Step 1 – IDENTIFY THE PROBLEM(S)

Briefly state the Scenario: A badly injured enemy combatant claims that his injuries were caused after he had been captured.

How do you respond?

List the Issues that arise from the scenario

• Has this individual been tortured/mistreated?

• Legal repercussions of said allegation.

Identify Critical Information required and Assumptions to be made

• What are the ethical and legal duties of HCP when treating wounded enemy combatants?

• How can you deal with situations, where you feel contradicting obligations for example towards fellow soldiers on the one hand and your ethical principles on the other hand?

• Under what circumstances is whistleblowing or contacting external authorities such as the ICRC a viable or even necessary approach?

• What national policies/procedures apply?

Step 2 – ANALYSE

Patient: Regardless of the circumstances surrounding the injuries, the primary duty is to provide the combatant with immediate and appropriate medical care. The principles of non-maleficence (do no harm) and beneficence (act in the best interest of the patient) require that all injured individuals, regardless of their status, receive necessary treatment. Patients should receive timely, compassionate, and professional care, with injuries and claims taken seriously, while ensuring that their rights are respected.

Clinical: “Healthcare professionals must never tolerate, be present, or take part in acts of torture.” - WMA. ‘Ethical principles of healthcare in times of armed conflict and other emergencies’. At: https://www.wma.net/policies-post/wma-international-code-of-medical-ethics/

Medical personnel have a duty to protect the physical and mental health of prisoners of war to the same standard as those not imprisoned/detained. - UN General Assembly Resolution. ”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”. 18 December 1982. At: https://www.ohchr.org/EN/ProfessionalInterest/Pages/MedicalEthics.aspx

Legal: IHL and the healthcare ethical guidance is very clear about the prohibition of torture or mistreatment of prisoners.

Third Geneva Convention 1949. Article 13: “Prisoners of war must at all times be humanely treated. Any unlawful act or omission by the Detaining Power causing death or seriously endangering the health of a prisoner of war in its custody is prohibited and will be regarded as a serious breach of the present Convention.[…] Likewise, prisoners of war must at all times be protected, particularly against acts of violence or intimidation and against insults and public curiosity. Measures of reprisal against prisoners of war are prohibited.” At: https://ihl-databases.icrc.org/applic/ihl/ihl.nsf/Article.xsp?action=openDocument&documentId=CD863DC518A5E1D7C12563CD0051AB7A

Customary IHL: Rules 90 & 91. “Torture, cruel or inhuman treatment and outrage upon personal dignity, in particular humiliating and degrading treatment, are prohibited. [...] Corporal punishment is prohibited.” At: https://ihl-databases.icrc.org/en/customary-ihl/v1

Societal/Military: If you have concerns that the allegation of mistreatment of a wounded combatant may be true, you are placed in a challenging position. This is a classic example of dual loyalty: on one hand, you may hesitate to implicate your comrades, not wanting to bring harm to them or the unit; on the other, you have a moral and legal duty to uphold justice and prevent further harm. Failing to report the wrongdoing could lead to complicity, making you legally liable and morally responsible for enabling the abuse to continue. Balancing these conflicting loyalties requires courage, integrity, and a commitment to ethical principles in both your professional and military roles. - United Nations Istanbul Protocol. Health professionals with dual obligations. 9 Aug 1999. At: https://www.ohchr.org/documents/publications/training8rev1en.pdf

Step 3 – FUSE

● Summarise conclusions

● Insert citations to key reference sources for your analysis

● Determine the exact Decision(s) to be made

This question covers the duties of a healthcare practitioner to act upon allegations of mistreatment of prisoners. This situation can be very challenging and raises several issues. If the allegations of the enemy combatant were true, they would probably amount to torture or at least to serious mistreatment. Given the circumstances, it may however be difficult or even impossible to determine the origins of the wounds.

- You might want to do an internet search about the case of Baha Mousa who died whilst in UK military custody in 2003.

Step 4 – DECIDE

• What is your Decision?

• Why (can you justify it)?

• Residual uncertainly, need for review?

Your task as medical personnel is to document the status of the patient when you first see him and to keep a record of his wounds. You should also note any inconsistencies or wound patterns that may hint at physical abuse if you find them, or, of indications that the enemy soldier is making up a story and why you do not believe it. - United Nations Istanbul Protocol. Legal investigation of torture. 9 Aug 1999. At: https://www.ohchr.org/documents/publications/training8rev1en.pdf

While the claim of mistreatment should not be dismissed, it is important to remain objective. Focus on providing care without jumping to conclusions about the cause of the injuries. It is important to report the allegation of abuse or mistreatment through the appropriate military or legal channels, as per the Geneva Conventions, which mandate the humane treatment of prisoners of war. Ensure that the claim is documented and passed on to those responsible for investigating potential breaches of conduct. You may consider reporting the case up the chain of command or (if that doesn’t help) report it to the ICRC. - WMA. ‘Resolution On The Responsibility Of Physicians In The Documentation And Denunciation Of Acts Of Torture Or Cruel Or Inhuman Or Degrading Treatment’. Adopted by the 54th WMA General Assembly, September 2003 and amended by October 2007/ At: https://www.wma.net/policies-post/wma-resolution-on-the-responsibility-of-physicians-in-the-documentation-and-denunciation-of-acts-of-torture-or-cruel-or-inhuman-or-degrading-treatment/

Reviewed and formatted by:

Adriana Salas Yeguez, MBBS Year 3 King’s College London

December 2024

Discussion: this question covers the duties of a HCP to act upon allegations of mistreatment of prisoners. This situation can be very challenging and raises a number of issues. If the allegations of the enemy combatant were true, they would probably amount to torture or at least to serious mistreatment. Given the circumstances, it may however be difficult or even impossible to determine the origins of the wounds.

Interpretation of the principles/policy from the references: IHL and ethical guidance is very clear about the prohibition of torture or mistreatment of prisoners. Your task as medical personnel is to document the status of the patient when you first see him and to keep a record of his wounds. You should also note any inconsistencies or wound patterns that may hint at physical abuse if you find them, or, of indications that the enemy soldier is making up a story and why you do not believe it.

If you are concerned that the allegation of the wounded combatant could be true, you find yourself in the difficult position where you might need to speak up against the soldiers who are responsible for the mistreatment. This is often referred to as a situation of dual loyalties, as you may not want to bring your comrades intro trouble but at the same time do not want to cover up for them and, in doing so, become a complicit and legally liable as well. In that case, there is no easy way out, but you may consider reporting the case up the chain of command or (if that doesn’t help) report it to the ICRC. In any case, it is both legally and morally wrong and unacceptable for HCP to falsify the medical record in order to cover up and doing so can have serious consequences for them.

Framework for answering the scenario/question:

• What are the ethical and legal duties of HCP when treating wounded enemy combatants?

• How can you deal with situations, where you feel contradicting obligations for example towards fellow soldiers on the one hand and your ethical principles on the other hand?

• Under what circumstances is whistleblowing or contacting external authorities such as the ICRC a viable or even necessary approach?

• What national policies/procedures apply? – e.g. the UK Joint Doctrine Publication (JDP) 1-10 (4th Edition), Captured Persons at: https://www.gov.uk/government/publications/jdp-1-10-second-edition-captured-persons-cpers

• You might do an internet search about the case of Baha Mousa who died whilst in UK military custody in 2003.

Author: Dr Daniel Messelken, University of Zurich, Center for Military Medical Ethics