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Medicine and human rights: a proposal for international action.

Medical ethics is properly viewed as universal, and use of the art of medicine to benefit individual patients is its core. There is also universal condemnation of physicians who engage in "crimes against humanity" such as torture, killing, and involuntary human experimentation under government auspices. Although one need not be a physician to commit crimes against humanity, physicians who commit such acts betray the central ethos of their profession, which should work assiduously to prevent or punish such conduct. Calls for an international criminal code and an international tribunal to judge those accused of crimes against humanity and war crimes have been heard for the past forty years. Nonetheless, there has been no international criminal court established since the post-World War II Nuremberg and Tokyo war crimes trials, and no international codification of crimes against humanity since 1950.[1] A recent United Nations resolution called for an international court to punish war crimes in the former Yugoslavia, but the permanent members of the Security Council oppose the establishment of a permanent international criminal court.

We support those who continue to work for a permanent international criminal court under United Nations auspices designed to punish human rights abuses that can properly be designated crimes against humanity. Nevertheless, we recognize that it may be decades before the international community agrees to establish such a tribunal. Rather than waiting for this perhaps ideal approach to materialize, we believe it is time for the physicians and lawyers of the world, as the two major professions dedicated to promoting human welfare and human rights, to take concrete steps to prevent governments from using physicians as instruments of killing, torture, persecution (on racial, political, or religious grounds), and involuntary human experimentation. Such deterrence requires a clear statement of prohibited conduct, a mechanism for punishing those who engage in such conduct and for supporting those who resist.

Historical Context

The 1946-1947 trial of Nazi doctors (the "Doctors" Trial") documented the most notorious example of physician participation in human rights abuses, criminal activities, and murder. Hitler called upon physicians not only to help justify his racial hatred policies with a "scientific" rationale (racial hygiene), but also to direct his euthanasia programs and ultimately his death camps.[2] Almost half of all German physicians joined the Nazi Party.[3] In his opening statement at the Doctors' Trial, General Telford Taylor, the chief prosecutor, spoke to the watershed nature of the trial for the history of medical ethics and law:

It is our deep obligation to all

peoples of the world to show why

and how these things happened.

It is incumbent upon us to set

forth with conspicuous clarity the

ideas and motives which moved

these defendants to treat their fellow

men as less than beasts. The

perverse thoughts and distorted

concepts which brought about

these savageries are not dead.

They cannot be killed by force of

arms. They must not become a

spreading cancer in the breast of

humanity. They must be cut out

and exposed, for the reasons so

well stated by Mr. Justice Jackson

in the courtroom a year ago

[before the War Crimes Tribunal]:

"The wrongs which we seek

to condemn and punish have

been so calculated, so malignant,

and so devastating, that civilization

cannot tolerate their being

ignored because it cannot survive

their being repeated."[4]

Sixteen physician-scientists were found guilty, and seven executed, on the basis of international and natural law. A universal standard of physician responsibility in human rights abuses involving experimentation on humans, the Nuremberg Code, was articulated and has been widely recognized, if not always followed, by the world community.

The Nuremberg Code was a response to the horrors of Nazi experimentation in the death camps--experimentation on a wide scale, without consent, that often had the death of the prisoner-subject as its planned endpoint. The code has ten provisions, two designed to protect the rights of human subjects of experimentation, and eight designed to protect their welfare. The best known is its consent requirement:

The voluntary consent of the

human subject is absolutely essential.

This means that the person

involved should have legal capacity

to give consent; should be so

situated as to be able to exercise

free power of choice, without the

intervention of any element of

force, fraud, deceit, duress, overreaching,

or other ulterior form

of constraint or coercion; and

should have sufficient knowledge

and comprehension of the elements

of the subject matter involved

as to enable him to make

an understanding and enlightened

decision.

Although the Nuremberg Code has not been adopted as a whole by the United Nations, its consent principle did become an important part of the United Nations International Covenant on Civil and Political Rights, which was promulgated in 1966 and adopted by the United Nations General Assembly in 1974. Article 7 of the Covenant states:

No one shall be subjected to torture

or to cruel, inhuman or degrading

treatment or punishment.

In particular, no one shall

be subjected without his free consent

to medical or scientific experimentation.[5]

Most physicians would, of course, be shocked at having anything they do to patients be considered "torture or cruel, inhuman or degrading treatment." They would thus view the Covenant's provisions much the same way they might view the Nuremberg Code: as a criminal law document not applicable to anything done by physicians. But this is a mistake, and only helps to protect aberrant physicians by marginalizing their actions as nonmedical in nature and therefore of no concern to the medical profession. As Jay Katz has noted, both torture and involuntary human experimentation are assaults on bodily integrity[6]--in their disregard of that integrity, torture and involuntary human experimentation become virtually indistinguishable.

The World Medical Association

In late 1946, 100 delegates from thirty-two national medical associations met in London to form the world's first international medical organization. The World Medical Association (WMA) was created to promote ties between national medical organizations and doctors of the world. Its objectives were:

1. To promote closer ties among

the national medical organizations

and among the doctors of

the world by personal contact and

all other means available.

2. To maintain the honour and

protect the interests of the medical

profession.

3. To study and report on the

professional problems which

confront the medical profession

in the different countries.

4. To organize an exchange of

information on matters of interest

to the medical profession.

5. To establish relations with, and

to present the views of the medical

profession to the World Health

Organization, U.N.E.S.C.O., and

other appropriate bodies.

6. To assist all peoples of the

world to attain the highest possible

level of health.

7. To promote world peace.[7]

In September 1947, shortly after the final judgment at the Doctor's Trial in Nuremberg, the first official meeting of the WMA was held in Paris. The WMA formulated a new physician oath to promote and serve the health of humanity. This was followed by a discussion of the "principles of social security." Key principles adopted included:

1. Freedom of physician to

choose his location and type of

practice.

2. All medical services to be controlled

by physicians.

3. That it is not in the public interest

that doctors should be full-time

salaried servants of government

or social security bodies.

4. Remuneration of medical services

ought not to depend directly

on the financial condition of the

insurance organization.

5. Freedom of choice of patient

by doctor except in cases of emergency

or humanitarian considerations.[8]

Thus, one of the WMA's first acts was an attempt to protect the welfare of physicians themselves, which, of course, is perfectly consistent with its original objectives. The "principles of social security" were designed to support the personal and financial welfare of physicians rather than the security of their patients. The quest for a fee-for-service private practice mode is in striking contrast to a social obligation model that almost all industrialized countries ultimately adopted: universal health care entitlement based on social welfare.

To the WMA's credit, however, one of the first issues discussed by the 1947 general assembly was the German "betrayal of the traditions of medicine." The assembly asked, Why did these doctors lack moral or professional conscience and forget or ignore the humanitarian motives and ideals of medical service? How can a repetition of such crimes be averted? and acknowledged the "widespread criminal conduct of the German medical profession since 1933." The WMA endorsed "the judicial action taken to punish those members of the medical profession who shared in the crimes" and it "solemnly condemned the crimes and inhumanity committed by doctors in Germany and elsewhere against human beings." The assembly continued: "We undertake to expel from our organization those members who have been personally guilty of the crimes.... We will exact from all our members a standard of conduct that recognizes the sanctity, moral liberty and personal dignity of every human being."[9]

Nonetheless, consistent with its physician protection goals, the WMA focused more on physicians' rights than on patients' rights. Through its Declaration of Helsinki in 1964, for example, it endorsed shifting the focus of protection of the human subjects in medical research away from protecting human rights through informed consent. The 1964 Declaration divided research into two types: research combined with professional care and nontherapeutic research. Consent was required for the latter. But as to the former, the subject was transformed into a patient, and consent was simply urged:

If at all possible, consistent with patient psychology, the doctor should obtain the patient's freely given consent after the patient has been given a full explanation.[10]

The Declaration of Helsinki thus undermined the primacy of subject consent in the Nuremberg Code and replaced it with the paternalistic values of the traditional doctor-patient relationship.[11]

Although the WMA has also issued a number of noble statements condemning physician involvement in torture and capital punishment, it has largely acted as do other professional societies. Its primary interest is the members' welfare, with a secondary objective of issuing lofty "ethical" statements. However, it must be recognized that with the exception of barring membership of the Japanese and German medical communities following World War II, the WMA has never sought or exercised any authority to identify, monitor, or punish either physicians or medical societies who violate its ethical principles. The WMA's inability or lack of desire to act in ways that demonstrate its commitment to these human rights certainly is exemplified by its handling of the Hans-Joachim Sewering scandal.

The Sewering Affair

Hans-Joachim Sewering is a former member of the Nazi Party and the Nazi shock troops known as the SS.[12] During World War II he was a physician at the Schonbrunn Institute for the Handicapped in the city of Dachau. During his tenure at the institute he transferred at least one four-teen-year-old girl with epilepsy to Eglfing-Haar Hospital--three weeks later, in late 1943, this physically healthy girl was dead.[13] Of 275 children who were admitted to Eglfing-Haar from 1940-1942, 213 were killed.[14]

In 1992 Sewering was elected president-elect of the WMA. This was the culmination of a political-medical career during which he held a series of distinguished medical society positions. He is a past member of the German Federal Physician Chamber (GFPC) and has been a German delegate to the WMA since 1959 and its treasurer for twenty years.

Sewering's election to the presidency of the WMA provoked public protests. The president of the German Federal Physician Chamber, fully aware of Sewering's past, came to his defense. Additionally, Andre Wynen, the secretary general of the WMA, stated that "the German Federal Physician Chamber has our full confidence because if we doubt them on this, we are questioning the entire profession's ethics." This again shows that the WMA has neither the inclination nor the desire to judge the ethics of individual physicians or medical societies. Wynen further explained that "we must accept that die young people of that time had the right to make mistakes."[15]

Following the challenge to his successful campaign to become president-elect of the WMA, Sewering acknowledged his Nazi past but claimed no knowledge of or involvement in the euthanasia program. In January 1993 four nuns still living at the Schonbrunn Institute, who had worked there during the war, substantiated that from 1940 to 1944 more than 900 mentally and physically handicapped patients were sent to specific "healing centers." The nuns acknowledged that they knew the patients would be exterminated at these centers as so-called "unworthy lives" and that Sewering, despite his denials, must also have known.[16]

Even following Sewering's 23 January withdrawal, the GFPC continues to support him. At the 135th Council of the WMA (April 1993) Karsten Vilmar, the president of the German Federal Physician Chamber, called for a criminal law standard for judgment rather than an ethical one, thereby abrogating any role for physicians in judging the conduct of their colleagues. Vilmar stated:

Germany in 1993 differs in a decisive

way from Germany before

1945 in that it has been a constitutional

state for more than forty

years now. A state in which it is not

up to medical associations or

other organizations to pass judgment,

but to courts of law. And it

is a fundamental principle of the

rule of law that only someone who

has been finally convicted by a

court of law can be considered

guilty.[17]

Following receipt of information documenting Sewering's past, Dr. James Todd, executive vice-president of the American Medical Association (AMA), requested a full explanation from the German Federal Physician Chamber. The Chamber responded that the charges against Sewering had been extensively covered in the European press and were so well known that they did not require further notification of WMA members. The AMA called on the WMA to amend the nominating form for all WMA officers to require "verification by the national medical association that the candidate is an individual of impeccable character signed by the Association President and Chief Executive Officer."[18] The AMA also recommended that the WMA set up an ethics committee to help it address ethical issues. The AMA believes that such "strong measures" have brought "this issue to conclusion." We do not share this view.

These events follow an earlier controversy regarding the WMA's admission of the Medical Association of South Africa and its refusal to take a strong stand against apartheid, a crime against humanity.[19] We believe these experiences require one to conclude that the WMA does not represent and cannot enforce the ethics of the world medical community.

A Permanent Nuremberg Court

The 1992 report of the British Medical Association's working party on the participation of doctors in human rights abuses documents physician involvement in crimes against humanity throughout the world.[20] Physicians have been directly involved in the torture of prisoners, as well as involved in indirect activities that facilitate torture. Physician involvement includes the examination and assessment of "fitness" of prisoners to be tortured, and the monitoring of victims while being tortured, the resuscitation and medical treatment of prisoners during torture, as well as falsification of medical records and death certificates after torture. The report documents examples of physician involvement in psychiatric "diagnosis" and commitment of political dissidents, forcible sterilizations, and supervision of amputation and other corporal punishments. Countries implicated span the globe and include the former Soviet Union, the United States, China, India, and South Africa, as well as countries in the Middle East, and Central and South America. The working party notes the existence of international law and codes of ethics, but acknowledges the lack of enforcement and inability to monitor compliance.

The theme of the report is that neither medical associations nor international law have been effective in preventing physician involvement in human rights abuses. This supports our view that we need an international tribunal with authority to judge and punish the physician violators of international norms of medical conduct. Without such a tribunal, we are left where we began before Nuremberg: international norms of medical conduct are relegated solely to the domain of ethics. Without the possibility of judgment and punishment, there is no international law worthy of the name, only international ethics.

M. Cherif Bassiouni, Robert Drinan, Telford Taylor, and others have argued eloquently and persuasively that we need a permanent international tribunal to judge and punish those accused of war crimes and crimes against humanity.[22] Nonetheless, the international political will to form and support such a "permanent Nuremberg" is lacking. We believe that the arguments for a permanent international medical tribunal are every bit as compelling as those for a permanent Nuremberg, and that the establishment and support of such a body is justified not only for its own sake, but also as a model for the broader international tribunal itself. The courts of individual countries, including the United States, for example, have consistently proven incapable of either punishing those engaged in unlawful or unethical human experimentation, or compensating the victims of such experimentation, primarily because such experimentation is often justified on the basis of national security or military necessity.[23]

The medical profession is perhaps the best candidate to take a leading role here because it has an apolitical history, has consistently argued for at least some neutrality in wartime to aid the sick and wounded, and has a basic humanitarian purpose for its existence. Physician acts intended to destroy human health and life are a unique betrayal of both societal trust and the profession itself. It should also be emphasized that it is much easier for governments to adopt inherently evil and destructive policies if they are aided by the patina of legitimacy that physician participation provides.

An International Medical Tribunal

Medicine and law are often viewed as opponents; but in the promotion of human rights in health care they have a common agenda. This common agenda should permit international cooperation among medical and legal organizations to form and support an international medical tribunal. Ideally, such a body should be established with the sanction and authority of the United Nations, and efforts to establish such a body within the U.N. should be of the highest priority.

On the other hand, given the competing political agendas of the members--especially in the World Health Organization, where the reelection of the Secretary General was embroiled in a continuing political controversy --failure to win U.N. approval and support should not doom this project. Although such sanction is required to give the tribunal the authority to punish with criminal penalties, it is not required to give the tribunal the power to hear cases, develop an international code, and publicly condemn the actions of individual physicians who violate international standards of medical conduct. The establishment and support of such a tribunal is a worthy project for the world's physicians and lawyers. In addition, such international organizations as Amnesty International and Physicians for Human Rights have special monitoring and reporting roles to play, but as advocacy organizations they are inappropriate bodies to adjudicate responsibility. The WMA has proven itself incapable of playing any meaningful role.

We suggest that as a beginning, the establishment of such an international medical tribunal be put on the agenda of all medical and legal associations around the world. Since the tribunal must be both authoritative and politically neutral, no one country or political philosophy can be permitted to dominate it, either by having a disproportionate representation on the tribunal, or by disproportionately funding it. The tribunal itself should be composed of a large panel of distinguished judges. When specific cases need to be heard, three members would be selected to hear the case. Recruiting judges (without which the court would have little credibility) will require a commitment from governments to permit the jurists selected to take time off from their full-time judicial duties to hear these cases. Governments must fund the tribunal's infrastructure.

Ideally this tribunal should be under the jurisdiction of the United Nations and itself have criminal jurisdiction. Yet even without criminal jurisdiction, the tribunal could hear individual cases brought to it, adjudicate these cases based on international law, publicize the proceedings and results widely, and refer decisions for further action to relevant professional organizations and the board or agency responsible for licensing the physician or physicians involved. Accused physicians would be notified and given every opportunity to appear and present a defense. Without an international extradition agreement, however, attendance could not be compelled. The trial should nonetheless proceed with appointed defense counsel, if the defendant chooses not to appear, because punishment is not the only goal. A major goal is to deter crimes against humanity through publication of their brutality and through international condemnation of them.

An Interim Proposal

Waiting, wishing, and even working for the formation of an international medical tribunal is an insufficient response to continuing medical complicity in human rights violations. Immediate steps can be taken at the level of national medical licensure boards (and state boards in countries with political subdivisions having medical licensing authority) to articulate specific rules denouncing physicians who commit crimes against humanity. Those involved in such crimes would lose their license to practice medicine (or be ineligible to obtain one if they were not yet physicians) and be prohibited from practicing medicine anywhere in the world. Licensing agencies themselves can enter into a compact or agreement to adopt and enforce these rules and goals.

A central registry of physicians who have been found to have participated in war crimes, or against whom substantial allegations of such crimes have been made, should be established. This registry would also be a repository of evidence, such as affidavits and sworn testimony, that could be used by licensing agencies. Prior to licensing physicians, licensing agencies should query the central registry. The creation and use of such a registry is especially important in instances where countries authorize and use physicians to violate human rights, whose activities would otherwise go unnoticed and unpunished. While this licensing sanction is not as strong as one might wish for, it puts physicians on notice that they will be "imprisoned" in their own country should they wish to continue to practice their professions.

Keeping the Faith

Physicians who use their special skills and knowledge to violate human rights not only violate the rights of their victims, but betray their obligation to their profession. The standing of the entire profession suffers when physicians act as agents of the state to destroy life and health. Physicians themselves will benefit from the articulation of clear international standards that prohibit the use of physicians by the state to violate human rights. There is also currently no place where crimes against humanity involving physicians can be adjudicated, and no organization dedicated to preventing such crimes that has the purpose, will, and authority to act. Supporting an international compact and a tribunal can be both a symbolic and practical act that can help prevent governmental subversion of medical skills and authority and thus help foster human rights.

References

[1.] M. Cherif Bassiouni, Crimes against Humanity in International Criminal Law (Dordrecht: Martinus Nijhoff, 1992). [2.] Robert Proctor, Racial Hygiene: Medicine under the Nazis (Cambridge, Mass.: Harvard University Press, 1987); Robert Lifton, The Nazi Doctors: Medical Killing and the Psychology of Genocide (New York: Basic Books, 1986). [3.] Proctor, Racial Hygiene. [4.] George J. Annas and Michael A. Grodin, eds., The Nazi Doctors and the Nuremberg Code: Human Rights in Human Experimentation (New York: Oxford University Press, 1992). [5.] United Nations General Assembly, United Nations International Covenant on Civil and Political Rights (New York: United Nations, 1974). [6.] Jay Katz, "Human Experimentation and Human Rights." Paper presented at the University of St. Louis Law School, 18 March 1993. [7.] T C. Routley, "Aims and Objects of the World Medical Association," World Medical Association Bulletin 1, no. 1 (1949): 18-19. [8.] Routley, "Aims and Objects," p. 19. [9.] Editorial, World Medical Association Bulletin 1, no. 1 (1949): 3-14. [10.] World Medical Association, Declaration of Helsinki (Helsinki: World Medical Association, 1964). [11.] George J. Annas, "The Changing Landscape of Human Experimentation: Nuremberg, Helsinki, and Beyond," Health Matrix: Journal of Law-Medicine 2, no. 2 (1992): 119-40. [12.] Sewering's Nazi Party membership number was 1.858.805 and his SS membership number was 143.000. [13.] Michael Kater, Doctors under Hitler (Chapel Hill: University of North Carolina Press, 1987), p. 3. [14.] Hugh Gregory Gallagher, By Trust Betrayed: Patients, Physicians, and the License to Kill in the Third Reich (Orlando: Holt & Co., 1990), p. 133. [15.] Marc Fisher, "German Doctor's Nazi Past Debated; AMA Seeks New Leader for World Body," Washington Post, 19 January 1993. [16.] Marc Fisher, "German Doctor Quits International Post: Physician's Nazi Past Forces Withdrawal," Washington Post, 24 January 1993. [17.] Karsten Vilmar, address presented to the 135th Council of the World Medical Association, Istanbul, Turkey, 4-7 April 1993. [18.] Personal communication, Dr. James S. Todd, 16 April 1993. [19.] Winfrid Beck, "The World Medical Association and South Africa," Lancet, 24 June 1989, pp. 1441-42. [20.] Working Party, British Medical Association, Medicine Betrayed: The Participation of Doctors in Human Rights Abuses (London: Zed Books, 1992). [21.] Telford Taylor, The Anatomy of the Nuremberg Trials (New York: Knopf, 1992). [22.] Bassiouni, Crimes against Humanity; Annas and Grodin, Nazi Doctors and the Nuremberg Code; Taylor, Anatomy of the Nuremberg Trials. [23.] Annas and Grodin, Nazi Doctors and the Nuremberg Code.
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Author:Grodin, Michael A.; Annas, George J.; Glantz, Leonard H.
Publication:The Hastings Center Report
Date:Jul 1, 1993
Words:4229
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