Rule 26. Punishing a person for performing medical duties compatible with medical ethics or compelling a person engaged in medical activities to perform acts contrary to medical ethics is prohibited.
State practice establishes this rule as a norm of customary international law applicable in both international and non-international armed conflicts.
This rule is codified in Article 16 of Additional Protocol I and Article 10 of Additional Protocol II, to which no reservations have been made.[1]
The rule is also set forth in military manuals, including manuals which are applicable in or have been applied in non-international armed conflicts.[2] It is supported by official statements.[3]
Violations of this rule inherently constitute violations of the right of the wounded and sick to protection and care (see Rules 110–111) and also of the obligation to respect and protect medical personnel (see Rule 25).
No official contrary practice was found with respect to either international or non-international armed conflicts. Alleged prosecution of medical personnel has been condemned by States as a violation of international humanitarian law.[4] It has also been condemned by the United Nations.[5] This prohibition is further endorsed by the Council of Europe and the World Medical Association.[6]
In addition to acts contrary to “medical ethics”, both Article 16 of Additional Protocol I and Article 10 of Additional Protocol II prohibit compelling persons engaged in medical activities to perform acts contrary to “other medical rules designed for the benefit of the wounded and sick”.[7] No further specification was found in State practice as to the content of these other rules, over and above the rules of medical ethics. While this wording was added at the Diplomatic Conference leading to the adoption of the Additional Protocols, “no attempt was made to list these various rules”.[8] The spirit of this provision seems to be aimed at a prohibition of “compulsion which might be exerted on medical personnel to conduct themselves in a way that is contrary to their patients’ interests”.[9] In that respect, this rule is a corollary of the fundamental guarantee not to subject anyone to mutilation, medical or scientific experiments or any other medical procedure not indicated by his or her state of health and not consistent with generally accepted medical standards (see Rule 92).
At the Diplomatic Conference leading to the adoption of the Additional Protocols, Cuba, Denmark, France, the Netherlands and Norway opposed the possibility that under national law medical personnel may be obliged to report wounds caused by firearms during armed conflict.[10] In the end, however, neither Additional Protocol I nor Additional Protocol II prohibits this. So, while no one may be punished for providing medical treatment, it remains possible to impose a sanction on persons for withholding information in cases in which they are legally obliged to divulge such information. While some States have adopted a system of complete confidentiality with respect to medical information contained in a medical file, as well as the reporting of particular wounds, there is no rule in international law which prohibits a State from adopting legislation making it compulsory to provide information, including, for example, concerning communicable diseases, and a number of States have done so.[11]
[1] Additional Protocol I, Article 16 (adopted by consensus) (cited in Vol. II, Ch. 7, § 232); Additional Protocol II, Article 10 (adopted by consensus) (ibid., § 233).
[2] See, e.g., the military manuals of Argentina (ibid., § 235), Australia (ibid., § 236), Canada (ibid., § 237), Netherlands (ibid., § 238), New Zealand (ibid., § 239), Senegal (ibid., § 240), Spain (ibid., § 241) and Yugoslavia (ibid., § 242).
[3] See, e.g., the statement of the United Kingdom (ibid., § 247).
[4] See, e.g., the statement of the United States (ibid., § 249).
[5] See, e.g., UN General Assembly, Res. 44/165 (ibid., § 250); UN Commission on Human Rights, Res. 1990/77 (ibid., § 251).
[6] Council of Europe, Parliamentary Assembly, Res. 904 (ibid., § 253); World Medical Association, Rules Governing the Care of the Sick and Wounded, Particularly in Time of Conflict (ibid., § 257).
[7] Additional Protocol I, Article 16 (adopted by consensus) (ibid., § 232); Additional Protocol II, Article 10 (adopted by consensus) (ibid., § 233).
[8] Yves Sandoz, Christophe Swinarski, Bruno Zimmermann (eds.), Commentary on the Additional Protocols, ICRC, Geneva, 1987, § 669. An example of such a rule could be the prohibition of doctors cooperating in medical procedures undertaken by personnel who are not officially qualified such as, e.g., medical students, ibid., § 4693.
[9] Ibid., § 669.
[10] See the practice of Cuba (cited in Vol. II, Ch. 7, § 270), Denmark (ibid., §§ 271–272), France (ibid., § 273), Netherlands (ibid., § 274) and Norway (ibid., § 275).
[11] See, e.g., Yugoslavia, YPA Military Manual, referring to Yugoslav regulations (ibid., § 266) and Philippines, Executive Order 212 (ibid., § 276).