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Commentary - General protection of medical duties
    [p.1423] Article 10 -- General protection of medical duties


    [p.1424] Heading of the article: General protection of medical duties

    4678 It will be recalled that the Diplomatic Conference attached legal significance to the headings of the articles of the Protocols. In most cases the heading of the provision merely indicates the subject matter, without posing particular difficulties of interpretation. In this case the term "medical duties" requires some elucidation, since it does not occur in the text, but only in the heading of the article.

    4679 Article 10 provides that medical activities in a broad sense may be freely exercised and performed. It thereby protects not only doctors, but also any other persons engaged in such activities professionally. Therefore the term "medical duties" refers to medical activities, i.e., to the tasks which personnel perform in accordancewith their professional obligations when they give care or treatment. In the French text this concept is rendered by the expression "la mission médicale", which is perhaps not quite as precise as "medical duties" in English.

    General remarks

    4680 This provision is aimed at strengthening the basic principle that the wounded and sick shall be protected. (1) To that end it establishes a general protection of medical and paramedical personnel. In particular, it is a matter of ensuring immunity for civilian doctors who care for patients without forming part of medical personnel assigned to medical units within the meaning of Articles 9 ' (Protection of medical and religious personnel) ' and 11 ' (Protection of medical units and transports), ' of the Protocol. The problem may arise in different ways, depending on the organization of medical services in each of the countries concerned, but this article was adopted in the spirit of making available all medical assistance, whether civilian or military, to the wounded and sick; it does not cover the case of civilians without medical training who spontaneously lend aid to the wounded and sick. The supportive role of the civilian population is dealt with in Article 18 ' (Relief societies and relief actions), ' paragraph 1.

    4681 The Conventions do not provide for such protection specifically. Common Article 3 is, a fortiori, silent on this point. However, it should be noted that [p.1425] protection of medical duties follows from the principle of protecting the wounded and sick and is inspired by Article 18, paragraph 3 , of the first Convention, which states that "no one may ever be molested or convicted for having nursed the wounded or sick". (2) Paragraphs 1 and 2 establish the neutrality of medical activities and guarantee that they may be freely carried out in accordance with medical ethics. These rules have been taken from the ICRC draft (Article 16) (3) and are also contained in Article 16 of Protocol I ' (General protection of medical duties) '. (4) The major problem underlying the protection of medical duties lies in the preservation of "professional confidentiality" of medical practitioners, a question which is closely related to the still controversial principle that it is wrong to inform on patients to the authorities.

    4682 The ICRC endeavoured to find a flexible solution, leaving the decision to the doctor and placing in him the confidence he deserved. (5) To this end the draft provided that:

    "no person engaged in medical activities may be compelled to give to any authority information concerning the sick and the wounded under his care should such information be likely to prove harmful to the persons concerned or to their families".

    4683 It should be noted that this was a moderate proposal, for medical circles had repeatedly expressed views against reporting patients to the authorities, particularly at the conferences of the International Law Association, on the basis of the idea that the wounded and sick would not seek medical attention if they feared being denounced. (6)

    4684 During the Conference the proposal came up against the fear that, if such a rule were introduced in the Protocol, it would prejudice the national sovereignty of States and violate the principle of non-interference with the internal affairs of States, reaffirmed by Article 3 ' (Non-Intervention), ' paragraph 2, of the same Protocol. The problem proved to be particularly delicate in the context of non-international armed conflict. Committee II discussed this at length; as it was impossible to achieve a solution acceptable to all in a first Working Group, a second had to be called, following the submission of a very large number of oral amendments in plenary meetings of the Committee. (7) Paragraphs 3 and 4 are the result of all this work, which resulted in a laborious and rather unsatisfactory compromise; they guarantee that the professional obligation of medical personnel to maintain confidentiality will be respected and they prohibit punishing doctors who refuse to give information. In fact, these two paragraphs form a single clause which was separated into two for reasons of brevity and clarity. (8) These guarantees [p.1426] are useful and even essential, but by making them "subject to national law" their scope could be greatly reduced.

    Paragraph 1

    4685 This paragraph guarantees the principle of the neutrality of medical activities by stating that "under no circumstances shall any person be punished for having carried out medical activities compatible with medical ethics, regardless of the person benefiting therefrom".

    4686 This rule refers not only to doctors, but also to any other persons professionally carrying out medical activities, such as nurses, midwives, pharmacists and medical students who have not yet qualified.

    4687 The term "medical activities" should be interpreted very broadly. The concept is broader than that of medical care and treatment. A doctor not only treats patients, he may also be called upon to issue death certificates, vaccinate people, make diagnoses, give advice etc. (9) Medical assistance should always be neutral; it should not be considered as taking a stand on the conflict because of those benefitting from this assistance. The criterion of when to undertake medical activities is based on purely humanitarian considerations, regardless of any other factors. To perform medical activities for the benefit of any person, including persons belonging to the adverse party, is not only lawful, but even a duty for those who are professionally bound.

    4688 Ethics (or deontology) means the science of duty or moral obligation. (10) The term is not only used in connection with the medical profession, but reference is usually made to medical ethics, and this is what is meant here. It consists of moral duties incumbent on the medical profession. Such duties are defined by the national and international corps of the medical profession. (11)

    4689 Those who have sworn the Hippocratic Oath to protect human life in all circumstances are allowed a wide margin of appreciation under medical ethics. Thus someone carrying out medical activities could not be punished for the mere fact of carrying out the duties incumbent upon him, irrespective of whether he acted spontaneously or whether he was asked to do so.

    4690 The obligation to refrain from punishment is addressed to all authorities capable of meting out punishment, including both the government in power and the authority controlling part of the territory in accordance with Article 1 of the Protocol ' (Material field of application). '

    4691 The reference to punishing is meant to cover all forms of sanction, including both penal and administrative measures; all these are prohibited.

    [p.1427] Paragraph 2

    4692 Paragraph 2 establishes the principle of the free exercise of medical activities, i.e., medical personnel should be able to work without compulsion, guided only by professional ethics. Thus it is specifically prohibited to compel those carrying out medical activities to commit any act or to refrain from acting in a way which would be contrary to "the rules of medical ethics or other rules designed for the benefit of the wounded and sick, or this Protocol".

    4693 It should be noted that in addition to the mention of medical ethics reference is made to "other rules". This is, in particular, because of the fact that in some countries medical ethics prohibit doctors from co-operating in medical procedures undertaken by personnel which are not officially qualified. (12) This would apply for example to a medical student. The article refers to the rules of medical ethics which protect the wounded and sick, as opposed to those which are concerned only with the interests of the medical profession; it also refers to other rules designed for the same purpose, and applicable in specific cases. (13)

    4694 The reference to the provisions of the Protocol endorses the rules of protection already contained in it, for instance, the rule prohibiting "cruel treatment such as torture, mutilation or any form of corpora punishment" (Article 4 -- ' Fundamental guarantees, ' paragraph 2(a)). Compelling a doctor to refrain from acting, for example, would be tantamount to prohibiting him from caring for the wounded or sick, and this would in any case constitute a breach of the principle that protection and care are due to the wounded and sick as laid down in Article 7 ' (Protection and care). '

    4695 Amongst the cases of being compelled to perform acts which were most often raised during the discussions in Committee, mention should be made of administering drugs to prisoners in order to modify their behaviour and obtain information; one delegation even wanted this to be explicitly prohibited and submitted an amendment to that effect. (14) Medical experiments are another example.

    Paragraph 3

    4696 Medical ethics impose an obligation of confidentiality on doctors; a doctor is obliged to be discreet regarding the nature of the complaint of his patient, and in general not to divulge any information that might be harmful to his patient or the latter's relatives. Moreover, the question whether doctors are ever allowed to report on their patients to the authorities, i.e., to denounce them, is added to the principle of medical confidentiality. In the eyes of many representatives of the medical profession, this question is also an integral part of medical ethics.

    [p.1428]

    4697 In ethical terms, the rule against denunciation does not mean that information may never be given; the doctor has a certain measure of freedom of action to follow his own conscience and judgment.

    4698 The aim of this paragraph is to establish protection and respect for medical activities while preserving the obligation of professional confidentiality. For this purpose it provides that the professional obligations of those engaged in medical activities regarding information, which they may acquire concerning the wounded and sick under their care, must be respected, but always subject to national law. Being subject to national law was the price paid for this rule. This formula was finally retained following lengthy discussions in the Working Group.

    4699 What is meant by national law? It refers here not only to the law in force at the start of the conflict, but also to any new legislation introduced and brought into force by a State after the start of the conflict. (15) This legal situation, the result of a compromise, has its shortcomings in that it might endanger the special protection to which the wounded and sick should be entitled.

    4700 In fact, national law, in a situation of conflict fulfilling the criteria of Article 1 of Protocol II ' (Material field of application), ' will not always be known to the adverse party if it has changed during hostilities. If there is any doubt regarding a doctor's obligations towards the authorities, many of the wounded would risk suffering and dying, rather than risk being denounced. An obligation to systematically reveal the identity of the wounded and sick would divest the principle of the neutrality of medical activities of all meaning.

    4701 Finally, it is clear that in practice, when hostilities have reached an advanced stage, two separate sets of rules may exist concurrently. It is up to each authority to reach a judgment on what attitude it intends to take with regard to military requirements and with regard to its humanitarian obligations. If humanitarian principles and the aim of the Protocol, i.e., safeguarding the lives of the wounded, are taken into account, the laws should allow medical personnel a sufficient measure of freedom and responsibility to perform their duties.

    4702 The obligation to give notification of communicable diseases laid down in the ICRC draft and included in Article 16 of Protocol I ' (General protection of medical duties) ' is not mentioned here, since such a measure is included in the national legislations of virtually all countries.

    Paragraph 4

    4703 Paragraph 4 is the corollary of paragraph 3. As indicated above, they appear as two separate paragraphs for the sake of clarity. Respect for medical activities and professional obligations as implied therein would be of no practical significance if those carrying out such activities could be penalized for respect in the principle of confidentiality, by refusing or failing to give information concerning patients, as such confidentiality is itself a professional obligation.

    [p.1429] 4704 The conclusion was reached that it would be necessary for the text to provide explicitly that it is prohibited to penalize people engaged in medical activities for no other reason than that they had failed to give information on the wounded and sick in their care. Such conduct should not be considered as a criminal offence. (16)

    4705 The prohibition on such penalization concerns all types of punishment, penal as well as administrative sanctions, such as, for example, closing down a medical practice. Again, making the rule subject to national law reduces the value of the principle that is established and it has the same effect as in the preceding paragraph. Three points deserve mention in this respect:

    -- This provision lays down that the confidentiality that may be kept by anyone engaged in medical activities regarding the wounded and sick under his care, is legitimate, but subject to national law. Thus, in accordance with the principle of penal law, ' nullum crimen sine lege, ' if there is no national law on the subject, a doctor cannot be penalized in any way for maintaining silence. This stand cannot be interpreted as taking sides in the conflict.
    -- Promulgation of new rules during the conflict implies an obligation for the authorities to inform those to whom those rules are addressed.
    -- The principle that the law may not be applied retroactively should be respected in accordance with Article 6 ' (Penal prosecutions), ' paragraph 2(c).

    4706 In general it should be noted that if anyone engaged in medical activities were to be prosecuted for failing to comply with the law, he would in any case enjoy the legal guarantees provided in Article 6 of the Protocol ' (Penal prosecutions). '

    ' S.J. '


    * (1) [(1) p.1424] General principle of protection laid down in Art. 7 of the Protocol;

    (2) [(2) p.1425] See ' Commentary I, ' pp. 192-193;

    (3) [(3) p.1425] Cf. ' Commentary Drafts, ' pp. 148-149;

    (4) [(4) p.1425] Cf. commentary Art. 16, Protocol I, supra, p. 197;

    (5) [(5) p.1425] O.R. XI, p. 146, CDDH/II/SR.16, para. 26;

    (6) [(6) p.1425] Cf. ' Commentary Drafts, ' pp. 148-149. Cf. also introduction to this Part, supra, p. 107;

    (7) [(7) p.1425] Cf. O.R. XIII, pp. 82-87 and 126-129, CDDH/221/Rev.1, and O.R. XI, pp. 447-456, CDDH/II/SR.41, paras. 1-50, and pp. 457-463, CDDH/II/SR.42, paras. 1-45;

    (8) [(8) p.1425] Ibid., p. 494, CDDH/II/SR.44, para. 53;

    (9) [(9) p.1426] Cf. CE/7b, paras. 21-23;

    (10) [(10) p.1426] As defined in the Shorter Oxford Dictionary (1978), p. 520;

    (11) [(11) p.1426] The World Medical Association has adopted a code of ethics, as well as "rules of medical ethics in time of war". Though they have no binding force under international law, they serve as a point of reference (cf. commentary Art. 16, Protocol I, supra, p. 197);

    (12) [(12) p.1427] Cf. O.R. XI, p. 150, CDDH/II/SR.16, para. 46;

    (13) [(13) p.1427] Ibid., p. 183, CDDH/II/SR.19, para. 59
    (Statement by the Rapporteur of the Committee);

    (14) [(14) p.1427] Ibid., p. 149, CDDH/II/SR.16, para. 43;

    (15) [(15) p.1428] Cf. ibid., pp. 495-496, CDDH/II/SR.44, paras. 54-63;

    (16) [(16) p.1429] This principle was set ut in paragraph 5 of the ' Rules to ensure and care for the wounded and sick, particularly in time of armed conflict, ' as drawn up by the World Medical Association, the International Committee of Military Medicine and Pharmacy and the ICRC and as amended in 1983. Cf. Introduction to this Part, supra, p. 1403. The reservation made regarding national legislation therefore concerns the question of denunciation, and not professional confidentiality in accordance with medical ethics within the meaning of paragraph 1 of this article;