The professional ethical duty of HCP is first and foremost to their patients. They shall be “Physician First, Last, Always.” (Annas 2008) This is true for both civilian as well as for military medical personnel given that
“Ethical principles of health care do not change in times of armed conflict and other emergencies and are the same as the ethical principles of health care in times of peace.” (International Committee of the Red Cross (ICRC) et al. 2015)
Thus, HCP no matter if military or civilian should prioritize and deliver medical care according to clinical needs only, act impartially, and treat all patients without any discrimination based on non-medical grounds. These are the main principles that are often summarized under the terms of “medical neutrality” or “medical impartiality”.
This introductory article will elaborate the ideas of medical neutrality or medical impartiality, show how they are also deeply anchored in IHL and illustrate why they have to be understood as fundamental principles of health care (during armed conflict even more so than in peacetime).
[For an introduction on how military and medical roles of military HCP may conflict, you may read the overview article on the section “Dual Loyalties”]
Humane treatment of victims of war – The Principle of Humanity
One of the central aims of IHL is to establish rules to reduce human suffering during war to the largest extent possible. Thus, the four Geneva Conventions stipulate that those who are (no longer) involved in the fighting must be spared from (any further) attack and be treated humanely. This principle is laid out in their common article 3, often referred to as the “mini-convention”:
“(1) Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed ‘hors de combat’ by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction […].
The central relevance of this principle is underlined in the commentary of the Conventions by Pictet who states that the
“obligation to grant protected persons humane treatment is in truth the leitmotiv of the four Geneva Conventions.” (Pictet 1958, 204)
Modern IHL certainly does not ignore the effects of armed conflict and the use of military violence, which are death, injury and destruction. (cf. Melzer 2016, 133 f.) But it tries to mitigate their consequences and to uphold as much as possible the “Principle of Humanity”, the aim of which is generally understood as to
“prevent and alleviate human suffering wherever it may be found. Its purpose is to protect life and health and to ensure respect for the human being.”(Pictet 1979, 141. See also International Committee of the Red Cross (ICRC) 2012, 33)
With regard to the reality of war and the use military force, one can describe the meaning of the principle of humanity in a less abstract way by the following examples:
“humanity requires that capture be preferred to wounding; that wounding be preferred to death; that non-combatants be spared; that wounds be no more serious than necessary, so that the victim may be operated upon and healed; that they cause the least possible pain; that captivity be made as bearable as possible. “ (Pictet 1985, 194)
One aspect of the principle of humanity is thus the medical treatment of those who are hors de combat with the aim to reduce their suffering or whenever possible to restore their health. This is where medical personnel, employed by military forces or by civilian hospitals, obviously come into play.
Medical Neutrality / Medical Impartiality – a means to guarantee humane treatment
Medical neutrality can then be understood as a means to achieve the implementation of the more fundamental principle of humanity, i.e. to respect, protect, and treat humanely the victims of war. It has recently been defined in the following way:
“Medical impartiality is the international principle that no person or group shall interfere with the access to or delivery of medical services in times of conflict and civil unrest, and that medical personnel shall not discriminate or refuse care to anyone injured or sick during times of conflict and civil unrest.” (The European Centre for Democracy & Human Rights and Defenders for Medical Impartiality 2016, 6)
In this sense, medical neutrality is “a logical corollary“ (Mehring 2015, 106) to the protection of those hors de combat, or even “a natural consequence of the requirements designed to assure respect and protection for the victims of armed conflicts” (Baccino-Astrada 1982, 31) According to the definition quoted above, the principle of medical impartiality/ neutrality is composed of two separate and complementing principles: noninterference and nondiscrimination. Both shall be looked at in some more detail in the following two sections.
Principle of Noninterference
According to the principle of noninterference, HCP must be allowed to care for the sick and wounded, and all those in need must receive care regardless of their political affiliations or their side in the conflict. Physician must get access to all patients, all patients must get access to health care, and all parties must refrain from attacking medical facilities, transports, and personnel.
The principle thus establishes above all a negative duty: not to interfere with the work of HCP, let them to their job, and respect that they treat the wounded and sick according to the humanitarian standards of medical ethics. This is why IHL grants protection not only to the wounded and sick but also to those who are tasked to provide the medical care: (military) medical personnel. It stipulates:
“Rule 25. Medical personnel exclusively assigned to medical duties must be respected and protected in all circumstances. They lose their protection if they commit, outside their humanitarian function, acts harmful to the enemy.” (Henckaerts et al. 2005, 79) [LINK]
That they are protected means that they can never be legitimate targets and thus must not be attacked deliberately under any circumstances. The reason for the protected status is equally given in the quote: in its the second part it refers to their humanitarian function and the fact that they are not committing acts harmful to the enemy as the basis for the protection. In a way, medical personnel can be said to stand outside of the conflict and to rather fulfil a “peace role” (Messelken 2019) which justifies their special status.
Principle of Nondiscrimination
The principle of nondiscrimination establishes a positive duty for HCP, namely that all individuals in need must be given medical treatment and that the order and choice of treatment may not be influenced by non-medical criteria (cf. International Committee of the Red Cross (ICRC) 2012, 26f.). The principle can for example be found in the following two regulations of the Geneva Conventions and of customary IHL:
“[The wounded and sick] shall be treated humanely and cared for by the Party to the conflict in whose power they may be, without any adverse distinction founded on sex, race, nationality, religion, political opinions, or any other similar criteria.” (International Committee of the Red Cross 2013, 39) [LINK]
“Rule 110. The wounded, sick and shipwrecked must receive, to the fullest extent practicable and with the least possible delay, the medical care and attention required by their condition. No distinction may be made among them founded on any grounds other than medical ones.” (Henckaerts et al. 2005, 400) [LINK]
In 2016, the UN Security Council has reiterated the importance of the principle of nondiscrimination and the binding force of medical ethics for all health care providers in an armed conflict situation in Resolution 2286:
“Noting that medical personnel, and humanitarian personnel exclusively engaged in medical duties, in an armed conflict situation, continue to be under a duty to provide competent medical service in full professional and moral independence, with compassion and respect for human dignity, and always to bear in mind human life and to act in the patient’s best interest and stressing the need to uphold their respective professional codes of ethics, and further noting the applicable rules of international humanitarian law relating to the non-punishment of any person for carrying out medical activities compatible with medical ethics” (UN Security Council 2016)
Taken together, the two principles of noninterference and nondiscrimination that constitute the principle of medical neutrality/ impartiality establish duties for both HCP and for fighting forces. The latter must respect the work of medical personnel and must not interfere. HCP themselves are expected to provide medical care without discrimination and according to medical ethics. The ultimate aim of medical neutrality/ impartiality is to reduce suffering during armed conflict and thus to foster the principle of humanity.
In the scenario collection, a number of cases can be found that illustrate ethical challenges with regard to medical neutrality.
The scenario A human life is a human life is an example of how the affiliation of a wounded person shall not influence the medical treatment he or she gets. Similarly, the situation described in Who shall be first? illustrates a situation of triage and how medical personnel may feel pressure if the principle of noninterference is not respected.
The principle of noninterference with medical care and the principles of medical ethics is also an issue in the example case (Forced) Dialysis for a Prisoner of War. The case illustrates how different interests (legitimate or not) may contribute to a complicated mix of interests and influences that HCP must deal with and work in.
Complicated situations with potential conflicts of different interests and motivations may also arise with regard to the question of how military and civilian HCP may cooperate. Two examples are given in the scenarios Maintaining medical neutrality & Relations between Military Forces and NGOs. Often, there is no clear right or wrong in these kinds of cases and it is thus all the more important to understand the ethical challenges that HCP may face when involved in scenarios like these.
Finally, the scenario Ammunition transport in ambulances gives an historical account of what may constitute an “act harmful to the enemy” that would put HCP outside their humanitarian function and make them lose their immunity. It may thus serve as an illustration of the limits of medical neutrality and an abuse of the humanitarian role.
Professional ethics and other relevant documents
References and further reading
Other online resources
Source: Written for the MME Scenario Collection by Dr phil Daniel Messelken, CMME Zürich.