Weaponising medicine: “Tutti fratelli,” no more

Short abstract

The acceptance of military directives violating medical ethics and international covenants encouraged by the demonisation of the enemy by the US president in 2002 has effectively removed the right of medical personnel to refuse participation in internationally proscribed actions

Medicine and its traditional ethic of care is today a victim of the current conflict in Iraq and Afghanistan, its uniquely humanising mission rejected by US President George W Bush and his advisors. In denying the applicability of international agreements guaranteeing medicine's ecumenical role in this conflict they have transformed medicine into just another weapon of tactical significance. The result, predictable in retrospect, has been to make military physicians and nurses complicit—actively or passively—in what Litton calls an “atrocity‐producing situation”, resulting in detainee or prisoner abuse.¹

From the first revelations of detainee torture in US detention camps (2004) to recent allegations of continued abuse (2006), the focus of international attention has shifted from the US prosecution of low ranking, non‐commissioned military personnel to the context in which the atrocities they committed occurred. “No one up the chain of command has ever been held accountable for what is in these horrifying images,” Center for Constitutional Rights Director Bill Goodman said of recently published photographs of 2004 prisoner torture and abuse.² “The situation in several areas violates international law and conventions on human rights and torture,” said the UN Special Rapporteur on Torture following a 2006 investigation.³

The denial of international law and convention involved the overt disavowal of covenants and conventions that for almost 150 years required medical personnel in the US military to act within the guidelines of a Hippocratic vision of medicine. To understand how fundamental this change has been requires a brief review of the history of medicine's previously protected status and then a description of the method by which that history has been disavowed.

History

In June of 1859 a wealthy Genevan tourist, Jean‐Henri Dunant, observed a furious battle between the armies of Emperor Napoleon III of France and Austria's Emperor Franz Joseph at Solferino near Castiglione, Italy.⁴ When it was done Dunant saw in Castiglione that thousands of wounded soldiers of both armies were being cared for by Italian nurses and doctors.⁵ “Tutti fratelli,” the nurses said when asked about their ecumenical treatment of the injured. “They are all our brothers.”

Dunant's world changed forever in a way that changed ours. In 1862 Dunant wrote Un Souvenire de Solferino, a book about the brutality of the battle he had seen and the ecumenical nursing that followed it. His life's mission became not to tame war but to civilise it, arguing for international conventions and an organisation above war, one that would assure a measure of care and hope—the goals of medicine—amidst the carnage of the new, mechanised military.⁵ In 1863 he founded the International Committee of the Red Cross and in 1864 organised the first Geneva Convention. Signed by 12 nations, including the United States, that convention and its successors made of the military medical professional a special case, a neutral resource and humanitarian asset, who served all combatants.

Those conventions were strengthened after the first world war, and again after the second world war. Germany's worst excesses occurred not on the battlefield but in the concentration camps, where prisoners not exterminated outright were put to hard labour or made the object of medical experimentation. Those atrocities began with official German rejection of international covenants of prisoner care and a subsequent willingness of civilian and military physicians to abandon traditional goals of ecumenical caring and healing.⁶ As a result, medical personnel became military assets in violation of a series of international agreements, covenants, and protocols. Their failure to adhere to a more humanitarian medical ethic became the basis for charges at the Nuremberg Trials against German physicians of both crimes against humanity, where civilians were involved, and of war crimes when enemy soldiers were abused.⁷

The context

This time it is the US that has militarised medicine through the abrogation of international covenants. The result has been the denial of the role of humanitarian medicine, and a caring medical ethic, in US military detention camps. This was caused by US presidential decisions being translated into operational directives that concluded with a redefinition of the role of medical personnel active in military theatres. The theory has been that because the US is engaged in a struggle with terrorists who are not signatories to international agreements it is counterproductive at best and foolish at worst for the US to restrict its activities to those defined by international agreement, covenant, and treaty.⁸ On 18 January 2002 President George W Bush decided that the Geneva Prisoner of War convention, and other international covenants, would not apply to suspect members of Al Quaeda and the Taliban captured in Afghanistan and Iraq by US troops.

Referenced in a supporting memo on 25 January by the then White House Council Robert Gonzalez,⁹ the president's decision was preceded by a now famous, supporting memo written by Deputy Assistant Attorney General John Yoo and Special Counsel to the President Robert J Delahunty.¹⁰ President Bush's decision was finalised in a February 2002 memorandum to the US vice‐president and other staff, which is quoted by Jackson in a paper published in The Army Lawyer.¹¹

War is a curious mixture of narcissism and rage, restrained only by a sense of reciprocity and a belief in common humanity. In his 2002 State of the Union address President Bush removed those restraints through his unilateral declaration of war against an “axis of evil”¹² and the announcement of a bounty for opposition leaders, “dead or alive” (“I want justice” Bush said. “And there's on old poster out West…I recall, that said, ‘Wanted, Dead or Alive'.”)¹³ Opponents and their underlings were thus at once demonised, and dehumanised. The imposition of a bounty announced that traditional legal guidelines of fair treatment and fair judgment would not be in play in this conflict.

In a 19 January 2002 memorandum US Secretary of Defense Donald Rumsfeld ordered the chairman of the joint chiefs of staff to inform combat commanders that: “Al Quaeda and Taliban individuals...are not entitled to prisoner of war status for purposes of the Geneva Conventions of 1949”.¹⁴ Prisoners, the memo continued, were to be treated “humanely, and to the extent appropriate and consistent with military necessity, consistent with the Geneva Conventions of 1949”. What had been an absolute guide to military conduct thus became a thoroughly contingent guide secondary to the dictates of “military necessity” in the field. The ecumenical sense of Solferino—Tutti fratelli—to which the US had subscribed since 1864, was diminished as a result.

Weaponising medicine

Dr David Tornberg, Deputy Assistant Secretary of Defense for Health Affairs, translated Secretary of Defense Rumsfeld's memorandum into an order that redefined the role of medical professionals in the US military. “Physicians assigned to military intelligence…have no doctor patient relationship with detainees and, in the absence of life threatening emergency, have no obligation to offer medical aide”.¹⁵ As professionals whose first concern is patient health and welfare irrespective of political or military allegiance…US military physicians were taken out of the game. “A medical degree,” Tornberg said, “is not a ‘sacramental vow'—it is a certification of skill.”¹ Under the Tornberg directive a medical degree becomes a practical diploma carrying no more ethical weight than a plumber's.

The logical conclusion of President George Bush's and Secretary of Defense Rumsfeld's memoranda, this was a dilution of the goals of medicine—healing and preventing harm—which “has been a distinguishing mark of Hippocratic medicine since antiquity”.¹⁶ If medicine has no special ethic then physicians are free to apply their skill to maximise the goals of military necessity irrespective of the effect on patients. Dr Tornberg's directive violated, however, a host of agreements to which the US is a signatory. In the Declaration of Havana in 1956—for example, the World Medical Association (WMA) stated in its Regulations in Time of Armed Conflict” that “medical ethics in time of armed conflict are identical to medical ethics in time of peace”.¹⁷,¹⁸ This was the WMA's translation of postwar Geneva convention agreements following and in reaction to the Nuremberg trial experience.¹⁹ The Tornberg rule rejected the very idea of a specific medical ethic whose guiding principle was that “the primary obligation of a physician is his professional [medical] duty”.

The Tornberg rule also violated the first principle of the 1982 UN principles of medical ethics in the protection of prisoners and detainees: “Health personnel, particularly physicians, charged with the medical care of prisoners and detainees have a duty to provide them with protection of their physical and mental health and treatment of disease of the same quality and standard as is afforded to those who are not imprisoned or detained”.¹⁸

Physician combatants

The results were predictable. A host of activities proscribed by international convention and agreement appear to have become standard operating procedure for military personnel serving in US detention camps. Military physicians saw and treated detainees with wounds and injuries that could only have resulted from abuse by military personnel. Physicians caring for such patients—whose maltreatment has been the subject of widespread international discussion following publication of photographs of their distress²⁰—who did not protest to superiors can be said to have been passively complicit in those abuses.

As active participants, some military physicians complied with orders to “provide interrogators with [medical] information about prisoners' psychological vulnerabilities”, in violation of UN resolution 37/194 prohibiting physicians from “any professional relationship with prisoners or detainees the purpose of which is not solely to evaluate, protect, or improve their physical and mental health”.¹⁸

Not only were military physicians ordered to volunteer any information that might be gained during treatment of a patient but some were also ordered to utilise patient medical records to uncover weaknesses that might be used by interrogators. This violated privacy protections enshrined in UN resolution 37/194 and in a World Medical Association agreement also adopted in the 1970s by the American Medical Association.²¹ Some have argued that because military medical records are in the custody of military personnel their misuse was not the physician's responsibility.²² None argue, however, that physicians used those records not for patient care alone but to maximise the potential of interrogations. The breach of medical ethics occurred not in their storage but their use by physicians for a purpose other than treatment.

Of course, the resulting “harsh” interrogations themselves were arguably in violation of the Third Geneva Convention's injunction that “no physical or mental torture, nor any other form of coercion, may be inflicted on prisoners of war to secure from them information of any kind whatsoever”.¹⁵ Failure of medical military personnel to protest those harsh interrogations¹,⁴,²³ reflects a passive complicity, which violates the spirit of international conventions to which the US is a signatory, while active military participation in these activities represents an active violation of conventions and treaties.

In another arena of proscribed medical activity, in 2006 US military medical personnel force fed Guantanamo Bay detainees who were participating in a hunger strike to protest their detention and treatment. Despite a clear 1975 World Medical Association declaration that “prisoners who refuse food and whom doctors consider capable of understanding the consequences should not be fed artificially”²⁴ participants were strapped into special chairs and force fed by medical personnel at Guantanamo Bay after being told: “If they challenged the US, the US would challenge them back using these tactics”.²⁵

Finally, former detainees have alleged that US medical personnel were involved in the long term use of drugs used in an attempt to extract information. British detainee Jamal Al‐Harith—for example, recently described two years of injections of unknown drugs and continual physical abuse while in US detention and under US medical supervision.²⁶ Al‐Harith said he was placed in shackles that prevented him from standing upright and that cut into his flesh, leaving scars on his wrists and ankles that required treatment.

Protests: the Uniform Code of Military Justice (UCMJ)

In theory, “all doctors have obligations to report human rights abuses”.¹⁹ In the US military they have had, at least since Nuremberg, the obligation to refuse orders that would require them to commit abuses. Why, then, were commissioned medical officers not the first to draw military and public attention to torturous acts? Why did they not refuse assignments that violated professional oaths and international covenants?

The so called Nuremberg defence against unlawful orders is codified in the US manual for Courts‐Martial, established by executive order of the US president, to implement the provisions of the Uniform Code of Military Justice.²⁷ It states: “It is a defense to any offense that the accused was acting pursuant to orders unless the accused knew the orders to be unlawful or a person of ordinary sense and understanding would have known the orders to be unlawful”.²⁸

It is unclear, however, whether a medical officer could argue successfully that medical activities in contravention of international agreements and treaties were unlawful. To protest as unlawful, orders to: assist in interrogations; force feed hunger strikers; plan and observe harsh interrogations, or provide information gained during medical treatment would have been to challenge the complete chain of US military command stretching from President George W Bush through his Secretary of Defense to the Deputy Assistant Chief of Defense for Medical Affairs, Dr Tornberg.

Under UCMJ articles the orders of a superior carry an a priori presumption of legality “disobeyed at the peril of the subordinate” who must prove an order was unlawful.²⁸ The penalties for refusing a lawful order are severe and may include ancillary charges of mutiny or sedition. Under the UCMJ, “The dictates of a person's conscience, religion or personal philosophy” are irrelevant in deciding whether or not an order is lawful”.²⁹ A defence on the basis of the Hippocratic oath as a professional standard would therefore almost certainly have been rejected by a military court judge. Indeed, Dr Tornberg forestalled this defence when he denied any special ethic to medical practitioners.

The only possible defence would have been to argue that ordering physicians to participate in Litton's “atrocity‐producing situations” violated international covenants and treaties signed by the US that could not be abrogated by any individual, including the commander in chief. Article 6, paragraph 2 of the US constitution says that international treaties signed by the United States have the force of law in the US. However, this defence was forestalled by Yoo's 2002 memorandum which argued that: “The constitutional text nowhere brackets president or federal power within the confines of international law.”¹⁰

Civilian predisposition

The Hippocratic vow to “keep the ill from injustice”, and a historical definition of the physician as a moral agent responsible to and for the patient, have been diminished generally in recent years as medicine has become dependent on social institutions for its economic continuance.³⁰ As Jotterand put it in an article on civilian medical practice, gone are “the simple certainties of an ethic based entirely on what the doctor thinks is good for the patient, and with it also any acquaintance with Hippocratic morality”.³¹

Younger physicians and nurses are increasingly trained in civilian life to see themselves not first and foremost as ethical advocates for the fragile patient with whom they are in relation but as agents of employers for whom the patient is not an ethical responsibility but a commercial client. The result has been “the deprofessionalisation and the transformation of medicine into a vast industry, in which physicians lost their authority as professionals and became dependent on managed care organisations”.²⁹ In that industry injunctions to care and of personal responsibility in the physician/patient relation are increasingly replaced by corporate decisions, often made on the basis of cost, on medical matters formerly assumed to be an individual physician's prerogative. Who will be accepted as a client, and the protocols governing that person's care, are thus increasingly dictated by organisational rather than individual medical ethics.

The result is that civilian physicians and nurses are taught that the traditional Hippocratic values are at best a limited covenant increasingly interpreted as: “do what you can within the boundaries set by corporate employers”. As one recent commentator put it: “HMOs [health maintenance organisations] and insurance companies have put them [doctors] into a form of enslavement. They tell them how to practise; how long their patient should remain in the hospital; and what prescription drugs, medical tests, prevention measures, and treatments are allowed. Sadly, in many instances (practising medicine without a licence), they determine whether patients live or die”.³² What Dr Tornberg did, in effect, was transpose to the military a more general diminution of professional medical responsibility already familiar to medical and nursing students, and young practitioners, in civilian life. Trained to accept the care parameters of a health maintenance organisation in Kansas City, why not accept the parameters dictated by military authority? In a war against “evil” in which a bounty had been posted—“dead or alive”—against opposition leaders, the likelihood of a challenge by young medical professionals in the military became as remote as the probability of a successful defence against orders issued by a chain of command stretching from the US president to Dr Tornberg.

Conclusion

At least since the battle of Solferino, medical professionals have served as a civilising bulwark against the savagery of war and its excesses. That tradition has been enshrined in a series of international agreements, covenants and treaties to which the US has been a signatory. Compliance with these agreements was declared as secondary to the dictates of military necessity in 2002. As a result, a strongly protective and proactive medical ethic enshrined was deemed inapplicable to care and treatment decisions by medical personnel serving in the US military.

While in theory all US military personnel have the right to refuse an illegal order a chain of memoranda and orders by the highest of US military and political officials redefined the parameters of legal treatment in a fashion that made it almost impossible for medical military personnel to successfully refuse superiors' orders as unlawful. I have argued that the acceptance of military directives violating medical ethics and international covenants was encouraged by the demonisation of the enemy by the US president and a more general dilution in civilian medicine of an ethic of physician responsibility for patient care. The result has been that, for the first time since the Nuremberg trials after the second world war, a major political power self consciously weaponised medicine as a tool for the progress of military goals while effectively removing the right of medical personnel to refuse participation in internationally proscribed actions on the basis of international treaties or professional ethics.