The new accountability for doctors who torture

Steven H. Miles

Published January 22, 2014

Physicians are integral to the modern infliction of torture. They help regimes devise and implement means of torture that minimize scars that serve as evidence. They help keep prisoners alive who are not supposed to die by calibrating the severity of torture to their medical conditions and treating injuries caused by torture before their patients are returned to torture centers. They falsify medical records and death certificates to conceal torture. These acts of complicity are a form of medical abandonment that demoralizes prisoners.1,2

Although medical standards and international law unambiguously condemn physicians’ complicity with torture, impunity for physicians assisting torture has been the rule. The rule is changing. Since World War II, the international human rights movement has evolved through three stages.

  • The first was endorsing aspirational pronouncements. This stage began with the comprehensive “Universal Declaration of Human Rights” in 1948 and has continued to this day through the elaboration of various treaties and codes that have advocated for human rights and condemned policies and practices that abuse those rights. Among those policies are the 1949 Geneva Conventions, the 1984 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and the United Nations 1988 Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment.
  • The second stage, epitomized by the founding of Amnesty International in 1961, advocated on behalf of endangered human rights advocates. A variety of organizations continue this work today.
  • The third stage exposes regimes and leaders that violate human rights and presses for the prosecution and punishment of government officials who have abetted crimes against humanity. Although the trials by the ad-hoc tribunal at Nuremberg are often cited as the beginning of this phase, they left no institutional infrastructure to create a precedent. For this reason, I concur with Sikkink who dates this phase to 1975 when national courts indicted and punished the leaders of juntas in Greece and Portugal.3 An International Criminal Court was created in 2002 by which time many nations had already created national tribunals to punish their leaders for crimes against humanity.

The parallel evolution with regard to physician complicity with torture is less well known. Immediately after World War II, a congress of national medical associations, calling itself “The World Medical Association,” convened in Paris. Over the next five decades, it endorsed a series of codes describing the duty of military and prison physicians to comply with international law, protect prisoners’ welfare and shun direct or indirect complicity with torture. These standards informed and were emulated by the United Nations, the International Committee of the Red Cross, and countless medical societies. Amnesty International’s Health Professional Network and some medical societies spoke to protect physicians who were endangered by reprisals for their work against torture.4 And yet, notwithstanding the precedent of the Nazi Doctors trial at Nuremburg in 1947, no physicians were criminally or professionally punished for violating those codes of conduct until 1975. In 1975 members of a Greek junta were among the first leaders to be tried by domestic proceedings for human rights crimes.3 Those trials were a watershed for physicians as well; Greece court martialed and imprisoned Dr. Dimitrios Kofas for abetting torture.1

Since 1975, the pace of punishing physicians has accelerated. During the 1980s, four countries (Argentina, Chile, South Africa, Uruguay) held physicians accountable for torture. As those four pursued new prosecutions, Brazil and Rwanda joined their ranks during the 1990s. Pakistan and Sri Lanka punished physicians in the first decade of the twentieth century. Since 2010, three more (Guyana, Italy, United Kingdom) have joined them.5,6 Once countries have a precedent, new proceedings are initiated over many years— the most recent being the seven-year prison sentence imposed on an Argentine psychiatrist in November 2013. In the last thirteen years alone, 36 physicians have been punished for crimes against humanity, more than in the years 1975 to 2000 combined. Egypt, Russia, and the United States have convened unfruitful criminal or regulatory proceedings against physicians. Medical licensing boards for unprofessional conduct relating to war crimes convene about two-thirds of the hearings. The rest are criminal proceedings.

Despite this progress, impunity remains the rule. Physicians are reliably recorded as having assisted torture in at least seventy countries that have not punished any such physician.6 In addition, the countries that have held some physicians accountable have left many other physicians alone.5

Medical impunity for torture has personal and institutional dimensions. The personal is most obvious: a physician abets the torture of persons without fear of censure, loss of his license or imprisonment. Institutional impunity occurs when courts, medical licensing boards or medical societies are not held responsible for failing to try to punish physicians who abet torture. Impunity severs the connection between anti-torture codes and the effort to ban torture.7,8 The effort to prevent torture requires focusing on individual physicians as well as urging medical and legal institutions to exercise their responsibilities in this matter.9

“Social media,” a term that is only a decade old, refers to the sharing of largely user-generated content among people with common interests via internet- or cell phone-based communications (e.g., websites, blogs, twitter, etc.). Social media plays an increasingly important role in the human rights movement as it disseminates information about human rights abuses and tactics for addressing those abuses. A pre-internet example of social organization for physician accountability for torture was the international effort that eventually forced the Health Profession’s Council of South Africa to censure two physicians who abetted the torture and murder of anti-Apartheid activist, Stephen Biko.10 Today, in South America, human rights groups, including “Si No Hay Justicia, Hay Escrache! (If there is no justice, there will be denouncing),” post dossiers of physicians and other military officials on websites and use social media to mobilize demonstrations at physicians’ homes and offices. This “denouncing” movement is covered by the press and played a major role in pressuring courts and medical boards to take action against individual physicians. International human rights groups such as Human Rights Watch, Amnesty International, or the Asian Human Rights Commission post country reports online that are readily searchable for terms like physician and torture. This kind of publicity played a role in a punishment of a physician in Sri Lanka.5 The United Nation’s Special Rapporteur for Torture routinely assesses whether prison physicians see tortured prisoners, record trauma, and respond to prisoners’ complaints and it publishes its reports on a user-friendly website.11,12

This use of social media to support holding human rights violators accountable differs from the earlier mass campaigns to mobilize public support to protect prisoners of conscience and endangered human rights advocates.

A new website

“The Doctors Who Torture Accountability Project” builds from lessons learned about using social media to advance human rights.5 At its core, it is a unique library. It compiles credible reports showing 1) that physicians have been known to abet torture in that country since 1975 and 2) reports of licensing board or legal hearings that have punished physicians for torture. It also contains a reference library of international laws and professional standards addressing physician complicity with torture. This library of downloadable copies of the international standards should be useful to courts, medical boards, medical societies or human rights groups that are considering how to hold physicians accountable for torture, especially in countries where such works are not readily available.

The site also classifies countries where physicians are authoritatively documented as having abetted torture. It classifies these countries into one of three groups: (a) those that have systematically punished numerous physicians, (b) those that have punished one or symbolic high-profile individual physicians, or (c) those that have not punished any physician. Documents are provided in support of the classification of each country. This documentation shows both the norm of impunity and the reality of increasing accountability. It thereby addresses the misperception that impunity must be the rule. The individual reports of punishment also serve as a “casebook” showing the diversity of cultures, governments, proceedings, and charges. The site is open to user-submitted updates. New information is independently vetted or verified before being posted along with the supporting documentation, usually official records, and reports by recognized international organizations or credible NGOs. Contributors may remain unidentified. In its first month (July 2013), the site had 20,000 page views from nearly one hundred countries with no advertising or media coverage. The website does not currently include national medical association ethics codes pertaining to physician complicity with torture; it is hoped that these will be added over the next year or so.

Conclusion

The international human rights movement is increasingly holding physicians who abet torture accountable with criminal and regulatory punishments. This evolution harmonizes standards of professional conduct with professional consequences. It reminds physicians that complicity with torture enjoys no statute of limitations or promise of professional sanctuary—no matter the power, practice, military orders or laws of a regime. It offers a hope of justice to prisoners and to the larger civil society whose justified expectation for humane physicians has been betrayed. It drives a wedge, thin today, between torturing regimes and their reliance on the silent complicity of physicians who assist, see, or conceal the abuse of prisoners.

Accountability for physicians who abet torture does not resolve many ethical problems. It does not resolve the issue of whether a physician’s fear of being tortured for resisting torture is so well grounded as to excuse their silent complicity with orders. Nevertheless, the justified fear of reprisals of North Korean physicians does not excuse similar inaction by medical boards and courts and physicians in open societies, such as the United States’ clinicians who oversaw waterboarding or British physicians who silently treated castrated Mau-Mau. It does not cleanly draw a line between a poor country’s lack of health care resources and torture as medical neglect of prisoners. It does not resolve the question of what penalties should be levied. Some countries with few physician resources can ill afford to strike a competent surgeon from the medical register. These issue all merit attention.

Somewhat surprisingly, physician accountability for torture seems less a legacy of the Nazi doctors’ trial at Nuremberg, a singular and externally imposed prosecution that went unrepeated for two generations. Rather the recent punishments of physicians seem to arise from a new human rights movement focusing on national accountability for any state official that commits war crimes. This new human rights movement summons the medical profession to its core mission of healing and to the larger task of decreasing the reign of terror by torture.

Steven H. Miles, MD, is Maas Family Foundation Professor of Medical Ethics and Professor of Medicine at University of Minnesota Medical School, MN, USA.

Please address author correspondence to the author, Steven H. Miles, University of Minnesota Medical School, N504 Boynton, 410 Church Street SE, Minneapolis, MN, USA, email: miles001@umn.edu.

References

1. E. Stover and E. Nightingale, The breaking of bodies and minds: Torture, psychiatric abuse, and the health professions (Washington DC: American Association for the Advancement of Science, 1985).

2. British Medical Association, Medicine betrayed: The participation of doctors in human rights abuses: Report of a working party (London: Zed Books, 1992).

3. K. Sikkink, The justice cascade: How human rights prosecutions are changing world politics (The Norton Series in World Politics: March 2012).

4. T. Lucas and C. Pross, “Caught between conscience and complicity: Human rights violations and the health professions,” Medicine & Global Survival 2/2 (1995), pp. 106—114.

5. S. H. Miles, T. Alencar, and B. Crock, “Punishing physicians who torture: A work in progress,” Torture 20 (2010), pp. 23—31.

6. S. H. Miles, “The doctors who torture accountability project.” Available at http://www.doctorswhotorture.com/ (accessed November 15, 2013).

7. Principles of Medical Ethics relevant to the Role of Health Personnel, particularly Physicians, in the Protection of Prisoners and Detainees against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, G.A. Res. 37/194 (1982). Available at http://www.ohchr.org/EN/ProfessionalInterest/Pages/MedicalEthics.aspx.

8. World Medical Association, Guidelines for physicians concerning torture and other cruel, inhuman or degrading treatment or punishment in relation to detention and imprisonment (Declaration of Tokyo) (World Medical Association: 1975).

9. British Medical Association, Recommendations from the medical profession and human rights: Handbook for a changing agenda (London: British Medical Association, 2006).

10. G. R. Mclean and T. Jenkins, “The Steve Biko affair: A case study in medical ethics,” Developing World Bioethics 3/1 (May 2003), pp. 22—95.

11. UN Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, Applying the torture and ill-treatment protection framework in health-care settings, A/HRC/22/53 (February 1, 2013).

12. American University, Washington College of Law with the United Nations Special Rapporteur on torture and other cruel inhuman and degrading treatment or punishment, Anti-Torture Initiative. Available at http://antitorture.org.