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Armed Conflict and International Law: In Search of the Human Face pp 169–194Cite as

Doctors in Arms: Exploring the Legal and Ethical Position of Military Medical Personnel in Armed Conflicts

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Abstract

This contribution discusses the legal and ethical position of military medical personnel during armed conflicts. In such situations two difficult issues arise. Firstly, military health workers frequently become the object of an attack, which is a violation of their neutrality as medical personnel. Secondly, they themselves face difficult issues of ‘dual loyalty’: they need to navigate between the interests of the patient, on the one hand, and that of their employer, the military, on the other. This contribution attempts to clarify and strengthen the legal position of military medical personnel, in particular when it comes to providing medical services around the battlefield. To do so, a basis is sought in the intertwined areas of international humanitarian law (IHL), human rights law (HRL), and medical ethics. It is argued that insufficient attention has been paid to bringing these three discourses together conceptually. It will be shown that these three disciplines provide a somewhat incoherent yet compelling framework for medical personnel during armed conflicts. In a nutshell, this framework guarantees the inviolability and neutrality of medical personnel and it stipulates that medical considerations should prevail over military ones when it comes to priority setting between patients.

The author is lecturer in International Law, Department of International and Constitutional Law, University of Groningen, The Netherlands. The author wishes to thank Vincent Beyer, Mathilde Bos, and Mariëlle Matthee for their excellent feedback and support.

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Notes

  1. 1.

    McDonald et al. 2008, in particular Chapter 9, Toebes 2008.

  2. 2.

    Inter alia, Mottershaw 2008; Lubell 2005 and also Toebes 2008.

  3. 3.

    ICRC 2012b.

  4. 4.

    For an insightful and compelling insight see the ICRC video, ICRC 2012c.

  5. 5.

    International Code of Medical Ethics (Declaration of Geneva), Adopted by the 2nd General Assembly of the World Medical Association (WMA), Geneva, Switzerland, September 1948. http://www.wma.net/en/30publications/10policies/g1/index.html. Accessed May 2012; Bloche et al. 2005, pp. 3–6.

  6. 6.

    Regulations in Time of Armed Conflict, adopted by the 10th World Medical Assembly, Havana, Cuba, October 1956, last amended by the World Medical Association General Assembly, Tokyo, 2004, available at http://www.wma.net/en/30publications/10policies/a20/, accessed February 2013.

  7. 7.

    International Dual-Loyalty Working Group 2002, pp. 15–38.

  8. 8.

    International Dual-Loyalty Working Group 2002, p. 21.

  9. 9.

    Article 8(3) in conjunction with 8 (5), Protocol (I) Additional to the Geneva Conventions of 12 August 1949 and relating to the Protection of Victims of International Armed Conflicts, Geneva, 8 June 1977, United Nations Treaty Series, Volume Number 75; See also ICRC 2012a, Customary International Law, Rule 25, available at http://www.icrc.org/customary-ihl/eng/docs/v1_cha_chapter7_rule25. According to the ICRC, this definition is widely used in State practice.

  10. 10.

    Article 8(3) sub. (a) and (b) Additional Protocol I to the Geneva Conventions (applicable during IACs), Ibid.

  11. 11.

    Inter alia, Articles 24–27 Geneva Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, Geneva, 12 August 1949, United Nations Treaty Series, Volume Number 75; Articles 36, 37 Geneva Convention (II) for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, Geneva, 12 August 1949, United Nations Treaty Series, Volume Number 75; Article 33 Geneva Convention (III) relative to the Treatment of Prisoners of War, Geneva, 12 August 1949, United Nations Treaty Series, Volume Number 75; Articles 12–16 Protocol I, supra note 9, (civilian medical personnel); Articles 9–11 Protocol (II) Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts, Geneva, 8 June 1977, United Nations Treaty Series, Volume Number 1125; See also ICRC 2012a, Rule 25 on Medical Personnel of the ICRC Rules on Customary IHL, available at http://www.icrc.org/customary-ihl/eng/docs/v1_cha_chapter7_rule25. Accessed May 2012.

  12. 12.

    The term ‘civilian medical personnel’ refers to medical personnel who are not members of the armed forces but who have been assigned by a party to the conflict exclusively to medical tasks. See ICRC 2012a, ICRC Customary IHL, Rule 25. http://www.icrc.org/customary-ihl/eng/docs/v1_cha_chapter7_rule25. Accessed May 2012; See also Frisina 2008, p. 49.

  13. 13.

    While medical personnel are not allowed to take up arms so as to participate in the armed conflict, they may arm themselves with light individual weapons, as long as the weapons are only used in self-defence or the defence of the wounded in their charge. Article 22-1 Geneva Convention I, supra note 11, Article 13(2)(a) Additional Protocol I, supra note 9.

  14. 14.

    Article 28 Geneva Convention I, supra note 11; See also Solis 2010, p. 192. They are then so-called ‘retainees’, which include medical personnel (surgeons, dentists, and other medical doctors) and chaplains. It should be noted that this category does not embrace medical orderlies or chaplains’ assistants, as they are not considered ‘permanent staff’ and as these persons are armed and may lawfully directly participate in hostilities; See also Solis 2010, pp. 191, 192.

  15. 15.

    See inter alia, International Dual-Loyalty Working Group 2002, pp. 31, 32.

  16. 16.

    International Dual-Loyalty Working Group 2002, p. 32.

  17. 17.

    ICRC 2004.

  18. 18.

    Common Article 3 of the Geneva Conventions, supra note 11.

  19. 19.

    According to Additional Protocol II, supra note 11, Article 1, this Convention does not apply to situations of international disturbances and tensions, but rather to internal conflicts in which the organized armed groups exercise such control over a part of the territory that they are able to carry out sustained and concerted military operations—a requirement that is not mentioned for ‘common Article 3 - conflicts’.

  20. 20.

    British Medical Association 2001, p. 15; Bioethics, which is closely connected to medical ethics, is generally more concerned with ethical questions brought about by advances in biology and medicine. As such, bioethics can be broader than medical ethics, addressing the philosophy of science and issues of biotechnology. Given the substantive overlap between the two fields, the terms are used interchangeably in this chapter. For the purposes of our research topic, it is important to note that medical ethics and bioethics have increasingly incorporated rights-based approaches and have drawn closer to the international framework of human rights.

  21. 21.

    British Medical Association 2001, p. 241.

  22. 22.

    Toebes 2012.

  23. 23.

    Important instruments in this field are the UNESCO Universal Declaration on Bioethics and Human Rights, and the Council of Europe’s Convention on Human Rights and Biomedicine. The UNESCO Universal Declaration on Bioethics and Human Rights, 19 October 2005. http://www.unesco.org/new/en/social-and-human-sciences/themes/bioethics/bioethics-and-human-rights/. Accessed 27 January 2013. The Council of Europe’s Convention on Human Rights and Biomedicine, Oviedo, 4 April 1997 and Additional Protocols, Strasburg. http://conventions.coe.int/Treaty/en/Treaties/Html/164.htm and http://www.coe.int/t/dg3/healthbioethic/. Accessed 27 January 2013; For an account of the meaning and implications of patients’ rights see Hartlev 2012.

  24. 24.

    See for example ICJ, Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, General List No. 95, 8 July 1996, I.C.J. Reports 1996, p. 8, para 25.

  25. 25.

    ICJ, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (hereinafter Wall Case), Advisory Opinion, General List No. 131, 9 July 2004, I.C.J. Reports 2004, para 106.

  26. 26.

    Lubell 2005, p. 752.

  27. 27.

    For a recent analysis see Toebes 2012.

  28. 28.

    International Covenant on Civil and Political Rights (ICCPR), New York, 16 December 1966, United Nations, Treaty Series, vol. 999, p. 171 and vol. 1057, p. 407. http://www2.ohchr.org/english/law/ccpr.htm. Accessed 27 January 2013; International Covenant on Economic, Social and Cultural Rights (ICESCR), New York, 16 December 1966, United Nations, Treaty Series, vol. 993, p. 3. http://www2.ohchr.org/english/law/cescr.htm. Accessed 27 January 2013; ICCPR and ICESCR, both adopted within the framework of the UN on 16 December 1966 (entry into force 1976). Derogation clause in the ICCPR: Article 4-2 ICCPR.

  29. 29.

    Committee on Economic, Social and Cultural Rights 1990, General Comments 3 and 14, paras 10 and 43, 44 respectively; The ‘Limburg Principles’ claim in para 4 that limitations on rights should not affect the ‘subsistence or survival’ of the individual or integrity of the person (para 47); Limburg Principles on the Implementation of the International Covenant on Economic, Social and Cultural Rights, June 1986, Maastricht University, the Netherlands, E/C.12/2000/13, p. 3. http://www.unhchr.ch/tbs/doc.nsf/0/6b748989d76d2bb8c125699700500e17/$FILE/G0044704.pdf. Accessed May 2012; See also Toebes 2008, pp. 209–210.

  30. 30.

    Committee on Economic, Social and Cultural Rights 2000, General Comment 14, paras 43 and 44 and more generally, Committee on Economic, Social and Cultural Rights 1990, General Comment 3, para 10.

  31. 31.

    Committee on Economic, Social and Cultural Rights 2000, General Comment 14, paras 43–44.

  32. 32.

    Ibid.

  33. 33.

    See also Toebes 2008, pp. 209–214.

  34. 34.

    See, inter alia, Article 2-1 ICCPR, supra note 28.

  35. 35.

    Inter alia, ECtHR, Loizidou v. Turkey (Preliminary Objections), No. 40/1993/435/514, 23 February 1995, and more recently Al-Skeini and Others v. UK, No. 55721/07, decision of 7 July 2002, available at http://hudoc.echr.coe.int. Accessed February 2013, and HRC, Lopez Burgos, UN Doc. A/36/40, Communication No. 52/1979, 29 July 1981, para 12.3, available at http://www2.ohchr.org/english/bodies/hrc/HRCommitteeCaseLaw.htm. Accessed February 2013; See also Lubell 2005, pp. 739–741.

  36. 36.

    See the above-mentioned case law and inter alia Lubell 2005, pp. 739–741.

  37. 37.

    Article 2-1 ICESCR, supra note 28, does not mention territory or jurisdiction, as opposed to Article 2-1 ICCPR, supra note 28.

  38. 38.

    Wall case, supra note 25, para 112.

  39. 39.

    Wall case, Ibid.

  40. 40.

    For the state reporting procedure, see Articles 16–17 ICESCR, supra note 28.

  41. 41.

    Committee on Economic, Social and Cultural Rights 2003, paras 15 and 31; See also Committee on Economic, Social and Cultural Rights 2001 and Coomans 2011, pp. 13–16.

  42. 42.

    Coomans 2011, p. 15.

  43. 43.

    Inter alia, Jägers 2002 and Letnar Černič 2010; To support this claim, reference is often made to the Preamble to the Universal Declaration of Human Rights, which refers to the human rights responsibilities of ‘all actors in society’.

  44. 44.

    Bellal et al. 2001, p. 23.

  45. 45.

    See Article 4(2) of the Draft Principles on State Responsibility: Responsibility of States for Internationally Wrongful Acts, United Nations, General Assembly, Resolution A/RES/56/83, adopted 28 January 2002. http://untreaty.un.org/ilc/texts/instruments/english/draft%20articles/9_6_2001.pdf. Accessed February 2013.

  46. 46.

    Rubenstein and Bittle 2010, pp. 329–340.

  47. 47.

    ICRC 2012a, Rules of CIL, Rule 25.

  48. 48.

    Geneva Convention I, supra note 11, Articles 24–26; Geneva Convention II, supra note 11, Article 36; Geneva Convention IV, supra note 11, Article 20; Additional Protocol I, supra note 9, Article 15.

  49. 49.

    Inter alia. Articles 14–23 Geneva Convention I, supra note 11; Articles 7 and 12–40 Geneva Convention II, supra note 11; Article 33 Geneva Convention III, supra note 11; Articles 13–26 Geneva Convention IV, supra note 11; Articles 8–30 Additional Protocol I, supra note 9.

  50. 50.

    International Criminal Court (ICC), Rome Statute of the International Criminal Court, Rome, 17 July 1998, UN Doc. A/CONF.183/9, Article 8(2) (b) (xxiv). http://untreaty.un.org/cod/icc/statute/romefra.htm. Accessed 27 January 2013.

  51. 51.

    See also ICRC 2012a, ICRC Commentary in relation to Rule 25.

  52. 52.

    Common Article 3 to Geneva Conventions I, II, III and IV, supra note 11.

  53. 53.

    ICRC 2012a, ICRC Commentary to Rule 25.

  54. 54.

    According to Article 1 Additional Protocol II, supra note 11, applies to all armed conflicts which are not covered by Additional Protocol I and which take place in the territory of a Member State 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 this Protocol.

  55. 55.

    Articles 9–11 Additional Protocol II, supra note 11.

  56. 56.

    World Medical Association (WMA) 1956. Available at http://www.wma.net/en/30publications/10policies/a20/. Accessed June 2012.

  57. 57.

    Article 10 para 1 Additional Protocol II (applicable during non-international armed conflicts), supra note 11.

  58. 58.

    The first instrument to lay down a right to health was the Constitution of the World Health Organization (WHO, adopted 1946). Furthermore, the right to health can be found in Article 25 of the Universal Declaration of Human Rights (UDHR, 1948), as mentioned, Article 12 of the International Covenant on Economic, Social and Cultural Rights (ICESCR, 1966), supra note 28, Article 12 of the Convention on the Elimination of all forms of Discrimination Against Women (CEDAW, 1979) and Article 24 of the Convention on the Rights of the Child (CRC, 1989), and 9, 25 and 26 of the Convention on the Rights of Persons with Disabilities (CRPD, 2006), as well as several other UN conventions. Furthermore, the right to health can be found in several regional human rights conventions. For example, Article 11 of the European Social Charter (ESC, 1965) stipulates a ‘right to protection of health’, and we find the right to health (care) in Article 35 of the European Charter on Fundamental Rights (EU). We also find the right to health in Article XI American Declaration of the Rights and Duties of Man (ADHR, 1948) and Article 10 of the ‘Protocol of San Salvador’ (Additional Protocol to the American Convention on Human Rights, 1988); Article 16 of the African Charter on Human and Peoples’ Rights (1981); Article XVIII of the Universal Islamic Declaration of Human Rights (1981).

  59. 59.

    Committee on Economic, Social and Cultural Rights 2000.

  60. 60.

    Committee on Economic, Social and Cultural Rights 2000, General Comment 14, para 4.

  61. 61.

    Committee on Economic, Social and Cultural Rights 2000, General Comment 14, paras 44, 45 defines a set of minimum core obligations (see also above).

  62. 62.

    Committee on Economic, Social and Cultural Rights 2000, General Comment 14, para 12.

  63. 63.

    Ibid.

  64. 64.

    Ibid.

  65. 65.

    Shue 1980; Van Hoof 1984; Eide 2001.

  66. 66.

    This obligation to ‘respect’ is explicitly mentioned in Committee on Economic, Social and Cultural Rights 2000, General Comment 14, para 34.

  67. 67.

    WMA Declaration of Geneva 1948, supra note 5.

  68. 68.

    See, for example, Howe 2003; Madden and Carter 2003 and Gross 2006.

  69. 69.

    See the reaction by D. R. Rascona to the views of Sidel and Levy 2003, p. 313.

  70. 70.

    WMA Regulations in Times of Armed Conflict 1956, supra note 56.

  71. 71.

    WMA 1956, supra note 56, Regulation 1.

  72. 72.

    WMA 1956, Ibid., Regulation 2.

  73. 73.

    WMA 1956, Ibid., Regulation 4.

  74. 74.

    WMA 1956, Ibid., Regulation 6.

  75. 75.

    WMA 1956, Ibid., Regulation 7.

  76. 76.

    WMA 1956, Ibid., Regulations 9 and 10.

  77. 77.

    See also List 2008, p. 243.

  78. 78.

    International Dual Loyalty Working Group 2002, in Allhoff 2008, pp. 33–37; See also London et al. 2006.

  79. 79.

    International Dual Loyalty Working Group 2002, in Allhoff 2008, pp. 33–37; The other guidelines concern the issues of chemical weapons, torture, capital punishment, and human experimentation, issues that are left aside in this contribution. ICRC 2012a, Customary IHL, Rule 25.

  80. 80.

    Article 10 Additional Protocol I, supra note 9; See also Article 11, Additional Protocol I, supra note 9, which prohibits physical mutilations, the carrying out of medical experimentations, and the removal of tissue or organs for transplantation.

  81. 81.

    Inter alia, Rubenstein 2009.

  82. 82.

    International Dual Loyalty Working Group 2002, see the quote in the intro.

  83. 83.

    Committee on Economic, Social and Cultural Rights 2000, General Comment 14, para 12.

  84. 84.

    Inter alia, Article 6 Universal Declaration on Bioethics and Human Rights (UNESCO, 2005), supra note 23, and Articles 5–9 Convention on Human Rights and Biomedicine (Oviedo Convention, 1997; Council of Europe), supra note 23.

  85. 85.

    See also Rubenstein and Bittle 2010, p. 337.

  86. 86.

    ICRC 2011.

  87. 87.

    Rubenstein and Bittle 2010, p. 337; See WHO, Health Action in Crisis unit, at http://www.who.int/hac/en/. Accessed 27 January 2013.

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  1. Department of International and Constitutional Law, University of Groningen, Groningen, The Netherlands

    Brigit Toebes

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    Mariëlle Matthee

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    Brigit Toebes

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    Marcel Brus

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Toebes, B. (2013). Doctors in Arms: Exploring the Legal and Ethical Position of Military Medical Personnel in Armed Conflicts. In: Matthee, M., Toebes, B., Brus, M. (eds) Armed Conflict and International Law: In Search of the Human Face. T.M.C. Asser Press, The Hague, The Netherlands. https://doi.org/10.1007/978-90-6704-918-4_7

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