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Conscience in Conflict: The Doctor’s Dilemma

Published online by Cambridge University Press:  09 March 2016

Françoise J. Hampson
Françoise J. Hampson*
Affiliation:
Department of Law, University of Essex
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Canadian Yearbook of International Law/Annuaire canadien de droit international , Volume 27 , 1990 , pp. 203 - 225
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Copyright © The Canadian Council on International Law / Conseil Canadien de Droit International, representing the Board of Editors, Canadian Yearbook of International Law / Comité de Rédaction, Annuaire Canadien de Droit International 1990

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References

1 Geneva Conventions of Aug. 12, 1949, and 1977 Protocols. For texts, see Roberts, and Guelff, , Documents on the Laws of War (Clarendon, Oxford, 2nd ed., 1989).Google Scholar This note is concerned with the obligations of doctors, who are bound by a specific code of medical ethics, some form of the Hippocratic Oath. Other medical and para-medical personnel are usually bound by their own code of professional ethics. The international legal provisions are not usually confined to doctors but their professional bodies have elaborated principles of medical ethics just addressed to doctors (e.g., World Medical Association and the rules of the World Medical Assembly).

2 This is the criterion which a reservation must satisfy, where it is not otherwise prohibited under the terms of the treaty, in order to be a valid reservation under Art. 19 of the Vienna Convention on the Law of Treaties (1969), 63 Am. J. Int’l L. 875 (1969).

3 State Department Report, S. Treaty Doc. No. 2, 100th Cong., ist Sess. (1987) (hereinafter cited as Report) at iii, letter of transmittal. See also Smith, “New Protections for Victims of International Armed Conflicts: The Proposed Ratification of Protocol II by the United States,” tao Mil. L. Rev. 59, at 69 et seq. (1988).

4 Ibid., iv, letter of transmittal.

5 Ibid., viii, letter of submittal.

6 Ibid., 5, Detailed Analysis of Provisions.

7 The causal connection is suggested by the use of “therefore” in the sentence “Use of the concept [of medical ethics] in this context therefore invites political manipulation.” Ibid.

8 See generally, Green, L.C., “War Law and the Medical Profession,” in Essays on the Modern Law of War (Dobbs Ferry, NY: Transnational Publishers Inc., 1985).Google Scholar For the text of the 1864 Convention, see Schindler, and Toman, , The Laws of Armed Conflicts (2nd ed., Leyden: Sijthoff & Noord-hoff, 1981).Google Scholar

9 “A doctor who fulfils some other function, even though he be embodied in the armed forces as a medical practitioner, will be looked at from the point of view of his office and not his titular role. Thus, when Lt. Col. Logandan of the Indian Medical Service, who became Governor of the ’liberated’ Andaman and Nicobar Islands under Japanese supervision during World War II, surrendered to the British authorities, he was held pending investigation for waging war against the Crown, which would not have been the case had he served the Indian National Army as a medical officer” : Green, ibid., 106, footnote omitted.

10 For texts, see Schindler and Toman, op. cit. supra note 8, at 213, 233, and 257.

11 Ibid., 221, 245.

12 Ibid., Art 18, at 257, 262.

13 See, for example, Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armies in the Field, 1929, Art. 1, ibid., 257, 258.

14 Ibid., Art. 12, at 260–61, and Geneva Convention Relative to the Treatment of Prisoners of War, 1929, Art. 14, ibid., 271, 276.

15 For example, the sinking of the merchant ship Peleus and the subsequent shooting of survivors: Green, op. cit. supra note 8, at 121–22, and generally at 120. See also the recent controversy in the United Kingdom regarding the shooting of survivors of a vessel that had surrendered and been sunk off Crete in 1942 on the orders of the commander of the submarine Torbay: Sunday Telegraph, Feb. 5, 1989, at 1.

16 See, for example, Re Brandt (The Doctors’ Trial) (1947), cited in Re Milch (1947), 7 Trials of War Criminals 52; Green, ibid., 120–25.

17 “The regimen I adopt shall be for the benefit of my patients according to my ability and judgment and not for their hurt or any wrong. I will give no deadly drug to any. . ..”

18 Geneva Convention (1949) I: Art. 24; see also II: Art. 36.

19 Ibid.

20 Ibid., Art. 18.

21 Geneva Convention (1949) III: Art. 30.

22 Geneva Convention (1949) I: Art. 28.

23 Ibid.

24 Ibid., Art. 24.

25 Dr. Sheila Cassidy was imprisoned and tortured by the Chilean authorities in 1976 for treating injured Allende supporters. This is now prohibited under Art 16. of Protocol I and Art. 10 of Protocol II.

26 L.C. Green, op. cit. supra note 8, at 125–26; Superior Orders in National and International Law (Leyden: Sijthoff, 1976); Dinstein, Y., The Defence of “Obedience to Superior Orders” in International Law (Leyden: Sijthoff, 1965).Google Scholar

27 Supra note 23 and accompanying text.

28 The content of paras. 3 & 4 of Art. 10, Protocol II, is contained in para. 3 of Art. 16 of Protocol I.

29 Report, supra note 3; see also “Agora: The U.S. Decision Not to Ratify Protocol I to the Geneva Conventions on the Protection of War Victims,” Gasser, H.-P., “An Appeal for Ratification by the United States,” 81 Am. J. Int’l L. 910, at 912–25 (1987).CrossRefGoogle Scholar

30 Defined in Protocol I, Art. 8(c); the term is not defined in Protocol II but “medical personnel” are referred to in Art. 9.

31 Protocol I, Art. 17; the protection given to persons engaged in medical activities in Art. 16 may also apply to them.

32 U.S. v. Levy, 39 C.M.R. 672; Levy v. Parker (1973) 1 Mil. Law Reporter 2130; Parker v. Levy, U.S. Sup. Ct. Reps., 41 L. Ed. 2d, 439.

33 Protocol I : Art. 11(2) — international conflicts ; Protocol 11 : Art. 4 ( 2 ) a, and common Art. 3 of the Geneva Conventions (1949) themselves in non-inter-national conflicts.

34 Torelli, M., Le Médecin et les droits de l’homme 429 (Paris: Berger-Levrault, 1983).Google Scholar

35 Rodley, N., The Treatment of Prisoners under International Law Annex 6, at 356 (Oxford: Clarendon, 1987).Google Scholar

36 Torelli, op. cit. supra note 34, at 286–88. Also Commentary on the Additional Protocols 201, nn. 11 & 12 (Geneva: ICRC, 1987) (herinafter cited as Commentary).

37 Ibid.

38 Commentary, supra note 36, at 201, para. 656. Medical ethics in time of armed conflict are seen as part of a greater whole, rather than as a separate branch of medical ethics: see Art. 1 of the “Regulations in Time of Armed Conflict.” The most striking feature of the codes is the extent to which their provisions are reflected in the detailed provisions of the Geneva Conventions and Protocols. Irrespective of its status as a principle of medical ethics, a rule contained in the Conventions or Protocols is binding as a legal obligation on ratifying states.

39 A reservation is “a unilateral statement, however phrased or named, made by a State, when signing, ratifying, accepting, approving or acceding to a treaty, whereby it purports to exclude or to modify the legal effect of certain provisions of the treaty in their application to that State”: Art. 2(1) (d) of the Vienna Convention on the Law of Treaties (1969), supra note 2.

40 O’Connell, , International Law, Vol. 1, at 239 and generally at 229–39 (2nd ed., London: Stevens, 1970).Google Scholar

41 For examples of reservations and declarations or statements of understanding to the 1977 Protocols, see Roberts and Guelfi, op. cit. supra note 1, at 462–68. A clear distinction is drawn between reservations and understandings. Indeed, in the letter of transmittal, Report, supra note 3, at iv, President Reagan referred to both understandings and reservations.

42 Byrne, E.M., Military Law, Appendix 47, at 682 et seq. (3rd ed., Annapolis: Naval Institute Press, 1981)Google Scholar; see also Manual for Courts Martial (MCM) ( 1984, rev. ed. ).

43 MCM (1984, rev. ed.), para. 14, c. (2) (a) (i). See also Winthrop, , Military Law and Precedents 296–97 (2nd ed., 1920, reprint),Google Scholar cited in U.S. v. Calley, 22 U.S.C.M.A. 534, 48 C.M.R. 19, (1973) ; Byrne, op. cit. supra note 42, at 165.

44 For example, Salomon v. Commissioners of Customs and Excise, [1967] 2 Q.B. 116, 143–44, per Diplock, L.J.; Cheney v. Conn, [1968] 1 All E.R. 779; see also Wade, & Bradley, , Constitutional and Administrative Law 320–22 (10th ed., London : Longman, 1985).Google Scholar

45 ALI Restatement (2nd), Foreign Relations Law of the United States, paras. 141 & 154.

46 Sei Fujii v. California, 19 I.L.R. 312, 314 (1952) (Supreme Court of California) ; see also Foster v. Neilson, 1829, 2 Pet. 253, 314, 7 L. Ed. 415.

47 The British Army training video, The Law of Armed Conflict: Basic Rules (S.S.V.C., Army Dept., Crown copyright, 1986), which is designed for the ordinary soldier, contains episodes involving medical questions.

48 Byrne, op. cit. supra note 42, at 153; it should be noted, however, that “command authority” takes precedence over “rank.” MCM (1969, rev. ed.), para. 168, gives an example.

49 MCM (1984, rev. ed.), para. 14; MCM (1969, rev. ed.), para. 169, merely provided that “The fact that obedience to a command would involve a violation of the religious scruples of the accused is not a defense [sic].”

50 Commentary, supra note 36, at 201, n. 11, para. 1. The other area of potential conflict involves medical confidentiality, dealt with expressly by Protocol I, Art. 16, para. 3 & Protocol II, Art. 10, paras. 3 & 4.

51 Supra note 32.

52 Ibid.

53 See supra notes 3 to 7 and accompanying text.

54 Protocol II, Art. 10.2.

55 Protocol II, Art. io.i may be useful to a doctor not subject to military discipline who needs protection for having administered treatment in accordance with medical ethics to “rebels” or other “undesirables”: see supra note 25.

56 Supra note 32. The facts are taken from Parker v. Levy, 417 U.S. 733, 41 L. Ed. 2d 439, 94 S. Ct. 2547, the decision of the Supreme Court.

57 United States v. Levy, CM. 416, 463, 39 C.M.R. 672 (1968), petition for review denied, No. 21, 641, 18 U.S.C.M.A. 627 (1969).

58 478 F 2d. 772 (CA3 1973).

59 417 U.S. 733, 761–62; 41 L. Ed. 2d 439, 460–61.

60 39 G.M.R. 672 (1968).

61 Levy v. Parker (1973) 1 Mil. Law Reporter 2130, 2142.

62 Ibid.

63 Ibid.

64 The medical equipment carried by and the training given to the members of the British armed forces enabled immediate assistance to be given to the injured during the Falklands/Malvinas campaign; this played a considerable part in keeping down the number of fatalities. See Major-General Frost, John, 2 Para Falklands: The Battalion at War 19, 93 (London: Sphere Books, 1984).Google Scholar

65 Supra note 61.

66 Smith, Art. cit. supra note 3, at 71, states: “This defense failed as a matter of law …”; it is submitted that it is not clear whether the separate defence was raised at all and therefore not clear that it failed as a matter of law. The court emphasized that Levy’s ethical beliefs were personal; this does not establish what the position would be were the order to violate a generally accepted principle of medical ethics.

67 The sole ground on which a retrial was ordered by the Court of Appeals was the “reasonable possibility” that the trial on that charge may have been prejudiced by the evidence introduced in the trial of the charges under Arts. 133 and 134. The decision of the Court of Appeals on this count was reversed by the Supreme Court: supra note 59.

68 Supra note 32.

69 Report, supra note 3, at 7.

70 Ibid., 5.

71 Ibid.

72 The position might well be different where a state also entered reservations to the other provisions regulating medical care and humane treatment. Since those legal obligations deal with most issues arising out of the principles of medical ethics, the effect of a reservation to Art. 10 alone is much more limited.

73 Supra note 55.

74 For detailed discussion, see supra at 322–23.