American Journal of Law & Medicine

International criminal prosecution of physicians: a critique of professors Annas and Grodin's proposed International Medical Tribunal.

I. INTRODUCTION

Society benefits from physicians who seek truth and healing for the good of humanity. (1) Despite ethical admonishments to "do no harm," (2) however, physicians have caused some of the most appalling human rights abuses of the twentieth century. (3) Physicians, alone or in concert with the state, have willfully abused their medical knowledge and debauched their profession in furtherance of human rights violations. Compounding their crimes, physicians often have been complicit in following oppressive regimes in abusive practices against their citizens. Ironically, it is their knowledge of this healing art that allows physicians to take part in this injurious conduct; and it is this knowledge that states seek to harness in buttressing violative policies. In tact, for nations bent on violating human rights, 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." (4)

There is widespread international agreement that physicians can and should be held accountable for their involvement in human rights abuses. The Doctors' Trial of 1946-47, in which Nazi physicians were tried at Nuremberg for war crimes and crimes against humanity, remains the only international criminal prosecution of physicians for violations of human rights. Despite the success of the Doctors' Trial, and the medical ethics codes that have derived from it, physicians continue to participate in human rights violations, often outside the reach of criminal prosecution. Condemning such acts and preventing future abuses of medicine have become a focus for lawyers, doctors, and human rights practitioners.

Beginning in 1992, professors George Annas and Michael Grodin (5) have advocated the creation of an "International Medical Tribunal" to prosecute physicians who violate human rights. (6) Even after the successes and failures in the creation of the International Criminal Court ("ICC"), Annas and Grodin continue to believe that "It]he arguments for a permanent international medical tribunal are every bit as compelling as those for [an International Criminal Court]." (7) Yet, the International Medical Tribunal lacks many of the advantages of the ICC while retaining many of its disadvantages.

On July 17, 1998, representatives of more than 160 nations met in Rome, Italy and adopted an international treaty to govern a permanent international criminal court, the Rome Statute of the International Criminal Court ("Rome Statute"). (8) The ICC, created by the Rome Statute, has subject matter jurisdiction over the so-called "core crimes" of genocide, crimes against humanity, war crimes, and, once defined, aggression. (9) Within this jurisdiction will fall crimes committed by physicians and non-physicians alike. This permanent criminal court, built upon the ad hoc tribunals of Nuremberg and beyond, (10) came into effect in 2002 and has just begun to adjudicate its first case. (11)

This article analyzes professors Annas and Grodin's proposed International Medical Tribunal in light of the international community's experiences in creating the ICC. Part II describes the actions of Nazi physicians during World War II and the trial of these physicians at Nuremberg. Part III explains how, contrary to expectations of those at Nuremberg, physicians continue to take part in widespread violations of human rights. Part IV details Annas and Grodin's proposed International Medical Tribunal and their arguments in favor of its creation. Part V critiques the International Medical Tribunal. Specifically, Part V argues that there is no longer a valid justification for establishing a separate international court for physicians now that the ICC has been formed to prosecute perpetrators of human rights violations; if such an International Medical Tribunal were created, it would fail to achieve Annas and Grodin's purported goals. Only when nations have codified the rights of victims can national and international tribunals enforce these rights under international criminal law. Part VI advocates the prosecution of medical crimes within the ICC framework, where possible; and, where the Rome Statute is silent as to the harm suffered by a victim of medicine, advocates that nations adopt the laws necessary to transmute human rights norms into international criminal law. This article concludes that scholars must reengage a human rights framework to protect the forsaken victims of medicine, setting the stage for future prosecution of criminal physicians.

II. NUREMBERG

A. NAZI MEDICINE

The Nazi atrocities committed during World War II, (12) enabled by German eugenics and human research programs, constituted a complete disregard for the value of human life and the inherent rights of research subjects. (13) Beginning in 1933, the German Reich advanced eugenics theories as the basis for promulgating the Law for the Prevention of Genetically Diseased Offspring, which outlined the processes for the voluntary and mandatory sterilization of myriad "hereditary defects." (14) Pursuant to these so-called "racial hygiene" programs, German physicians sterilized between 300,000 and 400,000 German citizens prior to the war, (15) often using vague sterilization criteria as a pretext for political persecution. (16) At the onset of war, the Nazi medical establishment moved from sterilization to euthanasia of those deemed to be "incurably ill." (17) During the war, with eugenics and euthanasia receiving widespread acceptance in the state medical establishment, German physicians voluntarily aided in theorizing, planning, and operating Nazi killing programs, which had then expanded from patients of German state hospitals to inmates of Nazi concentration camps. (18) Founded upon debased notions of public health and welfare, physicians exterminated populations of thousands en masse to prevent the spread of purported diseases. (19) Rather than questioning the ethical propriety of their actions, these physicians enthusiastically performed acts of genocide, acting under a strong, albeit perverse, belief that they were acting in accordance with the sound medical principle of "healing the state." (20) As the concentration camps made way for extermination camps, physicians voluntarily "performed the selections, supervised the killing in the gas chambers, and decided when the victims were dead." (21) The genocidal horrors of the Holocaust would not have been possible without the direct assistance and participation of physicians.

In addition to the wholesale extermination of millions, German doctors also performed fatal experiments on otherwise healthy patients. (22) In the aftermath of the war, it was found that Nazi physicians took part in "medical experiments without the subjects' consent, upon civilians and members of the armed forces of nations then at war with the German Reich ... in the course of which experiments the[y] committed murders, brutalities, cruelties, tortures, atrocities, and other inhuman acts." (23) Led by Dr. Karl Brandt, Hitler's personal physician, these experiments included, inter alia, freezing experiments, (24) malaria experiments, (25) sulfanilamide experiments, (26) transplantation experiments, (27) typhus experiments, (28) radiation experiments, (29) and poison experiments. (30) The subjects of these experiments often were prisoners of concentration camps, (31) who neither benefited from such treatments nor gave voluntary consent to them. (32) Physicians conducted these experiments with the expectation, often morbidly correct, that their subjects would die. (33)

The Nazi infamy was not caused merely by the depravity of a few crazed, psychologically twisted practitioners. Rather, documentary evidence attests to over two hundred German physicians participating directly in medical war crimes and several hundred more acquiescing to the dictates of the German medical community. (34) Founded upon the work of then-respected Nazi eugenicists, (35) who professed the genetic determination for all human conduct, German medical and public health theory became intertwined with nascent Nazi ideology. (36) Long before the war or the rise of the National Socialist Party, German physicians had developed a burgeoning racial hygiene movement, which professed the ominous goal of eradicating "life unworthy of life." (37) When the chance arose, German physicians joined the ranks of the Schutzstaffel ("SS") more frequently than any other profession, abusing their eugenics training "to embrace the dogmas of Nordic supremacism and to accept the protocols of Nazi racial hygiene." (38) This "radicalization" of the eugenics movement gave legitimate cover to Nazi euthanasia policies, allowing the most respected medical establishment in the world to be willingly co-opted by those seeking to do harm and "providing an early foundation for the chain of events that became the Holocaust." (39) The silence of the German medical community and the breakdown of ethical protections in the face of such atrocities amounted to complicity by the entire profession, (40) highlighting the lack of any meaningful legal or ethical regulation of physicians. Although few physicians were ever prosecuted for their crimes, (41) few physicians were without blame.

B. THE DOCTORS' TRIAL

The Doctors' Trial became the first international tribunal to apply criminal law to physician activity. (42) Based upon the successful efforts of the International Military Tribunal, (43) the Doctors' Trial involved the American prosecution of German physicians who had taken part in the aforementioned Nazi medical experiments. (44) The trial, lasting 139 days, focused on twenty-three defendants, facing charges of conspiracy, war crimes, crimes against humanity, and membership in a criminal organization. (45) On August 19, 1947, the Court rendered its judgment in the case of United States v. Karl Brandt. (46) The Court found that "beginning with the outbreak of World War II, criminal medical experiments on non-German nationals, both prisoners of war and civilians, including Jews and 'asocial' persons, were carried out on a large scale in Germany and the occupied countries." (47) Addressing the magnitude of the experimental horrors that had occurred at the hands of the physician-defendants, the Court summarized:

 
   In every single instance appearing in the record, subjects were 
   used who did not consent to the experiments; indeed, as to some 
   of the experiments, it is not even contended by the defendants 
   that the subjects occupied the status of volunteers. In no case 
   was the experimental subject at liberty of his own free choice to 
   withdraw from any experiment. In many cases experiments were 
   performed by unqualified persons, were conducted at random for no 
   adequate scientific reason, and under revolting physical 
   conditions. All of the experiments were conducted with unnecessary 
   suffering and injury and but very little, if any, precautions were 
   taken to protect or safeguard the human subjects from the 
   possibilities of injury, disability, or death. In every one of the 
   experiments the subjects experienced extreme pain or torture, and 
   in most of them they suffered permanent injury, mutilation, or 
   death, either as a direct result of the experiments or because of 
   lack of adequate follow-up care. (48) 

To establish standards by which the defendants would be judged, the Court first had to codify international law for medical practice. (49) After elaborating the international law governing the defendants' conduct, the Court found that "all of these experiments involving brutalities, tortures, disabling injury, and death were performed in complete disregard of international conventions, the laws and customs of war, the general principles of criminal law as derived from the criminal laws of all civilized nations, and Control Council Law No. 10." (50) In its holding, the Court enumerated ten universal standards governing medical practice, the first and foremost proclaiming a nonderogable right of informed consent. (51) The ten standards laid out by the Nuremberg Court have come to be known as the Nuremberg Code. (52)

In rendering its verdict, the Court rejected defenses of state policy, superior orders, necessity, and the victims' inevitability of death, "rul[ing] that those high medical officials who possessed both knowledge of the experiments and the authority to modify or halt them were criminally liable." (53) The Court found sixteen of the physicians and scientists guilty and sentenced seven to death for war crimes and crimes against humanity. (54)

III. FAILURE AT NUREMBERG--PHYSICIAN ABUSES OF HUMAN RIGHTS CONTINUE TODAY

Nuremberg has had limited effect on worldwide medical practice. Although physicians drafted international codes of medical ethics to augment the Nuremberg Code, (55) these unenforceable codes did little to proscribe physician conduct. (56) Medical schools failed to educate their students in medical ethics. (57) Professional organizations declined to censure wayward physicians acting in violation of rights. (58) Even former Nazi doctors, only a small percentage of whom ever were tried or censured, went back to their work. (59) An enforceable international legal structure to govern physicians has never been developed. (60) Physicians--individually or as agents of the state--continue to use their medical expertise to violate the human rights of their patients and subjects without fear of regulation or prosecution. (61)

Prominent physicians have viewed the Doctors' Trial as a limited response to the "aberrant" actions of Nazi doctors. (62) The standards created by it are perceived to be "too uncompromising and too inhospitable to the advancement of science." (63) As such, physicians have disregarded the Nuremberg Code's significance to other Western research and treatments. (64) Without binding international law, no structural changes were put in place at the global level to prevent the medical profession from again becoming an instrument of harm.

Since Nuremberg, physicians have continued to perpetrate and facilitate human rights violations. (65) Physicians have been directly involved in the torture of prisoners, (66) as well as activities that facilitate torture. (67) In addition, physicians have abused psychiatry for political motives, involving psychological torture, false psychiatric diagnosis, and commitment of political dissidents under the guise of treatment for mental illness. (68) As state actors, physicians have violated human rights by taking part in forcible sterilization, force-feeding of hunger strikers, flogging, prolonged solitary confinement, and punitive amputation and mutilation. (69) Using their medical training in prisoner interrogations, physicians have taken a role in the forcible administration of nontherapeutic medications intended to reduce prisoner resistance. (70)

Numerous studies have documented the role of physicians in human rights abuses. Physicians had long collaborated with torturous regimes throughout the world, including Turkey, (71) Egypt, (72) Chile, (73) and Iraq. (74) Although predominantly confined to police states, democracies are not without incidence of physician abuse, most notably by the French in Algeria, the British in Northern Ireland, the Israelis in the Palestinian Territories, and the Spanish in the Basque region. (75)

In the past year, it has become clear that physicians have taken an active role in violating rights in the course of the United States' ever-expanding "War on Terror." Studies, based upon interviews with prisoners and soldiers and a review of existing government documents, have begun to uncover the role of U.S. military medical personnel in the human rights abuses of prisoners in Afghanistan, Iraq, and Guantanamo Bay, Cuba. (76) Including physician collaboration in coercive interrogations, falsification of injury reports, and withholding of basic medical services, these reports depict circumstances in which U.S. military physicians acted in deliberate contravention of international human rights and the Geneva Conventions. (77) In light of these abuses, analysts have renewed their injunctions against physician complicity in human rights violations, admonishing that "Abu Ghraib should serve as an eleventh hour wake-up call for the western world to rediscover and live by the values enshrined in its international treaties and democratic institutions." (78)

Beyond their clearly criminal participation in torture, physicians also take part in less truistic violations of human rights, including human experimentation on unwilling subjects; (79) advisement on and participation in corporal and capital punishment; (80) research on banned biological and chemical weapons; (81) and denial of and discrimination in the provision of health services. (82) Although such injurious actions do not engender the same prosecutorial response as those falling within the international torture framework, they nevertheless implicate physician participation in the violation of human rights.

Finally, physicians facilitate human rights violations through silence. By treating victims of these violations while remaining silent as to the cause of their plight, physicians aid repressive regimes by allowing nations to shield their human rights violations from public scrutiny. (83) Physicians who fail to document the injuries of human rights victims prevent the abuse from being proved, thereby making physicians accomplices in the further victimization of these individuals. (84) Specifically, in prison abuse cases, "[d]octors and nurses ... are often an abused prisoner's only contact with the outside world," and thus, "must assume a weighty responsibility as potential accessories. But they are pressured by members of intelligence organizations, the police, or the military to keep quiet or to document the 'natural' deaths of victims who have died as a result of torture." (85)

A physician's passive facilitation of human rights abuses does not extend only to physical harm. Physicians tacitly encourage systematic human rights violations merely by treating the psychic and social effects of state repression without condemnation of the causes of these harms. (86) While the scale and breadth of physician crimes is impossible to fix with any precision, it is clear that such activity is not merely the result of an "aberrant" minority. (87)

A. DOCTORS HAVE BEEN IMMUNE FROM PROSECUTION

Individual nations lack the capacity to punish physicians for human rights abuses under their domestic laws. (88) Countries, including the United States, cannot punish their military physicians because such violative treatment "is often justified on the basis of national security or military necessity," (89) creating "a framework in which monetarily compensating 'victims' of modern medical progress is accepted as the appropriate governmental response." (90) In fact, many state physicians throughout the world who have openly participated in torture have nevertheless continued to practice medicine without repercussion. (91) Even where national security is not at issue, national courts are reluctant to impose criminal sanctions against physicians based on an intractable belief that physicians, regardless of the result, always act in their patients' "best interests." (92) In many prominent cases of medical abuse, physicians have not faced civil or criminal penalties for violating their patients' right to informed consent. (93) Moreover, while many developed nations fail to follow established law governing physician behavior, many developing nations have yet to enact any systematic legislation regulating physicians. (94)

B. FAILURE OF PHYSICIAN SELF-REGULATION

In the aftermath of the Nazi horrors, physicians from thirty-two national medical associations met in London in 1946 to form the first international medical organization, the World Medical Association ("WMA"). The WMA has since burgeoned to become the world's preeminent physician organization. While the following discussion focuses on the WMA, the intent herein is to abstract from WMA behavior certain generalities common to many organizations of physician self-regulation. (95)

The WMA, like other self-regulating national and international associations of health professionals, has repeatedly shown that its raison d'etre is the protection of physicians, not the protection of patients. Although the WMA quickly "condemned the crimes and inhumanity committed by doctors in Germany and elsewhere against human beings," (96) it established the potentially conflicting objective of "protect[ing] the interests of the medical profession." (97) The WMA "has never sought or exercised any authority to identify, monitor, or punish either physicians or medical societies who violate their ethical principles." (98)

In 1981, the WMA--at the urging of representatives from the United States, Japan, and the Federal Republic of Germany--admitted the Medical Association of South Africa, a predominantly white physician organization that had colluded with the apartheid government of that country. (99) As a corollary to this move, the WMA further served the South African apartheid regime by admitting the Transkei Medical Association, the medical body of Bantusta, an unrecognized apartheid-created state established solely to remove seventy-five percent of blacks from South Africa. (100) In doing so, the WMA clearly "placed the issue of medical 'fraternity' above the issue of human rights" and acted to support doctors whose medical association affirmatively harmed the health of black South Africans. …

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