care, as long as the medical person considers that such information might prove harmful to the patients concerned or to their families. This applies whether the person requesting the information belongs to the adverse party to the conflict or to the medical person’s own party, except in cases foreseen by the person’s domestic laws. However, only one exception is foreseen: regulations concerning the compulsory notification of communicable diseases must be respected (API Art. 16.3).

In situations of internal armed conflicts, the two parties to the conflict are not entitled to the same rights. Nonetheless, humanitarian law recalls that only law can limit the principle of medical secrecy. Additional Protocol II of 1977 specifies that “the professional obligations of persons engaged in medical activities regarding information which they may acquire concerning the wounded and sick under their care shall, subject to national law, be respected” (APII Art. 10.3). It also affirms that “subject to national law, no person engaged in medical activities may be penalized in any way for refusing or failing to give information concerning the wounded and sick who are, or who have been, under his care” (APII Art. 10.4)

In armed conflict, be it international or non-international, respect for medical ethics prevails over other provisions of national law. Indeed, as the last say on this issue, international humanitarian law provides that under no circumstances shall any person be punished for carrying out medical activities compatible with medical ethics, regardless of the person benefiting therefrom (API Art. 16.1, APII Art. 10.1).

Rules of Medical Ethics Applicable in Situations of Detention

The active or passive participation of medical personnel in acts of torture or degrading treatment of persons detained or anyhow deprived of their liberty is a practice revealed in many circumstances. This participation intensifies the feeling of powerlessness and fear of the victim and increases the efficacy of torture in its objective to destroy any capacity of physical or moral resistance, for the individual or within a group, and to prolong pain without causing death.

Specific rules of ethics were developed in order to limit the exposure of medical personnel to pressures by security or military forces. Numerous studies have shown that medical personnel are badly equipped on the professional and psychological level to refuse participation in practices deemed by authorities as going beyond their sphere of direct responsibility. Some doctors consider that they are no longer in a therapeutic relation with the patient but in a technical interaction with authorities and that, consequently, rules of medical ethics do not apply.

The participation of doctors in interrogations and ill treatment can take multiple forms, which are most of the time indirect. This participation can include surveillance, observation, assistance, transmission of medical information, administration of medicine not justified by the state of health of the patient and without his or her consent, the falsification of medical files or death certificates, or the provision of medical care that allows the prolongation of torture. It was therefore necessary to clarify the rules concerning the active or passive participation of medical personnel in acts of torture and to regulate the ethical content of doctors’ obligations toward detained patients.

In 1982, the United Nations codified basic principles of medical ethics applicable in situations of detention. Those rules complete the ones contained in the Geneva Conventions and relative to the exercise of the medical mission toward prisoners of war and other persons deprived of their liberty in situations of conflict. They also complete the Standard Minimum Rules for the Treatment of Prisoners, adopted in 1977 by the United Nations (Resolution 2076 [LXII] of 13 May 1977), which already contained numerous rules relative to the rights of detainees and the practice of the medical mission in places of detention. But those rules were mainly intended for States and did not delimit the boundaries of medical ethics and individual responsibility of medical personnel in such violations.

▸ Detention

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

Those principles were adopted by the UN General Assembly by consensus on 18 December 1982 (Resolution 37/194). They go beyond the principles of medical ethics set out by the Nuremberg Code of 1947, which was limited to the regulation of medical experimentations on detainees. They complete the rules relative to the exercise of the medical mission in situations of conflict, which prohibit the active or passive participation of physicians to acts of torture and cruel, inhuman, or degrading treatments of detainees. Finally, they reinforce the general rules of medical ethics by adapting them to the specific risks linked to detention.

  • They spell out six basic principles from which there may be no derogation on any ground whatsoever, including public emergency (Principle 6).
  • They restate the rule of non-discrimination and equality of medical treatment, whatever the status of the patient: “health personnel, particularly physicians, charged with the medical care of prisoners and detainees have a duty to provide them with protection of their physical and mental health and treatment of disease of the same quality and standard as is afforded to those who are not imprisoned or detained” (Principle 1).
  • They clarify the content of the individual responsibility of the care provider in the active or passive participation in-ill treatment.

They affirm that the passive or active cooperation of the physician to torture and cruel or inhuman treatment is proven as soon as the role of the medical personnel to pursue another objective than the one to evaluate, protect, or improve the physical or mental health of concerned individuals is proven.

“It is a gross contravention of medical ethics, as well as an offence under applicable international instruments, for health personnel, particularly physicians, to engage, actively or passively, in acts which constitute participation in, complicity in, incitement to or attempts to commit torture or other cruel, inhuman or degrading treatment or punishment” (Principle 2).

“It is a contravention of medical ethics for health personnel, particularly physicians, to be involved in any professional relationship with prisoners or detainees the purpose of which is not solely to evaluate, protect or improve their physical and mental health” (Principle 3).

“It is a contravention of medical ethics for health personnel, particularly physicians: a) to apply their knowledge and skills in order to assist in the interrogation of prisoners and detainees in a manner that may adversely affect the physical or mental health or condition of such prisoners or detainees and which is not in accordance with the relevant international instruments; b) to certify, or to participate in the certification of, the fitness of prisoners or detainees for any form of treatment or punishment that may adversely affect their physical or mental health and which is not in accordance with the relevant international instruments, or to participate in any way in the infliction of any such treatment or punishment which is not in accordance with the relevant international instruments” (Principle 4).

Additionally, “it is a contravention of medical ethics for health personnel, particularly physicians, to participate in any procedure for restraining a prisoner or detainee unless such a procedure is determined in accordance with purely medical criteria as being necessary for the protection of the physical or mental health or the safety of the prisoner or detainee himself, of his fellow prisoners or detainees, or of his guardians, and presents no hazard to his physical or mental health” (Principle 5).

Manual on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment

Under the name of the Istanbul Protocol, adopted in 2004 by the United Nations, this Manual provides guidelines to help health care professionals confronted by torture and ill treatment to manage ethical dilemmas. It also reminds the obligations of physicians in the documentation of torture and ill treatment and the prohibition to participate in this type of treatment.

Ethics of the Therapeutic Relationship

The Manual confirms that the only ethical relationship between prisoners and health professionals is one designed to evaluate, protect, and improve prisoners’ health. The assessment of detainees’ health in order to facilitate punishment or torture is clearly in contravention of medical ethics. For the purpose of this Manual, “participation in torture” includes evaluating an individual’s capacity to withstand ill treatment; being present at, supervising, or inflicting maltreatment; resuscitating individuals for the purposes of further maltreatment or providing medical treatment immediately before, during, or after torture on the instructions of those likely to be responsible for it; providing professional knowledge or individuals’ personal health information to torturers; and intentionally neglecting evidence and falsifying reports, such as autopsy reports and death certificates.

This document recalls the three fundamental obligations of the physician: (1) provide compassionate care by only considering the patient’s best interest, (2) respect the patient’s informed consent, and (3) respect medical confidentiality and do no harm to the patient.

The Manual outlines the dilemmas related to medical personnel’s obligations toward the patient on the one hand and society on the other and provides guidelines to manage these ethical dilemmas.

Ethical Management of the Dilemmas Arising from Dual Obligations

The Manual observes that physicians frequently face dual obligations, which they must arbitrate on the basis of ethical principles. For example, there is a contradiction between the duty to provide care and the duty to not participate in ill treatment, or between the obligation of medical secrecy due to the patient and the obligation to disclose medical information to the authorities. The document clarifies the principles that can help medical personnel manage these dual obligations.

First and foremost, the absolute prohibition of harm to the patient is the only ethical criterion useful to manage ethical dilemmas relative to the lifting or the maintaining of medical secrecy. When the dilemma is between an ethical obligation and a legal obligation, such as the obligation to disclose confidential information on a patient, the ethical rule must always take prevalence. On the contrary, when the dilemma is between two different ethical obligations, the principle that should prevail is the one consisting of avoiding any risk for the patient. This is evident, for example, in the obligation for the physician to respect medical secrecy but also to protect the patient by warning authorities about his health condition and revealing confidential information if this is in his best interest. The Manual recalls that the physician must never base his or her ethical decision only on obedience to a legal requirement. In order to take his or her decision, the doctor must weigh the risk for the patient of alerting authorities of ill treatment committed in places of detention under their control. This notably includes pressures by authorities to obtain information and personal medical files on concerned patients, or to limit the autonomy of physicians and the access to care for patients. In the end, the ethical principle of confidentiality toward the patient supersedes any legal obligation of notification.

Concerning the dilemmas linked to the nature of the relationship between the physician and the patient, the Manual points out that when a doctor does not intervene on the patient’s request or in the framework of a therapeutic relationship guided by the patient’s best interest, he or she must inform the patient on the nature of the mission and the constraints he or she faces concerning confidentiality. The doctor must specify the motives for the examination or the treatment provided. The patient must still be free to consent or not.

When the physician acts on a third party’s request, such as a penitentiary administration, a military, or a security actor, he or she must refuse any order that might harm the physical or mental health of the patient and ensure that the patient always has access to the care needed. The doctor must also defend the independence and impartiality of diagnostics and medical decisions. Finally, he or she must ensure that the confidentiality of the medical information gathered in the course of his or her work will not be lifted without the patient’s consent and information.

Recourse and Sanctions for Violations of Medical Ethics

Certain violations of medical ethics are now recognized as criminal offenses in national and international law, covered by the prohibition to participate in or aid and abet acts of torture, war crimes, or crimes against humanity. The Additional Protocols to the Geneva Conventions have extended the list of grave breaches of international humanitarian law to acts and omissions that deliberately affect the state of health of persons protected in situations of conflict (API Art. 11.4, APII Art. 5.2.e). These criminal offenses may give rise to proceedings before national or international courts if the accused is in another country, under the principle of universal jurisdiction contained in the United Nations Convention against Torture (Arts. 2, 5) and the Geneva Conventions (GCI–IV Arts. 49, 50, 129, and 146; API Art. 85.1). Depending on the case, the jurisdiction of the International Criminal Court can also be invoked.

Medical personnel who act against or contrary to medical ethics can also be prosecuted before national disciplinary bodies (colleges of physicians). These authorities cannot pronounce criminal sanctions, but they can revoke physicians from the right to practice medicine. The objective of these sanctions is to protect society against acts that violate good professional practices. Nonetheless, in situations involving the participation of medical personnel in abusive State practices, such as ill treatment or torture of detainees, national disciplinary authorities tend to consider this a political issue rather than an ethical one, which should be addressed before national courts. This is what the College of Physicians of California decided in 2005 when it refused to investigate the case of a doctor in charge of the treatment of detainees in Guantanamo. The issue had already been formerly addressed, concerning the ethical or non-ethical character of the participation of doctors in the application of the death penalty by lethal injection. On the latter case, the ethical issue is nonetheless disconnected in time of peace from the criminal issue of the participation in acts of torture, since the definition of the Convention against Torture excludes suffering resulting from the enforcement of a criminal sanction pronounced by a regular court.

Given the difficulty for national medical associations to address the specific issue of the participation of doctors in torture and ill treatment of detainees, it was proposed that this matter be delegated to a professional international body, such as the World Medical Association, or that a new entity be specially created to deal with this issue. Such a step would arguably not weaken national or international criminal jurisdictions, which are still not very active in these matters, but it would on the contrary stimulate reflection and ethical decision making within the medical field.

▸ Detention ▸ Ill treatment ▸ Medical duties ▸ Medical personnel ▸ Medical services ▸ Torture ▸ World Health Organization ▸ Wounded and sick persons

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