Medicine and international humanitarian law

The law's relevance to medicine

The discussions in this issue of the BMJ, whether through case example,3 historical analysis,4 5 the careful analysis of clinical data,6^–10 or assessment of current and anticipated issues,11^–14 seek to illuminate the relevance of key points in international humanitarian law and human rights to those whose work in medicine is largely guided by the more familiar principles of medical and research ethics.

The importance of this inquiry will not escape those who have been reading the mainstream press as it reports from Somalia, Sudan, Afghanistan, Croatia, Bosnia, Rwanda, Congo, and Kosovo. International humanitarian law and human rights provide the normative context for those who try to deliver medical and emergency relief in war zones. What may be less apparent is the applicability of these principles to the peacetime preoccupations of many physicians and scientists—who work in genetics,15 molecular biology,16 or human research trials.17

On a daily basis physicians and medical scientists engage with the concepts of “do no harm,” beneficence, autonomy, informed consent, and confidentiality. In their relationships with individual people as patients or as participants in research, medical professionals can rely on these principles of medical ethics as important starting points for a discussion on what ought to be done in a given instance of ambiguity or moral conflict.18

A feature of the late 20th century, however, is the intrusion of worlds other than those we are used to or have been given to expect. Wars in remote areas have drawn civilian medical personnel from Europe and North America to work with large numbers of ill or desperate people from unfamiliar cultures in settings of considerable danger.13 Epidemic disease ravages societies that cannot possibly pay for the cures available in the West.17 Advances in technology allow us the potential to manipulate the entire biological gene pool—human, animal, and plant.15 Despite the fact that genocide can be, and is, committed with weapons as simple as machetes, much scientific effort and tremendous resources are being spent on designing new ways to wage war or combat terrorism on a massive scale.6 16

A crucial framework

The discourse of international humanitarian law does not furnish detailed road maps for negotiating this complex terrain of war and preparation for war. Nor does the discourse of human rights supply answers on how to proceed with scientific advances across large and disparate populations. But these two strands of thought, together with established principles of medical ethics, have since the end of the second world war provided the rules and standards by which the international community has determined that medicine, science, and government must all be held accountable.14

These rules and standards have been and will continue to be modified, as we learn more about our capacities and acquire more complex technology, as we try to improve our systems for assigning and imposing accountability, and as we struggle to close the considerable gaps in consensus regarding many of the principles.19 20 Still, as we scan our recent past and near future, it is becoming increasingly clear that this framework is crucial in allowing us to understand, criticise, and moderate our actions in war and peace.

The key principles of international humanitarian law of relevance to physicians are neutrality, non-partisanship, independence, and humanitarianism. Physicians and other healthcare workers are protected from hostile action to the extent that they understand these principles and abide by the rules that flow from them.14

Familiar territory

An assumption behind these principles, barely made explicit in international law, is that physicians must practise both competently and according to the highest principles of medical ethics. In other words, to be protected in war a physician must first be deemed competent to practise in peace. Following on from that assumption, a physician must be impartial (treat everyone according to medical need); neutral (take no political sides in the conflict); independent (be separate from the conflict, unarmed, and directed by professional dictates); and humanitarian (committed to promoting the welfare of sick and injured people).

Major points of relevance in the law of the Hague relate to an appreciation of the concepts of superfluous injury and unneccessary suffering and how to assess the design or use of weapons from that perspective.6

The tenets of human rights, which emphasise individual dignity and freedom from state imposed harm, do not take thoughtful physicians far from familiar territory. These notions overlap considerably with those established in medical ethics but also modify them, specifically by expanding the notion of harm; restricting the ambit of beneficence; and giving increasing power to the implications of informed consent, autonomy, and confidentiality.

As war and peace merge

Issues of human rights impinge on medical decision making in many ways, particularly in cross cultural environments,17 with vulnerable populations, or across wide power differentials.21 Violations of human rights often have serious medical consequences and physicians can be particularly helpful. They can use their clinical skills or deploy the analytical frame of epidemiology and public health to document the nature and impact of injuries created by human rights abuses,5^–10 supply expert testimony,22 and advocate on behalf of those who have suffered.23 Further, doctors should recognise the range of torture and repression in state systems24 and be vigilant about policing their own guild lest some members use their medical skills in state sponsored violations of human rights.25^–27

The discourses of international humanitarian law and human rights, once thought to be entirely separate—one for war and the other for peace— are also now seen to overlap.28 Current legal analyses of war and conflict allow for applying core human rights law as well as international humanitarian law, so that important human rights for refugees (such as the right not to be forced back across a border into a hostile country of origin) or for children (the right not to be forced into slave labour or into the army) are considered inviolate in settings of active hostilities.14

As readers deliberate on the questions of medicine, moral choice, and international law that are explored in this week's BMJ, we hope they will appreciate that in the sphere of international humanitarian law and human rights there is not only room for the moral voice of physicians—but an outright imperative that it should be heard.