Military Doctors and Deaths by Torture: When a Witness Becomes an Accessory

Guest Blog Post: Steven Miles, M.D.

This blog post will appears as an Editorial in this May’s upcoming issue of AJOB

A Case (and Context)

The Medical Practitioner Tribunal Service in the United Kingdom recently revoked a physician’s license for failing to report treating a man who had been tortured and for failing to safeguard vulnerable detainees. The physician was serving with the UK military in Afghanistan. Baha Mousa, a prisoner, was brought to him with extensive signs of severe physical trauma. Soldiers told him that the man had sustained trauma. The physician knew that there were other prisoners and was apparently within earshot of their cries for help.[i] The physician led a competent but unsuccessful attempt at resuscitation. However he did not report the signs of trauma to a superior officer. He also failed to ensure the wellbeing of the other prisoners who were at risk of abuse.[ii] He compounded his complicity by maintaining this silence through three post-mortem investigations.[iii] Essentially, this physician, innocent of torture himself, was judged to have acted as an accessory to the abuse of other prisoners, a violation of medical professionalism. Extensive government inquiries were done.[iv]

Medical board punishments in this kind of situation are the exception, not the rule. Medical boards in Brazil have been especially aggressive in imposing medical license sanctions against physicians who signed death certificates falsely recording that prisoners who died of torture had died of natural causes.[v] By contrast, there have been no professional sanctions against US physicians or pathologists who failed to promptly and accurately report deaths of prisoners by abuse or neglect in War on Terror prisons.[vi] [vii] [viii] Without open contradiction from physicians, the United States government selectively released information that concealed the number of prisoners who died and overstating the percentage who died of natural causes rather than torture. In some cases, death certificate attributed the cause of death to “indeterminate” causes effectively undercounting of homicides of prisoners. For example, Hemdan Haby Heshfan Gashame died instantly after a soldier shot him at close range inside his cell. Knowing this history, a medical officer examined the body in the cell, noted a bullet entry wound under the chin and blood on the back of his clothes and wrote on the death certificate, “I could not make a cause of death since I am not a licensed pathologist.” [ix] In addition to underreporting the numbers and names of deceased prisoner, the United States used press releases rather than death certificates to describe more than two-thirds of deaths: a manner of disclosure that sheltered the physicians who wrote death certificates from public accountability.

Ethics Standards for Physician

Few medical codes directly address a physician’s duty to report torture. The United Nations condemns as “a gross contravention of medical ethics” for. . . “physicians, to engage, actively or passively [emphasis added], in acts which constitute participation in, complicity in, incitement to or attempts to commit torture or other cruel, inhuman or degrading treatment or punishment.”[x] The United Nations’ Istanbul Protocol contains a method for medical examination of the bodies of persons who are suspected of being tortured but unfortunately does not address the issue or duty of reporting torture outside of regular channels. [xi] Largely in response to the failure of US physicians to report torture in War on Terror prisons, the World Medical Association affirmed the duty of physicians to document and denounce acts of torture. This duty to document and denounce goes far beyond a duty to simply refrain from active participation in torture.[xii]

Physicians: Accessories after the Fact

Punishing physicians who fail to document and/or denounce torture is a moral evaluation that squarely juxtaposes a physician’s professional responsibilities against national policy. It is, after all, governmental policies or laws that encourage or tolerate torturing prisoners. Senior officials build the administrative framework for suppressing death investigations of prisoners and for protecting physicians who are actively or passively complicit with torture. Governments also encumber investigations of physicians by restricting access to records and witnesses and physicians exposure to non-military tribunals.⁵ Only rarely, as in Saddam Hussein’s Iraq, are physicians coerced to torture as a test of their loyalty to the regime.[xiii] Most torture-complicit physicians are either in elite groups or reflexively comply.

Recognition that torture is a government activity is the reason why most international standards to improve transparency regarding prisoner deaths are directed at governments. A 1949 Geneva Convention requires that death certificates “of all persons who die as prisoners of war shall be forwarded as rapidly as possible to the Prisoner of War Information Bureau” which “shall immediately forward such information” to relatives and “to the country of origin of the prisoners of war or to the Power on which they depend.”[xiv] United Nations’ prison standards state, “Upon the death [of…] a prisoner . . . the director shall at once inform the … the nearest relative [and] any other person previously designated by the prisoner.”[xv] In 1991, another United Nations investigation stated that the failure to disclose, investigate and prosecute the criminal deaths of prisons “may be regarded as an indication of the Government’s responsibility, even if no government officials are found to be directly involved in the acts.”[xvi] Further reforms in domestic and military death reporting are outside the scope of this paper.

The extent to which front-line physicians per se can be punished by a medical board for failing to act to report or deter torture for prisoners appeals to a sense of a professional ethic, a physician’s duty of station that transcends national law and which will not be enforced by international courts that only have resources to judge a few national leaders. Obviously, the judgment of a physician’s professionalism in denouncing torture must take account of the risks to the physician but it also must also concede that many physicians face little risk and also have opportunities to credibly report to international human rights groups. Holding Baha Mousa’s physician accountable for failing to report that death by torture and for not speaking on behalf of prisoners who were similarly at grave risk of abuse is a bracing instance of self policing professionalism. It makes the polite silence of medical communities that let their torturers live among them all the more embarrassing.