Specific Topic(s):

• Medical treatment of detainees.

• Documenting and preventing mistreatment and abuse

• Dual Loyalties & Whistleblowing.

Key references:

‘Ethical principles of health care in times of armed conflict and other emergencies’ –

“5. No matter what arguments may be put forward, health-care personnel never accept acts of torture or any other form of cruel, inhuman or degrading treatment under any circumstances, including armed conflict or other emergencies. They must never be present at and may never take part in such acts.”

Geneva Conventions: Article 13, Third Geneva Convention 12 Aug 1949. “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.” https://ihl-databases.icrc.org/applic/ihl/ihl.nsf/Article.xsp?action=openDocument&documentId=CD863DC518A5E1D7C12563CD0051AB7A

Customary IHL:

“Rule 90. Torture, cruel or inhuman treatment and outrages upon personal dignity, in particular humiliating and degrading treatment, are prohibited.” https://ihl-databases.icrc.org/customary-ihl/eng/docs/v1_rul_rule90

“Rule 91. Corporal punishment is prohibited.” https://ihl-databases.icrc.org/customary-ihl/eng/docs/v1_rul_rule91

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 UN General Assembly Resolution 37/194 of 18 December 1982 https://www.ohchr.org/EN/ProfessionalInterest/Pages/MedicalEthics.aspx

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, Helsinki, Finland, September 2003 and amended by the 58th WMA General Assembly, Copenhagen, Denmark, 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/

Istanbul Protocol. Manual on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. 9 Aug 1999. At: https://www.ohchr.org/documents/publications/training8rev1en.pdf

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