Law and ethics

July 23rd, 2009 | Related to Resources

No health professionals involved in post 9-11 torture of prisoners in military and intelligence facilities have been sanctioned for their conduct.

Torture is a Crime

Torture, attempted torture, and conspiracy to commit torture are all crimes under the Federal Torture Statute and the War Crimes Act (along with, e.g., cruel or inhuman treatment, performing biological experiments, rape, sexual assault or abuse, murder, mutilation or maiming, or intentionally causing bodily injury).

Under international law, torture is one of the few crimes considered so egregious that there is universal jurisdiction for it, meaning any state in the world can prosecute a torturer, no matter where the crime was committed. In the words of a landmark U.S. ruling with regard to civil liability for torture, “the torturer has become–like the pirate and slave trader before him–hostis humani generis, an enemy of all mankind.” Filartiga v. Pena-Irala, 630 F.2d 876, 890 (CA2 1980).

The United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, a legally binding document signed by President Ronald Reagan in 1988 and ratified in 1994, defines torture as:

any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.

CAT also prohibits cruel, inhuman or degrading treatment or punishment.

Additionally, Common Article 3 of the Geneva Conventions prohibits torture as well as acts of “violence to life and person, in particular … cruel treatment … outrages upon personal dignity, [and] in particular, humiliating and degrading treatment.” Common Article 3 further provides that those not actively taking part in hostilities, such as persons in detention “shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria.” The U.S. Supreme Court, in Hamdan v. Rumsfeld, 548 U.S. 557 (2006), determined that Common Article 3 of the Geneva Conventions applied to detainees from the U.S. conflict with Al Qaeda.

Torture is Unethical

It is a gross contravention of medical ethics, as well as an offence under applicable international instruments, for health personnel, particularly physicians, to engage, actively or passively, in acts which constitute participation in, complicity in, incitement to or attempts to commit torture or other cruel, inhuman or degrading treatment or punishment.

United Nations 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 (1982)

The doctor shall not countenance, condone or participate in the practice of torture or other forms of cruel, inhuman or degrading procedures, whatever the offence of which the victim of such procedures is suspected, accused or guilty, and whatever the victim’s beliefs or motives, and in all situations, including armed conflict and civil strife.

World Medical Association (WMA) Declaration of Tokyo (1975)

Physicians must oppose and must not participate in torture for any reason. Participation in torture includes, but is not limited to, providing or withholding any services, substances, or knowledge to facilitate the practice of torture. Physicians must not be present when torture is used or threatened.

Physicians may treat prisoners or detainees if doing so is in their best interest, but physicians should not treat individuals to verify their health so that torture can begin or continue. Physicians who treat torture victims should not be persecuted. Physicians should help provide support for victims of torture and, whenever possible, strive to change situations in which torture is practiced or the potential for torture is great.

AMA Code of Medical Ethics Opinion 2.067

Nurses abstain from using their nursing knowledge and skills in any manner, which violates the rights of detainees and prisoners.

International Council of Nurses (ICN)
Position Statement on Nurses’ Role in the Care of Detainees and Prisoners (1975, 1998, and 2006)

Whereas torture is an abhorrent practice in every way contrary to the APA’s stated mission of advancing psychology as a science, as a profession, and as a means of promoting human welfare. …

Be it resolved that psychologists may not work in settings where persons are held outside of, or in violation of, either International Law (e.g., the UN Convention Against Torture and the Geneva Conventions) or the US Constitution (where appropriate), unless they are working directly for the persons being detained or for an independent third party working to protect human rights.

American Psychological Association (APA) Petition Resolution (passed by referendum in 2008)