Practice Relating to Rule 92. Mutilation and Medical, Scientific or Biological Experiments
The Military Manual (1993) of the Netherlands restates the prohibition of mutilation contained in Article 75 of the 1977 Additional Protocol I and Article 4 of the 1977 Additional Protocol II.
The manual further states: “It is prohibited to subject the wounded and sick to mutilation and – even with their permission – to medical or scientific experiments.” The manual lists “unnecessary medical treatment, mutilation and medical or scientific experiments” among grave breaches of the 1949 Geneva Conventions and the 1977 Additional Protocol I.
The Military Manual (2005) of the Netherlands states:
0605. The wounded and sick may not be physically mutilated. Even with their consent, they must not be subjected to medical or scientific experiments. They have the right to refuse any intervention or operation. Even with the donor’s consent, the removal of tissue or organs for transplantation is prohibited. Exceptions to this are for blood transfusions and skin transplants. These are permitted only under a number of stringent conditions (they must be wholly voluntary and in accordance with generally accepted medical standards). A medical register must be kept of blood transfusions and skin transplants.
0606. Care must be taken to keep medical records for all medical treatment carried out on prisoners of war, internees and persons otherwise deprived of their freedom. Such records should be available for examination by the protecting power …
The manual further states:
0708. Fundamental guarantees
What is the right to protection of persons not deemed prisoners of war? Primarily, these are civilians who play a direct part in hostilities, but also to mercenaries … The use of violence against such persons is prohibited (no torture or mutilation …, etc.).
The manual also states that “it is prohibited to subject [prisoners of war] to medical or scientific experiments”.
In addition, the manual refers to mutilation as an act that is “prohibited at all times
(emphasis in original)
In its chapter on non-international armed conflict, the manual states:
1051. It is expressly prohibited to carry out the following acts against the civilian population or individual civilians, wounded, sick or prisoners:
- violence or assaults on the life, health or physical or mental wellbeing of persons, especially: killing/murder, cruel treatment, mutilation, torture or corporal punishments;
- threatening anyone with the above-mentioned acts or treatment.
1053. It is also prohibited to carry out physical mutilation, medical or scientific experiments, or to subject the categories of person listed in 1029 and 1031 above to any form of medical treatment inconsistent with generally accepted medical rules and procedures applied to free persons under similar medical circumstances.
Under the International Crimes Act (2003) of the Netherlands, it is a crime to commit “in the case of an international armed conflict, one of the grave breaches of the Geneva Conventions”, including “biological experiments”, as well as grave breaches of the 1977 Additional Protocol I, including:
any intentional act or omission which jeopardizes the health of anyone who is in the power of a party other than the party to which he or she belongs, and which:
(i) entails any medical treatment which is not necessary as a consequence of the state of health of the person concerned and is not consistent with generally accepted medical standards which would be applied under similar medical circumstances to persons who are nationals of the party responsible for the acts and who are in no way deprived of their liberty;
(ii) entails the carrying out on the person concerned, even with his consent, of physical mutilations;
(iii) entails the carrying out on the person concerned, even with his consent, of medical or scientific experiments; or
(iv) entails removing from the person concerned, even with his consent, tissue or organs for transplantation.
Likewise, it is a crime, whether in time of international or non-international armed conflict, to subject
persons who are in the power of an adverse party to the conflict to physical mutilation or medical or scientific experiments of any kind, which are neither justified by the medical, dental or hospital treatment of the person concerned nor carried out in his or her interest, and which cause death to or seriously endanger the health of such persons.
Furthermore, it is also a crime to commit, “in the case of an armed conflict not of an international character, a violation of Article 3 common to all of the Geneva Conventions”, including “mutilation” of persons taking no active part in the hostilities.