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Medical Ethics and Detainee Operations

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Medical Ethics and Legal Considerations in Detainee Operations Medical Ethics is linked to the Just War Theory JUST WAR THEORY Jus ad bellum- The Justice of war. – PowerPoint PPT presentation

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Title: Medical Ethics and Detainee Operations


1
Medical Ethics and Legal Considerations in
Detainee Operations
2
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.
Navigation Note All menu topics open into a new
browser window. To close the new Browser
Window, click on the close button X in the
upper right corner of the Window.
3
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

4
1. The Just War Theory
5
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

8
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
10
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
11
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
12
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

13
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

14
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

15
JUS IN BELLO
  • By What Means-
  • -Indiscriminate Weapons
  • -Unnecessary Pain and Suffering

16
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.

18
Protected Persons
  • Non Combatants
  • Non-Aggressive Civilians
  • The Wounded, Sick or Dead
  • (Enemy) Prisoners of War
  • Parachutists Escaping Craft
  • Medical Personnel

19
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)
20
GWS Medical Emblems
  • Red Cross on
    White Background
  • Red Crescent onWhite background
  • Red Star of David on White Background

21
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.

26
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

27
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).

28
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.

29
2. Enemy Prisoner(s) of War (EPWs)
30
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)
31
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)

32
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.

33
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.

35
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

36
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

37
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

39
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.

45
3. War Crimes
46
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.

47
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.

48
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

49
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.

50
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)

51
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.

52
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.

53
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

54
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.

56
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.

57
4. Medical Rules of Care (ROC)
58
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).

59
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.

60
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.

61
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.

62
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

63
Evacuation Categories
  • 1. Urgent Move right away.
  • 2. Priority Move within a designated
    period of time.
  • 3. Routine Move whenever possible.

64
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.

65
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

66
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.

67
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.

68
5. Islamic Traditions Relating to Medical Care of
Detainees
69
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

70
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

71
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

72
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

73
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

74
This concludes the section on Islamic Traditions
Relating to Medical Care of Detainees
75
6. References
76
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.
77
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.
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