Practice Relating to Rule 26. Medical Activities
Section B. Respect for medical secrecy
Additional Protocol I
Article 16(3) of the 1977 Additional Protocol I provides:
No person engaged in medical activities shall be compelled to give to anyone belonging either to an adverse Party, or to his own Party except as required by the law of the latter Party, any information concerning the wounded and sick who are, or who have been, under his care, if such information would, in his opinion, prove harmful to the patients concerned or to their families. Regulations for the compulsory notification of communicable diseases shall, however, be respected.
Additional Protocol II
Article 10 of the 1977 Additional Protocol II provides:
3. The professional obligations of persons engaged in medical activities regarding information which they may acquire concerning the wounded and sick under their care shall, subject to national law, be respected.
4. Subject to national law, no person engaged in medical activities may be penalized in any way for refusing or failing to give information concerning the wounded and sick who are, or who have been, under his care.
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Cameroon
Cameroon’s Instructor’s Manual (2006) states:
Protection of Non-Combatants in Combat Zones
Medical and religious personnel must fulfil their tasks under the special protection of the belligerents; amongst other things, they must provide assistance in the various combat zones and when circumstances require.
1. Medical Personnel
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It is … prohibited to compel the medical personnel to give information regarding the wounded and sick whom they care for: information regarding the activity, relations, location or existence of the wounded.
Canada
Canada’s LOAC Manual (1999) states, with respect to non-international armed conflict in particular: “The professional obligations of medical personnel regarding information they acquire concerning the wounded and sick under their care must be respected, subject to the requirements of national law.”
Canada’s LOAC Manual (2001) states in its chapter on non-international armed conflicts: “The professional obligations of medical personnel must be respected with regard to information concerning those under their care. This is subject to the requirements of national law.”
Chad
Chad’s Instructor’s Manual (2006) states that “persons carrying out a medical activity may not be compelled to … give information about the wounded if that information may be prejudicial to the wounded persons concerned”.
Guinea
Guinea’s Code of Medical Ethics (1996) states:
Article 4. – Professional secrecy established in the interest of patients is required for all Physicians within the conditions laid down by the law. The secrecy covers everything that has come to the knowledge of the Physician in the exercise of his profession; that is to say not only what has been confided in him, but also what he has seen, heard or understood.
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Article 44. – For each patient, the Physician shall keep a personal medical record; this record is confidential and contains regularly updated information required for decisions of diagnostic and therapeutic character. In all cases, these documents are kept under the responsibility of the Physician.
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Article 71. – The Physician must protect medical documents concerning the people he has treated or examined against any indiscretion, whatever is the documents’ content and form.
Mexico
Mexico’s Army and Air Force Manual (2009), in a section on the 1977 Additional Protocol I, states that medical personnel “are not required to provide information on the people they treat.”
Peru
Peru’s IHL Manual (2004) states:
Medical personnel providing medical services in armed conflicts have a duty to respect the principles of medical ethics as in peacetime. They must behave in the following way:
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(3) respect the secrets confided in them.
Medical personnel must not be compelled to give information concerning the wounded and sick in their care.
This refers to information that would, in their opinion, prove harmful to the patients concerned or to their families. This right implies a confidential relationship between patients and those treating them.
There are, however, exceptions to this rule. Regulations for the compulsory notification of communicable diseases must be respected, taking into account the general interest.
Peru’s IHL and Human Rights Manual (2010) states:
Medical personnel must not be compelled to give information concerning the wounded and sick in their care.
This principle refers to information that would, in their opinion, prove harmful to the wounded and sick or to their families. This right implies a confidential relationship between patients and those tasked with treating them.
There are, however, exceptions to this rule. Regulations for the compulsory notification of communicable diseases must be respected, taking into account the general interest.
Medical personnel providing medical services in armed conflicts have a duty to respect the principles of medical ethics as they would in peacetime. They must behave in the following way:
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(3) Respect the secrets confided in them.
Russian Federation
With regard to internal armed conflicts, the Russian Federation’s Regulations on the Application of IHL (2001) states:
Medical personnel may give information concerning the wounded and sick which constitutes a medical secret only in cases provided for by the laws of the Russian Federation concerning the citizens’ health protection.
Spain
Spain’s LOAC Manual (1996) states, with reference to Article 16 of the 1977 Additional Protocol I and Article 10 of the 1977 Additional Protocol II, that medical personnel have the following right:
Prohibition on being compelled to provide information concerning the wounded and sick in their care. This rule is absolute with respect to the relationship between medical personnel and enemy wounded or sick, but when the wounded or the sick are of their own side, they are subject to national law. A general exception is related to the compulsory provision of information regarding communicable diseases.
Spain’s LOAC Manual (2007) states:
Persons engaged in medical activities must not be compelled to give information concerning the wounded and sick under their care. This rule is absolute in the case of medical personnel treating enemy wounded and sick. Medical personnel treating their own wounded and sick must, however, comply with domestic legislation. A general exception to this rule is the compulsory notification of communicable diseases.
- They are not required to provide information to the occupying army.
- They are not required to provide information to their own party, except:
- as required under domestic legislation
- in the case of communicable diseases.
United Kingdom of Great Britain and Northern Ireland
The UK LOAC Manual (2004) states:
[A] a person engaged in medical activities [may not] be compelled “to give to anyone belonging either to an adverse Party, or to his own Party except as required by the law of the latter Party, any information concerning the wounded and sick who are, or who have been, under his care, if such information would, in his opinion, prove harmful to the patients concerned or to their families.” However, regulations for the compulsory notification of communicable diseases must be respected.
“Under no circumstances shall any person be punished for having carried out medical activities compatible with medical ethics, regardless of the person benefiting therefrom.” This general principle is expanded in three areas.
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b. The professional obligations of persons engaged in medical activities regarding information which they may acquire concerning the wounded and sick under their care, shall, subject to national law, be respected.
c. Subject to national law, no person engaged in medical activities may be penalized in any way for refusing or failing to give information concerning the wounded and sick who are, or have been, under his care.
Yugoslavia, Socialist Federal Republic of
The Socialist Federal Republic of Yugoslavia’s Military Manual (1988) notes: “Yugoslav regulations establish an obligation for medical personnel to provide to competent authorities data on wounded, sick and shipwrecked to whom they have provided assistance.”
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Denmark
Denmark’s Military Criminal Code (1973), as amended in 1978, provides:
Any person who uses war instruments or procedures the application of which violates an international agreement entered into by Denmark or the general rules of international law, shall be liable to the same penalty [i.e. a fine, lenient imprisonment or up to 12 years’ imprisonment].
Any person who deliberately uses war means [“krigsmiddel”] or procedures the application of which violates an international agreement entered into by Denmark or international customary law, shall be liable to the same penalty [i.e. imprisonment up to life imprisonment].
Ireland
Ireland’s Geneva Conventions Act (1962), as amended in 1998, provides that any “minor breach” of the 1977 Additional Protocol I, including violations of Article 16(3), as well as any “contravention” of the 1977 Additional Protocol II, including violations of Article 10, are punishable offences.
Norway
Norway’s Military Penal Code (1902), as amended in 1981, provides:
Anyone who contravenes or is accessory to the contravention of provisions relating to the protection of persons or property laid down in … the two additional protocols to [the 1949 Geneva] Conventions … is liable to imprisonment.
Sri Lanka
Sri Lanka’s Prisons Ordinance (1878), as amended to 2005, states:
PART II
DUTIES OF OFFICERS
MEDICAL OFFICER
18. (1) It shall be lawful for the Minister after consulting the Minister charged with the subject and function of Health to make rules as to each of the following matters:–
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(b) the records to be made respecting sick prisoners;
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(2) The medical officer shall obey all rules made Medical under subsection (1).
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PART VIII
HEALTH OF PRISONERS
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67. All recommendations given by the medical officer in relation to any prisoner, with the exception of orders for the supply of medicines or directions relating to such matters as are carried into effect by the medical officer himself or under his superintendence, shall be entered day by day in his journal, which shall have a separate column, wherein entries shall be made by the Superintendent stating in respect of each recommendation the fact of its having been or not having been complied with, accompanied by such observations, if any, as the Superintendent thinks fit to make, and the date of the entry.
Sri Lanka’s Emergency Regulations (2005), as amended to 2008, states:
Any … [person] who renders any medical assistance to, or from whom medical assistance is sought by, an injured person who appears to have received such injury consequent to the use of a firearm, bomb, explosive or other lethal substance or device shall record the particulars of the identity of such injured person, the details of the injury and wherever possible the circumstances under which it had been caused and forthwith furnish such information to the nearest Police station.
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Colombia
In 2007, in the Constitutional Case No. C-291/07, the Plenary Chamber of Colombia’s Constitutional Court stated that the obligation in the 1977 Additional Protocol II to respect medical duties “has attained customary status, mainly due to its impact on State practice and on conflicts in the last decades”.
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Cuba
At the CDDH, Cuba stated: “The performer of a medical action was free to decide whether or not to give information to a third party.”
Denmark
At the CDDH, Denmark stated: “The principle of non-denunciation of the wounded and sick had already been established in 1959 by the WMA [World Medical Association], the International Committee of Military Medicine and Pharmacy and the ICRC.”
At the CDDH, Denmark supported the view of the Netherlands (see infra), stating: “The provision of information by medical personnel should not be made compulsory to the detriment of underground movements.”
France
At the CDDH, France stated: “Physicians, who were also citizens, were deeply distressed by the obligation to report wounds caused by firearms in time of war. That did not apply to the obligation to report communicable diseases.”
Netherlands
In the discussion at the CDDH on a proposal by Brazil, which purported to add “wounds by firearms, or other evidence related to a criminal offence” as a further exception, the Netherlands stated: “Physicians should not be obliged to denounce a member of a resistance movement who had wounded a member of the occupying forces.”
Norway
At the CDDH, Norway stated it “deeply regretted” the inclusion in Article 10 of the 1977 Additional Protocol II of the words “subject to national law” because it was unacceptable “that an international legal norm of the importance of [the 1977 Additional Protocol II] should be made subject to the national law of any country”. It added that “it was unlikely that Norway would be able to ratify [the 1977 Additional Protocol II] if the words ‘subject to national law’ were maintained”.
Philippines
An Executive Order of the Philippines of 1987 provides that all medical practitioners must report to the authorities any person treated by them for wounds that are subject to the provisions of the Criminal Code relative to physical injuries, including those they suspect to belong to the insurgent forces.
United States of America
In 1987, in submitting the 1977 Additional Protocol II to the US Senate for advice and consent to ratification, the US President recommended a reservation to Article 10 of the 1977 Additional Protocol II to make clear that military medical personnel could be required to disclose otherwise confidential information to appropriate authorities.
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Council of Europe Parliamentary Assembly
In a resolution adopted in 1988 on the protection of humanitarian medical missions, the Council of Europe Parliamentary Assembly stated: “No member of a medical staff may be compelled to provide information concerning the persons to whom he has given assistance with the exception of information concerning contagious diseases.”
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Third International Congress on the Neutrality of Medicine
The Third International Congress on the Neutrality of Medicine in 1968 recommended that the principle of non-denunciation should be categorically recognized.
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ICRC
To fulfil its task of disseminating IHL, the ICRC has delegates around the world teaching armed and security forces that:
No person engaged in medical activities (e.g. doctor, nurse) shall be compelled to give to anyone any information concerning the wounded and sick who are, or who have been, under his care, if such information would, in his opinion, prove harmful to the patients concerned or their families. However, information must be given when required:
a) by the law of the Party to which the person engaged in medical activities belongs;
b) by regulations for the compulsory notification of communicable diseases.
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International Law Association
A report on Medical Secrecy during Armed Conflict prepared for the Fifty-third Conference of the International Law Association in 1968 recommended the following:
The Geneva Conventions should be complemented by a provision to the effect that the parties to the conflict must strictly respect medical secrecy and may not require medical and para-medical personnel, military or civilian, to denounce their patients – combatants from the adverse party.
World Medical Association
The World Medical Association’s Regulations in Time of Armed Conflict established in 1983 state: “Medical confidentiality must be preserved by the physician in the practice of his profession.”
The World Medical Association’s Rules Governing the Care of the Sick and Wounded, Particularly in Time of Conflict state: “The fulfilment of medical duties and responsibilities shall in no circumstance be considered an offence. The physician must never be prosecuted for observing professional confidentiality.”
Medical Action Group (MAG)
In a report in 1989, MAG, a Philippine NGO, noted that a health worker was ordered to report all her treatment activities to the military or the vigilantes.