1 E.g., CHARLES FRIED, MEDICAL EXPERIMENTATION: PERSONAL INTEGRITY AND SOCIAL POLICY 147-48 (1974) (control of polio); Donald, A. Henderson, Smallpox—Epitaph for a Killer?, 154 NAT’L GEOGRAPHIC 796 (1978)Google Scholar (worldwide eradication of smallpox); Fiona, Fleck, WHO Says SARS Outbreak Is Over, But Fight Should Go On, 70 BMJ 327 (2003)Google Scholar (containment of Severe Acute Respiratory Syndrome (SARS)).

2 The most famous and lasting of physician ethical oaths, the Hippocratic Oath, charges graduating medical students to “abstain from harming or wrongdoing” in their work. M.B. ETZIONY, THE PHYSICIAN's CREED 13 (1973); K.C. Calman & R.S. Downie, Ethical Principles and Ethical Issues in Pubic Health, in 1 OXFORD TEXTBOOK OF PUBLIC HEALTH 391, 392 (3rd ed. 1997) (noting that medical ethics have long imposed duties on physicians, which “have traditionally been thought of as those of not harming the patient (non-maleficence) and of helping the patient (beneficence)”).

3 E.g., Eva Mozes-Kor, The Mengele Twins and Human Experimentation: A Personal Account, in GEORGE J. ANNAS & MICHAEL A. GRODIN, THE NAZI DOCTORS AND THE NUREMBERG CODE: HUMAN RIGHTS IN HUMAN EXPERIMENTATION 53 (1992) (experiments with children at the Auschwitz concentration camp); Claire, Alida Milner, Gulf War Guinea Pigs: Is Informed Consent Optional During War?, 13 J. CONTEMP. HEALTH L. & POL’Y 199, 218-223 (1996)Google Scholar (intentional LSD exposure of uninformed and non-consenting subjects).

4 GEORGE J. ANNAS, SOME CHOICE: LAW, MEDICINE, AND THE MARKET 253 (1998).

5 George J. Annas is the Director of the Law, Medicine & Ethics Program at the Boston University Schools of Medicine and Public Health; Michael A. Grodin is an Associate Director of the Law, Medicine & Ethics Program at the Boston University Schools of Medicine and Public Health.

6 George, J. Annas & Michael, A Grodin, Medical Ethics and Human Rights: Legacies of Nuremberg, 3 HOFSTRA L. & POL’Y SYMP. 111, 119 (1999)Google Scholar (citing Grodin et al., infra note 113, at 8- 12).

7 Annas & Grodin, supra note 6, at 118.

8 Rome Statute of the International Criminal Court, July 17, 1998, U.N. Doc. No. A/CONF.183/9, reprinted in 37 I.L.M. 999, 1012 (1998) [hereinafter Rome Statute].

9 Rome Statute art. 5(1). Before any prosecutions can be heard under the crime of aggression, an amendment to the Rome Statute will first be needed to define the crime of aggression and set out the conditions under which the ICC could exercise jurisdiction. Rome Statute art. 5(2). The Rome Statute specifically allows for the future definition of the crime of aggression, which would take place at a review conference seven years after the entry into force of the Rome Statute, April 11, 2009. See Rome Statute arts. 121, 123.

10 Benjamin Ferencz, The Experience of Nuremberg, in INTERNATIONAL CRIMES, PEACE, AND HUMAN RIGHTS: THE ROLE OF THE INTERNATIONAL CRIMINAL COURT 3, 9 (Dinah Shelton ed., 2000) (“What was done in the International Military Tribunal [at Nuremberg] and reinforced in the twelve subsequent trials is the basis for the current efforts to build a permanent International Criminal Court and other institutions to hold individuals responsible for their criminal acts.”).

11 Kristina, D. Rutledge, “Spoiling Everything”—But for Whom? Rules of Evidence and International Criminal Proceedings, 16 REGENT U. L. REV. 151, 161 (2004)Google Scholar (noting that “the legacy of the World War II trials and the recent experiences of the ad hoc tribunals have influenced the development of the International Criminal Court's rules of procedure and evidence” (quoting THEODOR MERON, WAR CRIMES LAW COMES OF AGE 297 (1998))).

12 For an historical survey of medical crimes prior to World War II, see generally M. Cherif Bassiouni et al., An Appraisal of Human Experimentation in International Law and Practice: The Need for International Regulation of Human Experimentation, 72 J. CRIM. L. & CRIMINOLOGY 1597, 1598-1600 (1981).

13 See Telford Taylor, Opening Statement of the Prosecution, December 9, 1946, reprinted in ANNAS & GRODIN, supra note 3, at 67 (“The defendants in this case are charged with murders, tortures, and other atrocities committed in the name of medical science … . To their murderers, these wretched people were not individuals at all. They came in wholesale lots and were treated worse than animals.”).

14 Matthew, Lippman, The Nazi Doctors Trial and the International Prohibition on Medical Involvement in Torture, 15 LOY. L.A. INT'L & COMP. L.J. 395, 406 (1993)Google Scholar (citing Law for the Prevention of Hereditarily Diseased Offspring (July 14, 1933), in 2 NAZISM 1919-1945: A HISTORY IN DOCUMENTS AND EYEWITNESS ACCOUNTS, THE NAZI PARTY, STATE AND SOCIETY 1919-1939, at 457 (J. Noakes & G. Pridham eds., 1984)).

15 Victor, W. Sidel, The Social Responsibilities of Health Professionals: Lessons from Their Role in Nazi Germany, 276 JAMA 1679, 1679 (1996)Google Scholar; Jeremiah, A. Barondess, Medicine Against Society: Lessons from the Third Reich, 276 JAMA 1657, 1657-60 (1996)Google Scholar (noting that the German Medical Association, in accordance with the German Sterilization Law of 1933, published a journal to guide physicians and special “eugenical courts” in determining which patients were appropriate subjects for sterilization).

16 Lippman, supra note 14, at 407 (noting that sterilization criteria “served as pretexts to justify the sterilization of Bohemians, rebels, and deviants” (citing MICHAEL BURLEIGH & WOLFGANG WIPPERMANN, THE RACIAL STATE: GERMANY 1933-1945, at 253 (1991))).

17 Lippman, supra note 14, at 408 (noting that “[b]y August 24, 1941, the completion of the initial phase of the euthanasia initiative, over 70,000 patients from more than one hundred German hospitals had been killed” (citing ROBERT PROCTOR, RACIAL HYGIENE: MEDICINE UNDER THE NAZIS 177 (1988))); Matthew, Lippman, The Other Nuremberg: American Prosecutions of Nazi War Criminals in Occupied Germany, 3 IND. INT’L & COMP. L. REV. 1, 22 (1992)Google Scholar (“The euthanasia program involved the systematic execution of Germans in medical institutions—the aged, crippled, infirm, insane and incurably ill by lethal injection, gas and other means … . This program served as the first step towards the wholesale extermination of Jews, Gypsies and Slavic populations.”).

18 Barondess, supra note 15, at 1660.

19 Lippman, supra note 17, at 22 (“Between May 1942 and January 1944, tens of thousands of Polish internees who allegedly were infected with tuberculosis were executed in order to ensure the public health and welfare.” (citing United States v. Brandt, in II TRIALS OF WAR CRIMINALS BEFORE THE NUREMBERG MILITARY TRIBUNALS UNDER CONTROL COUNCIL LAW NO. 10, at 179 (1950))).

20 Michael, J. Malinowski, Choosing the Genetic Makeup of Children: Our Eugenics Past, Present, and Future?, 36 CONN. L. REV. 125, 152-54 (2003)Google Scholar (noting the medical establishment's “commitment to healing and strengthening the German state and belief in social Darwinism” as reasons for the actions of German physicians); Lippman, supra note 14, at 420 (“This was the ‘healing-killing paradox,’ the belief that the German people would be healed and protected by annihilating the virus of racial inferiority.” (citing ROBERT JAY LIFTON, THE NAZI DOCTORS: MEDICAL KILLING AND THE PSYCHOLOGY OF GENOCIDE 202 (1986))). For an examination of the psychological motives of Nazi physicians, see LIFTON, supra, at 434-55.

21 LIFTON, supra note 20, at 434-55; Sidel, supra note 15, at 1679 (“Physicians were essential elements in running the death camps, deciding on the admission ramps who was fit enough to be permitted to live temporarily to perform forced labor and who should be promptly killed; in some instances health personnel participated directly in the murder of camp inmates …”).

Lippman, supra note 14, at 409-10 (citations omitted).

22 William, E. Seidelman, Whither Nuremberg?: Medicine's Continuing Nazi Heritage, 2 MED. & GLOBAL SURVIVAL 148 (1995)Google Scholar, available at http://www.ippnw.org/MGS/V2N3Seidelman.html (“Having been defined as ‘life without value’ the inmates of the concentration camps were considered appropriate subjects for deadly research.”). Ironically, many Jewish refugees who escaped the Holocaust were unable to escape involuntary medical experimentation, finding themselves deliberately infected with malaria while interned in British refugee camps in Australia. See Elli Wohlgelernter, Report: Australian Army Experimented on Jews in WWII, JERUSALEM POST, Apr. 20, 1999, at 1.

23 United States v. Brandt, in TRIALS OF WAR CRIMINALS BEFORE THE NUREMBERG MILITARY TRIBUNALS (1948), reprinted in JAY KATZ, EXPERIMENTATION WITH HUMAN BEINGS: THE AUTHORITY OF THE INVESTIGATOR, SUBJECT, PROFESSIONS, AND STATE IN THE HUMAN EXPERIMENTATION PROCESS 296 (1972) [hereinafter Nuremberg Trials].

24 Subjects were forced to remain in a tank of ice water for periods up to 3 hours to examine hypothermic processes. Nuremberg Trials, supra note 23, at 293.

25 Subjects were deliberately infected with malaria to investigate immunization procedures. Id.

26 Subjects were deliberately wounded with wood shavings and ground glass or infected with bacteria such as streptococcus, gas gangrene, and tetanus, and then treated with sulfanilamide to determine its effectiveness. Id.

27 Subjects had their bones, muscles and nerves transplanted with those of other subjects. United States v. Brandt, in TRIALS OF WAR CRIMINALS BEFORE THE NUREMBERG MILITARY TRIBUNALS, supra note 23, at 176-77.

28 Subjects were deliberately infected with spotted fever virus or Rickettsia typhi to keep the virus alive or assess untested treatments. Nuremberg Trials, supra note 23, at 294-96.

29 Subjects were deliberately subjected to high-dose radiation to assess the efficiency of mass sterilization. Id. at 295.

30 Subjects were deliberately shot with poisoned bullets then promptly killed to permit autopsies. Id. at 294-95.

31 The most heavily documented of the experiments on human prisoners are those that took place at the Auschwitz concentration camp under the direction of Dr. Joseph Mengele. See generally LIFTON, supra note 20, at 147-416. Among Dr. Mengele's gruesome experiments, his experiments with twins, mostly children, stands out as his most horrific, in which only 160 individuals out of at least 3,000 survived. See generally LUCETTE MATALON LAGNADO & SHEILA COHN DEKEL, CHILDREN OF THE FLAMES: DR. JOSEF MENGELE AND THE UNTOLD STORY OF THE TWINS OF AUSCHWITZ (1992).

32 See Nuremberg Trials, supra note 23, at 297 (Opening Statement of the Prosecution by Brigadier General Telford Taylor: “None of the victims of the atrocities perpetrated by these defendants were volunteers, and this is true regardless of what these unfortunate people may have said or signed before their tortures began.”).

33 Barondess, supra note 15, at 1660. In fact, death was often the explicit intention of these experiments, with physicians using their experiments to discover more efficient ways to exterminate life. In the Doctors’ Trial, prosecutors referred to this not as medical science but as “thanatology,” “the science of producing death.” United States v. Brandt, in I TRIALS OF WAR CRIMINALS BEFORE THE NUREMBERG MILITARY TRIBUNALS UNDER CONTROL COUNCIL NO. 10, at 38 (1950).

34 Andrew C. Ivy, M.D. (Medical Consultant to the Prosecution, Military Tribunal No. 1, Nuremberg), Statement, in Alexander Mitscherlich, DOCTORS OF INFAMY: THE STORY OF THE NAZI MEDICAL CRIMES (Heinz Norden trans., 1949) [hereinafter DOCTORS OF INFAMY].

Id. at xii-xiii.

Following the war and its resulting trials, the German medical community continued to deny its complicity in the crimes of the Nazi regime, with “[t]he (West) German medical organization assert[ing] that only a very small number of members of the profession were involved in the crimes” and arguing that “[r]esponsibility was laid with a ‘criminal minority … entrusted with power over life and death.” Seidelman, supra note 22 (quoting 1 WMA BULLETIN (1949)). Even today, the Federal Chamber of Physicians of Germany continues to deter historical revision of this prevailing German view of Nazi physicians. Id.

35 Eric, Stover, In the Shadow of Nuremberg: Pursuing War Criminals in the Former Yugoslavia and Rwanda, 2 MED. & GLOBAL SURVIVAL 140 (1995)Google Scholar, available at http://www.ippnw.org/MGS/V2N3Stover.html (“Most [Nazi physicians] had studied eugenics, a body of pseudo-biological theory that regarded persons such as the feebleminded, the mentally diseased, and the deformed as inimical to the human race. Eugenicists held that physicians should destroy ‘life devoid of value,’ so as to ‘purify’ the Aryan race.”); David Woods, Half of German Doctors Were Nazis, 313 BMJ 900, 900 (1996) (defining the Nazi ideology underlying eugenics as “an ideology that venerated Aryan purity and viewed as subhuman and ‘dispensable’ mentally retarded or physically handicapped people, homosexuals, gypsies, and Jews”). For a history of the global eugenics and race hygiene movements, see Barondess, supra note 15, at 1657-60.

36 Lippman, supra note 14, at 400-05.

37 Sidel, supra note 15, at 1679.

38 Barondess, supra note 15, at 1658 (noting the extensive involvement of physicians in the National Socialist Party in 1930s Germany); PROCTOR, supra note 17, at 66 (noting that 46,000 physicians, approximately half of the total physicians in Germany, had joined the National Socialist Party by 1943).

39 Barondess, supra note 15, at 1659; Lippman, supra note 14, at 421 (noting that physician “involvement in experimentation, torture, and genocide was essential for preserving the Nazi myth that the National Socialist regime was engaged in medicine rather than murder” (citing LIFTON, supra note 20, at 460)).

40 DOCTORS OF INFAMY, supra note 34, at xi. (“[F]ar from opposing the Nazi state militantly, part of the German medical profession cooperated consciously and even willingly, while the remainder acquiesced in silence.”); see also Woods, supra note 35, at 900 (noting that although German medical codes proscribed nonconsensual human experimentation, German physicians nevertheless “failed to challenge ‘the rotten core of Nazism … there was no speaking out, no resistance, no sabotage’” (quoting Dr. Robert Proctor)); Lippman, supra note 14, at 405 (“While perhaps only 350 doctors are known to have committed medical crimes, the vast majority of doctors tolerated the expulsion of their Jewish colleagues from the medical profession and accepted the Nazi's dubious racial theories.” (citing LIFTON, supra note 20, at 43-44)).

41 William, E Seidelman, Nuremberg Lamentation: For the Forgotten Victims of Medical Science, 313 BMJ 1463, 1464 (1996)Google Scholar (“Absent from the dock [at Nuremberg] were the leaders of the medical profession of the Third Reich, in particular the academic and scientific elite. It was this [sic] elite who legitimized the devaluation of human life and set the stage for medical crimes--crimes in which leading academics and scientists were either principals or accomplices.”).

42 Although the Allied Powers conducted an International Military Tribunal for the Far East, this tribunal neglected to prosecute Japanese physicians accused of human rights violations. As one author laments,

Stover, supra note 35

43 Under Control Council Law No. 10, the Allied Control Council of Germany intended to “establish a uniform legal basis in Germany for the prosecution of war criminals and other similar offenders, other than those dealt with by the International Military Tribunal.” PUNISHMENT OF PERSONS GUILTY OF WAR CRIMES, CRIMES AGAINST PEACE AND AGAINST HUMANITY, CONTROL COUNCIL LAW NO. 10 (1945), reprinted in VI TRIALS OF WAR CRIMINALS BEFORE THE NUREMBERG MILITARY TRIBUNALS UNDER CONTROL COUNCIL LAW NO. 10, at XVIII (1952). For a thorough analysis of the twelve ancillary trials following the International Military Tribunal at Nuremberg, see Lippman, supra note 17, at 10-82.

44 II TRIALS OF WAR CRIMINALS BEFORE THE NUREMBERG MILITARY TRIBUNALS UNDER CONTROL COUNCIL LAW NO. 10, supra note 19, at 171; see also Nuremberg Trials, supra note 23, at 293-94.

45 II TRIALS OF WAR CRIMINALS BEFORE THE NUREMBERG MILITARY TRIBUNALS UNDER CONTROL COUNCIL LAW NO. 10, supra note 19, at 173-81.

46 Nuremberg Trials, supra note 23, at 328.

47 II TRIALS OF WAR CRIMINALS BEFORE THE NUREMBERG MILITARY TRIBUNALS UNDER CONTROL COUNCIL LAW NO. 10, supra note 19, at 181.

48 Id. at 183.

49 Lippman, supra note 14, at 395 (“The decision clearly established that medical professionals possess ethical and international legal duties that transcend the demands of domestic law.”).

50 II TRIALS OF WAR CRIMINALS BEFORE THE NUREMBERG MILITARY TRIBUNALS UNDER CONTROL COUNCIL LAW NO. 10, supra note 19, at 183. Control Council Law No. 10 defines “crimes against humanity” as “[a]trocities and offences, including but not limited to murder, extermination, enslavement, deportation, imprisonment, torture, rape, or other inhumane acts committed against any civilian population, or persecutions on political, racial or religious grounds whether or not in violation of the domestic laws of the country where perpetrated.” PUNISHMENT OF PERSONS GUILTY OF WAR CRIMES, CRIMES AGAINST PEACE AND AGAINST HUMANITY, ALLIED CONTROL COUNCIL LAW No. 10, at Art. II(c) (1945), reprinted in M. CHERIF BASSIOUNI, CRIMES AGAINST HUMANITY IN INTERNATIONAL CRIMINAL LAW 590 (1992).

51 The Nuremberg Code, reprinted in ANNAS & GRODIN, supra note 3, at 2. The first principle, in full, states:

Id.

52 Id. Further, many of the standards laid down in the International Military Tribunal at Nuremberg formed the basis for the Universal Declaration of Human Rights. Ferencz, supra note 10, at 8.

53 Lippman, supra note 19, at 23 (citing II TRIALS OF WAR CRIMINALS BEFORE THE NUREMBERG MILITARY TRIBUNALS UNDER CONTROL COUNCIL LAW NO. 10, supra note 19, at 193).

54 In addition, there were nine sentences of confinement and eight acquittals. ANNAS & GRODIN, supra note 3, at 120. Of the nine sentenced to prison, all had their sentences commuted to sentences of no more than twenty years. Id. The Court awarded no financial compensation to either the victims or their families.

55 WMA, The Hippocratic Oath Formulated at Geneva, reprinted in EXPERIMENTATION WITH HUMAN BEINGS: THE AUTHORITY OF THE INVESTIGATOR, SUBJECT, PROFESSIONS, AND STATE IN THE HUMAN EXPERIMENTATION PROCESS 312 (Jay Katz ed., 1972).

56 ANNAS & GRODIN, supra note 3, at 313.

57 Ole, Vedel Rasmussen, The Involvement of Medical Doctors in Torture: The State of the Art, 17 J. MED. ETHICS: SUPP. 26, 27 (1991)Google Scholar; Neil, McIntyre & Karl, Popper, The Critical Attitude in Medicine: The Need for a New Ethics, 287 BMJ 1919, 1922 (1983)Google Scholar. Although select Western medical schools have used human rights documents to oblige students not to “use … medical knowledge contrary to the laws of humanity,” these documents have become nothing more than vacuous incantation for medical students, repeated at graduation but never taught or explained in the classroom. Sidel, supra note 15, at 1680 (noting that “US medical schools have not fully incorporated international human rights into their required curricula”); Jeffrey, Sonis et al., Teaching of Human Rights in US Medical Schools, 276 JAMA 1676, 1677 (1996)Google Scholar.

58 See Lippman, supra note 14, at 440.

59 LIFTON, supra note 20, at 457 (“Even Nazi doctors who had been directly involved in murder could initiate or resume medical practice in their home areas and become conscientious, muchadmired physicians.”). Among those acquitted at Nuremberg, several were subsequently recruited by the U.S. military via “Project Paperclip,” through which the United States exploited the knowledge obtained through Nazi experiments by bringing these physicians to the United States to continue their work for government and private science facilities. LINDA HUNT, SECRET AGENDA: THE UNITED STATES GOVERNMENT, AND THE PROJECT PAPERCLIP, 1945 to 1990, at 78-93 (1991); TOM BOWER, THE PAPERCLIP CONSPIRACY: THE HUNT FOR NAZI SCIENTISTS 124-32 (1987).

60 See Lippman, supra note 14, at 441 (“The United Nations should commemorate the fiftieth anniversary of the Universal Declaration of Human Rights by adopting a binding Declaration on the responsibility of doctors and other professionals to protect universal human rights and to refrain from involvement in international criminal activity, such as the practice of torture.”); Erwin, Deutsch, Medical Experimentation: International Rules and Practice, 19 VICTORIA U. WELLINGTON L. REV. 1, 4 (1989)Google Scholar; Annas & Grodin, supra note 7, at 121.

61 Lippman, supra note 14, at 441 (“The Doctors Trial, however, did not deter various contemporary doctors from involving themselves in torture despite the international community's affirmation that doctors have a special responsibility to refrain from involving themselves in the abuse and torture of prisoners and detainees.”); see generally HENRY K. BEECHER, RESEARCH AND THE INDIVIDUAL: HUMAN STUDIES (1970) (detailing legal and ethical rights violations by U.S. physicians); M.H. PAPPWORTH, HUMAN GUINEA PIGS: EXPERIMENTATION ON MAN (1968) (detailing legal and ethical rights violations by British physicians).

62 See Jay Katz, The Consent Principle of the Nuremberg Code: Its Significance Then and Now, in ANNAS & GRODIN, supra note 3, at 228.

63 Id. at 235.

64 Id. at 228; see also Evelyne, Shuster, The Nuremberg Code: Hippocratic Ethics and Human Rights, 351 LANCET 974, 975 (1998)Google Scholar (“Physicians, perhaps understandably, did not readily perceive the [Nuremberg] Code as applying to themselves.”).

65 The Author notes that physicians have also suffered as victims of human rights violations, sometimes for nobly refusing to become accomplices of the state in human rights violations. See generally AMNESTY INT’L, HARMING THE HEALERS: VIOLATIONS OF THE HUMAN RIGHTS OF HEALTH PROFESSIONALS, AI INDEX: ACT 75/02/00 (2000) (documenting cases of repressive measures imposed on health workers simply for performing their professional activities); Torsten, Lucas & Christian, Pross, Caught Between Conscience and Complicity: Human Rights Violations and the Health Professions, 2 MED. & GLOBAL SURVIVAL 106 (1995)Google Scholar, available at http://www.ippnw.org/MGS/V2N2Lucas.html (noting the persecution of health professionals for their exercise of “the professional ethic, which puts health workers in conflict with lawlessness and social injustice and requires that they speak out against human rights abuses of which they have knowledge”).

66 AMNESTY INT’L, MEDICINE AT RISK: THE DOCTOR AS HUMAN RIGHTS ABUSER AND VICTIM, AI Index: ACT 75/01/89, at 2-4 (1989); cf. Lippman, supra note 14, at 431 (“Unlike their Nazi predecessors, contemporary doctors tend to aid and abet those who practice torture and rarely inflict pain directly on detainees and prisoners.”).

67 BRIT. MED. ASS’N (BMA), MEDICINE BETRAYED: THE PARTICIPATION OF DOCTORS IN HUMAN RIGHTS ABUSES 21-30 (1992). Activities indirectly facilitating torture include “the examination and assessment of ‘fitness’ of prisoners to be tortured, 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.” ANNAS, supra note 4, at 252; Rasmussen, supra note 57, at 26 (categorizing the participation of physicians in torture through (1) making diagnoses, (2) treating the victim, and (3) “creating and inventing new sophisticated types of torture: punitive amputations; carrying out the death penalty, and in abuse of psychiatry”).

As an example of an activity facilitating torture, Portuguese prison doctors used photographs of prisoners taken during interrogation to study the effects of torture. Leonard, A. Sagan & Albert, Jonsen, Medical Ethics and Torture, 294 NEW ENG. J. MED. 1427 (1976)Google Scholar. These experimentations crossed the line into torture because no useful scientific purpose was served and the subjects were transformed into suffering victims. See Bassiouni et al., supra note 12, at 1602 n.33.

68 ANNAS, supra note 4, at 252; Lucas & Pross, supra note 65, at n.1 (providing examples throughout the world of the continued use of psychologists and psychoanalysts in torture and training of those who commit torture).

69 MEDICINE BETRAYED, supra note 67, at 4-5; ANNAS, supra note 4, at 252.

70 AMERICAN ASS’N FOR THE ADVANCEMENT OF SCI. (AAAS), THE BREAKING OF BODIES AND MINDS: TORTURE, PSYCHIATRIC ABUSE, AND THE HEALTH PROFESSIONS 24-29 (Eric Stover & Elena O. Nightingale eds., 1985).

71 PHYSICIANS FOR HUMAN RTS. (PHR), TORTURE IN TURKEY & ITS UNWILLING ACCOMPLICES: THE SCOPE OF STATE PERSECUTION AND THE COERCION OF PHYSICIANS (1996).

72 Scott, Long, When Doctors Torture: The Anus and the State in Egypt and Beyond, 7 HEALTH & HUM. RIGHTS 114, 116-24 (2004)Google Scholar (detailing the role of Egyptian forensic doctors in forced anal examination of men who engage in homosexual acts).

73 Eric Stover & Elena O. Nightingale, Introduction: The Breaking of Bodies and Minds, in AAAS, supra note 70, at 1, 17.

74 Chen, Reis et al., Physician Participation in Human Rights Abuses in Southern Iraq, 291 JAMA 1480, 1482 (2004)Google Scholar.

75 Eric Stover & Michael Nelson, Medical Action Against Torture, in AAAS, supra note 70, at 101, 102 (citations omitted).

76 E.g., Steven, H. Miles, Abu Ghraib: Its Legacy for Military Medicine, 364 LANCET 725 (2004)Google Scholar; Robert, Jay Lifton, Doctors and Torture, 351 N. ENG. J. MED. 415 (2004)Google Scholar.

77 Miles, supra note 76, at 726-27 (noting that the torture and degrading treatment of prisoners violated various human rights instruments and U.S. military internment and interrogation policies (citations omitted)). The “Geneva Conventions” include: Geneva Convention for the Amelioration of the Conditions of the Wounded and Sick in Armed Forces in the Field, Aug. 12, 1949, 6 U.S.T. 3114, 75 U.N.T.S. 31 (entered into force Feb. 2, 1956); Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, Aug. 12, 1949, 6 U.S.T. 3217, 75 U.N.T.S. 85 (entered into force Feb. 2, 1956); Geneva Convention Relative to the Treatment of Prisoners of War, Aug. 12, 1949, 6 U.S.T. 3316, 75 U.N.T.S. 135 (entered into force Feb. 2, 1956); Geneva Convention Relative to the Protection of Civilian Persons in Time of War, Aug. 12, 1949, 6 U.S.T. 3516, 75 U.N.T.S. 287 (entered into force Feb. 2, 1956).

78 Editorial, How Complicit Are Doctors in Abuses of Detainees?, 364 LANCET 637, 638 (2004).

79 For example, the AIDS epidemic has driven desperate African nations to permit U.S. physicians to test experimental vaccines on unwilling and uninformed patients. See generally Ronald, Bayer, The Debate Over Maternal-Fetal HIV Transmission Prevention Trials in Africa, Asia, and the Caribbean: Racist Exploitation or Exploitation of Racism?, 88 AM. J. PUB. HEALTH 567 (1998)Google Scholar; Joanne, Roman, Note, U.S. Medical Research in the Developing World: Ignoring Nuremberg, 11 CORNELL J.L. & PUB. POL’Y 441 (2002)Google Scholar; Barry R. Bloom, The Highest Attainable Standard: Ethical Issues in AIDS Vaccines, SCIENCE, Jan. 9, 1998, at 186; David Brown, Medical Group Condemns U.S. AIDS Drug Tests in Africa for Using Placebo, WASH. POST, Apr. 23, 1997, at A14.

80 Council on Ethical & Judicial Aff., AMA, Physician Participation in Capital Punishment, 270 JAMA 365, 367 (1993). Although beyond the scope of the present article, the author acknowledges that punitive amputation and mutilation could also fall into this ethically ambiguous category in states where such punishments are carried out under the color of law.

81 See Michael, P. Scharf, Clear and Present Danger: Enforcing the International Ban on Biological and Chemical Weapons Through Sanctions, Use of Force, and Criminalization, 20 MICH. J. INT’L L. 477, 504-06 (1999)Google Scholar (noting that 18 U.S.C. § 2332a “does not cover production or stockpiling; it covers only the use of biological or chemical weapons”).

82 AAAS & PHR, HUMAN RIGHTS AND HEALTH: THE LEGACY OF APARTHEID 39-49 (Audrey R. Chapman & Leonard S. Rubenstein eds., 1998); see also Seidelman, supra note 41, at 1464 (“In poor and rich countries physicians participate in structures of social choice and access to health care that variously blunt or sharpen the ethical issues in selection.”).

83 Lucas & Pross, supra note 65 (noting government “attempt[s] to legitimize torture and the death penalty by supposedly humanizing these acts and integrating doctors into the process”). As noted in the case of Nazi Germany, “[t]he Nazi leadership found in medicine a scientifically legitimate vehicle for the achievement of their political goal of racial purification.” Seidelman, supra note 22; see also supra notes 4, 35-39 and accompanying text.

84 E.g., Lippman, supra note 14, at 433 (“Chilean doctors also regularly issued certificates of good health before torture victims left the detention center. These certificates helped conceal the abuse that was inflicted on detainees and lent credence to the Chilean regime's claim that allegations of torture were contrived efforts to embarrass the government.” (citing ERIC STOVER, THE OPEN SECRET TORTURE AND THE MEDICAL PROFESSION IN CHILE 29-31 (1987))).

85 Lucas & Pross, supra note 65.

86 See id.

87 For a survey of contemporary physician participation in gross human rights abuses internationally, see generally BMA, supra note 67.

88 ANNAS, supra note 4, at 252-53; AMNESTY INT’L, INVOLVEMENT OF MEDICAL PERSONNEL IN ABUSES AGAINST DETAINEES AND PRISONERS, AI Index: ACT 75/08/90, at 1 (1990) (noting that physicians undertake “activities which, while legal under domestic law in some countries, constitute violations of human rights and can involve health professionals in infringements of medical ethics”).

89 Annas & Grodin, supra note 7, at 118; Jonathan D. Moreno, Lessons Learned: A Half-Century of Experimenting on Humans, HUMANIST, Sept./Oct. 1999, at 9, 10 (noting the existence of the Feres Doctrine, which bars members of the military from “suing the United States for injuries incurred ‘incident to service,’” but criticizing that “[w]hat little regulation applied to military-medical experiments seemed largely worthless”); e.g., United States v. Stanley, 483 U.S. 669 (1987) (barring a serviceman from suing the United States for injuries suffered as a result of uninformed and nonconsensual exposure to LSD); In Re Cincinnati Radiation Litigation, 874 F. Supp. 796 (S.D. Ohio 1995) (finding that a U.S. Department of Defense study exposing nonconsenting subjects to doses of radiation was justified by “national security”).

Although the end of the Cold War brought about a temporary reprieve from this threat of physician harm under the auspices of national security, fear of renewed experimentation has heightened with evidence of violative conduct by the United States during its “War on Terror.” See Moreno, supra, at 14 (“The need to keep secrets from terrorist organizations can easily substitute for the former need to keep secrets from the Soviets … . Confronted with several small-scale hot wars, the environment of national security research could easily slide again into the mentality demonstrated during much of the Cold War.”).

90 Larry, I. Palmer, Paying for Suffering: The Problem of Human Experimentation, 56 MD. L. REV. 604, 608 (1997)Google Scholar (drawing attention to the inadequacy of monetary compensation in redressing the harms of human experimentation) (citing FINAL REPORT OF THE ADVISORY COMMITTEE ON HUMAN RADIATION EXPERIMENTS 178-88 (1996)).

91 Rasmussen, supra note 57, at 26-27 (arguing that doctors who are at “high risk” of participation in torture should be reminded of their ethical obligations).

92 Palmer, supra note 90, at 622 (“It is unlikely that criminal sanctions are going to be enacted in this country [U.S.A.], as we are all so dependent upon physicians.”); see Barber v. Superior Court, 195 Cal. Rptr. 484, 488-89 (Ct. App. 1983) (holding that cessation of life support was not an unlawful killing). In an extreme example, Argentine courts freed Dr. Jorge Antonio Berges after previous courts had found him guilty of actively participating in torture and had sentenced him to six years in prison. Lucas & Pross, supra note 65.

93 Palmer, supra note 90, at 606-08. No physicians were held accountable in the United States for the Tuskegee syphilis study, in which the U.S. Public Health Service tracked a group of 400 African American males from the early 1930s into the 1970s to ascertain the course of syphilis if left untreated, despite the existence of a proven treatment for the disease. No informed consent was obtained in this study, and many of the subjects in the study were led to believe that they were receiving treatment, dissuading them from seeking outside care. ARNOLD J. ROSOFF, INFORMED CONSENT, A GUIDE FOR HEALTH CARE PROVIDERS 258 (1981).

94 INTERNATIONAL SUMMIT CONFERENCE ON BIOETHICS, TOWARDS AN INTERNATIONAL ETHIC FOR RESEARCH WITH HUMAN BEINGS 39 (1987) [hereinafter CONFERENCE ON BIOETHICS]. Developing nations have shunned physician regulation out of a fear that such legislation, and resulting lawsuits against physicians, could have a chilling effect on beneficial medicine. Jonathan Todres, Can Research Subjects of Clinical Trials in Developing Countries Sue Physician-Investigators for Human Rights Violations?, 16 N.Y.L. SCH. J. HUM. RTS. 737, 767 (2000).

95 Rand E. Rosenblatt, The Four Ages of Health Law, 14 HEALTH MATRIX 155, 163-66 (noting weaknesses in the professional authority model of physician regulation).

96 Editorial, 1 WMA BULLETIN 6 (1949). Among other early acts, the WMA revised the Hippocratic Oath and adopted the Declaration of Geneva as an international code of medical ethics. Declaration of Geneva, in THE WORLD MEDICAL ASSOCIATION HANDBOOK OF DECLARATIONS 3 (1985); Stover, supra note 35.

97 T.C., Routley, Aims and Objects of the World Medical Association, 1 WMA BULLETIN 19 (1949)Google Scholar. Nowhere do the WMA's objectives list the regulation or evaluation of physicians as an objective of the organization. See id.

98 ANNAS, supra note 4, at 251. An exception to the WMA's fixation on expanding the authority of physicians is found in the WMA's 1975 Declaration of Tokyo, in which the organization prohibited physicians to “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 … “ WMA, Declaration of Tokyo, reprinted in AMNESTY INT’L, ETHICAL CODES AND DECLARATIONS RELEVANT TO THE HEALTH PROFESSIONS, AI Index: ACT 75/01/85 (1985), available at http://www.cirp.org/library/ethics/tokyo.

99 Winfried, Beck, The World Medical Association Serves Apartheid, 20 INT’L J. HEALTH SERVS. 185, 186 (1990)Google Scholar (describing the Medical Association of South Africa's role in the apartheid government's torture and murder of Steve Biko, the leader of the Black Consciousness Movement).

100 Id. at 187-89 (discussing the WMA's role in South Africa's “Bantustan Policy,” which allowed “the South African regime [to] be able to claim that it has done away with apartheid, as all the blacks live in their own ‘self-governing’ areas”).

101 Id. at 190 (noting that the WMA's actions effectively supported Apartheid).

Id. (quoting WHO, Conference in Brazzaville, Apartheid and Health (1981)).

102 Id. at 185.

103 See ANNAS, supra note 4, at 251-52; see also Seidelman, supra note 41, at 1466 (noting that “[t]he leadership of the World Medical Association has, in fact, included physicians with direct links to the very organisations responsible for the horrors which brought about the enunciation of the Nuremberg code”). In his role as Treasurer of the WMA and representative of the German Medical Association, Sewering had previously used his influence in 1981 as one of the primary advocates for admission of the Medical Association of South Africa. Beck, supra note 99, at 187, 190.

104 Beck, supra note 99, at 190 (noting Sewering's membership in the Nazi party, Schutzstaffel (SS), NS-Volkswohlfahrt (Nazi People Welfare Association), and NS-Altherrenbund (Nazi Elderly Men's Association)).

105 ANNAS, supra note 4, at 252; see also Seidelman, supra note 22 (“As a consequence of the Sewering Affair there is no credible international organization that serves as guardian for patient rights.”).

106 Michael Franzblau, Investigate Nazi Ties of German Doctor, S.F. CHRON., Dec. 29, 1993, at A17.

107 Seidelman, supra note 22 (citing Press Release, Pressestelle der Deutschen Arzteschaft (Jan. 23, 1993)).

108 The Nuremberg Code, reprinted in ANNAS & GRODIN, supra note 3, at 2.

109 WMA, Declaration of Tokyo, reprinted in AMNESTY INT’L, supra note 98.

110 WMA, Declaration of Helsinki (1964) (amended 2000), available at www.wma.net/e/policy/b3.html; WMA, Declaration of Helsinki (1964) (amended 1989), reprinted in ANNAS & GRODIN, supra note 3, at 339-42; WMA, Declaration of Helsinki (1964) (amended 1983), reprinted in 30 WORLD MED. J. inside front cover (1984); WMA, Declaration of Helsinki (1964) (amended 1975), reprinted in ANNAS & GRODIN, supra note 3, at 333-36; WMA, Declaration of Helsinki (1964), reprinted in 8 WORLD MED. J. 281, 281 (1964).

Prior to the Declaration of Helsinki, the World Medical Association adopted the Principles for Those in Research and Experimentation, which include the principle that “informed consent must be in writing for experimentation on both sick and healthy patients.” WMA, Principles for Those in Research and Experimentation, 2 WORLD MED. J. 14 (1955) [hereinafter WMA Principles]. The WMA Principles, like the Nuremberg Code, specifically state that they are binding on physicians, as compared with subsequent international standards, which state that they merely serve as recommendations. Bernard Dickens, The Challenge of Equivalent Protection, in NAT’L BIOETHICS ADVISORY COMM’N, ETHICAL AND POLICY ISSUES IN INTERNATIONAL RESEARCH: CLINICAL TRIALS IN DEVELOPING COUNTRIES, VOLUME II: COMMISSIONED PAPERS AND STAFF ANALYSIS A-1, A-3 (2001), available at http://www.georgetown.edu/research/nrcbl/nbac/clinical/Vol2.pdf.

111 See Deutsch, supra note 60, at 4. But see George, J. Annas, The Changing Landscape of Human Experimentation: Nuremberg, Helsinki, and Beyond, 2 HEALTH MATRIX 119, 119-40 (1992)Google Scholar (arguing that the Nuremberg Code has achieved binding status similar to that of a treaty).

112 The World Medical Association drafted and adopted the Declaration of Tokyo and various Declarations of Helsinki to govern respectively physician participation in torture and human experimentation. Although the World Medical Association believed the WMA Principles adequate for physician regulation, supra note 110, it nevertheless adopted the first Helsinki Declaration in 1964 “following a series of scandals involving grossly unethical experimentation on human subjects.” Lori, A. Alvino, Who's Watching the Watchdogs? Responding to the Erosion of Research Ethics by Enforcing Promises, 103 COLUM. L. REV. 893, 897 (2003)Google Scholar.

113 CONFERENCE ON BIOETHICS, supra note 94, at 39; Michael A. Grodin et al., Medicine and Human Rights: A Proposal for International Action, HASTINGS CENTER REP., July-Aug. 1993, at 8, 8 (noting that the Nuremberg Code “has been widely recognized, if not always followed by the world community”).

114 ANNAS & GRODIN, supra note 3, at 313.

115 Heidi, P. Forster et al. The 2000 Revision of the Declaration of Helsinki: A Step Forward or More Confusion?, 358 LANCET 1449, 1449 (2001)Google Scholar (noting that while the 2000 revision of the Declaration of Helsinki claims primacy over national law, “[t]he authority and practical meaning of this self-proclaimed status is unclear”).

116 Miles, supra note 76, at 725 (citations omitted).

117 E.g., Forster et al., supra note 115, at 1452 (“Unfortunately, there is no mechanism, adjudicative or otherwise [in the 2000 Declaration of Helsinki], for resolving ambiguities in interpretation and understanding.”).

118 Bassiouni et al., supra note 12, at 1611; see also Forster et al., supra note 115, at 1452 (“Although laudable in many respects, the most recent revision of the Declaration of Helsinki is imprecise and ambiguous, possibly the result of a flawed drafting process.”).

119 Jay, Katz, The Nuremberg Code and the Nuremberg Trial: A Reprisal, 276 JAMA 1662, 1665 (1996)Google Scholar; Kevin, M. King, A Proposal for the Effective International Regulation of Biomedical Research Involving Human Subjects, 34 STAN. J. INT’L L. 193, 195-96 (1998)Google Scholar.

120 David N. Weisstub et al., Establishing the Boundaries of Ethically Permissible Research with Vulnerable Populations, in RESEARCH ON HUMAN SUBJECTS: ETHICS, LAW AND SOCIAL POLICY 355- 56 (David N. Weisstub ed., 1998); see also WMA, Declaration of Helsinki (1964) (amended 2000), supra note 110, § I-11, at 335. “The draft version [of the Helsinki Declaration] also would not allow those children in institutions who were not under the care of relatives or those persons residing in mental hospitals or in hospitals for mental defectives to be subjects of human experimentation.” Bassiouni et al., supra note 12, at 1645; see also WMA, Draft Code of Ethics on Human Experimentation, 2 BMJ 1119 (1962).

121 Declaration of Helsinki, WMA 18th Assembly (1964), reprinted in 8 WORLD MED. J. 281, supra note 110.

122 See Robert J. Levine, Clarifying the Concepts of Research Ethics, HASTINGS CENTER REP., June 1979, at 21-22 (noting that placebo-controlled drug trials “cannot be defined as either therapeutic or nontherapeutic”); see also Katz, supra note 119, at 1665 (noting that the quality of informed consent in the Declaration of Helsinki was “ambiguous, confusing, and surely not as stringent as that articulated in the Nuremberg Code”).

123 Contrary to the Declaration of Helsinki, the Nuremberg Code has been found to have legally enforceable prohibitions, upon which civil actions may be brought in U.S. courts. See, e.g., In re Cincinnati Radiation Litigation, 874 F. Supp. 796, 821 (S.D. Ohio 1995).

124 ANNAS, supra note 4, at 251; Seidelman, supra note 41, at 1467 (noting rationalizations indicating that “Helsinki modified Nuremberg because the World Medical Association considered the Nuremberg code as applying to Nazi crimes with the World Medical Association declarations correcting that ‘error’” (citing William Refsauge, The Place for International Standards in Conducting Research on Humans: Proceedings of International Conference on Role of Individual and Community in Research, Development, and Use of Biologicals, 55 WHO BULLETIN 133 (1977))).

125 LOUIS HENKIN, INTERNATIONAL LAW: POLITICS AND VALUES 28 (1995).

126 Bassiouni et al., supra note 12, at 1657.

127 International Covenant on Civil and Political Rights, G.A. Res. 2200, U.N. GAOR, 21st Sess., Supp. No. 16, at arts. 28-45, U.N. Doc. A/6316 (1996) [hereinafter ICCPR].

128 Article 7 of the ICCPR specifies that: “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.” Id. at art. 7.

129 Id. at arts. 28-39.

130 Id. at art. 28.

131 Optional Protocol to the ICCPR, G.A. Res. 2200, U.N. GAOR, 21st Sess., Supp. No. 16, at 59, U.N. Doc. A/6316 (1966); see also MANFRED NOWAK, THE U.N. COVENANT ON CIVIL AND POLITICAL RIGHTS 580-616, 647-723 (1993). The Convention Against Torture has established a similar process for individual petition. Convention Against Torture and Other Cruel Inhuman or Degrading Treatment, G.A. Res. 39/46, U.N. GAOR, 39th Sess., Supp. No. 51, at art. 22, U.N. Doc. A/RES/39/46 (1984), reprinted in 23 I.L.M. 1027 [hereinafter Convention Against Torture].

132 Bassiouni, supra note 12, at 1657 n.294. The Human Rights Committee notes in Comment 20 to the ICCPR that “the reports of States parties generally contain little information on this point [free consent to medical or scientific experimentation]” and admonishes states that “[m]ore attention should be given to the need and means to ensure observance of this provision.” ICCPR, supra note 127, at General Comment 20.

133 See Principles of Medical Ethics Relevant to Health Professionals, Particularly Physicians, in the Protection of Prisoners from Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, discussed in AMNESTY INT’L, MEDICINE AT RISK: THE DOCTOR AS HUMAN RIGHTS ABUSER AND VICTIM, AI Index: ACT 75/01/89, at 1 (1989). Pursuant to Principle 2 of the UN Principles of Medical Ethics:

Id. at cover page.

134 See Lippman, supra note 14, at 440, stating:

Id.

135 Bassiouni et al., supra note 12, at 1662 (“[A]sserting the need for a convention may also imply that the essential elements of customary law … may be lacking.”). But cf. Grodin et al., supra note 113, at 8 (stating that there is “universal condemnation of physicians who engage in … involuntary human experimentation under government auspices”).

136 THE RESTATEMENT (THIRD) OF THE FOREIGN RELATIONS LAW OF THE UNITED STATES § 102(2) (1987).

137 See SIR ROBERT JENNINGS & SIR ARTHUR WATTS, OPPENHEIM's INTERNATIONAL LAW 27-29 (9th ed. 1992).

138 See Anthony, D’Amato, Human Rights as Part of Customary International Law: A Plea for Change of Paradigms, 25 GA. J. INT’L & COMP. L. 47, 96 (1996)Google Scholar (noting that because widely accepted multilateral treaties create legal obligations incorporating consistent state practice, “provisions in treaties transmute into norms of customary law”); see also Continental Shelf (Libya/Malta), I.C.J. REP., June 3, 1985, at 29 (finding that multilateral conventions “may have an important role to play in recording and defining rules deriving from custom, or indeed in developing them”).

139 Annas & Grodin, supra note 7, at 118. Professors Annas and Grodin were not the first to argue for the creation of an international tribunal to investigate and judge physicians. In 1991, the Montevideo group—composed of the medical associations of Uruguay and Denmark and the Rehabilitation Centre for Torture Victims in Copenhagen—drafted a constitutive statute for the creation of a tribunal to judge physicians and attorneys responsible for crimes against humanity. Ole, Esperson, Statutes for the International Tribunal for Investigation of Torture, 17 J. MED. ETHICS 64 (1991)Google Scholar. Although the Montevideo group attempted to gain international support for this tribunal, it was never formally created.

140 ANNAS, supra note 4, at 253. Annas offered, in the alternative, that such a tribunal could be privately-sponsored. Id. The author notes at the outset that, unlike the International Criminal Tribunal for Yugoslavia and the International Criminal Tribunal for Rwanda, the International Medical Tribunal could not be established by mere Security Council resolution, pursuant to Chapter VII, because such a tribunal would have little bearing on the maintenance of international peace and security. Even if the Security Council could create such an International Medical Tribunal, professors Annas and Grodin presumably would, like the ICC, seek independence from the Security Council.

141 Annas & Grodin, supra note 7, at 119. Annas offered, in the alternative, that such a tribunal need not punish with criminal sanctions. ANNAS & GRODIN, supra note 3, at 313 (advocating that the tribunal have both criminal and civil powers).

142 ANNAS & GRODIN, supra note 3, at 313 (noting that funding could come from “a percentage of the human research budget of member states”).

143 ANNAS, supra note 4, at 254; Annas & Grodin, supra note 7, at 119-20.

144 Grodin et al., supra note 113, at 11.

145 Id. at 8 (“[W]e recognize that it may be decades before the international community agrees to establish such a [permanent international criminal court].”).

146 Global Lawyers and Physicians, Mission Statement, at http://www.glphr.org (last visited Apr. 12, 2004).

147 Annas & Grodin, supra note 7, at 119 (“The establishment and support of such a tribunal is a worthy project for the world's physicians and lawyers.”).

148 ANNAS, supra note 4, at 253.

149 Victoria, Orlowski, Note, Promising Protection Through Internationally Derived Duties, 36 CORNELL INT'L L.J. 381, 407 (2003)Google Scholar.

150 Because of fears that the process of defining a crime of aggression would extend negations ad infinitum, aggression was initially left out of the Rome Statute, with the assumption that the Rome Statute would be amended at such a time when the ICC working group is able to gain consensus on a definition. Hermann Von Hebel & Darryl Robinson, Crimes Within the Jurisdiction of the Court, in THE INTERNATIONAL CRIMINAL COURT: THE MAKING OF THE ROME STATUTE 79-85 (Roy S. Lee ed., 1999); see also Rome Statute, supra note 8.

151 International Criminal Court Statute Comes Into Force, U.N. CHRON. June 1, 2002, available at 2002 WL 21468371.

152 The ICC officially elected Argentine lawyer Luis Moreno Ocampo on April 21, 2003. Ocampo was sworn in as chief prosecutor on June 16, 2003. Nikki Tait, Prosecutor Takes Over at World War Crimes Court, FIN. TIMES, June 16, 2003, available at 2003 WL 20040129.

153 Annas & Grodin, supra note 7, at 118.

154 This is similar to the argument presented in the prosecution's closing argument in the Doctors’ Trial:

Michael A. Grodin, Historical Origins of the Nuremberg Code, in ANNAS & GRODIN, supra note 3, at 121, 136-37 (quoting Trials of War Criminals, Closing Argument for the United States of America by James M. McHaney, July 14, 1947, transcript pp. 10718-96).

In a modern-day example of physician prosecution, Milan Kovacevic, a Bosnian Serb physician, was indicted for genocide by the International Tribunal for Crimes in the Former Yugoslavia for his role in establishing three prison camps at which Croat and Bosnian inmates were raped, tortured and killed. Associated Press, Serb Denies War Crimes, WASH. POST, July 31, 1997, at A20.

155 Torture is widely held to constitute a gross violation of human rights. For example, the Universal Declaration of Human Rights holds that “[n]o one may be subjected to torture or to cruel, inhuman or degrading treatment or punishment.” Universal Declaration of Human Rights, G.A. Res. 217 A, at art. 5, U.N. Doc. A/810 (1948).; see also ICCPR, supra note 127, at art. 7 (“No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.”).

The Convention Against Torture And Other Cruel Inhuman Or Degrading Treatment Or Punishment defines torture as:

Convention Against Torture, supra note 131, at art. 1.

156 A jus cogens norm is a rule of international law “recognized by the international community of states as peremptory, permitting no derogation.” LOUIS HENKIN ET AL., HUMAN RIGHTS 301 (1999). For an explanation of the role of jus cogens in international law, see IAN BROWNLIE, PRINCIPLES OF PUBLIC INTERNATIONAL LAW 514 (5th ed. 1998).

157 Rome Statute, supra note 8, at art. 7(1)(f).

158 E.g., Regina v. Bartle (the Pinochet case), 381 I.L.M. 581, 589 (House of Lords, Mar. 24, 1999), in JORDAN J. PAUST ET AL., INTERNATIONAL LAW AND LITIGATION IN THE U.S. 653, 655 (2000) (“The jus cogens nature of the international crime of torture justifies states in taking universal jurisdiction over torture wherever committed.”). For these “universal crimes,” every state has the authority “to apply its laws to prosecute and punish such offenses, even in cases where the state has no links of territory with the offense and no links of nationality with either the offender or the victim.” Clarence J. Dias, Toward International Human Rights Crimes: An Asian Perspective on Human Rights and International Criminal Law, in INTERNATIONAL CRIMES, PEACE, AND HUMAN RIGHTS: THE ROLE OF THE INTERNATIONAL CRIMINAL COURT, supra note 10, at 35, 38; M. Cherif Bassiouni, Universal Jurisdiction for International Crimes: Historical Perspectives and Contemporary Practice, 42 VA. J. INT’L L. 81, 96-100 (2001). As stated in the Preamble to the Rome Statute, “it is the duty of every state to exercise its criminal jurisdiction over those responsible for international crimes.” Rome Statute, supra note 8, at Preamble; see also infra note 167 and accompanying text (noting the principle of complementarity in the Rome Statute, which allows national prosecution of any crime under the ICC's jurisdiction).

159 According to Article 7 of the Rome Statute:

• (a) Murder;

• (b) Extermination;

• (c) Enslavement;

• (d) Deportation or forcible transfer of population;

• (e) Imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law;

• (f) Torture;

• (g) Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity;

• (h) Persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender as defined in paragraph 3, or other grounds that are universally recognized as impermissible under international law, in connection with any act referred to in this paragraph or any crime within the jurisdiction of the Court;

• (i) Enforced disappearance of persons;

• (j) The crime of apartheid;

• (k) Other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health.

Rome Statute, supra note 8, at art. 7(1).

160 See Lucas & Pross, supra note 65 (advocating the ICC as a means of addressing violations of human rights by physicians). The Rome Statute is the first international treaty to elaborate the elements of crimes against humanity. Mohamed, Elewa Badar, From the Nuremberg Charter to the Rome Statute: Defining the Elements of Crimes Against Humanity, 5 SAN DIEGO INT’L L.J. 73, 75-76 (2004)Google Scholar.

161 Badar, supra note 160, at 91-122 (discussing the jurisdictional elements necessary to “elevate an ordinary act under domestic prosecution to a crime against humanity under international criminal law”).

162 Rome Statute, supra note 8, at art. 7(2)(a); see also John, F. Murphy, The Quivering Gulliver: U.S. Views on a Permanent International Criminal Court, 34 INT’L LAW 45, 54 (2000)Google Scholar (noting the preconditions for jurisdiction over crimes against humanity).

163 Although Allied Control Council Law No. 10 did not require a nexus between German crimes against humanity and either crimes against peace or war crimes, the United Nation's International Law Commission, created after the Second World War to codify international law, held such a connection necessary in establishing a prima facie case for crimes against humanity. Compare PUNISHMENT OF PERSONS GUILTY OF WAR CRIMES, CRIMES AGAINST PEACE AND AGAINST HUMANITY, ALLIED CONTROL COUNCIL LAW NO. 10, supra note 50, at Art. II, with Report of the International Law Commission, Principle VI(c), U.N. GAOR, 5th Sess., Supp. No. 12, ¶ 123, U.N. Doc. A/1316 (1950) (“Murder, extermination, enslavement, deportation and other inhuman acts done against any civilian population, or persecutions on political, racial or religious grounds, when such acts are done or such persecutions are carried on in execution of or in connection with any crime against peace or any war crime.” (emphasis added)); see also Badar, supra note 160, at 91 (noting that “[t]he decision to reject a requirement of a nexus with armed conflict evidences the erosion of the traditional approach to State sovereignty” (citing Margaret McAuliffe de Guzman, The Road from Rome: The Developing Law of Crimes Against Humanity, 22 HUM. RTS. Q. 335, 354 (2000))).

164 Rome Statute, supra note 8, at art. 7(1) (emphasis added); see Dias, supra note 158, at 40 (noting that the use of the phrase “widespread or systematic” rather than “widespread and systematic” lowers the threshold for investigating crimes, providing that “either a pattern (systematic) or quantitative (widespread) element will suffice to commence an investigation”); see also Pam, Spees, Women's Advocacy in the Creation of the International Criminal Court: Changing the Landscapes of Justice and Power, 28 SIGNS 1233, 1248-49 (2003)Google Scholar; see also Badar, supra note 160, at 90 (noting that article 7's “when committed as a part of widespread or systematic attack directed against any civilian population” language “constitute[s] the international or jurisdictional element that transforms the specific crimes listed in (a) to (k) from domestic crimes to a category of international crimes”).

165 Rome Statute, supra note 8, at art. 7(1)(k).

166 For an example of the rhetorical expansiveness of the definition of crimes against humanity, see THE INTERNATIONAL CRIMINAL COURT: THE BEIJING PLATFORM IN ACTION—PUTTING THE ICC ON THE BEIJING+5 AGENDA, THE WOMEN's CAUCUS FOR GENDER JUSTICE 13 (2000) (finding that “withholding abortion from raped women should be explicitly defined as a war crime and a crime against humanity … “).

167 Rome Statute, supra note 8, at art. 17.

168 Helen Duffy, National Constitutional Compatibility and the International Criminal Court, 11 DUKE J. COMP. & INT’L L. 5, 19 (2001); Dias, supra note 158, at 41 (“The claim to decline international jurisdiction for reasons of sovereignty is unmasked as sheer hypocrisy if it is accompanied by a refusal to accept and exercise national jurisdiction. Hence, a cardinal national legislative task is to incorporate fully definitions of international (universal) crimes into national law.”).

169 Annas & Grodin, supra note 7, at 119.

170 See supra notes 4, 35-39 and accompanying text.

171 M., Neil Browne et al., The Perspectival Nature of Expert Testimony in the United States, England, Korea, and France, 18 CONN. J. INT’L L. 55, 76-100 (2002)Google Scholar.

172 See, e.g., Patricia M. Wald, General Radislav Krstic: A War Crimes Case Study, 16 GEO. J. LEGAL ETHICS 445, 449 n.13 (2003) (noting, in describing the investigation of the genocide at Srebrenica, that “[t]he Trial Chamber [of the International Criminal Court for the Former Yugoslavia] heard eight expert witnesses of varying nationalities who analyzed the remains, including ballistics, soil and material witnesses, as well as medical doctors”).

Based upon precedent established at the International Criminal Court for the Former Yugoslavia, it is well understood that doctor-patient confidentiality will extend to patient-doctor communications but not to physician records. Rutledge, supra note 11, at 174.

173 Annas & Grodin, supra note 7, at 119.

174 Supra notes 34-40 and accompanying text. Professors Annas and Grodin themselves argue that “[i]t 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.” Annas & Grodin, supra note 7, at 119.

175 Victor, W. Sidel, Doctors and Political Activism, 35 NEW PHYSICIAN 28, 28 (1986)Google Scholar.

176 Global Lawyers and Physicians, supra note 146 and accompanying text.

177 Rome Statute, supra note 8, at art. 33.

178 See Palmer, supra note 90, at 616 (noting the problems of assigning legal responsibility to physicians in the context of institutional arrangements).

179 Miles, supra note 76, at 727 (citing International Dual Loyalty Working Group, Dual Loyalty & Human Rights in Health Professional Practice; Proposed Guidelines & Institutional Mechanisms, http://www.phrusa.org/healthrights/dual_loyalty.html (last visited July 29, 2004)); Seidelman, supra note 22 (commenting that “the past 50 years have seen the enhancement of the power of the state in health care and the exercise of that power through fiscal control”).

180 AMNESTY INT’L, supra note 66, at 3-4; see also id. at 5-8 (noting human rights violations directed against health professionals); Lucas & Pross, supra note 65 (noting that many physicians who engage in human rights abuses do so out of fear for their own lives should they resist their government); cf. Palmer, supra note 90, at 613 (“Before commending or condemning professional behavior, we should better understand the forces, particularly the conceptions of knowledge, that drive professional behavior.”).

181 Grodin et al., supra note 113, at 8.

182 Supra Part III.D.

183 Supra notes 80-82 and accompanying text.

184 As argued by Dr. Jack Kevorkian in advancing human rights as a basis for physician-assisted suicide, “[t]he Nuremberg Tribunal said the first thing you do is check the morality of the law and if it's immoral, you disobey it. Ladies and Gentlemen, I do that. You pass any law against assisted suicide … and I will disobey it.” Don Gonyea, CNN: MORNING EDITION: Prosecutor Expects Suicide Doctor to be Acquitted Again (CNN television broadcast, Feb. 15, 1996), quoted in Alison C. Hall, Note, To Die with Dignity: Comparing Physician Assisted Suicide in the United States, Japan and the Netherlands, 74 WASH. U. L.Q. 803, 817 n. 85 (1996).

185 E.g., Council of Europe, Convention on Human Rights and Biomedicine and Explanatory Report, Apr. 3, 1997, at art. 2, reprinted in 36 I.L.M. 817, 821 (1997) (establishing standards for human experimentation within the European Union). Even in the United States, there exists no uniform state criminal law concerning human experimentation. ANNAS & GRODIN, supra note 3, at 312-313.

186 Chris, Beyrer & Nancy, E. Kass, Human Rights, Politics, and Reviews of Research Ethics, 360 LANCET 246, 249-50 (2002)Google Scholar (advocating the incorporation of domestic politics and human rights into institutional review board analyses).

187 Rome Statute, supra note 8, at art. 7(1).

188 Juan E. Méndez, International Human Rights Law, International Humanitarian Law, and International Criminal Law and Procedure: New Relationships, in INTERNATIONAL CRIMES, PEACE, AND HUMAN RIGHTS: THE ROLE OF THE INTERNATIONAL CRIMINAL COURT, supra note 10, at 65, 73 (noting that “the frame of mind of the drafters [of the Rome Statute] seems to have been, for the most part, the need to develop a consensus, and therefore, declare the law as it is rather than to legislate anew”).

189 United Nations International Law Commission: Report of the Working Group on a Draft Statute for an International Criminal Court, U.N. GAOR 48th Sess., Supp. No. 10, at 265, U.N. Doc. A/CN.4/L.490 (1993), reprinted in 33 I.L.M. 253 (1994).

190 For a discussion of the debates surrounding contentious definitions of crimes in the Rome Statute, see Murphy, supra note 162, at 53-54.

191 See Rome Statute, supra note 8, at art. 5.

192 Grodin et al., supra note 113, at 11 (“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.”).

193 Professors Annas and Grodin envision that the International Medical Tribunal would develop an international code. Id.; ANNAS & GRODIN, supra note 3, at 313 (envisioning that “[t]he tribunal would also be responsible for developing an international common law on human experimentation”).

194 See infra Part VI.

195 Supra Part III.D.

196 See generally Rome Statute, supra note 8.

197 Nullen crimen sine poena (no crime without punishment), a corollary to the U.S. prohibition on applying justice ex post facto, has been incorporated into international law through the Universal Declaration of Human Rights to require that national criminal laws be defined in detail before anyone is prosecuted under them. Walter Gary Sharp, Sr., The International Criminal Tribunal for the Former Yugoslavia: Defining the Offenses, 23 MD. J. INT’L L. & TRADE 15, 17 (1999). The author notes that such charges of nullen crimen were also levied against the Nuremberg Military Tribunal for its prosecution of the thenunprohibited “crime against peace.” United States v. Alstoetter et al., in III TRIALS OF WAR CRIMINALS BEFORE THE NUREMBERG MILITARY TRIBUNALS UNDER CONTROL COUNCIL LAW NO. 10 954, 963-71 (1947); Dias, supra note 158, at 38 (noting the criticisms of 1940s international legal scholars).

198 Supra notes 140-143 and accompanying text.

199 Supra notes 92-93 and accompanying text; see also David, Luban, A Theory of Crimes Against Humanity, 29 YALE J. INT’L L. 85, 131 (2004)Google Scholar (noting that, “as a matter of principle, states owe it to their people to favor national interests over cosmopolitan ones--and so states will advance international human rights only to the extent that the advancement of human rights is widely perceived by their people as a national interest”).

200 For a discussion of the drafting and negotiating process of the Rome Statute, see generally M. Cherif Bassiouni, Negotiating the Treaty of Rome on the Establishment of an International Criminal Court, 32 CORNELL INT’L L.J. 443 (1999); see also supra notes 189-191 and accompanying text.

201 John, F. Murphy, Civil Liability for the Commission of International Crimes as an Alternative to Criminal Prosecution, 12 HARV. HUM. RTS. J. 1, 1 (1999)Google Scholar.

202 As an example, African physicians, desperate to perform Zidovudine (AZT) experimentation on African subjects in the early 1990s, argued that the doctrine of informed consent is based on Western cultural notions of individual rights and autonomy. Under a theory of cultural relativism, they argued that African notions of community should take precedence for research taking place in Africa and that protections for the subject are not necessary in these communities. A Growing Dichotomy: The Gap Between Therapeutic Haves and Have-Nots, AIDS ALERT, Jan. 1, 1998, available at 1998 WL 9747452 (in which Hoosen Coovadia remarked, “What works in the United States, which values individual rights, may not work in developing countries where the community needs supersede individual ones.”); Elysa, Gordon, Note, Multiculturalism in Medical Decisionmaking: The Notion of Informed Waiver, 23 FORDHAM URB. L.J. 1321, 1322 (1996)Google Scholar (arguing that “in some non-Western cultures, individuals expect and desire that others will make decisions about their medical care and that individuals do not want to receive information on which such decisions will ultimately be based”). Therefore, African physicians bitterly opposed the informed consent standard, arguing that Westernized notions of informed consent are a form of “ethical imperialism” on developing nations. Ileana, Dominguez-Urban, Harmonization in the Regulation of Pharmaceutical Research and Human Rights: The Need to Think Globally, 30 CORNELL INT’L L.J. 245, 280 (1997)Google Scholar.

203 E.g., Charles, W. Colson, Truth, Justice, Peace: The Foundations of Restorative Justice, 10 REGENT U. L. REV. 1, 3 (1998)Google Scholar (“By charging anyone with ‘crimes against humanity,’ nations implicitly reject notions of moral and cultural relativism, and declare a universal moral standard that transcends political boundaries and supercedes national sovereignty.”); Douglas Lee Donoho, Autonomy, Self-Governance, and the Margin of Appreciation: Developing a Jurisprudence of Diversity Within Universal Human Rights, 15 EMORY INT’L L. REV. 391, 411 n.57 (2001) (noting the Arab League's “deployment” of cultural diversity in the debate on sexual and gender rights advanced in the Preparatory Commission on the International Criminal Court).

204 At the time of this writing it is unclear what role, if any, the international community will play in funding and directing any criminal prosecutions in U.S.-occupied Iraq.

205 UN Unsuccessful So Far in Funding Sierra Leone War Crimes Tribunal, CAN. PRESS, Apr. 18, 2001, at 1; Elizabeth, M. Evenson, Note, Truth and Justice in Sierra Leone: Coordination Between Commission and Court, 104 COLUM. L. REV. 730, 739 (2004)Google Scholar (noting that the “UN's reservation to the amnesty provisions opened a door into a future for Sierra Leone where the truth commission and criminal prosecutions could proceed side-by-side”).

206 UN Unsuccessful So Far in Funding Sierra Leone War Crimes Tribunal, supra note 205, at 1.

207 Alessandra Stanley, U.S. Dissents, But Accord Is Reached on War-Crime Court, N.Y. TIMES, July 18, 1998, at A1.

208 On May 6, 2002, the Bush administration took the nearly unprecedented step of withdrawing its signature for the ICC. The United States has further moved to deny military aid to those states that refuse to grant immunity for U.S. soldiers, thereby prohibiting these states from extraditing Americans to the International Criminal Court. Peter Slevin, U.S. May Cut Aid Over Court Immunity; About 35 Nations Could Lose Funds, WASH. POST, July 1, 2003, at A7. For a comparison of U.S. objections to the ICC before and after the Rome Statute, compare David, J. Scheffer, U.S. Policy and the International Criminal Court, 32 CORNELL INT’L L.J. 529 (1999)Google Scholar with David, J. Scheffer, Staying the Course with the International Criminal Court, 35 CORNELL INT’L L.J. 47 (2002)Google Scholar.

209 American medical law differs dramatically from that of other countries in many respects, including, inter alia, immunity for government physicians who violate patients’ rights during military experiments. See supra note 89 and accompanying text. In addition, U.S. physicians routinely violate their domestic codes of ethics, and possibly international law, through their participation in statesanctioned executions. W.J., Curran & W., Cassel, The Ethics of Medical Participation in Capital Punishment, 302 NEW ENG. J. MED. 226, 227 (1980)Google Scholar.

210 Murphy, supra note 201, at 1.

211 Méndez, supra note 188, at 67 (noting that, in the absence of the ICC, “human rights cases may require the application of extradition treaties and law, a matter fraught with technical complexities that never previously had much to do with human rights enforcement”).

212 Rome Statute, supra note 8, at art. 12. In the alternative, a state can give its consent to ICC jurisdiction on an ad hoc basis. Id.

213 See supra note 158 and accompanying text.

214 Annas & Grodin, supra note 7, at 120 n.24.

215 Id.

216 Grodin et al., supra note 113, at 12. A rare success for a medical association is found in Uruguay, where the National Uruguayan Commission for Medical Ethics expelled former military physicians who had engaged in torture during the rule of Uruguay's military dictatorship. Lucas & Pross, supra note 65.

217 See Seidelman, supra note 41, at 1463-64.

218 See Philip, Alston, Conjuring Up New Human Rights: A Proposal for Quality Control, 78 AM. J. INT’L L. 607, 609 (1984)Google Scholar (recognizing a balance between the integrity and credibility of the human rights tradition and the need to adopt a dynamic approach to human rights to address modern crises).

219 Id. at 614 (proposing criteria for establishing a goal as a human right).

220 E.g., Benjamin, Mason Meier, International Protection of Persons Undergoing Medical Experimentation: Protecting the Right of Informed Consent, 20 BERKELEY J. INT’L L. 513 (2002)Google Scholar (theorizing the existence of a human right to informed consent and advocating an international treaty to codify this “right”).

221 Supra notes 34-41 and accompanying text.

222 Lifton, supra note 76, at 416 (“American doctors at Abu Ghraib and elsewhere … brought a medical component to what I call an ‘atrocity-producing situation’—one so structured, psychologically and militarily, that ordinary people can readily engage in atrocities.”); see also supra note 76 and accompanying text.

223 See supra note 49 and accompanying text.

224 Dias, supra note 158, at 37 (“Human rights were not forgotten in the process [of drafting the Rome Statute] but often were sub silentio.”).

225 See supra notes 189-191 and accompanying text.

226 Méndez, supra note 188, at 73.

227 James, A Filkins, “With No Evil Intent”: The Criminal Prosecution of Physicians for Medical Negligence, 22 J. LEG. MED 467 (2001)Google Scholar.

228 M. Cherif Bassiouni, The Penal Characteristics of Conventional International Criminal Law, 15 CASE W. RES. J. INT’L L. 27, 28 (1983).

229 Id. The other crimes considered by Bassiouni to have international validity are: aggression, war crimes, unlawful use of weapons, genocide, crimes against humanity, apartheid, slavery and slave-related practices, piracy, hijacking, kidnapping of diplomats, taking of civilian hostages, unlawful use of the mails, drug offenses, falsification and counterfeiting, theft of national and archeological treasures, bribery of public officials, interference with submarine cables, and international trafficking in obscene publications. Id. Barbara Yarnold adds to this list the crimes of environmental damage and the theft of nuclear weapons and materials. Barbara, M. Yarnold, Doctrinal Basis for the International Criminalization Process, 8 TEMP. INT’L & COMP. L.J. 85, 111 (1994)Google Scholar (citations omitted).

230 Yarnold, supra note 229, at 91 (analyzing the existence of guiding principles for raising conduct to the level of an international crime); see also id. at 96-98 (discussing the international criminal elements of torture and unlawful medical experimentation).

231 See supra note 155.

232 Lippman, supra note 14, at 435.

233 Universal Declaration of Human Rights, supra note 155, at art. 5.

234 See Convention Against Torture and Other Cruel Inhuman or Degrading Treatment, supra note 131.

235 Id. at art. 4.

236 Bassiouni, supra note 228, at 28.

237 Medical experimentation would be considered a war crime under the plain language of the Rome Statute where such experiments constitute a “grave breach” of the Geneva Conventions. Rome Statute, supra note 8, at art. 8(2)(a)(ii).

238 Id. at art. 5. In fact, Ratner and Abrams suggest that medical experimentation is among the many possible uses of article 7(1)(k)'s catch-all provision. STEVEN R. RATNER & JASON S. ABRAMS, ACCOUNTABILITY FOR HUMAN RIGHTS ATROCITIES IN INTERNATIONAL LAW: BEYOND THE NUREMBERG LEGACY 74 (2d. ed. 2001) (noting that the judgment in the Doctors’ Trial employed the Control Council Law No. 10 definition of “other inhumane acts” to find that the Nazi medical experimentation constituted a crime against humanity).

239 As an example of possible future crimes, see Resolution E adopted at the Rome Conference, which recommends that the Review Conference “consider the crimes of terrorism and drug crimes with a view to arriving at an acceptable definition and their inclusion in the list of crimes within the jurisdiction of the Court.” Resolution E, reprinted in CHERIF BASSIOUNI, THE STATUTE OF THE INTERNATIONAL CRIMINAL COURT: A DOCUMENTARY HISTORY 104-05 (1998); see also M. CHERIF BASSIOUNI, INTERNATIONAL TERRORISM; MULTILATERAL CONVENTIONS (1937-2001) 18 (2001) (defining terrorism to include unlawful medical experimentation).

240 To assure the incorporation of nascent human rights into international criminal jurisprudence under the ICC, the author notes that a Review Conference will convene in 2009 to consider amendments to, inter alia, the list of crimes prosecutable under the Rome Statute. Supra note 9; Rome Statute, supra note 8, at art. 123.

241 In advancing a human right to be free from unlawful medical experimentation, human rights advocates have achieved legislative success in Comment 14 to the International Covenant on Economic Social and Cultural Rights (ICESCR), through which the Committee on Economic, Social, and Cultural Rights, the monitoring and interpreting body for the ICESCR, has found that the human right to health includes a right to be free from “non-consensual medical treatment and experimentation.” The Right to the Highest Attainable Standard of Health, CESCR General Comment 14, U.N. Committee on Economic, Social and Cultural Rights, 22d Sess., ¶ 8, Agenda Item 3, U.N. Doc. E/C.12/2000/4 (2000).