Humanitarian aid organisations may face situations which challenge their guiding ethics and principles. Amputations after convictions under sharia law, in countries such as Afghanistan, have posed just such a problem. Should the aid organisation continue to provide health care, including treatment to the person who had been punished, or would this make it complicit in a practice that it sees as contrary to human rights? The conclusions and the actions taken by the International Committee of the Red Cross and Médecins Sans Frontières differ, as outlined in these two accounts. But the ethical bases of their positions are remarkably similar.
. 1999 Aug 14;319(7207):445–447.
BMJ. 1999 Aug 14;319(7207):445–447.
In 1997 an Afghan surgeon who was being paid by the International Committee of the Red Cross but who was working in a Ministry of Health hospital was taken by the local authorities to a marketplace. There heamputated the hand of a person who had been convicted under sharia law. Following an appeal by the international committee to the Taliban authorities, an agreement was eventually reached that ensured that neither hospitals assisted materially by the international committee nor staff paid by it would be involved in this practice.
IAN BARRACLOUGH
Subsequent requests made by the authorities to the assisted hospitals to provide an ambulance or surgical instruments to perform public amputations were refused. Many of the international committee’s personnel working with and training Afghan staff were health professionals from Western countries and they faced a dilemma in treating people brought to hospital after having suffered an amputation under sharia. Did treating these victims constitute offering support to a process of torture or cruel and degrading treatment, or was it treating a patient in need of urgent surgical care?
Examination of relevant laws and standards of medical ethics
These dilemmas forced the International Committee of the Red Cross to examine its position on corporal punishment, its field operations, the relevant international humanitarian and human rights laws, and standards of medical ethics; it forced the international committee to adopt a firm position with regard to the government in the relevant country; and it also forced the international committee to draw up guidelines for its health professionals working in Afghanistan or any other country where sharia is enforced.
The international committee decided in 1988 not to make a statement on whether corporal punishment constituted torture and not to comment on cultural or religious issues. Nevertheless, the international committee did state that in a situation of armed conflict (the context in which it works most frequently), such punishment constituted a grave breach of international humanitarian law. As a result of the incident in 1997, the international committee re-examined this position, keeping the specific situation of Afghanistan in mind. Although article 3, common to the Geneva Conventions, expressly forbids mutilation, cruel treatment, and torture, it is difficult to say whether a person who is convicted of being a criminal in present day Afghanistan is protected by this article. Various tenets of human rights law obviously apply; however, arguments against amputations performed under sharia which use human rights as a basis are unlikely to succeed in Afghanistan because they may be in conflict with locally enforced law (sharia).In Afghanistan, it is important that the international committee is not perceived as promoting Western values or as antagonistic to Islam. The presence and security of its personnel in the country might be put at risk. Thus, the international committee appeals directly to the authorities for leniency in cases in which those who are convicted may not be protected by international humanitarian law.
Both protocol II, additional to the Geneva Conventions of 1949, which applies to non-international armed conflict, and the 1982 resolution of the General Assembly of the United Nations1-1clearly state that whether in armed conflict or in general, the participation by a health professional in corporal punishment constitutes a grave breach of the ethical codes of the medical profession. The declaration made in Tokyo by the World Medical Association in 1975 (adopted by the 29th World Medical Assembly) is more specific and states that a doctor must never participate in any such act in any situation; must never provide the place, means, knowledge, or materials to facilitate such an act; and must never be present during such an act. The 1997 declaration made by the World Medical Association in Hamburg (adopted by the 49th World Medical Assembly) was aimed at uniting the profession to support doctors who refuse to participate in, or to condone, the use of torture or other forms of cruel, inhuman, or degrading treatment.
In addition to these ethical guidelines, the World Medical Association has stated in a number of declarations that all patients have the right to receive appropriate medical care without discrimination. Although a doctor has a right to choose which patients to treat, it is clear that “physicians have a compelling professional and ethical duty to attend to a patient in an emergency.”
The International Conference on Islamic Medicine in Kuwait in 1981 stated: “Health is a basic human necessity and is not a matter of luxury. It follows that the medical profession is unique in that the client is not denied the service even if he cannot afford the fee.” With respect to a doctor’s practice, the conference stated that: “He should be an instrument of God’s mercy not of God’s justice, forgiveness and not punishment, coverage and not exposure.” The conference also stated: “The medical profession shall not permit its technical, scientific, or other resources to be utilised in any sort of harm or destruction or infliction upon man of physical, psychological, moral, or other damage ... regardless of all political or military considerations.”
Guidelines for action
The first Geneva Convention clearly gives anyone wounded in armed conflict the right to treatment; this is the reason for the existence of the International Committee of the Red Cross’ surgical teams. However, in the case of sharia amputations, the international committee recognises that the ethics of an individual doctor working for the organisation might be in conflict with both the ethics of the medical profession and the ethics of the international committee. Every measure is taken to avoid such a conflict occurring. This means that health professionals recruited for such work are informed of the possibility that this situation might arise before they are sent overseas. They are not accepted for the mission if they disagree with established professional or institutional ethics.
The International Committee of the Red Cross has not changed its position on corporal punishment.
However, in the case of amputations carried out under sharia, the international committee has decided that it will take action. The international committee will:
State its objection to amputations based on sharia law but will not do so publicly
Refuse to allow personnel employed by the international committee to participate in performing amputations under sharia
Refuse to provide the premises, the knowledge, or material for performing these amputations
Call for leniency in each case
Protect doctors who refuse to participate in sharia amputations
Support the World Medical Association in working to develop national legislation against such practices, and
Support the World Medical Association in its efforts to develop national medical associations to provide support for doctors who refuse to carry out sharia sentences.
The International Committee of the Red Cross informs all health professionals of its position on these issues.
The international committee will treat all people who have had amputations as a result of sharia. It will remind all doctors that they have a duty to treat them. And it will inform the doctors who treat them that they have the support of the International Committee of the Red Cross.
References
- 1-1.United Nations. 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. New York: United Nations; 1994. (A/RES/37/94.) [Google Scholar]
BMJ. 1999 Aug 14;319(7207):445–447.
In 1997, in common with the International Committee of the Red Cross, Médecins Sans Frontières was confronted in Afghanistan with the need to develop a policy on amputations carried out under sharia law. Two brothers had had their right hands and left feet amputated as a result of a conviction for robbery under sharia law. After the amputation the brothers were taken to a health clinic run jointlyby Médecins Sans Frontières and a local non-governmental organisation. These premises were also used by a separate Afghan surgical team, which was part of the Ministry of Health, and which had carried out the amputations on the brothers. In spite of its strong opposition to corporal punishment, Médecins Sans Frontières risked being seen as taking part in the amputation because it shared its medical facilities with the surgical team from the Ministry of Health. Local staff were very disturbed by the incident. The concerns arising from this incident led the organisation to review its position on corporal punishment and to take a number of actions.
Health and human rights
Corporal punishment, besides being prohibited by international humanitarian law in armed conflicts, is increasingly interpreted as a violation of laws governing human rights. Only a few governments and legal experts still hold the view that corporal punishment cannot be considered to constitute torture or cruel, inhuman, or degrading treatment or punishment as prohibited under human rights law.2-1 Furthermore, the majority of member states of the Organisation of the Islamic Conference prohibit corporal punishment.2-1
Corporal punishment affects a person’s health in the sense of the World Health Organisation’s definition of health as a state of “complete physical, mental and social well-being.”2-2 Corporal punishment causes damage to the body and probably mental suffering; and it may cause humiliation, injuring the dignity and self worth of a person. Additionally, an amputee, apart from running the risk of being excluded by society, may well experience great difficulty in maintaining an adequate standard of living because of the reduction in his or her ability to work.
Preserving life and alleviating suffering
Médecins Sans Frontières is a medical humanitarian organisation with the overall aim of preserving life, alleviating suffering, and protecting human dignity. The organisation accomplishes these things by providing medical aid, and those who work for the organisation make a personal commitment to act as witnesses to events affecting populations in danger. The organisation’s guiding principles are derived from the fields of medical ethics, human rights, and humanitarian law. Therefore, it is not surprising that Médecins Sans Frontières reached similar conclusions and made similar responses to those of the International Committee of the Red Cross when developing guidelines on judicial amputations. However, there are a few differences.
Médecins Sans Frontières, like the International Committee of the Red Cross, does not totally oppose sharia. At Médecins Sans Frontières we believe that, as a humanitarian organisation working within a variety of different cultural systems, we should be extremely careful about stating opinions about other cultures because our opinions could easily be interpreted as imposing Western cultural values. We accept that there are different interpretations of cultural values and norms and believe that great sensitivity is required in responding to these differences.
Yet, although we do not oppose sharia, we are strongly opposed to the types of corporal punishment which are permitted under sharia, such as stoning and amputations. The organisation’s opposition to these punishments has its basis in their danger to a person’s health. These punishments, by their very nature, cause irreversible physical damage and cause severe physical and mental suffering and sometimes death.
Consequently, the organisation decided that it would never be involved in corporal punishment or the preparation for it. This applies to all of the organisation’s health personnel, including staff who have been hired locally and the staff at non-governmental organisations with whom Médecins Sans Frontières works in partnership. Clearly this also means that the organisation’s health personnel will never provide certifications for fitness for detainees to undergo any punishment that may adversely affect their physical or mental health, a practice which is expressly forbidden by the United Nations’ 1982 principles of medical ethics.2-3However, once an amputation has taken place, a person becomes a patient in need of medical care, which the organisation would supply.
Responding to the authorities
After making a strong protest to the local Taliban authorities in 1997, Médecins Sans Frontières agreed a new memorandum of understanding with the government that contained a passage in which it is clearly stated that the Ministry of Health will not involve the organisation in the process of corporal punishment. A memorandum of understanding is agreed with the local authorities each time Médecins Sans Frontières initiates a new programme in Afghanistan. This provides an opportunity for the organisation to hold a discussion on corporal punishment. It is easier for the organisation to explain its opposition to corporal punishment when the discussion is not linked to a particular incident.
In 1997, we were concerned that the local population might think that Médecins Sans Frontières had participated in the amputations because the amputees spent time recuperating at the premises used by our programme, but in the care of the Ministry of Health. In addition to the ethical issues that this raised it had the potential to create a security risk for staff since there is a tradition in Afghanistan of revenge being taken by the families of those who have been punished. Médecins Sans Frontières had already decided to withdraw from the health centre but the process was accelerated because of concerns arising from this incident.
The organisation also made it clear in discussions with the local population that despite the fact that the amputees had been taken to the health centre in which Médecins Sans Frontières also worked, Médecins Sans Frontières had not been involved in the amputations; members of the team restated the organisation’s opposition to these practices. Although in this case the organisation did not make an additional public statement, it would not, as the International Committee of the Red Cross has done, rule out the possibility of making a public statement and opposing amputations. There may be situations, such as the systematic rather than exceptional use of amputations, in which the organisation would publicly object to the practice.
Finally, Médecins Sans Frontières, as part of its role in acting as a witness, believes that it has a duty to report such incidents and therefore takes steps to ensure that such incidents are thoroughly and systematically documented. The organisation then carefully considers whether this information should be used publicly or confidentially. Despite its objections to amputations and other forms of corporal punishment, Médecins Sans Frontières continues to believe that its programmes respond to the humanitarian needs of the people of Afghanistan.
References
- 2-1.United Nations. Report of the UN special rapporteur on torture to the UN Commission on Human Rights. Geneva: United Nations; 1997. (E/CN.4/1997/7.) [Google Scholar]
- 2-2.World Health Organisation. Constitution. New York: WHO; 1946. [Google Scholar]
- 2-3.United Nations. 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. New York: United Nations; 1994. (A/RES/37/94.) [Google Scholar]