Medical Ethics and Detainee Operations

1
Medical Ethics and Legal Considerations in
Detainee Operations
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Introduction
The purpose of this CD-ROM is to give you an
overview of how ethics and the laws of war impact
detainee operations. It is not meant to replace
more thorough research and application of both
current regulations and lessons learned that
cover this subject. This educational tool is
primarily for both medical officer and enlisted
personnel assigned to detainee operations duties.
It will give practical information to help make
wise decisions about the ethical management and
maintenance of detainee personnel, holding
facilities and their staffs.
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Table of Contents Medical Ethics and Detainee
Operations

• The Just War Theory
• 2. Enemy Prisoner(s) of War (EPWs)
• 3. War Crimes
• 4. Medical Rules of Care (ROC)
• Religious Considerations
• Resources

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1. The Just War Theory
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Medical Ethics is linked to the Just War
Theory
6
JUST WAR THEORY

• Jus ad bellum- The Justice of war. Justification
  for resorting to force as a means of achieving
  political objectives.
• Jus in bello- Justice in war. Considerations on
  how a war is prosecuted.
• -Who
• -By What Means
• -Treatment of Prisoners

7
JUS AD BELLUM

• Just Cause
• Proportionality
• Reasonable Chance of Success
• Publicly Declared
• Legitimate Authority
• Last Resort
• Right Intention
• Fought Justly

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The Law of War is...

• an attempt by nations to mitigate the impact of
  armed conflict

Its an ethical response
9
The Law of War is...

• an attempt by nations to mitigate the impact of
  armed conflict

Its an ethical response
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Philosophical Roots
War is in no way a relationship of man with man
but a relationship between States, in which
individuals are enemies only by accident not as
men, nor even as citizens, but as soldiers (...).
Since the object of war is to destroy the enemy
State, it is legitimate to kill the latters
defenders as long as they are carrying arms but
as soon as they lay them down and surrender, they
cease to be enemies or agents of the enemy, and
again become mere men, and it is no longer
legitimate to take their lives. Jean-Jacques
Rousseau
18th Century
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In 1899, Fyodor Martens laid down the following
principle for cases not covered by humanitarian
law (...) civilians and combatants remain
under the protection and authority of the
principles of international law derived from
established custom, from the principles of
humanity and from the dictates of public
conscience.
The above, known as the Martens clause, was
already considered a standard part of customary
law when it was incorporated in Article 1,
paragraph 2 of Additional Protocol I of 1977
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Why Do We Comply With The Law of War?

• Its the Law (UCMJ Punishment)
• Foreign Relations
• Affects Public Opinion
• Reciprocity
• Shortens Conflict
• Required by Treaty

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JUS IN BELLO

• Who may be attacked?
• Military Objectives/Personnel
• Who may not be attacked?
• Protected Targets
• -Non-combatants
• -Medical assets
• -Protected places
• Military Necessity

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JUS IN BELLO

• Reprisals- Acts normally considered violations
  of law of war, but used as means to force
  opponent back into conformity with law or redress
  of harms committed.
• -motivation not revenge but compliance
• -may not reflect the type of violation
  they seek to stem

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JUS IN BELLO

• By What Means-
• -Indiscriminate Weapons
• -Unnecessary Pain and Suffering

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JUS IN BELLO

• Treatment of Enemy Prisoners of War (EPWs)
• -Who is covered
• -Protection afforded
• -Rights of EPWs
• -Duties of EPWs

17
JUS IN BELLO

• Treatment of Civilians-
• The Geneva Convention defines Protected Persons
  as
• those who, at a given moment and in any manner
  whatsoever, find themselves, in case of conflict
  or occupation, in the hands of a party to the
  conflict or Occupying Power of which they are not
  nationals.

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Protected Persons

• Non Combatants
• Non-Aggressive Civilians
• The Wounded, Sick or Dead
• (Enemy) Prisoners of War
• Parachutists Escaping Craft
• Medical Personnel

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Definitions
Detainee A term used to refer to any person
captured or otherwise detained by an armed force
(Glossary, AR 190-80) GWS Geneva Convention
for the Amelioration of the Condition of the
Wounded and Sick in Armed Forces in the Field
(Glossary, AR 190-8)
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GWS Medical Emblems

• Red Cross on
  White Background
• Red Crescent onWhite background
• Red Star of David on White Background

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Medical Personnel

• Protection from Attack Medical personnel
  protected in all circumstances and may not be
  intentionally attacked.

22
Medical Personnel

• Protection upon Capture Given a Retained
  Status upon capture and only perform medical
  duties.
• Must obey all Camp Rules.
• Given Same Rights as POWs.
• Retained to treat wounded sick. Repatriated
  when not indispensable.

23
Medical Units

• May not be intentionally attacked.
• Permitted acts
• Armed in self-defense.
• Guarded by sentries.
• Weapons from patients.
• If captured, must allow unit to continue caring
  for wounded sick.
• Medical material may not be intentionally
  destroyed.

24
Medical Transports

• Protected from attack while exclusively engaged
• Protective markings
• Subject toinspection

25
Loss of Protection

• Acts harmful to the enemy jeopardize protected
  status.
• Non-medical staff performing non-medical related
  duties.
• Providing positions or other support to
  non-medical units.
• Use of offensive weapons.

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Civilians

• Treat Civilians Humanely
• Respect Customs and Religion
• Do not use as hostages or shields
• Protect Civilians from
• Violence and Insult
• Sexual Assault
• Pillage, Reprisals Retaliation

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Civilians (continued)

• No forced assistance of an enemy force against
  their own nation (labor, guides, information).
• No relocation (except in extreme cases and for
  protection).
• Right to hospital and neutral zones.
• No detention or taking of property, except if
  military necessity (specific rules for return and
  compensation).

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Property

• Movable Enemy Public Property
• Confiscate if susceptible to military use.
• Immovable Enemy Public Property
• Use without compensation.
• Movable Private Property
• Must return or compensate owner at the
  conclusion of hostilities.

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2. Enemy Prisoner(s) of War (EPWs)
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Definitions
1. EPW A detained person as defined in
Articles 4 and 5 of the Geneva Convention
Relative to the Treatment of Prisoners of War of
August 12, 1949. (See Glossary, AR 190-8 for more
details) 2. MOOTW Military Operations Other
Than War (Glossary, AR 190-8)
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EPW Status

• Uniformed Forces of Nations at War
• During MOOTW, Militias, Volunteers, and
  Guerrillas, but only if they
• Are Under Responsible Command
• Wear a Fixed Distinctive Insignia
• Carry Arms Openly and
• Comply with Law of War.
• Persons Accompanying the Force
• Not Article 3 Personnel (Detainees)

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Duties Owed -EPWs

• Duty to Respect Do not attack, kill, mistreat,
  or in any way harm a fallen and unarmed
  combatant.
• Duty to Protect Render care as the combatants
  condition requires.
• Humane Treatment Treat fallen combatants as
  ones own wounded.
• No Adverse Distinctions based on factors such
  sex, race, nationality, religion, or political
  opinions.

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Duties Owed - EPWs (Continued)

• Duty Regarding Abandonment If a unit is
  compelled to abandon its wounded and sick, the
  Commander must leave behind medical personnel and
  supplies to care for them.

34
Humane Treatment of EPWs

• Allow surrender
• Prompt removal from combat zone
• Do not kill safeguard from harm
• No coercion
• Provide medical care
• Dont take personal property
• Allow religious practice
• Do not force to perform dangerous, humiliating,
  or war-related labor.

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Rights of EPWs

• Sanitary, Protective Housing Clothing
• Sufficient Food To Maintain Good Health
• Adequate Medical Care And Necessary Facilities To
  Ensure Proper Hygiene
• Send and Receive Mail Containing Foodstuffs,
  Clothing, and Religious, Educational, Or
  Recreational Material
• A Prisoners' Representative

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Rights of EPWs (Continued)

• Retention of Personal Property (uniform, insignia
  of rank, helmet, protective mask, and mess gear),
  but not arms, military equipment and documents.
• Retention of Personal ID
• Retention of Money
• Copy of the Geneva Conventions

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Obligations of EPWs

• Provide Name, Rank, Service , DOB.
• Obey all lawful camp rules.
• Disciplinary punishment for violation of camp
  rules or unsuccessful escape.
• Judicial punishment for serious crimes (full due
  process tribunal).
• Perform authorized work - Privates, NCOs,
  Officers IAW the GPW categories.
• No dangerous or humiliating work unless voluntary.

38
Detainee Medical Care

• EPWs provide medical and dental care
• Retained Personnel provide medical and dental
  care
• Civilian Internees (CIs) provide medical and
  dental care CIs will, if possible, be moved to
  a civilian hospital, where treatment must be as
  good as that provided to general population

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Detainee Medical Care (continued)

• General Detainees provide medical and dental
  care
• Civilian Population must ensure civilians have
  adequate access to medical care

40
Medical Responsibilities at Confinement
Facility/Camp

• Medical Support includes
• First aid and all sanitary aspects of food
  service.
• Preventive medicine.
• Professional medical services and medical supply.
• Coordinating the use of medically trained EPW,
  Internee and Detainee personnel.

41
Hygiene and Medical Care at Confinement
Facility/Camp

• Must take all sanitary measures necessary to
  ensure clean and healthy camps to prevent
  epidemics.
• Should immunize confined personnel as recommended
  by Theater Surgeon.
• Medical inspections will be held at least once a
  month, where each confined person will be
  weighed. Purpose is to monitor state of health
  of confined persons.

42
Actions Upon Death of EPW, Civilian Internee or
Detainee

• The attending medical officer will immediately
  furnish the following information
• Full name of deceased, interment serial number,
  date, place and cause of death, and statement
  that death was, or was not, caused by deceaseds
  own misconduct.
• When the cause of death is determined, the
  attending medical officer will complete a DA Form
  2669-R.

43
Handling the Dead

• Prevent mutilation or despoliation
• Individual burial strongly preferred
• Honorable interment
• ID and examine cause of death if possible
• No cremation of any remains
• Mark graves and forward information

44
Investigation of Detainee Deaths and Injuries

• A camp or hospital commander must appoint an
  officer to investigate and report each death or
  serious injury caused, or suspected to be caused,
  by guards or sentries, another civilian
  internee, or any other person.

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3. War Crimes
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War Crimes

• A Technical Expression for Law Of War violations
  by any person or persons, military or civilian.
• Every violation Of The Law Of War Is A War Crime.

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War Crimes

• Grave Breaches include murder, mutilation,
  torture, all willful acts causing great
  suffering/injury.
• Simple Breaches include abuse of flag of truce,
  maltreatment of corpses, poisoning wells and
  streams, and pillaging.

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War Crimes

• Any person who commits a war crime under
  international law is liable to punishment. See
  FM 27-10, Chapter 8.
• Crimes against humanity
• All violations of the Law of War
• Responsibility for Subordinates Acts
• Responsibility to report all Law of War violations

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Command Liability

• Every soldier is responsible for his or her own
  conduct, but
• Commanders and Superiors may also be responsible
  for failures to command.
• Army standard
• The Commander or Superior ordered, knew, or
  should have known of violation before, during or
  after, AND
• Failed to Act.

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Prevent War Crimes

• If A Protected Place Or Person Is Hit By Accident
• Report It.
• Investigate And Document It.
• Mitigate It (Care For Victims and Provide
  Compensation)

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Orders

• The orders you receive are presumed lawful. You
  should carry out all lawful orders promptly and
  aggressively.
• Failure to obey a lawful order can subject you to
  criminal prosecution under the UCMJ.

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Orders cont.

• However, it is your legal and moral duty to
  disobey manifestly unlawful orders.
• Orders that require violation of the law of war
  or the commission of war crimes are unlawful.
• Process
• Challenge the order.
• Disobey the Unlawful Order.
• Report the Suspected War Crime.

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Challenge an Unlawful Order

• First priority seek to resolve the perceived or
  suspected unlawful order
• Repeat the Order
• Request Clarification of the Order
• Seek to Get The Order Changed
• Request Rescission of The Order

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Disobey and Report

• Disobey the Unlawful Order
• Report to Higher Headquarters
• Through the Chain of Command
• Other Available Routes
• Inspector General (IG)
• Provost Marshal (PMO)
• Staff Judge Advocate (SJA)
• Chaplain
• Military Police (MP)

55
MEDCOM Reporting

• Whenever US Military Treatment Facility (MTF)
  personnel know or suspect that an individual
  under the custody/control of US forces has been
  the subject of abuse, the relevant facts must be
  immediately reported to the Hospital/MTF
  Commander.

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MEDCOM Reporting cont.

• Because reporting is required by law and policy,
  such information is not protected by any
  recognized privilege.
• Hospital/MTF Commanders, in consultation with
  their Staff Judge Advocate, will determine
  whether such information requires reporting as a
  suspected violation of the law of war and/or a
  criminal act.

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4. Medical Rules of Care (ROC)
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Medical Rules of Care (ROCs)

• Medical Rules of Care may include the following
• Always provide treatment for the preservation of
  life, limb, and eyesight (LLE).

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Treatment of EPWs, CIs and Detainees under
Medical Rules Of Care

• Entitled to treatment and evacuation that is in
  accordance with US treatment protocols and
  policies.
• EPWs and Retained medical personnel are given the
  same care as US personnel. Triage and treatment
  decisions are based on medical criteria alone.

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Treatment of EPWs, CIs and Detainees under
Medical Rule Of Care (continued)

• EPWs when in camps, Civilian Internees and
  Detainees entitled to routine medical care as
  well as LLE.
• Under Medical ROC, Detainees or Persons under
  Confinement entitled to the same care as EPWs,
  US/Coalition soldiers at all times.

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Medical Obligations to Host Nation Civilians

• Under the Geneva Conventions, local nationals
  must have access to adequate medical care.
• Under medical rules of care, treatment by United
  States medical personnel is given to civilians
  for preservation of life, limb, and eyesight.

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Battlefield Triage Categories

• 1. Minimal Return to duty with
  minimal care
• 2. Immediate Stabilize to save
• 3. Delayed Priority lest they get
  worse
• 4. Expectant Comfort only

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Evacuation Categories

• 1. Urgent Move right away.
• 2. Priority Move within a designated
  period of time.
• 3. Routine Move whenever possible.

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Medical Records

• To properly evaluate care of EPWs, Civilian
  Internees and Detainees, medical records should
  be documented as fully as possible.
• Medical Records used for U.S. Army personnel are
  used for EPWs, Civilian Internees and Detainees.

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Common Problems with Medical Record Documentation

• Word Picture Timely Entries Use of Dates, Times
  
• Names Appropriate abbreviations (N/A,
  LOL,AAP)
• Discussions with family/patient not recorded in
  chart
• Departmental files not posted to Outpatient
  Record
• Inability to Follow Providers Thought Processes
• Unrecorded informal consults
• Lab X-Ray Results Actions Taken
• Lack of Specific Identification of Providers
• Pencil Files

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Additional Challenges in a Deployed Environment

• There may be difficulty obtaining informed
  consent.
• Forms are not translated into patients
  language. Even if forms were translated, not all
  patients are literate.
• Language barriers between provider and patient.
• Interpreters may or may not be available, and
  even if available, may not be able to
  appropriately translate medical terms and
  concepts.

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Role of the International Committee for the Red
Cross

• International Humanitarian Organization whose
  role is formally recognized in the Geneva
  Conventions.
• The ICRC must be permitted to visit EPWs to
  monitor their treatment.

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5. Islamic Traditions Relating to Medical Care of
Detainees
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Islamic Traditions Relating to Medical Care of
Detainees Prayer

• A fundamental Islamic religious expression
• Viewed as primary link between believer and God
• Considered therapeutic for spiritual and physical
  well being
• Able Muslims pray five times daily at appointed
  times
• Takes between 5-10 minutes per prayer

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Islamic Traditions Relating to Medical Care of
Detainees Fasting (Ramadan)

• Fasting 29/30 days in the month of Ramadan
• Required of able Muslims
• Adherent abstains from food, drink, sexual
  relations from dawn until sunset
• Viewed as an exercise in self-purification to get
  closer to God

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Islamic Traditions Relating to Medical Care of
Detainees Reciting The Koran (Quran)

• Reciting the Quran is
• an extremely meritorious act
• a source of piety and therapy
• a calming and uplifting gift when done for the
  very ill

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Islamic Traditions Relating to Medical Care of
Detainees Dietary Prohibitions

• Pork and its by-products and anything that has
  come into contact with pork
• Meat of animals not slaughtered according to
  Islamic regulation
• Alcohol as well as drugs and medicines that
  contain alcohol

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Islamic Traditions Relating to Medical Care of
Detainees Modesty

• Requirement to cover certain body parts in
  public, especially in front of strangers
• For women this may include the whole body except
  the face, hands, feet
• Physicians should treat patients of the same sex

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This concludes the section on Islamic Traditions
Relating to Medical Care of Detainees
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6. References
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References
The major reference for a glossary and
explanation of abbreviations and terms is AR
190-8, Enemy Prisoners Of War, Retained
Personnel, Civilian Internees And Other
Detainees. A copy of this regulation can be
seen at URL http//www.usapa.army.mil. Once at
this site, click on Search Publications (left
border) and perform a text search using the word
detainee. Once the search result page
appears, click on the .PDF version of AR
190-8. Main reference materials are on pages
34-37. The index is on page 38.
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References
Useful web sites 1. For Army Lessons
Learned on this topic, go to http//call.army.mil
/. Be sure to have your AKO sign-in name and
password.