Rule 92. Mutilation and Medical, Scientific or Biological ExperimentsRule 92. Mutilation, medical or scientific experiments or any other medical procedure not indicated by the state of health of the person concerned and not consistent with generally accepted medical standards are prohibited.
SummaryState practice establishes this rule as a norm of customary international law applicable in both international and non-international armed conflicts.
International and non-international armed conflictsThe prohibition of mutilation was already recognized in the Lieber Code. Common Article 3 of the Geneva Conventions prohibits “mutilation” of civilians and persons hors de combat. Mutilation is also prohibited by specific provisions of the Third and Fourth Geneva Conventions. In addition, the prohibition of mutilation is recognized as a fundamental guarantee for civilians and persons hors de combat by Additional Protocols I and II. Mutilation constitutes a war crime in both international and non-international armed conflicts under the Statute of the International Criminal Court. It is also recognized as a war crime in non-international armed conflicts under the Statutes of the International Criminal Tribunal for Rwanda and of the Special Court for Sierra Leone.
“Biological experiments” are prohibited by the First and Second Geneva Conventions, while the Third and Fourth Geneva Conventions prohibit “medical or scientific experiments” not justified by the medical treatment of the person concerned. Conducting “biological experiments” on persons protected under the Geneva Conventions is a grave breach and a war crime under the Statutes of the International Criminal Court and of the International Criminal Tribunal for the former Yugoslavia. Additional Protocol I prohibits “medical or scientific experiments”. In the Brandt (The Medical Trial) case in 1947, the US Military Tribunal at Nuremberg convicted 16 persons of carrying out medical experiments on prisoners of war and civilians.
Additional Protocol I also prohibits “any medical procedure which is not indicated by the state of health of the person concerned and which is not consistent with generally accepted medical standards” and makes it a grave breach of the Protocol if the medical procedure undertaken seriously endangers the physical or mental health or integrity of the person concerned. Additional Protocol II contains the same prohibition with respect to persons deprived of their liberty for reasons related to the armed conflict.
Under the Statute of the International Criminal Court, subjecting persons who are in the power of another party to the conflict to “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 or seriously endanger the health of such person or persons” constitutes a war crime in both international and non-international armed conflicts.
Numerous military manuals specify the prohibition of physical mutilation, medical or scientific experiments or any other medical procedure not indicated by the state of health of the patient and not consistent with generally accepted medical standards. The prohibition is also found extensively in national legislation.
Most international instruments, official statements and case-law relating to war crimes refer to this prohibition without making any specific mention of a possible exception if the detained person consented to the procedure. The issue was discussed during the negotiation of the Elements of Crimes for the International Criminal Court. The conference came to the conclusion that the prohibition was absolute, as a detained person cannot validly give consent.
The prohibition of mutilation is not expressed in such terms in human rights treaties but would be covered by the prohibition of torture and cruel, inhuman or degrading treatment or punishment, from which no derogation is permissible. As regards the prohibition of medical or scientific experiments, the International Covenant on Civil and Political Rights expressly includes this in its non-derogable Article 7, which prohibits torture and cruel, inhuman or degrading treatment or punishment. The UN Human Rights Committee, in its General Comment on Article 7, specifies that special protection against such experiments is necessary in the case of persons not capable of giving valid consent, in particular those under any form of detention or imprisonment. The Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment, adopted by consensus by the UN General Assembly, prohibits medical or scientific experimentation which may be detrimental to health, even with the detainee’s consent. The European Court of Human Rights has held that those medical measures taken in relation to a detainee that are dictated by therapeutic necessity cannot be regarded as inhuman or degrading.