Medical Ethics

1. Obligation to care for and to protect the wounded and sick

The protection of the medical mission in armed conflict is one of the most important elements of customary and conventional IHL. Historically, the adoption of the first Geneva Convention in 1864 under the auspices of Henry Dunant was intended to regulate the medical care of the wounded and sick on the battlefield. IHL requires that no one may be intentionally left without medical assistance or care..

Withholding assistance or discriminating in providing medical care is strictly prohibited. Common article 3 to the four Geneva Conventions—applicable in all circumstances and at all times, stipulates that the wounded and sick must be collected and cared for and treated with humanity and dignity and without discrimination as to race, religion, belief, gender, birth, wealth, or other similar criteria. This obligation was reinforced in 1977 by the two Additional Protocols to the Geneva Conventions applicable to international (API) and non-international (APII) armed conflicts. These Protocols state that all wounded, sick and shipwrecked persons, regardless of which party to the conflict they belong to, must be respected, and protected. This means that treating the wounded and sick of the enemy is not only mandatory but neutral under IHL and cannot be considered an unfriendly or hostile act. The wounded and sick are considered under IHL as hors de combat (out of combat) and must in all circumstances be treated humanely and given, to the fullest extent practicable and with the least possible delay, the medical care and attention required by their condition. No distinction may be made between them on grounds other than medical ones (API, art. 10, APII, art. 7).

CIHL Rule 110 recalls that the wounded and the sick have the right to access medical care, without distinction on any grounds other than medical ones. This rule applies in both international and non-international armed conflicts.

With regards to the prohibition of discrimination in the provision of medical care, the ICoME affirms that doctor must practice medicine without bias or discriminatory conduct based on non-medical criteria. It states that doctors have a twofold duty: prioritising individual patient care in accordance with medical standards and contributing to societal well-being. They must provide unbiased care, addressing patients’ health needs without discrimination based on various factors. (paras. 1 and 2 of the ICoME) This Code is not binding on States as such, but its legal value in situations of armed conflict is upheld by the obligation to respect medical ethics, as provided for in IHL and CIHL.

2. Grave Breaches of IHL

To support the medical obligation to treat all wounded and sick persons in accordance with medical ethics, IHL includes certain related violations in the category of grave breaches of IHL amounting to war crimes, which may be prosecuted under the Rome Statute of the International Criminal Court (ICC) or before national courts under the universal jurisdiction system.

Intentional killing, torture, or inhuman treatment, including biological experiments, and wilful causing of great suffering or serious injury to body or health, committed against persons protected by the Geneva Conventions, including the wounded and sick, are grave breaches of IHL (GCI, art. 50). This criminal prohibition was further specified in 1977 by article 11 of Additional Protocol I, which provides that:

Article 11.

1. The physical or mental health and integrity of persons who are in the power of the adverse Party or who are interned, detained or otherwise deprived of liberty [for reasons related to the conflict] shall not be endangered by any unjustified act or omission. Accordingly, it is prohibited to subject the persons described in this Article to any medical procedure which is not indicated by the state of health of the person concerned and which is not consistent with generally accepted medical standards which would be applied under similar medical circumstances to persons who are nationals of the Party conducting the procedure and who are in no way deprived of liberty.

2. It is, in particular, prohibited to carry out on such persons, even with their consent:

(a) physical mutilations;

(b) medical or scientific experiments;

(c) removal of tissue or organs for transplantation, except where these acts are justified in conformity with the conditions provided for in paragraph 1.

3. Exceptions to the prohibition in paragraph 2(c) may be made only in the case of donations of blood for transfusion or of skin for grafting, provided that they are given voluntarily and without any coercion or inducement, and then only for therapeutic purposes, under conditions consistent with generally accepted medical standards and controls designed for the benefit of both the donor and the recipient.”

Intentional withholding of care has also been added to the grave breaches listed in the same article, which provides that: “Any wilful act or omission which seriously endangers the physical or mental health or integrity of any person who is in the power of a Party other than the one on which he depends and which either violates any of the prohibitions in paragraphs 1 and 2 or fails to comply with the requirements of paragraph 3 shall be a grave breach of this Protocol.”(API, art 11(4)).

These grave breaches of IHL constitute war crimes subject to national or international criminal prosecution, whether committed in the context of international or non-international armed conflicts, pursuant to Articles: 8(2)(a)(ii) and (iii); 8(2)(b)(x) and (xxi); 8(2)(c)(i), (ii) and 8(2)(e)(vi) of the Statute of the ICC.

Indeed, Common article 3, which applies to non-international armed conflicts requires the care of the wounded and sick without distinction. It also prohibits violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture, as well as outrages upon personal dignity, in particular against the wounded and the sick. The decisions of international criminal tribunals have recognized that violations of common article 3 constitute grave breaches of international humanitarian law and war crimes.

These prohibitions, along with the requirement to protect the wounded and sick, are now part of CIHL, which applies in both international and non-international armed conflicts.

CIHL Rule 90 confirms the prohibition of torture, cruel or inhuman treatment, and outrages upon personal dignity.

CIHL Rule 92 confirms that “mutilation, medical or scientific experiments or any other medical procedure not indicated by the state of health of the person concerned and not consistent with generally accepted medical standards are prohibited.” These rules apply in both international and non-international armed conflicts.

➔ Fundamental guarantees ; Ill treatment ; Torture; War crimes/Crimes against humanity

3. Protection of the doctor’s independence and medical activities

IHL establishes clear rules to protect the independence of medical personnel in the conduct of their medical activities, and thus their ability to respect and defend medical ethics against external pressures. These rules are considered customary rules of IHL that apply equally in international and non-international armed conflicts:

a) The obligation to respect and protect medical and religious personnel

The medical and religious personnel must be respected and protected. They must also be given all available assistance to carry out their duties and must not be compelled to perform tasks incompatible with their humanitarian mission (API, art. 15, APII, art. 9(1));

CIHL Rules 25 and 28 confirm the obligation to respect and protect medical personnel and medical units and services in all circumstances.

b) The obligation to provide care without discrimination

No distinction based on criteria other than medical criteria may be made in the care of the wounded and sick by medical personnel and any other person (GPI Art. 10.2). ”In the performance of their duties medical personnel may not be required to give priority to any person except on medical grounds” (APII, art. 9(2));

c) Medical immunity and impunity

The immunity and impunity of personnel engaged in medical activities in accordance with professional ethics are clearly affirmed by international humanitarian law and customary law applicable in international and non-international armed conflicts. Conventional IHL imposes two complementary prohibitions for this purpose:

It states that “No one may be punished for performing a medical activity in accordance with professional ethics, regardless of the circumstances or the beneficiaries of that activity” (GPI, Art. 16(1), GPII, Art. 9(2)). 16(1), GPII, Art. 10(1)).- It also provides that: “Personnel engaged in medical activities shall not be compelled to perform acts or carry out work contrary to professional ethics or other medical rules protecting the wounded and sick, or to the provisions of IHL, nor to refrain from acts required by such rules and provisions” (GPI, Art. 16(2), GPII, Art. 10(2)).

CIHL confirms these provisions and states that “punishing a person for performing medical duties compatible with medical ethics or compelling a person engaged in medical activities to perform acts contrary to medical ethics is prohibited (CIHL Rule 26).”

These rules were solemnly reaffirmed by the UN Security Council (UNSC) in resolution 2286, adopted in 2016 in the wake of attacks on hospitals. They are particularly relevant to the respect for medical confidentiality by doctors and the rule of non-punishment.

4. Enhanced Medical Confidentiality in situation of armed conflict

Respect for medical confidentiality is a fundamental rule of medical ethics that applies at all times (see above, section I). In situations of armed conflict, strengthening medical confidentiality surrounding the doctor-patient relationship is an important aspect of the protection of the medical mission under IHL. This strengthening seeks to take into account the particular vulnerability of patients and caregivers and their increased need for protection in situations of armed conflict and detention. This reinforcement is based on the one hand, on the reminder of the primacy of ethical rules of medical confidentiality over other legal obligations (a) and, on the other hand, on the strict interpretation of exceptions to medical confidentiality by IHL (b).

a) The primacy of medical ethics over conflicting rules

In peacetime, medical confidentiality may be limited by forensic obligations under national law. These may require doctors to report to authorities’ certain infectious diseases or cases of violence, such as gunshot victims, victims of sexual violence and children who have been mistreated. However, the rules of IHL, and in particular those relating to the duty to respect medical ethics, place the principle of medical secrecy above any other conflicting rules.

Therefore, medical secrecy can only be lifted by the doctor if three cumulative ethical conditions are met:

1) the decision is in the best interest of the patient, 2) the decision does not cause harm to the patient, and, 3) the decision is taken with the patient’s informed and free consent.

The lifting of medical confidentiality at the request of national authorities or under a court order must not exempt the physician from complying with this rule. The legal obligation does not release the physician from his or her obligation to make a decision based on the three ethical criteria mentioned above. It protects him or her against any complaint from the patient or his or her legal representatives.

Even in cases involving the most serious crimes, the ICC’s Rules of Procedure and Evidence protect medical confidentiality and do not consider admissible information obtained in breach of that confidentiality to be admissible unless the patient consents (Rule 73 of the ICC Rules of Procedure and Evidence).

b) The strict interpretation of exceptions to medical confidentiality provided for in IHL

The rules of IHL concerning medical confidentiality are more detailed for situations of international armed conflict than for non-international armed conflicts. This does not mean that these rules do not apply in NIACs. On the contrary, the more detailed IAC rules must be interpreted and applied by analogy to NIACs in order to respect the spirit of IHL on this subject and the general obligation to interpret strictly any special exception to a general principle such as medical confidentiality.

In situations of international armed conflicts, IHL establishes medical confidentiality vis-à-vis the opposing party to the armed conflict as an absolute principle.

It provides that no person engaged in medical activities shall be compelled to divulge any information concerning the wounded and sick who are or have been under his or her care so long as the medical person considers that such information might prove harmful to the patients concerned or to their families.

IHL allows only one exception to this rule. This exception concerns requests for information from the authorities of the party to the conflict to which the doctor belongs and which concern the legal obligation to communicate communicable diseases (GPI, Art. 16(3).

In situations of non-international armed conflict, the non-state party to the conflict is not entitled to the same rights than the State. Nevertheless, IHL recalls that only the law can limit the principle of medical secrecy. Additional Protocol II of 1977 states that “the professional obligations of persons engaged in medical activities regarding information which they may acquire concerning the wounded and sick under their care shall, subject to national law, be respected.” (APII, art. 10(3)). It also affirms that “subject to national law, no person engaged in medical activities may be penalized in any way for refusing or failing to give information concerning the wounded and sick who are, or who have been, under his care.” (APII, art. 10(4)).

In international and non-international armed conflict, respect for medical ethics must take precedence over other provisions of national law. Indeed, as the highest authority on the matter, IHL provides that under no circumstances shall any person be punished for carrying out medical activities compatible with medical ethics, regardless of the person benefiting therefrom (API, art. 16(1), APII, art. 10(1)).

However, in a situation of non-international armed conflict, an apparent contradiction remains in Article 10 of Additional Protocol II between the absolute prohibition on punishing medical personnel for activities in accordance with professional ethics (Art. 10(1)) and the possibility of punishing medical personnel if this possibility is provided for by law (Art. 10(4) ).

This contradiction is only apparent, since a careful reading shows that sanctions remain possible, but only for conduct that is not in accordance with medical ethics. Medical personnel who refuse to disclose information covered by medical confidentiality in accordance with ethical rules must therefore not be forced or punished.

However, this situation encourages certain states to interpret the rules in an overly restrictive manner and creates legal and practical uncertainty that fuels fear among some medical personnel and undermines medical confidentiality vis-à-vis victims of violence in many armed conflict situations. This situation has practical implications not only for medical personnel but also for the safety, trust, and access to care of victims of violence.

Barriers to access to healthcare for victims of violence in armed conflict are further exacerbated by the diversity of domestic national frameworks as demonstrated by a legal opinion on the obligation of health care professionals to report gunshot wounds published in 2019 by the Swiss Institute of Comparative Law and the ICRC. This report is based on a study of different provisions on confidentiality and disclosure contained in the national legislation of 22 countries. It concluded that the only generalisation that can be drawn from the comparative study of the national legislation concerns the universal nature of the obligation of doctor-patient confidentiality. However, the experts note that there is little consistency across countries in their national legislation- in terms of the form, content, scope, limitations or even the existence of norms regarding the duty to report and its interplay with the duty of confidentiality. Experts also found that that the way in which conflicting and competing rules are balanced is unclear and that no country has specific procedures in place to resolve such conflicts.. They confirmed that the obligation to report may conflict with both the duty of confidentiality and the duty to treat. Very few countries have taken a clear position on the fact that emergency medical treatment takes precedence over reporting requirements and that police may not interfere with medical treatment or even approach a gunshot victim without the permission of the doctor. Very few countries have also incorporated the immunity of doctors from punishment and sanction provided for in IHL into their national law.

In 2020, a joint report by the British Red Cross and the ICRC on mandatory reporting of sexual violence in armed conflict came to a similar conclusion. It argues that while mandatory reporting may be well-intentioned to combat impunity, prevent future crimes and protect victims, it is potentially inconsistent with international law and medical ethics and creates legal and ethical dilemmas for health care providers. It has also been found that mandatory reporting of sexual violence can impede access to health care and expose both victims and health care workers to further harm.

The legal and ethical management of these dual and conflicting medical obligations is at the very heart of the protection of medical activities, particularly in situations of non-international armed conflict. Indeed, in such conflicts, the provision of medical care to the wounded and sick associated with non-state armed groups falls within a dangerous legal mix between IHL and national criminal domestic law. What constitutes a legal and ethical duty of medical personnel under IHL may be criminalised under national law, particularly regarding the provision of medical care and mandatory reporting to authorities, if the non-state armed group is classified as terrorist.

This risk was at the core of the debates leading to the adoption of UNSC resolution 2286 in 2016 to stop the wake of various attacks carried out on hospitals.

The resolution recalled the applicable rules of IHL regarding to the non-punishment of any person for carrying out medical activities in accordance with medical ethics. It also reaffirmed the duty to ensure that persons engaged in medical activities are not compelled to perform work contrary to the rules of medical ethics or other medical rules in the care of the wounded and sick. This language clarifies some controversial interpretations regarding the dual duty of doctors to respect medical confidentiality within the limits of national obligations regarding mandatory reporting of victims of violence and gunshot wounds. The resolution made no reference to national law and mandatory reporting but rather recalled that doctors cannot act contrary to ethical rules and the best interests of the patient. It thus confirmed to the most protective provisions of IHL in this area and reiterates that no one who engages in medical activities in accordance with medical ethics shall be subject to punishment, without making this exemption from punishment conditional on compliance with national law..

Reminders of respect for the most progressive IHL and medical ethics frameworks at the highest level of the UN organisation do not solve the practical problems created by restrictive national legislation. It does, however, it creates more space and legitimacy to challenge and limit their negative impact on medical care in situations of armed conflict.

III. Rules of medical ethics applicable in situations of detention and torture

These texts reinforce and supplement professional ethical principles. It is important that physicians be able to refer to these international texts in addition to the professional rules contained in the international code of ethics.

The active or passive participation of medical personnel in acts of torture or degrading treatment of persons detained or otherwise deprived of their liberty is a practice that has been revealed in many circumstances. This participation increases the victim’s sense of powerlessness and fear and enhance the effectiveness of torture in its aim of destroying any individual or group capacity for physical or moral resistance and prolonging pain without causing death.

Specific ethical rules for situation of detention and torture have been developed to limit the exposure of medical personnel and increase their resistance to various forms of pressure exerted by security forces and other military or armed actors. Numerous studies have shown that medical personnel are ill-equipped both professionally and psychologically, to refuse to participate in practices that the authorities consider to be outside the sphere of medical autonomy. Some doctors believe that they are no longer in a therapeutic relationship with the patient but in a technical interaction with the authorities, and that therefore the rules of medical ethics do not apply. In some countries, however, national laws may require doctors to supervise procedures such as the death penalty, physical mutilation, repressive interrogation of prisoners, or forced feeding of hunger-striking prisoners.  

A. Special rules adopted by the World Medical Association (WMA) and other medical organizations on torture

• The WMA Declaration of Tokyo, also known as the “Guidelines for Medical Doctors concerning Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment in relation to Detention and Imprisonment,” adopted in 1975 and revised in 2005, 2006 and 2016;
• The Tokyo declaration forbid doctors to 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 proceeding is suspected, accused or guilty, and whatever the victim’s belief or motives, and in all situations, including armed conflict and civil strife;
• The WMA Declaration of Hamburg Concerning Support for Medical Doctors Refusing to Participate in, or to Condone, the Use of Torture or Other Forms of Cruel, Inhuman, or Degrading Treatment, adopted in 1997 reaffirmed in 2007 and again with minor revision in 2017.
• The WMA Declaration of Tokyo has been joined by declarations from other medical organisations:
• The 1977 Declaration of Hawaii from the World Psychiatric Association (WPA) (updated in 1983); •The 1996 Madrid Declaration and seven general guidelines of WPA reaffirmed in 1999, 2002, 2005 and in 2011 and which has now been superseded by the 2020 WPA Code of Ethics;
• The 1975 Position statement of the International Council of Nurses (ICN) on the Nurse’s Role in the Care of Detainees and Prisoners (replaced in 1998 by another position statement of the same name, which was then revised in 2006 and 2011).

In 2022, the WMA decided to include this topic as a standing ethical duty in the revised international code of medical ethics (ICoME): “[P]hysician must never participate in or facilitate acts of torture, or other cruel, inhuman, or degrading practices and punishment” (para.10).

These ethical norms and the preamble to the ICoME that national ethical, legal and regulatory norms and standards should not diminish the commitment of doctors to the ethical principles set forth in the ICoME, place great pressure on doctors working in countries where national legislation requires doctors to engage in coercive practice. However, the WMA decided that the value of providing an international professional standard of medical ethics allows for debate against conflicting national norms.

Doctors’ involvement in interrogation and ill-treatment can take many forms, most of which are indirect. Such participation may include surveillance, observation, assistance, communication of medical information, administration of medication not justified by the patient’s state of health and without his or her consent, falsification of medical records or death certificates, or the provision of medical care that allows the prolongation of torture. It was therefore necessary to clarify the rules concerning the active or passive participation of medical personnel in acts of torture and to regulate the ethical content of the obligations of doctors towards detained patients.

B. Medical ethics rules adopted by the UN on detention and torture

The rules adopted by the UN in this area are grouped around three key documents. The first specifically concerns the fundamental principles of medical ethics applicable to situations of detention (a); The second sets out the principles of medical ethics applicable to the role of health personnel, particularly physicians, in protecting prisoners and detainees from torture and other cruel, inhuman or degrading treatment or punishment (b). The third document, entitled the Istanbul Protocol, is a manual for the effective investigation of torture and other cruel, inhuman, or degrading treatment or punishment and for establishing the facts of such acts. This Manual present the role of justice professionals, as well as the ethical management of dilemmas faced by health professionals in such situations (c).

1. Fundamental principles of medical ethics applicable to situations of detention

In 1982, the United Nations codified the basic principles of medical ethics applicable in situations of detention (1). These rules supplement those provided by IHL to frame the conditions for the exercise of medical mission with respect to prisoners of war and other persons deprived of their liberty in connection with an international or non-international armed conflict. They also supplement the Standard Minimum Rules for the Treatment of Prisoners adopted by the United Nations in 1977 (Economic and Social Council resolutions 663 C (XXIV) of 31 July 1957 and 2076 [LXII] of 13 May 1977), which already contained numerous rules relating to the rights of detainees and the practice of medical mission in places of detention. However, these rules were mainly addressed to States and did not delineate the boundaries of medical ethics and individual responsibility of medical personnel for such violations. In 1974, the adoption of the Istanbul Protocol by the United Nations provided direct guidance to medical personnel in the ethical management of situations of torture and ill-treatment (2). It emphasises the ethics of the therapeutic relationship as opposed to other forms of medical presence and proposes guidelines for the ethical management of dilemmas arising from the dual and conflicting obligations of doctors under national law.

➔ Detention; Torture

2. 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

These principles were adopted by consensus by the UN General Assembly on 18 December 1982 (Resolution 37/194). They go beyond the principles of medical ethics set out in the Nuremberg Code of 1947, which was limited to regulating medical experimentation on detainees. They supplement the rules governing the exercise of the medical mission in situations of armed conflict, which prohibit the active or passive participation of doctors in acts of torture and cruel, inhuman, or degrading treatments of detainees. Finally, they reinforce the general rules of medical ethics by adapting them to the specific risks associate with detention.

These principles set out six fundamental principles from which there can be no derogation for any reason, including public emergency (Principle 6).

Principle 1 affirms the rule of non-discrimination and equal medical treatment, regardless of the patient's status: “Health care personnel, particularly physicians, charged with the medical care of prisoners and detainees have a duty to ensure the protection of their physical and mental health and treatment of disease with the same quality and standard as those provided to persons who are not imprisoned or detained.”

Principle 2 specifies the content of the individual responsibility of the care provider inactive or passive involvement in ill-treatment: “It is a gross contravention of medical ethics, as well as an offence under applicable international instruments, for health personnel, particularly physicians, 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 3 affirms that the passive or active participation of the doctor in torture and cruel or inhuman treatment is established as soon as the role of the medical personnel is shown to have an objective other than that of assessing, protecting or improving the physical or mental health of the persons concerned: “It is a contravention of medical ethics for health personnel, particularly physicians, to be involved in any professional relationship with prisoners or detainees the purpose of which is not solely to evaluate, protect or improve their physical and mental health”

Principe 4 clarifies the contours of medical personnel's complicity in the ill-treatment and torture of detainees: “It is a contravention of medical ethics for health personnel, particularly physicians: (a) to apply their knowledge and skills in order to assist in the interrogation of prisoners and detainees in a manner that may adversely affect the physical or mental health or condition of such prisoners or detainees and which is not in accordance with the relevant international instruments; (b) 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 and which is not in accordance with the relevant international instruments, or to participate in any way in the infliction of any such treatment or punishment which is not in accordance with the relevant international instruments.”

Principle 5 recalls that “[i]t is a contravention of medical ethics for health personnel, particularly physicians, to participate in any procedure for restraining a prisoner or detainee unless such a procedure is determined in accordance with purely medical criteria as being necessary for the protection of the physical or mental health or the safety of the prisoner or detainee himself, of his fellow prisoners or detainees, or of his guardians, and presents no hazard to his physical or mental health.” ;

3. The Istanbul Protocol: Manual on the effective investigation and documentation of Torture and other cruel, inhuman, or degrading treatment or punishment

Under the name of the Istanbul Protocol, endorsed by the former United Nations High Commissioner for Human Rights on 9 August 1999 (latest revision in 2022), this Manual provides guidelines to help health care professionals faced with torture and ill-treatment to deal with ethical dilemmas (a). It also recalls the obligations of doctors in documenting torture and ill-treatment and the prohibition on participating in this type of treatment (b).

a. Ethics of the therapeutic relationship

The Manual confirms that the only ethical relationship between prisoners and health professionals is one designed to assess, protect and improve the health of prisoners. Assessing the health of prisoners to facilitate punishment or torture is clearly contrary to medical ethics. For the purposes of this Manual, “participation in torture” includes assessing a person’s ability to withstand ill-treatment; being present at, supervising or inflicting ill-treatment; resuscitating persons for the purpose of further ill-treatment or providing medical treatment immediately before, during or after torture on the instructions of those likely to be responsible for it; providing professional knowledge or personal health information about individuals to torturers; and deliberately neglecting evidence and falsifying reports, such as autopsy reports and death certificates.

This document recalls the three fundamental obligations of the doctor: (1) to provide compassionate care by considering only the patient’s best interests, (2) to respect the patient’s informed consent, and (3) to respect medical confidentiality and to do no harm to the patient.

The Manual outlines the dilemmas associated with the obligations of the medical personnel to the patient on the one hand, and to society on the other, and provides guidelines for dealing with these ethical dilemmas.

Regarding dilemmas related to the nature of the doctor-patient relationship, the manual states that when the doctor does not act at the patient's request or within the framework of a therapeutic relationship guided by the patient's best interests, he or she must inform the patient of the nature of the assignment and the constraints of confidentiality. The physician must explain the reasons for the examination or treatment. The patient must remain free to consent or not.

If the physician is acting at the request of a third party, such as a prison administration, a member of the military, or a security official, he or she must refuse any order that could harm the patient's physical or mental health and ensure that the patient always has access to the necessary care. The physician must also defend the independence and impartiality of medical diagnoses and decisions. Finally, the physician must ensure that the confidentiality of medical information collected during his or her work is not breached without the patient's consent and knowledge.

b. Ethical management of dilemmas arising from conflicting dual obligations

The Manual notes that doctors are often faced with conflicting obligations, which they must therefore resolve on the basis of ethical principles. For example, there is a conflict between the obligation to provide care and the obligation not to participate in ill-treatment, or between the obligation of medical confidentiality owed to the patient and the obligation to report medical information to the authorities. The document clarifies the principles that can help medical personnel manage these dual obligations.

It asserts that the absolute prohibition against harming the patient is the only ethical criterion that can be used to resolve ethical dilemmas relating to the disclosure or maintenance of medical confidentiality.

It also affirms that when the dilemma is between an ethical obligation and a legal obligation, such as the obligation to disclose confidential information about a patient, the ethical rule must always prevail.

It further states that physicians should never base their ethical decisions solely on obedience to a legal requirement. When making their decision, physicians must assess the risk to the patient of alerting the authorities to ill-treatment in places of detention under their control. This includes, in particular, pressure from the authorities to obtain personal medical information and records about the patients concerned, or to restrict the physician's autonomy and the patient's access to care. Ultimately, the ethical principle of confidentiality towards the patient prevails over any legal obligation to report

Conversely, when the dilemma is between two different ethical obligations, the principle of avoiding any risk to the patient should prevail. This is evident, for example, in the doctor’s obligation to respect medical confidentiality, but also to protect the patient by alerting the authorities about his or her state of health condition and disclosing confidential information with the patient consent, when it is in the patient’s best interest to do so.

IV. Recourse and sanctions for violations of medical ethics

Certain violations of medical ethics may fall within the definition of international crimes, particularly regarding the prohibition of participating in or aiding and abetting acts of torture, war crimes or crimes against humanity.

The Additional Protocols to the Geneva Conventions have also expanded the list of grave breaches of IHL to include acts and omissions that intentionally impair the state of health of protected persons in situations of armed conflict (API, art. 11(4), APII, art. 5(2)(e).

These crimes can therefore be prosecuted under certain conditions before the International Criminal Court (ICC). They may also be prosecuted under certain conditions before national courts of any country in accordance with the principle of universal jurisdiction for crime of torture (arts. 2 and 5 of the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment) and for grave breaches of IHL (GCI–II, arts. 49, 50; GCII, art. 129 and GCIV, arts. 146 and 147; API, art. 85(1)), as well as for war crimes and crimes against humanity as defined in the Statute of the ICC.

Medical professionals who act contrary to medical ethics can also be prosecuted by national disciplinary bodies (colleges of physicians). These authorities cannot impose criminal sanctions, but they can deprive doctors of their right to practise medicine. The purpose of these sanctions is to protect society from acts contrary to good professional practice. However, in situations where medical personnel are involved in abusive State practices, such as the ill-treatment or torture of prisoners, national disciplinary authorities tend to regard this as a political rather than an ethical issue to be dealt with by national courts. This was the decision of the College of Physicians of California in 2005, when it refused to investigate the case of a doctor responsible for treating prisoners at Guantanamo. The issue had already been raised earlier, concerning the ethical or non-ethical nature of doctors’ involvement in the application of the death penalty by lethal injection. In the latter case, however, the ethical question is, in time of peace, separate from the criminal question of participation in acts of torture, since the definition of the Convention against Torture excludes suffering resulting from the execution of a criminal sentence pronounced by a regular court.

Given the difficulty for national medical associations to deal with the specific issue of doctors’ involvement in torture and ill-treatment of prisoners, it has been suggested that this matter be delegated to an international professional body, such as the World Medical Association, or that a new body be created specifically to deal with this issue. Such a step would arguably not weaken national or international criminal jurisdictions, which are still not very active in these matters, but on the contrary would stimulate reflection and ethical decision-making within the medical field.