Hours after a bomb kills 23 people in a busy marketplace, state armed forces arrest a suspect. Dr. A, a state physician, is summoned to the city’s detention facilities. When he arrives, he finds the suspect unconscious and covered in blood from severe beatings inflicting by the security forces. He is asked to resuscitate the patient for further interrogation. Angered at the bombing, Dr. A complies. Shortly thereafter, in an attempt by detaining authorities to extract information from the detainee, Dr. A is asked to administer sodium pentothal (also known as “truth serum”) to the detainee. Before doing so, the suspect dies from his injuries sustained from the beatings. The detaining authorities instruct Dr. A to record the death as a suicide, which he does. Later, Dr. A wonders whether his actions and silence in the matter makes him complicit in the torture and subsequent cover-up of the incident. He is also uncertain whether he is obliged to act in the best interests of his employer (the state), himself, or his patient in such instances.
Dr. B, a psychiatrist in a detention center, is informed by one of her patients that he has not been charged or tried for any crime since his detention months earlier. In addition, he is regularly shackled and held in solitary confinement for prolonged periods, made to stand in awkward positions for hours on end, and deprived of sleep by the detaining authorities. Dr. B is unsure what to do with this information.
C, a prison nurse, overhears correctional services officials at her prison boast about their interrogation and humiliation of detainees who were recently transferred there as a result of extrajudicial renditions, a practice whereby detainees are deported by countries without going through proper court channels. Their accounts include, amongst others, stripping detainees naked and photographing them, and scaring them with prison dogs while they are blindfolded. C, who has not personally witnessed any of these acts, nor knowingly treated such patients, confronts her colleagues, who inform her that such detainees have no recognition or protection under international law. C is unsure of her moral and legal duties towards the detainees.
In the World Medical Association’s (WMA) Declaration of Tokyo of 1975 (hereafter the Tokyo Declaration) torture is defined as: “the deliberate, systematic or wanton infliction of physical or mental suffering by one or more persons acting alone or on the orders of any authority, to force another person to yield information, to make a confession or for any other purpose.” “Any other purpose” could include simply punishing and terrorizing persons (McQuoid-Mason and Dada, 1999). In 1984, the United Nations (UN) adopted the Convention Against Torture and other Cruel, Inhumane or Degrading Treatment or Punishment (hereafter Convention Against Torture). In Article 1 of this convention, torture is defined as “any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted in order to obtain a confession, to punish or to intimidate in cases where such suffering is inflicted with the connivance of a public official” (UN General Assembly, 1984).
In 2003 the International Dual Loyalty Working Group proposed a comprehensive set of guidelines on dual loyalty conflicts, entitled Dual Loyalty and Human Rights in Health Professional Practice (DLHR) (Physicians for Human Rights and University of Cape Town Health Sciences Faculty, 2003). This defined a dual loyalty as a “clinical role conflict between professional duties to a patient and obligations, express or implied, real or perceived, to the interests of a third party such as an employer, insurer or the state.” This paper addressed these issues in the context of a health professional’s clinical role conflict between serving his or her detainee patient and serving his or her country or employer.
History and recent events have demonstrated that health professionals of a detaining power are not above being complicit in detainee abuse (British Medical Association, 2001; Lifton, 2004; Marks, 2005). If a detainee is being subjected to poor detention conditions, or abusive or humiliating interrogation by a detaining power, health professionals could experience a conflict of interest between (i) their duty to care for, and protect, that patient (which would ideally require the professional to actively protest against, or report, abusive treatment to the appropriate authorities), and (ii) their patriotic duty to protect and serve the interests of their employer or country (which might arguably require the professional to remain silent about such treatment). Conversely, a government’s openly negative views towards detainees could induce health professionals not to want to provide reasonable care to, or protect the interests of, such detainees. This could conceivably occur where health professionals come to believe (rightly or wrongly) in the detainee’s complicity or guilt in actual, incomplete, or prospective crimes against the professional’s country. This mindset could conflict with the professional’s ethical duty to care for the detainee.
The Universal Declaration of Human Rights adopted by the UN General Assembly in 1948 states that “no one shall be subjected to torture or to cruel, inhumane or degrading treatment or punishment.” Although this declaration is not binding on countries, it carries considerable moral weight. Article 7 of the Covenant on Civil and Political Rights of 1966 (which is an instrument that is binding on states that ratify it) replicates this right word-for-word (UN General Assembly, 1966). In its General Comments on this clause, the UN’s Human Rights Committee stressed that this prohibition relates not only to “acts which cause physical pain but also to acts that cause mental suffering to victims” (Kellberg, 1998). Indefinite solitary confinement, a measure practiced by some countries, can be seen as a form of mental suffering. The Committee has also stated that no justification or extenuating circumstances excuses a violation of Article 7, including an order from a superior officer or a public authority.
In 1978, the European Court of Human Rights ruled that the use by British forces in Northern Ireland of tactics such as hooding, forced standing, sleep deprivation, subjection to noise, and deprivation of food and drink was not torture. However, the Court did find that such methods were “inhuman and degrading” and, therefore, unlawful under various treaties ( Ireland v. UK, 1978). Moreover, in 1999, the Israeli Supreme Court unanimously ruled that certain Israeli interrogation methods (including forced uncomfortable postures and sleep deprivation) were unlawful (Public Committee against Torture in Israel et al. v. Government of Israel et al., 1999).
The Israeli Supreme Court also ruled that the State (of Israel) could not use the defense of “necessity” to justify such treatment. These cases illustrate that the techniques outlined above are clearly considered repugnant internationally. Health professionals of countries practicing such techniques should not be party to such treatment. Professionals who witness such treatment have an ethical duty to speak out against it. This resonates with the benevolent advocacy role for health professionals postulated above.
The international treaties governing armed conflicts are known as international humanitarian law or the “law of war.” Disregard of these treaties can easily lead to degrading and/or abusive treatment of detainees, which, in turn, could impact negatively on their mental and physical health. In the international conflict context, “prisoner of war” (POW) status entitles detainees to basic rights under several international treaties, including the Third Geneva Convention. The four Geneva Conventions established rules for the conduct of international armed conflict (UN, 1949). The Geneva Convention applies “to all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties, even if the state of war is not recognized by one of them.” “Common Article 3,” as it has become known, is found identically in all four conventions and is taken to define a “hard core” of obligations that must be respected in all armed conflicts. This is generally taken to mean that no matter what the nature of the war or conflict certain basic rules cannot be abrogated. Common Article 3 states (UN, 1949):
The following acts are and shall remain prohibited at any time and in any place whatsoever: violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture; outrages upon personal dignity, in particular humiliating and degrading treatment
Under the Geneva Conventions, POW status also bestows upon detainees a plethora of rights, many of which directly or indirectly involve military physicians. These include Articles 3, 13, 15, 17, 19, 21, 22, 31, and 46. Article 17 is of particular relevance. It states that no physical or mental torture, nor any other form of coercion, may be inflicted on POWs to secure from them information of any kind whatsoever. It also states that prisoners who refuse to answer questions may not be threatened, insulted, or exposed to any unpleasant or disadvantageous treatment of any kind. This would clearly rule out the application of any robust interrogation methods on detainees by a detaining power.
Although UN General Assembly resolutions are generally not binding on member states (unless they agree to be bound), like the Universal Declaration of Human Rights, they carry considerable moral weight as they reflect the moral conscience and general consensus of the collective international community. According to the 1982 UN General Assembly resolution entitled 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 (hereafter the Principles of Medical Ethics), it is a contravention of medical ethics for health personnel to apply their knowledge and skills in order to assist in the interrogation of prisoners and detainees in a manner that may adversely affect their physical or mental health and which is not in accordance with the relevant international instruments, and 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 (Principle 4). Further, it is a gross contravention of medical ethics, as well as an offence under applicable international instruments, for health personnel 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 also explicitly stipulated that there may be no derogation from the foregoing principles on any ground whatsoever, including public emergency (Principle 6).
According to the 1988 UN General Assembly resolution entitled Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment (hereafter BOP) all persons under any form of detention or imprisonment shall be treated in a humane manner and with respect for the inherent dignity of the human person (Principle 1). Nor may that individual be subjected to torture or to “cruel, inhuman or degrading treatment or punishment” (Principle 6). This is to be interpreted so as to “extend the widest possible protection against abuses, whether physical or mental, including the holding of a detained or imprisoned person in conditions which deprive him, temporarily or permanently of the use of any of his natural senses, such as sight or hearing, or of his awareness of place and the passing of time” (Principle 6). Under this provision, no circumstance whatsoever may be invoked as a justification for torture or other cruel, inhuman or degrading treatment or punishment. Significantly, the BOP explicitly stipulates that officials who “have reason to believe that a violation of this Body of Principles has occurred or is about to occur” must report the matter to their superior authorities and, where necessary, to “other appropriate authorities or organs vested with reviewing or remedial powers” (Principle 7(2)). Thus, health professionals need to be mindful that even detainees who are assigned unilateral classifications such as “unlawful combatant” are protected against undue advantage being taken against them during interrogations (Principle 21).
The UN Standard Minimum Rules for the Treatment of Prisoners made it clear that its provisions cover the general management of institutions and are applicable to all categories of prisoners, criminal or civil, untried or convicted, including prisoners subject to “security measures” (UN Congress, 1955; Articles 4(1), 84(1), 84(2), 95). Countries that disregard the rights of detainees could also be violating a UN resolution pertaining to the protection of human rights and fundamental freedoms while countering terrorism (UN General Assembly, 2002). This resolution affirms, among others, that states must ensure that any measure taken to combat terrorism complies with obligations under international law, in particular international human rights, refugee, and humanitarian law .
According to the Tokyo Declaration (WMA, 1975), a physician should not “countenance, condone or participate in the practice of torture or other forms of cruel, inhuman or degrading procedures, whatever the offence of which the victim of such procedures is suspected, accused or guilty, and whatever the victim’s beliefs or motives, and in all situations, including armed conflict and civil strife” (Article 1). It stated that the physician “shall not provide any premises, instruments, substances or knowledge to facilitate the practice of torture or other forms of cruel, inhuman or degrading treatment or to diminish the ability of the victim to resist such treatment” (Article 2). Physicians who participate in interrogation sessions, either directly or by resuscitating unconscious detainees for the purposes of further interrogation by the detaining power, could be deemed as having diminished the ability of detainees to resist such treatment. The mere presence of any physician during any inhumane treatment of detainees is also a violation of the Tokyo Declaration (Article 3). Physicians cannot justify their involvement in such interrogations on the basis of any political ideology (such as a country’s “national security” interest) as the Tokyo Declaration states that the physician’s fundamental role is to alleviate the distress of his or her fellow men, and no motive whether personal, collective, or political shall prevail against this higher purpose (Article 4). According to DLHR, the health professional should not perform medical duties or engage in medical interventions for “security purposes” (Guideline 14).
According to Article 1 of the Regulations in time of Armed Conflict (also known as the Havana Declaration) (WMA, 1956), medical ethics in time of armed conflict is identical to medical ethics in times of peace. Article 2 of this document makes clear that as the primary task of the physician is to preserve health and save life, it is unethical for physicians to (a) give advice or perform prophylactic, diagnostic or therapeutic procedures that are not justifiable in the patient’s interests, (b) weaken the physical or mental strength of a human being without therapeutic justification, and (c) employ scientific knowledge to imperil health or destroy life.
Provisions (a) and (c) prohibit physicians treating or resuscitating detainees in furtherance of further invasive interrogations. Provision (b) could be interpreted as forbidding physicians from declaring detainees mentally competent for indefinite solitary confinement or administering a truth serum to detainees for interrogation purposes.
The Manual on Effective Investigation and Documentation of Torture and Other Cruel, Inhumane or Degrading Treatment (the Istanbul Protocol) is the first set of international guidelines intended to serve for the assessment of persons who allege torture and ill-treatment, for investigating cases of alleged torture, and for reporting such findings to the judiciary and any other investigative body (Action for Torture Survivors, and Amnesty International, and Association for the Prevention of Torture et al., 1999). If physicians witness or suspect the abuse of detainees, they should consider it their ethical duty to use the Istanbul Protocol to document and report such abuse. This approach is endorsed by the DLHR guidelines on prison, detention, and other custodial settings, although it cautions (Guideline 6): “The health professional must, however, weigh this action against any reprisal or further punishment to the prisoner that may result. When appropriate, the health professional should gain the consent of the prisoner before making such a report.”
But how should clinicians handle risks of reprisals against themselves? Those few documented accounts that do exist of brave clinicians laudably acting in the interests of their tortured detainee patients despite the threat of serious repercussions if they did so reveal that many were themselves subsequently abused or tortured (CPT [European Committee for the Prevention of Torture and Inhumane or Degrading Treatment or Punishment], 2001). Physicians in Iraq during the Hussein era, for example, participated in state-inflicted torture because they feared for their lives if they failed to comply with army directives (Reis et al., 2004), while physicians in Turkey routinely also do not report torture for fear of reprisal (Physicians for Human Rights, 1996). But does the failure to report actual or suspected abuses against detainees constitute a transgression of law or ethics? From a legal perspective, health professionals in many countries are deemed to have a “special duty” relationship with their patients that obliges them to act in their patient’s best interests. A failure to do so usually constitutes an “omission” in law, which is actionable in criminal and civil law. However, the health professional is not obliged to act if doing so could reasonably compromise his or her life. Accordingly, if a health professional reasonably believes that his or her life or safety would be endangered by any torture-related disclosure to outside parties, his or her special duty obligation to act in the patient’s interests would arguably not immediately apply. The health professional’s duty in this regard, though, would be triggered as soon as the threat ended and/or the opportunity to disclose to relevant third parties arose, if applicable. In this regard, the CPT stated (2001; Principle 5; italics added for emphasis):
Doctors have a duty to monitor and speak out when services in which they are involved are unethical, abusive, and inadequate or pose a potential threat to patients’ health. In such cases, they have an ethical duty to take prompt action as failure to take an immediate stand makes protest at a later stage more difficult. They should report the matter to appropriate authorities or international agencies who can investigate but without exposing patients, their families or themselves to foreseeable serious risk of harm.
The participation of health professionals in torture (e.g., advising torturers on methods, evaluating individuals to determine whether they can survive additional torture, and using medical skills in the process of torture) is well documented (Stover and Nightingale, 1985; Reis et al., 2004). Health professionals, like others who witness or are aware of incidents of torture in their settings, fail to denounce torture for a variety of reasons, including fear, self-interest, and self-promotion. Such individuals may not wish to acknowledge that torture is perpetuated by their government, and/or their ignorance may mean that they are unaware that torture is never justifiable (British Medical Association, 1999).
There may be social circumstances and particular factors that precipitate a loss of moral perspective (Weinstein, 1988). These may have colonial and imperial roots. The negative labeling or devaluing of a group by influential forces can breed a culture of fundamentalism or extremist ideology (also known as “ideological totalism”). “Moral disengagement” occurs when subordinates of a labeling group regard the interests of the labeled group as less relevant because of the political culture under which they live (British Medical Association, 2001). Health professionals must avoid morally disengaging from their patients regardless of the political culture patients emerge from. “Victim-blame” is a tendency to hold victims responsible for their own fate. If professionals knowingly or unknowingly adopt this mentality, their ethical obligations towards patients may become compromised. They should note that ideological totalism, moral disengagement, and victim blame were factors that facilitated the abuse of detainees in apartheid South Africa. Health professionals must ensure that they do not make the same mistakes when carrying out their duties.
The transfer of terror suspects (primarily from countries in the developed world) for interrogation to (primarily developing) countries known for practicing torture is a growing practice. The deportation has been labeled “extrajudicial rendition” and occurs without due process through proper legal channels;usually a court has to approve a deportation before it can occur (Garcia, 2006). To ensure that detainees have access to the outside world and as a safeguard against human rights violations such as “disappearance” and torture, all detained people have the right to be held only in an officially recognized place of detention, located if possible near their place of residence, and under a valid order committing them to detention (UN General Assembly, 1977 [Rule 7(2)], 1988 [Principles 11(2) and 20], 1992 [Article 10]; Council of Europe Committee of Ministers, 1987 [Rule 7(1)]; Organization of American States, 1994 [Article XI]). Physicians who certify detainees fit for travel for the purposes of extrajudicial rendition, treat them for illnesses and injuries in furtherance of being declared fit for such travel (if fitness for travel is even an issue in such instances), or who treat them on their arrival in preparation for interrogation should be mindful that their actions amount to complicity in torture. The relevant principles of ethics and international law in regard to complicity in torture apply equally to them in these instances. Such physicians have a duty to speak out against such practices and to expose them.
In November 2002, the Optional Protocol to the Convention against Torture was adopted by the UN Economic and Security Council. This instrument seeks, inter alia, to establish a system of unannounced inspections of prisons and detention centers. Because of its binding nature, some countries are refusing to ratify it. The duty of beneficence sometimes necessitates the health professional adopting an advocacy role. Given that the optional protocol seeks to enhance detainee patients’ rights, members of the international health professions community (in conjunction with respective domestic professional associations) should regard it as their ethical duty to pressure relevant government to accede to it. These measures will resonate with the health provider’s beneficent duties to promote good and prevent harm. Health professionals should press their government to realize that if their country fails to respect the laws of war and detainee health rights it cannot expect its enemies to do any better if its own troops are captured.
By acting as whistleblowers, health professionals can play an important role in reducing gross human rights violations (British Medical Association, 2001). When professionals stationed in military detention camps observe that detention conditions of detainees fall short of the standards required under international humanitarian law, or are of the professional opinion that such conditions are compromising, or could compromise, the health interests of detainees, the health professional’s duty to protect the well-being of detainees must be regarded as paramount.
Detainees who have incommunicado status are especially vulnerable and powerless to resist abuse. Health professionals should strive to change this situation by reporting suspected violations of detainee rights to the UN Special Rapporteur on Torture. Alternatively, they can approach organizations such as the International Committee of the Red Cross, Medécins Sans Frontiéres, Amnesty International, Physicians for Human Rights, or Human Rights Watch. These organizations could at least use their profile to publicize the incidents and apply pressure on relevant governments to investigate such allegations. To discourage victimization of whistleblowers, domestic health professional associations should press their governments to explicitly endorse their code of ethics. They should also offer express support to professionals who experience, or who are likely to experience, dual loyalty conflicts.
While the post 9–11 torture and abuse of detainees by US forces has been comprehensively documented and rightfully evoked outrage (Physicians for Human Rights, 2005), it is the participation and complicity of US physicians in these acts that is of particular concern (Singh, 2003; Gregg Bloche, 2004; Lifton, 2004; Marks, 2005; Miles, 2004; Rubenstein, 2004a; Slevin and Stephens, 2004). Proponents of such deeds argue that in times of war: “A patient’s rights to life and self-determination contract; human dignity strains under the barrage of military necessity; and the interests of the state and political community may outweigh considerations of patients’ welfare”. Moreover, that “medical ethics in war are not identical to medical ethics in times of peace” (Gross, 2004: 22). Such arguments are weak as they are seemingly engineered to defend misguided national self-interests and simplistically side step fundamental multilateral principles of law and medical ethics. They too, have justifiably been condemned (Rubenstein, 2004b).
If a health professional experiences a conflict of interest between his/her duty to care for, and protect, a detainee from abusive treatment and the patriotic duty to protect and serve the interests of his/her country, he or she should consider it their legal and ethical obligation to report or actively protest against such treatment to appropriate authorities. Detainees have rights by virtue of several international legal conventions and ethical declarations, which are not elastic in nature. A unilateralist and isolationist mentality based on military might, self-interest, and a sense of impunity can lead to a disregard of international law, medical ethics, and, consequently, detainee rights. This mindset must be avoided by health providers.
If faced with a conflict between following national policies and universally embraced multilateral principles of international law and ethics, health professional should consider themselves morally bound to follow the latter. Conversely, even in situations where they come to believe (rightly or wrongly) in the detainee’s complicity or guilt in actual, incomplete, or prospective crimes against the health professional’s country, and where the professional finds him or herself not wanting to protect the interests of a detainee because of his/her government’s policies, the health professional’s core duty to care for the detainee patient must still prevail.
Health professionals should always remember that the duty of care supersedes any blanket notion of loyalty, obligation, allegiance, or patriotism they may feel is owed to their station. Health professionals involved in treating detainees, particularly victims of torture, must always strive to practice ethics-based care. History will judge their failure to do so.
Dr. A’s role in the torture of the terror suspect and the subsequent cover-up of the suspect’s true cause of death constitutes complicity in torture according to international law and guidelines on medical ethics. Dr. A ought to have acted in the best interests of the detainee by refusing to participate in the interrogation session and reporting the true cause of death to the relevant authorities.
Dr. B is legally and ethically obliged to report the detainee’s allegation to her superiors (and if possible, keep his identity confidential, or if requested to do so by the detainee). Failing any relief, she should consider reporting the matter to higher authorities or outside bodies.
C is legally and ethically obliged to report her colleagues’ conduct to her superiors. Moreover, she should note that extrajudicial renditions are unlawful according to international law. Failing any action from her immediate superiors, she should consider reporting the matter to higher national authorities or outside bodies.
This chapter is based on: Singh, J. A. (2003). American physicians and dual loyalty obligations in the “war on terrorism.” BMC Med Ethics 4: 1–10 (http://www.biomedcentral.com/1472-6939/4/4).