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War Law and the Medical Profession*

Published online by Cambridge University Press:  09 March 2016

L.C. Green
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Extract

The regimen I adopt shall be for the benefit of my patients according to my ability and judgment and not for their hurt or any wrong. I will give no deadly drug to any.… Whatsoever house I enter, there will I go for the benefit of the sick, refraining from all wrongdoing or corruption. … Whatsoever things I see or hear concerning the life of men, and my attendance upon the sick or even apart from them, which ought not to be noised abroad, I will keep silence thereon, counting such things to be as sacred secrets. (Hippocratic Oath)

It was Reported in july 1979 that Dr. Luisa Mistrali-Guidotti, a missionary doctor serving in Zimbabwe-Rhodesia, had been shot and killed by government troops while making her rounds in her “familiar” ambulance car near Mtoko. She had previously been threatened with arrest for attending to wounded guerrillas. Except for the fact that she had been killed, rather than taken prisoner and mistreated or tortured, her case had much in common with that of Dr. Sheila Cassidy, who in 1976 had been imprisoned and tortured for her services to Allende supporters during the Chilean revolution. Incidents such as these serve to emphasize that the medical profession is as much prone to the risks of armed conflict as is everybody else.

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Articles
Information
Canadian Yearbook of International Law/Annuaire canadien de droit international , Volume 17 , 1980 , pp. 159 - 205
Copyright
Copyright © The Canadian Council on International Law / Conseil Canadien de Droit International, representing the Board of Editors, Canadian Yearbook of International Law / Comité de Rédaction, Annuaire Canadien de Droit International 1980

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References

1 The Citizen (Ottawa), July 14, 1979.

2 See, e.g., Exodus 32: 27-28; Numbers 21: 3, 35; 31: 7, 17; Deuteronomy 2:34:3:16:13:15; Joshua 6:21.

3 1563, Part VII, Ch. III, 34 (Carnegie tr., 1936, 187).

4 Butler, and Maccoby, , The Development of International Law 134 (1928)Google Scholar.

5 Ibid., 187, note 28.

6 Ibid., 149–50.

7 Ibid., 150.

8 Ibid.

9 Ibid., 150–51.

10 Lieber Code, promulgated by President Lincoln as General Orders No. ioo, April 24, 1863 ( Schindler, & Toman, , The Laws of Armed Conflicts 3 (1973)Google Scholar.

11 See Green, , “The Indian National Army Trials,” 11 Modern Law Rev. 47 (1948).CrossRefGoogle Scholar

12 Schindler/Toman, op. cit. supra note 10, at 199.

13 Ibid., 203.

14 Ibid., 207.

15 Convention III (Ibid., 211).

16 Art.1.

17 Art. 4.

18 “Intention/consent removes the injury.”

19 Art. 7.

20 Schindler/Toman, op. cit. supra note 10, at 223.

21 Hague Regulations, Art. 4 (Annex to Hague Convention IV respecting the Laws and Customs of War on Land, 1907, Ibid., 63).

22 Requisitions are only permitted for the necessities of the army, may only be demanded on the authority of the commander, and as far as possible must be paid for in ready money, or else a receipt must be given and payment made as soon as possible: Ibid., Art. 52.

23 As will be seen below, the Geneva Conventions of 1929 and 1949 extended the permitted vise of the emblem (italics added).

24 Schindler/Toman, op. cit. supra note 10, at 235.

25 The boarding in Norwegian waters during World War II of the German auxiliary Altmark by H.M.S. Cossack to release imprisoned merchant seamen was a unique occurrence.

26 See, however, the case of The Ophelia, infra note 30.

27 New York Times, June 26, 1918.

28 Ibid., July 17, 18, 19, 1918.

29 Garner, International Law and the World War, vol. 1, at 504 (1920).

30 [1915] P. 129; [1916] 2 A.C. 206.

31 Spaight, Air Power and War Rights 283–85 (1947).

32 New York Times, April 25, 1917.

33 Cd. 8692 (1917), Correspondence with the German Government regarding the Alleged Misuse of British Hospital Ships, c. Garner , op. cit. supra note 29, vol. 1, at 510.

34 Ibid., vol.1, at 513.

35 Ibid., vol. 3, at 339–40.

36 Ibid., vol.1, at 499.. note 1.

37 Rev. Gén. de Droit International, 1915, Docs., 80.

38 The summary given here is based on Garner, op. cit. supra note 29, vol. 2, at 102–5.

39 War treason may be defined as “hostile acts committed inside the area controlled by the belligerent against whom the acts are directed by persons who do not possess the status of combatants”: Greenspan, , The Modern Law of Land Warfare 330 (1959)Google Scholar. It includes liberating prisoners of war, voluntary supply of money, provision of clothing, etc., to the enemy: Oppenheim, International Law, vol. 2, at 575 (1955). According to the British Manual of Military Law, Part III, The Law of Warfare 183 (1958), “Such acts … are offences against the law legitimately proclaimed by the Occupant and may be punished by him with a rigour commensurate with the seriousness of the offence and the requirements of the security of his troops and his administration.”

40 Garner, op. cit. supra note 29, vol. 2, at 104-5 (italics added).

41 1921, H.M.S.O., Cmd. 1450 (reproduced in Cameron, , The Peleus Trial, App. X (1948)Google Scholar.

42 Reprisals are illegal acts taken in response to illegal acts with the intention that the original wrongdoer shall, in response, desist from his illegalities.

43 Supra note 41 (Cameron, App. IX) ; the statement of fact is taken from the judgment.

44 These Conventions are to be found in Schindler/Toman, op. cit. supra note 10, at 247, 261, resp.

45 Art. 9.

46 Art. 12.

47 Art. 24.

48 Ibid.

49 Art. 24.

50 The Canadian reservation is to be found in Schindler/Toman, op. cit. supra note 10, at 258.

51 Spaight, op. cit. supra note 31, at 490, and 491, note 1.

52 Ibid., 362.

53 Re Brandt (The Doctors’ Trial) (1947), cited in Re Milch (1947), 7 Trials of War Criminals 52.

54 (1948), 13 Ibid., 1, at 34.

55 (1945) Kintner, , The Hadamar Trial (1949)Google Scholar.

56 Schindler/Toman, op. cit. supra note 10, at 163. Art. 2 defines genocide as “acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such,” and includes killing and measures intended to prevent births.

57 State v. Director of Prisons, ex. p. Schumann, [1966] G.L.R. 703; 39 Int’I L. Rep. 433.

58 Re Rohde (1946), 5 Trials of War Criminals 54; Webb, The Gatzweiler Trial ( 1944 ).

59 This was the first war crimes trial after the end of the European war: 1945, I Ibid., I; Cameron, , The Peleus Trial, (1948)Google Scholar. For details of the U-156 incident, see Mallison, , Submarines in General and Limited War 84–86 (U.S. Naval War College, International Law Studies, vol. 58, 1968).Google Scholar

60 See supra note 43.

61 1865 (H.R. Exec. Doc. No. 23, 40th Cong., 2d Sess., 1867-68, vol. 8) — Andersonville was a Confederate P.W. camp under Wirz’ command, where thousands of U.S. prisoners died as a result of ill treatment, starvation, and induced disease.

62 The experiments were taking place in almost every concentration camp; there was effective liaison between the Army Medical Inspectorate and the camp experimenters; the Ravensbruck experiments were reported at the third meeting of the consulting physicians of the Wehrmacht at the Military Medical Academy in Berlin, May 24-26, 1943; and see Nuremberg Judgment (H.M.S.O., Cmd. 6964, 63).

63 Hall, and Williams, , Auschwitz in England (1965).Google Scholar

64 Dr. Adelaide Hurtval.

65 Re Brandt (1947), cited in Re Milch (1947), supra note 53, at 49–52.

66 Evidence re Auschwitz given at Nuremberg, loc. cit., note 62 above.

67 See Re Hoess (1947), 7 W.C.T. 11, at 25.

68 Supra note 56.

69 Supra note 65, at 49–50.

70 This Law enacted by the Allied Control Council accepted the Principles of the Nuremberg Judgment and was the authority for war crimes trials in Germany, including those conducted by the German government when established.

71 This is from the Preamble to Hague Convention IV of 1907 and is regarded as the basic source of the law of war.

72 At 51–52.

73 (1946), see Brand, , The Velpke Baby Home Trial (1950)Google Scholar.

74 Art. 12.

75 The name of the alliance opposing the Axis Powers during World War II.

76 The Times (London), April 8, 10, 12, 13, 14; May 1, 28, 29; June 1, 17, 1948.

77 See Green, , Superior Orders in National and International Law (1976).Google Scholar

78 State v. Director of Prisons, ex p. Schumann, [1966] G.L.R. 703; 39 Int’l Law Rep. 433.

79 39 Int’l Law Rep. 433, at 439.

80 Ibid., at 451–52.

81 Schindler and Toman, op. cit. supra note 10, at 295, 323, 345, 417, resp.

82 Art.3, common to the four Conventions.

83 Conventions I and II, Art. 12; Convention III, Art. 13.

84 Convention I, Art. 19.

85 Ibid., Art. 28.

86 Convention I, Art. 36; II, Art. 39.

87 Convention II, Art. 43.

88 See supra note 33.

89 Convention II, Art. 33.

90 See supra note 30.

91 Convention II, Art. 34.

92 Convention I, Art. 50; II, 51; III, 130; IV, 147.

93 Arts. 49, 50, 129, 146, resp.

94 See supra note 787.

95 Art. 2 : “… the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such: killing members of the group; causing serious bodily or mental harm to members of the group; deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; imposing measures intended to prevent births within the group.…” By Art. ι genocide is a crime at international law whether committed in time of peace or war.

96 16 Int’l Legal Mat. 1391 (1977).

97 Ibid., 1442.

98 See, e.g., Green, , “The New Law of Armed Conflict,” 15 Canadian Yearbook of International Law 3, 11–13, (1977).Google Scholar

99 All these terms are defined in Art. 8.

100 See Dept. of the Army Training Circular, No. 27–10–1, June 1979. “Selected Problems in the Law of War,” 8. A similar pamphlet has been issued by the Federal German Republic.

101 Art. 9.

102 Art. 10.

103 See supra note 73.

104 Italics added.

105 Art. 12.

106 Art. 13.

107 Art. 30.

108 Art. 7.

109 Art. 9.

110 Italics added.

111 Levy v. Parker (1973), 1 Mil. Law Reporter 2130, 2142.