Related Rule
United States of America
Practice Relating to Rule 92. Mutilation and Medical, Scientific or Biological Experiments
The US Field Manual (1956) restates common Article 3 of the 1949 Geneva Conventions. 
United States, Field Manual 27-10, The Law of Land Warfare, US Department of the Army, 18 July 1956, as modified by Change No. 1, 15 July 1976, § 11.
The manual provides: “No prisoner of war may be subjected to physical mutilation or to medical or scientific experiments of any kind which are not justified by the medical, dental or hospital treatment of the prisoner concerned and carried out in his interest.” 
United States, Field Manual 27-10, The Law of Land Warfare, US Department of the Army, 18 July 1956, as modified by Change No. 1, 15 July 1976, § 89.
The manual also provides that wounded and sick members of the armed forces shall not be subjected to biological experiments. It further stipulates that medical or scientific experiments not necessitated by the medical treatment of a protected person are prohibited. 
United States, Field Manual 27-10, The Law of Land Warfare, US Department of the Army, 18 July 1956, as modified by Change No. 1, 15 July 1976, §§ 215 and 271.
The manual also provides that “biological experiments, wilfully causing great suffering or serious injury to body or health” are war crimes under the 1949 Geneva Conventions. 
United States, Field Manual 27-10, The Law of Land Warfare, US Department of the Army, 18 July 1956, as modified by Change No. 1, 15 July 1976, § 502.
The US Air Force Pamphlet (1976) refers to Articles 12 of the 1949 Geneva Convention I, 12 of the 1949 Geneva Convention II and 13 of the 1949 Geneva Convention III and prohibits medical, scientific and biological experiments. 
United States, Air Force Pamphlet 110-31, International Law – The Conduct of Armed Conflict and Air Operations, US Department of the Air Force, 1976, §§ 12–2(a), 13-2 and 14-4.
The US Instructor’s Guide (1985) provides that subjecting captured persons to medical or scientific experiments is a capital offence prohibited at any time and in any place whatsoever. 
United States, Instructor’s Guide – The Law of War, Headquarters Department of the Army, Washington, April 1985, p. 8.
The US Naval Handbook (1995) provides: “nor may [the wounded and sick] be subjected to any medical procedure not called for by their condition or inconsistent with accepted medical standards”. 
United States, The Commander’s Handbook on the Law of Naval Operations, NWP 1-14M/MCWP 5-2.1/COMDTPUB P5800.7, issued by the Department of the Navy, Office of the Chief of Naval Operations and Headquarters, US Marine Corps, and Department of Transportation, US Coast Guard, October 1995 (formerly NWP 9 (Rev. A)/FMFM 1-10, October 1989), § 11-4.
The US Manual for Military Commissions (2007), Part IV, Crimes and Elements, includes in the list of crimes triable by military commissions:
MUTILATING OR MAIMING.
a. Text. “Any person subject to this chapter who intentionally injures one or more protected persons by disfiguring the person or persons by any mutilation of the person or persons, or by permanently disabling any member, limb, or organ of the body of the person or persons, without any legitimate medical or dental purpose, shall be punished, if death results to one or more of the victims, by death or such other punishment as a military commission under this chapter may direct, and, if death does not result to any of the victims, by such punishment, other than death, as a military commission under this chapter may direct.”
b. Elements.
(1) The accused injured one or more persons by permanently disfiguring the person or persons or by permanently disabling any member, limb, or organ of the body of the person or persons;
(2) The accused intended to subject such person or persons to such mutilation;
(3) The person or persons was or were protected persons;
(4) The injuries were done with unlawful force and violence;
(5) The conduct caused the death or seriously damaged or endangered the physical health or mental health or physical appearance of such person or persons;
(6) The injuries did not have any legitimate medical or dental purpose; and
(7) The conduct took place in the context of and was associated with armed conflict.
c. Comment. It is mutilation or maiming to put out a person’s eye, to cut off a hand, foot, or finger, or to knock out a tooth, as these injuries destroy or disable those members or organs. It is also mutilation or maiming to injure an internal organ so as to seriously diminish the physical vigor of a person. Likewise, it is mutilation or maiming to cut off an ear or to scar a face with acid, as these injuries seriously disfigure a person. A disfigurement need not mutilate any entire member to come within the article, or be of any particular type, but must be such as to impair perceptibly and materially the victim’s comeliness. The disfigurement, diminishment of vigor, or destruction or disablement of any member or organ must be a serious injury of a substantially permanent nature. However, the offense is complete if such an injury is inflicted even though there is a possibility that the victim may eventually recover the use of the member or organ, or that the disfigurement may be cured by surgery.
d. Maximum Punishment. Death, if the death of any person occurs as a result of the mutilation or maiming. Otherwise, confinement for 20 years. 
United States, Manual for Military Commissions, published in implementation of the Military Commissions Act of 2006, 10 U.S.C. §§ 948a, et seq., 18 January 2007, Part IV, § 6(14), pp. IV-11 and IV-12.
The US Naval Handbook (2007) states that “the following acts are prohibited with respect to detainees in DOD [Department of Defense] custody and control: … mutilation”. 
United States, The Commander’s Handbook on the Law of Naval Operations, NWP 1-14M/MCWP 5-12.1/COMDTPUB P5800.7, issued by the Department of the Navy, Office of the Chief of Naval Operations and Headquarters, US Marine Corps, and Department of Homeland Security, US Coast Guard, July 2007, § 11.2.
The Handbook further states: “All detainees shall … not be subjected to medical or scientific experiments.” 
United States, The Commander’s Handbook on the Law of Naval Operations, NWP 1-14M/MCWP 5-12.1/COMDTPUB P5800.7, issued by the Department of the Navy, Office of the Chief of Naval Operations and Headquarters, US Marine Corps, and Department of Homeland Security, US Coast Guard, July 2007, § 11.2.
The Handbook also states: “The physical or mental well-being of enemy wounded and sick personnel may not be unjustifiably endangered, nor may the wounded and sick be subjected to any medical procedure not called for by their condition or inconsistent with accepted medical standards.” 
United States, The Commander’s Handbook on the Law of Naval Operations, NWP 1-14M/MCWP 5-12.1/COMDTPUB P5800.7, issued by the Department of the Navy, Office of the Chief of Naval Operations and Headquarters, US Marine Corps, and Department of Homeland Security, US Coast Guard, July 2007, § 11.6.
The US Manual on Detainee Operations (2008) states:
As a subset of military operations, detainee operations must comply with the law of war during all armed conflicts …
… Common Article 3 to the Geneva Conventions of 1949, as construed and applied by U.S. law, establishes minimum standards for the humane treatment of all persons detained by the United States, coalition, and allied forces. Common Article 3 prohibits at any time and in any place: “mutilation … ”. 
United States, Manual on Detainee Operations, Joint Chiefs of Staff, 30 May 2008, pp. I-2–I-3.
The manual further states:
DODD 2310.01E [Department of Defense Directive, The Department of Defense Detainee Program] requires that all DOD [Department of Defense] personnel and contractors will apply, without regard to a detainee’s legal status, at a minimum, the standards articulated in Common Article 3 to the Geneva Conventions of 1949 …
Article 3 Common to the Geneva Convention of 1949
In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each Party to the conflict shall be bound to apply, as a minimum, the following provisions:
(1) Persons taking no active part in the hostilities … shall in all circumstances be treated humanely …
To this end, the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons:
(a) … mutilation. 
United States, Manual on Detainee Operations, Joint Chiefs of Staff, 30 May 2008, pp. III-11–III-12.
The US Manual for Military Commissions (2010), Part IV, Crimes and Elements, includes in the list of crimes triable by military commissions:
MUTILATING OR MAIMING.
a. Text. “Any person subject to this chapter who intentionally injures one or more protected persons by disfiguring the person or persons by any mutilation of the person or persons, or by permanently disabling any member, limb, or organ of the body of the person or persons, without any legitimate medical or dental purpose, shall be punished, if death results to one or more of the victims, by death or such other punishment as a military commission under this chapter may direct, and, if death does not result to any of the victims, by such punishment, other than death, as a military commission under this chapter may direct.”
b. Elements.
(1) The accused injured one or more persons by permanently disfiguring the person or persons or by permanently disabling any member, limb, or organ of the body of the person or persons;
(2) The accused intended to subject such person or persons to such mutilation;
(3) The person or persons was or were protected persons;
(4) The injuries were done with unlawful force and violence;
(5) The conduct caused the death or seriously damaged or endangered the physical health or mental health or physical appearance of such person or persons;
(6) The injuries did not have any legitimate medical or dental purpose; and
(7) The conduct took place in the context of and was associated with hostilities.
c. Comment. It is mutilation or maiming to put out a person’s eye, to cut off a hand, foot, or finger, or to knock out a tooth, as these injuries destroy or disable those members or organs. It is also mutilation or maiming to injure an internal organ so as to seriously diminish the physical vigor of a person. Likewise, it is mutilation or maiming to cut off an ear or to scar a face with acid, as these injuries seriously disfigure a person. A disfigurement need not mutilate any entire member to come within the article, or be of any particular type, but must be such as to impair perceptibly and materially the victim’s comeliness. The disfigurement, diminishment of vigor, or destruction or disablement of any member or organ must be a serious injury of a substantially permanent nature. However, the offense is complete if such an injury is inflicted even though there is a possibility that the victim may eventually recover the use of the member or organ, or that the disfigurement may be cured by surgery.
d. Maximum Punishment. Death, if the death of any person occurs as a result of the mutilation or maiming. Otherwise, confinement for 20 years. 
United States, Manual for Military Commissions, published in implementation of Chapter 47A of Title 10, United States Code, as amended by the Military Commissions Act of 2009, 10 U.S.C, §§ 948a, et seq., 27 April 2010, § 5(14), p. IV-12.
Under the US War Crimes Act (1996), grave breaches of the 1949 Geneva Conventions are war crimes. 
United States, War Crimes Act, 1996, Section 2441(c).
The US War Crimes Act (1996), as amended by the US Military Commissions Act (2006), includes in its definition of war crimes any conduct constituting a grave breach of common Article 3 of the 1949 Geneva Conventions:
§ 2441. War crimes
(c) Definition.— As used in this section the term “war crime” means any conduct—
(3) which constitutes a grave breach of common Article 3 (as defined in subsection (d)) when committed in the context of and in association with an armed conflict not of an international character; or
(d) Common Article 3 Violations.—
(1) Prohibited conduct.— In subsection (c)(3), the term “grave breach of common Article 3” means any conduct (such conduct constituting a grave breach of common Article 3 of the international conventions done at Geneva August 12, 1949), as follows:
(C) Performing biological experiments.—The act of a person who subjects, or conspires or attempts to subject, one or more persons within his custody or physical control to biological experiments without a legitimate medical or dental purpose and in so doing endangers the body or health of such person or persons.
(E) Mutilation or maiming.—The act of a person who intentionally injures, or conspires or attempts to injure, or injures whether intentionally or unintentionally in the course of committing any other offense under this subsection, one or more persons taking no active part in the hostilities, including those placed out of combat by sickness, wounds, detention, or any other cause, by disfiguring the person or persons by any mutilation thereof or by permanently disabling any member, limb, or organ of his body, without any legitimate medical or dental purpose.
(3) Inapplicability of certain provisions with respect to collateral damage or incident of lawful attack.—The intent specified for the conduct stated in subparagraph … (E) o[f] paragraph (1) precludes the applicability of those subparagraphs to an offense under subsection (a) by reasons of subsection (c)(3) with respect to—
(A) collateral damage; or
(B) death, damage, or injury incident to a lawful attack.
(5) Definition of grave breaches.—The definitions in this subsection are intended only to define the grave breaches of common Article 3 and not the full scope of United States obligations under that Article. 
United States, War Crimes Act, 1996, 18 United States Code Sec. 2441, as amended by Military Commissions Act, 17 October 2006, § 2441 (c)(3) and (d).
In July 2006, the US Deputy Secretary of Defense issued a memorandum to senior military and civilian personnel in the Department of Defense (DoD) on the subject of common Article 3 of the 1949 Geneva Conventions and its application to the treatment of detainees:
The Supreme Court Hamdan v. Rumsfeld, 548 US 557, 29 June 2006] has determined that Common Article 3 to the Geneva Conventions of 1949 applies as a matter of law to the conflict with Al Qaeda. The Court found that the military commissions as constituted by the Department of Defense are not consistent with Common Article 3.
It is my understanding that, aside from the military commission procedures, existing DoD orders, policies, directives, execute orders, and doctrine comply with the standards of Common Article 3 … In addition, you will recall the President’s prior directive [President George W. Bush, Memorandum, Humane Treatment of Al Qaeda and Taliban Detainees, 7 February 2002] that “the United States Armed Forces shall continue to treat detainees humanely,” humane treatment being the overarching requirement of Common Article 3.
You will ensure that all DoD personnel adhere to these standards. In this regard, I request that you promptly review all relevant directives, regulations, policies, practices and procedures under your purview to ensure that they comply with the standards of Common Article 3. 
United States, Department of Defense, Deputy Secretary of Defense, Gordon England, Memorandum, Application of Common Article 3 of the Geneva Conventions to the Treatment of Detainees in the Department of Defense, 7 July 2006.
The US Military Commissions Act (2006), passed by Congress following the Supreme Court’s decision in Hamdan v. Rumsfeld in 2006, amends Title 10 of the United States Code as follows:
§ 950v. Crimes triable by military commissions
“ …
“(b) OFFENSES.—The following offenses shall be triable by military commission under this chapter at any time without limitation:
“ …
“(14) MUTILATING OR MAIMING.—Any person subject to this chapter who intentionally injures one or more protected persons by disfiguring the person or persons by any mutilation of the person or persons, or by permanently disabling any member, limb, or organ of the body of the person or persons, without any legitimate medical or dental purpose, shall be punished, if death results to one or more of the victims, by death or such other punishment as a military commission under this chapter may direct, and, if death does not result to any of the victims, by such punishment, other than death, as a military commission under this chapter may direct. 
United States, Military Commissions Act, 2006, Public Law 109-366, Chapter 47A of Title 10 of the United States Code, 17 October 2006, p. 120 Stat. 2628, § 950v(b)(14).
The Military Commissions Act further states:
Sec. 6. Implementation of Treaty Obligations
“ …
“(b) REVISION TO WAR CRIMES OFFENSE UNDER FEDERAL CRIMINAL CODE.—
“(1) IN GENERAL.—Section 2441 of title 18, United States Code, is amended—
“ …
“(B) by adding at the end the following new subsection:
“(d) COMMON ARTICLE 3 VIOLATIONS.—
“(1) PROHIBITED CONDUCT.—In subsection (c)(3), the term “grave breach of common Article 3” means any conduct (such conduct constituting a grave breach of common Article 3 of the international conventions done at Geneva August 12, 1949), as follows:
“(C) PERFORMING BIOLOGICAL EXPERIMENTS.—The act of a person who subjects, or conspires or attempts to subject, one or more persons within his custody or physical control to biological experiments without a legitimate medical or dental purpose and in so doing endangers the body or health of such person or persons.
“ …
“(E) MUTILATION OR MAIMING.—The act of a person who intentionally injures, or conspires or attempts to injure, or injures whether intentionally or unintentionally in the course of committing any other offense under this subsection, one or more persons taking no active part in the hostilities, including those placed out of combat by sickness, wounds, detention, or any other cause, by disfiguring the person or persons by any mutilation thereof or by permanently disabling any member, limb, or organ of his body, without any legitimate medical or dental purpose. 
United States, Military Commissions Act, 2006, Public Law 109-366, Chapter 47A of Title 10 of the United States Code, 17 October 2006, pp. 120 Stat. 2633 and 2634, Sec. 6(b)(1)(B)(d)(1)(C) and (E).
In July 2007, and in accordance with section 6(a)(3) of the Military Commissions Act (2006), the US President issued an Executive Order which stated that a “Program of Detention and Interrogation Operated by the Central Intelligence Agency” complied with US obligations under common Article 3 of the 1949 Geneva Conventions. The Executive Order stated in part:
Sec. 3. Compliance of a Central Intelligence Agency Detention and Interrogation Program with Common Article 3.
(a) Pursuant to the authority of the President under the Constitution and the laws of the United States, including the Military Commissions Act of 2006, this order interprets the meaning and application of the text of Common Article 3 with respect to certain detentions and interrogations, and shall be treated as authoritative for all purposes as a matter of United States law, including satisfaction of the international obligations of the United States. I hereby determine that Common Article 3 shall apply to a program of detention and interrogation operated by the Central Intelligence Agency as set forth in this section. The requirements set forth in this section shall be applied with respect to detainees in such program without adverse distinction as to their race, color, religion or faith, sex, birth, or wealth.
(b) I hereby determine that a program of detention and interrogation approved by the Director of the Central Intelligence Agency fully complies with the obligations of the United States under Common Article 3, provided that:
(i) the conditions of confinement and interrogation practices of the program do not include:
(B) any of the acts prohibited by section 2441(d) of title 18, United States Code, including murder, torture, cruel or inhuman treatment, mutilation or maiming, intentionally causing serious bodily injury, rape, sexual assault or abuse, taking of hostages, or performing of biological experiments;
(C) other acts of violence serious enough to be considered comparable to murder, torture, mutilation, and cruel or inhuman treatment, as defined in section 2441(d) of title 18, United States Code. 
United States, Executive Order 13440, Interpretation of the Geneva Conventions Common Article 3 as Applied to a Program of Detention and Interrogation Operated by the Central Intelligence Agency, 20 July 2007.
In 2009, the US President issued Executive Order 13491, Ensuring Lawful Interrogations, which stated:
By the authority vested in me by the Constitution and the laws of the United States of America, in order to improve the effectiveness of human intelligence-gathering, to promote the safe, lawful, and humane treatment of individuals in United States custody and of United States personnel who are detained in armed conflicts, to ensure compliance with the treaty obligations of the United States, including the [1949] Geneva Conventions, and to take care that the laws of the United States are faithfully executed, I hereby order as follows:
Section 1. Revocation. Executive Order 13440 of July 20, 2007, is revoked. All executive directives, orders, and regulations inconsistent with this order, including but not limited to those issued to or by the Central Intelligence Agency (CIA) from September 11, 2001, to January 20, 2009, concerning detention or the interrogation of detained individuals, are revoked to the extent of their inconsistency with this order. Heads of departments and agencies shall take all necessary steps to ensure that all directives, orders, and regulations of their respective departments or agencies are consistent with this order.
Sec. 2. Definitions. As used in this order:
(f) … “mutilation” … refer[s] to, and ha[s] the same meaning as, [the] same term[] in Common Article 3 [to the 1949 Geneva Conventions].
Sec. 3. Standards and Practices for Interrogation of Individuals in the Custody or Control of the United States in Armed Conflicts.
(a) Common Article 3 Standards as a Minimum Baseline. Consistent with the requirements of the Federal torture statute, 18 U.S.C. 2340–2340A, section 1003 of the Detainee Treatment Act of 2005, 42 U.S.C. 2000dd, the Convention Against Torture, Common Article 3, and other laws regulating the treatment and interrogation of individuals detained in any armed conflict, such persons shall … not be subjected to … mutilation, … , whenever such individuals are in the custody or under the effective control of an officer, employee, or other agent of the United States Government or detained within a facility owned, operated, or controlled by a department or agency of the United States. 
United States, Executive Order 13491, Ensuring Lawful Interrogations, 2009, Sections 1, 2(f) and 3(a).
The US Military Commissions Act (2009) amends Chapter 47A of Title 10 of the United States Code as follows:
§ 950t. Crimes triable by military commission
“The following offenses shall be triable by military commission under this chapter at any time without limitation:
“ …
“(14) MUTILATING OR MAIMING.—Any person subject to this chapter who intentionally injures one or more protected persons by disfiguring the person or persons by any mutilation of the person or persons, or by permanently disabling any member, limb, or organ of the body of the person or persons, without any legitimate medical or dental purpose, shall be punished, if death results to one or more of the victims, by death or such other punishment as a military commission under this chapter may direct, and, if death does not result to any of the victims, by such punishment, other than death, as a military commission under this chapter may direct. 
United States, Military Commissions Act, 2009, § 950t(14).
In its judgement in the Milch case in 1947, the US Military Tribunal at Nuremberg found the accused guilty of conducting medical experiments on prisoners of war and inhabitants of occupied territories without their consent. 
United States, Military Tribunal at Nuremberg, Milch case, Judgement, 17 April 1947.
In the Brandt case (The Medical Trial) in 1947, the US Military Tribunal at Nuremberg convicted 16 persons of carrying out medical experiments on prisoners of war and civilians which amounted to cruel and inhuman treatment and which were war crimes and crimes against humanity. The Tribunal found the accused guilty of committing medical experiments which included but were not limited to:
High Altitude Experiments, Freezing Experiments, Malaria Experiments, Mustard Gas Experiments, Ravensbrueck Experiments Concerning Sulphanilamide and Other Drugs; Bone, Muscle, and Nerve Regeneration and Bone Transplantation, Sea-Water Experiments, Epidemic Jaundice, Sterilization Experiments, Typhus (Fleckfieber) and Related Experiments, Poison Experiments, Incendiary Bomb Experiments, Jewish Skeleton Collection.
The Tribunal also held:
Obviously all of these experiments involving brutalities, tortures, disabling injuries and death were performed in complete disregard of international conventions, the laws and customs of war, the general principle of criminal law as derived from the criminal laws of all civilized nations … Manifestly inhuman experiments under such conditions are contrary to “the principles of the laws of nations as they result from the usages established among civilized peoples, from the laws of humanity, and from the dictates of public conscience.” 
United States, Military Tribunal at Nuremberg, Brandt case (The Medical Trial), Judgement, 20 August 1947.
In its judgement in the Schultz case in 1969, the US Court of Military Appeals identified maiming among “crimes universally recognized as properly punishable under the law of war”. 
United States, Court of Military Appeals, Schultz case, Judgement, 7 March 1969.
In 1987, the Deputy Legal Adviser of the US Department of State affirmed:
We support the principle reflected in article 11 [of the 1977 Additional Protocol I] that the physical or mental health and integrity of persons under the control of a party to the conflict not be endangered by any unjustified act or omission and not be subjected to 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. 
United States, Remarks of Michael J. Matheson, Deputy Legal Adviser, US Department of State, The Sixth Annual American Red Cross-Washington College of Law Conference on International Humanitarian Law: A Workshop on Customary International Law and the 1977 Protocols Additional to the 1949 Geneva Conventions, American University Journal of International Law and Policy, Vol. 2, 1987, p. 423.
In 1992, in reports submitted pursuant to paragraph 5 of UN Security Council Resolution 771 (1992) on grave breaches of the 1949 Geneva Convention IV committed in the former Yugoslavia, the United States described acts of mutilation perpetrated by the parties to the conflict. 
United States, Former Yugoslavia: Grave Breaches of the Fourth Geneva Convention (Third Submission), annexed to Letter dated 5 November 1992 to the UN Secretary-General, UN Doc. S/24791, 10 November 1992, pp. 8 and 13; Former Yugoslavia: Grave Breaches of the Fourth Geneva Convention (Fourth Submission), annexed to Letter dated 7 December 1992 to the UN Secretary-General, UN Doc. S/24918, 8 December 1992, p. 12.
According to the Report on US Practice, “Articles 4, 5 and 6 [of the 1977 Additional Protocol II] reflect general US policy on treatment of persons in the power of an adverse party in armed conflicts governed by common Article 3” of the 1949 Geneva Conventions. The report also notes: “It is the opinio juris of the US that persons detained in connection with an internal armed conflict are entitled to humane treatment as specified in Articles 4, 5 and 6 [of the 1977 Additional Protocol II].” 
Report on US Practice, 1997, Chapter 5.3.
In a concurrent resolution adopted in 2000, the US Congress expressed its sense concerning the war crimes committed by the Japanese military during the Second World War, in particular experiments conducted on living prisoners of war. The resolution asked the Government of Japan to apologise for these crimes and pay immediate reparations to the victims. 
United States, House of Representatives (Senate concurring), Concurrent Resolution, H.CON. RES. 357, 106th Congress, 2nd Session, 19 June 2000.