Military Ethics

Military Medical Ethics for the
21st Century
Edited by
Michael L. Gross and Don Carrick
Military Medical Ethics for the 21st Century
Military and Defence Ethics
Series Editors
Don Carrick – Project Director of the Military Ethics Education Network based in the
Institute of Applied Ethics at the University of Hull, UK.
James Connelly – Professor of Politics and International Studies, Director of the Institute of
Applied Ethics, and Project Leader of the Military Ethics Education Network
at the University of Hull, UK.
Paul Robinson – Professor in Public and International Affairs

at the University of Ottawa, Canada.
George Lucas – Professor of Philosophy and Director of Navy and National Programs in the
Stockdale Center for Ethical Leadership at the U.S. Naval Academy, Annapolis MD, USA.
There is an urgent and growing need for all those involved in matters of national defence – from
policy makers to armaments manufacturers to members of the armed forces – to behave, and to
be seen to behave, ethically. The ethical dimensions of making decisions and taking action in the
defence arena are the subject of intense and ongoing media interest and public scrutiny. It is vital
that all those involved be given the benefit of the finest possible advice and support. Such advice is
best sought from those who have great practical experience or theoretical wisdom (or both) in their
particular field and publication of their work in this series will ensure that it is readily accessible
to all who need it.
Also in the series
Precision-guided Munitions and Human Suffering in War

James E. Hickey
ISBN: 978-1-4094-2952-4
Protecting Civilians During Violent Conflict

Theoretical and Practical Issues for the 21st Century
Edited by David W. Lovell and Igor Primoratz
ISBN: 978-1-4094-3125-1
Kantian Thinking about Military Ethics

J. Carl Ficarrotta
ISBN: 978-0-7546-7992-9
Military Medical Ethics for
the 21st Century
Edited by
Michael L. Gross
University of Haifa, Israel
DON CARRICK
University of Hull, UK
© Michael L. Gross and Don Carrick 2013
All rights reserved. No part of this publication may be reproduced, stored in a retrieval system or transmitted
in any form or by any means, electronic, mechanical, photocopying, recording or otherwise without the prior
permission of the publisher.
Michael L. Gross and Don Carrick have asserted their right under the Copyright, Designs and Patents Act,
1988, to be identified as the editors of this work.
Published by
Ashgate Publishing Limited Ashgate Publishing Company
Wey Court East 110 Cherry Street
Union Road Suite 3-1
Farnham Burlington, VT 05401-4405
Surrey, GU9 7PT USA
England
www.ashgate.com
British Library Cataloguing in Publication Data

Military medical ethics for the 21st century. -- (Military
and defence ethics)
1. Medical ethics. 2. Medicine, Military--Moral and
ethical aspects. 3. Military ethics. 4. War--Medical
aspects. 5. War--Moral and ethic aspects.
I. Series II. Gross, Michael L., 1954- III. Carrick, Don.
174.2-dc23
The Library of Congress has cataloged the printed edition as follows:

Gross, Michael L., 1954-
Military medical ethics for the 21st century / by Michael L. Gross and Don Carrick.
pages cm. -- (Military and Defence Ethics.)
Includes bibliographical references and index.
ISBN 978-1-4094-3898-4 (hbk) -- ISBN 978-1-4094-3899-1 (ebook) -- ISBN 978-1-4094-7396-1 (epub)
1. Medicine, Military--Moral and ethical aspects--Case studies. 2. Military ethics--Case studies. 3.
Medical ethics--Case studies. I. Carrick, Don. II. Title.
UH390.G76 2013
174.2'9698023--dc23
2012042966
ISBN 9781409438984 (hbk)

ISBN 9781409438991 (ebk – PDF)
ISBN 9781409473961 (ebk – ePUB)
V
Contents
List of Figures and Table vii

Notes on Contributors ix
Acknowledgements xv
Introduction 1
PART I Battlefield Ethics
1 Military Medical Ethics: Experience from Operation Iraqi Freedom 17

Jacob Collen, Patrick O’Malley, Michael Roy and Laura Sessums
2 The Doctrine of Double Effect, Utilitarianism and

the Treatment of Civilian Casualties 43
Marcus Schulzke
3 Civilian Care in War: Lessons from Afghanistan 59

Peter Olsthoorn and Myriame Bollen
4 The Limits of Impartial Medical Treatment during Armed Conflict 71

Michael L. Gross
5 Medical Neutrality and the Dilemmas of War 85

Paul Gilbert
6 Revisiting Medical Neutrality as a Moral Value

and as a Doctrine in International Law 97
Yechiel Michael Barilan and Shlomit Zuckerman
PART II Military Medical Ethics and New Technologies
7 Enhanced Warfighters: A Policy Framework 113

Maxwell J. Mehlman, Patrick Lin and Keith Abney
8 Refusing to Be All That You Can Be: Regulating against

Forced Cognitive Enhancement in the Military 127
Lauren R. Robbins
vi Military Medical Ethics for the 21st Century
9 Ethics and Censorship of Dual-Use Life Science Research 139

Michael J. Selgelid
10 Biosecurity and Dual-Use Issues: The Education Module Resource 155

Maria J. Espona
11 Psychologists, Torture and SERE 173

Jessica Wolfendale
PART III Patient Rights, Research Ethics and

Military Medical Ethics Education
12 Rights of British Military Patients during Peace and War 193

Mike Gibson
13 Medical Confidentiality in the Military 209

Angus H. Ferguson
14 Accidents and Experiments: Nazi Chemical Warfare Research

and Medical Ethics during the Second World War 225
Ulf Schmidt
15 Institutional Review Board Specialization for Non-Lethal Weapon Research 245

Eric N. Erickson Jr
16 Hovering Between Roles: Military Medical Ethics 261

Daniel Messelken and Hans Ulrich Baer
17 Medical Education: Teaching Military Medical Ethics at the

Uniformed Services University of the Health Sciences 279
Edmund G. Howe
Index 297
List of Figures and Table
Figures
10.1 The web of prevention 166

12.1 Casualty flow 199
Table
1.1 Hierarchy of legal authority in descending order of priority 30

This page has been left blank intentionally
Notes on Contributors
Keith Abney is a philosopher of science and Senior Lecturer at California Polytechnic State
University, San Luis Obispo. Along with Dr Patrick Lin and Professor Maxwell Mehlman, he is part
of an ethics investigation on military human enhancements, funded by the Greenwall Foundation,
and was previously a Senior Investigator on two ethics projects on military robotics, funded by the
US Office of Naval Research. Abney serves on the ethics committee at a major local hospital and
teaches courses on bioethics, history of ethics, philosophy of biology, and more. He earned his BA
from Emory University and is ABD at the University of Notre Dame.
Marcus P. Adams is a PhD candidate in History and Philosophy of Science at the University
of Pittsburgh where he is writing a dissertation on the unity of Thomas Hobbes’s political and
natural philosophy. He has research interests in Early Modern Philosophy, Philosophy of Cognitive
Science and Psychology, and Bioethics. He has published articles in journals such as Philosophical
Studies, Philosophy of Science and Synthese, among others.
Hans Ulrich Baer is Professor of Surgery at the University of Bern, Switzerland and Professor at
Taramanagra University of Jakarta, Indonesia. He is head of the Centre for Abdominal Surgery at
Hirslanden Clinic Zurich. He is also Director of the International Committee of Military Medicine
reference centre of education for international humanitarian law and ethics. His main research
fields are in medicine and military-medical ethics and he has published in the journals Revue
International des Services de Santé des Forces Armées ICMM/CIMM and Military Medicine.
Yechiel Michael Barilan is a practising physician, expert in internal medicine and Associate
Professor of medical education in Tel Aviv University. His most recent book is Human Dignity,
Human Rights and Responsibility: The New Language of Bioethics and Biolaw (MIT Press). He
is one of the coordinators of a COST collaboration project on ethics in disaster and humanitarian
medicine.
Myriame Bollen is an Associate Professor in organization studies at the Netherlands Defence

Academy and a member of the Board of the Faculty of Military Sciences. Since 2004, she has been
a Visiting Professor at the Baltic Defence College, Estonia. Her research focuses on civil–military
cooperation and management of change.
Don Carrick qualified as a solicitor in 1973. He earned his BA in philosophy and his MA in applied
ethics from the University of Hull, where he is an occasional lecturer/tutor in political philosophy
and jurisprudence. He also teaches medical and military-medical ethics at the University of Leeds.
He is currently affiliated to the Defence Studies Department at King’s College London, where he
is undertaking research, jointly with David Whetham, into the provision of ethics education at
European military academies and colleges. He has published on military ethics education and Just
War Theory and is one of the editors of Ashgate’s Military and Defence Ethics Series. His main
research fields are in military, medical and legal ethics and political philosophy.
x Military Medical Ethics for the 21st Century
Jacob Collen is an active duty major in the US Army, and served as a battalion surgeon with the
1st Infantry Division during Operation Iraqi Freedom (2004–2005) in Samarra, Iraq. He has 16
journal article publications, in addition to scientific abstracts, review articles and book chapters
primarily in the fields of pulmonary and sleep medicine. He is currently in fellowship training for
Pulmonary, Critical Care and Sleep Medicine at Walter Reed National Military Medical Center in
Bethesda, MD.
Eric N. Erickson Jr is the Institutional Review Board Chair at United States Army Armament
Research, Development and Engineering Center. The IRB review portfolio includes social
behavioral and non-lethal weapon research. Additionally, he serves as Physician Assistant in the
177th Fighter Wing, New Jersey Air National Guard. He holds three masters degrees (Biology,
Physician Assistant Studies and Military Operational Art and Science) and is currently pursuing a
fourth in Theology.
Maria J. Espona is a biologist specializing on the field of Weapons of Mass Destruction, especially
in the area of biological weapons, and she has several publications on that topic. She teaches
in Postgraduate courses in Science and Technology, Science, Technology and Disarmament,
Information Quality and Digital Intelligence. In 2009 she and Eduardo Gauna, with support from
the MIT, started the Information Quality Program in Argentina (ArgIQ). She was founder member
of the Iberoamerican Association for Information Quality in 2011 and is now its Vice President. In
2010 she received a Leadership Award from the MIT IQ Program and in 2011 the second MIT IQ
award for an Outstanding Contribution to the field.
Angus H. Ferguson is Lord Kelvin Adam Smith Fellow in Social Sciences at the University of
Glasgow. He has undertaken research on a range of topics within the history of medicine, including
medical ethics, child health and sudden infant death syndrome. He has published articles and
book chapters exploring various aspects of the history of medical confidentiality and is currently
completing a book, examining the evolution of the boundaries of medical confidentiality in Britain,
for publication within Ashgate’s Medical Law and Ethics Series.
Mike Gibson served in the Royal Air Force for over 34 years and retired in 2002 with the rank of
air commodore. His career included 10 years of research at the RAF Institute of Aviation Medicine,
running the aeromedical evacuation service for the armed forces, commanding the Defence Services
Medical Rehabilitation Unit RAF Headley Court, being senior medical officer of a unit operating
Jaguar and Tornado aircraft in Germany, chairing various NATO committees and an exchange
tour with the United States Air Force. After leaving the RAF, he ran the UK’s oldest occupational
medicine company and currently works part-time as a medical member of the Tribunal Service. His
interests include travel, writing and playing various bagpipes.
Paul Gilbert is Emeritus Professor of Philosophy at the University of Hull. His principal
publications in applied political philosophy are Terrorism, Security and Nationality (Routledge
1994), The Philosophy of Nationalism (Westview 1998), Peoples, Cultures and Nations in Political
Philosophy (Edinburgh University Press 2000), New Terror, New Wars (Edinburgh University
Press 2003) and Cultural Identity and Political Ethics (Edinburgh University Press 2010).
Michael L. Gross is Professor of Political Science at The University of Haifa, Israel. He has
published widely in medical ethics, military ethics and military-medical ethics and led workshops
Notes on Contributors xi
and lectured on battlefield ethics, medicine and national security for the Dutch Ministry of Defence,
The US Army Medical Department at Walter Reed Medical Center, The US Naval Academy,
and the Medical Corps and National Security College of the Israel Defense Forces. His books
include Ethics and Activism (Cambridge 1997), Bioethics and Armed Conflict (MIT 2006), Moral
Dilemmas of Modern War: Torture, Assassination and Blackmail in an Age of Asymmetric Conflict
(Cambridge 2010) and a forthcoming study of ethics, insurgency and contemporary guerrilla
warfare.
Edmund G. Howe is Professor of Psychiatry, Director of Programs in Medical Ethics and Senior
Scientist, Center for the Study of Traumatic Stress (CSTS) at the Uniformed Services University of
the Health Science (USUHS) in Bethesda, Maryland, USA. He is the founding and present Editor-
in-Chief of The Journal of Clinical Ethics. He has spoken and written extensively on military-
medical ethics. He is Chair of the Human Use Institutional Review Board at USUHS and the
Ethics Subcommittee of the Society of Medical Consultants to the Armed Forces (SMCAF), and
past Chair of the International Health Law Committee of the American Bar Association (ABA).
He is a member of the Walter Reed National Medical Center Ethics Committees and the CIA IRB.
Craig M. Klugman is the Stewart and Marianne Reuter Professor of Medical Humanities and
Assistant Director at the Center for Medical Humanities and Ethics at the University of Texas
Health Science Center San Antonio. He earned his PhD in Medical Humanities at the University of
Texas Medical Branch, MAs in Anthropology and Bioethics at Case Western Reserve University,
and a BA in Human Biology from Stanford University. He conducts research in public health
ethics, research ethics, and ethics education. He is co-editor of Ethical Issues in Rural Health Care
(2008).
Patrick Lin is the director of the Ethics and Emerging Sciences Group, at California Polytechnic
State University, San Luis Obispo. He also has appointments at Stanford Law School’s Center for
Internet and Society and Australia’s Centre for Applied Philosophy and Public Ethics. He is well
published in the field of technology ethics, including most recently: Robot Ethics: The Ethical and
Social Implications of Robotics; What Is Nanotechnology and Why Does It Matter?: From Science
to Ethics; and the NSF-funded report Ethics of Human Enhancement: 25 Questions and Answers.
Previously, Dr Lin was an ethics fellow at the US Naval Academy and post-doctoral associate at
Dartmouth College. He earned his BA from UC Berkeley and PhD from UC Santa Barbara.
Patrick O’Malley is a Professor of Medicine and Division Director of General Internal Medicine
at the Uniformed Services University of the Health Sciences, Bethesda, Maryland. He is well
published in the fields of medical education, technology assessment, and primary care based
clinical research. He is Deputy Editor of the Archives of Internal Medicine. He is also a colonel in
the Medical Corps for the United States Army. He earned his BA from Williams College, his MD
from the University of Rochester, and his MPH from the Uniformed Services University.
Maxwell J. Mehlman is the Arthur E. Petersilge Professor of Law and Director of the Law-
Medicine Center, Case Western Reserve University School of Law, and Professor of Biomedical
Ethics, CWRU School of Medicine. He received his JD from Yale Law School in 1975, and holds
two bachelors degrees, one from Reed College and one from Oxford University, which he attended
as a Rhodes Scholar. Prior to joining the CWRU faculty in 1984, Professor Mehlman practised law
xii Military Medical Ethics for the 21st Century
with Arnold & Porter in Washington, DC, where he specialized in federal regulation of health care
and medical technology.
Daniel Messelken obtained his doctorate in Philosophy from the University of Leipzig in 2011.
He is currently a Research Asssitant in Military Medical Ethics at the Ethics Centre of Zurich
University, working in conjunction with the International Committee for Military Medicine and
the Swiss Armed Forces. His main areas of research are the morality of violence, Just War theory,
military ethics and applied ethics generally, and political philosophy. He has published widely on
the ethics of violence, particularly in the context of terrorism. His latest work is Gerechte Gewalt?
(‘Just Violence?’) 2012.
Peter Olsthoorn holds a PhD from Leiden University in Political Theory. He is Assistant Professor
at the Netherlands Defence Academy, where he teaches ethics and public administration. He is the
author of a number of articles on military virtues such as honour, courage and integrity and he has
published a book on military ethics and virtues (Military Ethics and Virtues, Routledge 2010).
Lauren R. Robbins is an attorney at Arnold & Porter LLP in Washington, DC. Ms Robbins is part
of the FDA and Healthcare law practice group, where she works on government investigations and
counsels clients on healthcare policy issues. She obtained her JD and Masters in Bioethics from the
University of Pennsylvania and her BA from Brown University. Ms Robbins has research interests
in informed consent, military-medical ethics, reproductive ethics, and bioethics generally.
Michael Roy is Professor of Medicine and Director of the Division of Military Internal Medicine
at Uniformed Services University. He is a graduate of Brown University and Brown University
School of Medicine, and completed medicine residency and a general medicine fellowship at
Walter Reed. He is president of the Society for Brain Mapping and Therapeutics and a Fellow
of the American College of Physicians. Dr Roy is the principal investigator on multiple studies
on war-related health, often using cutting edge technologies such as fMRI and virtual reality. He
authored the books Physician’s Guide to Terrorist Attack and Novel Approaches to the Diagnosis
and Treatment of Posttraumatic Stress Disorder, along with more than 20 book chapters and 45
journal articles.
Ulf Schmidt is Professor of Modern History at the University of Kent, founding director of the
Centre for the History of Medicine, Ethics and Medical Humanities and a Fellow of the Royal
Historical Society. His research interests are in the area of the history of modern medical ethics,
warfare and policy in twentieth-century Europe and the United States. He has published widely on
the history of Nazi Germany, the history of human experimentation, the Nuremberg Doctors’ Trial
and the Nuremberg Code, the history of eugenics and euthanasia, and the history of medical film
and propaganda. His books include Justice at Nuremberg (2004), (with A. Frewer) History and
Theory of Human Experimentation (2007) and Karl Brand: The Nazi Doctor (2007). Schmidt is
the principal investigator of a Wellcome-funded project to study the ethics and politics of Britain’s
Biological and Chemical Warfare Programme during the Cold War.
Dawson Schultz is Lecturer and Honorary Cowell Fellow at University of California, Santa
Cruz. Earlier, he held faculty appointments in Philosophy at Gonzaga University, California State
University, and Colorado State University. For seven years, he also served as Clinical Ethicist at the
Montreal Children’s while holding concurrent faculty appointments at McGill University (Centre
Notes on Contributors xiii
for Medicine, Ethics, and Law, Faculty of Medicine/Pediatrics, and Faculty of Religious Studies).
Schultz’s research interests include health care ethics, philosophy of medicine, philosophical
hermeneutics, and narrative ethics. Schultz’s recent focus has been on developing a hermeneutic
or interpretive ethics capable of confronting and going beyond the ‘fascist thinking’ symptomatic
of the modern self, that is, Alasdair MacIntyre’s ‘emotivist self’ or Charles Taylor’s ‘disengaged
identity’ whose moral pathology is spawned by its disengaged and malignant way of being in the
world.
Marcus Schulzke is the Research Director of the Project on Violent Conflict at the University at
Albany and an ABD PhD candidate in the Department of Political Science. His research interests
include contemporary political theory, applied ethics, military ethics, Just War theory, and issues
of political violence. He is currently finishing a dissertation on how soldiers make ethical decisions
during counterinsurgencies.
Michael J. Selgelid earned a BS in Biomedical Engineering from Duke University and a PhD in
Philosophy from the University of California, San Diego. He is a Senior Lecturer in the Centre
for Human Bioethics at Monash University in Melbourne, Australia. He co-authored Ethical and
Philosophical Consideration of the Dual-Use Dilemma in the Biological Sciences (Springer 2008)
and co-edited Ethics and Infectious Disease (Blackwell 2006), Health Rights (Ashgate 2020) and
Infectious Disease Ethics (Springer 2011). He has over 100 publications in bioethics.
Laura Sessums is an Associate Professor of Medicine at the Uniformed Services University of the
Health Sciences in Bethesda, Maryland, and has practised as a General Internist in a military hospital
for 10 years, most recently at Walter Reed National Military Medical Center. She has led multiple
workshops for teaching military physicians ethical principles applicable to deployment settings. She
received her JD and MD from Vanderbilt University in 1985 and 1996 respectively. Prior to attending
medical school in 1992, she practised law with Arnold & Porter in Washington, DC.
Jessica Wolfendale is Assistant Professor of Philosophy at West Virginia University. She is the
author of Torture and the Military Profession (Palgrave-Macmillan 2007), and co-editor (with
Paolo Tripodi) of New Wars and New Soldiers: Military Ethics in the Contemporary World (Ashgate
2011). Her publications on topics in military ethics, terrorism, torture and bioethics have appeared
in numerous journals, including Ethics and International Affairs, Social Theory and Practice, and
the American Journal of Bioethics.
Shlomit Zuckerman is a post-doctoral fellow at Tel Aviv University Department of Medical

Education. She contributed to this project through a post-doctoral fellowship funded by the
Israeli Ministry of Science. Zuckerman represents Israel in a COST research collaboration on
ethics in disaster and humanitarian medicine. She received her LLB from the Hebrew University
Law School in 1996 and her PhD in Bioethics from Case Western Reserve University School of
Medicine in 2009. She holds a Bachelor’s degree in Biology from the Faculty of Life Sciences at
the Hebrew University. Prior to starting her graduate studies at CWRU Dr Zuckerman practised
law as a federal prosecutor and legal adviser at the State of Israel City of Jerusalem Legal Division,
where she specialized in labour and environmental law.
Acknowledgements
This book could not have been completed without the willing cooperation of the chapter authors,
who cheerfully acquiesced in meeting relentless editorial demands that they revise and revise again,
sometimes, we suspect, to the point of exhaustion. The end result is a collection of articles of the
highest quality that are a credit to their authors’ endeavours. Our most profound thanks go to them.
Grateful thanks are also due to our loyal band of anonymous referees who, in their own time
and often at absurdly short notice, produced incisive and insightful reviews that were of great
assistance to the authors and to ourselves. Particular thanks are due to Ashgate’s own reviewer
whose sterling efforts in producing long and detailed critiques often went above and considerably
beyond the call of duty.
Finally, we thank Ashgate’s editors Margaret Younger and Kirstin Howgate for their unstinting
advice, support and encouragement throughout the (somewhat protracted) gestation period of this
volume.
Introduction
The challenges facing military medical ethics in the twenty-first century stem directly from two
far-reaching changes in modern warfare. First, the past two decades have seen a dramatic increase
in asymmetric war1 between states and non-state actors to the near exclusion of war between nation
states. Asymmetric guerrilla warfare did not end with the death of colonialism or apartheid but
gained impetus from the collapse of the Soviet Union, the break-up of Yugoslavia and the ongoing
wars in Iraq and Afghanistan. In the minds of some observers, the law of armed conflict has not
kept pace with these developments as insurgents fight without uniforms and state armies resort
to torture and targeted killings to combat militants. In response, some jurists, philosophers and
ethicists have re-evaluated the relationship between the necessities of war and the laws of war,
including those that regulate the provision of health care and guarantee patient rights. In this light,
contributors to this volume critically examine battlefield ethics, the legal and moral imperatives of
medical neutrality (that is, the duty to ignore a patient’s nationality and treat all patients according
to medical need), patient rights such as confidentiality and privacy, and the guidelines appropriate
for military medical research.
Second, medical technology has assumed an unprecedented role in modern warfare. Prior
to the middle of the nineteenth century, military medicine played virtually no meaningful role
on the battlefield. While medical care was sometimes available for elite troops (as Napoleon
provided for his Imperial Guard), most wounded were left to the care of sympathetic locals
or to simply fend for themselves. It was not until the early 1860s that publicity generated by
the reports of Florence Nightingale and Henri Dunant from the battlefields of the Crimea and
Solferino shocked governments into making radical improvements. Beginning with the American
Civil War and continuing to this day, military medicine made dramatic strides in its ability to
evacuate and care for the wounded. But the emphasis was always on treating the wounded, never
on making weapons. Weapons technology was the purview of engineers and experts on ballistics
and explosives. This is still true, of course, but since the Second World War, medical scientists and
physicians have also entered the fray. Biological and chemical weapons were medical weapons that
hoped to use pathogens and chemical agents lethally and effectively. While international treaties
have banned the former and greatly restricted the latter, medical science continues to make pivotal
contributions to the development of non-lethal weapons and to enhancement technology that turns
to pharmaceuticals and state-of-the-art prosthetics to make warfighters smarter, stronger, alert and
confident.
These challenges set up the dilemmas that occupy the contributors to this volume. While
medical ethics demands respect for confidentiality, privacy, a patient’s right to accept or refuse
treatment (informed consent) and medical neutrality, the requirements of war and military service
conflict with a health care provider’s ability – not to say role-driven duty – to observe these
principles in their entirety. At the same time, many medical organizations oppose the participation
of medical personnel in the development of weapons or medical enhancements that do not have
1 ‘Asymmetric war’ is used in context as a convenient blanket term to cover the wide variety of different
names currently in use to describe conflicts other than state-on-state ones.
2 Military Medical Ethics for the 21st Century
any therapeutic value. Here too, however, the necessities of war impinge upon the tenets of medical
ethics.
Military Ethics and Medical Ethics
Balancing military necessity , military ethics and medical ethics is the crux of the challenge that
the contributors to this volume face. ‘Military necessity’, as defined in Article 14 of the classic
catalogue of the customary Law of War, the Lieber Code of 1863 (itself produced as in reaction
to the horrors of the American Civil War) ‘… consists in the necessity of those measures which
are indispensable for securing the ends of the war, and which are lawful according to the modern
law and usages of war’. Variations on this definition have found their way into military handbooks
of rules and standards such as the 2004 British The Manual of the Law of Armed Conflict (UK
Ministry of Defence 2004, Section 2.2.1) which stipulates that states engaged in armed conflict
must ‘… use only that degree and kind of force, not otherwise prohibited by the law of armed
conflict, that is required in order to achieve the legitimate purpose of the conflict …’. But such
legalist definitions, unfortunately for our purposes, beg the question. What happens when the
military mission (success in battle and victory in war) demands acts that are not sanctioned by
international law? As the chapters by Jacob Collen et al., Michael L. Gross and Paul Gilbert show,
the conditions of war sometimes make it impossible to treat all the wounded equally and may, in
fact, demand that less severely wounded compatriots be treated before more severely wounded
enemy soldiers or civilians. Non-lethal weapons may ultimately help save lives in a battlefield
environment where combatants are indistinguishable from civilians but at the cost of inflicting
direct harm on non-combatants; a grave breach of the law of war. Further, the exigencies of war
may severely curtail the medical rights of military service personnel. Writing on enhancement,
Maxwell Mehlman and his colleagues, together with Lauren R. Robbins, confront the military
imperative that sometimes commands soldiers to accept enhancing medical treatment, on pain of
facing disciplinary action if they refuse. Alternatively, war may impose entirely new obligations to
provide medical care to wounded civilians, as Marcus Schulzke and Peter Osthoorn and Myriame
Bollen argue in their chapters.
To understand the dynamic at work here, a few words about the principles of medical and military
ethics, the laws of armed combat, and the imperatives of mission accomplishment are in order.
There is a general prohibition on the use of ‘unlawful means’ to secure one’s objective in wartime.
Unlawful means are those proscribed by international treaties or conventions. Since international
laws gain their force by agreement, they may also lose their force if nations agree to change the law
of war or choose to leave a specific topic of war unregulated. A good example is unconventional
weapons. While biological weapons are categorically proscribed, chemical weapons are merely
restricted, while nuclear weapons remain largely unregulated. This inconsistency stems from
the relative strength and competing interests of the great powers whose respective state interests
converge on the subject of biological weapons but diverge greatly with regard to nuclear weapons.
Thus, different legal principles govern each kind of weapon. Moral principles, on the other hand,
are free from the vagaries of politics, allowing one to argue that each of these three weapon types
should be equally restricted or banned because they pose a catastrophic and unacceptable danger
Introduction 3
to humankind. All three are similar in this respect and, there are, therefore, no good moral reasons
to distinguish among these three weapons. We therefore need to look elsewhere for the moral
principles that underlie the laws of war. They are to be found within the Just War Tradition (JWT):2
this provides a lens through which to ascertain the justice of a particular war.
There are several categories of such principles. The first (jus ad bellum) speaks to the just cause
of war. War is justified when nations fight in self-defence against unjust occupation or aggression
and/or in defence of the fundamental rights of others. In the first case a nation defends itself against
invasion or seizure of territory or an imminent threat and, in the second, fights a war of humanitarian
intervention in defence of the rights of others.
A second moral category of war (jus in bello) speaks to the rights of its participants and the
just means to wage war. Combatants enjoy the right to kill but may not kill one another in any
way that comes to hand. Human dignity, that is, the basic worth we accord a person qua human
being, demands that even during war soldiers enjoy protection from unnecessary and inhuman
harm. ‘Unnecessary’ refers to any means not necessary to subdue an enemy. ‘Inhuman’ is more
expansive and prohibits unusually cruel means of warfare. Examples include torture and a small
number of weapons such as exploding bullets, serrated bayonets and blinding lasers. Innocent
non-combatants enjoy even greater rights that protect them from unnecessary, direct and excessive
(disproportionate) harm. Notice, however, that non-combatants do not enjoy blanket protection
during war but instead remain vulnerable to what is commonly known as collateral or incidental
harm that results in death, injury and disease. This is the crucial difference between peace and war.
Not only do the innocent suffer in war, they suffer justifiably when a nation’s cause is just and its
armies make every effort to avoid inflicting unnecessary, direct and excessive harm upon civilians
as they pursue their enemies. Thus the JWT, at least in its first modern formulation, that of St
Augustine (writing in the fourth century ad) started from a recognition that war was an inevitable
part of the human condition and caused harm on a massive scale. The object of the JWT was
therefore to set limits and constraints on the amount of violence that could be used. Augustine’s
project was an attempt to reconcile the inevitability of widespread death and destruction in wartime
with the pacifist teachings of Christianity.
Hippocrates’ starting principle in medical ethics, ‘Do no harm’, was much the same as
Christianity’s, but neither took account of war, where the starting principle seemed to be ‘Do as
much harm as is necessary in order to secure victory’. Augustine, and later St Thomas Aquinas,
offered a compromise: ‘Do no more harm than is necessary to secure victory’. But the principles
of medical ethics could not accommodate even this compromise: the prohibition against inflicting
harm was absolute. The principles were therefore bound to conflict with the moral principles
of JWT, as well as with combatant and non-combatant rights that govern armed conflict. The
World Medical Association, in fact, is quite emphatic about this. ‘Medical ethics in times of armed
conflict,’ they declare, ‘is identical to medical ethics in times of peace’.
Several common themes underlie the principles that constitute modern medical ethics: the right
to life, respect for human dignity, respect for autonomy, individual self-determination and utility.
The right to life is fundamental. The purpose of medicine is to save lives and improve life. To do
so, individuals enjoy the right to health care. This is a positive claim right soldiers have toward
their government or military organization that obligates them to provide warfighters with the care
2 The JWT is sometimes referred to as the Just War Theory, but this is a misnomer: the Tradition is
actually a body of doctrine, Judaeo-Christian and Graeco-Roman in origin, comprising the practical wisdom
of theorists and practitioners in the art of war accumulated over several millennia.
necessary to do their job. However, it is a peculiar aspect of military medical medicine, as Gross
argues in his chapter, that this claim may weaken when soldiers can no longer do their job.
Respect for dignity, autonomy and self-determination run together. Dignity, as noted earlier,
reflects the intrinsic value attached to any human being. Whilst dignity is a fundamental principle
of international human rights, its role in medical ethics is quite modest. Doctors rarely have an
opportunity to egregiously violate human dignity. A physician’s role in interrogation may be one
example, however, as might be abject neglect of a terminally ill patient. More commonly for
medical ethics, dignity is usually interpreted in terms of lack of respect and non-humiliation. Even
here the usage is often intuitively compelling without admitting of an easy explanation. Thus we
cover a naked but unconscious patient out of respect for his dignity whilst knowing that the patient
in his present state is incapable of humiliation.
Respect for autonomy, on the other hand, does much of the heavy lifting for medical ethics
and reflects the cognitive capacity of human beings to legislate or determine their own vision of
the good life and the means necessary to achieve it. As individuals contemplate these ends and the
means necessary to realize them, they exercise the freedom to shape their own lives. Respect for
autonomy cuts across deontological and utilitarian moral theories. For the former, it is a fundamental
and defining element of Kantian ethics; for the latter, an essential component of human happiness.
In the context of medical ethics it generates the subsidiary patient rights of informed consent, that
is, the right to receive the medical information necessary to accept or decline treatment, and thus
underlies a caregiver’s duty to tell the truth and to respect confidentiality and privacy.
Utility is also a principle common to military and medical ethics as both strive to provide
maximum benefits at minimal cost. In medical ethics, money usually defines costs while the
number of lives saved and metrics of quality of life define benefits. These benefits are not always
commensurate. Which, for example, is an ethically superior allocation of resources: a neonatology
unit that will save tens of premature infants at a cost of tens of thousands of dollars each or free
dental care for thousands at the same cost? Nations might try to do both but resources are limited
and so they will have to choose. Regardless of how they choose, they are trying to maximize the
welfare of a patient or patients, whether a soldier or civilian. Military ethics, on the other hand,
does not do this. It is no secret that war often takes more lives than it saves. Nations or peoples
sacrifice lives for intangible collective goods such as freedom, sovereignty and honour. As such,
the individual soldier-patient may find his medical needs, indeed his very life, subordinated to the
interests of some amorphous collective.
Once the principles of medical ethics are superimposed on those of military ethics, conflicts
and dilemmas inevitably arise. Patient rights to medical care and informed consent, and caregiver
duties of truth telling and confidentiality all come under pressure. Limited resources may demand
that an army medical team first treat those they can return to battle thereby leaving the critically
injured to die. Or, the threat of biological warfare may require an army to order soldiers to take an
experimental vaccine, exactly as the United States demanded of its soldiers prior to the First Gulf
War (see Mehlman et al. in this volume). Soldiers who refused had to leave the service. Similar
concerns about military necessity may require that health care providers shade the truth about
the effect of certain mandatory treatments to protect morale or return soldiers to duty before they
are entirely well. In these latter cases, the principle of utility undergoes transformation. It is not
a particular patient’s welfare that a caregiver strives to maximize but the collective welfare of an
entire army. In doing so, an individual’s welfare may be shunted aside in favour of the collective
good.
In the chapters that follow, the contributors grapple with these dilemmas in different ways.
Few uncritically accept that proposition that medical ethics in time of war is identical to medical
Introduction 5
ethics in times of peace. For some authors, the principles of medical ethics will, after careful
consideration, outweigh those of military ethics. For others, military necessity, subject to the moral
principles governing just cause and the rights of combatants and non-combatants, is sufficient to
override some principles of medical ethics such as the right to health care or the right to informed
consent. They will acknowledge that the good of an individual patient may fall to the collective
welfare of the fighting force. But they will also understand that that human dignity is not forfeit.
Regardless of the exigencies of war, medical personnel, no less than anyone else, may not neglect
or abandon their charges or treat them inhumanely. This may seem obvious but it is a recurring
quandary during war.
Clashes between military and medical ethics sometimes force military medical personnel to
wear two hats (or as some term it, assume ‘dual loyalty’): one as a caregiver who looks after her
patient and another as a soldier who serves his military organization and obeys his superiors. This
is not a new problem and in some cases physicians can only live with this tension. Dominique
Larrey, one of the early fathers of military medicine and Napoleon’s chief surgeon, sensibly
believed that the wounded should be evacuated from frontline aid stations to larger hospitals in
the rear ‘immediately after an engagement’. But he also understood that this was largely a military
decision: ‘To these physiological arguments in favour of removing the wounded,’ Larrey wrote,
‘should be added others of a political nature. To the commander- in-chief alone it belonged to
admit these, and to arrange such plans as would best serve the interests of the wounded, and
support the spirits of the soldiers’ (Larrey [1814] 1987, vol. 2, 147). Physicians may determine their
patients’ medical needs, but military commanders decide when and how to serve them consistent
with military necessity and the prosecution of the war. This applies across the board whether in
terms of battlefield medical ethics (Part I), the ethical challenges posed by new enhancement and
biological (or life science) technologies (Part II) or by the everyday tasks of protecting patient
rights, conducting military medical research or engaging students in the course of military medical
ethics education (Part III).
Battlefield Medical Ethics
Larrey’s concerns are immediately obvious in the first of the chapters in this book. In ‘Military
Medical Ethics: Experience from Operation Iraqi Freedom’, Jacob Collen, Patrick O’Malley,
Michael Roy and Laura Sessums, together with commentaries by Craig M. Klugman, Marcus
Adams and Dawson Schultz, analyse seven cases that describe the difficulties inherent in providing
care to local civilians, host-nation forces (that is, Iraqi soldiers allied with Coalition soldiers), host-
nation civilians who work for Coalition forces, and detainees. In these cases, the medical imperative
to provide immediate care is clear and would normally be overriding except for severe battlefield
conditions. In some instances, medical resources are limited so that treating locals may exhaust the
supplies necessary to evacuate or treat Coalition soldiers. Sometimes treatment is futile because
it requires sophisticated follow-up care that is unavailable in the local health care system. In other
cases, providing care is dangerous, so that stopping to treat wounded civilians may put Coalition
soldiers at unacceptable risk. To resolve these dilemmas, the authors prioritize their principles.
Often military necessity is paramount, particularly when mission success is at stake. This is not
controversial: military necessity is a big and decisive hammer. The trick, however, is to determine
if and when military necessity is on the line. Often, it is not and these authors convincingly offer
cases that reject first impressions and conclude that military necessity is not always at issue. Once
military necessity is set aside, conflicts with military commanders resolve thereby leaving medical
personnel to confront their dilemmas utilizing the basic principles of medical ethics enumerated
above. Concerns for military necessity and medical care continue to engage the contributors as
they consider care for sick and injured enemy civilians and enemy combatants in detail.
Medical Care for Civilians
Two chapters focus on civilian care. In ‘The Doctrine of Double Effect, Utilitarianism and the
Treatment of Civilian Casualties’ Marcus Schulzke raises vexing questions about the obligation
to provide medical care to enemy civilians who suffer collateral harm in the wake of necessary
military operations. This is a question that neither the law of war nor the JWT has addressed.
At best, humanitarian law requires occupying forces to provide medical care for civilians. But
collateral harm often results in war-torn areas that opposing armies never occupy. To grapple
with this predicament, Schulzke turns to the doctrine of double effect (DDE). The DDE is the
lynchpin of any justification of collateral damage for it permits unavoidable and unintended harm
to innocent third parties. Ordinarily, the DDE does not prescribe any duty to mitigate harm after
the fact; a serious flaw that Schulzke corrects by demanding follow-up medical care for enemy
civilians despite the attendant costs and logistical difficulties. If sustained, his argument imposes
significant and hitherto unrecognized duties and burdens on military medical forces, which will
only strain resources further.
Picking up on Schulzke’s argument, Peter Olsthoorn and Myriame Bollen provide an on-the-
ground look in their ‘Civilian Care in War: Lessons from Afghanistan’. Rather than focus on the
rules that regulate treatment of wounded enemy combatants, as Gross and Gilbert discuss in the
following chapter, Osthoorn and Bollen take on a more nuanced regulation: ISAF (International
Security Assistance Force) rules requiring that medical personnel treat Afghan army troops before
Afghan civilians. In these cases, physicians must delay treatment of seriously wounded civilians
so they may treat less severely wounded Afghan soldiers. This dilemma mirrors that of having to
choose between compatriots and enemies, albeit void of the emotional commitment one has toward
one’s own (see the Gross and Gilbert debate following). As such, the Afghani case offers a clear
conflict between professional medical ethics and military imperatives. In practice, physicians do
not resolve the dilemma but often game the system to provide the care they must. In this way, their
behaviour is not so different from civilian physicians who must navigate between the needs of their
patients and the interests of insurers.
Medical Civic Action Programs (MEDCAP) present similar dual loyalty conflicts for
physicians providing local health care during humanitarian operations. During the war in Vietnam,
the US developed medical programmes as both a health care tool and a propaganda tool. US
built and managed medical facilities would provide basic health care to villagers and demonstrate
the benevolence and good will of the Vietnamese government and its allies. Health care was the
tool to cultivate loyalty to the regime and support for US forces. This dual role for medicine
was largely unprecedented and created no few dilemmas for military physicians. These dilemmas
resonate today in Afghanistan as the ISAF establishes public health programmes and builds and
staffs clinics. On one hand, medical care is still rudimentary, short of diagnostic equipment and
without effective follow up. On the other hand, its primary goal is still military: pacification of the
local population. As in Vietnam, MEDCAP’s mix of medical and military roles is volatile, leaving
doctors, nurses and medics unable to effectively fulfil either their military or medical mission.
Olsthoorn and Bollen confront this tension with a call for a more comprehensive ethic of care so
that the medical personnel can emphasize their roles as healers. Effecting this solution includes
possible changes to international law and to the concept of neutrality; precisely the subject the next
contributors take up.
Introduction 7
Medical Care and Medical Neutrality: Treating Combatants during Armed Conflict
In the following two chapters, Michael L. Gross and Paul Gilbert debate the principle of medical
neutrality that stipulates that only urgent medical need should determine the order of treatment
among wounded combatants. In ‘The Limits of Impartial Medical Treatment during Armed
Conflict’ Gross disputes this principle with reference to three cases: battlefield triage, care for
local civilians and fighters, and care for compatriots. During battle, scarce resources may upend
need-based care and require physicians and medics to treat those with only moderate wounds in
order to return them to battle quickly. Under these circumstances, those requiring urgent medical
need are treated last. A different situation arises when occupying or intervening forces treat host-
nation civilians or allies. As Osthoorn and Bollen, and Collen and his colleagues described in
previous chapters, these cases are not rare; local nationals make persistent demands upon Coalition
or ISAF medical facilities. Nevertheless, international law and military imperatives may leave
many host-nation nationals with second- tier care while Coalition forces enjoy first-rate care. Here,
too, nationality, not just medical need, matters. Finally, Gross considers the special obligations of
comradery and care that may morally require a medic to treat his compatriots before anyone else,
regardless of the severity of their wounds.
In ‘Medical Neutrality and the Dilemmas of War’ Paul Gilbert acknowledges that there may be
rare instances where military imperatives may override the principle of neutrality when resources
are scarce. Nevertheless, he defends neutrality from any encroachment that may come from special
duties to one’s comrades. Neutrality is paramount because it innervates medical care and provides
the foundation of medical integrity. Neutrality is inseparable from the role of caregiving that
embodies the medical profession and is not subject to the conflicting loyalties that come with
being a soldier or comrade-in-arms. On the contrary, argues Gilbert, these latter roles, and the
duties inherent in them, remain subordinate to the neutral role of caregiver. Yet, if there is no moral
conflict between the demands of neutrality and feelings of comradery, why do medical personnel
anguish over the question of whom to treat first? While Gilbert acknowledges that military medical
personnel may feel the duty to treat their comrades before all others, they must remember that this
is only a feeling, an affective sentiment and not, as Gross suggests, a moral obligation. As such,
the challenge that doctors and medics face is not one of sorting out conflicting principles but of
overcoming weakness of will.
While Gross and Gilbert debate the practice of medical neutrality and come to very different
conclusions about its reach, Y. Michael Barilan and Shlomit Zuckerman look deeply into the
normative and legal regimes governing the practice of medical neutrality and, in particular, their
implications for non-combatant immunity. This chapter, ‘Revisiting Medical Neutrality as a Moral
Value and as a Doctrine in International Law’, is a telling example of how philosophers can draw
conclusions about the practice of war from the practice of medicine. Like Gilbert, Barilan and
Zuckerman affirm norms that require physicians to treat the wounded with absolute neutrality. Far
from being a pragmatic convention or agreement among the warring parties (as Gross argues),
immunity for medical personnel reflects the unique status of physicians as caregivers and should
afford medical personnel a special kind of protection that other non-combatants do not possess.
This may mean that medical personnel, unlike civilian non-combatants, should never suffer
collateral harm or, unlike wounded soldiers, never face incarceration upon capture. Rather, there
is room to consider a far stronger standard to prevent harm to medical personnel during military
operations and a far looser standard that might mandate their release if captured. These proposals
task international law to set tighter regulations respecting neutrality, an argument in stark contrast
to Gross’ proposal to relax standards in light of conflicting moral obligations of comradery. The
complex relationship between medical personnel and existing norms of military and medical
conduct is not unique to the treatment of the wounded, but pervades all aspects of twenty-first
century military medical ethics. The promise of cutting edge enhancement technologies and the
dangers of dual-use biomedical research present these dilemmas in stark relief.
Military Medical Ethics and New Technologies
Biomedical Enhancement
Biomedical enhancement is an innovative technology that presents very hard dilemmas for military
medical ethics. While the traditional role of medicine is, as the previous chapters indicate, to treat
the wounded, military medicine has moved into new territory in recent years, namely, to prevent
wounds and injuries by developing technologies to make stronger, smarter and sturdier soldiers
who can better survive the dangers of the battlefield. In the first chapter in Part II, ‘Enhanced
Warfighters: A Policy Framework’, Maxwell Mehlman, Patrick Lin and Keith Abney consider
such enhancement technologies as pharmaceuticals, bionic body parts and neural implants and
ask which normative principles should govern their development and use. Enhancements of these
sorts neither cure any disease nor provide a therapeutic benefit to those who receive them. As a
result, enhancement technology raises many questions about informed consent, coercion in cases
of refusal, and the level of permissible risk that a military organization may impose on ‘enhanced’
warfighters. To answer some of these questions, the authors consider but ultimately reject several
policy frameworks that guide non-military medical ethics. These policy models emphasize the
core principles of medical ethics described earlier that require that physicians respect patient
autonomy, facilitate informed consent and maximize a patient’s welfare. Due to the inability
to always obtain informed consent and to maximize a patient’s welfare during armed conflict,
Mehlman and his colleagues find the medical ethics model unsuitable for regulating enhancement
technologies. Similarly, public health models that permit authorities to vaccinate or quarantine
certain individuals do not account for military requirements, which may demand that troops accept
untested, experimental technologies. To work through these shortcomings, the authors propose
a hybrid model that takes account of military imperatives, military ethics and medical ethics but
which hopes to balance them against such principles as fairness, consent, respect for dignity,
transparency, just cause and international humanitarian law, thus giving give policy makers the
tools to tackle the hard questions that enhancement technology poses.
Central among these questions remains the place of consent. While some may argue that the
military may require soldiers to accept enhancement technologies, Lauren R. Robbins’s ‘Refusing
to Be All That You Can Be: Regulating against Forced Cognitive Enhancement in the Military’
challenges this claim. As she reviews advances in pharmacological enhancements, Robbins
describes how few of these enhancements are therapeutic while some go so far as to alter an
individual’s cognitive state. Developing the idea of ‘cognitive liberty’, (that is, an individual’s
right to ‘think independently and autonomously, using the full spectrum of the mind’), Robbins
concludes that drugs that change a person’s cognitive state may only be administered with a
soldier’s full and informed consent; anything else is a gross infringement of a basic right. Against
Robbins are the same objections that Mehlman and his colleagues raise: military imperatives
and the feasibility of obtaining consent in battle. But Robbins is unmoved by these arguments,
suggesting instead that military authorities obtain consent prior to deployment rather than wait
for the urgency of battle. And, what if military imperatives are overwhelming? Here, too, Robbins
Introduction 9
stands firm and insists that the military find alternatives or simply stand down, rather that infringe
upon a soldier’s fundamental liberties. Her arguments, together with Gilbert’s, Schulzke’s and
Osthoorn and Bollen’s, reinforce a fundamental fault line in the discourse of military medical
ethics. On one side are those who side largely with the WMA’s position that military medical
ethics in wartime is identical to military medical ethics in peacetime. On the other side are those
observers who cannot help but notice that the exigencies of war may fundamentally alter the ethics
of military medicine.
Dual-Use Life Science Technologies
During the Second World War, the United States and its allies censored all scientific information
pertaining to the mass production of penicillin. This effectively kept penicillin out of enemy
hands for the duration of the war. As a result, many enemy soldiers and civilians probably died
of preventable infections. For proponents, US policy justifiably restricted information, medical
information, that would have allowed an enemy to sustain a more powerful and threatening
fighting force. In the process, medical and scientific needs fell before national security. This
debate resonates today but in the opposite direction. Scientists need not fear that an enemy will
use advances in medical research to fortify their fighters. Rather, they fear that terrorists will use
medical research to manufacture a catastrophic biological or chemical weapon. The threat is very
real and poses two tasks for military medical ethics: regulation and education.
These tasks are interwoven. In his chapter, ‘Ethics and Censorship of Dual-Use Life Science
Research’, Michael J. Selgelid takes up the first challenge, highlighting a rancorous debate that
recognizes the need for regulating the dissemination of sensitive scientific research but remains
wary of high-handed government interference. In the second chapter, ‘Biosecurity and Dual-Use
Issues: The Education Module Resource’, Maria J. Espona takes up the second challenge and
proposes a far-reaching and ambitious educational programme as a front line of defence against
the misuse of biomedical research.
To grasp the enormity of the threat that the malevolent use of biomedical research presents for
the international community, Selgelid vividly describes a number of contemporary cases that can
seriously threaten national security. Advances in genetic engineering have allowed scientists to
replicate a number of deadly viruses including mousepox (closely related to smallpox), polio and
the Spanish flu that killed millions 100 years ago. Despite the danger, pathogen replication is an
essential part of developing new genetic technologies that may benefit human health. As such, the
research is dual use: while its primary goal aims to advance medical and scientific knowledge, the
same research admits of malevolent use in the wrong hands. These contemporary cases, together
with historical uses of crude biological weapons, are at the heart of the educational curriculum that
Espona develops to introduce scientists to the dangers of dual-use research.
Confronting the malevolent misuse of dual-use research will require scientists to police their
work in a way that is unprecedented. No single solution seems feasible. Many worry that excessive
government oversight or censorship will hinder or block research. Alternatively, calls for self-
regulation or institutional regulation, for which few scientists are well equipped, might be of
doubtful efficacy. To meet these concerns Selgelid proposes a multidimensional approach that only
embraces censorship in those very rare instances when publication presents a clear, immediate and
overwhelming danger to the community. For most potentially dual-use research, he turns to a ‘web
of prevention’ that begins with basic educational efforts to alert scientists to possible dangers of
dual-use research and gives them guidelines to tailor their research accordingly. Because scientists
may sometimes find it difficult to supervise their own research, professional committees may be
necessary to provide additional oversight. Only when these committees remain undecided might it
be necessary to turn to stronger forms of censorship. At the same time, there is considerable room
to consider ‘downstream’ measures that prepare for the risks of dual-use research by developing
adequate countermeasures should anyone abuse this research.
It is clear, however, that many of these measures are far from implementation. As a first step,
Esponaó integrates many of Selgelid’s suggestions into a curriculum that strengthens scientists’
ability to grapple with the dual use implications of their research. The curriculum provides an
overview of the dual-use threat, describes the details of the legal regime that regulates biological
weapons, and assembles practical guidelines to manage research and consult with advisory boards.
Still in its infancy, these educational programmes offer a template for researchers to construct and
implement curricula of their own.
Educational programmes in the face of the misuse of biomedical knowledge are also at the
heart of Jessica Wolfendale’s chapter ‘Psychologists, Torture and SERE’ as she takes on those
psychologists working on Survival, Evasion, Resistance, and Escape (SERE) programmes designed
to provide the survival tools to US service personnel captured by enemy forces. SERE personnel
are professional psychologists and while they neither interrogate nor torture anyone, they utilize
their medical expertise to anticipate possible torture techniques and then to develop psychological
countermeasures for service personnel should they face brutal enemy interrogation. Unfortunately,
many of these torture techniques found a dual use as they surfaced in the hands of American
interrogators, who then called on SERE personnel to help defeat the defences that interogees might
employ to hide important information. The SERE saga raises several salient questions: should
psychologists and other medical workers involve themselves in any military research? This same
question plagues medical scientists who contribute their expertise to the development of non-lethal
weapons or enhancement technology. Should SERE psychologists have anticipated the harmful,
unintended consequences of their research? Again, this same question bedevils biologists and
geneticists replicating dangerous pathogens and whose data that may fall into malevolent hands.
In these cases, there is room to consider a variety of measures. At one end, researchers must police
themselves by looking beyond their research into possible implications that may cause great harm.
At the other end stand philosophers, ethicists and lawyers who will use public platforms to call
attention to possible abuses of medical science. There was great controversy about psychologists,
psychiatrists and physicians who participated directly in detainee interrogation but little regarding
those who worked for the benefit of American service personnel and whose research later found a
dual use. Most SERE researchers were doing good things and it is precisely here that keen ethical
insight and education can be most useful.
In the final part, the contributors look beyond battlefield ethics, enhancement and dual-use
biotechnologies to issues less acute, perhaps, but no less ethically taxing: patient rights, military
medical research and military medical ethics education.
Patient Rights, Research Ethics and Military Medical Ethics Education
Patient Rights
Part III opens with a discussion of patient rights, the cornerstone of medical ethics. Efforts to
understand and protect patient rights have made tremendous strides in recent years. Patients can
now rest assured that their rights to informed consent, confidentiality and privacy are next to
sacrosanct, protected by professional ethics and law alike. In military service, however, these rights
Introduction 11
break down and patient-soldiers find that non-medical military interests may curtail their rights.
Investigating patient rights in the British military, Mike Gibson and Angus Ferguson highlight a
central dilemma of military medical ethics that, again, draws our attention to the conflict between
a physician’s medical and military obligations. Gibson opens ‘Rights of British Military Patients
during Peace and War’ with a broad overview of civilian patient rights in the UK that leaves
the reader to wonder which of these rights service personnel actually enjoy. Keenly aware of the
potential conflict between the broad range of rights patients should enjoy on the one hand and
military necessity on the other, Gibson is not quick to abridge these same rights for soldiers. Rather,
his default position demands that soldiers and civilians enjoy the same rights: only exceptional
conditions warrant restricting a soldier’s rights to medical care, informed consent or confidentiality.
In general, these rights should remain protected throughout a person’s military service, be it during
training, deployment, discharge or retirement. Yet at each stage, patient rights come under pressure.
Military training may demand breaches of confidentiality or mandatory immunizations. Once
deployed and in action, soldiers may find that they have no right to refuse treatment that keeps
them fit for duty or, if desired, to seek a second opinion. Upon retirement from service, veterans
may not enjoy access to the care they need to treat injuries or disease incurred during their service.
For Gibson, the challenge is to hold the line and avoid unnecessary and unjustified exceptions to
patient rights while accounting for security needs.
Ferguson faces a similar task as he closely investigates a soldier’s right to confidentiality.
In ‘Medical Confidentiality in the Military’ he draws on the case of a British Army medical
officer accused of breach of confidence after disclosing confidential medical details to a patient’s
commanding officer without his consent. Ferguson then tracks the progress of the subsequent
investigation and court case that revealed serious uncertainties and ambiguities in the regulations
that were designed to assist military decision-makers in determining when and in what circumstances
confidentiality could be justifiably breached. Ferguson locates the origin of such uncertainty in an
over-emphasis, in military medical contexts, on the primacy of human rights. He grants that military
needs and imperatives can make an absolutist view of such rights untenable. Confidentiality can,
and must, be overridden when the occasion demands but it is unfair and impractical to expect
that regulations can provide clear answers in all cases. As in civilian contexts, doctors must take
responsibility for their decisions to justifiably breach confidentiality in the absence of a patient’s
consent. Underlying these decisions is a soldier’s trust that his physician will protect his patient’s
interest and promote the collective welfare and safety of the military unit. Such trust, in turn, will
encourage individuals to seek treatment for injury and illness promptly knowing that their secrets
are in safe hands and assured that they will not be disclosed without their consent unless there is
an overriding military need to do so.
Research Ethics in Military Medicine
Although military medical research is often associated with nefarious uses of psychedelic drugs,
most research is far more prosaic, ranging from vaccine development to the optimum design for
boots and uniforms. That said, military medical research still poses hard ethical problems. First,
military medical research puts medicine in the service of war, where many would argue it does not
belong. Second, not all research is therapeutic: non-lethal weapons research does not benefit any
sick or injured person or prevent disease. Finally, research subjects are often service personnel, a
particularly vulnerable population that cannot always give fully informed consent. Confronting
these and other issues, Ulf Schmidt and Eric N. Erickson offer two very different accounts: one
historical and one contemporary. Each highlights the pitfalls of unregulated military medical
research.
Ulf Schmidt opens this part with ‘Accidents and Experiments: Nazi Chemical Warfare Research
and Medical Ethics during the Second World War’. The subject is broader than the title suggests
because Schmidt, a historian of medicine, utilizes Nazi experiments as a springboard to scrutinize
contemporary research ethics. In this chapter, he bypasses the well-known brutal experiments of the
Nazi doctors to focus on the military medical research surrounding nerve gas. While no belligerent
employed poison gas in the Second World War, every side was busy developing chemical and
biological weapons. Unlike explosive kinetic weapons, chemical and biological weapons require
the expertise of medical scientists and live test subjects. Such research, particularly that involving
deadly chemical compounds, is exceptionally accident-prone and mishaps are often fatal. Nazi
research was no exception and Schmidt turns to these episodes to highlight accident prevention, a
neglected aspect of research ethics. Working from the inadequacies of Nazi research, Schmidt notes
a number of problems that continue to plague contemporary military medical research: exploitation
of vulnerable populations, lack of onsite safety measures, secrecy and lack of transparency. That
the Nazis neglected to attend to these deficiencies probably comes as no surprise. Yet Schmidt
makes it clear that Nazi negligence was not simply a matter of their misguided ideology, but one
rooted in the difficulty of providing requisite research safety standards in time of war and national
emergency when time is of the essence and the need for secrecy uncontested. If the Nazi experience
is any example, it should warn us about pitfalls of unregulated military medical research during
armed conflict.
Contemporaneously, in ‘Institutional Review Board Specialization for Non-Lethal Weapons
Research’ Eric Erickson Jr picks up many of these themes as he examines the very research
dilemmas that Schmidt illuminates in his chapter. Non-lethal weapons are a growing component
of military arsenals worldwide. Designed to incapacitate their targets, non-lethal weapons disable
combatants by chemical, electromagnetic, optical and acoustical means. Developing these weapons
entails medical knowledge and testing them requires volunteer subjects. Just as Schmidt notes,
protecting test subjects in non-therapeutic military research requires layers of protection. These
begin with the IRB, the institutional review board that approves and monitors medical research.
Long a staple of biomedical research, IRBs, argues Erickson, are appropriate for the kind of
military medical research that non-lethal weapons exemplify. However, care must be taken to
assure that IRB members command the wide range of expertise necessary to oversee weapons
development. At the same time, IRBs must guarantee that research procedures remain transparent,
ensure reasonable risk and safeguard research subjects’ basic medical rights of informed consent,
confidentiality and follow-up care. These are many of the same principles that inform military
medical ethics education.
Military Medical Ethics in the 21st Century concludes with military medical ethics education. For
as little critical study there is of military medical ethics, there is even less of military medical ethics
education. As they train, military physicians are generally physicians first and soldiers second. As
such, they are very different from medics who begin their career as soldiers and then specialize in
battlefield first aid and evacuation. In most cases, military physicians begin their career only after
long years of civilian training. Once in uniform, they will receive a few short months of military
training that leaves little room for formal military medical ethics education. Two programmes can
rectify this lacuna. First, military physicians may enrol in special courses or workshops dedicated
Introduction 13
to military medical ethics. One of the most prominent is the International Committee for Military
Medicine (ICMM). In their chapter ‘Hovering between Roles: Military Medical Ethics’ Daniel
Messelken and Hans-Ulrich Baer provide a detailed account of the military medical ethics courses
and workshops that they offer to medical officers from armies around the world. Alternatively,
medical students may pursue their medical studies in a military medical university. There is only
one such university in the United States: Uniformed Services University of the Health Sciences
(USUHS). USUHS’s director of medical ethics education, Edmund Howe, offers a personal account
of the challenges he has faced since developing the ethics programme at USUHS over 30 years
ago in the final chapter: ‘Medical Education: Teaching Military Medical Ethics at the Uniformed
Services University of the Health Sciences’. Each of these reports complements the other.
The ICMM programme, under the direction of Messelken and Baer, offers a comprehensive
curriculum for military medical ethics that focuses on medical ethics and military ethics in tandem.
Basic medical ethics is patient rights centred while military ethics emphasizes raisons d’état
and military imperatives during war. Professional codes of ethics and patient rights govern the
implementation of medical ethics, while international humanitarian law (IHL), the law of armed
conflict (LOAC) and the JWT regulate military ethics. Each of these legal and normative regimes is
separate from the other so that the challenge is always to reconcile the two. To help do so, Baer and
Messelken offer a formal curriculum that teaches students the legal and philosophical principles
governing the patient-soldier role and the dual loyalty conflict that it engenders, guidelines for
treating the wounded and regulations protecting detainees during interrogation. Howe’s programme
at USUHS covers similar ground but instructs medical students, not practising military physicians.
As such, Howe’s account demonstrates how he prods his students’ moral intuitions and presses
them closely on their moral decisions and judgements. He disavows any attempt to articulate the
‘right answer’. Rather, his goal is to get his students to articulate and defend their answer with
sound moral arguments. In doing so, he gets up close and personal to describe his classroom
confrontations with students, their reactions to the various practitioners that he brings into the
classroom, and his test instruments and grading techniques.
There are, of course, many other questions for researchers to address. As the Western forces
wind down their wars in Iraq and Afghanistan, for example, long-term care for veterans will assume
a prominent place on the public agenda. As the military takes increasing interest in neuroscience,
nanoscience and other cutting edge technologies, a vast array of bioethical and moral concerns
will emerge. With this volume, the editors hope to spur research in these and other fields and offer
readers a wealth of valuable educational, philosophical and legal resources as they wrestle with
military medical ethics in the twenty-first century.
PART I
Battlefield Ethics
Chapter 1
Military Medical Ethics: Experience from
Operation Iraqi Freedom1
Jacob Collen, Patrick O’Malley, Michael Roy and Laura Sessums
Introduction
Military physicians face numerous pressures during deployment in peace-keeping and wartime
operations. In the current counterinsurgency operations in Afghanistan (and formerly in Iraq), military
physicians provide care for US military personnel and government contractors, a myriad of local
nationals (civilian non-combatants, local national military and law enforcement personnel) working
in parallel with US forces, detainees and insurgents. In addition to providing clinical expertise,
physicians may interface with the local population in medical operations to improve military relations
and establish goodwill in the community.
Currently, most US military physicians experience their first deployment soon after completion of
postgraduate training. While those trained in surgical specialties typically deploy to upper echelons
of care (such as combat support hospitals) to provide emergent surgical support, most physicians,
whether primary care or subspecialists, are deployed as battalion or brigade surgeons, and work in
forward deployed medical facilities.
In the forward deployed environment, challenges include providing effective triage and care for
battle injury, as well as managing non-battle illness and injuries. Decisions about who to evacuate
to upper echelons of care can dramatically impact mission readiness (that is, loss of manpower),
and safety of soldiers (when movement is over hostile territory). Triage and treatment must factor
in the operations tempo, adequacy of supplies, capability of transport, safety of personnel, bioethics,
and military and international laws for medical engagement. An additional challenge for forward
deployed physicians is their utilization for medical operations in the local community, which may
be for humanitarian intent, as well as to generate goodwill and promote cooperation for intelligence
gathering (Rice and Jones 2010).
In this complex environment, ethical challenges abound. Many challenges are rooted in the
conflict of dual agency (Howe 2003). Military healthcare providers serve dual roles as military
officers and medical professionals, which may come into conflict. Dual agency can be defined as a
clinical role conflict between the professional duties to a patient and duties to a third party (military,
state, employer, insurer) (Singh 2003). These conflicts are much more difficult to resolve when the
two loyalties are in equal balance or in very rapidly evolving circumstances (Sessums et al. 2009).
Often, deployed physicians are trained inadequately to manage the demands of their competing roles.
While all medical schools offer some training in medical ethics, physicians in training often
focus on enhancing their medical knowledge, and medical ethics may ‘take a back seat’. Civilian
medical school curriculums generally lack militarily relevant medical ethics, so most military
1 Disclaimer: The material presented here represents the views of the authors only and is not
to be construed as that of the Department of the Army or Department of Defense.
physicians deploy with a weak foundation in pertinent medical ethics. Training and education
in medical ethics immediately prior to deployment is rare, as most physicians transition from their
primary assignment in a clinic or hospital to the forward deployed environment with little notice, and,
at most, a brief training course in combat casualty care. There is not a standard military course prior to
deployment for medical ethics and rules of engagement for the care of local nationals. As such,
physicians risk ethical compromise when dilemmas arise.
This chapter reviews several scenarios, including some encountered by deployed medical
personnel during Operation Iraqi Freedom (2004–2005), which serve to highlight relevant
literature and ethical principles. While an in-depth analysis of the ethical principles discussed
here is beyond the scope of this chapter, it is our hope that these scenarios will provoke further
discussion and analysis.
Civil Affairs
Case 1: Civil Affairs Missions during Deployment
Your command wants you, the battalion surgeon, to prepare a grant to procure medical supplies
for local clinics in the area. The goal is to obtain $100,000 worth of medications and supplies,
to be turned over to local authorities. In the past, cash-only grants obtained for medical supplies
have been used by enemy combatants against your military. You are concerned that supplies may
be easily sold and the proceeds again used against the military. You voice your concerns to the
command but they fall on ‘deaf ears’.
Militaries can have civil affairs units that reach out to local populations and engage in missions
that minimize the impact of military operations on civilians. Such units may include experts
from many different fields, such as lawyers and engineers. Physician involvement in civil affairs
during military operations is common, yet most physicians have no training in civil affairs,
knowledge of the needs of the local medical community, or contacts with local physicians. The
medical needs of the civilian population in a war-torn region can be substantial and are often
unmet by local resources. Military leaders may see medical care and health programmes as a
simple way to befriend the local population and improve public opinion of the military operation
(‘winning hearts and minds’) (Rush et al. 2005). You are worried that the proposed civil affairs
mission will not accomplish its stated goal of providing medical supplies, could reduce your
ability to otherwise provide medical care to the local population, and may result in funding for
local insurgents.
Civil affairs medical missions are, at their core, public health, focused on improving the health
of populations rather than individuals. Governments usually include public health activities in
civil affairs missions. ‘Public health has affirmative obligations to improve the public’s health
and, arguably, to reduce certain social inequities’(Kass 2001: 1776–82). In the above situation,
however, it does not appear that the mission will likely accomplish either of these goals. To
analyse explicitly the ethical issues in public health programmes, Kass has proposed an ethical
framework of six questions (Kass 2001):
Military Medical Ethics: Experience from Operation Iraqi Freedom 19
1. What are the public health goals of the proposed programme?

2. How effective is the programme in achieving its stated goals?
3. What are the known or potential burdens of the programme?
4. Can burdens be minimized? Are there alternative approaches?
5. Is the programme implemented fairly?
6. How can the benefits and burdens of a programme be fairly balanced?
Policy considerations (such as the ‘hearts and minds’ argument) may diverge from conclusions
reached using the above ethical framework. However, physicians and other health professionals
must act in ways that allow them to retain their professional integrity and the public trust. The
World Medical Association Regulations in Times of Armed Conflict affirms that ‘medical ethics
in times of armed conflict is identical to medical ethics in times of peace’ (http://www.wma.net/
en/30publications/10policies/a20/) (World Medical Association). Accordingly, the physician’s duty
in this scenario is to review the available facts to determine if the scheme the command has outlined
has a reasonable likelihood of improving public health without unduly burdening particular persons
or groups of persons. If the answer is no, the physician should articulate this to the commander
in order to help optimize the medical piece of the mission. If there are no acceptable alternative
schemes to accomplish the goal, and the current task involves the physician acting beyond their
professional expertise and abilities, then the physician should explain to the commander that they
cannot participate in good faith under their professional obligations.
Even if the proposed civilian affairs mission appears consistent with bioethical principles, given
most physician’s lack of expertise in this area, seeking the assistance of a military civilian affairs
unit (if available) or partnering with a non-governmental organization (NGO) (if acceptable to your
command) that has local contacts and expertise can be a preferable way for the military to achieve its
policy objectives. These groups work directly with local populations regularly and have knowledge
of local customs and activities which better positions them to avoid the pitfalls of those uninitiated in
civil affairs activities. This solution avoids enmeshing health care professionals in a project that may
be unlikely to achieve its stated goal (Brookes 2011) and conflicts with their obligations to individual
patients.
In the scenario outlined above, the brigade procured $50,000 in pharmaceuticals and delivered
them to a local national clinic as a display of goodwill. The next day a foot patrol from the unit
discovered that all the medications had vanished overnight from the clinic, and intelligence suggested
they had been sold to provide funds for the insurgency. Similar scenarios occurred throughout the
combat theatre, and this type of mission was discontinued as it became clear that such efforts were
inadvertently aiding the insurgency. Direct involvement of an NGO running and staffing a local
clinic or medical operation might prevent such a scenario from occurring, and avoid compromise to
military personnel.
Medical operations during war can serve several purposes, including demonstrating goodwill
and humanitarian intent, influencing the local population and gathering intelligence (Rice and Jones
2010). Unfortunately, deployed physicians have variable skill sets, typically limited to their medical
specialty, that are not applicable to effective implementation of larger scale medical missions, or the
use of medical care as a commodity (Rice and Jones 2010) to influence the local population. As a
military physician, it is likely that you will be asked to participate in such missions. As the onsite
medical expert, it is your responsibility to provide feedback to the commander on potential pitfalls
of such missions, ways to improve them and the limits of your professional capabilities. In order to
maintain physician integrity, it is important that you confine your activities to providing medical care
only. Under the GCs, medical personnel are entitled to respect and protection in all circumstances but
only if exclusively engaged ‘in the search for, or the collection, transport or treatment of the wounded
or sick, or in the prevention of disease’ (International Committee of the Red Cross 1976). Gathering
intelligence and similar military activities are clearly outside the scope of medical expertise and
patient care and physicians must avoid any involvement in them.
Care for Local National Civilians
Case 2: Injured Civilians and Mission Safety
You are a passenger in a convoy that drives past the aftermath of a roadside bomb. Several local
nationals are clearly wounded, and in need of emergent care. The driver in the lead vehicle refuses to
stop to allow you to provide aid.
At first glance, it may seem like this is an easy decision to make. There are seriously injured civilians
who need first aid at the scene, and transport to more definitive care. You have the personnel and
resources to provide this. If this scenario occurred in the United States, or in an allied country where
there is not a significant concern that one would be jeopardizing one’s own welfare by stopping to
provide assistance, it would be an easy decision to do so. Even in a deployed setting where one might
be on a humanitarian or peace-keeping mission, there are clear advantages to stopping and providing
assistance. As medical providers, we are accustomed to serving those in need, and would rarely think
twice about providing aid. To a bystander, the failure of the military convoy to stop and care for
the wounded would appear callous and inhuman. This may be the first contact with Americans that
some at the scene have and, if they see the convoy just drive by, it is unlikely that they will ever feel
positively toward Americans again. Instead of ‘winning the hearts and minds’, failure to stop would
create new animosity, and perhaps win converts to our opponents.
What argument, then, can be made for driving past those in need instead of stopping to provide
assistance as our societal norms and medical ethics would seem to dictate? The answer is that it could
pose a significant security risk to the unit. Remaining stationary out in the open for a period of time
while providing first aid could place the safety of the entire convoy in jeopardy, and could further
hinder the accomplishment of the mission that was the purpose of the convoy. In fact, an enemy force
might deliberately cause mass casualties in a civilian population on a convoy route in order to induce
the convoy to stop. The enemy forces could then easily ambush the stopped convoy, causing greater
damage and loss of life. The greater the confidence the enemy might have that the convoy would
actually stop to provide assistance, the more resources they might choose to devote to the destruction
of the convoy, making an argument for at least being cautious – if not unpredictable – in deciding
whether to provide aid in such a situation.
The Geneva Conventions provide protection for medical units and their methods of transport, as
well as the wounded and those caring for them. Though the GCs explicitly address medical units,
both fixed and mobile, their protections would less clearly apply to a military convoy stopping to
provide medical aid. Further, those in the convoy may reasonably have little confidence that the
enemy would follow the Conventions.
If, as convoy leader, you choose to stop to provide medical assistance, you might consider using
the GCs as a justification, in addition to the moral and ethical arguments in favour of stopping. The
GCs state that, ‘Whenever circumstances permit, and particularly after an engagement, each party
in the conflict must, without delay, take all possible measures to search for, collect and evacuate
the wounded, sick and shipwrecked without adverse distinction’ (http://www.icrc.org/customary-
ihl/eng/docs/v1_rul_rule109) (Henckaerts et al. 2005). Rather than an absolute obligation in all

circumstances, this obligation applies only when ‘circumstances permit’. Accordingly, providing
assistance is means dependent, based on appropriate judgement in the light of given circumstances
and available resources.
The immediacy of the medical needs of the wounded and the capabilities of you and your medical
personnel affect the decision to stop and provide aid. Ultimately, it comes down to a judgement call,
with significant weight on mission safety. One must assess, in a split second, what are the perceived
risks and benefits of stopping – as opposed to passing by – the wounded civilians? How safe is the
area thought to be, and how secure a perimeter can be established quickly to try to maintain safety
while providing first aid? How easy would it be for the hostile forces to have established an ambush
and how susceptible would the unit be?
A physician’s obligation to provide medical care despite personal risk is well known in the setting
of communicable disease or natural disasters. ‘This ethical obligation holds in the face of greater
than usual threats to their own safety, lives, or health. However, the physician workforce is not an
unlimited resource and physicians should balance immediate benefits to individual patients with the
ability to care for patients in the future’ (Bostick et al. 2008: 3–8). Ethical codes note the need for
physicians in the civilian world confronted with violent patients or those with communicable diseases
to make every attempt to meet both their obligation to care for the patient but also to protect their own
safety (World Medical Association). The military physician has arguably accepted a higher risk to
personal safety based on the inherent nature of armed conflict. Asymmetric warfare has increased the
risk to physician safety even further. How this altered playing field impacts ethical decision-making
for physicians is still unclear, but may mean it is more difficult to provide care to the wounded
without significantly compromising personal safety.
After considering the risks of providing care, it is important to determine if the means to
provide care are available. How many wounded local nationals appear to be present? Based on
initial assessment, likely made while the convoy is still in motion, how dire is the need for medical
assistance, and how likely is survival without assistance? Thus, the initial ethical principle to apply is
utilitarianism, weighing the number of casualties expected to benefit from halting the convoy against
the number harmed if the convoy were ambushed in doing so. Simple application of this principle
alone may lead to the conclusion that one should not stop the convoy. However, the balance could
easily shift in favour of stopping to provide aid if one believes that the likelihood of an ambush is low
and the expected benefits of medical care to injured local nationals is high.
One additional issue to consider in this situation is that the convoy will almost certainly be led by
a non-physician who might take a utilitarian approach to conclude that stopping is not worthwhile.
However, what if you, as the physician riding in an ambulance with the convoy, believe that you have
an ethical duty to stop to care for the wounded, yet the commander has ordered everyone to keep
driving? You do not have a duty to obey an unlawful order, but it is hard to argue that the order is truly
unlawful, and to halt without the protection of the rest of the convoy seems foolish and hazardous.
Unless one can rapidly make a persuasive argument to the commander, it appears more judicious to
follow the commander’s lead, forgoing the opportunity to provide medical assistance. Ultimately,
placing a priority on safety in wartime is critical – both for soldiers and medical personnel – and the
commander’s risk assessment should dictate the course of action.
In the above case, the deployed physician asked the convoy commander for permission to stop to
assess the accident scene and render care. The convoy was travelling down a road that was commonly
targeted with improvised explosive devices and a source of frequent casualties. The convoy
commander deemed the scene unsafe and so continued on without providing care. Fortunately, local
national ambulances arrived just as the convoy passed.
Case 3: Collateral Damage – Caring for Wounded Civilians
During a late-night mortar attack on your compound, several rounds hit nearby local homes, and,
soon afterwards, civilian casualties, some seriously wounded, begin to arrive at your front gate. The
nearest local national hospital is an hour away. Your commander, expressing concern for troop safety,
refuses to let the wounded on post for evaluation and treatment.
Decisions about using resources for the local population can be complex. Identification of insurgents or
enemy combatants who may be among the injured local citizens can be difficult, making it potentially
unsafe to go to their aid or to admit them to a military compound for care. In this scenario, the casualties
were ‘collateral damage’ caused by opposing forces and not by your soldiers. Battlefield conditions,
however, often preclude precise determinations of the source of civilian injuries, especially in urban
settings. Does it matter who caused the injuries? If you have the resources to stabilize these casualties
and allow for their transfer to the national hospital, do you have an obligation to do so? Is it relevant
that your provision of care can provide a boost to the public image of your military force? If you
assume the care of these patients, how much of your resources (such as blood products, antibiotics
and ventilators) are you obligated to use and, assuming transport is not an option, how long are you
obligated to care for them? Military medical resources are limited, especially under austere battlefield
conditions, but should that be considered in the decision of whether to treat these civilians?
Commonly, local citizens injured by military operations of an occupying force are treated if
resources exist to do so safely. The Geneva Conventions (GCs) are very clear about care of the wounded
and countries that are signatories to the GC must abide by its provisions (International Committee of
the Red Cross 1976). Article 4 of the GCs (http://www.icrc.org/ihl.nsf/FULL/380?OpenDocument)
requires, in cases of armed conflict, that ‘[t]he wounded and sick shall be collected and cared for’
(Article 3(2)). ‘The wounded and the sick … shall be the object of particular protection and respect’
(Article 16). ‘For the purposes of this Protocol: a) ‘Wounded’ and ‘sick’ mean persons, whether
military or civilian, who, because of trauma, disease or other physical or mental disorder or disability,
are in need of medical assistance or care and who refrain from any act of hostility’ (International
Committee of the Red Cross 1977). As further explanation of the treatment required, the GCs state:
‘1. All the wounded, sick and shipwrecked, to whichever Party they belong, shall be respected and
protected. 2. In all circumstances they shall be treated humanely and shall receive, to the fullest
extent practicable and with the least possible delay, the medical care and attention required by their
condition. There shall be no distinction among them founded on any grounds other than medical
ones (emphasis added)’ (Article 10). In contrast to the higher level of care required for the sick or
wounded enemy (see first GC, Chapter 2, Article 12), the requirement to care for civilians are means
dependent, and not absolute. Care should be provided based on balancing safety, the immediacy of
need, feasibility of care and availability of resources to sustain adequate care for a particular injury.
In this scenario, assuming you have minimal medical resources or transport capabilities and you
feel safe treating them, the commander has wrongly ordered that the injured civilians not be admitted
to the compound. Under the GCs, you are obligated to ‘collect and care for’ these civilians. The
details of what that entails depend upon your medical resources, and can involve anything from
stabilization and transport to intensive care for the duration required to treat the injury. Importantly,
the decision about treatment is based solely on the injured person’s medical need and the availability
of your resources for treatment, not on the benefit to your side of the conflict or any specific quality of
the injured civilian. Given the significant trauma and morbidity of delay, you are obligated to appeal
directly to your commander and explain the provisions of the GCs as they apply in this circumstance.
As with all urgent ethical dilemmas, that conversation will more likely result in a positive outcome
if you have already built a relationship of mutual respect with the commander as well as taken the
time to discuss with him the ways in which your role and obligations as a medical professional differ
from those of a soldier.
Case 4: Medical Emergencies in Local Nationals during Deployment
Late one night, a local national presents to the aid station with her 3-year-old daughter, who is
acutely ill. According to the mother, the child has been sick for the past 24 hours with nausea,
fever, chills and diarrhea, and is now difficult to arouse. Physical exam shows a toxic appearing
child, minimally responsive to painful stimuli. Her skin is dry and tented, and vital signs are
notable for a temperature of 38.9 degrees Celsius and tachycardia. You suspect infection, possibly
meningo-encephalitis. You ask your commander to bring the patient on base to facilitate transfer
to upper echelon for step-up care. You are told this is not possible, and the mother needs to drive
the child to a civilian medical facility for care because your commander doesn’t want the local
population to rely on US military assets for non-combat related medical concerns.
Key issues in this scenario are the acuity of the presentation, ability to care for a paediatric
emergency in theatre, limits of care for local nationals, and safety. While US military medical
policies typically limit care for local nationals, a critically ill infant with possible meningitis
should be considered an emergency given the potential for permanent neurologic injury or death.
However, many deployed providers lack the expertise and supplies to care for infants and children.
Because of the acuity of this child’s illness, and the importance of timely and definitive care, it is
critical to ensure that engaging in this case will not worsen the outcome (that is, ‘first do no harm’)
(Hippocrates, 500 bc).
In this case, the child could potentially be evacuated by air or ground transportation to a
higher level of care, if this would provide the fastest medical care to the patient. Prior to transport,
you must ensure that the receiving facility has appropriate medical capability (intensive care
unit environment for close monitoring, pharmacy support for appropriate paediatric dosing, and
expertise in caring for children). If these capabilities do not exist at the upper echelon of care, you
are endangering the patient by delaying definitive care. In addition, if the providers at the battalion
aid station (or initial receiving facility) lack expertise in caring for children and infants, the child is
potentially being endangered by transport.
Safety should always be a concern for medical providers during wartime, especially during an
insurgency conflict. Allowing a foreign national entrance onto base holds the potential threat of a
suicide bombing or other attack, especially in the rush to help a sick child. It also sets a precedent
that local nationals will be allowed on base for medical emergencies, which could be manipulated
by insurgents to coordinate an attack. Utilizing a flight crew or ground ambulance crew carries
significant risks to those involved, especially at night. A careful assessment of the risks is another
factor that might delay this patient’s medical care; however it is necessary to avoid a potential
catastrophic attack and this assessment is best deferred to the unit chain of command (combatants).
In this particular case, the physician working at the battalion aid station was a general medical
officer (had completed an internship but not residency), and lacked the expertise and medications/
supplies to care for an infant. Despite these limitations, the physician considered evaluating the
child and arranging transport to the upper echelon of care. However, the battalion commander
would not allow the patient and mother on base, both out of a concern for limiting local national
reliance on the US medical system, and because of the previously mentioned safety concerns. The
patient and mother were directed to an Iraqi hospital located 20 minutes away. While this may
initially appear to be ethically questionable, it is important to note the US base had only limited
medical personnel and resources for treating battle injuries, and was not equipped or trained to
care for paediatric infectious diseases. In addition, Iraq had an intact health care system capable
of providing paediatric care, and likely was more capable of providing appropriate care for an ill
infant than the aid station at a small infantry outpost.
Care for Host-Nation Wounded Combatants
Case 5: Equality of Care for Battle Injuries in ‘Friendly’ Local National Combatants
A local national who is fighting alongside your military forces is wounded, suffering a compound
fracture of the femur. You medically evacuate him to a higher echelon of care, where he undergoes
surgery and has an external fixation device placed. He is then discharged back to the local
community hospital, where local physicians/enemy combatants steal his medical hardware, and
he presents back to your aid station for assistance, now with a smouldering left leg infection. Your
medical system cannot provide long-term care or rehabilitation for this soldier. The combat support
hospital is willing to provide immediate surgical correction; however he will return back to the
same environment that led to this current infection.
U S military law states that when triaging combatants – American, allied, and enemy – medical
need must be the sole determinant in prioritizing triage and evacuation categories (International
Committee of the Red Cross 1976). However, military physicians are confronted with myriad
diverse influences that can lead to variations in practice. Those at lower echelons of care in particular
might be burdened with making life-and-death decisions. One physician deployed during Desert
Storm stated: ‘Decisions on who to evac without medical support, which would equate with death,
and who should utilize the limited ventilator and ICU support facilities … was never addressed.
With large numbers of casualties, the life or death decision of who would receive support was left
to the individual [provider]’ (Carter 1993). Disturbingly, a survey of 360 physicians who deployed
to Southwest Asia during the 1990–1991 Gulf War reported that more than a third disagreed with
the tenet that medical necessity should be the sole determinant of care in a triage scenario. Many
of the respondents had experienced such a scenario, as 80 per cent acknowledged having cared for
coalition combat casualties, 38 per cent for allied coalition soldiers and most having also treated
non-combatant civilians.
Medical resources are not unlimited for the US military, and the local infrastructure is often even
more limited. Resources that are provided to local medical facilities, ranging from food and water
to medical supplies, may be sabotaged or diverted to unintended recipients. Those deployed on
medical missions also need to carefully consider whether assistance they provide is truly beneficial
in the long run before offering them. In the case provided, it seems likely that the local national had
a high mortality risk in the absence of the initial medical repair, and he was fighting alongside our
military forces, so the initial surgery seems appropriate. In fact, even if he were fighting on behalf
of the enemy, a physician would have an ethical obligation to provide treatment solely according
to need, an approach upheld by the Geneva Conventions and the World Health Association, among
others. However, if entry into the local medical system were available, that may well have been a
better alternative, and might have led to a better long-term outcome. Disparities between the level
of care or resources available through deployed forces and the host-nation create some of the most
vexing challenges to medical decision-making (Henning 2009). In the scenario provided, when the
local national returns the best course of action is to provide initial treatment for his infection and
simply do the best you can in coordination with the local healthcare system to try to ensure some
continuity of care and rehabilitation. This is unlikely to happen unless you have already established
these relationships, most realistically with the help of non-governmental organizations, rather than
trying to do so when a case such as this presents itself. Even then it can be extraordinarily difficult
to engineer in a developing nation torn by war.
In this case we evacuated the patient to the combat support hospital (CSH), and asked the on-
duty surgeon to provide more prolonged care if possible. Unfortunately, combat support hospitals
(at that time and presently), are designed only to provide damage control surgery prior to evacuating
US casualties to higher echelons of care (Landstuhl Regional Medical Center in Germany, and then
back to military hospitals in the United States). Rehabilitative care (such as Physical Medicine and
Rehabilitation) does not exist in theatre. The patient was operated on at the CSH and was returned
to our facility for follow-up care. Since he did not feel safe receiving care at the Iraqi hospital, we
saw him for postoperative visits and wound checks and sent him for repeat visits to the CSH when
needed. His wounds ultimately healed satisfactorily.
Care for Coalition Employees
Case 6: Public Health in the Deployed Environment
A female local national language interpreter presents to your aid station for symptoms compatible
with venereal disease (dysuria, vaginal discharge, pelvic pain), and continues to engage in unsafe
sexual practices with soldiers on your compound (multiple visits for healthcare). You have limited
resources for evaluating and treating sexually transmitted diseases (STDs). You are not comfortable
providing broad empiric therapy every time she presents with complaints that are compatible with
STD’s, especially given the lack of diagnostic ability at your austere location. Your commander
wants to expel her from the camp, despite knowing that her safety in the local community may
be compromised (retaliation for working for the occupying force). The commander wants your
recommendation.
In the above scenario several issues are in play: eligibility for care, ability to effectively diagnose
and treat her condition, acuity of her illness and public health concerns due to communicable
disease. It is useful to clarify with the commander at the outset of deployment what populations
will be eligible to receive non-emergent medical care, and to define the limits of medical care for
non-US soldiers/contractors. When a new situation arises, talking to the unit chain of command
(and medical command structure) can clarify responsibilities and provide guidance in challenging
circumstances.
The first issue to address is clarifying this patient’s eligibility for care. Is she a local national
who could and should seek medical care in her own community? Or, as an employee of the US
government, is she eligible for care in the US medical system? The answer will vary depending
on the deployment and the command structure. During recent deployments to Iraq, aside from
providing care for battle related injuries, guidance was limited regarding the boundaries of care for
local nationals (Hodges 2010). Local nationals employed on a forward operating base were eligible
to present to the battalion aid station for routine complaints; however, if their condition required
a higher level of care than could be provided (chronic conditions requiring regular care such as
hypertension, diabetes, or malignancy), they were diverted to Iraqi hospitals.
Second, the forward aid station that she routinely presented to did not have laboratory capability,
beyond a urine dipstick pregnancy test, and did not have speculum for conducting a genitourinary
exam. As such, caring for her probable sexually transmitted disease was limited to empiric therapy
(for presumptive gonorrhoea and chlamydia), and failed to account for the remaining differential
diagnoses that could cause her symptoms.
Third, in contrast to medical triage decisions for emergent conditions, this patient’s condition had
a relatively low level of acuity, and it was feasible for her to get medical care in the Iraqi health care
system. While this solution seems appropriate, there were concerns from the patient (reinforced by
intelligence information about the local community), that her safety would be compromised if she
sought medical care in her community (unmarried Iraqi female seeking care for a sexually transmitted
disease after working on a US military compound).
Finally, she was requiring medical attention repeatedly for what was likely a communicable
disease, and continued to engage in behaviour that could spread the condition to the soldiers on your
compound (whose health you are responsible for).
All of the above issues make it difficult for the deployed healthcare provider to manage this
patient, but two are particularly troublesome. The first is the potential harm the patient faces in her
home community if diverted for care. The second is whether this patient poses a public health threat
to the soldiers on your compound, and whether this should impact your decision.
Concern about this patient’s well-being if she is transferred to local care providers may make it
difficult to deny care. During the current deployments in Iraq and Afghanistan, civilians who have
worked for or sympathized with the US government have been harmed and even killed by enemy
forces. In some cases, local nationals working for US forces (vendors, interpreters and Iraqi Army
and Police personnel) have been kidnapped and/or killed inside Iraqi hospitals. While these anecdotes
are based on second-hand report, and not formally documented, they are nonetheless concerning. If
the US government forces this employee to leave, she is at risk for retaliation by enemy forces in the
local community. From a public health standpoint, expelling her from the base could prevent further
STD transmission to US soldiers, especially since she does not appear to be modifying her behaviour.
As a physician in the US Army Medical Corps, part of your responsibility is to ‘conserve the fighting
force’ (Bellamy 1988; Howe 2003) and if, by spreading an STD she compromises the health of your
soldiers, it may be reasonable to view her as a public health risk, disengage from her care, remove
her from base, and counsel her to seek care in her local community. An alternative strategy would
be to hold US soldiers more accountable for their behaviour, and argue that greater harm comes
from expelling this patient from the base than from soldiers potentially contracting and spreading a
treatable STD.
As a physician, a strategy that potentially provides greatest benefit to the patient, and minimizes
concerns about harm (that is, removing her from base), is to continue to educate the patient about the
risks of her behaviour, and provide appropriate treatment as needed. From a public health standpoint,
treating cases of STDs in clinic can be a stimulus to provide educational briefings to the entire
battalion on the danger of STDs, and some of the challenges that deployment presents with regards
to their care (the limited ability to diagnose and treat). Education can be conducted so as to address
public health concerns, non-punitively, while avoiding potential harm to the patient by removing her
from base. Guidance and rules about the acceptability of sexual relations during war are better left to
the command (Jacoby 2009), both from the standpoint of behaviour among soldiers, and rules for the
local national interpreter’s employment.
If the patient’s behaviour is felt to be creating a public health threat to mission readiness (that is,
soldiers/sexual contacts are unable to fulfil their mission requirements due to illness from STDs),
then reporting the situation to the commander is an option. Soldiers do not have the same rights to
medical confidentiality as civilians do. If a battalion commander wants medical information about
a soldier that is pertinent to military readiness, he may request such information from the physician
(Auster 1985). The commander has the discretion to determine what behaviour on the part of a
soldier warrants such a request, and the physician can determine whether or not they agree with the
commander’s assessment, and decide whether or not to release confidential information. Though
unclear, we doubt this same waiver of confidentiality exists with local nationals employed by US
forces. It is also unclear if the physician should volunteer sensitive information to the commander
that he/she (that physician) believes is important to military readiness. These decisions are at the
discretion of the military physician, dependent on the physician’s relationship with the unit and the
commander, and the situation in question
The inability to effectively diagnose and treat this patient’s condition at your austere location
(battalion aid station lacking laboratory and other diagnostic equipment) and the deployed medical
system’s limitations for providing treatment to local nationals are an appropriate reason to disengage
from this patient’s care and instruct her to seek care in her community.
In this particular case, arrangements were made for this patient to be seen by an obstetrician that
was deployed at a larger base nearby. In arranging transfer, the patient’s supervisor was notified about
her condition, with her permission. However, the patient never went to the appointment and was
not able to provide an explanation for missing the appointment. At this point, given her supervisor’s
knowledge of her ongoing sexual contact with soldiers and other local national contractors,
he counselled the battalion commander about the situation. The commander felt that this patient
presented a public health threat to soldiers under his command by her repeated sexual relations, and
the decision was made to transfer her to a larger US facility, elsewhere in Iraq, to continue to work.
Malingering
Case 7: Suspected Malingering and Detainee Abuse
An enemy combatant is brought to your aid station after capture by intelligence personnel. They want
to question him; however, he is moaning and complaining of eye pain, and acute loss of vision. He is
appears to be malingering, and your colleague performs a ‘punitive’ exam manoeuvre (digital rectal
exam) to call his bluff. The manoeuvre works, and the ‘patient’ can clearly see; however the laughter
from the surrounding medics raises questions of detainee mistreatment.
This scenario presents an example of the use of medical manipulation with motives other than the
provision of direct medical care for an individual. It also raises the issue of detainee mistreatment
and abuse.
Although this scenario is in a deployed setting, the only unique aspect from a medical perspective
is that the patient is a combatant detainee for whom there will be a high propensity for extreme
negative transference. Such negative transference is present in common daily practice whether it
is with a ‘hateful patient’, a difficult patient, a prisoner who has committed heinous crimes, or any
patient with a basis for inducing a negative reaction from the healthcare provider. The same principles
of treatment apply. The use of medical intervention for the purposes of any motive other than direct
medical care for the purposes of relieving pain and suffering or preventing illness is not allowed in
any circumstance. There are many ethical guidelines which support this stance but the most basic
one is the Hippocratic oath which essentially states that medical professionals are bound to act in
the patient’s best interest, to put the patient’s needs before their own, to respect the personhood and
autonomy of the patient, and to avoid unnecessary harm to the patient. The last principle is also
known as the principle of non-maleficence, or as often stated in the Latin: primum non nocere (‘first,
do no harm’) (Hippocrates, 500 bc).
Even a punitive exam of a detainee could be considered abuse. Unfortunately, since medieval
times, the medical profession has been involved in the abuse and torture of prisoners. However,
today the medical profession is outspoken against physical abuse and torture. Consistent with
the Geneva Conventions (International Committee of the Red Cross 2006), the World Medical
Association (World Medical Association 1975), the British Medical Association (British Medical
Association 1992), and the American Medical Association (American Medical Association 2006)
(to name just a few) have made clear explicit statements that not only condemn participation in
torture and abuse, but also confer the responsibility of reporting such abuses if they occur. The
WMA goes as far to say that this applies ‘in all situations, including armed conflict and civil strife’.
Thus, in this case the physician has a professional responsibility to not only stop such abuses
when witnessed, but also to report the medics for appropriate sanctions, as well as help educate all
medical personnel about the guiding principles that forbid abuse and torture. The AMA specifically
states that physicians should also support victims of torture (that is, come to their aid and care for
them), as well as play an active role in changing situations that lead to torture.
In this case, health professionals were unable to discern whether or not the patient was malingering.
There is significant incentive for detainees to seek medical attention, especially for complaints that
require specialized care at a higher echelon. It removes them from interrogation, likely for several
days, and in some cases miscommunication occurs and these patients are released back to the
community from the combat support hospital (rather than to military authorities). The interruption
in intelligence gathering may impair mission progress. Evacuating the patient to a higher echelon of
medical care holds risks to the ambulance or flight crew involved. As such, it is important to perform
a careful initial evaluation and triage appropriately. At the same time, punitive exam manoeuvres
unrelated to the presenting complaint are clearly inappropriate (as they would be in civilian medical
care). In this case, while one physician was evaluating the patient, the other provider involved called
the combat support hospital to discuss with the deployed ophthalmologist how to best assess for
malingering in visual complaints. While a full review of the ophthalmologic evaluation of feigned
vision loss is beyond the scope of this chapter, there are several simple, non-punitive physical exam
tests that taken together can point towards malingering and away from true pathology (Mavrakanas
and Schutz 2009; Chen et al. 2007). In our view, it is not appropriate to use punitive exam techniques,
threat of such techniques, deceit or placebos to discern patients that appear to be malingering. Such
techniques are not valid methods for aiding in a medical diagnosis, and diminish the role of physician
as an objective, honest caregiver and medical provider. It is especially important to err on the side
of safety for the patient (and potentially evacuate to a higher echelon of care) in situations where
language barrier or lack of resources precludes an adequate evaluation.
Conclusion
Ethical challenges during deployment are common and are typically inadequately addressed in
pre-deployment planning. Often, these challenges encompass concerns and conflicts related to the
rules of engagement for medical care of local nationals and detainees, or the influence of command
on medical decision-making, rather than situations where physicians are pressured to engage in
behaviour that potentially harms patients, such as physician supervision of interrogation or torture.
Physician involvement in torture and interrogations has been extensively discussed in the literature
and is beyond the scope of this chapter. When direction is needed on legal and ethical rules for
engagement, numerous resources are available to the deployed US physician. The hierarchy of
legal authority, starting with the Geneva Conventions and descending to Army Field Manuals and
Department of Defense documents of instruction, can often be found online (Table 1.1).
In some of the scenarios listed above, the question arises regarding whether a conflict exists
between the military physician and the commander, and how to resolve it. This invariably leads
to the question of what situations would require a physician to disobey a direct order. All soldiers
and officers are required to obey orders from their superiors; to disobey is unlawful, and subject to
disciplinary action under the Uniformed Code of Military Justice. By the same token, one is also
obligated to disobey an unlawful order, and performing unlawful acts under the rationale of ‘just
obeying orders’ is also punishable by judicial action. The idea of refusing to obey an unlawful
order is straightforward in situations where a commanding officer is ordering subordinates to
commit obvious criminal acts, such as violence against unarmed civilians, or subdued prisoners.
In situations that are more nebulous, such as a physician being ordered to provide preferential
treatment to a particular patient or being ordered to perform medical outreach missions that
the physician believes are unsafe and of low utility, disobeying an order is difficult to justify.
The guidance on legality of orders and the obligation to obey versus to disobey are broad and
generalized. Specific conflicts are resolved on a case-by-case basis based on prior legal precedent
and are not immediately available to guide decision-making in theatre. In short, there are few
circumstances where a physician will face the challenge of needing to disobey a commander’s
order, and careful consideration is required prior to doing so. In most cases a conversation can
prevent a confrontation.
Upon starting a position as a deployed military medical provider, preparedness for the coming
medical challenges you will face is critical. While current rules and regulations for medical care in
theatre are referenced throughout this chapter, they are broad and do not adequately address many of
the situations addressed in this chapter. This makes it imperative to clarify the rules of engagement
in the context of the specific mission at hand. In counterinsurgency warfare, rules of engagement
may change frequently, outpacing revisions of published rules and guidelines. Currently published
laws that were based on conventional warfare, while presenting sound guidelines, may have limited
applicability in the present global war on terrorism.
A common thread in the above scenarios, and one that is closely tied to medical mission
preparedness, is that decisions on whether or not to engage in evaluating and managing injured
and sick local national civilians is means dependent (though this is not a criteria for treating enemy
combatants). As such, ensuring adequate medical supplies and resources to the best of your ability
is critical. While the soldiers under your medical command are tasked with checking these supplies
daily, you as the physician should also be aware of supply limitations, and actively work to ensure
that you have adequate resources to handle impending emergencies. Clarifying supply chains with
the medical and operational chains of command is critical in determining how to gain resources
and equipment quickly in the event of a mass casualty event. In the one large mass casualty event
occurring during the deployment discussed in this chapter, resources were delivered immediately
by medical evacuation helicopters as they arrived to collect casualties. Confidence in your level of
resources and supply chain makes decisions about caring for the wounded easier, and if conflicts
arise with the command on the utility of treating local nationals in specific situations, taking supply
limitations out of the equation will work to your (and the patients’) advantage.
Addressing ethical dilemmas in deployment can be difficult. Table 1.1 lists some widely
recognized resources, and numerous others exist online. However, in real time, and with limitations
on Internet access in deployment, it is important to have a plan in advance for who you can contact
quickly in the operational or medical chain of command to help address concerns as they arise. In
hospital medicine, teams of physicians and hospital staff members with a background or interest in
medical ethics are sometimes utilized for ‘ethics consults,’ to help guide medical decision-making
in situations where there is discord between the medical team and patient or family members. An
analogous system is not currently in place to address ethical conflicts that arise in theatre, either with
teams that are currently deployed to an area where a conflict occurs, or remotely via email. The U.S.
military does utilize electronic consults to provide medical advice to deployed medical providers.
Questions from deployed medical providers are routed to an on-call physician in the appropriate
specialty (generally located in the US) to help direct care in the field. A similar system for addressing
ethical concerns among physicians would be desirable.
Table 1.1 Hierarchy of legal authority in descending order of priority
Category of Authority Applicable Documents

Geneva Conventions www.genevaconventions.org
US Code Detainee Treatment Act of 2005 Public Law 109–63, Sections 1401–1406
(http://jurist.law.pitt.edu/gazette/2005/12/detainee-treatment-act-of-2005-
white.php) U.S. Code Title 18, Part I Chapter 113C, Section 2340 (http://
www4.law.cornell.edu/uscode/html/uscode19/usc_sec_18_00002340-000-.
html)
DoDa Instruction Instruction on DoD Medical Program Support for Detainee Ops No.
2310.08E, 6 Jun 2006 (http://www.dtic.mil/whs/directives/corres/
html/231008.htm)
DoD Directive Directive on DoD Detainee Program No. 2310.01E, 5 Sept 2006 (http://
www.dtic.mil/whs/directives/corres/html/231001.htm)
Army Regulation, Army Field Manual 27-10: The Law of Land Warfare 18 Jul 1956, as
Army Field Manual or changed 15 Jul 1976 (http://www.globalsecurity.org/military/library/policy/
Pamphlet army/fm/27-10/)
Note: a Department of Defense.
Clarifying the medical rules of engagement prior to, or at the outset of deployment, may spare later
conflicts. In addition to educating your fellow soldiers, medical personnel, and superiors about your
medical expertise, this is an ideal time to formally delineate what the limitations of care are for local
nationals, whether medical operations within the surrounding community will occur, and explaining
your ethical constraints as a physician. If the ‘rules of the playing field’ are still not clear, you should
seek counsel from your medical chain of command. For a deployed battalion surgeon, this would
include the brigade surgeon and the division surgeon. A strong working relationship and open lines
of communication with your unit’s superiors as well as the medical chain of command will prove
invaluable when unanticipated conflicts arise.
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APPENDIX
In the following section Dawson Schultz, Marcus P. Adams and Craig M. Klugman present
commentaries on three of the Case Studies (numbers 3, 5 and 6 respectively) contained in the
preceding chapter and offer alternative analyses and interpretations of the ethical issues raised in the
studies.
Commentary on Case 3
Uncertainty, Tragedy, and Interpretation in Military Ethics: A Tale of Wolves in Sheep’s Clothing
Dawson S. Schultz
Case 3 raises what appears to be a straightforward question about whether, and if so why, the
commander of the military compound in question acted ethically during active combat by refusing
to grant serious civilian casualties of a late-night mortar attack access to the post’s medical facilities.
While initially the refusal looks grossly unethical, one might wonder why there is a question about
the morality of withholding medical services from wounded civilians. The refusal seems contrary to
well established principles of military ethics, not the least of which are codes derived from the Geneva
Convention (GC) and other such canons such as the World Health Organization (WHO) as well.
Given the above principles, and recognizing that the commander may look, to some, like a heinous
villain for withholding needed medical care from seriously wounded civilians, the questions I will
address in this commentary are as follows. First, is it ever ethical for military personnel to withhold
needed medical care from seriously wounded civilians when medical resources are available? And
second, is the withholding of medical services to wounded civilians not patently unethical since such
a refusal constitutes a flagrant violation of established international codes of military ethics?
I begin with a closer examination of those parts of the GC and WHO that bear on the commander’s
refuse of medical care in this case. To evaluate the morality of the refusal, we need to understand
whether and, if so, how, the relevant codes of military ethics apply to the case at hand and the reasons
why the commander nevertheless thought it best to withhold care.2
2 Throughout this commentary I shall work only with the bare facts of the case as presented by the
chapter authors. My analysis and conclusions are therefore provisional.
Various articles of the GC establish, as a principle of military ethics, that during episodes of
armed conflict the commander of a military compound is obligated to collect, care for and treat
humanely ‘all wounded and sick’, regardless of whether such individuals are US soldiers, enemy
soldiers or civilians. Specifically, the GC specifies that there shall be no distinction made between
sick or wounded US troops, enemy troops and civilians since treatment decisions should only be
made on the basis of relevant medical considerations involving ‘medical necessity’.
Other codes of military ethics reflect and reinforce this principle. For example, the Regulations in
Times of Armed Conflict established by the WHO states that ‘In emergencies, physicians are required
to administer immediate attention to the best of their ability … no distinction shall be made between
patients except those based upon clinical need’. This and other similar codes not only permit, but
require that decisions about the provision of care to the sick and wounded during times of armed
conflict must be based ‘solely on the injured person’s medical need, not on the benefit to your side
of the conflict or any specific quality of the injured civilian’.3 It is therefore clear that the ethical
requirements established by the WHO are consistent with those of the GC mentioned above.
After reviewing important ethical considerations from codes of military ethics relevant to the
case, the author of Case 3 suggests that, under circumstances similar to those in the case at hand,
‘you are obligated to appeal directly to your commander and explain the provisions of the GC as
they apply in this circumstance (my emphasis)’. This explanation concerning whether, and if so how,
the above-mentioned ethical codes apply constitutes the key ethical moment in Case 3. The question
here involves the way in which the case can best be formulated, especially the explanation to the
commander which concerns how the ethical codes apply (or fail to apply) to the circumstances at
hand. The explanation is critical since it will determine the outcome of ethical judgement.
Formulation of the case and of the explanation, methodologically speaking, constitutes what can
be described as the ‘hermeneutical dimension’ or the ‘moment of formulation’ in ethical analysis. This
aspect in particular involves interpretation concerning significance of the facts, that is, identification
of which facts are relevant, framing the way in which they should be presented, and determining how
their significance can best be understood by the commander and concerned others (as the commander
does not operate in isolation but is accountable to higher authorities).
Although ethical principles and rules are important guides to evaluation and judgement, principles
do not apply themselves – people apply them by means of imperfect activities such as discernment
and interpretation. Gathering, selecting, framing, presenting and interpreting the significance of the
facts at hand in light of the relevant ethical considerations is not an exact science. This activity
involves creation of what scholars refer to as a narrative account or story that tells or explains what
is going on.
Moral evaluation and judgement are not mere mental abstractions of ethical theory, although
they have a cognitive aspect. These activities can best be understood in practical terms as the
orchestration or production of a narrative account – an explanation where, literally and figuratively,
moral judgement is achieved in or through the discursive activity telling the story of what is going on.
Interpretation, itself, is thus an ethical consideration in the challenge of ethical analysis.
In the present case concerning the questionable behaviour of a commander who deliberately
withheld medical services to wounded civilians, the author interprets the situation in a way that
suggests that the commander acted unethically. ‘In this scenario,’ he says, ‘assuming you have
minimal medical resources or transport capabilities, the commander has wrongly ordered that the
injured civilians not be admitted to the compound (emphasis my own)’. What reasons does the
3 http://www.wma.net/en/30publications/10policies/a20.
author appeal to as the basis for establishing this conclusion? Are his reasons sufficient to warrant
the judgement that the commander acted unethically?
While the commander’s order not to admit the civilians to the compound is clearly tragic,
what circumstances in the case lead the authors to suggest that relevant codes of military ethics
do apply? Why do they judge that the commander’s action was unethical? The most likely reason,
they conclude, is that the commander’s order is wrong because they believe that it violates relevant
ethical regulations established by the GC and the WHO. In order to show that the commander has
violated these ethical codes; however, the authors must first establish that in fact they apply to the
circumstances at hand. Although these codes clearly have relevance in these circumstances, it is
far from obvious that the author has made a compelling case that the codes actually apply, and that
the commanders withholding of medical care is therefore unethical.
In the light of the above and based upon the information available, I submit that in this instance
the judgement the commander’s refusal to provide medical services is unethical is no more likely
than the opposing judgement that his refusal to provide these services is ethical. The truth of the
matter is that we probably cannot know for sure either way.
I draw this conclusion based upon the authors’ own admission which suggests or implies that
a certain algorithm of common sense governs application of military codes of ethics to the case at
hand. Concerning this he says, ‘local citizens injured by military operations of an occupying force
are treated if resources exist to do so safely (my emphasis)’.
I now turn to implications of the possibility that insurgents or enemy combatants are among the
civilians requesting admittance to the compound for medical care. The author states ‘identification
of insurgents or enemy combatants who may be among the injured local citizens can be difficult,
making it potentially unsafe to go to their aide or to admit them to a military compound for care
(my emphasis)’.
I conclude from this qualification that it is reasonable – perhaps even ethical – to admit sick
or wounded civilians to the base during combat but only on the condition that there is sufficient
evidence to support a reasonable belief that suicide bombers masquerading as wounded civilians
solely for the purpose of bringing about mass murder and destruction are not among them. If
such evidence does not exist at all or if it is weak, then there is little or no reason to judge the
commander’s refusal to admit wounded civilians to the compound for care as being unethical.
Unfortunately, in some situations we simply are unable to reasonably assess the risk of danger from
potential suicide bombers pretending to be wounded civilians, given the unavailability of pertinent
information. Under such circumstances, offering medical care to the wounded might very well lead
to harm to an even greater number of civilians and to military personnel as well.
The author describes the wounded in this instance as ‘collateral damage’ caused by the opposing
forces. He also points out that ‘battlefield conditions … often preclude precise identification of
the source of civilian injuries, especially in urban settings’. Although all of the above makes it
difficult to establish a compelling case that the commander acted unethically, the preponderance
of evidence suggests that surely there is no ‘right’ thing to do here, only the least worse of several
uneasy options. In fact the commander did the only thing he could do under the circumstances –
counterintuitive though this judgement mighty seem.
In summary and in the light of the very real threat of possible suicide bombers in today’s world
where terrorist attacks are commonplace, we simply do not know for certain from the information
available whether the commander would be endangering the lives of the wounded civilians as
well as his own soldiers by admitting to the base all those claiming to be in need of medical
care. Unfortunately, there seems to be no way of assessing the likelihood of danger from suicide
bombers that admission of these people would present to all concerned.
Under these circumstances, I therefore think it is reasonable to conclude that Case 3 does
not make a compelling case that warrants the judgement that the commander in question
acted unethically. Given this situation, we would do well to neither condemn nor condone the
commander’s refusal. The sad truth is that we simply do not have enough information to know
whether the commander was a tragic hero or a heinous villain.
As an addendum and as far as military justice is concerned, I would suggest that the inconclusive
evidence in this case does not seem to establish a prima facie case for court-martialling the
commander. This commander appears to have done what commanders are expected to do in the
line of duty: he listened to advice, assessed the risks of admitting wounded civilians onto the base
given the inherent and known danger of so doing, and made the best judgement he could under the
known circumstances at hand.
Although from a military standpoint there is insufficient evidence to judge the commander’s
action unethical, from a human standpoint it might seem that there is (can be) no justification for
withholding needed medical care from civilians, including those in the case at hand, regardless
of circumstances. A critic might argue that the permissibility of withholding needed medical care
from wounded civilians under circumstances of risk like those in the case at hand depends upon
whether the military combat in question is just or, more broadly, whether war itself is ever just. If
the troops had not been in the situation in question, there would have been no compound to attack,
no wounded civilians, and hence no question about the possibility of suicide bombers.
Questions concerning the justice of war, like those about the ethics of self-defence, go back at
least to Plato who questioned whether it is ever just to harm another human being. Perhaps neither
the commander nor we ourselves (who pay taxes to a government that engages in military combat
in the name of self-defence) are entirely free of responsibility for the civilian deaths in cases like
the one at hand. If this is true, we may be left with the following conundrum. Since acts of war or
self-defence risk doing harm to others, sometimes doing what is necessary to stay alive seems to
be an inevitable, albeit tragic, aspect of the human condition.
This does not entail, however, that we should ‘substitute candles for missiles’. Still, perhaps the
best anyone can do in most circumstances is to try and understand and, whenever possible, to avoid
tragic situations that are likely to require acts of self-defence that do injury or harm to others. To
accomplish this, we would do well to heed Aristotle’s timeless advice that responsible decision and
action require that the agent be in the situation at hand in order to know what the circumstances
require. To ignore this advice is to fall short of being all that we can be as human persons.
Ethical Reflection on Battlefield Triage Priorities

Marcus P. Adams
Battlefield triage protocols follow guidelines similar to those followed in civilian medical contexts.
When a patient presents with a given condition, he or she is examined, provided with a preliminary
diagnosis, and placed into one of three triage groups. Group 1 includes those who are likely to live
even without medical treatment and require minimal medical attention. Group 2 includes those
who are likely to die unless they receive medical care. Group 3 includes those who are likely to
die regardless of whether they receive medical care.4 A physician’s or other medical professional’s5
decision to place an individual in one of these groups, whether in civilian or military scenarios,
relies solely upon medical and diagnostic criteria and not upon ethical considerations.6
However, ethical (and legal) considerations enter into decision-making when a physician
decides how to prioritize the care of these groups. In times when there is no shortage of supplies or
medical personnel, medical need should be the only determining factor in deciding which group of
patients receives priority of care. On this model, Group 2 (that is, those who are likely to die unless
they receive medical care) should receive priority for treatment. Groups 1 and 3 will receive care
in due time, but the bulk of resources will be devoted to making sure that those in Group 2 receive
care first.
Such prioritization can be supported by ethical frameworks which hold that decisions about
healthcare must be made without appealing to any factors outside medical need, for example, the
patient’s race, religion, socio-economic status, and so on. For example, Michael Walzer, in his
influential account in Spheres of Justice, argues that decisions in the ‘sphere’ of healthcare should
be made entirely separately from decisions made in other spheres.7 Other ethical frameworks
could provide support as well, for example, some medical ethicists might appeal to utilitarian
considerations to support Group 2 receiving priority of care. Prioritizing care for Group 2 would
in the end save more lives than prioritizing, say, Group 3, so utilitarian considerations could also
provide justification for this choice. Ethical frameworks such as these could be seen as undergirding
relevant legal doctrines, such as the Geneva Convention (I and II), which are explicit on this point:
‘Only urgent medical reasons will authorize priority in the order of treatment to be administered’.8
Most of the prioritization for medical treatment that occurs in military triage will be consistent
with what this model recommends, and so most of the time patients assigned to Group 2 will receive
priority of care. However, Case 5 describes an exceptional situation where medical need outstrips
the available supplies and where medical need is equal between the two individuals needing care.
As a result, medical need cannot be the sole consideration to determine which individual should
receive the only available supplies for the tube thoracostomy. One could attempt to stay within the
‘spirit’ of the Geneva Convention and require a military physician faced with such a situation to
flip a coin or choose the individual who presented first, but to do so without any further discussion
assumes that a ‘one-size-fits-all’ triage model is ideal or even possible. One might hold that while
4 In practice there are further subdivisions made (for example, as in T.E. Bowen, and R.F. Bellamy
(eds), 1988, Emergency War Surgery, Second Revision of NATO Handbook, Washington, DC: Department of
Defense), but for the purposes of this commentary these three divisions are sufficient.
5 Some have distinguished between different ethics of care, for example, between a physician or a
nurse, but this distinction is not essential to the current issue. Although I use ‘physician’ throughout this
commentary, my focus is upon whoever makes the decision of prioritizing one group over another, whether
that individual be a physician or a nurse.
6 One might argue that there will be borderline cases where, say, a patient could have a combination of
injuries, each of which having its own chance of survival, such that there may be reasonable debate among
medical professionals about whether he or she should be placed in the Group 1 or Group 2. Even still, such
disagreement would not involve ethical considerations, so I wish to place such cases to the side and for the
purposes of this commentary assume that such medical and diagnostic decisions are usually uncontroversial.
7 M. Walzer, 1983, Spheres of Justice. New York: Basic Books.
8 Geneva Convention, I, II Article 12, http://www.icrc.org/.
medical need should typically be the deciding factor for triage group prioritization, in certain
exceptional situations it may be trumped by other considerations.9
One such exceptional situation which warrants a triage model different from the medical need
alone model is one that is employed during so-called ‘extreme’ battle conditions. In the rest of
this commentary, I will briefly expand upon what situations count as ‘extreme’ battle conditions,
and then argue that the situation in Case 5 does not meet the criteria for such conditions.10 As a
result, I will contend that the physician in such a situation should appeal either to some principle,
for example, the principle of equity, or a randomizing procedure such as a coin flip to make this
difficult decision.
Battle conditions are ‘extreme’ when one’s troops are at a significant disadvantage on the
battlefield, which disadvantage would be improved with a replenishment of troops. In such a case,
triage priorities are reversed, so that instead of those in Group 2 receiving priority for care those in
Group 1 (that is, those who are likely to live even without medical treatment and require minimal
attention) are given priority. The motivation behind such a reversal of priorities is to speed up
the process of replenishing the troops on the battlefield. It is worth noting that these conditions
are rare, and the modern US military, for example, has never engaged in such a triage reversal.11
However, such a reversal is allowed under current US military guidelines, even though it violates
the recommendation in the Geneva Convention. The difficulty of making such a decision should be
obvious – the wounded in Group 2 will most likely die, because they will no longer receive priority
for medical care, so that those in Group 1 can return to the battlefield sooner.
In such extreme cases, dual loyalties are present. On the one hand, the military physician
has an obligation to the wounded that present for treatment. On the other hand, he or she has
an obligation to the military chain of command to aid in the cause of winning the battle when
conditions are determined to be extreme. To expect a military physician to flip a coin or use some
other randomizing procedure to decide which soldier to treat in such an exceptional situation is
simply to ignore the existence of these other loyalties to which that individual is bound. In typical
cases where there is no shortage of supplies, medical need should be the only concern, but in cases
where there is a shortage of supplies and a military need for more troops, it is legitimate to allow a
military physician to decide on the basis of one of his or her other competing loyalties, such as the
obligation to the military chain of command.
Case 5 does not describe a situation in which the wounded individuals in question are capable
of returning the battlefield. Instead, the dilemma relates to which individual, whether a compatriot
or enemy solider, will live so that he or she can be transferred to a higher echelon of care. Such
a case does not present a dilemma of dual loyalties for the military physician, even if his or her
immediate superior demands that the physician’s compatriot receive priority over the enemy
combatant. The military physician’s loyalty to the military chain of command may override his or
9 Michael L. Gross, 2006, Bioethics and Armed Conflict. Cambridge, MA: MIT, pp. 144–8, notes that
British soldiers have distinguished between mass-casualty triage and conventional triage; mass-casualty
triage appeals to principles of ‘salvage’ and ‘utility’.
10 I discuss this issue at greater length in M.P. Adams, 2008, Triage Priorities, Ethical Obligations, and
Military Physicians, in Physicians at War: The Dual-Loyalties Challenge, edited by F. Allhoff. Dordrecht:
Springer, 215–36, and provide a more general framework for justifying extreme battle conditions triage
protocols.
11 See T.E. Beam, ‘Medical Ethics on the Battlefield: The Crucible of Military Medical Ethics’, chapter
13 in Military Medical Ethics, edited by D.E. Lounsbury, Office of the Surgeon General of the Army, vol.
2, 381–4 [Online]. Available at: http://www.bordeninstitute.army.mil/published_volumes/ethicsVol2/Ethics-
ch-13.pdf.
her first and foremost obligation to treat wounded individuals on the basis of medical need alone
only if battle conditions are extreme and only if giving priority for treatment to the minimally
wounded compatriot will help support the troops in the field.
One might object to such an account by holding that allowing the desires of the military chain of
command to influence medical decisions in military contexts incorrectly mixes what should be kept
distinct: tactical or strategic goals and ethical obligations. The former are outside the purview of a
military physician, and as such they should not be allowed to influence the physician’s decisions.
However, such a view neglects that military physicians do have obligations that would not present
if they were not employed by the military. Although generally medical decisions are outside the
purview of tactical decisions, when the need is sufficiently urgent a military physician’s obligation
to his or her chain of command may take precedence over the obligation to treat the wounded on
the basis of medical need alone.
In the absence of clear guidelines for what to do in Case 5 when battle conditions are not extreme,
the military physician must employ a procedure that is consistent with the Geneva Convention. In
such a situation, coin tossing or the first-come-first-served approach are both consistent with the
spirit of what it recommends. To do otherwise is to allow (unjustified) partiality to enter into medical
practice. The key is that the particular mechanism chosen by a given military physician be both
consistent with the Geneva Convention and with the particular military physician’s ethical views.
The latter consideration recognizes that in cases where there is no clear legal or ethical guidance for
action, consistency with individual views is essential for maintaining the professional’s integrity
as a person.
Public Health in the Deployed Environment

Craig M. Klugman
Introduction
In this scenario, the authors examine issues of medical ethics of this case. They ask if the patient
is eligible for care as a non-combatant. Does the camp have the tools and specialists necessary
to provide proper care? Would she get appropriate care in the Iraqi medical system? Would she
be killed if she were sent to the local health care system? And are her actions causing a threat to
mission readiness?
Except for the last item, the analysis focuses on the obligation of the individual physician
toward an individual patient. In the lay world, this would be an adequate and appropriate analysis.
However, a military camp during deployment is a very different world where the needs and desires
of the individual have to take second place to the population and its ability to fulfil the mission.
Thus, a medical ethics framework is not sufficient to the task of analysing this case.
In a public health model, the health of the population is primary and the health of any particular
individual comes second. In public health ethics, there are four principles to consider: solidarity,
efficacy, integrity and dignity (Klugman 2007). Under solidarity, the issue is whether the proposed
action fulfils the goals of public health – reducing morbidity and mortality. In the case of the
military, one could add fulfilling the mission. Under efficacy one asks if the proposed plan is
scientifically, culturally and politically likely to succeed. Integrity is the notion that one should
take an option that causes the least change to a community and that the community has to be a key
stakeholder in making decisions. Dignity holds that all people have basic human rights that should
be upheld. Under the 1948 United Nations Universal Declaration of Human Rights, Article 25
states that all individuals have a right to medical care. In terms of this framework, this means that
the least liberty-restricting option should be chosen (United Nations 1948).
Solidarity
The goals of public health always include reducing morbidity and mortality. Under deployment,
this can be amended to reducing the morbidity and mortality of the soldiers in order to successfully
complete the mission. A corollary would hold that the commander has to protect his troops to
maintain mission readiness. That the interpreter poses a harm to this goal is clear. She has repeatedly
been a carrier of sexually transmitted infections (STIs), which compromises the mission readiness
of the camp.
Ethics is about values and ethical dilemmas are about conflicts and competition between
values. In this scenario the base commander’s value of protecting his troops and successfully
completing the mission take highest priority in his decision-making. From a solidarity perspective,
the commander should remove any obstacle that interferes with that mission. This notion suggests
that the woman should be ejected from the camp.
For the physician, solidarity means putting aside some of the accepted tenets of standard
medical practice. The physician is acting as a public health agent in the battlefield whose goals
similarly must include maintaining the mission readiness of the forces. Even when a physician is
fighting to save a soldier’s life after a battle, the goal is not to simply save the life, but to return a
soldier to duty. For example, in an emergency triage system, the sickest or most injured soldiers
who need the most resources and still have a high likelihood of dying are given a black tag. This
notation means that they are set to the side, made comfortable and allowed to die. The first group
that receives treatment is actually the next classification, individuals who have a high likelihood of
survival with immediate care and treatment. In the lay world, the sickest patient would be treated
first. Thus, the physician in the battlefield has an obligation to the population first.
One additional element to this discussion is that the commander also needs to consider that this
interpreter has information about the camp that the enemy might find useful. It is conceivable that
she could trade information for her life or that under torture she might reveal facts. Even though
she would not have been cleared for sensitive information, she may have learned from overhearing
conversations, knowing the layout of the camp, and especially in her case, from pillow talk. This
notion suggests that letting her leave the camp could pose a potential harm to the camp.
Efficacy
Under military law, the commander has the ability to remove the interpreter from the camp and
under some interpretations may have an obligation to do so. There are several choices available
to the commander and physician. As described by the authors, he could continue current methods,
find specialty care, hope that she finds care in the Iraqi system or as eventually happens, send her
elsewhere for care.
One tool for working through an ethical dilemma is to look for an analogy. In this case, a
similar situation back in the US would put several systems into effect. In most states, her physician
would be required to report her STIs to the public health authorities. Those authorities would then
require a list of her sexual contacts and contact those individuals suggesting that they be tested
and, if necessary, treated. Public health officials have police authority to quarantine (that is, detain
an individual, even against their will) an individual as long as he or she poses a health threat to
the greater populace. The tale of Typhoid Mary is illustrative. A cook was found to be a carrier
of typhus, which led to the sickness and death of many of her employers. The health department
quarantined her, restricting her personal liberties for the benefit and safety of others (Leavitt 1997).
In this analysis, there is precedence and authority for making a decision to remove the interpreter
from the men whether through being sent to the outside world, quarantine or transfer to another
camp.
Integrity
In early 2012, the American College of Physicians released its ethics manual, version 6. In this
document, the ACP stated that a physician must consider the cost to the patient and to the society
for using resources to treat a patient. For the first time, a national medical association elucidated
the need for considering issues outside the physician-patient relationship in making choices. The
community standard is changing.
One must consider that that the interpreter’s status as a STI carrier poses a harm and in addition,
her use of scarce antibiotics means that the drugs may not be available when needed to treat an
injured soldier. Should the interpreter receive the scarce resource? In the world of public health, a
scarce resource can be distributed in five different ways. Contribution is the notion that a person
has earned the good. Egalitarian is the idea that everyone should be treated the same. Merit
suggests that one should be chosen because of a characteristic such as being a celebrity, having a
talent or being a commanding officer. Need states that the person with the greatest medical need
should receive the resource. And lastly is the notion of desert, the idea that some people are more
deserving.
World War II was the first engagement in which penicillin was available, though in very limited
quantities. The antibiotic could be given to soldiers who had gunshot wounds or it could be given
to soldiers who had contracted an STI (Beauchamp and Childress 2001). When asked this question,
most individuals say that the soldiers injured in combat deserve the penicillin, as their actions are
nobler. However, the public health goal was not to cure patient, but rather to return soldiers to the
frontline as quickly as possible. Thus, the penicillin was given first to the soldiers with STIs since
they would be back in the battle faster. Desert and need were overridden by potential contribution.
The interpreter’s previous treatments were justified under medical need and perhaps for her
contributions to the efforts of the mission. From an egalitarian perspective, she has probably used
more than her fair share. It would hard to argue that she has more merit or is more deserving of
these resources than a soldier. Ideally, the commander along with the physician should establish a
policy for distributing antibiotics and then assess her current need using that system.
Dignity
As a human being, and as someone who has lent aid to the U.S. military, there are strong arguments
for providing the interpreter with care. In their chapter, the authors make strong arguments for this
perspective. Additionally, under the Declaration of Human Rights, she has a right to health care.
Even if she were an enemy, the Geneva Convention would require giving her necessary medical
care.
The result of sending her into the local community could be harmful to her. Because she
provided aid to the U.S. military, her life may be threatened if the other side finds her. Therefore,
what duty does the commander owe the interpreter for her work with the campaign? Her sacrifice
surely has earned her some consideration. One could argue that the military incurred a debt of
reciprocity to this woman for her efforts and the risk she took.
As a physician, one must assist a person in need. The notion of beneficence is an obligation to
provide a benefit to a patient. And even though the interpreter has not changed her behaviour or
even shown up for offered specialty care, there is an obligation to not abandon a patient. In fact, in
the lay world, abandoning a patient without due process is not only an ethical problem, but also a
legal one that can lead to sanctioning against a physician’s licence.
Summary
Under a public health ethics framework, removing the interpreter from the general life of the camp
is justified. However, one always wants to choose the least restrictive alternative, which in this case
means the one that also keeps the interpreter from being harmed by the local populace. Drawing
on the history of public health, an alternative might have been to quarantine her and employ direct
observed therapy until she no longer posed a threat. To further increase her liberty, you can even
give her the choice of going into such a programme or leaving the camp. Then if she chose to refuse
care, knowing the consequences the commander and the physician are not morally culpable in what
might happen to her in the community.
In the real case, after she failed to accept the offered specialized treatment, the commander
transferred her to another base. Rather than solving the problem, the commander turfed it to
someone else. Yes, the public threat to his camp was contained, but now another facility was put
in danger. The public health threat has now increased because of the larger number of soldiers
stationed there, meaning a larger number of potential sexual partners and solving the problem has
simply been put off.
Bibliography
Beauchamp, D. and Childress, T. 2001. Principles of Biomedical Ethics. 5th Edition. Oxford:
Oxford University Press.
Klugman, C.M. 2007. Public health principlism. Online Journal of Health Care Ethics, 1, 1–13.
Leavitt, J.W. 1997. Typhoid Mary: Captive to the Public’s Health. Boston, MA: Beacon Press.
United Nations. 1948. Universal Declaration of Human Rights [online]. Available at: http://www.
un.org/en/documents/udhr/ [accessed 1 March 2012].
Chapter 2
The Doctrine of Double Effect, Utilitarianism and
the Treatment of Civilian Casualties
Marcus Schulzke
Incidents in which non-combatants become collateral damage of an attack1 are common in war,
especially in the wars of the past century. The power of weapons has become so great that collateral
damage invariably follows from major attacks, no matter how sophisticated and ‘smart’ the weapons
systems used. This collateral damage can be deliberate, incidental (foreseeable, but unintended),
and accidental (unforeseen and unintended). The usual way of justifying incidental and accidental
collateral damage is with the doctrine of double effect (DDE), according to which it is permissible
to harm civilians when they are not intentionally harmed. This excuses civilian collateral damage
when it comes as a by-product of a proportional attack on a military target. Alternatively, it is
possible to justify any type of collateral damage using utilitarianism, according to which harming
non-combatants is excusable when it ultimately saves more lives than would have been lost. This is
a popular justification for indiscriminate violence used during total war, such as the Allied attacks
on civilian targets in Japan during the Second World War (Grayling 2006; Slim 2010: 151–2).
These justifications are frequently invoked by scholars and policy makers who face the prospect
of determining the extent to which non-combatant casualties can be justified for the sake of winning
a war. The DDE has strong support among just war theorists because it preserves non-combatant
immunity, even while it excuses actions that harm non-combatants. Policy makers tend to use both
arguments, reverting to utilitarianism whenever they must justify deliberate attacks against non-
combatants. Despite their popularity, both theories suffer from the same flaw of omission. Most
formulations of the arguments make the mistake of defining them as though the moral quality of
an attack is entirely determined before the attack takes place. The DDE focuses on the intentions
of the attacker, the steps taken to avoid collateral damage, and the actions taken during the attack.
Similarly, those invoking utilitarianism tend to make a moral judgement before an attack is carried
out, but fail to reapply the utilitarian calculus, or any rules derived from it, once the attack has
ended.
This chapter will argue that the both the DDE and the utilitarian justifications of collateral
damage should be modified to include an attacker’s duty to reduce civilian suffering after an attack
has taken place by providing medical assistance to any non-combatants who become collateral
damage. For the DDE, this follows from the non-combatants’ absolute right to life. Non-combatants
do not lose this right to life when they are attacked, and so they should be entitled to assistance
from those who violated this right, even when the violation is not immoral. For utilitarianism,
the need to provide medical assistance follows from understanding the obligation to promote
the greatest good from a diachronic rather than a narrow synchronic perspective; the utilitarian
calculus often changes after an attack is carried out, and may make any additional suffering caused
1 This chapter uses the word ‘attack’ broadly to indicate any use of violent force against an opponent.
Militaries may attack in this sense whether they are strategically or tactically on the offensive or the defensive.
by not providing medical assistance unnecessary for achieving the attack’s purpose. Providing
medical assistance to foreign civilians could be demanding and is open to the objection that such
assistance is impractical. However, this assistance may serve strategic goals, as it could be used as
a way of building foreign support for the war effort. This chapter’s argument is primarily a matter
of bioethics, as it links the right to use force that might threaten civilians to a country’s duty to
provide medical service for anyone who is inadvertently affected by that use of force. When it
comes to the infliction of collateral damage, military ethics and bioethics are inseparable. The
moral status of an attack is directly linked to the preparations that have been taken to care for those
who are accidentally injured.
The first section of this chapter will briefly discuss the principle of non-combatant immunity as
it expressed in just war theory and military bioethics. Non-combatants receive special protections
because they retain the right to life that soldiers sacrifice by joining military service. The second
and third sections will discuss the DDE and utilitarian justifications for non-combatant collateral
damage. The fourth section will show these theories suffer from a common limitation. Both address
an attacker’s moral responsibility before and during an attack, but most formulations say little, if
anything, about an attacker’s responsibilities after an attack has been carried out. They do not
specify any duties toward those who were harmed, even towards non-combatants. The fifth section
will show that the DDE and utilitarian justifications entail that attackers have a responsibility to
provide medical treatment to non-combatants who are harmed in an attack. The DDE and utilitarian
arguments should be reformulated to make this responsibility explicit. The sixth section discusses
the practical implications of applying this rule, including who is responsible for providing medical
care and the limited ways in which military necessity can shape the conditions for fulfilling the
requirement to care for non-combatant casualties. Finally, the chapter will conclude by considering
some of the likely counterarguments to this claim and by arguing that the duty to provide medical
care can be made more practical if it is suspended during times that meet Walzer’s criteria of
supreme emergency.
Non-combatant Immunity in Bioethics and Just War Theory
One of the central debates in military bioethics is the extent to which bioethics is at odds with the
military mission (London et al. 2006; Gross 2006; Bennahum 2006; Alhoff 2006). Some argue that
medical ethics are complimentary to military operations and that the roles of medical professionals
in civilian and military settings are largely the same (Madden and Carter 2003). Others find that
there are deep tensions between the demands of bioethics and those of military necessity, which
lead to ethical dilemmas for commanders and doctors (Sidel and Levy 2003). The latter position
has become especially prominent in the past decade, as medical professionals have been asked
to falsely certify that prisoners are fit to be interrogated, to force feed those engaging in hunger
strikes, and to participate in prisoner interrogation (Annas 2008; Enemark 2008). Despite the
conflict between certain kinds of military operations and bioethics, bioethics and just war theory
agree on many points. Among the central points of agreement is that non-combatants have a right
to life that they do not sacrifice during war.
Michael L. Gross derives the civilian right to life from several sources. First, he finds that
states are responsible for protecting their own citizens from harm during times of war. This has
been a central idea in political theory for centuries, and is especially prominent in the natural rights
tradition (Gross 2006: 33). Natural rights theorists often base the state’s authority either partially or
entirely on its capacity to protect citizens and maintain peace between them (Hobbes 1982; Locke
The Doctrine of Double Effect, Utilitarianism and the Treatment of Civilian Casualties 45
2003). However, this only provides a limited basis for protecting non-combatants, as it does not
impose duties for the treatment of foreign populations. Second, Gross argues for a more general
form of non-combatant immunity based on non-combatants’ right to life. He defines bioethics as
specifying four basic principles: the right to life, the right to self-determination, the right to dignity
and utility (Gross 2006: 31). The right to life applies not only to the citizens a state must protect but
also to foreign populations, including the citizens of enemy countries. One of the key distinctions
between combatants and non-combatants is that the latter retain their right to life. Gross argues
that soldiers who enter military service sacrifice this right. By entering the military profession
and threatening the security of others during times of war, they make themselves potential targets.
‘Soldiers enjoy but a conditional right to life that they will lose once they don a uniform and take
up arms against one another’ (Gross 2006: 28). Non-combatants, even those who assist the war
effort by producing war materials, do not make the same commitment to the war as soldiers, nor do
they follow the soldier in partially giving up the right of self-determination.
This right to life is widely recognized by just war theorists as the basis for respecting non-
combatant immunity (Walzer 1992; Mayer 2007) and is one of the most important points of
agreement between bioethics and just war theory. Many just war theorists and moral philosophers
agree that civilians do not make themselves liable to attack even when they contribute indirectly
to the war effort (Anscombe 1970; Nagel 1972; Graham 2008). McMahan says that even
innocent obstructers, who interfere with an opponent’s military operations through non-violent
means, cannot be attacked because they do not constitute a threat that would require self-defence
(McMahan 2009: 172). Mayer describes the same kind of duty in his analogy between war and an
athletic competition.
Soldiers have willingly or unwillingly made themselves targets by training and being equipped to
kill the enemy. They possess a military status because their very purpose is to target the enemy’s
military forces. Noncombatants do not possess this purpose, but are instead like fans at a game.
Even if your opponent’s fans are cheering for their team and boosting their morale, you cannot
harm these fans (even if this would help defeat your opponent). (Mayer 2007: 226)
Some just war theorists have supported the extension of non-combatants’ right to life by using it
to define other rights in addition to not being subject to attack. Walzer argues that depriving non-
combatants of materials they need to survive, including food and medical supplies, is immoral
because of the right to life (Walzer 2006: 86). He thinks that a blockading force must allow these
materials to reach non-combatants, even though this means abandoning the conventional siege
tactic of starving opponents into submission. Thus, Walzer recognizes that there is a negative duty
to not withhold medical assistance, but he does not go further than this to establish any positive
duties toward non-combatants in foreign countries.
The criteria for demarcating combatants from non-combatants are controversial. There are
multiple competing views of what makes one a non-combatant and of whether they can be attacked
(Steinhoff 2007). Some just war theorists favour different criteria for distinguishing those who are
liable to attack during war from those who retain their right to life. For example, Walzer (1992: 146)
and Fotion (2008: 116) argue that some non-combatants, such as those engaged in the production
of war materials, may be justly attacked. It is important to resolve this disagreement in order to
determine exactly who should be entitled to the protection during wars and who should receive
the medical assistance discussed in this chapter. However, despite disagreement over who should
qualify as a non-combatant and why, just war theorists generally agree that those who do qualify
as non-combatants have a right to life that they do not lose during war.
Although there is widespread agreement that those who qualify as non-combatants should
not be deliberately attacked during war, the duties that follow from the right to life seem to be
only partially recognized in just war theory and in Gross’s bioethics of war. Scholars usually
characterize the right to life as implying negative duties – restrictions on the use of force when they
are at risk or rules about discrimination. Gross finds the basis for positive duties in his discussion
of states’ responsibility to their citizens, but the entitlement to protection only extends to a state’s
own citizens and to those of allied countries. This negative view of responsibility toward non-
combatants, or at least toward foreign non-combatants, is reflected in studies of the DDE.
The Doctrine of Double Effect
The DDE is one of the oldest and most influential ideas in military ethics. Its roots go back at least
as far as St Thomas Aquinas, who says that killing should be avoided when fighting in self-defence,
but that when the killing is committed accidentally, it is not immoral (2007: Qu. 64, Art.7). Aquinas
considers the intention of the act to be the most important distinction between a moral and an
immoral killing. If a person acting in self-defence intends to kill the attacker, then the action would
be immoral even though it was performed for a good reason. Aquinas also applies proportionality
to limit the intensity of a just response to aggression. The response to a threat must be proportional
to the danger the threat poses. This means that even unintentionally killing someone in self-defence
is only justifiable if the defender’s response is proportional to the level of threat the defender faces.
One could not claim the right to kill an attacker if the attacker were not a serious threat. Thus, it
would be immoral to respond to a mugging with lethal force if the mugger’s only goal is to steal
money and not to cause serious injury. Contemporary just war theorists have modified Aquinas’
DDE in various ways, but remain committed to the two basic elements of good intention and
proportionality (Holmes 1989; Zupan 2004; Regan 1996; Lee 2004; Ficarrotta 2007).
Norman argues that the strength of DDE is that it permits the application of an absolutist
principle – that innocent people should not be harmed – to intentional actions, while judging
unintended consequences by a consequentialist standard (Norman 1995: 84). It therefore blends
the strengths of each form of moral judgement without allowing the consequentialist reasoning to
supersede the absolutist commitment to avoiding non-combatant harm. However, the absolutist
requirement of good intention does not forbid knowingly inflicting unintended collateral damage.
As Lefkowitz explains, the distinction between intention and foresight is central to the DDE ‘The
combatant does not intend to cause harm to non-combatants as a means to achieving his intended
goal. Rather, the combatant merely foresees that his attack on a legitimate target of war will cause
harm to illegitimate targets of war as a side effect’ (Lefkowitz 2008: 147). Cavanaugh expresses the
difference in more general terms. ‘Intention is an agent’s volitional commitment to effecting a goal
as planned. Foresight is a cognitive realization of what will occur given certain causal relations’
(Cavanaugh 2006: 97). This difference between intention and foresight is the critical distinction
that allows for military action that is certain to produce collateral damage. For this reason, it is one
of the most heavily criticized elements of the DDE (Donagan 1977; Davis 1984; McIntyre 2001).
The differences between variations of DDE tend to involve disagreements over what must
happen before an attack is carried out, such as what counts as an intention to minimize collateral
damage. Some of the most influential variants of the argument impose stronger responsibility for
guarding against accidental harm than Aquinas does. Walzer argues that the DDE, as it is usually
defined, can be easily misused and that it should also demand an intention to reduce the risk
to civilians (Walzer 1992: 151–9). He goes on to say that because combatants lose the right to
life during war, they can be held to high standards of discrimination, even when these put them
at greater risk. Therefore, the intention to reduce civilian risk may demand that soldiers pursue
suboptimal strategies that are more dangerous for them in order to reduce the chances that they will
inflict collateral damage. The DDE, especially in Walzer’s formulation, upholds non-combatant
immunity by giving non-combatants special protections against harm. This sets it apart from purely
consequentialist utilitarian reasoning.
Utilitarianism and Collateral Damage
Unlike the DDE, the utilitarian argument for excusing collateral damage does not rely on intentions.
The utilitarian argument holds that an attack is permissible if it will ultimately lead to a lower
amount of suffering than if the attack were not carried out. It excuses attacks that inflict harm on
civilians when they shorten a war or prevent a greater future harm. In fact, according to many
variants of utilitarianism, an attack that will reduce the total amount of suffering caused by a war is
not only justified but also obligatory because acts of commission and acts of omission are equally
blameworthy (Williams 1973). Although this argument is less influential in work on just war theory
and military ethics because it is at odds with non-combatant immunity, it is popular among policy
makers and there is some evidence that soldiers apply an intuitive form of this reasoning to resolve
the moral dilemmas they encounter in combat (Grayling 2006; Slim 2010: 151–2).
The utilitarian argument is often mobilized to justify attacks that would be indefensible using
the DDE because utilitarianism does not recognize non-combatant immunity or forbid any means
of attack (Brandt 1972).2 For this reason, it is one of the most popular defences of the Allied aerial
bombings during World War II, especially the attacks that were carried out against non-military
targets or using atomic weapons (Grayling 2006; Slim 2010: 151–2). The bombings of Hiroshima
and Nagasaki are among the most controversial attacks of the war and they do not seem to be
justifiable using the DDE. Although each of the cities had some military importance, the bombs
targeted civilian areas of each city. Moreover, it would be very difficult to maintain that the bombs
were proportional, given the limited value of the military targets compared to the enormous civilian
casualties. Although the DDE offers little help for those who support the bombings of Hiroshima
and Nagasaki, there are strong reasons in favour of the attacks from a utilitarian standpoint. The
bombings may have been the decisive factor in avoiding Operation Olympic – the proposed
amphibious invasion of Japan. This operation might have produced a death toll far greater than
that inflicted by the atomic bombs. President Truman used this defence, arguing that an invasion
would have cost as many as 1 million lives (Skates 2000: 76). Although Truman’s casualty estimate
was probably too high, military planners thought that the number of American casualties could be
as high as 500,000 (Skates 2000: 77–9) – more than enough to outweigh the casualties inflicted by
the bombs.
Although most academic discussions of the utilitarian justification involve large attacks, using
aerial bombardment and missile strikes, it is important to remember that it can be used by military
personnel at all levels. Dexter Filkins provides one good example of two American marines who
use a utilitarian decision procedure to decide whether to shoot at Iraqi insurgents who are near
civilians (2003). Although the marines have a right to return fire in self-defence, regardless of
the circumstances, they decide that they will only return fire when few civilians are in danger of
2 Although non-combatant immunity has been rejected by both act utilitarians and rule utilitarians,
some argue that rule utilitarianism can be used to affirm non-combatant immunity (Nathanson 2010).
being caught in the crossfire. The marines tell Filkins that it is not worth returning fire if multiple
civilians may be killed but that they will return fire if they only risk hitting one. As they explain
it, this decision is a matter of weighing the number of civilians in danger against the threat of
the insurgent shooting an American soldier and possibly carrying out attacks in the future. They
therefore show that utilitarian reasoning can be applied to ethical challenges at the tactical level, in
addition to those at the strategic and operational levels.
Limitations of the Doctrine of Double Effect and Utilitarianism
A limitation the DDE and utilitarian justification of collateral damage share is that they overlook
the responsibilities an attacker has to reduce the suffering caused by an attack after it has been
carried out. The DDE only considers the actions taken before and during an attack. The conditions
of good intention and proportionality, as well as the intention to reduce non-combatant risk that
Walzer proposes, refer only to the planning and execution stages of an operation. The formulations
of the DDE discussed earlier say nothing about what should be done after an attack has taken place
and non-combatants have been injured. Walzer makes a strong case for the incompleteness of the
DDE and the need for additional criteria to prevent it from being too permissive. However, even
in his revised form, the DDE is problematic because of its narrow focus on intentions. This is a
serious shortcoming, as it permits an attacker to harm innocent people knowingly without having
any obligations to help those who have been wounded. Using the current version of the DDE, an
attacker may abdicate responsibility for taking positive steps to protecting non-combatants’ right
to life once the damage has been inflicted.
Among the central problems for utilitarianism in any context is predicting the consequences
different courses of action may produce or, when it is applied to past events, speculating about what
effects a different decision might have had. Returning to the example of the bombing of Hiroshima
and Nagasaki, it is far from clear that the bombing campaign against Japan saved lives, especially
when one factors in the attacks on other cities, which would bring the total casualties to around
300,000 killed and 400,000 wounded (Conway-Lanz 2006: 1). Moreover, it is possible that there
may have been a third way of defeating Japan that would have inflicted fewer casualties. Bombing
may have been the least destructive way of winning the war, but justifying it on utilitarian grounds
leaves it up to endless debate and consideration of less destructive alternatives. One reason for
this difficulty is that those who apply utilitarianism seem to think that it should only be applied at
the moment of decision and that all consequences of the decision should be allowed to naturally
unfold without intervention. The casualty estimates of acting and those of not acting are weighed
against each other as though they were unchangeable facts about each prospective course of action
that would not be altered by subsequent action. The extent of the harm an attack will produce is
largely determined by the target selected and the means used to destroy it, yet the harm can also
be controlled once an attack has taken place. Much of the collateral damage, especially for attacks
with weapons of mass destruction, cannot be repaired. Those who are killed and mortally wounded
cannot be saved. Nevertheless, many people who become collateral damage suffer less serious
injuries. It would be wrong to add these people to the casualty estimates and to treat their wounds
as something that is intrinsic to the decision itself if there is a chance that their suffering could be
reduced.
Thus, the underlying problem of the utilitarian justification of collateral damage is that the
utilitarian calculus is usually applied synchronically; it is used to judge the morality of an attack
at one point in time before it is carried out. It is uncommon for those invoking the utilitarian
justification to consider the way the utilitarian calculus may shift after an attack has been carried
out or how the consequences of actions might be mitigated by subsequent actions. This can lead
those invoking the utilitarian justification to overlook the ways in which the moral quality of an
attack might be changed by attempts to control the damage.
The Duty to Provide Medical Care
The DDE and the utilitarian justification for inflicting collateral damage on non-combatants should
impose an additional requirement. Each should specify that attackers have an obligation to provide
medical aid to non-combatants who are harmed by an attack. Although it may be impossible to
avoid harming civilians in certain circumstances, combatants should have a duty to help those who
are wounded by attacks. A duty to provide medical assistance would go beyond the current duties
to ensure adequate medical supplies and to maintain health facilities established by Articles 55 and
56 of Geneva Conventions, as these articles only apply to occupying powers and are weaker than
the duty proposed in this chapter. The duty to provide this assistance follows from the logic of the
DDE and the utilitarian arguments themselves.
A core assumption of the DDE is that it is wrong to harm non-combatants, but that this
wrongness can be overridden. The non-combatant right to life is overridden and can therefore be
justly violated, but it remains intact as long as non-combatants do not pose a threat that requires
others to act in self-defence, or otherwise compromise their status as non-combatants. Violating
non-combatants’ right to life may be excusable when the criteria of the DDE are met, but those
who are harmed do not lose their right to life simply because they become collateral damage; their
status does not change because of the attack, nor should the duty to protect their right to life. In
other words, civilians who are intentionally, incidentally, or accidentally harmed retain this right,
regardless of the circumstances that may excuse an attack that injures them.
The presence of an overriding objective can make an attack permissible according to the DDE,
but it does not change the fact that the collateral damage incurred by the attack violates the non-
combatant right to life. An attacker who is responsible for harming non-combatants should therefore
be obligated to take steps to ensure that the right to life is not violated more than is necessary
after an attack’s military target has been destroyed. Regardless of the civilians’ nationality, the
responsibility for doing this should belong to the attacker who has violated the civilians’ right to
life by imposing a risk on them that they did not assume voluntarily. The attacker may have a good
reason for carrying out an attack and the attack may satisfy the normal requirements of the DDE,
but the attack violates the spirit of the DDE if those responsible for it fail to affirm the right to life
after the collateral damage has been inflicted.
Providing medical assistance would impose costs elsewhere, as it would increase demands
on the logistical infrastructure and divert medical resources away from caring for soldiers and
allied civilians. Nevertheless, when the conditions of the DDE are satisfied, the assistance itself
should not be contrary to military necessity. As the earlier description of the DDE pointed out,
any harm done to non-combatants must be a secondary effect and not the intended outcome of a
military operation. Because the civilians are not the targets, their fate should be incidental to the
attack when the attack is judged in terms of its effectiveness as a means toward achieving victory
in war. As Gross correctly notes, to qualify as unintentional ‘harm befalling innocents can in no
way facilitate a mission’s success’ (Gross 2006: 130). If harming civilians facilitates a mission’s
success, then they cannot be attacked according to the DDE. If harming them does not contribute to
the mission’s success, then providing medical assistance to them will not detract from the attack’s
contribution toward military victory.
The duty to provide medical care would usually not include repair to infrastructure, at least when
applied as part of the DDE. Material infrastructure does not in itself have a right to existence that
is similar to non-combatants’ right to life. Damage to infrastructure may seriously inconvenience
non-combatants, but unless the loss of infrastructure actually threatens their right to life, then the
duty to provide medical assistance does not require any efforts to repair the damage. Thus, the
duty to provide medical care would only extend beyond humans to include infrastructure when
structures or materials essential to survival are damaged to the point of being unusable.
The duty to provide care for wounded non-combatants also follows from the utilitarian
justification for collateral damage, but for different reasons. The famous basic tenet of utilitarianism
is to maximize happiness and minimize pain. Bentham and Mill argue that, in some circumstances,
inflicting pain is an unavoidable part of maximizing happiness (Mill 1993). During times of war,
all courses of action may be imperfect and require some infliction of pain in order to reach an
outcome that produces the greatest level of happiness. Thus, on utilitarian grounds, it may be
excusable to harm enemy soldiers and even enemy civilians, provided that the harm is inflicted
as part of a course of action that will ultimately lead to the greatest level of aggregate happiness.
Inflicting harm on non-combatants is less problematic for utilitarians than it is for the DDE because
utilitarianism does not uphold non-combatant immunity (Brandt 1972; Nagel 1972). As Ellis
points out, ‘all that matters is that welfare be maximized and, if that is true, it cannot matter how
this occurs, or fails to occur’ (Ellis 1992: 175). However, even though non-combatants do not have
a privileged position, utilitarians may still be obliged to respect non-combatant immunity to some
extent. They can excuse attacks on civilians, but only when these inflict the lowest level of pain to
achieve military victory.
Despite not recognizing non-combatant immunity, utilitarianism does impose strong moral
standards when it comes to reducing pain that is not necessary for military victory. A military
following utilitarian reasoning would have to analyse prospective attacks in terms of maximizing
happiness and minimizing pain. This would restrict the extent of the attacks, as it would be wrong
to use a level of force that would produce more suffering without any military benefit. It could
justify an operation like bombing an enemy city to destroy munitions factories, but the bombing
would only be excusable if it caused the minimal level of suffering necessary to bring about the
good consequences of destroying the factory. Moreover, nothing in utilitarian theory absolves an
attacker of responsibility once an attack is carried out. Because utilitarianism does not distinguish
between acts of commission and acts of omission, there is no morally significant difference
between killing a person and allowing that person to die (Ellis 1992: 175). If a hundred people were
injured by a bombing and sure to die without medical treatment, then a utilitarian concerned with
global happiness would consider the attacker’s failure to treat them as being morally equivalent to
deliberately killing them.
Causing or ignoring additional suffering after an attack is not always immoral. If enemy
combatants are the ones injured and their suffering prevents them from returning to service, then
refusing to treat them may justifiable from a utilitarian standpoint because it contributes to the
war effort. As Gross points out, wounded combatants who may return to military service continue
to pose a danger; treating them may interfere with winning a war (Gross 2006: 155). However,
most non-combatants make low contributions to the war effort, if they make any contribution
at all. Therefore, the pain that any individual wounded non-combatant endures will generally be
disproportionate to any military benefit of ignoring that pain. This would make ignoring the pain
immoral by utilitarian standards.
The argument for providing medical aid is even stronger for those who cannot return to work.
Once a person is rendered incapable of aiding the war effort because of injuries sustained in an
attack, allowing that person to continue suffering is immoral because it serves no greater good
that could outweigh the harm. Utilitarianism imposes a moral duty to help that person if that help
contributes to the general good. Although this might exclude some non-combatants who make
major contributions to the war effort from medical care, it implies a duty to help all other injured
non-combatants.
One could respond to this characterization of utilitarianism as applying globally, to all people
regardless of nationality, and instead argue that countries are only obliged to promote happiness
for their own people and not for foreign civilians. This would overcome the obligation to provide
medical assistance, but would come at the cost of abandoning moral obligation to foreign non-
combatants and reverting to a realist view of war. In other words, if utilitarianism is interpreted
as only creating duties toward a state’s own citizens, then utilitarianism has very little power to
regulate how states conduct wars against foreign populations.
One might also argue that applying utilitarianism globally might require assistance to go
beyond medical care and extend to rebuilding infrastructure that was damaged in the attack. In
some cases utilitarianism could impose this duty. This would happen when repairing the civilian
infrastructure is not outweighed by competing demands to resolve the war and when it is vital to
the happiness of the civilian population. Finally, one could argue that providing medical assistance
to non-combatants would only be unjustified when doing so requires a diversion of resources that
it would lead to a greater loss in happiness. This consideration would have to guide the provision
of medical assistance under utilitarianism and might in some circumstances preclude it from being
applied at all. However, this is an advantage of the utilitarian position, as it makes enforcing the
duty to provide care more practical by balancing it against other demands that may overrule it in
extreme circumstances.
Providing Medical Care in War
The duty to provide medical care to non-combatant casualties has strong implications for military
bioethics, as it establishes a connection between military operations and medical treatment of
non-combatants. Any operations conducted in or against populated areas must have a substantial
medical contingent that can treat injured non-combatants. This component of operations is
especially important for counterinsurgency operations, as counterinsurgency is often conducted
in populated areas. In most circumstances, applying the duty to provide medical service to injured
non-combatants means that aggressive acts cannot be justly carried out without careful attention to
the medical needs that they might generate.
The type of care that combatants are obligated to provide depends on whether one applies
the DDE or utilitarianism. From the perspective of the DDE, the goal of medical care should
be repairing the damage of a violation of an injured non-combatants’ right to life. Medical care
would need to be provided as soon as possible following an attack in order to minimize the risk of
death or serious injury to any civilians who were harmed. The goal should be to return a person
as close to their pre-attack state of health as possible. There would therefore be no obligation to
cure conditions that existed before the attack or for subsequent injuries that are not related to it. If
a person’s pre-attack state of health cannot be determined, then treatment should attempt to return
to the victim to the average level of health in that person’s country. The goal of reaching pre-attack
levels of health may require long-term healthcare solutions, such as prosthesis, rehabilitation, and
even assistance returning to work. Physical suffering and harm can follow long after an attack,
and if the duty to provide care is not limited it could plausibly extend indefinitely into the future.
Therefore, the duty must be limited in some way. The duty should therefore only apply for a
reasonable period after the attack has been carried out. There are no strong moral grounds for
judging what qualifies as a reasonable length of time. This would have to be determined based
on a case by case bases that accounts for the type of injury sustained, the extent to which further
treatment can significantly improve the injured person’s health, and whether the costs of treatment
are commensurate with the harm inflicted.
An attacker’s capacity to prepare for collateral damage is implied by the DDE. The DDE states
that an attack can be just when civilian casualties are foreseen but not intended. Planning for
casualty evacuation and treatment should be part of operation planning. If casualties are foreseen,
then an attacker has the opportunity and the responsibility to plan for caring for those who are
wounded. If the attacker foresees that the number of civilian casualties will exceed the number that
can be treated, then launching an attack would be unjust, as it would lead to the violation of the
duty to care for non-combatants harmed by the attack. This requires a modification of the DDE’s
proportionality condition. An attack must not only produce harm that is proportional to the military
importance of the objective but the attacker’s precautions for caring for non-combatants must also
be proportional to the magnitude of the attack. Each of these proportionality requirements precludes
the same kind of attacks. Large-scale attacks against populated areas are usually considered unjust
by the DDE because they produce a disproportionate level of destruction; they can also be judged
unjust if they exceed the attackers’ capacity to provide medical assistance.
From a utilitarian perspective, how and when medical assistance is provided would depend
on the extent to which it may promote net happiness. This may only require basic life-saving
care without the need of returning victims to their pre-attack level of health or it may require the
same level of treatment implied by the DDE. Unlike the DDE, which reasons from absolute rules,
utilitarianism is highly sensitive to the context, and therefore the course of action it will require
cannot be precisely stated in advance.
If utilitarianism is used as a decision procedure to judge the morality of an attack before it is
carried out, then it too implies that an attacker should be able to make an assessment of collateral
damage and make advanced preparations for collateral damage. Making a decision using the
utilitarian calculus requires the foresight to predict which course of action will maximize happiness
while minimizing pain. Thus, commanders applying this calculus have the opportunity to arrange
medical resources when they are considering the moral consequences of an attack. The imperative
to minimize pain demands that planners take as many precautions for reducing collateral damage
as they can without compromising the mission’s objective.
Although there is always a responsibility to help innocent people who have been harmed, it
may not always be possible to have medical resources prepared in advance. When non-combatant
casualties are unforeseen, despite attempts to assess potential civilian harm, combatants should
be held responsible for helping them but forgiven for not providing immediate assistance. For
example, consider a case in which a tactical bomber conducts a proportional attack against an
enemy artillery battery in an isolated area. If there is no reason to expect that the attack will injure
civilians, then the attacker does not have to ensure that medical personnel3 are available to care
for non-combatants immediately after the bombs are dropped. However, if the bombing mission
3 The term ‘medical personnel’ may include field medics, doctors, and nurses. Exactly which medical
personnel will be needed for treatment depends on the situation.
incurs unforeseen collateral damage, then the attacker must respond as quickly as possible to care
for those who were injured.
It may also be impossible to prepare for civilian casualties inflicted when responding to a
surprise attack. When surprised, a defender does not have the advanced warning necessary to
prepare for the collateral damage. The victim of aggression may be forced to respond by launching
counterattacks without having medical personnel or supplies ready to care for those who are
injured. In this case, it would be permissible to fight in self-defence, but the defender would
still face the responsibility of mobilizing medical resources as quickly as possible to treat non-
combatants. Moreover, when responding to a surprise attack, it is still not permissible to launch
reprisals that inflict civilian casualties exceeding one’s means to provide medical assistance. Thus,
a just response could include limited attacks against military targets in civilian populated areas, but
it could not include massive reprisals such as a responding with nuclear weapons.
Another important practical matter is determining who has the responsibility to ensure that
medical resources are available and that they are used appropriately. Gross argues that ‘any decision
to provide medical care during wartime is not solely one for the physicians in the field. Instead, it
is primarily a decision for military commanders’ (2006: 66). Gross is right to divide responsibility
and place the weight of the decision on commanders rather than the doctors themselves. However,
his claim that there are ‘two classes of military medical decision-makers’ (Gross 2006: 66) does not
adequately capture the levels on which decisions to minimize collateral damage have to be made.
The responsibility for managing medical resources and ensuring that they are available when they
are needed belongs to commanders and to the politicians who control the military budget and
shape military policy. Politicians have to make the medical resources available to the military
and refrain from ordering it to carry out any missions that might generate collateral damage that
exceeds its medical capacity. Senior officers in charge of strategic and operational planning must
be able to manage medical resources to ensure that they are on hand for all operations that may
cause collateral damage and they must avoid conducting any operation that exceeds the capacity
for providing care.
Commanders who are responsible for mission planning must be held accountable for planning
medical operations to assist non-combatants and for acting with restraint whenever medical support
is unavailable. They hold more responsibility for assisting non-combatants than the personnel who
carry out the attacks because of their leadership role. When lower level personnel are ordered to
conduct operations, they are usually forced to trust that commanders will provide the appropriate
resources to assist non-combatants. For example, when a pilot is ordered to conduct a bombing
raid that is in accordance with the laws of war, the commander ordering the attack, and not the
pilot, must ensure that the appropriate steps are taken to minimize the attack’s collateral damage.
Commanders should have a similar responsibility to minimize collateral damage during ground
combat operations.
All soldiers should attempt to minimize the extent of the collateral damage they incur until
medical personnel can take over care for the wounded. Consider the earlier example of the two
marines who applied utilitarian reasoning to justify shooting an innocent woman who was being
used as a human shield (Filkins 2003). If the woman had only been wounded, the duty to provide
care would demand action at multiple levels. The commander who sent the marines into combat
probably had good reason to believe that civilians might be injured because the marines were
moving through a populated area. His responsibility would be to assign medical personnel to
accompany the patrol, as the marines who took the shot were not in a position to order doctors to
come to the woman’s aid. The marines could use their basic life-saving skills to treat the woman
to the best of their ability until medical personnel are available. They would be responsible for
helping the woman until medical personnel could treat her and for protecting her during the
medical evacuation. This would lead wounded non-combatants to be treated in much the same way
as wounded allied personnel. This would impose higher cost on combatants, but as this chapter
has argued, this cost is morally obligatory and may have the strategic benefit of building support
among the civilian population in the combat area.
Conclusion
This chapter’s stringent requirements for the DDE and utilitarian justifications for inflicting
civilian casualties is likely to raise objections on the grounds that it is too demanding, that it is
at odds with military necessity, or that it is sometimes impossible to care for non-combatants.
Many of the circumstances in which the DDE and utilitarian justification are applied preclude
any direct medical assistance. They are often used to defend attacks against targets that are deep
behind enemy lines. Planes, artillery and missiles are frequently used to attack factories, bridges,
supply depots, enemy leaders and other important targets in areas that are either inaccessible or
extremely dangerous for medical personnel or medical evacuation. It is important to point out
that the requirement to assist civilian casualties does not preclude these kinds of operations; it
only places strict limitations on when they can be considered just. Militaries may carry out these
kinds of attacks, but they must be held responsible for finding ways to reduce the risk of collateral
damage and to overcome obstacles to render aid.
One might argue that the duty to provide medical assistance to non-combatant casualties limits
the scope of military operations and may require that military forces pursue suboptimal strategies.
However, this is insufficient to show that militaries should not be held to this standard. Many of
the widely accepted restrictions on the use of force already force militaries to pursue suboptimal
strategies and accept this limitation as necessary for protecting innocent lives, even when the
restrictions put soldiers at greater risk. For example, Walzer says that ‘[c]ivilians may be put at
risk by attacks on military targets, as by attacks on terrorist targets, but the risk must be kept
to a minimum, even at some cost to the attackers’ (Walzer 2006: 61). The addition to the DDE
and utilitarian justifications that this chapter has argued for may require that combatants pursue
suboptimal military strategies for the sake of reducing collateral damage, but this is a desirable
consequence of reducing the extent to which war violates non-combatants’ right to life or inflicts
undue pain on them.
The practical challenges of implementing the duty to provide medical care vary somewhat by
depending on the type of war being waged. It would be much easier to provide medical assistance
in counterinsurgency wars than in a major conventional conflict. It would be especially challenging
during total wars like the Second World War, when a country is in imminent danger, or when its
capacity has been reduced because of prolonged fighting. In cases such as these Walzer’s doctrine
of the supreme emergency can offer guidance for applying this duty to the DDE. Walzer argues that
countries facing an existential threat may, because they face a supreme emergency, override the
tenets of jus in bello, just as they are overridden when applying the DDE (Walzer 1992: 251–68).
The duty to provide medical care for non-combatants could similarly be suspended at times of
supreme emergency so that it does not impose demands that are so strong as to make countries
incapable of waging wars. Using supreme emergency to judge when the duty to provide medical
assistance can be suspended makes this a more practical duty to enforce during wartime. As
mentioned previously, the utilitarian calculus offers its own method of determining when the duty
to provide medical assistance may be suspended. When providing medical assistance would lead
to greater suffering rather than greater happiness then the duty would not apply. This would likely
lead to the duty being suspended in circumstances akin to those of a supreme emergency.
Although counterinsurgency and counterterrorism operations would generally not qualify
for exemption from the duty to provide medical care under the supreme emergency, they pose a
unique set of challenges because of the difficulty of discriminating between combatants and non-
combatants (Johnson 2008: 225). While the requirement to provide aid could inadvertently help
enemy combatants or prevent operations against them when they are populated areas, much of the
research on these operations suggests that this would not interfere with defeating insurgencies.
The population-centric approach to counterinsurgency, which is popular among scholars and
accepted as official doctrine by the US military, suggests that minimizing collateral damage is
essential to winning popular support (Kilcullen 2009; Joes 1992; The U.S. Army-Marine Corps
Counterinsurgency Field Manual 2007). This is true even when building support comes as at the
expense of limiting the military’s fighting power (Johnson 2008: 225).
As this chapter has shown, the duty to help non-combatant casualties is implied by the DDE
and utilitarian justifications for collateral damage. This duty should be recognized as an additional
requirement of both theories and applied whenever they are. It is important to remember that moral
duties do not end once an attack has taken place. More work needs to be done to explore the practical
dimension of the duty to provide medical aid to non-combatants and to define all of the secondary
duties for military and medical personnel. This chapter has traced a few of the implications, but
future work should deal more specifically with how medical aid should be provided, what kind of
help non-combatants should receive, and how casualty evacuations can be conducted.
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Chapter 3
Civilian Care in War: Lessons from Afghanistan
Peter Olsthoorn and Myriame Bollen
Introduction
Military doctors and nurses, employees with a compound professional identity as they are neither
purely soldiers nor simply doctors or nurses, face a ‘role conflict between the clinical professional
duties to a patient and obligations, express or implied, real or perceived, to the interests of a third
party such as an employer, an insurer, the state, or in this context, military command’ (London et
al. 2006). In the context of military medical ethics this is commonly called dual loyalty (or, less
commonly, ‘mixed agency’, see Howe 1986). Although other professionals in the military, for
instance counsellors or lawyers, might experience similar problems of dual loyalties, it seems that
the dual loyalties experienced by military medical personnel are particularly testing. In his article
on dual loyalties of military medical personnel, medical ethicist Peter A. Clark, for instance, writes
that:
Military medical personnel, especially in a time of war, are faced with the most ethically difficult
dual loyalty of doing what is in the best interest of their patient and doing what is in the best
interest of their government and fellow soldiers. This conflict has existed for as long as we have
fought wars. It is the most difficult because it is the state or the military exerting the pressure on
the medical professional. (Clark 2006: 571)
Clark’s description of military doctors working in Abu Ghraib and Guantanamo Bay contains by
now familiar examples of this dual loyalty problem, as does, less well-known, the research into
the functioning of Dutch military medical personnel in Afghanistan (Meerbach 2009; Bak 2010).
What became especially evident from that latter research was that, although most military medical
personnel were of the opinion that they could deal with moral dilemmas in a an adequate manner,
the way they in fact dealt with the dilemma, for example, helping or not helping members of the
local population with medication reserved for their own military personnel, differed very much
from person to person. For instance, where one medical worker would bend the rules somewhat
and use medical means earmarked for treating military personnel to help a local in need of medical
attention, another would not. Yet both would be equally convinced that they had done the morally
correct thing and would therefore feel no regrets afterwards.
Although medical personnel that face dilemmas such as the ones described above are able to
take a decision, and can provide arguments to account for it afterwards, the question is whether
that is sufficient in cases like these. As said, the decision taken, and the arguments to defend it
rendered afterwards, can vary greatly from person to person. To give an example: both the fact that
means should be saved for their own military troops that might need them any moment, and the fact
that helping locals could undermine the local health system, were brought forward as arguments
contra helping. Others conversely argued that helping locals increased goodwill, and could thus
lead to better information and more support from the local population which would, in turn lead to
more security for the troops (Meerbach 2009). Although these two lines of reasoning seem to be
of an opposite character, and lead to opposite conclusions, the arguments pro and contra helping
locals have in common that they are rather self-serving. The question is how bad a thing that is.
Most military colleagues of military medical personnel, considering military effectiveness most
important, will think it is not. Their medical colleagues from the civilian world, with their own
oaths and codes in mind, will probably beg to differ, holding that military medical personnel ought
to act from a strictly impartial ethos.
The next section will give a short overview of the military and the medical ethic, and of the
resulting dual loyalty problem for medical personnel working in the military. The section after that
deals with the question how these sometimes conflicting loyalties relate to being a professional,
something medical personnel are the paradigmatic examples of, but also something military
personnel claim to be. It is against that background that the two subsequent sections elaborate
on the medical rules of eligibility used in Afghanistan, and on the policies concerning military
involvement in local healthcare, to see what the existing rules and policies are, and whose interests
they serve.
Military and Medical Ethics: The Dual Loyalty Problem
Now, most manifestations of the military ethic as well as the medical ethic are quite consistent
as to whose interests are most important, though it seems that they point in different directions.
For example, if we look at the Hippocratic oath, no doubt the best-known professional oath, we
see that, although it comes in many varieties, the common denominator is that doctors should
work in the interest of their patients. In general, there is no mention of parties outside the doctor-
patient relationship, such as hospitals or governments. The military oath is different in this respect.
Although it also comes in many forms, it as a rule stresses loyalty to a head of state (‘I will
be faithful and bear true allegiance to Her Majesty Queen Elizabeth the Second, Her Heirs and
Successors’, UK Army and Marines), constitution (‘I will support and defend the Constitution
of the United States against all enemies, foreign and domestic’, US Army), republic and people
(Bundeswehr) or queen, laws and military law (‘I will obey to military regulations, uphold the law,
and be faithful to the queen’, Netherlands Armed Forces). The people at the receiving end (and
today that would, for instance, be the local population in Iraq or Afghanistan) are not included. For
military medical personnel the clear difference between the medical oath and the military oath, and
the conflicting demands that can result from that, testifies to the fact that a doctor or nurse in the
military serves in his capacity as a physician a different client to that in his role as a member of the
armed forces. For non-medical military personnel the client, if we want to use that term, is the state
or the people, not the local population in, for instance, Iraq or Afghanistan. For civilian medical
personnel, on the other hand, it is manifest that it is the patient who is their client, and no one else.
Similar to the difference between the military and the medical oath, the value lists of the
different armed forces mainly mention values (such as courage, loyalty, discipline and obedience)
that further military effectiveness and the interests of the soldiers themselves, their fellow soldiers
and the military organization (Robinson 2007). The values of the medical profession, formulated
by its professional organizations, give precedence to the patient and the doctor-patient relationship.
They state, for example, that the practitioner should always work in the interests of the patient,
refraining from prescribing treatment known to be harmful, and respecting the patient’s dignity.
Finally, if we look at codes of conduct, we see that military codes are often aimed at safeguarding
military personnel against pestering, sexual intimidation or discrimination. These codes are thus
Civilian Care in War: Lessons from Afghanistan 61
mostly about regulating the conduct of soldiers towards each other, rather than their conduct
towards those they are to protect. Codes of conduct for doctors, to the contrary, do emphasize
the interests of third parties, namely the patients, as do those of, for instance, the police. In fact,
practitioners of medicine have their own worldwide association, the World Medical Association,
with its own International Code of Medical Ethics. That code goes into great detail about the duties
of a physician to his or her patients but has little to say about duties towards colleagues. It specifies
that ‘a physician shall owe his patients complete loyalty and all the resources of his science’.
Not surprisingly, attempts to adhere to these two different ethics, medical and military, can –
and do – lead to conflicting loyalties in the case of doctors working for the armed forces. Military
medical personnel can, for example, be put in a difficult position when their presence during
unlawful interrogation is presented as in the interest of the detainee. Advising on the prisoner’s
physical limitations enables the interrogator to use, for instance, sleep deprivation without causing
lasting harm. Guantanamo Bay has been referred to as an example of doctors overlooking, not
reporting, advising, and even assisting in the abuse of detainees. In such cases, ‘military medical
personnel are placed in a position of a “dual loyalty” conflict. They have to balance the medical
needs of their patients, who happen to be detainees, with their military duty to their employer’ (Clark
2006: 570; see also Miles 2006). As we already noted in the introduction, different dilemmas of
dual loyalty arise when medical personnel must choose (and they regularly have to) whom to help
first: a seriously wounded insurgent or civilian or a somewhat less seriously wounded colleague.
Providing healthcare with the aim of bolstering the support for a military mission, that is, to win
the hearts and minds of the local population, is another source of tensions.
An International Dual Loyalty Working Group attempted a few years ago to resolve the
dilemmas military health professionals face by offering a set of ten guidelines (Dual Loyalty
Working Group 2002). The net result was basically a plea to give preference to the medical ethic
over military considerations, that is, to be loyal to the patient, under almost all circumstances.
Drawing on the findings of that working group, some have appealed for a rights-based framework
which represents ‘a priori moral reasoning that privileges the protection of vulnerable people from
state-sponsored harm, no matter the alleged justification’ (Meerbach 2009; Bak 2010), and for
civilian oversight by means of ‘a commission with membership that includes an adequate number
of civilian health professionals skilled in ethical issues and human rights’ (London et al. 2006:
388).1 Although recognizing that ‘in wartime, the exigencies of battle pose unique challenges
incomparable to the civilian context because of the scale of the threats to life, unpredictability, and
the levels of violence’ (2006: 385), and that under some circumstances military necessity justifies
deviating from what is normal ethical medical practice, these authors agree with the Dual Loyalty
Working Group’s first guideline that ‘the military health professional’s first and overruling identity
and priority is that of a health professional’, and hold that ‘medical ethics during wartime are not
fundamentally different from those applicable in peace’ (2006: 388–9). Benatar’s and Upshur’s
plan, in an article in the American Journal of Public Health, for a ‘totally independent’ medical
ethics tribunal that should make the decisions when dilemmas occur (the authors do not seem
to take into account the fact that there is probably not always time to ask the tribunal to rule a
decision) is somewhat similar: its deliberations should be guided by the principles of public health
1 This commission should provide ‘the needed balance in determining what kind of military necessity
justifies deviating from the norms of ethical medical practice’ (London et al. 2006: 388). There is fact some
reason to worry here, since under the guise of military necessity the idea of civilian immunity can be reduced
to ‘a useless garment’ (Slim 2007: 174). Necessity is a matter of interpretation, and that inherent ambiguity is
something with ‘enormous consequences for civilians’ (Slim 2007: 174).
issues solely (2008: 2166). As such, most of these solutions are more a denial of the tensions than
anything else.2
Professionalization and Loyalty
At same time, however, all these authors offering guidelines that put the medical ethic first are
very much in line with the opinion of the World Medical Organization, laid down in the WMA
Regulations in Times of Armed Conflict, and holding that there is no difference between medical
ethics in war and in peace. ‘Medical ethics in times of armed conflict is identical to medical ethics
in times of peace’, the WMA for instance states. ‘Standard ethical norms apply’, the WMA policy in
addition stipulates, and ‘the physician must always give the required care impartially’ – which also
implies that distinguishing between combatants and civilians is not allowed. This means that ‘if, in
performing their professional duty, physicians have conflicting loyalties, their primary obligation
is to their patients’.3 This is in accordance with the 1977 Geneva Protocol, specifying that ‘the
personnel taking care of the wounded that they shall ignore the nationality or uniform of the person
they are taking care of’ (Protocol I, 1977b, Art. 10, paragraph 453; see also Gross 2006: 137).
What the WMA and the Geneva protocols seem to ask for is a universalistic ethic (see also
Gross 2006), that is, an ethic in which everyone, friend or foe, counts for the same. They do so,
however, in a context of violent conflict where such an all-encompassing ethic is in fact a difficult
one to adhere to. Especially in war we cannot but expect to see little willingness on the part of the
political and military leadership to take the consequences to all parties into account equally – if that
willingness was there, there probably would not have been a war in the first place. In war, armed
forces argue, the principle of salvage (that is, returning as many soldiers to duty as quickly as
possible), not medical need, is, and should be, the guiding principle of all medical efforts. It is what
serves not only the military as a collective ‘fighting force’ best, but, in the end, also the survival of
the political community it serves. War thus transforms medical ethics (Gross 2006: 324). What is
more, the position of a practitioner of medicine in a civilian setting is, in essence, different from
that of military personnel deployed on a mission. The medical staff of a civilian hospital can put the
interest of their patients above everything else without putting themselves in harm’s way, whereas
military medical personnel cannot at all times act in the interest of the local population without
incurring more risks to themselves and to their colleagues.
For these reasons, and especially when we consider the fact that in the eyes of many the
predominant task of a defence organization is still the defence of its own territory, the strong and
exclusive emphasis on institutional loyalty in the military is perhaps not very surprising. Soldiers
are, generally speaking, above all concerned about their own safety and the safety of their colleagues,
which they (similar to politicians and the public) rate higher than that of the local population. They
act, to use the jargon, from agent-relative reasons and not from agent-neutral reasons, meaning that
the relationship in which the subject (stranger or colleague) stands to them matters (Parfit 1987: 27).
2 They also seem to deny that the moral dilemmas that military medical personnel face are in fact that:
dilemmas. What these solutions and their proponents instead seem to suggest is that these apparent dilemmas
are in fact tests of integrity: it is clear what is the right thing to do, yet there is considerable pressure (from
peers, or the prospect of furthering one’s own interest) to choose the wrong course of action (see Coleman
2009). Loyalty to colleagues seems to be nothing more than such a pressure. However, if loyalty amounts
to a value, and for most members of the military (including military medical personnel) it is in fact a rather
important one, than there is a dilemma again.
3 The WMA policy can be found at http://www.wma.net/en/30publications/10policies/a20/index.html.
This loyalty to colleagues and the organization (loyalty to colleagues seems to be a much stronger
motive for most military personnel than loyalty to the organization, though) is the part of the
military ethic that is most at odds with what a ‘regular’ professional ethic entail. In the past, some
have for that reason maintained that the military profession was ill-suited to develop into a ‘true’
profession (see for instance Van Doorn 1975).4 In light of that emphasis on loyalty in the military,
it is probably also not very surprising that when military medical personnel have to choose between
their responsibility for their patients and the demands of the military, they sometimes have their
obligations to their patients overridden by their sense of military duty (see also Clark 2006: 577).
It is possible, then, to reject the WMA standpoint out of hand as an example of utopian thinking,
as Michael L. Gross does in his Bioethics and Armed Conflict (2006). One could conversely argue,
however, that the attitude the WMA asks for – loyalty to one’s professional ethic instead of to
one’s organization, colleagues and countrymen – is nothing more or less than what is commonly
understood to be one of the key characteristics of a professional. As a result military medical
personnel are to deal with situations in which conflicting values – the safety of oneself and one’s
colleagues versus the safety of the local population, but possibly also between military virtues
and more civilian ones – impose conflicting demands on them. The next two sections attempt to
relate the theory to two practical examples already hinted at in the above: the treatment of civilians
and the military’s involvement in local healthcare, set against the background of the current ISAF
mission in Afghanistan.
Treating Injured Civilians
Due to the nature of today’s expeditionary missions, militaries are often confronted with local
nationals in need of medical attention, and although military health care’s primary role is to
conserve force strength, giving medical assistance to civilians has become an important component
of military operations (Neuhaus 2008). In fact, over the past decade, the majority of patients treated
by international militaries have been civilian patients (Neuhaus 2008). Today, ISAF personnel
are confronted on a regular basis by Afghans in need of medical help, and sometimes they have
injuries that are a result from the activities of ISAF or Afghan National Security Forces (ANSF).
In other cases, however, sick or injured Afghans will seek medical treatment from ISAF personnel
because civilian healthcare is either not there or not good enough. To avoid that commanders
have to decide for themselves whether or not to provide healthcare, an imposition that could be a
burden to them and something of a gamble for the Afghan seeking help, since 2006 NATO military
medical workers in Afghanistan have to work by the so-called Medical Rules of Eligibility, offering
4 An important factor contributing to the strong organizational loyalty in military organizations is that,
in fact, quite some conscious effort is made to ensure that military personnel become loyal employees, mainly
by meticulously socializing them into the armed forces (and, possibly even more so, their own service). This
socialization into the organization, instead of into a profession, is made easier by the fact that, where doctors,
but also lawyers, receive most of their formal professional training before entering their job (the oldest
profession, the clergy, forms possibly an exception), military personnel are predominantly trained in house.
Furthermore, professional associations, compared to similar associations in other professions, traditionally
do not play much of a role in the development of the profession (and as a result do not enhance loyalty to
the profession), as they mainly look after the material interests of their members (Van Doorn 1975: 36). As a
consequence, there are organizational values (in many forces still service specific), but, as yet, not really any
values of the military profession. Nonetheless, not many authors today seem to take issue with the view that
the military profession is, indeed, a profession.
guidelines for deciding whether or not to provide medical treatment to non-ISAF injured. These
Medical Rules of Eligibility include a flow chart offering three options: the injured person is (1) a
member of ANSF requiring emergency aid; (2) a non-combatant injured by conflict activity with
ANSF or ISAF troops; (3) a non-combatant and the injury is unrelated to conflict activity.5
In case of the first option, the injured person is treated in the casualty chain of the Coalition
Forces (ISAF or OEF). After treatment the patient is discharged or transferred to an Afghan
National Army (ANA) or civilian hospital. If it is a non-combatant that has injuries that are a
result of ISAF activity (the second option) the patient is also treated in the casualty chain of the
Coalition Forces, even if the injuries are not too serious. In such cases of collateral damage medical
support is given so as to not to lose the support of the local population (Bak 2010). Also, the rules
leave room to help someone (or his or her relative) important enough to be of future use to ISAF
(Bak 2010). After treatment the patient is either discharged or transferred to a local national or
NGO hospital. When the injured person is a non-combatant and the injury is unrelated to conflict
activity (the third option), treatment depends on the extent of emergency care required and the
spare capacity within the medical facilities of the Coalition Forces. If considered an emergency
and capacity is available the patient is treated within Coalition Forces’ medical facilities. In any
other circumstances the injured person is transferred to a local national or NGO hospital. As to
what amounts to an emergency the Medical Rules of Eligibility stipulate that civilians with injuries
unrelated to conflict activity are only to be helped in case of injuries that are threatening to life,
limb or eyesight.
In general, in these rules the interests of own military personnel (and Afghan National Security
Forces personnel) outweigh those of the local population. As a consequence, every so often Afghans
in need of medical attention will not be helped, even if the means to do so are probably there;
on a daily basis treatment of local nationals is refused or discontinued to keep enough capacity
for coalition soldiers (Leemans and Van Haeff 2009). As a rule such decisions are taken by the
military commander, not by the doctor; the latter, who has an advisory role, is thought to be less
prone to take the operational interests into account (Bak 2010).6 This partiality in the provision of
healthcare can pose moral dilemmas for the medical personnel involved (Meerbach 2009), who
face the choice between following the military line by strictly abiding the rules on the one hand,
or taking a more lenient view on the rules, and thus acting upon their medical professional ethic,
on the other. They, for instance, have the option to use means available abundantly (bandage, for
instance), or to exaggerate wounds (and categorize them as threatening to life, limb or eyesight).
One Dutch doctor somewhat overdid it by characterizing a harelip as life threatening (Bak 2010).
Reasons for taking a fairly lenient view were divers. For instance, an infant at the gate with non-life
threatening appendicitis will, if sent away, develop into a case needing emergency help in a day or
so (Bak 2010). The wish to keep in practice, and avoid inactivity, was also mentioned as reasons
for taking a merciful view were. Newer versions of the Medical Rules of Eligibility tend to be more
5 Non-combatants not only include the local population, but also media, contractors, personnel attached
to UN agencies and humanitarian workers (Neuhaus 2008).
6 Notwithstanding the fact that not all patients were eligible, in the Dutch-led Role 2 hospital in Uruzgan
approximately 90 per cent of the patients treated were Afghans. The treatment of non-combatants with injuries,
regardless whether they resulted from conflict activities, poses some problems, the foremost being that ISAF’s
medical services are to support the mission by treating soldiers who generally are fit, healthy, and young,
whereas local civilian patients include the elderly, children, and disabled; the kind of patients, obviously, the
military casualty chain is not designed for. To provide proper care to such patients military nurses and doctors
needed special medication, food and rooms to temporarily house the patients’ relatives.
specific in order narrow down the room left for interpretation – something also medical workers
seem to welcome (Bak 2010).7
Military Involvement in Local Healthcare
In his article on dual loyalties, already referred to in the above, Clark poses the question whether
there is ‘a need for guidelines to be established that assist military medical personnel in dealing with
the issue of “dual loyalty”’ (2006: 571) As we have seen in the previous section, the answer has to be
that such guidelines are, in fact, often already there, at least as far as injured civilians are concerned.
However, as regards Clark’s second, seemingly harder question – what should the guidelines for
military medical personnel be? – medical professionals might wonder whether the present rules of
eligibility sufficiently take into account the interests of all parties involved. However, in recent years
we have seen military personnel serving in a different capacity; not as medical personnel that should
attend to the medical needs of own military personnel first, but taking part in projects that specifically
aim at building goodwill by providing medical care to the local population. As we will see, these
at first glance fairly humanitarian efforts can be subject to dual loyalties too, insofar as they are not
undertaken as something worthwhile by itself, but as something that should help to attain the goals of
a particular mission, as indeed seems to be the case.
The recent operations in Iraq and Afghanistan, in particular, have led to a revival of counter-
insurgency thinking that emphasizes the importance of increasing the legitimacy of the host nation
authorities. Something that is to be accomplished by the ‘winning of hearts and minds’ of the local
population (Egnell 2010), for instance by using military medical capacity to improve healthcare for
the local population.8 This mainly takes place under the headings of Medical Civic Action Programs
(MEDCAPs) and of medical engagement. The first, MEDCAP, is commonly used in NATO as the
generic term for the use of military medical capacity to provide healthcare to members of the
local population in remote areas. A medical engagement refers to a medium or long-term medical
assistance project without direct patient contact. Typically, a medical engagement may consist
of a public health engineering project (such as the construction of a clinic), a health education
or clinical mentoring project, or a project involving the distribution of health-related ‘consent-
winning’ items (for example, spectacles, shoes or vitamins).
These MEDCAPs and medical engagements form the most visible military contribution to local
healthcare, and they seem to fit well into the classification of hearts and minds operations as ‘a
distinct category of tactical activities – separated from traditional military tasks’ (Egnell 2010). For
instance, according to ISAF’s standard operating procedures MEDCAPs and medical engagements
offer an opportunity to build trust with the Afghan people, develop ANSF medical and CIMIC
public health capability, and assist the Afghan government to deliver visible benefits.9 The primary
7 In practice, the degree and nature of care contributing nations provide, and the number of patients
treated, can vary considerably. While the Dutch in Uruzgan referred all non-combat and non-critical patients
to the local provincial hospital, the US hospital in that province abided by less strict rules, thereby attracting
many local nationals preferring US military healthcare over the care provided in the provincial hospital.
8 The British field manual on military support to peace support operations refers to hearts and minds
activities as programmes or projects in the field of humanitarian affairs or development for which commanders
can receive funding (UK Ministry of Defence 2004).
9 Since training and development of ANSF is a main objective of ISAF, MEDCAPs and medical
engagements are conducted jointly with ANSF medical teams in order to develop local military medical
experience.
objective of MEDCAPs and medical engagements is therefore the promotion of support for ISAF
and the Afghan government by providing practical assistance to the local population. Improving
the health of the population in line with the Afghan government’s public health strategy is only a
secondary objective.10
It is especially this combination of the aims of security for the troops and healthcare for the
local population that can lead to tensions and dilemmas.11 For instance, a report on a US MEDCAP
in Iraq in 2003 states that:
Understandably, the operational objectives were pacification of threats to US forces and community
stability by showing cooperation in humanitarian deeds. Counter to intuition, the provision of
medical care only was a collateral benefit. The recognition that the task primarily was one of public
relations was philosophically important to all parties involved. (Malish, Scott and Rasheed 2006)
A result of the fact that improving healthcare was not the main objective of these activities was
that the:
perception of success of the MEDCAP II program was widely divergent between operational and
medical personnel. Command had no means by which to judge the quality of medical care or
the effects of the care on popular opinion. As such, numbers-treated became the rubric by which
success was measured, and thus, the goal of future iterations. Medical personnel, on the other hand,
became disillusioned. Physicians were hobbled by limited histories, scores of healthy ‘patient’,
the absence of diagnostic testing, and, most importantly, the lack of follow-up. Some believed that
the program ‘violated basic ethical standards of medical care’. (Malish, Scott and Rasheed 2006)
Helping locals with an eye to furthering operational goals is thus a source of frustration for
medical personnel. Their ethic prescribes that patients are important as such, and that care should
be provided independently of ‘what is in it for us’. Such experiences are a further illustration of
the fact that the military medical personnel do not always consider military effectiveness to be
their sole or even primary interest. In this case they seem to have been disillusioned about the fact
that they could not provide local nationals with healthcare that meets their professional medical
standards.
10 Nonetheless, in Uruzgan various medical engagements undertaken by Dutch military personnel
focused on capacity building. To target maternal mortality the Dutch contingent set up a special training to
increase the quality and number of midwives in Uruzgan. In addition, personnel of the provincial hospital in
Tarin Kowt were given training on a regular base (Rietjens 2010).
11 Aside from the not insignificant fact that the whole enterprise all seems to be built on shaky causal
assumptions regarding the connection between aid and stabilization (Wilder 2008). It is, for instance, not that
certain that the provision of health services really contributes notably to a population’s willingness to view
its government in a more favourable light (Waldman 2007). Wilder (2008) points out that the contemporary
interpretation of winning hearts and minds in a setting of comprehensive approaches to stabilization and peace
building has created a number of questionable assumptions regarding the links between stabilization and aid.
First, it is assumed that reconstruction efforts have stabilizing effects on conflict. It is thought that aid will
lead to economic development which in turn, will bring about stability. Second, aid projects are assumed to
help win the hearts and minds and thereby increase support for the host government and for the international
presence. Third, extending the reach of the Afghan government is assumed to contribute to stabilization.
However, Wilder’s research in Afghanistan indicates that all these causal assumptions underlying today’s
hearts and minds approach may be false (2008).
On a more general plane, the fact that military involvement in civilian healthcare is undertaken
for other reasons than providing healthcare to those who need it raises the question of whether
military healthcare activities that may seem to meet local needs on the short-term, can conflict
with reconstruction principles such as sustainability and capacity building. Although the ISAF
guidelines state that all MEDCAP and medical engagement activities should be planned in
conjunction with the provincial Director of Public Health (DPH), this unfortunately not always
happens. Many MEDCAP and medical engagement activities are still carried out in isolation from
the local government and NGOs. Most of these efforts have a short-term focus, are more concerned
with the quantity of people reached than with the quality of care provided, and can undermine the
trust of the local population in their own health care system (Alderman, Christensen and Crawford
2010). As expeditionary missions are conducted temporarily, the provision of military healthcare
to civilians is inevitably only for the time being, and often there will be little impact that is going
to endure beyond the end of the mission. So, notwithstanding the fact that both the World Health
Organization (WHO) and the Afghanistan Research and Evaluation Unit (AREU) point to the
long-term nature of reconstructing Afghanistan’s health sector, Western militaries provide the
Afghanis with no more than temporary health care, whereas civilian organizations as a rule plan
to stay in the area for a period of five to ten years. What is more, since military units are primarily
responsible for security, there is always the chance projects aimed at the development of healthcare
will be terminated abruptly if the security situation deteriorates (Rollins 2001).
It therefore seems that short-term military reconstruction interventions to increase stability and
legitimacy in the countries of deployment, as well as the acceptance of the international presence,
can be inconsistent with and, even undermine, long-term development (Rubenstein 2009). In the
health sector particularly, short-term engagements should be considered carefully since improved
health outcomes are reversible if access to services is interrupted, unlike for instance, gains in
education.12 Moreover, when future military contingents cannot maintain comparative levels of
care, civilian expectations may be thwarted, which in turn might lead to security risks for own
troops. Also, NGOs report that services run by or in conjunction with the military, for instance
in Afghanistan, can endanger the population as well as local and international service providers
(Rubenstein 2009; Rietjens and Bollen 2008). As soon as insurgents understand that a health
intervention is designed for strategic purposes, health facilities and workers will in all likelihood
become a target (Ryan 2007), jeopardizing the safety of development projects and personnel in the
vicinity (Rubenstein 2009). In areas in Afghanistan where the Taliban are strong ‘the challenges
of implementation are nevertheless beyond the humanitarian and development competences of
the military’. For example, in the Korengal Valley newly constructed clinics were destroyed the
moment they were finished (Egnell 2010).13
12 It is for such reasons that the development community has argued that both humanitarian principles
as well as principles of (health) reconstruction, such as ownership, sustainability and capacity building, risk
to be sacrificed by military involvement in healthcare reconstruction in an attempt to attain military strategic
advantages (Rubinstein 2009).
13 Not surprisingly, both within the military and the humanitarian community there are serious doubts
concerning the utility of military engagement in humanitarian and development projects (Egnell 2010).
Canadian Major-General MacKenzie is reported to have said that ‘soldiers are not social workers with guns.
Both disciplines are important, but both will suffer if combined in the same individuals’ (Adinall 2006). The
aid community, holding that improved health care should not be a mere means to achieve political stability but
is something that is in itself worth striving for (Waldman 2007), seems to agree for at least two main reasons.
First of all, the military often lack humanitarian expertise, experience, and training needed to conduct these
types of activities effectively. While providing healthcare impartially to those in need forms the essence of
It is mainly because of these concerns that, while very popular during the first years of the
operation in Afghanistan, much fewer MEDCAPs are carried out nowadays. General Petraeus,
for instance, stated in a letter of 9 November 2010 to ISAF commanders that MEDCAPs should
only be used in areas where there is no health care provision and when it can be sustained until
others take over. For the rest, MEDCAPs should be avoided, although Petraeus (and the ISAF
Standard Operating Procedure on Military Medical Engagement in Health Sector Reconstruction
and Development) makes one important exception: that is when ‘force-protection considerations
outweigh the potential harmful effects’ (Petraeus 2010). If that is the case, MEDCAPs are still
acceptable, and that again seems to suggest that, in the end, as far as militaries are concerned, and
in spite of how their own military medical personnel might feel about it, considerations of military
effectiveness prevail in military medical ethics.
Conclusion
The concerns regarding MEDCAPs, and General Petraeus’s pragmatic response to those concerns,
but also the dilemmas experienced by military medical personnel when they have to decide on
the treatment of local nationals, illustrate that behind the many moral questions military medical
personnel face today is the conflict between loyalty to a group – one’s colleagues or organization –
on the one hand and a more universal ethic on the other hand. In general, the interests of colleagues
and the organization win through. The two cases elaborated on in this chapter show that there
are rules and policies to assist military medical personnel in their work, but also that these rules
and policies do not equally weigh the consequences to all parties. The rationales behind today’s
‘hearts and minds’ approach are, for instance, to a large extent self-serving. Winning over the
local population is considered essential for the success of today’s missions, as it is thought to yield
better information and more cooperation from the local population, and thus, in the end, increased
security for the troops. That seems to suggest that current efforts to improve the healthcare situation
of the local population in Afghanistan might come to a halt if the expediency argument no longer
carries much weight. At first sight, that might seem a rather dismal conclusion. Yet, as it stands, the
largest part of military codes, oaths, value systems and culture seem antagonistic to the idea that
the plight of local civilians counts for the same as that of a Western soldier. Military effectiveness
and loyalty to organization and colleagues still hold central place in the military ethic (Robinson
2007), and hence also in the military medical ethic.
This ethic took shape, however, at a time in which the interests of the local population played a
lesser role, as the main task of Western militaries was the defence of their own territory. It is evident
that the tasks of most militaries have widened in scope, which essentially means that they have to
deal with more than just opposing forces, and one might expect that, with the shifting nature of
the medical oath, some worry whether military medical staff have the necessary humanitarian expertise to
perform these ‘good deeds’ in the right way. Although the military may command a part of the necessary
resources, it perhaps does not know how to put their resources to good use (Bollen 2002), with the result that
military projects in the sphere of development and humanitarian affairs often underperform in terms of cost-
effectiveness and sustainability (Egnell 2010). Secondly, by engaging in these projects, militaries are blurring
the lines between military and civilian actors. Both recipients of aid as well as the conflicting parties may find
it difficult to distinguish between providers of assistance and combatants: ‘if the humanitarian community is
associated not only with the intervening powers, but also with the political and military agendas of the larger
intervention, the humanitarian space – access to suffering communities on both sides of the confrontation line,
based on the humanitarian principles – risks being eroded’ (Egnell 2010).
warfare, from wars of self-defence to humanitarian interventions, military necessity may play less
of a role in the future (see also Gross 2006: 330). In today’s operations, the combined forces of
law, politics, an increased moral sensitivity, public opinion, and extensive media coverage, both
at home and abroad, put increasing pressure on military personnel to take the interests of others,
rather than just the organization and colleagues, into account; in recent years more so than ever
before (Cook 2004; Olsthoorn 2010). Although this poses questions and dilemmas for military
medical personnel they were not likely to encounter in earlier days, one might also ask the question
whether, at a time that many armed forces consider the promotion of universal principles as their
main ground for existence, the development of a more encompassing military medical ethic, with
the main focus of loyalty being the professional ethic instead of the organization, is still too far-
fetched.
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Chapter 4
The Limits of Impartial Medical Treatment
during Armed Conflict
Michael L. Gross
Impartial medical care is one of the most enduring norms of modern warfare. The Geneva
Conventions (1949, Article 12) clearly stipulate: ‘only urgent medical reasons will authorize priority
in the order of treatment to be administered’. To remove any possible doubts, the commentary to
the Conventions (1949, Article 2, para. 2A) makes the following teaching point: Each belligerent
must treat his fallen adversaries as he would the wounded of his own army. At first glance, this
is an odd sentiment. It would not apply to foreign aid, for example. Nations have no obligation to
treat citizens of other countries as they do their own. Nor would it apply to those injured outside
war such as refugees who seek medical care in wealthy nations. There is no obvious duty to
provide the same care to foreigners that a nation offers its own citizens. On the contrary, the duty
to aid foreigners is usually anchored in beneficence and requires states to provide aid only insofar
as the cost is reasonable and the needs of compatriots are met first. Because it is difficult to meet
compatriot needs entirely, beneficence is at best a weak duty where nations graciously set aside the
demands of their citizens and tend to the world’s neediest. Given the limits of beneficence, perhaps
reciprocity provides the answer: a nation cares for wounded enemy soldiers as their own so their
enemy will do the same. The Geneva Conventions apply only to enemy soldiers and during armed
conflict medical care is a provision of mutual aid: we will treat your wounded and you will treat
ours. That way each side can preserve its fighting force and enhance the morale of its soldiers.
While reciprocity and beneficence capture some of the rationale behind the laws of armed
conflict, the imperative to provide need-based medical care impartially transcends both. Medical
professionals treat those in need neither to gain treatment for others nor satisfy charitable impulses.
Instead, utilitarian concerns often prevail: treating the neediest patient first best enhances the benefits
that medicine can provide. As any serious health care debate shows, however, the neediest patient
is not necessarily the sickest. Saving lives for some does not necessarily outweigh improving the
quality of life for others. This is particularly true when those facing life-threatening illness are very
old or very sick and/or in need of very expensive treatment.
However these competing interests are juggled, the choices health care systems make about
which illness to treat should remain unaffected by a patient’s personal identity whether enemy, ally
or compatriot. This is a fundamental corollary of health care as a human right, and holds regardless
of any other attribute a person may possess. Identity based care violates the ‘principle of fair
opportunity’ (Beauchamp and Childress 1994: 342) stipulating ‘that no persons should be granted
[or denied] social benefits on the basis of undeserved advantageous properties (because no persons
are responsible for having these properties)’. A patient’s personal identity or personal relationship
to the doctor or nurse is morally arbitrary in this sense; it does not and cannot confer any right to
receive prior care because the patient is not in any way responsible for these aspects of his identity.
Patients, therefore, expect fair and unbiased treatment solely dictated by their medical condition.
Doing otherwise undercuts the trust that patients confer on physicians, impairs the integrity of the
profession and violates the covenant between physicians and the community that requires health
care professionals to abjure any personal interest in the patient and use their skills solely for the
interests of the sick (Pellegrino and Thomasma 1993: 36–7).
Nevertheless, national identity and national interests can be very important. In general, health
care must compete with other social goods such as education, welfare and national security. While
medical care for the neediest enhances the benefits that medicine provides society, it may fall short
of improving overall social utility if other areas are neglected. Life-saving care may, therefore, be
set aside for treatment that improves quality of life but also for more schools or aircraft carriers.
National security and military necessity may demand that medical personnel first treat soldiers
who can return to duty before treating the critically ill and so relegate severely enemy wounded
to the end of the line. The practice of medicine may be blind to national identity but social utility
is not. Nations are bound to care for and protect their citizens first. This concern is not merely
emotive. Prior care for compatriots preserves the integrity of the political entity, namely the state,
best suited to safeguard human security and development. Similar principles prevail in peacetime:
while no national health care system may discriminate among its citizens, it may surely exclude
foreign nationals who come knocking at the door. As in war, the welfare of one’s own often comes
first. The duty to care for compatriots may also upend the covenant solemnizing the relationship
between doctors and patients. While this covenant defines the rights and duties of physicians,
it coexists with other social covenants, rights and duties. Most vexing are those that stipulate
preferential, not impartial, care for family members and friends. It is not always easy for health
care professionals to sidestep these conflicting duties.
Reservations about impartial care are particularly salient during armed conflict where at least
three circumstances mitigate the force of the Geneva directives: military necessity, two-tiered
care in a battle zone and the ethics of comradery. First, military necessity may direct medical
workers to triage patients based on their fitness to fight rather than urgent medical need. This
radically discriminates against enemy wounded. Second, a state army cannot always provide the
same level of care for its compatriots, allies and enemies because medical resources are scarce.
In Iraq and Afghanistan, for example, the US Army established a two-tiered medical system that
offers significantly superior care to American soldiers and detainees than to Iraqi or Afghan allies.
Finally, and regardless of available resources, an ethics of care and comradery reinforce special
obligations among compatriot soldiers that may require some medical personnel to treat their
own comrades first regardless of medical need. All these circumstances lead us to reconsider the
principle of impartial care.
Military Necessity, Medical Care and Return to Duty
Military necessity highlights the means of war that nations must adopt to preserve the welfare
of the state, its army and its citizens and offers a cogent exception to treating soldiers based on
urgent medical need. All military medical organizations recognize that battlefield circumstances
may demand that physicians dedicate scarce medical resources first to those they can return to duty
and only then to those whose lives and limbs are at risk. An oft cited case describes ‘penicillin
triage’ during WWII when, in 1942, military physicians used scarce penicillin to cure gonorrhoea
stricken soldiers and return them to duty before treating those with more extensive battlefield
injuries who would never return to battle (Gross 2006: 138–41). More recently, British medical
personnel prepared guidelines for conventional triage and mass casualty triage during the Falklands
War. Conventional triage emphasizes medical need, caring first for those requiring immediate
The Limits of Impartial Medical Treatment during Armed Conflict 73
resuscitation or surgery and only then for those whose wounds are less severe. Mass casualty
triage reverses the order when ‘an overwhelming number of seriously injured … are placed upon
locally available medical facilities quite unable to supply normal medical care for them’. Under
these conditions, patients who require ‘some form of surgery to save life and limb, short operating
time and have good quality survival’ take precedence over those with ‘serious and often multiple
injuries’ who need difficult and time consuming treatment (Marsh 1983; Ryan 1984; Ryan, Sibson
and Howell 1990).
Penicillin triage and related instances of mass casualty triage are instructive because they
describe how military necessity may override urgent medical need. In these cases, medical workers
treat the less injured first to prevent troop degradation, conserve their forces and bolster the war
effort. In all these cases, however, the soldiers in question are compatriots. For them, the principles
of mass casualty triage offer a significant benefit: victory in war. For this reason, one may presume
that compatriot soldiers and their families also consent to preferential treatment for those less
wounded when resources are scarce and military success is on the line. Furthermore, there is a
broad presumption that soldiers, upon enlistment, consent to and understand that military needs
trump personal interest and well-being (Visser 2003). Utility and consent are two very powerful
justifications for preferential care.
But what happens when some of the soldiers are enemy wounded? May their interests be
shunted aside in the name of military necessity? During WWII the US government thought so
when it allocated 85 per cent of available penicillin stocks to the US military, 15 per cent to civilian
hospitals and 0 per cent to treat POWs (Adams 1989). How might this be justified? Preferential
treatment for those who can return to battle certainly offers enemy wounded no benefit nor,
presumably, would they give their consent.
The claim of enemy wounded to receive medical care is similar to the claim of any moral agent
who requires aid from those who can provide it. This claim is not absolute nor does it entail that a
rescuer offer aid to others that is equal to what he needs for himself. Fleshing this out is not easy but
it seems clear that while the duty of beneficence ‘cannot be so drastic as to require the sacrifice of
all a person’s projects [or require] … fundamental changes in the fabric of his life’ (Weinrib 1980:
290). When rescuing agents are states, a similar condition holds: while states may be called upon
to aid those in need, no state may be required to relinquish resources at the expense of its well-
being, broadly conceived as the material resources necessary to maintain its political and economic
institutions. When these institutions are threatened during war, for example, there are grounds to
prefer treatment of compatriots who can return to duty. When resources are scarce, impartial, need-
based care impinges on a state’s ability to wage war effectively and constitutes an unreasonable
burden thereby mitigating obligations to enemy wounded.
Since enemy soldiers do not benefit from an allocation scheme that emphasizes return to duty,
there is no reason to think they will consent. Nor is consent required. For a compatriot, preferential
treatment for the less wounded infringes on the right of a more seriously wounded soldier to receive
medical care from his community. By consenting to allocation scheme that prioritizes return to
duty, a wounded soldier waives his right to medical care based on need. For the non-compatriot,
however, consent is not necessary to justify preferential treatment for others. A stranger does not
have the right to receive the same need-based care as the members of the state that cares for him.
He only has a right to receive medical care when sufficient resources are available so that care for
strangers does not overly burden the rescuer.
There are several important caveats to this understanding of preferential treatment. First,
preferential treatment for compatriots does not mean that enemy wounded cannot complain about
abject neglect, mistreatment or abuse. I will return to these points later. Second, the conditions for
mass casualty triage: shortage of medical supplies, overwhelming casualties in a very short period
of time and the immediate threat of troop degradation come together only rarely (Beam 2003;
Vollmar 2003: 755; Adams 2008). As such, military necessity suggests only a defensible exception
to the rule expounded in the Geneva Conventions. Rare exceptions do not invalidate the underlying
principle of medical impartiality but merely set it aside in extreme situations. The more morally
complex cases are those where resources are sufficient to treat all, but medical personnel choose
to treat injured compatriots before enemy wounded regardless of the severity of their wounds. In
doing so, they do not appeal to military necessity but to the duties of friendship and comradery. I
discuss these cases in the sections that follow.
Finally, it is important to remember that impartial care based on the principle of military
necessity is only limited to soldiers who can return to duty. When deciding among compatriot and
enemy patients who are all so critically ill that even the compatriots among them cannot return
to duty, there are no grounds for preferential treatment based on military necessity. Military
necessity only permits preferential treatment for those who, after treatment, can contribute to
a war effort. If they cannot, then their status is no different from enemy wounded. For them,
medical need alone will determine priority of care, moderated, perhaps, such considerations as
compliance and the availability of follow-up care. Within a national health care system where
all the sick and injured have access to similar care, post-injury follow-up care will not affect the
initial course of treatment. Follow-up care, or more specifically lack thereof, can, however, be
an important criterion of initial care in military medicine. This happens when compatriot troops
fighting abroad have access to superlative medical care while their local allies, that is ‘host-
nation’ wounded, have access only to limited resources and paltry care. This is precisely the state
of affairs in Iraq and Afghanistan.
Two-Tiered Medical Care in Iraq and Afghanistan
To support its soldiers, the US Army provides medical care at several echelons. At echelon I combat
medics in the field and/or a physician or physician’s assistant in an aid station provide first aid and,
when necessary, evacuation to an echelon II facility. At level II, a 20-person Forward Surgical
Team offers immediate treatment, surgery and evacuation to an echelon III, Combat Support
Hospital (44–248 beds) for orthopaedic, thoracic, oral and maxillofacial surgery, intensive care
and psychiatric treatment. However, the number of beds in these facilities is extremely limited.
For example, there were only 274 operational beds in Iraq between November 2006 and July
2008 (Richardson 2008: 49). When necessary, therefore, the wounded are referred to a full service
trauma centre in Landstuhl Germany (echelon IV) or to Walter Reed Medical Center in the US
(echelon V) (Nessen et al. 2008; Office of the Surgeon General 2008: 3–6).
While this system is designed to provide the best possible care for US soldiers, American
medical facilities also care for detainees, ‘host-nation’ soldiers and local civilians wounded during
American operations. While severe American casualties have access to superior medical facilities,
local casualties (with the exception of detainees who remain under American care), must turn to
a poorly functioning and under equipped local system. In both Iraq and Afghanistan, repressive
regimes and war have decimated the health care system as nurses and doctors fled the country and
facilities fell into disrepair (Library of Congress 2006: 8; WHO 2006). Substandard follow-up
care compels US military physicians to limit or modify their treatment protocols when treating
host-nation soldiers and civilians. This can significantly affect the initial treatment that physicians
choose and effectively creates two-tiered system that allocates care based on nationality. Because
advanced reparative surgery, surgical implants, prosthetic devices and facial reconstruction are
not available to Iraqi or Afghani wounded, host-nation wounded will undergo amputation, in-
theatre plastic surgery or less sophisticated interventions while US soldiers are evacuated for care
unavailable to host-nation wounded (Nessen et al. 2008: 65–9, 223–37; Rosenfeld et al. 2006;
Filliung and Bower 2010; Bridges and Evers 2009).
Host-nation causalities also strain US medical facilities. While physicians will evacuate
seriously wounded Americans for continued care, they must either discharge host-nation wounded
or try to treat them in facilities that were never intended for long-term care. Paix, for example,
describes how one combat support hospital provided two weeks of intensive care for 12 ventilator-
dependent quadriplegic Iraqi patients ‘who will inevitably die when transferred to a local facility
that cannot manage a tracheotomy, or provide tube feeding or pressure area care’. This, in his
opinion, ‘subjects patients to futile care, wastes resources … leads to facility overload, puts staff at
risk and compromises the medical facility’s ability to provide First World care for Coalition forces’
(Paix 2006: 26). The outcomes are stark: first-world care for coalition forces; third-world care for
host-nation wounded.
In one sense, this is not legally or morally problematic because host-nations civilians are not
entitled to the same kind of care that occupying armies provide their soldiers. The 4th Geneva
Conventions, Articles 55 and 56 require an occupying power to only provide the civilian population
with medical supplies and services ‘to the fullest extent of the means available to it’. This makes
sense. As an intervening military power, the US cannot afford to provide sophisticated health care to
a large Iraqi or Afghani civilian population. Nor is there an obligation to do so. The obligation that
comes with occupation draws on the duty of an occupying army to care for those under its control
and provide medical services ‘to the fullest extent of the means available to it’. For occupying
armies, the means available are most likely those left over after other urgent military and ‘material’
needs have been met (Commentary, 4th Geneva Convention, Article 55: 310). In practice this
might demand something similar to what wealthy nations provide poorer countries in humanitarian
aid and reflects minimal level of health care that includes preventive medicine, vaccinations,
health education, prenatal and maternity care, basic ambulatory and emergency care and treatment
for acute and life-threatening diseases, acute non-fatal diseases where treatment restores one to
previous health and chronic non-fatal illnesses that require one time treatment (Bobadilla and Peter
1995; Ham 1997; Segall 2010). These are interventions that preserve or restore a reasonable level
of functioning for as many as possible at the least cost and are not far from US directives in Iraq
and Afghanistan save the ‘life, limb or eyesight’ of host-nation wounded (Richardson 2008; Beitler
et al. 2006) while working to improve the level of care across the country for all civilians (Enemark
2008; Zahoor et al. 2011).
Host-nation soldiers, however, are not civilians. They fight alongside American and Coalition
troops but receive second tier care that is inadequate to help severely-wounded host-nation soldiers
suffering from chronic non-fatal injuries such limb loss and traumatic brain injury. These are the
bane of war and there is little in the basic schemes of care outlined above that would ensure their
continued care. Detainees and enemy combatants, on the other hand, receive care nearly identical
to that provided to Coalition forces. Something is amiss here. Why should enemy soldiers receive
better care than allies? Do allies deserve the same care as detainees or, do detainees deserve the
same care as occupied civilians and allied soldiers? The answer, I think, is yes to both questions:
detainees, allies and occupied civilians all deserve the same level of care but one that is necessarily
inferior to the care Coalition soldiers receive.
Equal Care for Detainees and Allies
Complying with the Geneva Conventions, the US extends medical care to detainees and wounded
enemy combatants on par with what US and Coalition personnel receive (Sargent 2008; Patton
2009; DOD 2006: 4.1.2). When needed, detainees receive all necessary care at combat support
hospitals but are not routinely airlifted to treatment facilities in Germany or the US (Nessen et
al. 2008: xxi). Nevertheless, the level of care afforded wounded enemy combatants significantly
exceeds that which host-nation soldiers receive.
One is then faced with the stark dissonance that comes when detainees receive better care
than allies. Legally, of course, this is the outcome when treaties protect prisoners of war but say
nothing about the care due allies, assuming perhaps that allies can work this out on their own
while enemy combatants are vulnerable and require protection. Certainly this might have been
true in conventional wars between nation states, but modern asymmetric wars are different in
two important ways. First, reciprocity is no longer a major incentive for belligerents. In the past,
concern for one’s own captives motivated belligerents to take good care of enemy prisoners of war.
But today very few Coalition soldiers fall prisoner so there is no reason for a mechanism whose
purpose is to ensure quality care for one’s own captured soldiers. Second, many enemy detainees
are not innocent in the relevant sense that one usually accords soldiers fighting for state armies.
Ordinary soldiers are not criminals. If captured they are not tried or executed but incarcerated and
then repatriated when hostilities end. In asymmetric war, on the other hand, some belligerents are
terrorists while others may be fighting at the behest of an illegitimate, criminal or genocidal regime.
Upon capture many of these combatants are incarcerated to wait for trial. While this does not mean
that they forfeit any of their fundamental medical rights to care and protection it does suggest that
they do not merit better care than host-nation soldiers fighting alongside Coalition forces.
Treating host-nation soldiers and enemy detainees equally can take one of two forms. One
is to offer host-nation soldiers the same care as detainees and Coalition soldiers. This certainly
accords with a sense that allies deserve the same level of care as detainees. However, the numbers
are daunting. For example, the 62nd Medical Brigade in Iraq describes how it provided care for
170,000 US and Coalition forces, 150,000 contractors, Iraq Army and Iraqi Security Forces, local
nationals, and 28,000 detainees in 2008 (Sargent 2008). The US and Coalition forces and detainees
received first tier care and the others second care tier. Providing equal care to all nearly doubles the
patient base. Whether this is feasible depends upon whether the burden of equal care undermines
the standard of care that Coalition forces owe their own soldiers. Moreover, one must ask whether
seriously wounded soldiers have a stronger right to health care than seriously wounded civilians. I
have argued elsewhere that they do not: absent the prospect of returning to duty there are no grounds
prefer seriously wounded soldiers over seriously wounded civilians (Gross 2008). If seriously
wounded host-nation soldiers deserve the same care as Coalition forces and detainees, then so do
seriously wounded civilians of any stripe. This is not only onerous but beyond the obligation of
any occupying army to provide the local population with the health care necessary to preserve or
restore a reasonable level of functioning for the greatest number at the most affordable cost.
In these circumstances, an occupying army can only strive to deliver the same minimum
standard of healthcare to host-nation civilians, soldiers and detainees alike. These efforts accord
with the moral obligation of occupation. Offering equal care to save the life, limb and eyesight of
detainees and host-nations soldiers also accords with the moral status of the two. Detainees have
no superior right to medical care and, therefore, the three categories of host-nationals – civilians,
soldiers and detainees – warrant a similar standard of medical care. Beyond a constant effort to
rebuild local health care institutions, equality of care demands that an occupying power transfer
detainee care to the host-nation as the US did when it signed the Status of Forces Agreement
(SOFA) with Iraq in 2008 and should do in Afghanistan at the earliest possible date (SOFA 2008,
Article 22; Holman 2008; Lieblich 2011: 340–1, 358–9).
American soldiers will receive superlative treatment when wounded. Host-nation wounded
will receive second tier treatment. When multiple health care systems are available to the fighting
forces, the duties of care incumbent upon occupying armies permit a two-tiered system as long as
the weaker system provides minimally acceptable medical care. Under these conditions, medical
personnel in the stronger system may shunt allied and enemy wounded to the weaker and adjust the
initial care they provide the wounded to the availability of follow-up care. Nationality, not urgent
medical need solely, determines the care that many wounded will receive during war. Within a
given system, however, the principle of non-discrimination demands that comparably wounded
merit comparable care regardless of nationality. Perhaps this is how the Geneva Convention should
be interpreted: critically wounded soldiers treated in the same facility should receive treatment
based solely on the extent of their injuries. This seems to be minimal requirement for ethical
medical care but faces stiff challenges from the primary duties of care that friends and comrades
owe one another.
Special Obligations, the Ethics of Care and Comradery
Consider the following case:
One US soldier and one Iraqi Army [coalition] soldier present with GSW [gunshot wound] to the
chest. Both have low O2 saturations. There is only enough lidocaine for local anaesthesia for one
patient, and only one chest tube tray. One will get a chest tube with local anaesthesia, and the other
will get needle decompression and be monitored by the flight medic.
Who gets the chest tube and local anaesthesia and why?1
In an ordinary medical environment, the national identity of the patient is irrelevant. Deciding
whom to treat and how would depend entirely upon medical criteria: which patient was the most
severely ill and/or which patient was expected to best benefit from one treatment or another. One
might also consider questions of compliance, available follow-up care and other variables that
may affect the effectiveness of care. Here, too, the patient expected to most benefit will get the
optimal care. Should both patients benefit equally from the chest tube and local anaesthesia one
moral solution might be a lottery that would give each patient an equal chance of receiving the best
treatment available.
When asked who should get the chest tube, participants in workshops on military medical
ethics at Walter Reed did not ask about relative medical need or the availability of follow-up
care. Instead, they cut to the chase: Treat the American first. ‘Why?’, we asked the participants.
‘Because he’s our brother’, they replied in near unison. Although little studied, this is not an isolated
phenomenon. A small sample pilot study of Israeli medics (n=19) revealed that more than half (10)
would treat a moderately wounded compatriot before a more seriously wounded enemy soldier
or civilian (Dakar 2009). Carter (1994) found that only two-thirds of 600 US military physicians
deployed during Desert Storm agreed that medical need should be the only criterion used for triage
1 My thanks to Major Jacob F. Collen, MD, for providing this case for discussion. See also Sessums et
al. 2009.
and 22 per cent agreed that POWs, that is wounded enemy soldiers, should only be treated after all
allied forces are treated no matter how severe their wounds.
It appears that military medical personnel are of two minds about the Geneva Conventions. On
one hand, they acknowledge the principle of non-discrimination and medical impartiality. On the
other, they recognize a conflicting and often overriding obligation to provide their compatriots with
the best medical care possible. Medical care, in this case, is not only a professional obligation but
a duty that health care providers owe friends and comrades-in-arms. These duties do not merely
supplement the impartial criteria for allocating medical care but may replace it altogether and offer
substantial moral grounds for preferential treatment for compatriots. Morally, the imperative to
treat one’s brother first finds strong justification in associative obligations and the ethics of care.
Associative Obligations and the Ethics of Care
At one level, offering priority care to friends or family members when others are in greater need
violates the principles of impartiality, non-discrimination and opportunity that are central to
medical ethics. At another level, however, preferential care for family and friends is a fundamental
moral obligation. Parents are not expected to invest much in the care of others before they attend
their own children. Friends, likewise, have special obligations toward one another that they do not
have toward strangers. In both cases, special obligations to tend to those closest to us replace the
principles of justice and utility that usually guide medical care. The question is: which paradigm
applies to military medical ethics? On the face of it, it appears that questions of professional duty
are paramount. Yet in wartime, exemplified by the case just cited, special obligations of care
deserve careful consideration.
Moral philosophy has always taken note of ‘associative obligations’ that reflect the
overwhelming moral importance of intense, interpersonal relations among members a small,
tightly woven and interdependent family or community that demand preferential care for
those who are close (Simmons 1996). Few doubt that friends and family owe duties of aid
and assistance to one another that they do not owe to strangers. At one level these duties are
grounded in commitments of mutual aid: friends implicitly agree to help one another in times of
need. In other instances, there are good social reasons for associative obligations because they
preserve such institutions as friendship and family that are essential for well-being and survival.
At another level, however, is an ‘ethics of care’ that transcends mutual aid and social utility
and invokes unconditional duties that certain individuals owe one another by virtue of a special
relationship between those who can provide life sustaining care to those who need it. The ethics
of care invokes an emotive rather than contractual bond that calls for ‘personal concern, loyalty,
interest, passion and responsiveness to the uniqueness of loved ones, to their specific needs,
interests [and] history’ (Held 2006: 95).
Guided by preferential and discriminatory principles, special obligations toward friends, family
and compatriots inevitably raise questions of distributive justice: what if others are in greater need
of care and attention? In all but the most extreme cases, however, this question does not arise.
Special duties of care reflect moral principles that operate independently of universal principles
of justice. As such, expected utility is not always a relevant moral principle. Friends and family
should aid one without expectation of reciprocity, often at great personal cost and when knowing
that the same aid might benefit a stranger more (Mason 1997). This is a common intuition. To think
too hard about aiding a stranger when the life of one’s family or friends is in danger is, as Bernard
Williams famously put it, ‘one thought too many’. Is medical care for enemy wounded also one
thought too many?
Answering this question requires some understanding of the personal relationships among
soldiers. Military sociologists often distinguish between primary and secondary bonding. Primary
bonding reflects the close and constant personal ties between primary group members and their
immediate leaders at the platoon level (40–50 soldiers). Secondary bonding binds group members
to the larger military organization to which their small unit belongs and is characterized by
institutionalized, impersonal and formal ties (Siebold 2007; Kirke 2010). Primary groups are an
essential feature of an effective military organization and engender the loyalty, assistance, self-
sacrifice and commitment needed to create successful fighting units. Primary groups are not merely
a collection of well-coordinated, self-interested individuals, but a cohesive band knitted together
by ‘mutual affection, interdependence, trust, loyalty … peer bonding and teamwork’ (Siebold
1999: 15). Although ad hoc when compared to ethnic or religious communities, primary military
groups serve similar functions by helping to ensure individual and collective survival and by
providing an important dimension of personal identity (Siebold 2006). For these reasons, primary
groups generate ‘particularistic’ or special obligations to members of one’s community that are not
extended to everyone (Etzioni 2002: 577). For a medic in a small military unit, these obligations
might require preferential care for compatriots.
At the most primary level of military medical care, a combat medic or aidman provides
immediate first aid and life-saving treatment to members of his platoon, a primary group linked
together by strong personal ties of friendship, comradery and loyalty. This is particularly true of
an infantry platoon where the medic trains with and forms an integral part of a small fighting unit
(Hurtado and Montoya 2009). Within this unit, bonds of friendship dominate moral relationships
and generate duties of care that may dictate preferential treatment and trump considerations of
impartial justice. There are two reasons for this. First, the survival and effectiveness of the group
depend upon preferential treatment for group members when resources are scarce. Second, and
perhaps more important, is the moral primacy the special obligations of care among friends and
comrades irrespective of the instrumental value of the group. These two arguments are often
difficult to disentangle even when the unit is a family. Here, too, one can describe the instrumental
value of the family as a vehicle that nurtures human development and which will suffer if members
don’t care for one another, and the intrinsic force of strong and overwhelming duties among family
members. Medics are no different from their comrades in this regard. Each is but another primary
group member that brings a special skill to their group and each remains duty bound to use that
skill, first and foremost, to assure the well-being of the other.
In the institutionalized settings that characterize the higher echelons of military medical care,
on the other hand, the duties of friendship and comradery weaken. In the process, preferential
treatment for primary group members falls to impartial standards of care typically demanded of
the medical profession. The ethical demands on caregivers, in other words, should vary according
to the strength of primary bonding. As primary bonds weaken and secondary bonds strengthen, the
universal duties of justice replace the parochial ethics of care. This might be particularly true of
physicians rather than medics. Physicians train first in medicine and only then receive rudimentary
military instruction before working in an institutional setting. In contrast, medics train first as
soldiers and only then receive medical instruction before (re)joining a small military unit.
Transposed to the battlefield, the associative obligations and the ethics of care can have
important ramifications. Consider three different scenarios.
1. Equality of Injury: In the chest wound case described above, resources are scarce and
compatriots and non-compatriots suffer similar life-threatening or disabling injuries. Criteria
dictating the order of care include the patient’s chance of recovery, available follow-up care
and the likelihood of returning to duty. Absent any utilitarian criteria to decide between the
cases, a lottery might determine the order of care. A lottery may accord with impartiality but
ignores the moral significance of the duties imposed by primary group membership. These
duties are not negligible but, in this case, only serve as a tie-breaker after all other impartial
criteria of distributive justice are exhausted.
2. Gross Inequality of Injury: When compatriots are lightly wounded and non-compatriots
suffer life-threatening or severe disabling injuries, far more good will come from aiding non-
compatriots than compatriots. Here, special obligations of care are overruled by a different
concern, namely the duty of beneficence, that is, the obligation to aid others when the cost
is reasonable and the danger to strangers is very great (Blum 1980). On the battlefield,
however, and without sophisticated diagnostic equipment or expertise, the relative severity
of soldiers’ wounds may not be readily apparent. This will often lead caregivers to treat
on the basis of the category I, wounds of equal severity, or on the basis of category III,
wounds of only moderate levels of disparity. Either case leads to preferential treatment for
compatriots.
3. Moderately Inequality of Injury. These are the hardest cases. Consider the following:
a. There are sufficient medical resources to save the life of one compatriot or two (or
more) non-compatriots.
b. Compatriots face disfigurement or loss of limb while non-compatriots face loss of
life.
Impartial need-based care demands treating the non-compatriots first. Associative obligations
and the ethics of care, on the other hand, emphasize the prior and superior moral duty to treat
compatriots first. Among compatriots, saving lives is usually more important than saving limbs. If
forced to choose between saving the life of one soldier or the limb of another, the former is morally
preferable. When faced with saving the life of a non-compatriot or the limb of a compatriot, limb
may easily trump life. Similarly, it may be morally permissible to save the life of one compatriot
rather than the lives of two or more strangers.
The moral reasoning is directly analogous to that of a parent who, acting on the compelling
demands of the ethics of care will prefer the welfare of her child at the cost of many other lives.
Beneficence, the duty to aid others, weakens considerably when the costs to the rescuer are
onerous. At the same time, associative duties direct a caregiver to give preferential aid to those
with whom the primary bonds of friendship or kinship are strongest. When lives are at stake our
duties to friends and family are clearest and it is easy to imagine that almost any number of other
children’s lives will outweigh a parent’s duty to save his own child from harm. When limbs are
at stake, one must ask whether a national health care system would sacrifice salvageable limbs
of compatriots to save the lives of foreigners. Here the answer is more difficult. While one might
commend an allocation scheme that saves lives for some while costing others their limbs (while
perhaps providing them with prosthetic devices) one might also reasonably object to a level of
foreign aid that saves the lives of foreign nationals at the expense of medical care that might save
the limbs of compatriots who expect a reasonable level of national health care.
Nevertheless, associative duties and an ethics of care requires attention to the plight of strangers
and reflect concern for what Held (2006: 71) calls ‘moral minimums’ of care and respect for human
rights (also Miller 2005: 72). Medical personnel, for example, may recognize this when medics
report a readiness to stabilize or sedate severely-wounded enemy soldiers while they first attend to
the less serious wounds of their comrades (Dakar 2009). It also explains why medical personnel
might treat seriously wounded compatriots before seriously wounded enemy soldiers but refrain
from treating compatriots once they have already begun to care for non-compatriots. Apart from
a justified concern that withdrawing care is akin to murder, it is also clear that medical personnel
enter into special relationship once they begin treating any wounded soldier. This new relationship
carries strong obligations of care of its own that cannot be readily abandoned.
As this last remark indicates, professional obligations exist alongside associative obligations
at all levels of care. At the level of primary, battlefield care professional obligation to provide
impartial care attenuate and fall to obligations of friendship and comradery but become increasingly
compelling at the higher echelons of care where medical personnel operate in an institutionalized
setting. Here, the duty of care to comrades-in-arms recedes in face of the immediate relationship
between a health care professional and her patient. As such, the prevailing model of care reverts to
one of strict, impersonal professionalism that demands that physicians treat impartially according
to need. This does not mean that obligations of comradery are not present, but only that one would
expect them to weaken as the relationship between health care professionals and the patients
become less personal.
Conclusion: The Limits of Impartial Care during Armed Conflict
Despite the clear directives of the Geneva Convention, impartial treatment of soldiers wounded
is not always morally defensible. Military necessity, the demands of compatriots and the special
obligations of care often mitigate demands for impartial need-based medical care during war.
Defending preferential treatment in the name of military necessity and social utility invokes what
Brian Barry (1995) has called ‘second-order’ impartiality. Recognizing the occasional need and
desirability of relationships anchored in privileged concern for others, moral philosophers are
prepared to reject first-order or universal impartiality as long as preferential care is justified by
impartial second-order principles such as utility or contract. Impartiality, in other words, anchors
favouritism. In this way, military necessity may allow military medical personnel to treat wounded
compatriots to return them to duty while deferring care of more seriously injured enemy soldiers.
Utilitarianism will, to some extent, also justify rules that restrict access to a national health care
system to compatriots or permit occupying forces to provide second tier care to host-nation
nationals. To do otherwise would rapidly deplete military resources and threaten the well-being
of all.
Some defenders of special obligations, however, reject Barry’s argument as incomplete (Held
2006). While impartial principles sometimes offer grounds for preferential care, there are other
cases where implementing impartial principles of justice will significantly harm family and friends
thereby forcing one to choose between justice and care. When relations are close and fundamental
and friends, family or comrades-in-arms in need of aid, the special obligations of care are not
merely a tie-breaker but often command priority.
In military medicine too, there are the conflicting imperatives of justice, community and
friendship. Justice is a fundamental feature of good medical care while friendship, loyalty and
devotion are the foundation stones of an effective military environment. Each carries significant
moral weight. At the higher echelons of care the two might conflict and leave physicians to carefully
navigate between impartial treatment and priority care for compatriots. At the most basic level of
care provided by combat medics and physicians, however, there should be little conflict. Here the
special, associative duties of care largely replace the demands of impartial justice.
The tension between the demands of impartiality, the imperatives of military necessity and
the duties of care and comradery is just one facet of the dual agency dilemma that bedevils health
care providers in the military. In most cases, this dilemma sets the demands of the mission, that is,
military necessity, against the demands of disinterested medical care and the patient’s best interest.
Dual agency dilemmas arise when medical personnel must give prior care to those who can return
to duty, return moderately ill soldiers to duty or withhold information about the effectiveness
of vaccines so soldiers will not suffer anxiety (Howe 2003). Dual agency dilemmas also arise
when medical personnel must choose between the duties of comradery and the obligations of
impartial treatment, particularly at the most basic echelons of military medical care. Recognizing
the severity of this dilemma, Sidel and Levy (2003: 302–3) conclude that ‘military physicians
cannot, as members of the armed forces, live up to the expectations and responsibilities of the
Geneva Conventions’. Their solution is to take medical care from the hands of military personnel
and create an independent civilian medical organization to provide care during war.
This solution is problematic because it is often impractical to call on civilians when only trained
military personnel can provide medical care on the battlefield. More importantly, civilian doctors,
nurses and medics do not address the underlying causes of preferential care. Military necessity
sanctions prior care for the lightly wounded at the expense the seriously wounded regardless
of who provides the treatment. Scarce resources permit less sophisticated care for host-nation
nationals. Finally, there seems little to prevent civilian medical staff from forming the same close
relationships if hired to replace medics and care for compatriots in small military units. In these
cases, the associative duties combined with the imperative of military necessity and limited medical
resources will frequently dictate preferential treatment for compatriots during armed conflict.
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Military Medicine, 176(1), 94–8.
Chapter 5
Medical Neutrality and the Dilemmas of War
Paul Gilbert
The Dilemma
A surgeon at a small hospital is about to perform an operation to treat a minor injury incurred by
a patient. If the injury is treated promptly the patient will soon be able to return to work; if not,
recovery will be delayed. But just then a casualty is wheeled in requiring immediate surgery to save
his life. This will necessitate the use of drugs and devices originally set aside for the first patient’s
operation. However, it seems evident that the surgeon will have to prioritize the casualty and leave
his patient to wait, with the delay in recovery time that this implies. Few, not even the unfortunate
patient, would question the decision to do this which the surgeon makes or represent the situation
as one in which he has confronted a difficult decision.
Now let us paint in a different background to that which has probably been assumed. Instead
of a civilian hospital in peace time we have a field hospital in time of war. The lightly injured
patient is a soldier of the army in which the surgeon is employed as a member of the medical corps.
The casualty is an enemy combatant, a victim of the army’s offensive. Now, many people would
maintain, the surgeon does face a dilemma – a dilemma expressed in terms of his apparent dual
loyalties: on the one hand to his profession as a doctor and to his patients, with the usual priorities
which this implies, on the other to the state in whose army he serves and to its fighting forces (for
example Allhoff 2008).
The purpose of this chapter is to question the characterization of this sort of situation as one of
dual loyalties. It is also to suggest that the military background should normally make no difference
to the surgeon’s decision about the proper priorities for treatment, and this claim will be defended
against an alternative. I shall propose a way of conceptualizing the military doctor’s position which
should go some way both to relieve the tension he may feel and to deflect possible pressures upon
him to decide differently. Needless to say, I believe that my conclusions have implications beyond
this particular example.
Loyalties
Loyalty in its primary sense consists in standing by some individual, some group or some institution
into which people are organized. A classic case of dual loyalties is provided by the novelist E.M.
Forster’s declaration: ‘if I had to choose between betraying my country and betraying my friend,
I hope I should have the guts to betray my country … Love and loyalty to an individual can run
counter to the claims of the State’ (Forster 1965: 76–7). Here talk of dual, or as we sometimes
say ‘divided’, loyalties and of the possibility of a conflict between them is clearly in place. But
it is harder to discern this pattern in the army surgeon’s case. We cannot as easily construe it as
a clash between loyalty to the state and loyalty to his profession as my initial formulation might
suggest. Loyalty to the state involves acting in a way that furthers its interests, not letting it down
by acting in a way that runs counter to them. In our example such loyalty would supposedly be
demonstrated by treating one’s own wounded first so that they could return to battle. But it is not in
this sense of loyalty that this might be described as being disloyal to one’s profession. It is not the
interests of the medical profession that would, except perhaps very indirectly, be damaged by it;
it is the profession’s standards that are arguably violated. This is not a case, then, where the army
surgeon might display loyalty to his profession in the way he would if, for instance, he defended
the conduct of doctors against adverse criticism. We would be better to say that the surgeon who
opts to treat the enemy combatant because of his attachment to his professional standards is true
to his profession, true, as we say, to his calling. This may arguably be a source of conflict, but not
of a conflict of loyalties in the sense that I originally outlined. Nor is this just a verbal quibble.
Someone can be loyal to his profession but not true to his calling in demonstrating his loyalty, as a
philosopher would be if, when defending fellow philosophers against accusations of irrelevance to
real life problems, he mounted arguments which he knew to be unsound.
Trying a different tack to exhibit a conflict between loyalties in the same sense of the term, we
might be inclined to detect a clash between the surgeon’s loyalty to the state or to his comrades and
his loyalty to his patients. One problem here for our particular example is that loyalty is possible
only in an established relationship. Such a relationship already exists between the surgeon and
both the state and his colleagues, but not between him and his patients in the sense in which this
term covers prospective patients as well as existing ones. The enemy casualty is as yet only a
prospective patient, and one way of putting the question that confronts the surgeon is whether to
accept him as a patient. Only then could he consider what loyalty to him required. Let us leave
this aside, however, since we can imagine modifying our imaginary scenario so that the wounded
of both sides are already patients. Is there a conflict between loyalties to different patients here,
since some are comrades and others are not? Or a conflict between loyalty to the state and to some
patients?
In fact, I do not find the characterization of the army surgeon’s situation as either kind of conflict
of loyalties a felicitous one. It is not clear to me that the surgeon would be demonstrating either
loyalty to the state or to comrades if he treated the slightly wounded soldier on his own side first.
Perhaps we could say that he is expressing his patriotic feelings, or that he is showing solidarity
with his comrades. But talk of loyalty seems to me to be out of place, and this may be because we
expect loyalty to come at a price, while none seems to be being paid by the performance of this
demonstrative act. I am even less happy to say that the surgeon would be manifesting loyalty to his
patients if he decided instead to save the enemy casualty’s life. A description in terms of his being
true to what he takes to be his professional standards strikes me as a happier characterization. There
is room for talk of loyalty to patients, in staying with them if the field hospital is overrun, say. But
I do not see that, without further background, merely treating them as seems fit is a case of being
loyal to them. Rather, it is a case of demonstrating the concern which a doctor is expected to show
his patients.
Loyalty is expected of those in certain sorts of relationship, but the relationships involved in
carrying out one’s profession make a wide variety of behavioural and attitudinal demands upon
one. Just as the doctor should have a concern for his patients, the lawyer should have hopes for his
clients, the teacher should have expectations of his students, and so on. These demands arise from
the responsibilities that professionals have for others. If I fail to fulfil these responsibilities I will
be letting people down. But letting them down in this sort of way does not automatically count as
disloyalty. Broadly speaking, loyalty kicks in at a stage beyond the discharge of responsibilities,
when a relationship has been established through their discharge. Loyalty is, in this case, an
expression not of professional obligations, but of more personal ones, which carrying out a
Medical Neutrality and the Dilemmas of War 87
profession will typically generate, given normal human proclivities to form attachments of various
strengths and with varying degrees of imperatival force for one’s behaviour (for example Sklar
1993: 184).
These remarks count against the elucidation of dual loyalties which is given by those who
employ the notion to describe our kind of scenario. They spell out the idea in such terms as ‘the
existence of simultaneous obligations which might come into conflict with each other’ (Allhoff
2008: 5), or, in our specific sort of example, as a ‘tension between two, distinct professional
obligations: the military and the medical’, since an army surgeon ‘is a soldier and a doctor … with
obligations and duties that may clash in ways that seem irreconcilable’ (Gross 2010: 458). This
conflict of obligations account is intended to unpack what it is to have dual loyalties, namely that
one is under two sets of obligations that may collide. To be loyal is both to have certain obligations
and to fulfil them. Someone who breaches an obligation that loyalty to one party imposes is thereby
disloyal. Thus in the conflict situation he cannot be loyal to both.
However, I am inclined to think that acts of loyalty are seldom strictly speaking obligatory in
the way that the discharge of professional responsibilities is. They fulfil looser requirements which
stem from the expectations people have of caring professionals. The loyalty which the soldier
should have to the state for which he fights is a different matter. This doubtless does impose actual
obligations, not least because it is the product of an oath of loyalty or some analogous commitment.
But again we need to distinguish the requirements of loyalty from obligations arising from the
orders the soldier is given, bearing in mind that in entering the service he has put himself under
a general obligation to obey. In most cases his putting himself under that obligation will reflect
his loyalty to the state, but it does not follow that fulfilling this obligation in particular cases
demonstrates loyalty nor that disobedience always constitutes disloyalty.
The Army Doctor’s Role
Whether or not it would be loyalty proper that gave rise to conflict, is there, nevertheless, a conflict
of obligations facing the army surgeon? We need to return to our example to see why a conflict
seemingly requiring resolution is postulated. It is because the surgeon is also an army officer. He
occupies two distinct roles. Roles are social positions of whose holders various requirements and
expectations are made with varying degrees of precision and explicitness. The etymology of the
term – the roll of parchment on which an actor’s script was written – provides a good picture of
the relation between the role and its holder. He or she has to conform to the script to a high degree
in order to count as performing the role. An agent who is playing more than one role runs the risk
that in a particular situation his scripts may prescribe different actions so that he cannot conform
to the requirements of each role. He may then cease to count as occupying one of the roles. This, I
take it, is what a conflict of roles comes to. Is this the situation of the army surgeon in our example?
A full answer would necessitate a deeper investigation of the roles of doctor and of army officer
than I can undertake here. It also needs to be said at the outset that, in view of the indefiniteness
and implicitness of the expectations associated with these sorts of role, we should not anticipate
an answer that is uncontroversial. One reason for this is that the expectations associated with a
role are those of a variety of people affected by role performance in different ways, so that there
may well be some divergence of views among them. Nonetheless, we can begin to sketch out
some relevant features of the roles of doctor and army officer in order to test out whether a conflict
exists between them in our example. The expectations upon doctors are set primarily, I suggest,
by other doctors and by patients, actual and prospective. Employers play a significantly lesser part
in this, and that for two reasons. First, a doctor’s role is pervasive (see Parker et al. 1967: 145) in
the sense that performance is expected at any time and place, and therefore outside working hours.
In a medical emergency a doctor is expected to help whether or not he is specifically employed
to do so. Second, a doctor’s role is autonomous, in the sense that he is solely responsible for the
medical judgements on which he acts. He cannot be ordered to act on an employer’s judgement
about what treatment should be given and to whom. If he is so ordered and obeys then he is, one
might suggest, acting not as a doctor but as a medical technician of some kind, employing medical
skills but not professional judgements the capacity for which is what qualifies him as a doctor.
A recent example in the English National Health Service illustrates this point. In order to reduce
waiting lists, hospital managers assigned surgeons to perform easy operations first, while patients
in greater need of treatment – treatment which was more time consuming – were made to wait.
This created considerable resentment among surgeons, who felt that their professional autonomy
was being violated.
For the most part, doctors are employed (or employ themselves) as doctors, not in some other
role for which their medical knowledge and skill equips them. And doctors can occupy the role
of doctor even when not so employed.1 In this respect they are like philosophers and not like
university professors. Roles of this sort we can describe as self-standing, in that pursuing them
is not necessarily operating as part of the regular workings of an institution. When it is, this is
because the institution recognizes the role as ready-made, so to speak, and employs people in their
roles, as universities employ philosophers. The institution plays no part in the shaping of the role,
though its demands may, of course, produce tensions for those who hold the role and participate in
the institution’s workings primarily to perform it. I shall say that roles of this kind are embedded
in the institution.
It is immediately obvious that the role of army officer is categorically different from a doctor’s.
It is not self-standing, since its holder is necessarily operating as part of the workings of an
institution – the army. Nor is the officer’s role, as such, fully autonomous, for he is obliged to
follow the orders of his superiors; and it is not pervasive, since the role involves no expectation that
he will exercise command outside a military context. An army officer is, we may say, a soldier, in
the sense that any member of the army is a soldier. But in the sense in which a soldier is a fighter,
not all members of the army count as soldiers. This is not just because there are many who do not
serve on the front line, but act as engineers, caterers and so on. Occupants of such positions count
as soldiers in the more restricted sense for two reasons. First, because their occupations are clearly
ancillary to the task of fighting. Second, and consequentially, because if occasion demands their
holders can be required to take up arms and fight themselves. But army chaplains, for instance,
are members of the army, yet there is only a very indirect connection between their role and that
of fighters. An army marches on its stomach, but while spiritual sustenance may boost morale it is
not inevitably necessary to keep the fighting going. For this reason chaplains can play no part in it
themselves, and the same goes, I shall argue, for army doctors.
I want to distinguish, then between the war machine, with its numerous cogs which make up
by far the greater part of an army, and the army structure as a whole, with its various chains of
command and relationships of comradeship. For simplicity we can assume that all members of the
army are citizens of the state whose army it is. Like any other citizens they put faith in the army to
defend the citizen body, and as members of the army they accept responsibility to play their parts in
this, if they are cogs in the war machine by fighting or expediting the fighting others do. But what if
1 There may then be little call on them to practise as doctors, at least in developed western countries,
though elsewhere they may have ample opportunities so to do.
they are chaplains or doctors? Are they confronted with a conflict of roles? If they were part of the
war machine then we can see that they might well be. But I have suggested that they are not, though
in the army doctor’s case this may seem counter-intuitive. For what is the difference between, say,
mending a broken down tank to keep the fighting going and patching up a wounded soldier so that
he can return to battle? Let us make the simplifying assumption that his wounds are sufficiently
serious to prevent the soldier from fighting.2 Then he differs from the tank in that, while it remains
a legitimate target, he does not. He is hors de combat, no longer able to act as a fighter and therefore
not vulnerable as one. It is not, then, as a cog in the war machine that he is patched up, but simply,
we may say, as a man. The army doctor treats men, not fighters, just as the army chaplain provides
for the cure of souls, not primarily for the morale of soldiers.
Now it is irrelevant to the plausibility of the picture I am painting here that doctors might be
employed by armies precisely to patch up their wounded soldiers, or chaplains to boost morale,
so that what they did for enemy casualties or prisoners was just a spin off. But the motive with
which an employer hires staff is irrelevant to the role that they perform unless the employer’s
expectations contribute to the constitution of that role. Consider the case of a chef, taken on by a
public house that previously served only microwaved meals. He is hired to raise the pub’s status
but his role remains that of producing nutritious and appetizing food. While his cooking does raise
the pub’s status it is no part of his role as a chef to aim to do this directly, by, say, writing out his
menus in French. Similarly the army doctor is employed in his medical role. The role is embedded
in the army structure. Thus, though the army’s task is to maintain and deploy its war machine, the
army doctor’s role is not ancillary to that, even if the army employs him primarily for this purpose,
as might be suggested by, for example, the US Medical Corps motto, ‘To conserve the fighting
strength’.
Medical Neutrality in War
It will now be clear why I believe that there is no potential conflict between being an army officer
and a doctor, and why, acting as a doctor, our imaginary surgeon should exercise his medical
judgement alone in the prioritizing of cases, presumably in the same way as he would do outside
the military context. There is an expectation that the army doctor will continue to act as a doctor,
with the medical priorities which this implies. For it as a doctor that he has the position in the army
that he has. Since his role is embedded in this way there is no reason to think that his military
commission imposes any obligations which run counter to the carrying out of the role, as they
would if he were part of the war machine. He does, of course, occupy other, less clearly defined
roles, that of a comrade to his fellow soldiers and that of a citizen of the state in whose army he
serves. Here I shall only observe that the role of doctor precludes giving special treatment on the
grounds of occupancy of such other roles. This is characteristic of a range of professional roles, and
the epithet ‘unprofessional’ attaches to those deviations from role requirements which arise from
the intrusion of interpersonal loyalties or analogous concerns.
There are, however, several objections that could be made to this position. First, it could be
argued that roles do not fall into the neat divisions that my story suggests, so that the army doctor
is not rightly described as occupying a doctor’s role embedded in a military structure. Rather,
2 Minor injuries will typically be treated by soldiers who are trained in first aid but who, since they
are not assigned exclusively to medical duties, do not enjoy the protection afforded to doctors, who are so
assigned.
it is, so to speak, a hybrid role combining elements of the medical and the military in a distinct
configuration which imposes requirements different from those of either taken separately. In
certain situations those requirements seem to clash, but the conflict can be resolved, with military
necessity sometimes overriding medical need.3 Second, it may be maintained, the picture of roles
I have presented does nothing to resolve the surgeon’s dilemma, which is essentially a moral one.
With which, if any, of his various role requirements he should comply in our imaginary scenario is
a question over and above that of which takes precedence in a conventional structure of roles, for
this yields no moral insights.4 Both these objections raise difficult issues, so I shall merely sketch
possible replies before moving on to a third, namely that my account does not capture the feelings
of conflict which the army surgeon may experience in our example.
As far as the first objection is concerned I shall say only two things. Firstly, the hybrid role
characterization does not seem to me to be a plausible description of an army doctor who, qua
doctor, does not cease to attract the expectations of doctors generally. Even if he were employed
by the army only to patch up its own wounded the pervasiveness of this role would lead people
to expect him to treat others too, and to do so in accordance with the usual priorities. And other
doctors, to whom he is answerable, would also have an interest in preventing the hybridization of
the role. An example of an actual hybrid role might be that of a commercial artist, who arguably
ceases to be an artist proper, with the internal standards which that role implies, because his work
serves a purely commercial purpose. Yet it can still be judged as having or lacking some artistic
merit as well as being more or less effective in selling a product. An army doctor is surely not
comparable to this, since, though we may assess his medical skill and his ability to lead a medical
team, we do not apply to him the usual military criteria for being a good officer or a good soldier.
Second, and connectedly, army doctors are granted immunity from attack and other protections
under the laws of war. They are granted it because they remain simply doctors and, as such, are
expected to behave as any other doctor would so far as their medical role is concerned. Were
they to be thought of as analogous to mechanics who fix broken down tanks I can see no good
reason why they should receive such immunity. They receive it because the army doctor’s role
is seen more broadly than just in terms of facilitating the war machines of states, for example as
conserving the values of humanity. But I shall return to this issue later.
The second objection, that role requirements are not ipso facto moral ones, and so do not
determine, for instance, what our army surgeon should do in the heat of battle, raises a difficult
theoretical problem. Of several strategies for dealing with it, the easiest is to concede the claim for
the sake of argument and go on to claim that the doctor’s role is an especially valuable one.5 Any
attempt to modify it, as on the hybrid role conception, would be potentially damaging. Only in the
most extreme situations would departing from the norms of the role be morally justifiable; and
certainly not such systematic deviations from it as would be a policy of prioritizing the treatment
of one’s own troops, whatever their comparative medical need. Various grounds could be offered
for the special value of the role, whose performance is conceived as trumping most other moral
claims. What might be allowed is that in a small minority of cases the army doctor is faced with a
real moral dilemma. There is no conflict of professional obligations here since his medical role is
embedded in the military structure. But there may be a conflict between the moral claims of this
role and those that arise from the particular circumstances of war, such as preventing a possible
3 So far as I can see, this is how one might have characterized Michael L. Gross’s position (for example
Gross 2010) prior to his chapter in this volume, about which more later.
4 This view, that ‘roles and role-duties are morally inert’ (Sciaraffa 2009: 108) has been described as
‘practice positivism’ (Applbaum 1999: 51).
5 Though, as the last paragraph of this chapter indicates, I am inclined towards a more radical response.
massacre of one’s own forces. If the doctor decides in this desperate situation to treat his own
comrades so that they can fight on, leaving enemy casualties to die, then we would expect him to
do so with considerable compunction and to feel remorse despite his judgement that what he does
is right – the so-called ‘moral residue’ of his decision (cf. Williams 1965).
I move on next to a more down to earth objection to my account, namely that it leaves it
mysterious why the army doctor might experience conflicting impulses in a situation where, I
assert, he actually faces no moral conflict. It is once more to the nature of role occupancy that
we must turn for an explanation. For to perform his role successfully an agent must internalize
its requirements, and this involves an affective appreciation of their hold over him and of the
significance of fulfilling them which gives rise to it. Given this, we can see why someone may
feel torn even when he can acknowledge that there is no actual conflict between the requirements
of the two roles. The teacher whose son is in his class knows that, as a teacher, he should give
him no special treatment. But as a father whose role requires him to do the best for his children
he feels the pull of concern for his son’s interests. Similarly, the army doctor may recognize that,
as a doctor, he should give all his patients, friend or foe, equal treatment. Yet as a member of an
army committed to fighting the enemy he may want to help his own side as much as he can, and he
may even regret that professionalism prevents him from doing more than he already is, by giving
its soldiers preferential treatment. His other roles, as their comrade and as a citizen of the state for
which the army fights, will tend to reinforce these feelings. As a comrade he is minded to support
his fellows, and in many respects they can expect him to do so. He has a special bond with them,
but he must not allow this to interfere with his duty as a doctor, though it may need a special effort
of will to prevent this. As a citizen with his country’s interests at heart he may feel indignation at
the enemy’s behaviour. Yet this must not be expressed in antagonism towards them which might
prejudice the way he treats them as a doctor.
In view of the account that I have offered, it is unsurprising that the army doctor’s experience
of conflict may be intensified if he is put under pressure by his comrades or by the army command
to act otherwise than his position as a doctor dictates. And there may be continued pressures which
would, if they were acceded to, eventually change the way that army doctors do act. But we must
remember that this role is, so far at least, enshrined in the international law of war. For international
law to be revised, it would require a very considerable change of heart by citizens, leading states
to alter their practice, modify the treaties by which they are bound and so on. For, as I have hinted,
the immunity of doctors in war is not a mere convention, the result of an historical accident. It is
precisely their medical neutrality which justifies it. Because his role is embedded, the doctor can
be even handed in his treatment of friend and foe alike, just as a civilian doctor would be expected
to be. It is right, therefore, that he is viewed in the same way as a civilian so far as his vulnerability
to attack is concerned.
Were army doctors not to be neutral in the way they treated patients then the only justification
that I can see for their immunity is that it would ensure continued medical attention for one’s own
troops on the assumption that immunity is reciprocated. But the assumption of reciprocity might
not be justified. In contemporary asymmetric wars it is unlikely that non-state forces will have
the equivalent of a well trained and equipped medical corps to deal with casualties of either side.
Their fighters may be ill disciplined and careless at best in their adherence to the laws of war, fired
up with animosity against the state forces they confront and, indeed, against members of that state
in general, including doctors. In these circumstances immunity would seem to be of little actual
benefit to army doctors. If they treated it as a mere convention then they might be tempted, in
consequence, to depart from the norms of their medical role in order to help their own side.
It must be admitted that in an era of asymmetric wars such an ideal will become harder to
achieve. Once the enemy are no longer regarded as the moral equals of one’s own soldiers, but
even, perhaps, as terrorists, it would not be surprising if judgements about whose treatment should
be prioritized were affected. If this happens then the traditional neutrality of doctors will be under
threat, his accustomed medical priorities now being influenced by considerations of moral desert.
But this has wider implications for a doctor’s role generally, not just an army doctor’s one, and
they are implications with which, I should judge, few people would feel comfortable. However
sympathetic one is, therefore, to the position of army doctors caught up in asymmetric wars, we
should still, I believe, hold to the principle of medical neutrality which their embedded role makes
possible.
Neutrality Defended
Anyone who holds to the principle of medical neutrality needs to defend it against arguments for
the existence of exceptions to it of a sort that would require it to be qualified. Michael L. Gross
has produced arguments that the principle may be overridden, on the one hand, by considerations
of military necessity and, on the other, by obligations of comradeship; and I shall consider these
in turn.6
I am in much less disagreement with Gross on the first point than on the second. Indeed, when
he writes (Gross 2010: 131) ‘Rare exceptions do not invalidate the underlying principle of medical
impartiality but merely set it aside in extreme situations’ I can agree with him, for I have mentioned
myself the sort of situation I take to constitute such an exception, namely prioritizing one’s own
slightly wounded to prevent a massacre. However I suspect that for Gross such situations would
be much more common than this, since he states (ibid.: 131) ‘When military resources are scarce,
impartial needs-based care impinges on a state’s ability to wage war effectively and constitutes an
unreasonable burden thereby mitigating obligations to enemy wounded’. But military necessity, it
must be remembered, ‘is not an overriding principle allowing breaches of the law of war’.7 It does
not equate to mere military advantage, and therefore collateral damage to civilians, for example,
can only be justified if the operation that causes it is strictly necessary. A similarly strict view
should be taken about when the medical treatment of wounded prisoners can be set aside in favour
of treating one’s own troops in order to return them to the battlefield. While I can see no general
maxim for deciding this in particular cases, I want to insist that such decisions are taken by doctors
acting autonomously as doctors.
There are two alternatives to this position which I reject. One is that the decisions should
be taken by fighters, as I termed the purely military members of the forces. But they, I suggest,
will inevitably tend to decide upon what serves their own interests in the particular situation they
are in, which will give inadequate protection to wounded prisoners. The other alternative is that
military doctors decide qua soldiers rather than qua doctors. Leaving aside the objection to this
just mentioned, it raises again the spectre of hybridity against which I inveighed earlier. It is a
spectre which seems to haunt Gross’s characterization of the doctor’s dilemma in terms of ‘dual
agency’, where military necessity is set against ‘the demands of disinterested medical care’ (Gross
2010: 147). It is a characterization I question since I see no principled way in which a military
doctor can decide when to act the soldier, to determine what is militarily necessary, and when the
medical man. The decision on whether and when to act contrary to usual medical practice is one
6 Chapter 4 in this volume. Bracketed page references are to this chapter.

7 ICRC Handbook of the Law of War for Armed Forces, quoted in Green 2000, 122 fn. 6
that can, I suggest, only be made by a doctor, who may realize that in certain sorts of emergency
he must so act, just as in any role we sometimes have to act contrary to its usual precepts. The fact
that the doctor in our example is a military one is irrelevant to the decision he takes.8 If this is the
case then there will be no temptation to suppose that the principle of medical neutrality needs to be
qualified to allow for exceptions arising from military necessity. It will be, as Gross rightly puts it,
‘merely set aside in extreme situations’.
I turn next to Gross’s argument that obligations of comradeship may sometimes legitimately
outweigh adherence to the principle of medical neutrality, which would, I think, then need to be
qualified to allow for such exceptions, since these obligations presumably spring from the military
doctor’s role. But the law of war which prescribes neutrality for those who occupy this role, and
for which I have tried to provide a rationale, allows for no exceptions, so this is a conclusion
which I cannot accept. Gross, however, suggests that military medical personnel do as a matter
of fact ‘recognize a conflicting and often overriding obligation to provide their compatriots with
the best medical care possible’, which ‘is not only a professional obligation but a duty that health
care providers owe friends and comrades-in-arms’ (Gross 2010: 140). The parallel Gross sees is
between giving preference to treating one’s own wounded over treating the enemy’s and providing
‘preferential care for family and friends’ (ibid.: 140) as against caring for people generally. While
this last is a priority with which I of course agree, it is the parallel that he sees here which I question.
First, in the general case the only relevant role is that of friend or family member. In the case
under discussion, however, the military doctor is not only a comrade whose comradely obligations
are to be weighed only against a general ‘duty of beneficence’ (ibid.: 130). He is a doctor with
obligations which spring specifically from this role. It would be unprofessional of him to neglect
these disinterested obligations to give preferential treatment to comrades, however understandable
it might be.
Second, I do not regard duties to comrades-in-arms as on a par with those to family and friends.
Comradeship is not, it seems to me, a personal relationship in the same way that friendship and
family relationships are. This is because friendship and family relate people as the particular
individuals they are, rather than just as the occupants of social roles.9 They relate them thus partly
because of the place each has in the other’s personal history, as against in their present occupations.
This contrasts with the way in which comrades, and colleagues more generally, are related; for it
as cooperators in an activity in virtue of which they have the roles they do that these are related
to each other. Their reciprocal obligations are not open-ended in the way that those of family
and friends are, nor are they, like these, mutually negotiable (Jones 1984: 94). Rather they are
specified by the standard expectations associated with the roles through which the relationships are
generated – the roles of soldier, teacher, or whatever. For a soldier, I shall argue in a moment, these
expectations do not include preferential treatment contrary to medical neutrality.
Yet, it might be replied, has not Gross made out a case for regarding comradeship as being
analogous to friendship when it involves ‘primary bonding’ at the level of small military units, even
if ‘secondary bonding’ at a higher level of organization is not? (Gross 2010: 141). Here, however,
it seems to me that Gross may have confused the personal/impersonal distinction with the close/
distant one, whereas they are actually independent, although admittedly both mark differences of
degree. Colleagues can be close, enjoying intellectual intimacy if they are academics, say. But their
8 Though it is doubtless not irrelevant to the fact that he will be able to base his decision on knowledge
of the military operations that are in train, of which a civilian doctor may well be ignorant. The point is that
with the same knowledge they should make the same decision.
9 See Gilbert 1991: 102–8.
relationship is too limited to be thereby personal. Conversely, some personal relationships, for
example in the family, may not be close, but this does not diminish what is expected from them. So
too, I suggest, Gross’s ‘primary bonding’ involves closeness but does not necessarily give rise to
personal relationships akin to friendship, though no one need deny that friendships can be formed
on battlegrounds as they can anywhere else.
I come next, then, to my claim that comradeship does not impose obligations upon military
doctors which absolve them from acting neutrally in treating the wounded of both sides.
My argument may be viewed, I would suggest, as a development of Gross’s argument for the
acceptability in certain circumstances of mass casualty triage, or reverse triage as it also called,
where those with less serious injuries are prioritized over those with more serious ones, contrary
to normal medical practice.10 His argument is that ‘there is a broad presumption that soldiers, upon
enlistment, consent to and understand that military needs trump personal interest and well-being’
(Gross 2010: 130). Therefore they may be said to having agreed to being treated in accordance
with the criteria of reverse triage in appropriate circumstances. But if they have consented to this
why should they not also have consented to being given medical treatment which is equal, rather
than superior, to that given to the enemy, in accordance with the laws of war? For have they not,
upon enlistment, tacitly agreed to abide by these laws, even though these sometimes work to their
disadvantage, since in the long run the laws of war benefit all soldiers?11 In particular, those who
find themselves wounded and in the hands of the enemy would benefit from medical neutrality, so
it is reasonable to suppose that, ignorant of their fate in war, soldiers would assent to this principle
rather than insist that comradely duties override it.
Related reasoning would show that citizens, through the statesmen who represent them in the
formulation of international law, could also agree to the principle, as, in the long run, benefiting
those who fight for them. In that case they would not expect preferential treatment for their
compatriots. And compatriots are, anyway, at an even further remove from friends and family
than comrades are, despite Gross’s tendency to lump all these categories together. Or rather, they
are at an even further remove unless one assumed an extremely questionable Herderian politics of
identity,12 which I am sure that Gross himself would not.
I conclude on what may be regarded as a concessive note, albeit a contentious one. I have
wanted to argue that the doctor’s military role is irrelevant to the decisions he should take on the
battlefield, noting that his military role includes his having comrades-in-arms. I have, however,
allowed that what he should do as a doctor is not always what he does and thinks he is right to do
all things considered. Not only in the sort of case which Gross characterizes in terms of military
necessity but also, perhaps, if the military doctor gives preferential treatment to a friend or family
member in desperate circumstances we too may think he acts rightly, though he does not act in
accordance with the precepts of his medical role. In the latter case he acts, say, as a friend, and we
judge his act right because this is what that role prescribes. What should not be assumed, I suggest,
is that there is some overarching criterion by which we can assess in which of the roles he ought
to act. The burden of proof lies on those who advocate such a criterion. Pluralists, by contrast, see
moral justification as running out before such a criterion can be reached.13 This is a theoretical issue
10 Here we may notice that there are also civilian applications of reverse triage.
11 See Gilbert 2005.
12 See Gilbert 1998: 46–56.
13 I count myself in this category, so that I believe that citing role requirements in particular
circumstances may sometimes constitute a moral stopping point. See fn. 11 above.
which cannot be pursued further here, pertinent as it is to the question of what resources we might
have for resolving the military doctor’s dilemma.14
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Gilbert, P. 2005. Proportionality in the conduct of war. Journal of Military Ethics, 4, 100–6.
Green, L.C. 2000. The Contemporary Law of Armed Conflict. Manchester: Manchester University
Press.
Gross, M.L. 2010. Teaching military medical ethics: Another look at dual loyalty and triage.
Cambridge Quarterly of Healthcare Ethics, 10(4), 458–64.
Jones, W.T. 1984. Public Roles, Private Roles, and Differential Moral Assessments of Role
Performance. Ethics, 94(4), 603–20.
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Williams, B. 1965. Ethical Consistency. Proceedings of the Aristotelian Society Supplementary
vol. 39.
14 I am grateful to Ashgate’s anonymous reviewer for suggesting improvements to this chapter.
Chapter 6
Revisiting Medical Neutrality as a Moral Value
and as a Doctrine in International Law
Yechiel Michael Barilan and Shlomit Zuckerman
Overview
This chapter begins with representation of the value of ‘medical neutrality’. We then offer two
alternative understandings of the logical relationship between ‘medical neutrality’ and the more
general and inclusive value, ‘the principle of non-combatants immunity’ (PNCI). According to
one understanding, the duty to respect medical facilities is not substantially different from the
general duty to respect non-combatants; according to the second understanding, medical facilities,
including patients and personnel benefit from certain privileges, not conferred on other non-
combatants. In the second part of the chapter we use the case history of the emblem debate (that is,
whether to grant official recognition to the Israeli symbol ‘Red Star of David’) in order to illustrate
that neither understanding is satisfactory. We also highlight a few aspects of international law on
medical neutrality which similarly do not support either of the two understandings.
In the fourth section of the chapter we explore different philosophical explanations for the
values of non-combatant immunity and medical neutrality. In the fifth section we introduce our
own synthetic theory according to which the prohibition on direct and deliberate harm is equal
regarding all non-combatants, but the duty to refrain from collateral harm might indeed differ, and
might confer stricter standards regarding medical targets relative to non-medical, non-combatant
targets. We construct this novel claim bi-directionally. First, we analyse the Principle of Double
Effect in order to show that its historical application to certain medical problems fits our proposal
regarding medical neutrality. Second, we argue that reasonable implementation of the value of
protection (that is, active care giving for the sick, wounded and shipwrecked) compels a stricter
duty of respect (that is, refraining from harm) regarding medical targets. In sum, we will argue that
the principle of medical neutrality is a natural moral value, prohibiting universally and equally
direct and intentional harm of all non-combatants, medical targets included. Within this naturalist
framework, positive legislation within international law adds the duties of ‘protection’ (that is,
active salvage and care), and, probably consequently to that, stricter standards of refraining from
collateral harm of medical targets. This reconstruction of the value of medical neutrality is also
compatible with its different philosophical justifications. We conclude by offering an empirical
way to test and implement our hypothesis in actual military operations.
Introduction
The value of ‘medical neutrality’ bears two distinct meanings:
1. Patients (that is, all those in need of medical care) and medical care-givers are not legitimate
targets at war. In international law, this is the ‘duty of respect’.

2. Medical care-givers are committed to care for all those in needs according to fair professional
standards, regardless of affiliation and loyalty.
In international law, we find a related value, the ‘duty to protect’, which is the duty prevailing upon
those in power to ‘search and collect’ the wounded, the sick, the shipwrecked and the dead and
treat them humanely (First Geneva Convention, Article 15; Second Geneva Convention, Article 8).
In response to the recent conflicts in Gaza, Sri Lanka, Darfur and Congo, the 182nd World
Medical Association Council Session (May 2009) issued one of the most recent reaffirmations of
these values, concluding:
[The WMA] Reaffirms the obligation incumbent on all parties involved in conflict situations
to abide by the rules of international medical ethics, as well as the provisions of international
humanitarian law as expressed in the Geneva Conventions, particularly their common article 3
and, specifically to assure the provision of medical care and/or evacuation of the trapped and
wounded and to refrain from targeting medical personnel and medical facilities.1
These noble words reiterate the protection granted by the third Geneva Convention to:
all persons taking no active part in the hostilities, including members of the armed forces who have
laid down their arms and those placed ‘hors de combat’ by sickness, wounds, detention or any other
cause, those people shall in all circumstances be treated humanely, without any adverse distinction
founded on race, color, religion or faith, sex, birth or wealth, or any other similar criteria.2
The logic behind these and similar provisions is based on a very old principle in the ethics of war
according to which hostilities must not be directed at non-combatants. This is the principle of
non-combatants’ immunity (PNCI – McKeogh 2002). The 1949 Geneva Conventions defines ‘non-
combatants’ as ‘people who do not bear arms’.
Along with the PNCI, we find the principle of medical neutrality conferring protection on the
sick, wounded and their care-givers.
Philosophically speaking, there are two ways to approach the value of medical neutrality
relative to the PNCI. According to the first, the only valid distinction is between combatants and
non-combatants. Because the wounded and their care-givers are often soldiers wearing uniform
and populating the battlefield, special awareness of their non-combatant and ‘neutral’ status is
necessary, even though, they do not deserve privileged protection relative to all other non-
combatants. Rather, they need special consideration in order to make sure that their protection does
not fail the standards of protection given to all other non-combatants. We will refer to this as the
‘practical neutrality’ hypothesis, because it acknowledges only pragmatic differentiation among
different non-combatants while striving to provide the same level of immunity to all.
According to the second approach, it is always wrong to intend the harm of non-combatants
and to exploit such harm as a means to win a war. However, some non-combatants deserve special
protection relative to all others simply because they are either patients or care-givers. We will refer
to this approach as the ‘the privileged neutrality’ hypothesis, because it seeks to protect one group
1 http://www.wma.net/en/30publications/10policies/30council/cr_9/index.html.pdf?print-media-
type&footer-right=[page]/[toPage].
2 http://www.icrc.org/ihl.nsf/WebART/375–590006.
Revisiting Medical Neutrality as a Moral Value and as a Doctrine in International Law 99
of non-combatants more than another does. The two approaches should be mapped onto another
distinction, the one between the negative duties to avoid harm, the duty of ‘respect’, and the active
duties to care for the needy – the duty to ‘protect’ (Pictet 1975, and see Darwall 1977).
The chapter will follow by employing these schematic hypotheses as heuristic tools.
Turning to the emblem debate, which is about the special status in international law of the
Red Cross and similar symbols. According to the ‘practical neutrality’ hypothesis, the symbol is
a mere instrument, which does not need official recognition. Hence, the special status of ‘official
emblems’ yields support to the ‘privilege neutrality hypothesis’. However, acceptance of the
‘privilege neutrality’ hypothesis might imply that some non-combatants are more valuable than
others; in other words, the lives of wounded soldiers might count more than the lives of healthy
children. A similar conundrum will emerge upon critical examination of international law on the
immunity of medical personnel.
The Emblem Debate
In 2005 the International Red Cross movement adopted the Red Diamond as an official emblem
alongside the Red Cross and the Red Crescent. It was a partial victory for Israel, which had been
struggling for recognition in its Red Shield of David (Magen David Adom).3 Although pressure
failed to win recognition for an ‘Israeli’ or ‘Jewish’ emblem, the member states acknowledged
the need for a purely neutral symbol, one that is associated neither with a nationality nor with a
religion. It was the first time in more than 70 years that a protective emblem has been similarly
recognized, and 70 years after Afghanistan’s request for recognition of its Red Archway had been
rejected. This marked an end to a period of openness between the World Wars during which the Red
Crescent and the Red Lion of Persia received an official status alongside the Red Cross (Bugnion
1977).4
If all we cared about was the protection of the sick and their care-givers, the emblems marking
them would be of secondary, instrumental value. Rather, an easily recognizable emblem, such as
the Magen David, is much preferable to an official, but unknown one, such as the Red Diamond.
Hence, the earnestness with which the International Commission of the Red Cross (ICRC)
regulates recognition in symbols of neutrality yields support to the privilege hypothesis. And yet,
on the other hand, it seems counter-intuitive to suppose that the wounded in an ambulance that is
showing an unofficial emblem deserves less protection than the wounded in an ambulance carrying
an official emblem. It would be illogical to maintain that it is licit to shoot at a military hospital
marked by Magen David merely because this symbol has no official status in international law.
In the next section we will survey a similar incompatibility between an intuitive division
between ‘legal’ and ‘protected’ targets and a more nuanced differentiation of moral and legal
immunity from hostilities.
3 http://www.nytimes.com/2005/12/08/international/08crystal.ready.html.
4 The Islamic revolution in Iran (1979) shelved the ‘Red Lion’ symbol which was a pagan icon
associated with the old regime. However, Iran has not relinquished its right to use the ‘Red Lion Symbol’. It
is still officially recognized (there is no procedure of removal of recognition) and anybody using it, even if
Chinese or Congolese, should receive due protection by international law.
Medical Immunity and International Law
One might expect the concept of immunity to be dichotomous and exclusive, dividing all potential
targets between ‘legitimate’ and ‘immune/neutral’. However, careful reading of the Geneva
Conventions and similar documents of international law gives the impression that the concept of
immunity is complex and multilayered. To begin with, according to the Geneva Convention and its
additional protocols (Geneva Convention 1 Articles 19, 24,25, Convention 2 Article 36, additional
Protocol 1 Article 12, 21) as well as customary law (Henckaerts and Doswald-Beck 2005), medical
personnel, facilities, equipment, as well as medical aircraft and hospital ships are entitled to
general protection. This protection depends on strict compliance with the requirements set out
in the relevant conventions. In other words, the medical personnel, vehicles or ships lose their
protection if they engage in hostile action. However, it is not clear whether or not non-compliance
renders the medical facility or personnel a legitimate military target, meaning that there is no duty
to refrain from harm, even towards the most helpless (Waard and Tarrant 2010).
Additionally, while the law on international armed conflict confers absolute protection to
anybody who is engaged in ministration to the sick and the wounded, the law on non-international
armed conflict allows volunteers and relief societies to ‘offer their services’.5 This milder language
implies that denial of such offers is permissible (probably only upon good reason, not arbitrarily
or punitively), thus creating gradations in neutrality – those whose services have been accepted
will claim it, while those who have stepped ahead and began ministering to the needy despite
official rejection of their ‘offer of service’ will not be able to claim protection. Think of the Nobel
Prize winning Non-Governmental Organization (NGO) Médecins Sans Frontières/Doctors without
Borders (MSF), which has explicitly set itself to act even if its services are not welcome by the
local authorities (Bettati 1996). This avowed refusal to recognize borders of sovereignty whenever
the NGO finds them a hindrance to humanitarian care was one of the lessons its founders took from
earlier relief operations, mainly in Bangladesh and Biafra (Fox 1995). In a way, MSF professes
supererogatory commitment to humanitarian medical care, whether protection is guaranteed or
not. But MSF, as well as the ‘man in the street’, also expects that MSF’s neutrality be respected
unconditionally. We may wonder whether international law sets a wedge between the duty to
protect and the unlimited commitment to care. It may appear that medical care under a non-official
but clearly recognized emblem and non-authorized medical care under a recognized emblem may
benefit from lesser immunity or no immunity at all.
Since international law does not confer a special status on humanitarian activities that are
conducted outside the context of armed conflict, one may wonder whether their status is lower than
the same kind of expeditions operating within the context of armed conflict, whether authorization
of their help implies immunity, and whether the emblem they use makes a difference.
The arrest in Benghazi by the Ghadafi regime in 2006 of six healthcare professionals from
Bulgaria, libellously accused of dissemination of HIV among babies, exposed the unrecognized status
of humanitarian missions when they are working in needy but peaceful territories (Kreisel 2007).
As in the case of the emblem debate, we find tension between the natural and universal desire
to offer equal protection to all non-combatants and the fine letters of international law which imply
gradations and nuances even within the very category of medical neutrality. On the one hand every
known medical non-combatant target should be equally protected; on the other hand, it seems that
5 Geneva Convention, Additional Protocol II (1977), clause 18 [Online]. Available at: http://www.icrc.
org/ihl.nsf/FULL/475.
the emblem flagged, the type of conflict and similar variances alter the extent or stringency of the
duty of respect.
In order to develop an insight into the value of medical neutrality, in the next section we explore
its philosophical and historical roots and in the sections that follow present a theory of medical
neutrality that is based on the principle of double effect.
The Philosophical Rationale of Medical Neutrality
At this stage we wish to step aside from the analysis of international law and to explore
philosophically the possible reasoning behind the notion of medical neutrality and to examine
them against the various interpretations given to this value.
The first possible mode of reasoning behind medical neutrality is traceable to the Greek
concept of philantropia and the Roman notion of humanitas. The contemporary term
‘humane treatment’ in constitutional and human rights theory is quite close to that original
meaning. The Greeks and the Romans were not very generous with their defeated enemies,
but at the same time they harshly and unconditionally condemned certain cruelties such as
mass enslavement, indiscriminate massacre, rapacious pillage of unprotected populations and
systematic mutilation. The central authorities punished consuls and governors who resorted to
such practices. In one such case, the Senate of Rome put the proconsul Laenas on trial because
he destroyed a town that had surrendered to Rome, sold 10,000 of the people into slavery and
expropriated large tracts of land (Bauman 2000: ch. 2). We may say that, for these Romans, the
‘principle of humane treatment’ was absolute and unilateral. Sparing the wounded and the sick
did not depend on reciprocal behaviour; rather, the perceived asymmetry between ‘barbarians’
and ‘civilization’ was the very reason that inhumane behaviour was such an affront if practiced
by representatives of ‘civilization’.
As long as people have some level of choice that can bear on the military and political reality,
their adversary might press on them to desist. But the sick, the wounded and shipwrecked are
powerless; In fact, they do not even have the power to surrender. Therefore, the most likely
explanation for the principle of humane treatment hinges on the complete helplessness of the
victims. Furthermore, whatever one may ask them to do will be unconscionable, and invalid.
As a result we may observe that it is less easy to invoke the principle of humane treatment
to protect medical personnel than it is to invoke it to protect the sick and wounded. Military
medicine has always been central part of the war effort. As a matter of fact, every significant army
and military campaign depends on elaborate healthcare efforts in terms of hygiene and other
medically engineered preventive measures. Medical teams are not helpless either. Although
they may not feel free to flee and leave the sick and wounded behind, they can surrender.
However, we contend that medical teams are more like helpless patients than active warriors.
It is in the nature of medical teams that even after they surrender, they can and should continue
with their work. This is the second meaning of medical neutrality prescribed by international
law – the duty to minister to the needy equally, with no distinction between friend and foe.
Because neither victory nor surrender will affect their work, medical teams are neutral as well.
Once the duty of care takes precedence over active loyalty to a belligerent party, the surrender
of doctors becomes an absurd notion; it amounts to giving up medical practice.
Deliberate disablement of the medical units of the enemy is of evident tactical benefit,
but it is not much different from active biological warfare. We have to bear in mind that,
historically, infectious diseases have killed more people during wartime war than weapons
have. Like biological and chemical weapons, epidemics spread indiscriminately and visit
widespread suffering on non-combatants, and even on one’s own soldiers and civilians. The
indiscriminate, unpredictable and extensive nature of epidemics typically renders their harm
disproportionate. If jus in bello requires that every destructive measure be ‘proportionate’, it
is impossible logically to justify neglect of public health as ‘proportionate’, because the extent
and unpredictability of indiscriminate harm is beyond measure. Hence, it is moral and legal for
doctors to ply their practice even as (released) prisoners of war who help with the clinical and
general care of the other side, provided that they are given the opportunity to work and to treat
indiscriminately.
Indeed, even prior to the Geneva Convention, in the American Civil War, in the Seven Years
War, and possibly even earlier, physicians who had become POW were released and allowed
to practise (Charters 2010; Fulton 1943). Henry Dunant’s first humanitarian achievement,
immediately following the Battle of Solferino in 1859, was an order to release all captive
doctors (Gumpert 1938: 51). Moreover, nowhere in the literature do we find concerns that
captured physicians, ‘armed’ with their tools of trade, might perfidiously harm enemy soldiers.
The voluntary nature of the ICRC and other NGOs underscores the alleged independence
of interest and purity of motive (although both presumptions have met criticism as well – see
for example Hardt and Nerdi 2000: 312–15; Redfield 2005). NGOs can neither ‘surrender’
nor affect the outcome of the war either (but see Gourevitch 2010). It follows that the second
meaning of medical neutrality bolsters the first one. Because care-givers always care for all
patients impartially, they are beyond surrender, just like the patients who depend on their care.
Moreover, because they have tied their own fate to the fate of the helpless, just like their
patients, they are similarly vulnerable.
A broader framing of the humanitas principle is explicated by Elizabeth Anscombe (1961)
and Thomas Nagel (1972). These scholars distinguish between the threatening aspect of a
person and his or her general humanity and human needs. In this light, it is not permissible
to withhold food and medical care, which are general human needs, while it is permissible to
shoot at soldiers who act as threatening agents.
The second possible reasoning justifying medical neutrality is that since non-combatants do
not pose any threat, killing them is either vengeful or exploitative of the innocent as mere means
towards a strategic goal (MacMahan 2004). Only third party care-givers (for example ICRC
volunteers) and professionals released from captivity who are no longer under the command of
military superiors may be considered inherently non-harmful.
The third possible reasoning underlying the notion of ‘medical neutrality’ is the common
motivation to limit destruction and suffering. It is assumed that if all the parties involved were
to forgo indiscriminate and highly destructive weapons, everybody would suffer less, while
the fate of the battle will not be affected either way. One may trace this mode of reasoning
to Thomas Hobbes, who, in the Leviathan (ch. 13), describes the lot of humanity in the ‘state
of nature’ as a futile arms race among more or less equally powerful and equally vulnerable
parties. The most prudential move according to Hobbes is consensual surrender of power for the
sake of mutual security. If peace is disturbed, recourse to power may be moderate and effective
as well. For example, the weapons to be avoided could be those that bear ‘a high level of
predatory impact to cost’ (Posner 2003); another definition might be ‘high level of destruction
coupled with low level of strategic gain’. For example, reflection on the poisonous gas warfare
in the First World War reveals a highly destructive, mutilatory and agonizing technology which
had little impact on the progress of the war (Haber 1986). In the same vein, targeting the sick,
wounded and those tending to them would be exceedingly harsh with very little, if any, military
benefit, if at all.
The barrier to disarmament is the perennial fear that covert non-compliance will lead to real
strategic imbalance. But because abuse of the sick and their care-givers brings no advantage
whatsoever, in the face of disrespect for medical neutrality, there is no substantial (as opposed
to a strong psychological) temptation to reciprocate in kind. It follows, that while a moratorium
on expensive and overtly destructive weapons and tactics is necessarily reciprocal, respect for
medical neutrality need not be so.
A fourth justification of medical immunity focuses on the special value of medicine as
worthy of a privileged status that compels active protection. The Geneva Convention clearly
speaks in this spirit, as the positive duties to search, collect, and provide care for the wounded
are the hallmarks of the novelty of the Convention. The Convention marked a move from
‘protection’ as a negative right of non-violation, to a positive right to receive necessary care.
Moreover, and whereas the Convention underlined the equal and indiscriminate care for friend
and foe alike, no similar duty of the authorities existed towards its own ordinary civilians
who, in times of peace, fell ill or were injured in accidents. Indeed, literal implementation of
the Convention would oblige sovereign states who provide good healthcare to its soldiers but
almost nothing to civilians, to care for the enemy’s wounded better than it cares for its own
citizens.
The language of the first additional protocol is even more demanding (Article 10(2)):
In all circumstances [the wounded, sick and shipwrecked]shall be treated humanely and shall
receive, to the fullest extent practicable and with the least possible delay, the medical care and
attention required by their condition. There shall be no distinction among them founded on any
grounds other than medical ones.
Although the ICRC’s commentary on this article contextualizes the duty of care to the resources
at the disposal of the party in power, it still follows that if a government provides high-quality
healthcare to its soldiers and little to its own civilians, it is obliged to care for the enemy’s
wounded as if they were its own soldiers, that is, to a higher standard than the care it offers its
own citizens.
Although it seems that the privilege theory of medical neutrality fits well with the duty
of active protection, the riddle of passive protection, of ‘respect’, still remains unresolved.
Is it possible that different categories of non-combatants (for example those with an official
emblem, those without) may claim different degrees of respect? In the following sections we
will argue that although the duty to refrain from direct and deliberate harm applies to all non-
combatants alike, the duty of respect might indeed vary from one group of non-combatants to
another when weighing the risk of collateral harm, We will also explain how the positive duty
to active protection brings with it a positive differentiation at the level of respect.
The Problem of Collateral Harm and the Construction of the Positive Duty to Care
We find in the Geneva Convention a demarcation of a special moral zone – the battlefield and
other places of military engagement. There, the party exercising effective power must actively
and equally ‘search and collect’ and care for all those who need it, whether due to battlefield
trauma or natural causes. This should be done at the standards of care ‘practicable’, regardless
of whether ordinary civilians benefit from those standards during times of peace.
This kind of commitment is in line with the implicit conception of responsibility (Turoldo
and Barilan 2008; Barilan 2012: ch. 6). The two most important factors for the establishment
of moral responsibility are the context of responsibility and the capacity to act effectively. The
context of responsibility is either an action (for example a driver involved in a car accident) or
a promise (for example acceptance of a role as a physician or a soldier). It is also evident that
nobody is expected to perform actions beyond their own capacity to do so. The car driver is
responsible for calling for help, regardless whether he or she is blameworthy for causing the
accident. If the driver is also a nurse trained in emergency medicine, she is expected to do much
more than call the police. The more severe is the crisis and the more capable is an agent, the
greater becomes the burden of responsibility to tender aid.
In the context of armed conflict, the warring parties are clearly responsible, even when not
blameworthy, for the death and suffering. Consequently, and perhaps paradoxically as well, we
believe that the cruelties of war have given birth to a unique domain in which the humanitarian
motivation behind medical neutrality is stronger than the commitment to salvage and care in
the wake of natural disasters and calamities. This does not result from a mutual desire to protect
the soldiers each belligerent is sending to fight, as the special duty of protection applies to all
victims of hostilities – civilians and soldiers alike. It is the combination of causal responsibility
and the capacity to act that impose, upon the armies involved, stricter duties to respect and to
protect that are stronger than the legal and humanitarian commitments to assist anybody who is
in serious trouble (for example the ‘rule of rescue’ – McKie and Richardson 2003).
While the ‘rule of rescue’ applies only to needy people who are directly and immediately in
front of the potential rescuer (that is, ‘Good Samaritan’ scenarios), the formulation ‘to “search
and collect”’ the wounded, sick and shipwrecked frames a new and positive moral obligation
that stretches beyond the naturalist conceptualizations of responsibility and the ‘rule of rescue’.
As such, it is possible to limit this special, additional, duty to specific groups of non-combatants,
such as authorized volunteers in national conflicts, and to medical personnel and their patients
in international armed conflict, while declining to include the three less privileged groups
– unwounded civilians, those who use unofficial emblems and care-givers whose voluntary
assistance in civil war was not authorized by the authorities.
This interpretation of the active and special duty to ‘search and collect’ and care does not
solve the emblem debate with regard to its protective power. Indeed, we submit that direct and
intentional harm of the innocent is universally and equally condemnable. Targeting a military
hospital, a civilian hospital, a school or a nursing home is equally reprehensible to the extent
that the responsible army is aware of the innocent nature of the target. For such awareness no
‘authorization’ of emblems is needed, rather, the case of the Red Diamond and the Red Star of
David illustrates how awareness of an unofficial emblem is more widespread than awareness
of an official one.
Things become more complicated when the innocent are at risk of collateral damage during
legitimate military action directed at other, nearby, legitimate targets. In medical ethics the
problem is known as ‘side effects of treatment’ whose legitimization is derived from the
informed consent of the patient, the standards of good clinical practice, and the Doctrine
(or Principle) of Double Effect (DDE) whose historical origins are in the ethics of harming
civilians in war (Mangan 1949). In light of the contemporary literature we reconstruct the DDE
comprising the following conditions:
1. A good or a morally neutral action (for example winning a just war or shortening it).
2. A bad, unintended, but foreseeable, effect (for example harm to the innocent).
3. The bad effect is not the means, but a mere unintended side-effect (for example civilians are
not targeted in order to break the morale of the belligerent side).
4. The bad outcome is neither more immediate than the good one nor is it logically contained
in it.6
5. The good action or goal is proportionate to the bad side-effect.7
6. To the extent possible in the given circumstances, the agent has verified that the course of
action is the least harmful among those available (Renick 1994; Uniacke 1984: 201–2).
7. In contexts of responsibility (for example medical care) and when the risk is very high and/
or the negative impact is extensive (for example military bombing) this is not enough. There
is a moral duty to take active action in order to reduce risk and harm. This is the Principle
of Double Intention (Walzer 2006: 151–6).
8. When possible, there is also a proper legitimization, such as informed consent. The
legitimization is an additional restriction in the sense that informed consent beyond the
limits of the PDE.
Hence a physician may prescribe a painkiller to a terminal patient, although the medication might
occasionally be lethal. As long as the death is not the means to pain relief (that is, suicide by drugs)
and the outcomes are proportionate, treatment is permitted. For example, death with dignity is
a benefit proportionate to the risk of losing a few days of life; death as a side-effect of treating
toothache is not, even if the patient has agrees to such risk.
We wish to argue that international humanitarian law and the laws on armed conflict (LOAC)
embody the current structure of legitimization. They are the informed consent given by each nation
to the scope of risk and proportionality it would morally accept during war. As in the case of
prescribing a dangerous painkiller for a toothache, informed consent is an additional requirement,
not a substitute for any of the other moral and legal demands. Hence, belligerent parties are not
entitled to mutually waive the claim to the PNCI. PNCI and medial neutrality are not pure contractual
agreements between the warring parties, but natural moral duties whose extent, formulation and
mode of arbitration are contractual.8
The DDE is beset by two formidable conceptual challenges relevant to our discussion. First,
one has to define a statistical range of acceptable ‘foreseeability’ of the bad event. Clearly, we
consider neither an extremely rare nor an almost inevitable occurrence.9 The former needs no
6 An example in which the bad outcome is more immediate: although burning the land will deprive
ammunition factories of wood, the populace will starve first.
7 For example, the collateral damage of a one-ton bomb might be proportionate to the gain in destroying
an ammunition factory; disproportionate to the elimination of a single sniper.
8 We should distinguish between ‘natural contracts’ that are hypothetical, and positive contracts. The
natural principle of PNCI may be conceptualized as a kind of natural contract (because it involves mutual
duties of two parties).
9 As a matter of fact this has been a hot point of contention in the philosophy of PDE. On this point
we follow Sulmasy (2007). But others accept even inevitable bad action as long as it is unintended and not
instrumental to the good one. Philip Devine concludes that in order to render the bad effect morally tolerable,
‘there must be a non-fantastic scenario’ by which the good effect occurs and the bad one does not (Devine
1975: 54). We deviate from the paradigmatic discourse on the subject on two points. First, we maintain that
as long as the bad effect is a violation of a human right, it must not be logically contained within the good
effect (Barilan 2012: 214). Second, we believe that the reasonableness of the risk of the bad effect is context
justification; the latter cannot avail itself of the DDE. Traditionally, ‘foreseeable’ meant something
like ‘possible’. In the early nineteenth century, for example, some moralists opined that the DDE
permits the performance of Caesarean surgery in obstructed labour despite mortality rates in the
range of 50 per cent. Others thought it was too high a risk to be considered a ‘foreseeable’ outcome,
and that carrying out such a surgery amounted to homicide, regardless of doctors’ optimism and
good intentions overall (Filippini 1995). Some moralists endorsed this surgery only when it came
as an alternative to embryotomy (killing the foetus during childbirth as a last means to save the
mother’s life), as the possible death of one person is offset by the saving of another (Ryan 2002:
476–8).
Related to this problem is the question of proportionality. During the Second World War, the
Roosevelt administration maintained that the extensive havoc caused by ‘strategic bombings’ was
proportionate to the goal of ‘shortening the war’. Yet, consequently, moralists operating within the
paradigm of the DDE condemned these bombings, because of their inevitable collateral death and
suffering of dozens of thousands of innocent civilians (Ford 1944). One retort to this has been that
because contemporary warfare involves the loss of numerous civilian lives, it is delusional to go
to war with a sincerely held but patently unrealistic belief that, by the end, nobody or only a few
innocent people will have died (Lichtenberg 1994).
We wish to suggest a somewhat different line of reasoning. If a city council relies on the DDE
in endorsing a vaccination programme that saves the lives of 10 per cent of a population of 100,000
people, but also causes a lethal side-effect at the rate of 1/10,000, it would be absurd to argue that
a national government cannot implement the very same vaccination programme on a population of
10,000,000. Although the latter programme will surely kill dozens of people, this is certainty due
to the large scale of the initiative, not due to disproportionality of risk. This example shows that the
scale of the action is no less relevant a consideration than its context. It is evident that expectations
regarding harm in an ethically conducted war are on a different scale from expectations in the fields
of good clinical practice and public health. It is also expected that the government will compensate
the few victims of the vaccine, but not the many victims of war.
So far we have explored the limits set on collateral damage within the PNCI. At this point
we contend that respect for medical neutrality requires higher standards in terms of risk and
proportionality. In addition to the reasons listed in the previous section, practical considerations
play a formative role as well. While a medieval warrior may shoot arrows over city walls, and
sincerely hope that civilians not be hit, modern warfare does not allow the dispatch of bombers
with only one or two weak bombs so as to render it possible for the pilot to hope seriously that each
mission hit only legitimate targets.10 This point was a prime motivator in the formation of the ICRC.
In its 1863 conference, a Dr Landa explained, ‘the true ground of the inadequacy [of contemporary
military medicine] is the disproportion between the development of the means of protection and
dependent, as illustrated from the examples we explore in the text of obstetric emergencies, vaccination and
bombing. Even in the context of war, there is a stark difference between the Pacific theatre in World War II, in
which dozens of thousands of soldiers died in almost every major battle and in which one party was not ready
to surrender even when its case had been lost, and minor and less zealot-armed conflicts.
10 One may also acknowledge the growing role of ‘smart bombs’ and targeted missiles in the reduction of
collateral harm. However, the annals of contemporary warfare are replete with accidents and errors in the use of
‘smart weapons’. Suppose a ‘smart missile’ is launched against a military airfield, but, accidentally and, despite
appropriate precautions taken, it hits a civilian neighbourhood ten kilometres off target. It is still legitimate to
launch a second missile at the very same airfield, but this time, greater and stricter measures of precaution must
be taken. This is because the risk of collateral harm now involves a privileged population (the wounded from the
first missile) and because the appropriate response to failure is additional attention to safety.
the means of destruction’ (Gumpert 1938: 129). Reflection on the inherent imbalance between
our power to protect and heal on the one side, and on the growing human power to destroy on the
other, brings forth the observation that sooner or later the range of permissible harm permitted as
an unintended and foreseeable consequence of warfare will be so severe, routine and extensive as
to empty the value of neutrality from actual content; if extraordinary protection is not accorded at
least to the very vulnerable and their care-givers, the victims of war will be left without effective
assistance, much like those observed by Dumont in Solferino.
Besides, it would be both lethal and futile to dispatch medical teams to war areas if they are
doomed to perish, or become ineffective due to excusable ‘collateral harm’.
In earlier formats of war (and in skirmishes typical of so-called asymmetric wars), it was
possible to scavenge the battlefield and rescue the wounded after engagements that lasted minutes
or hours. But in modern warfare, the frontlines remain unsafe unless immunity is specifically
vouchsafed. Indeed, the Geneva Convention does not grant protection to medical personnel
because of their own status, but because they provide care for the wounded (Pictet 1975: 45). This
point is of special significance in light of contemporary trauma medicine, which underscores fast
delivery of life-saving care. For trauma patients, every minute counts. Indeed, and much before the
consolidation of contemporary trauma medicine (for example ATLS), The Geneva Conventions
decreed that the wounded be searched and collected, ‘as soon as possible’. If care-givers must not
wait until the battlefield has calmed down fully, they must be protected from the risk associated
with commitment to ‘as early as possible’ medical care.
Double Standards and Double Effect
If our interpretation is cogent, humanitarian law contains two standards of protection from
collateral harm. The first is the PNCI, which has traditionally been expressed in terms of the DDE,
or a similar conceptual tool. It is mainly a negative duty to ‘respect’ in the sense of deference, of
exercising reasonable efforts to refrain from harm. The second standard is the active duty to ‘search
and collect’ and heal, which compels a stricter standard of ‘respect’ whenever the needy and their
care-givers might be involved.
Moreover, while the standards of proportionality in naturalist ethics are roughly a matter
of consensus among reasonable persons wherever they are, extraordinary standards depend on
positive legislation. The further one distances oneself from ordinary proportionate judgement, the
less ‘transparent’ the law becomes. It is less self-evident and more convention-dependent (Raz
2001). Hence, we propose that the transition from proportionate judgement towards protection
beyond ‘reasonable standards’ compels a transition from naturalist thinking into positive law. In
naturalist modes of moral reasoning, there are no double standards of foresight and proportionality;
but positive legislation may create artificial, conventional, standards. Because they can depend less
on naturalist ethics, the more conventional is the protection, the more ritualistic and codified its
norms are expected to be.
It may follow that an ambulance carrying an unofficial emblem may be deliberately exposed
to risk of collateral harm that is permitted by the DDE; but it would be forbidden to inflict the
very same risk on an ambulance carrying an official emblem. At a first glance this might appear
senseless, discriminatory and arbitrary, but on a deeper reflection, it reveals the power of positive
conventional law to augment, but never to diminish, the naturalist standards of respect.
As will be proposed briefly in the last section, we also believe that it might be possible to
discover in military theory as well as in actual orders and actions, a range of proportionality that fit
the proper extraordinary respect that is due the needy and their care-givers.
Conclusion
While the PNCI is old and quasi universal, the foundation of the ICRC and the Geneva Conventions
are associated with the circumstances of modern warfare and the rise of humanitarianism, weaving
together three distinct but interrelated threads. The first and most immediate is the motivation to
actively provide care for the victims of the battlefield. This necessitates assurances for the safety
of both injured and care-givers in areas prone to lawlessness chaos, and licit violence. Although
no concerns were raised at the time about abuse of the wounded and their care-givers, it became
evident that technical (for example lack of internationally recognized emblems) and substantial
(for example the intensification of war) factors compelled active interventions for the sake of
meeting the humanitarian standards of the day. Because the parties to armed conflicts must allow
for conditions of effective and safe evacuation and care of the wounded and sick, a method of
warfare that does not permit safe and effective care is incompatible with humanitarian law, and
human sentiments. We should construe the conventions on the duties to respect and protect on
the basis of a conception of minimal standards of care. This scheme highlights the power of the
standards of protection to compel some minimum standards of respect.
The second thread is the rising tendency to restrict war and to reduce its devastating impact on
the innocent as well as on cultural and other assets and resources. This consideration applies to all
non-combatants alike; but the victims of war and their care-givers need special legal and practical
provisions of protection because they are typically soldiers found in proximity to the frontline, and
because they need evacuation and care. The third thread is the recognition that the value of medical
neutrality comes as a positive addendum to the customary law on the PNCI. Effective delivery of
care in war zones requires conventions that set higher standards in terms of risk and proportionality.
Much military activity (in for example counterinsurgency operations) is conducted within
civilian environments in conditions that do not permit effective distinction between the combatants
and non-combatants However, every arena of struggle is liable to gradations of strictness regarding
risk and proportionality within the observance of the PNCI. If we wish to maintain more rigorous
standards of medical neutrality, the international community should set explicit and applicable
norms so as to adjust its positive standards to the realities of the day.
Although this may sound a little abstract, we have to keep in mind that contemporary military
actions are documented in highly detailed orders and post-action debriefing. Therefore, we would
expect to find in each set of orders and debriefings a chapter dedicated to intelligence on potential
innocent victims, the steps taken to evaluate risk and alternative courses of action, as well as the
active steps taken in line with the duty of protection. The cumulative experience of such orders
and debriefings may consolidate into a rich and referable data on standards of both respect and
protection.
The insights proposed in this chapter do not address all aspects of medical neutrality in armed
conflicts. One pressing issue is the pressure of the authorities on medical personnel suspected of
providing care – knowingly or not – to insurgents who frequent clinics or bring their wounded to
civil hospitals. However, such problems also illustrate the limitations of naturalist conception of
the PNCI and the need for comprehensive agreements regarding the protection of the sick and the
context of medical care. The PNCI articulates ‘practical neutrality’, while the value of medical
neutrality is about a ‘privileged neutrality’ as a proactive norm of active duty and extra precaution.
Acknowledgment: This research was supported by The Israeli Scientific Foundation (Grant
197/10).
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PART II
Military Medical Ethics and
New Technologies
Chapter 7
Enhanced Warfighters: A Policy Framework
Maxwell J. Mehlman, Patrick Lin and Keith Abney
Militaries worldwide are making substantial investments in human enhancements – giving the
warfighter a technological upgrade. Driven by neuroscience, biotechnology, nanotechnology,
robotics and other emerging technologies, this upgrade includes research to build warfighters
who can operate for days without sleep or food, lift superhuman loads, learn faster and even
communicate telepathically.
Such new abilities jump right from the pages of science-fiction, giving rise to ethical and policy
questions not seriously before contemplated. To be sure, much work exists on human-enhancement
ethics in general. But there is currently little analysis of the issues in a military context. Considering
recent controversies such as required amphetamine use for certain pilots to stay alert on long
missions, how safe should these enhancements be prior to their deployment? Are there meaningful
reasons for which a warfighter should be allowed to object to being enhanced? How should we
weigh the risks to the individual against the benefits of an enhanced military?
In this chapter, we will offer a framework for considering these and other bioethical questions
related to military enhancements. First, we will briefly review existing ethical and legal frameworks
to determine their strengths and limitations, and then we will construct a hybrid framework that
can account for the special considerations in a military context, which is more complex than non-
military scenarios. We focus on the US military as the one with which we are most familiar, though
certainly many parts will be relevant to other militaries worldwide.
Since this chapter is only a basic framework and due to space considerations, we certainly are
leaving out many important details, scenarios and issues, some of which we discuss more fully
elsewhere.1 This omission includes defending a definition of ‘human-enhancement’, which we will
only stipulate here as: an enhancement is a medical or biological intervention to the body designed
‘to improve performance, appearance or capability besides what is necessary to achieve, sustain or
restore health’ (Juengst 1998: 29–47).
This definition means that the following are not counted as enhancements: anabolic steroid
use by a muscular dystrophy patient; modafinil use by person with attention deficit hyperactivity
disorder (ADHD); meditation to overcome pain, emotion, hunger and other mental states;
eyeglasses for the near-sighted; and ordinary tools such as computers or hammers. In contrast,
the following are counted as enhancements: anabolic steroids use by otherwise-healthy athletes;
modafinil use by students for higher grades; drugs or gene therapies to overcome emotions, fatigue,
hunger and other physical liabilities; bionic eyes that enable super-vision; and neural chips that
give an individual on-demand access to spreadsheets and online information.
Notwithstanding a lack of general consensus on what counts as human-enhancement, including
notable grey areas in the distinction between enhancement and therapy (for example, Bostrom
and Roache 2008; Allhoff et al. 2010), the above-stipulated definition should be reasonably clear
enough for us to proceed.
1 See Lin, Mehlman and Abney 2013, and Lin 2012.

Current Frameworks: Ethics, Law and Risk
At first, identifying a specific set of norms for military enhancement might seem superfluous.
Wouldn’t these be the same basic norms that govern military medicine in general? But there is no
consensus which has defined those terms. More importantly, as will be seen, the use of biomedical
enhancement by the military does not comfortably fit current models of military medical care.
Alternatively, the norms pertaining to performance enhancement in sports might be thought to
be an appropriate ethical and legal framework for military enhancement. But there is considerable
controversy over what the norms in sports ought to be as well (Mehlman 2009). Moreover, even
if one takes the position that doping in sport is unethical, a persuasive argument can be made that
sport is not a good analogy for the military. For instance, enhancements in sports may confer
benefits on individual athletes and teams, but they do little for society. In the military, on the other
hand, safe and effective biomedical enhancements could produce significant societal benefit by
promoting the welfare of our warfighters to better accomplish missions in the national interest –
potentially decreasing our collective risk.
In the following, we will briefly examine existing ethical and legal frameworks and see how
much of what we need for an evaluation of military enhancements can be imported from the
normative regimes of medical research, medicine, risk assessment, military practice and public
health.
The Research Model
Members of the military might be given biomedical enhancements as part of a formal research
study. A formal research study, to quote from the Belmont Report, is ‘an activity designed to test a
hypothesis, permit conclusions to be drawn, and thereby to develop or contribute to generalisable
knowledge …’.2 Two prerequisites must be fulfilled in order for something to count as a formal
research study: (1) the endeavour must be conducted according to basic principles of scientific
research, and (2) the primary intent of those conducting the endeavour must be to produce
knowledge, rather than to provide benefit to specific individuals, in particular, to the subjects.
However, the military has a chequered past when it comes to human experiments on its members.
Formal research studies conducted on military personnel are subject to a reasonably well-
defined set of ethical and legal rules derived from the so-called Common Rule (32 CFR §219.101
ff). This rule was a refinement of rules that were first enunciated in 1946 in the Nuremberg Code,
followed in 1964 by the World Medical Association’s Declaration of Helsinki, and most notably,
the 1979 Belmont Report by the President’s Commission for the Study of Ethical Problems in
Medicine and Biomedical and Behavioural Research, which was codified in federal regulations as
the Common Rule.
The Belmont Report enunciates three overarching principles: ‘respect for persons’,
‘beneficence’ and ‘justice’. The first requires that competent individuals be asked to give their
informed consent to participate as research subjects and that protections be afforded to persons
who are not competent to give their consent. Second, beneficence – related to the principle of
‘non-maleficence’ or to do no harm – requires that the risks to subjects be minimized and the
potential benefits maximized. It should be noted, however, that the benefits of the research need
not redound to the subjects themselves; the study may involve gathering basic knowledge rather
2 National Commission for the Protection of Human Subjects of Biomedical and Behavioural Research,
The Belmont Report: Ethical Principles and Guidelines for the Protection of Human Subjects of Research 1979.
Enhanced Warfighters: A Policy Framework 115
than providing health benefits, and the knowledge may benefit others or the population in general
rather than the subjects themselves. Third, in the context of medical research, justice requires that
subjects be chosen fairly and that the benefits from the research, if any, be widely available. The
primary responsibility for seeing that research fulfils these requirements rests with the researchers,
but the Common Rule establishes a system of institutional review boards (IRBs) to ensure that
these requirements are carried out.
The manner in which IRBs should review protocols for military research, however, is unclear.
The fact that military research is intended to further national security interests may lead IRBs,
especially those within the military, to approve studies that pose risks that would be unacceptable
in civilian-sponsored research. This may very well be ethically and legally appropriate in view
of the potential benefits to the nation, but both IRBs and researchers lack clear guidance on how
these risks and benefits should be balanced. On the other hand, due to concerns about the inability
of service members to provide truly voluntary informed consent, IRBs may reject studies using
military subjects that would be approved if the subjects were civilians.
In addition, military IRBs may be susceptible to undue influence due to the ‘command culture’
in which they function. For instance, commanders choose the members of military IRBs, although
subject to requirements concerning board composition (Amoroso and Wenger 2003). The result
may be that IRBs approve military enhancement research that they otherwise should not, and
block or unreasonably delay studies that otherwise should go forward. Furthermore, some military
research may be classified, which creates special challenges for researchers and IRB review.
Finally, federal regulations forbid IRBs from considering ‘possible long-range effects of applying
knowledge gained in the research (for example, the possible effects of the research on public
policy) as among those research risks that fall within the purview of its responsibility’.3 It is not
clear how this restriction should affect IRB consideration of the long-range effects of military
research.
According to US Department of Defense rules, research using military subjects, like civilian
research, ordinarily cannot take place without the informed consent of the subjects, and the military
recognizes the importance of insulating soldiers being solicited to participate in experiments from
undue pressure from their superiors. But there are two exceptions to the consent requirement:
one is for ‘emergency research,’ that is, studies of techniques to treat soldiers with medical
emergencies who, because they are unconscious or otherwise non compos mentis, cannot make
their own decisions.4 A similar exception recently has been recognized for non-military research.5
The second exception was adopted during the First Gulf War. In that conflict, the military wanted
to give troops pyridostigmine bromide (PB) and botulinum toxoid (BT) vaccine to protect them
against nerve agents and botulism.
There is considerable debate on whether the use of PB and BT vaccine in the Gulf War were
in fact formal experiments or even enhancements, for example (Fitzpatrick and Zwanziger
2003; Wolfendale and Clarke 2008). To be clear, on our definition we do not count vaccines as
enhancements, as they can be used to sustain health; nonetheless, we refer to the PT and BT
vaccine here merely to illustrate the problems in using various models to govern enhancements,
and not as examples of enhancements themselves.
3 45 CFR §46.111(a)(2).
4 10 USC §980, 21 CFR §50.24.
5 US Department of Health and Human Services, Office of Human Research Protections, Informed
Consent Requirements in Emergency Research 1996.
In those instances, commanders simply ordered troops to take a pill or receive an injection,
the same way they ordered them to go certain places, take rests or engage the enemy. Even if the
commanders had informed the troops that the pills and injections were experimental, as a practical
matter, the troops may have felt constrained to obey the commanders’ orders. A solution might be
to restrict military enhancement research to subjects who were non-combatants, but this may not
adequately reproduce the conditions on the battlefield under which the experimental intervention
was expected to be employed; and a lengthy research trial may fail to comply with the urgency of
‘military necessity’, which allows warring parties to apply any measures required for the successful
conclusion of a military operation, so long as they are not forbidden by the laws of war.
Apart from the perspectives of the subjects and their commanders, there is an additional
perspective that must be considered, that of military researchers who are physicians. As physicians,
they are subject not only to the general ethical and legal rules that protect human subjects, but also
to special rules that govern physicians who are acting as researchers. The question, however, is
whether these rules change when the physician researcher is a member of the military. This leads
to the broader question of what rules should govern military physicians who participate in giving
warfighters enhancements in non-research – that is, deployment – settings. Even if warfighters are
not given enhancements directly by a physician, the fact that these interventions are biomedical in
nature may suggest that, from an ethical and legal standpoint, giving them to warfighters should be
treated essentially as the practice of medicine. The question then becomes: what ethical and legal
rules for military enhancement are suggested by a medical as opposed to a purely research model?
The Medical Model
The medical model shares many elements with the research model. It too emphasizes patient
autonomy, including voluntary, consensual, informed decision-making, and protections for persons
who are not competent; justice; and beneficence, which entails maximizing benefits to the patient
and minimizing risks. The two models differ in one key respect, however: in the medical model,
the physician essentially owes her loyalty exclusively to the patient, a principle that the law reflects
by treating the physician as a fiduciary for the patient. This means that everything the physician
does in connection with the patient must be in the patient’s best interest, and that the physician may
not sacrifice the patient’s welfare for that of the physician or anyone else. Principle VII of the Code
of Ethics of the American Medical Association puts it succinctly: ‘A physician shall, while caring
for a patient, regard responsibility to the patient as paramount.’
Yet it is clear that, at least in some respects, patients who are members of the military clearly do
not have the same rights as civilian patients. For instance, competent civilian patients have a right
to refuse treatment, but it is generally understood that warfighters do not have the right to refuse
care that physicians deem necessary to return them to active duty (Wolfendale and Clarke 2008).
As Michael L. Gross observes, warfighters also have far fewer rights in regard to privacy and
confidentiality: in the military, ‘the hallmark principles that drive bioethical decision-making in
ordinary clinical settings are largely absent. Military personnel do not enjoy a right to life, personal
autonomy, or a right of self-determination to any degree approaching that of ordinary patients.’ As
he puts it starkly, ‘combatants lose their right to life as they gain the right to kill’ (Gross 2006: 23).
More importantly, it seems fairly settled that at least in wartime, it is at least sometimes
acceptable for the military to subordinate the welfare of individual warfighter for the greater good,
namely, the welfare of the unit, the mission, and the state. ‘Unlike bioethical principles’, Gross
explains, ‘… the principles of contemporary just war often reach beyond the welfare of a single
individual – that is, the patient – to consider instead the aggregate interests of combatants and non-
combatants, and the collective interests of the state. At the same time, they must also contend with
military necessity’ (Gross 2006: 15).
However, while it seems accepted that the interests of the unit, mission, and state can trump
the interests of individual warfighters and leave them little in the way of personal autonomy, it
is not obvious how this should affect the role of military physicians or the use of biomedical
enhancements. At what point do individual interests stop mattering? How much harm may
a physician cause a warfighter for the greater good? Could a physician, for instance, remove a
soldier’s kidney in order to transplant it into a superior? A soldier’s heart? In terms of biomedical
enhancements, how much risk is too much? And who gets to decide what constitutes ‘acceptable
risk’: the commanding officer, the military physician, the warfighter himself, or someone else?
Gross admits that the warfighter may retain some individual choice. But how much is not clear:
Informed consent is the hallmark of bioethics, yet allowing soldiers to decide medical care
for themselves might be chaotic. Where does one draw the line? May one compel a soldier to
accept standard medical care but allow them to choose experimental care that might protect them
against novel biological and chemical agents? The answer is not clear. If soldiers have but limited
autonomy, on what basis may they refuse experimental or investigational drugs? This issue turns
partly on acceptable risk during war and on the difference between military risk and medical risk.
If a commander may expose his soldiers to significant military risk to gain an important military
objective, may he not accept a similar level of medical risk when treating them? (Gross 2006, 17)
Even without resolving these questions, the medical model, with its emphasis on patient welfare and
autonomy, does not seem capable of serving as the sole guide for determining the circumstances in
which it would be appropriate for physicians to give enhancements to warfighters. This conclusion
is reinforced in cases where enhancements are given to warfighters by persons who are not
physicians, such as their unit commanders. Nor does the fact that warfighters were being given
something biomedical alter this conclusion. Many biomedical products are transferred from one
person to another without being deemed the practice of medicine, such as the sale of illicit drugs
on the street.
But there is another ethical and legal model with a medical dimension that is worth considering.
Like the medical model, it deals with issues of health and welfare, but unlike the medical model, it
does not give priority to individual well-being or autonomy. This is the model that governs matters
of public health.
The Public Health Model
The US Constitution gives the government the ‘police power’ to protect the public from being
harmed by its members, and while the police power may be most closely associated with law
enforcement, one of its most important applications is to protect the public’s health. The scope of
this government power is very broad. As Larry Gostin writes, ‘public health has constrained the
rights of individuals … to protect community interests in health’ (Gostin 2000).
Public health authorities sequester not only people who are known or suspected of having a
transmissible disease, but those who merely have been exposed to such a disease, for example,
by having travelled in a country where it is found. Furthermore, people incarcerated in this way,
called quarantine, can be held for as long as public health officials deem necessary to ensure that
the patients have gotten over the disease or are no longer contagious, to demonstrate that they were
not infected in the first place, or, as in the case of Mary Mallon, aka ‘Typhoid Mary’ who spent a
total of 26 years confined to an island in the East River, to quarantine as long as necessary for them
to die. In the 1990s, for example, New York City confined over 200 people for approximately six
months after they refused to be treated for drug-resistant tuberculosis (Leavitt 1996).
In addition to quarantine, public health officers can invade people’s privacy by requiring them
to reveal the identity of those with whom they have come into contact, a practice known as contact
tracing. Contact tracing has been used in an attempt to combat the spread of HIV, particularly in
San Francisco; the contacts in that case were sexual partners, which illustrates the degree to which
individual privacy may be compromised in the interest of protecting the public’s health. In addition
to quarantine and contact tracing, public health officers can forcibly treat people, compel them to
be vaccinated, and obtain a sample of blood from a newborn before it is allowed to go home from
the hospital with its parents. Added to this is the power of the states to pass laws defining and
punishing unhealthy behaviours, which can run the gamut from operating an unsanitary restaurant
kitchen to transmitting a venereal disease.
Public health ethics and law thus differ from medical ethics and law. This was starkly
illustrated during the early stages of the AIDS epidemic, when physicians balked at efforts by
public health authorities to force them to identify patients who were HIV positive, arguing that
it would violate their duties to maintain their patients’ confidentiality and protect them from the
stigma and discrimination provoked by the disease. In fact, the public health model differs from
the medical model in precisely those respects that differentiate the medical from the military model
and that make the medical model ill-suited to govern the use of enhancements by the military.
Like the military model, public health is based on utilitarian rather than deontological principles,
subordinating the well-being of the individual for the good of others, and like military commanders,
public health officials can use coercion if an individual refuses to consent to do what they deem
necessary to protect the public health. (Of course, there is still a controversy over who gets to
decide that good and for which purposes.)
The public health model therefore seems ideally suited to serve as a source of ethical and legal
guidance for enhancement use by the military. Fitzpatrick and Zwanziger refer to this model, for
example, in discussing the ethics of giving drugs like PT and BT vaccine to troops in the field.
Fitzpatrick and Zwanziger (2003).
The analogy between the requirements of public health and military necessity is well
precedented. Indeed, in the single Supreme Court decision upon which the public health authority
of the state is based, a 1905 opinion in a case involving a Cambridge, Massachusetts, man’s refusal
to be vaccinated against smallpox, Justice Harlan analogizes the state’s exercise of its public health
powers to its power to compel a citizen to risk his well-being in time of war: ‘He may be compelled,
by force if need be, against his will and without regard to his personal wishes or his pecuniary
interests, or even his religious or political convictions, to take his place in the ranks of the army of
his country and risk the chance of being shot down in its defense’ (Jacobson v. Commonwealth of
Massachusetts, 197 US 11, 34 (1905)).
Yet as Justice Harlan also recognized, the authority of public health officials to override
individual interests and autonomy is not absolute. ‘According to settled principles, the police power
of a State must be held to embrace, at least, such reasonable regulations established directly by
legislative enactment as will protect the public health and the public safety.’ Harlan goes on to make
it clear that the courts will strike down public health actions that are ‘arbitrary or unreasonable’ or
‘cruel and inhuman’, and that the state cannot force someone to do something that would ‘seriously
impair his health, or probably cause his death’ (Jacobson v. Commonwealth of Massachusetts, 197
US 11, 34 (1905), 25 (emphasis added).
Public health officials have been condemned, for example, for conducting the experiment at
Tuskegee where African American men were left untreated for syphilis in order to chart the course
of the disease, not to mention for leading the eugenics movement in the early twentieth century
that involuntarily sterilized tens of thousands of Americans and that inspired the Nazi eugenics
programme. So the question is: what limits are there on the exercise of the state’s public health
powers, and how would those limits apply to the military’s use of enhancements?
A good starting point is a 2002 article by James Childress and colleagues. They assert five
principles to guide when individual welfare and autonomy may be overridden to achieve collective
public health benefit: First, the public health action must be effective to protect the public health.
In the authors’ words, ‘infringing one or more general moral considerations will probably protect
public health’ (Childress et al. 2002: 173, emphasis added). Second, the public health benefits must
outweigh the burdens on those who bear them. Third, the public health action must be necessary, in
that there are no effective alternatives. Fourth, the burdens must be minimized as much as possible.
Finally, the action should be transparent, that is, accompanied by notice and public justification.
To apply to military use of biomedical enhancements, these principles need refinement. For
instance, the first principle depends on how much evidence of effectiveness the military needs.
Giving warfighters an enhancement that was experimental, for example, might not be permissible
according to this interpretation, at least if the enhancement had undergone little or no human testing
(for example, not beyond a Phase I clinical trial), although the use of the experimental enhancement
might still be permissible if the use were regarded as human experimentation and the experiment
was conducted according to the rules for military experiments. On the other hand, it is not clear
that Childress et al. are correct when they require that a public health intervention ‘probably’ will
protect the public health, since if a public health emergency were dire enough, the authorities
surely would be permitted to force people to take a completely untried preventive measure if, as
mandated by Childress’s third principle of necessity, no better alternative was available. In short,
Childress’s model needs to more carefully consider how the various principles interact and are
interpreted.
The Risk Assessment Model
Problems in interpreting Childress’s principles are exacerbated in circumstances in which they

come into conflict, or their exact consequences or circumstances of application are unknown.
Accordingly, under conditions of uncertainty, policy planners often use risk-benefit analysis
(RBA), sometimes understood as a form of cost-benefit analysis, as a fourth model. This discussion
builds on the work in Lin, Bekey and Abney (2008) and the larger report forthcoming by Lin,
Mehlman and Abney.
Following that discussion, let us define risk simply in terms of its opposite: safety. Risk is
the probability of harm; and (relative) safety is (relative) freedom from risk. Safety in practice is
merely relative, not absolute, freedom from harm, because no activity is ever completely risk-free.
For instance, going on a training run raises the risk of heat stroke or heart attack. But, obviously,
some risks are well worth taking. How can we determine that?
Risk assessment purports to answer that question, by the attempt to calculate the expected value
of the result in a problematic situation (sometimes conflated with the ‘expected utility’). This allows
a quantitative assessment of both risk and benefit in a way that gives a clear numerical answer for a
course of action – a ‘decision algorithm.’ For example, we could decide that a genetic intervention
that would be expected to save the lives of a thousand soldiers exposed to a chemical agent – but
with the side effect of causing paralysis to 10 per cent of those soldiers – would be unacceptable
(to the relevant military or political decision-makers) as too great a cost, perhaps appealing to the
principle of proportionality; and so we would demand changes in the genetic enhancements to
make them safer before they were used. But when the expected loss is down to, say, 0.5 per cent
– so we expect 5 soldiers out of 1,000 to be paralysed as a result – the decision-makers may judge
the enhancement ‘safe enough’ to use. Such judgements are routinely made for vaccines and other
public health interventions that bear some risk for the individual while enhancing the whole. Such
judgements are also routine for commanders of troops in wartime, assessing whether particular
tactics in battle are too risky or not.
But of course, while this sense of risk as expected value may be desirable for policymakers, it
often greatly oversimplifies the intractable problem of ascribing mathematically exact probabilities
to all the undesired outcomes of our policies. It often suggests an aura of false precision in ethical
theorizing. It also ignores a common issue concerning risk assessment in bioethics, the distinction
between ‘statistical victims’ and ‘identifiable victims.’ Risk-benefit analysis might well assert a
statistical certainty that we would save more lives (or quality-adjusted life years or whatever the
unit of assessment) by taking the money spent on ‘last-chance treatments’ and using it instead
on campaigns to, say, prevent smoking. But the ‘Rescue Principle’ and related ethical rules of
thumb rely on the idea that we actually value saving identifiable lives more than statistical lives
– we care more about using every last measure to save Grandma from her stage IV cancer than
from saving many more lives of future strangers. Or, in the military, I may unquestioningly risk
the future well-being of myself and even my entire unit in the mad dash to retrieve a wounded
brother-in-arms from being captured by the enemy, in a way that RBA would consider irrational,
but may in fact be rewarded with a medal of valour – even if posthumously awarded. As long as
it is considered morally legitimate that such a disparity exists between ‘statistical victims’ and
‘identifiable victims’, attempts to use RBA are problematic at best.
What then can we say for certain about risk, especially with respect to military enhancement?
We can see risk and safety are two sides of the usual human attempt to reduce the probability of
harm to oneself and others, even as we are often unsure of the exact probabilities involved. To
make things even more difficult, war is a strange human activity, not least because it reverses
this tendency: in war, one ordinarily wishes to increase the probability of harm to one’s enemies.
But the laws of armed conflict and the typical rules of engagement make clear that not all ways
of increasing risk for one’s enemy are morally legitimate; and some ways of increasing risk for
one’s own side may be morally legitimate and even morally required. For instance, the principle of
discrimination may require warfighters in close quarters urban combat to look around a corner and
reveal themselves in order to ensure that no civilians are being targeted; but of course this exposes
the warfighter to more risk than merely indiscriminately firing around the corner and shooting
anyone in the next room (at least, until mechanical enhancements like CornerShot technology
become standard issue). These facts considerably complicate the already difficult ethics of risk
assessment for military human enhancement.
A Hybrid Framework: The Military Model
Having briefly analysed the human experimentation, medical, risk assessment, and public health
models, and considered how they might be adapted to the military, we are now in a position to
synthesize them in order to construct an ethical and legal model to govern the military use of
biomedical enhancements.
The use of biomedical enhancements in the military to enhance warfighter performance cannot
be ruled out as a priori unethical or illegal. Acknowledging the reasonable motivations to enhance,
Michael Russo states in connection with cognitive drugs:
All militaries desire technological, training, and doctrinal advantages so as to increase the
probability of success. Each military strives to have a performance edge. The US military, through
multiple methods, seeks to optimize cognition so as to provide individuals with a cognitive
performance edge. (Russo 2007)
At the same time, military leaders must strive to act within appropriate ethical norms and legal
rules. Doing so would be ‘right’, cause the least amount of harm to the warfighter, and help avoid
criticism that could undermine military effectiveness. What follows, therefore, is a proposed set of
ethical and legal rules to govern this military practice.
Legitimate Military Purpose
Enhancements in the military must be used for legitimate military ends. In the first place, the
purpose must be military. For example, it would be unethical to give warfighters enhancements to
enable them to excel at activities while on leave, assuming this could not be justified as boosting
warfighter morale or self-confidence.
Furthermore, the military purpose must itself be legitimate. A legitimate war and mission must
be lawful under international law. So it would be unethical to give a warfighter an enhancement
to increase the effectiveness of the unit if the unit’s mission is illegal. A lawful war is a war of
national self-defence consistent with UN Charter Article 51 or a war of humanitarian intervention
sanctioned by the international community (for example, actions in the First Gulf War or in Libya in
2011). A lawful mission conforms to international humanitarian law and the Geneva Conventions.
Necessity
The enhancement not only must be used to help achieve a legitimate military objective, but its use
to achieve the objective must be reasonably necessary. Childress describes necessity as a lack of
acceptable alternatives, while Gross states that ‘the simplest way to determine excessive harm is
to ask whether military planners have less costly, alternative means at their disposal to achieve the
same goal’ (Gross 2006: 62). A more precise way of establishing that the use of an enhancement
is necessary is to show that there is no other means of achieving the objective that offers a better
ratio of risks to benefits.
Operational necessity must also conform to military necessity, however; an enhancement that
offers the best risk-benefit ratio must also conform to the laws of war and international humanitarian
law. But appeals to military necessity can be abused, and reasonable minds may disagree on when
it truly exists. As Hilary Jaeger emphasizes, ‘it is very easy to blur the line between operational
necessity and administrative convenience’ (Jaeger 2007).
Benefits Outweigh Risks
Not only must the use of an enhancement be necessary in the sense that there are no less costly
means of achieving the legitimate military objective, but the benefits of giving the enhancement
to warfighters, which can accrue to the unit, the mission, and the state as well as to the warfighter
him- or herself, must be greater than the risks to the warfighters and non-combatants. This principle
may be thought of as an aspect of proportionality, a concept that is at the heart of military ethics and
one of the main determinants of when and how much armed force may be used. As Gross states,
‘necessity remains constrained by proportionality’ (Gross 2006: 61).
The risks that are assessed here are net risks; that is, they are the risks from using the enhancement
minus the risks of not using it. Of course, the difficulty lies in how values are assigned to benefits
and risks. Further, the benefits to a unit, mission, or nation may be hard to measure, much less to
quantify precisely. Another issue is how great the risks can be from enhancements that an individual
warfighter is required to take, or that can be imposed on non-combatants (as we discuss in more
detail in our larger report referenced earlier). For instance, in giving warfighters pharmaceuticals
that enhance aggression, how should we assess the risks to non-combatants of possible increases
in rape or even traffic accidents caused by these warfighters when off-duty? Should the same
risk-benefit calculus be used for non-combatants as for warfighters, or should acceptable risks to
civilians be smaller for a given benefit to the warfighter?
The Warfighter’s Dignity is Maintained
Michael L. Gross emphasizes the need to avoid humiliating warfighters. ‘Ordinarily,’ he says,
‘any violation of self-esteem and its derivative principles prohibiting torture, humiliation, and
degradation is unacceptable and morally wrong’ (Gross 2006: 56). He is addressing the treatment
of prisoners and enemy combatants, but his admonition applies to our troops as well, since
‘dignity … protects individuals from humiliation, dishonor, ill-treatment, and servitude’ (Gross
2006: 45). Biomedical enhancements that seriously compromised the user’s dignity therefore
should be avoided. This would bar enhancements, for example, that produced bizarre or repugnant
effects, such as severe disfigurement or dramatically reduced lifespan.
Burdens are Minimized
In line with one of the principles of classic medical ethics, the burdens that an enhancement imposes
on the warfighter must be minimized. One implication is that, if possible, any effects likely to cause
the warfighter discomfort or distress should be temporary or readily reversible. No one seriously
questions the ethics of external ‘enhancements’ (or tools), such as body armour, in part because
they are readily reversible: one can simply take it off, when it is no longer needed or wanted.
Reversibility is especially important if the adverse effects, unless reversed, would continue to
affect the warfighter after leaving the military and could also impact people outside the military,
such as family members and other civilians, who do not volunteer for military service the way
the warfighter does. As one group of experts in military training observes, ‘optimal performance
during battle and deployment must be balanced against health and sustainable social functioning
upon re-entry’ (Jonas et al. 2010).
Consent
As noted earlier, the consent requirement that is such a central feature of both medical and research
ethics is largely absent in the military. A strong argument nevertheless can be made that warfighters
should be asked to give their consent to serve as subjects in studies involving exceptionally risky
enhancements, and the argument clearly is even more persuasive if only some of the members of a
unit will serve as subjects. Some questions, however, will need answers: when is an enhancement
exceptionally risky? What is ‘military risk’, if we are to compare it with medical risk? Do warfighters
have the right to withhold consent for ‘highly unusual’ risks, and from whose vantage point do we
gauge ‘unusual’? Does enlisting for military service already imply consent to the risks? This notion
of ‘anticipatory consent’ is interesting, but it too falls short, since there would seem to be no limit
to the dangers that warfighters could be exposed to by their superiors so long as the dangers were
generally described to them before enlistment. Telling them in advance that they might lose their
lives in combat, for example, does not justify ordering them to undertake a suicide mission.
These uncertainties underscore the fundamental point made earlier that the role of consent in
the military must be understood as limited. Consent in the military simply cannot do the heavy
ethical and legal lifting that is expected of it in civilian settings. For one thing, in many military
situations, obtaining consent will be highly impractical. There may not be an opportunity for
sufficient conversation between potential subjects and experimenters. And there are also internal
pressures that warfighters experience, as well as the external pressures to which they are vulnerable.
Therefore, consent in the military cannot eliminate the need for ethical and legal oversight. This
could perhaps be provided in part by military physicians, who are in the best position to appreciate
enhancement risks, and who may retain enough of their sense of medical professionalism to give
due regard to the welfare of the individual warfighter. As Hilary Jaeger recommends, ‘the military
physician must act as a counterweight, by being the voice of caution’ (Jaeger 2007). Another
option is to establish an independent group of experts in law and bioethics, similar to the NIH’s
Recombinant DNA Advisory Committee (RAC), with the necessary security clearances and the
responsibility to review and approve formal military enhancement experiments, enhancement
research programmes such as DARPA’s, and, if military necessity permits, proposed deployment
uses of enhancements. This group would evaluate enhancement based on the criteria of just cause,
necessity, consent, dignity, risks and benefits and burdens. Such an independent panel could enable
a ‘crawl-walk-run’ approach to enhancements with unusual or unknown risks, allowing for an
objective or more careful assessment of their permissibility.
Transparency
No doubt one of the main reasons that the Army LSD and radiation experiments have been so
heavily criticized is their secrecy. National security certainly may require that enhancement
experimentation and use be kept secret from adversaries, but to the extent consistent with
security concerns, the military should make public information about enhancement research and
deployment, including the reasons why the military believes that the risks of the experiment or use
are outweighed by the known or potential benefits.
At the very least, as we proposed above, relevant information should be made available to
third-party assessors with the necessary security clearances. Making military enhancement
part of the public record would help sustain Fitzpatrick and Zwanziger’s argument in favour of
anticipatory consent, since recruits would be more likely to have heard about it before they enlist.
Public awareness also could stimulate an open discussion about the ethics and legality of military
enhancement that could reduce public opposition.
Fair Distribution of Risks and Benefits
As discussed previously, numerous commentators object to imposing risks on only a few

individuals in the military. Similar ethical objections can be asserted against singling out a few
warfighters to receive enhancement benefits. The best approach is to spread risks and benefits
as widely as possible. But what if there weren’t enough risks or benefits to go around? What
if the supply of enhancements were limited, for example, because of manufacturing difficulties
or regulatory obstacles? When rationing is needed, commanders arguably should be allowed
to distribute enhancements to certain individuals based on what are seen as good reasons for
preferential treatment in other contexts. For example, enhancements could be given in preparation
for special or particularly dangerous missions, or to remedy some short change in other parameters,
or for other widely accepted reasons. If there were no valid substantive reasons for selecting one
individual to receive enhancements over another, legal precedent suggests that the fairest method
of selection would be by lot.6
Another concern raised by selective distribution of enhancements is the resulting unfairness,
if the improved performances that enhancements made possible led to promotions or other
advantages for the users. If everyone cannot have access to beneficial enhancements, a strong
argument can be made that accomplishments produced in large part by enhancements should not
count favourably. On the other hand, if the enhancement in question comes with significant risks,
those who volunteer to accept the risks may be entitled to corresponding benefits as recompense.
Superiors are Accountable
In view of the potential for superior officers to bully warfighters into taking unduly risky
enhancements, the system by which the military holds superiors accountable for unreasonable
acts must keep a lookout for unethical or illegal command decisions concerning enhancement use.
Conclusions
We can already see a radical agenda to engineer the next-generation warfighter, and what we need
now is a new framework to evaluate its ethical and legal implications – one that can account for
more complex considerations than we find in existing models. In the above, we have sketched out
such a framework, a hybrid model, which we build out with more details in our full-length report.7
With this framework in hand, we can begin to address biomedical issues arising from military
enhancements. To be clear, there are also other questions that may fall outside our hybrid model,
that is, questions about secondary and tertiary effects, such as: Would enhanced warfighters affect
unit cohesion? Does being enhanced require a change either way in the length of a warfighter’s
service commitment? Would international laws, such as the Geneva Conventions, prohibit torture
of enhanced warfighters who can tolerate greater physical and mental abuse?
Considering that much of our technology – for instance, automobiles, nuclear power,
microwaves, radar, GPS, computers and the Internet – has military origins, the impact of military
human enhancements on society may be significant. Further, most warfighters return to civilian life
as veterans, potentially flooding society with new, disruptive abilities as well as greater needs, such
as possible long-term health issues. Thus, by examining the ethics and policy of enhancements in
a military context, we are also addressing these social issues at their source, with benefits that help
inform the broader human-enhancement debate downstream.
6 US v. Holmes, 26 F. Cas. 360 (E.D. Pas 1842) (No. 15,383) (lottery is fairest way to decide which
people in overcrowded lifeboat should be cast overboard).
7 See Lin, Mehlman and Abney 2013.
Acknowledgements
This chapter is adapted from our new report, funded by The Greenwall Foundation and California
Polytechnic State University’s Research and Graduate Programs. We also acknowledge support
by Cal Poly’s College of Liberal Arts and Philosophy Department, as well as Case Western
Reserve University’s School of Law and Department of Bioethics. Our research also has benefited
from collaborations with and support from the Consortium for Emerging Technologies, Military
Operations, and National Security (CETMONS) and other groups. Any opinions, findings,
conclusions, or recommendations expressed in this report are those of the authors and do not
necessarily reflect the views of the aforementioned organizations.
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more-than-human-the-ethics-of-biologically-enhancing-soldiers/253217/ [accessed: 27
February 2012].
Lin, P., Bekey, G. and Abney, K. 2008. Autonomous Military Robots: Risk, Ethics, and Design. A
report commissioned by US Department of Navy/Office of Naval Research [Online]. Available
at: http://ethics.calpoly.edu/ONR_report.pdf [accessed: 27 February 2012].
Lin, P., Mehlman, M. and Abney, K. 2013. Enhanced Warfighters: Risk, Ethics & Policy, a
report funded by The Greenwall Foundation [Online]. Available at: http://ethics.calpoly.edu/
Greenwall_report.pdf [accessed: 1 January 2013].
Mehlman, Maxwell J. 2009. The Price of Perfection: Individualism and Society in the Era of
Biomedical Enhancement. Baltimore, MD: Johns Hopkins University Press.
National Commission for the Protection of Human Subjects of Biomedical and Behavioural
Research. 1979. The Belmont Report: Ethical Principles and Guidelines for the Protection
of Human Subjects of Research 1979 [Online]. Available at: http://ohsr.od.nih.gov/guidelines/
belmont.html [accessed: 27 February 2012].
NOVA. History of Quarantine [Online]. Available at: http://www.pbs.org/wgbh/nova/typhoid/
quarantine.html [accessed: 27 February 2012].
Russo, Michael. 2007. Recommendations for the ethical use of pharmacologic fatigue
countermeasures in the US military. Aviation, Space, and Environmental Medicine, 78 (5, Sec.
II): B119-B127.
US Department of Health and Human Services, Office of Human Research Protections. 1996.
Informed Consent Requirements in Emergency Research [Online]. Available at: http://www.
hhs.gov/ohrp/policy/hsdc97–01.html [accessed: 27 February 2012].
US v. Holmes, 26 F. Cas. 360 (E.D. Pas 1842) (No. 15,383) (lottery is fairest way to decide which
people in overcrowded lifeboat should be cast overboard).
Wolfendale, Jessica and Clarke, Steve. 2008. Paternalism, consent, and the use of experimental
drugs in the military. Journal of Medicine and Philosophy, 33(4), 337–55.
Chapter 8
Refusing to Be All That You Can Be:
Regulating against Forced Cognitive
Enhancement in the Military
Lauren R. Robbins
Our whole constitutional heritage rebels at the thought of giving government the power to control
men’s minds.
Stanley v. Georgia, 394 U.S. 557, 565 (1969)
Introduction
In April of 2002, two US National Guard pilots – Majors Harry Schmidt and William Umbach –
were accused of killing four Canadian soldiers in Afghanistan in what was later determined to be a
‘friendly fire’ tragedy (Villafuerte 2003; Schrader and Hart 2003). When the pilots faced an Article
32 hearing (similar to a grand jury proceeding in a US civilian court) to determine if they would
stand trial for the incident, their attorneys argued that the Air Force coerced the men into taking
amphetamines by prescribing Dexedrine. They claimed that the drugs could have impaired the
men’s abilities and resulted in the accidental bombing. The Air Force countered that use of these
drugs is completely voluntary; it is ‘at the discretion of the aircrew member [and] … only with the
aircrew member’s informed consent’ (Villafuerte 2003).
It was never resolved whether the prescribed Dexedrine was one of the factors leading to the
service members’ lapse in judgement – the charges were eventually dropped. But the incident raises
a question of medical ethics specific to the military context: can service members decline to give
informed consent to medicine or medical procedures intended to alter or enhance their cognitive
functioning, and what, if any, are the repercussions for doing so? Schmidt and Umbach accepted
the pills; they gave their informed consent. But what of the pilots who came after them who were
concerned that the pills would have a negative effect on their own judgement or mental state? And
what of other service members who don’t want their cognition affected by drugs dispensed by the
military?
Medicine can be used to develop physical and cognitive attributes and its military application
poses no exception to this truism. Medical enhancements can be designed to produce not only ‘iron
bodied’ soldiers but also ‘iron willed’ ones (Knickerbocker 2002). Such performance-enhancing
developments can range from the ‘morally benign’ to the ethically challenging (Russo et al.
2008: 39). More benign enhancements tend to be technologies that are utilized externally, such
as sensors that allow soldiers to see through walls. Soldiers are not physically altered and any
effects on the body are purely temporary. Enhancements that pose a greater ethical challenge are
those that affect cognitive processing. Cognitive enhancement may be defined as ‘the amplification
or extension of core capacities of the mind through improvement or augmentation of internal or
external information processing systems’ (Bostrom and Sandberg 2009). These enhancements run
the risk of not just changing the way the brain functions and processes information, but of doing
so irreversibly. They also go beyond any conceivable definition of standard medical treatment; as
amplifiers, extenders and augmenters, they are medical extras – not treatments.
So why does this trigger concerns regarding informed consent? Unlike civilians, members of
the US military have no right to refuse medical treatment that can make them fit for combat or return
them to active duty (Annas 1998: 250). When medical treatment is deemed necessary for the good
of the military, regulations do not require that service members grant informed consent (Deardorff
1987: 68). Regulations state that soldiers must accept standard medical treatment or else face court
martial. However, service members have no obligation to accept interventions that are not generally
recognized by the medical profession as standard procedures. But what is ‘standard’? The question
is not insignificant. Consequences for refusal to required treatment, like immunizations, can be
severe. Submission to certain medical care is considered part of a service member’s employment
contract and refusal of treatment is essentially the same as disobeying an order. This means that
the individual faces the prospect of a dishonourable or ‘other than honourable’ discharge. A soldier
who refuses to take a vaccine, for example, can be punished by a commanding officer under Article
15 of the Uniform Code of Military Justice; in some cases refusal can even lead to imprisonment
(Davidson 1999: 65–6).
The major concern is that as technology and medicine develop, there is strong potential for
definitions to change of what constitutes medical treatment and prevention. Of specific concern
is soldiers’ cognitive liberty: the right of the individual to think independently and autonomously,
using the full spectrum of the mind. The right to liberty, autonomy and privacy over one’s intellect
sits at the core of what it means to be a free person (CCLE 2003). Freedom of thought includes
the right to determine one’s own state of mind and whether or not that state is manipulated by
neurological enhancements (Boire 2003: 9). As the military develops alongside technology,
what was once considered cognitive enhancement may be seen as standard medical care. Once
it becomes understood as standard ‘care’ or ‘treatment’, service members would be expected to
submit to it and those who refused would face the consequences.
In anticipation of such developments, regulations should be enacted that specify the limits
of medical treatment and prevention. Better protections must be in place for service members to
refuse medical interventions which are administered for the purpose of enhancing neurological
functioning and have the potential to fundamentally alter aspects of an individual’s freedom of
thought. Addressing this issue now is crucial, since it is not unlikely that the importance of military
effectiveness could soon outweigh the civilian population’s general reluctance to use enhancements.
Informed Consent and the US Military: A Background
The same tactics that create unit cohesion and strong armies can also undermine individual
autonomy and lead to medical practices that vary significantly from those that are the norm in
civilian life. In civilian life, an individual has the right to refuse medical treatment in almost all
circumstances. Yes, the patient might face adverse health consequences if he refuses treatment,
but for the most part, the United States recognizes the importance of individual choice in health
matters. In the US military, service members have given up elements of their autonomy, including
matters of health, by enlisting. The corollary to this is that informed consent becomes less of a
necessity; service members will still be informed of treatment they are to receive but the consent
portion becomes a secondary matter – if it is respected at all. To refuse treatment could not only
undermine the authority of commanders but it could make certain elements of what is considered
Refusing to Be All That You Can Be 129
part of ‘service’ optional, giving individuals choice in the matter of whether to put themselves
ahead of their unit or country.
There is necessarily a trade-off between protecting the interests of the individual and those of
the unit. This idea of limited autonomy might be disconcerting to some, but in many ways it is
what individuals implicitly agree to when they decide to enrol in the military. The argument might
be different if the United States had a draft system, but as long as people make the choice to join
the armed services, one can reasonably say that those who enter should expect their autonomy to
be limited and their own liberties to sometimes be sacrificed for the greater good of their country.
The terms are quite similar to that of a contract. By taking the oath of office, a soldier accepts the
terms offered by the Department of Defense (DOD) – a promise to obey orders and retain limited
autonomy is given in exchange for the government’s offer of the best protection possible – and a
contract is formed (Howe and Martin 1991).
US Army Regulation 600-20 § 5-4 governs this relationship; it covers command aspects of
medical care and specifically details what commanders may require soldiers to submit to in the
name of medicine. Unlike the civilian waiver of informed consent, this contract is irrevocable.
The regulation provides broadly that: ‘A soldier on active duty or active duty for training will
usually be required to submit to medical care considered necessary to preserve his or her life,
alleviate undue suffering, or protect or maintain the health of others.’ It also states that ‘[g]enerally,
refusal of medical care is considered unreasonable without substantial evidence that the treatment
is inadvisable’, but it instructs the board to consider ‘(a) existing evidence that the physical or
mental treatment is inadvisable, (b) previous unsuccessful operations and procedures, [and] (c) any
special risks involved in the proposed medical treatment’, among other things, in deciding whether
refusal is reasonable or unreasonable.
Along with emergency medical care, AR 600-20 lists immunizations as a type of medical care
that can be given ‘with or without the Soldier’s permission.’ Immunizations required by the army’s
immunizations regulation, AR 40-562, or by another legal directive may be given involuntarily –
except as described in the subsection on accommodating religious practices.1 The regulation states
that the command medical authority will prescribe specific immunization and chemoprophylactic
requirements for their units per requirements established by AR-40-562 as well as guidance
provided by the appropriate surgeon general or the US Coast Guard Director of Health and Safety.
If a soldier refuses to submit to ‘other types of medical care’ more generally, he will be referred
to a medical board.2 After reviewing the evidence, the medical board will issue a report, deciding
whether the refusal of the medical treatment is reasonable or unreasonable. The report will explain
‘the need and risk of the proposed medical care refused by the Soldier’. Once the report is issued,
the soldier will be informed of the approved findings and advised about whether the board has
determined that the medical care is needed to: ‘(a) Protect the Soldier’s health[;] (b) Protect the
health of others [; or] (c) Enable the Soldier to perform his or her duties properly.’ If the soldier
still refuses the medical care, the medical treatment facility commander will refer the matter to
the proper Special Court Martial Convening Authority. If the Authority orders treatment and the
soldier again refuses, the commander may (a) take disciplinary action according to the Manual for
1 Objection to vaccines and other drugs based on religious restrictions is outside the scope of this
chapter.
2 Note that this does not include refusal to submit to emergency medical care, immunizations, isolation
and quarantine, detention, medical care for mental disorders, diagnostic medical care, physical and other
examinations, obtaining evidence. These procedures are found in the Regulation under the heading: ‘Medical
care with or without the soldier’s permission.’
Courts Martial, or (b) take administrative action to separate the soldier from service. This can be
accomplished through retirement, discharge or ‘other legal means’.
This regulation directly requires submission to treatment if the military so determines and it
creates a great risk that cognitive enhancement could be justified as treatment or ‘other type[s] of
medical care’. Of the most concern is the section that states that soldiers are usually required to
submit to medical care which is ‘necessary to preserve his or her life, alleviate undue suffering, or
protect or maintain the health of others’ (AR 600-20 § 5-4(a)). Vaccines can easily be placed in this
category, which is understandably one of the reasons that there is a separate section dedicated to
vaccine policy and what to do if a service member refuses to be immunized.
What is less clear is whether certain enhancement technologies, specifically those which effect
neurological functioning, could ever be placed in the category of protecting or maintaining the
health of others. If such enhancements could then be viewed as necessary ‘medical care’, would
the soldier be referred to a medical board and run the risk of discharge or court martial? Service
members are taught that they may refuse illegal or immoral orders (Rempfer 2000). However,
under the current law, a soldier’s refusal could be rejected. It is possible that a medical order,
which from a commander’s perspective makes a soldier more fit for combat, seems immoral from
the soldier’s perspective, according to the limits she has put in place regarding what she views
as enhancement, not treatment. Though this duty to refuse or question immoral orders might be
clearer in a combat situation where the soldier is, for example, ordered to torture a prisoner, it could
easily arise in the physician’s office where a soldier is, for example, ordered to take a certain drug.
This leaves the service member in a bind: should she resist but face court martial? Or should she
accept the drug but run the risk of losing some level of cognitive liberty and autonomy? She may
have accepted much of the loss of autonomy which came when she enlisted, but may nonetheless
be opposed to being denied her freedom of thought. And under AR 600-20 as it currently exists,
such opposition may be seen as insubordinate.
Enhancement Projects in the US Military
The motto of the Army Medical Department is ‘to conserve fighting strength.’As military capabilities
develop and technology advances, commanders in the armed forces may find it appropriate to
conserve the strength by ‘treating’ service members with drugs, the effects of which would surpass
what could be considered normal for the human body.3 This shift may in fact already be afoot.
A 2008 report issued by the National Research Council, commissioned by Defense Intelligence
Agency, stated that:
[i]n the future … DOD may call on the neurophysiology community to assist in maintaining the
warfighting superiority of the United States. Commanders will ask how they can make their troops
learn faster. How can they increase the speed with which their soldiers process large amounts of
3 The attempt to surpass physical limitations raises a host of ethical questions, some of which have
already begun to be explored at high levels of government. In 2003, President George W. Bush’s Council
on Bioethics looked at some of these questions in a report entitled Beyond Therapy: Biotechnology and the
Pursuit of Happiness. In its 300-plus pages, however, the Council barely addressed the possible military
applications of enhancements. The Council did acknowledge, however, that ‘[w]hen the very existence of
the human agent or human society is at stake, certain special superior performances are not only edifying but
urgent: for example, the superior performance of soldiers or doctors’ (154).
information quickly and accurately? How can the neurosciences help soldiers to make the correct
decision in the difficult environment of wartime operations? (see also Weiss 2008)
Use of language like ‘maintaining’ exemplifies how, as technology changes, expectations can
follow suit. But there is a difference between maintaining superiority and maintaining health. The
two should not be confused.
DARPA, the DOD’s research and development programme, is involved in a range of military
research projects which aim to develop better, faster, stronger soldiers. A DARPA researcher
summed up the programme’s vision by stating that ‘Soldiers having no physical, physiological, or
cognitive limitations will be the key to survival and operational dominance in the future’ (Garreau
2005: 22–3). DARPA’s research ranges in scope and feasibility. Current projects seek to create
soldiers who can navigate, communicate and make good decisions for up to a week without sleep;
produce soldiers who are unstoppable because pain can be blocked and wounds quickly healed;
and create a universal pathogen killer that can neutralize any known pathogen (ibid.: 26–9). One
project, ‘Silent Talk,’ even aims to give soldiers the ability to communicate with each other on
the battlefield without using speech and relying solely on analysis of neural signals (Drummond
2009).4
These example projects do not infringe upon cognitive liberty but they do help paint a picture of
the many ways in which the military is looking to take the human body to another level. It should
also be noted that these techniques do not appear to have been successfully developed yet. The
desire to transition them from research to reality, however, is certainly there.
Drugs are already being administered in the military as possible treatments for depression,
post-traumatic stress syndrome (PTSD) and anxiety. Service members are being treated with newer
psychotropic medications, especially selective serotonin-reuptake inhibitors (SSRIs), which are
popularly used to treat depression, and yet there is currently no military doctrine on the use of
SSRIs in combat situations. Beta-blocking drugs, which keep norepinephrine and epinephrine
(adrenaline) from binding to beta receptors on nerves, could be administered before battle to
eliminate fear and prevent PTSD.5 These are noble goals, to be sure, but such treatment also runs
the risk of altering soldiers’ cognitive functioning in such a way as to dull feelings of guilt in killing
or causing harm (for example, Corn and Pinkerton 2010). This creates a fine line for a government
to tread upon; on the one hand it would be beneficial to avoid the lasting psychological damage
that war can wreak on a soldier’s mind.6 On the other hand, these types of drugs impair freedom of
4 There are other technologies that, while not cognitive enhancers, also have the potential to infringe
upon cognitive liberty. For example, the military could use non-invasive brain imaging technology where a
computer-based speech recognition system would decode EEG signals (Shachtman 2008). Not only might a
soldier have safety concerns; he might have privacy concerns if commanders and unit-members alike could
tell what he was thinking. This sort of technology has implications for cognitive freedom because if one’s
thoughts can be monitored and relayed to others, freedom of thought can be usurped by military command.
Not only would your commander know your every move – he would know your every thought.
5 Of course, the next question becomes: what does ‘before battle’ even mean? Should the drugs be
administered on a constant basis to those in combat, since there is always the possibility of an attack? Or
should they be saved for specific missions, with the understanding that such a policy will not prevent many of
the unpredictable scars of war? I do not pretend to know the answer to what is a very sticky question.
6 Indeed, many soldiers may be grateful for such drugs. One defence expert conjectured that, ‘[g]iven
the extent of recreational drug use within the military, and the use of performance-enhancing drugs among
athletes, it is very easy to imagine that warriors would consider using any manner of drug they thought would
increase their chance of returning home alive’ (Knickerbocker 2002). The added bonus of returning home
thought; it’s one thing if a soldier decides of his own volition to take the drug, after being informed
of the potential costs and benefits. He may accept – even welcome – the cognitive numbing effects
of beta-blockers. But it is another thing entirely if the soldier is required to submit to such a drug.
SSRI’s may have their benefits, but given their strong influence on neurological functioning, they
should never be forced upon anyone, particularly upon threat of military discharge.
Already, amphetamines are widely used in the US Air Force7 and as a combat tool, they’re
really nothing new. German and British forces dispensed them to soldiers in World War II and the
American military gave them out to pilots on long missions starting in the 1950s, to combatants
in Vietnam (in the air and on the ground), and to pilots during the Persian Gulf War. A study
conducted by the Air Force of fatigue as a factor in ‘Class A Mishaps’ found that from 1977 to
1997, fatigue was a factor in 101 accidents (Shanker and Duenwald 2003). If amphetamines could
help solve this, why not use them?
‘Eliminating the need for sleep during an operation, while maintaining the high level of
both cognitive and physical performance of the individual, will create a fundamental change in
warfighting’, asserts the DARPA mission statement (Groopman 2001: 52). If soldiers can resist
the mental and physiological effects of sleep deprivation, it will ‘fundamentally change current
military concepts of ‘operational tempo’ (ibid.). Eliminating fatigue is a noble goal, but prescribing
enough so that soldiers stay awake for days on end is an entirely different – and possible – use.
These drugs change one’s neurological functioning and a service member has a liberty interest in
whether or not to alter his cognitive functioning in this way.
Dexedrine, one of the US Air Force’s more commonly used amphetamines, is often given as
part of a cycle that includes the Dexedrine to fight fatigue, and then sedatives between missions
to induce sleep. Pilots call them ‘go pills’ and ‘no-go pills.’ Colonel Alvina Mitchell, an Air Force
spokeswoman, has emphasized that use of the pills is voluntary and safe and monitored closely by
Air Force surgeons (Miller 2003). Colonel Peter Demitry, chief of the Air Force Surgeon General’s
Science and Technology division, also attested to the safety of Dexedrine and to its necessity in
the Air Force, calling it ‘a life-and-death insurance policy that saves lives’ (Hart 2003). Though
the drug may be considered safe and necessary now, the ethics of the situation change if or when
the service member is required to take it. Mission structures could be transformed as a result of
the availability of these drugs. The changing nature of operations and rising expectations for the
service members could create more situations in which use of amphetamines is expected of (or
even desirable for) the soldier.
Air Force officials deny that pilots are forced to ingest the go pills, although an agreement to
carry them into the cockpit in case they are needed is one of many criteria that may be used by a
commander and flight surgeon in approving a pilot for a mission (Shanker and Duenwald 2003).
Colonel Demitry seemed to scoff at the notion that such a drug could be forced upon someone: ‘At
30,000 feet in the middle of the dark sky, as a fighter pilot, no one is going to make me swallow a
pill’ (Hart 2003). But, like beauty, voluntariness is in the eye of the beholder. A spokeswoman in
the office of the Air Force Surgeon General said: ‘If a pilot chooses not to use this tool on a specific
mission, the squadron commander evaluates that factor with all of the others that are pertinent to
the mission’ and ‘may find that the pilot isn’t the right choice for that specific mission, given their
personal fatigue state and their choice not to have the Dexedrine available’ (Schlesinger 2003). Just
without the psychological scars of war could encourage soldiers to use any manner of drug that could help
achieve this goal.
7 An amphetamine is a psychostimulant drug that produces increased wakefulness and focus in those
who take it. It modulates several key neurotransmitters in the brain, including dopamine, serotonin, and
norepinephrine.
moving a pilot to a different, shorter mission is one response, but one wonders whether there is any
amount of shaming involved and whether pilots are chastised for their decision not to take the drug.
If the choice is really theirs then there does not seem to be too much to be concerned about, at least
in the case for autonomy and informed consent, but one also should question whether this current
practice will always be the standard or whether requirements will evolve as the military itself does.
There is anecdotal evidence of rising amphetamine use in the military. Troops are overstretched.
Continuous operations are also more the routine than the exception today and in comparison
to civilians, soldiers can be expected to be awake and alert for longer periods of time. Cultural
influence may have a strong effect. Pressure may come from commanders as well as peers, whether
explicitly or not. This pressure may also extend to other drugs that affect cognitive processing, as
they are introduced to and normalized in the military context. Coercion, anathema to informed
consent, occurs only when a person intentionally uses a credible and severe threat of harm or force
to control another (Beauchamp and Childress 2009). While not considered coercion, institutional
and peer pressure could exert influence over individuals and cause them to make decisions they
otherwise would not. The world of the military is one in which a culture of honour, courage, and
selflessness is strictly maintained. Cultural pressure could put service members in a constrained
situation; one in which a person feels controlled by the restrictions of the situation rather than
by the threat of another person. Military members may be concerned about the impact of their
decisions on their fellow soldiers or units. They may also fear the repercussions they could face,
sanctioned or unsanctioned, by turning down ‘optional’ drugs that affect cognitive processing.
There may come a time when the military feels it has no choice but to require pilots or soldiers
to take these drugs so that they can complete missions. If we are already at this point then we need
to take a step back from this ethical borderline and evaluate the landscape. Yes, guarding against
fatigue as a factor in Air Force accidents is a good goal and an action that could keep more military
members safe; however, if the mission itself is such that it demands the drugs – if it is longer
than 30 hours, just for example – then perhaps the military should attempt to combat fatigue not
through requiring drugs but by potentially restructuring missions so that the task does not require
neurological alteration. If restructuring is impossible then only those who willingly submit to
taking the Dexedrine should be required to go on such missions. Being in the grey zone provides an
opportunity to stop things before it becomes an expectation – and soon a requirement – to submit
to such medicine. Stepping back from the border could protect future service members from even
more serious abuses of their cognitive liberty and help them maintain their freedom of thought.
A regulatory response now can help us avoid violations of soldiers’ rights in the very near future.
Policy Proposals
The US military has an inconsistent history when it comes to respecting soldiers’ autonomy in
medicine and too often legislation is enacted in response to and not in advance of an issue. Problems
with LSD experiments in the 1950s,8 the waiver of consent for the pyridostigmine bromid (PB)
vaccine in the early 1990s,9 and the forced injections of the Anthrax vaccine at the end of the
8 Between 1955 and 1958, over 1,000 soldiers were covertly administered LSD by Army Intelligence
under a covert CIA research programme (Lee and Schlain 1992). Widespread lack of consent eventually led
to a Senate investigation that shut the project down.
9 PB was a chemical warfare ‘pretreatment’, thought to increase the efficacy of post-exposure oxime
therapy, but was still in its investigational stages. The FDA thought that the DOD had sought permission to use
the drug without informed consent because it believed such use was required by military necessity but there
twentieth century10 all serve as a backdrop to informed consent policy today. Though most of this
history involves medicine provided with the good of the soldier and the military as a whole in
mind, the individual service member’s autonomy has consistently been challenged. The previous
conditions under which new drugs have been used in the military generates great concern that, if
a cognitive enhancer’s use was authorized by military authorities, individual military personnel
might not have the genuine freedom to refuse to take it. The ambiguity in current practice calls out
for some aspect of regulation for those cognitive enhancement drugs that cannot rightly be deemed
necessary medical ‘care’.
George and Catherine Annas (2009) have proposed that restrictions need to be placed at the
doctors’ end. They suggest that no military physician should ever be obligated to follow any order
that he or she believes in good faith would require a violation of medical ethics. Other scholars
have argued that the military’s use of enhancement must be constrained by the importance of
maintaining the moral responsibility of individual service members (Wolfendale 2008: 29). The
best solution may instead be to place the onus on the soldier herself. It is, after all, her autonomy
that is at stake. The physician still plays a crucial role, of course, and should not pressure or force
these drugs upon anyone, but the right needs to be with the soldier to refuse. The law should be
phrased in terms of the individual’s liberty – not the doctor’s.
The underlying premise of the new regulation should be based on the idea that volunteer
soldiers, sent into battle to protect national security and the citizens of their country, should never
be compelled to take drugs which have the purpose of altering neurological functioning and result
in a loss of cognitive liberty. Service members should have the opportunity to give true informed
consent to such a drug, which requires minimizing as much of the inherent pressure of the command
relationship as possible. Guidelines must ensure that use of a cognitive enhancer is truly informed
and voluntary, and that the individual understands all of its effects and side effects, particularly
with regard to how the drug will effect cognitive functioning.
If the drug is something to be used in combat or in some other specified situation, the service
member should be given as much advance notice as possible to be able to refuse. If refusal to take
such a drug will legitimately put him or fellow soldiers in potential harm’s way, one potential
solution, where the combat situation allows, would be for the soldier to transfer to a location or
mission where his refusal would not prove problematic. If it comes to a point where the soldier has
indicated consent but changes his mind at last minute, there should be flexibility in response. If,
for example, refusal would have no effect on others and a minimal effect on the soldier, the refusal
could be respected. But if the refusal could reasonably put the soldier or others in danger, it should
not be granted, as the stakes are then higher for security and the opportunity was presented in
advance. This presents a scenario different from civilian instances of informed consent, but it is in
situations like this where greater deference needs to be given to the military as long as the soldiers
had the opportunity in advance to make an informed, un-pressured decision.
To enact such a policy, the United States’s military regulation on Command Aspects of Military
Care, AR 600-20 para. 5-4, should be amended to allow for an exception for medical care or
treatment that is administered for the purpose of altering cognitive functioning and functions as a
was a miscommunication; the DOD had done no such thing. The FDA thus mistakenly granted the request for
waiver of the informed consent requirement.
10 In 1998, the DOD ordered that all 2.4 million active-duty and reserve service members be vaccinated
against anthrax. Many service members refused the shot, concerned about rumours of potential side effects
like sterility, paralysis, and cancer. Over 400 individuals were disciplined, jailed, or forced to resign as a result
of their refusals (Krieger 2001). The military warned that service members did not have the power to choose
which orders to obey and which to disregard.
cognitive enhancement drug or device. Amending the regulation would protect against currently in-
use drugs like amphetamines while guarding against future use of cognitive enhancers on unwilling
service members. Creating a separate exception for neuro-enhancing or -altering substances will
call attention to the fact that these drugs are inherently different than those used in basic treatment
or medical care. It will also ensure that they are never swept into the ‘standard care’ category; pre-
emptively giving them their own categorization within the context of the Army’s Command Policy
can guard against potential medical abuses in the future.
In addition to creating the subsection proposed above, this section of the Army regulation
should include a subsection strictly defining, care ‘necessary to preserve life’. This subsection
should be also include a clause stating that cognitive enhancements or drugs that minimize the
cognitive liberty of individuals may never be categorized as ‘necessary to preserve life’.11
Possible Objections and Responses
One possible argument against this proposed regulation is that giving service members an individual
right to refuse certain types of medical treatment would make military operations too complicated.
There could be a battlefield situation where a soldier refuses the administration of a drug and the
military is forced to transfer the soldier elsewhere. Too many soldiers could begin refusing these
cognitively enhancing drugs and compromise military effectiveness. This could undermine the
successful functioning of not only the unit but the military as a whole, especially if many soldiers
enter refusals.
A response to this objection is that service members’ refusals would have to be registered in
advance of combat situations. Soldiers should be made aware of the drugs that could be given to
them in the context of battle and be allowed, in advance, to decline those drugs that are deemed
enhancers and not treatments. This way the military is prepared and no one needs to be transferred
in the course of active conflict. This advance preparation also ensures that education about the
drugs is actually happening; commanders will not want to be placed in a combat situation where all
of a sudden, detailed medical information needs to be presented and the soldier must be given time
to weigh pros and cons. With regard to the fear that too many soldiers might refuse, the military
may just need to accept this limitation and devise another method of reaching certain combat goals.
In the end, the number of service members exercising their collective right to cognitive freedom
should not be used as an argument against limiting it.
Another objection is that keeping troops safe requires enhancing their cognitive performance,
particularly as other technologies develop and opposing parties use technologies that could require
stronger military response. The United States does not want to be left behind; the military wants to
develop the most advanced tactics possible and not compromise soldier safety if there is medical
‘treatment’ available that could give them an advantage over opponents.
This is an understandable concern. Still, we should not require soldiers to take drugs or submit to
medical treatment that could alter or even have an irreversible effect on their cognitive functioning.
The more this were to become the norm, the more the military would tread a dangerous line toward
cognitive enhancement as the expected state of the soldier. If soldiers are expected to submit to
such medical ‘care’, not only could it hurt the perception of the military in the public’s eye, it
11 These new subsections to the Army regulation should also be implemented in the US Code under
title 10, chapter 55 (Armed Forces, Medical & Dental Care) and provide the same safeguards as listed above,
just codified differently.
would violate the autonomy of those who enlist and entrust their safety and their bodies to the
government.
Some may be willing to take such drugs after going through a standard informed consent
process, but those who are not should not be disciplined or discharged as a result. Part of cognitive
liberty includes choosing what drugs one takes that affect neurological functioning. If someone
opts to take an SSRI because she believes the benefits are more substantial than the costs (and the
military will dispense SSRIs for this given purpose), then the service member is justly exercising
her right to freedom of thought. If, however, her friend decides that he does not want to take such
drugs, he should not be penalized.
Concluding Remarks
Medical technology and the military’s fighting capacity is rapidly developing and expanding.
Keeping pace cannot require forced infringement on soldiers’ cognitive liberty. Pre-emptive
legislative and regulatory action may be the best way to protect service members from such
infringement on their rights.12 Creating regulations now that protect against future abuse will be
the best way of showing respect for those who serve their country. They protect our liberty; we
should do the same for them.
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Chapter 9
Ethics and Censorship of Dual-Use Life
Science Research
Michael J. Selgelid
Introduction
Dual-use life science research has been one of the most hotly debated topics regarding science
policy and the bioterrorist threat during the past decade.1 The expression ‘dual-use research’ refers
to research that can be used for both good and bad purposes. Of particular concern is contemporary
research in genetics and synthetic biology that could potentially lead to development of a new
generation of biological weapons of mass destruction. Such research raises crucial questions
about the governance of science – for example, what, if any, restrictions should be placed upon
the production and/or dissemination of scientific knowledge and technology in contexts where
dual use dangers arise? This chapter provides analysis of the concept of ‘dual use’; describes
numerous recent cases of controversial life science research – demonstrating that the life sciences
are currently in a situation similar to that of atomic physics when the first atomic bombs were
developed; explores the question of censorship and who (for example, scientists or government?)
should have ultimate decision-making authority regarding publication of dual-use research; and
examines how censorship might fit into a broader ‘web of prevention’.
The Concept of Dual Use
The expression ‘dual-use technology’ was originally/traditionally used to refer to technology

that could be used for both civilian and military purposes (for example, lasers). This was a non-
normative use of the expression. ‘Dual-use technology’, conceived this way, is not necessarily
considered problematic. To the contrary, dual-use technologies (conceived this way) are often
attractive to policy makers – for example, because the funding of their development can kill two
birds with one stone, meeting both a country’s civilian aims and military aims at the very same
time. Nonetheless, dual-use technologies (conceived this way) do raise concerns in the context of
international trade. Countries are often reluctant, that is, to allow export of dual-use technologies
(conceived this way) to adversary countries to which they would not ordinarily permit export of
weapons.
In contemporary debates about dual-use science and technology, the expression ‘dual use’ is used
in an explicitly normative fashion. The expressions ‘dual-use research’ and ‘dual-use technology’
are now commonly used to refer to research and technology that can be used for both good and
bad purposes. This normative concept of dual use can have both broad and narrow application.
1 As explained below, this topic has not been so widely or hotly debated by (bio)ethicists. To date, main
parties to this debate have been scientists, security experts, and policy makers.
The broadest (normative) concept of dual-use research and technology would refer to that which
can be used for any good purpose and any bad purpose whatsoever. Such a concept would capture
just about all research and technology – because just about everything can be used for some good
and some bad purposes. Forks, for example, can be used for fine dining; but they might also
be used as tools of torture. Most contemporary debates about dual-use life science research and
technology, however, have a more narrow concept of dual use in mind. The focus of such debates
has been on life science research and technology that could be used for (good purposes and) bad
purposes that would have especially severe consequences – the primary concern being research
and technology that have implications regarding the development and use of biological weapons
(of mass destruction).
In the remainder of this chapter, therefore, I will primarily be using the expression ‘dual use’ to
refer to research and technology that (1) have good/legitimate uses (for example, in medicine), but
(2) might also be intentionally used by malevolent actors in the making and/or use of weapons that
could have catastrophic consequences. Things that are dual use in this narrow sense are obviously
problematic in a way that is not always the case with regard to things that are dual use in the
broad(est) (normative) sense. The US National Advisory Board for Biosecurity (NSABB) uses
the expression ‘dual-use research of concern’ to refer to research which is dual use in the narrow
(normative) sense (NSABB 2007).
Historical Background
The dual use phenomenon – and recognition of its existence – is by no means new. In the opening
pages of one of the great classics of Western philosophy – the Republic (Sections 327a–354b
passim: Plato 1992: 5–9), written roughly 2,400 years ago – Plato’s Socrates (in dialogue with
Cephalus and Polemarchus) demonstrates (or at least purports to demonstrate) the dual use nature
of knowledge. Knowledge of the truth, according to Plato’s Socrates, can be used for both good
(‘just’) and bad (‘unjust’) purposes – and, in many (if not all) fields, the same knowledge that could
be used to achieve the greatest benefits could also be used to cause the greatest harms:
[S]peaking of this very thing itself, namely, justice, are we to say unconditionally that it is speaking
the truth … Or is doing [this] sometimes just and sometimes unjust? I mean this sort of thing for
example: Everyone would agree that if a sane man lends weapons to a friend and then asks for
them back when he is out of his mind, the friend shouldn’t return them, and wouldn’t be acting
justly if he did. Nor should he be willing to tell the whole truth to someone who is out of his mind.
...
[W]ho is most capable of treating friends well and enemies badly in matters of disease and health?
A doctor.
...
Isn’t the person most able to land a blow, whether in boxing or any other kind of fight, also most
able to guard against it?
Ethics and Censorship of Dual-Use Life Science Research 141
Certainly.
And the one who is most able to guard against disease is also most able to produce it unnoticed?
So it seems to me, anyway.
And the one who is the best guardian of an army is the very one who can steal the enemy’s plans
and dispositions?
Certainly.
Whenever someone is a clever guardian, then, he is also a clever thief.
Probably so.
If a just person is clever at guarding money, therefore, he must also be clever at stealing it.
We can easily extrapolate from this train of thought. A skilled musician, for example, would
presumably be better able than others to make unpleasant, as well as pleasant, sounds with an
instrument. Though Plato does not employ the expression ‘dual use’, and though he provides little
analysis of the phenomenon identified in these passages, he here at least draws attention to the dual
use nature of knowledge in an ancient, seminal treatise on ethics.
One of the most controversial episodes in the history of science involved the development of the
first atomic weapons. This paradigm case of ethically problematic science raises questions about
the social responsibilities of scientists and more general questions about the ethical implications
of science and technology. It is also a case where the dual use phenomenon looms large. When
key discoveries of things like atomic fission and the chain reaction were made during the first half
of the twentieth century, scientists involved realized that these discoveries might have beneficial
applications in energy production – but they realized that they might also lead to development of
new, monstrously devastating weapons. Upon his discovery of the chain reaction, the Hungarian
physicist Leo Szilard engaged colleagues in debate about the virtues of self-censorship. Despite
widely accepted scientific norms regarding the importance of openness in the sharing of scientific
information, Szilard worried that publication of his findings might lead to more harm than good.
When a similar discovery was made and published in France, the first atomic bombs were made and
used not long afterwards. The atomic bombs dropped on Hiroshima and Nagasaki caused hundreds
of thousands of deaths. With the nuclear arms race that followed World War II, humankind has
since lived in constant fear of nuclear holocaust.
Much of the debate surrounding the first atomic weapons has focused on whether or not their
development and use was justified in the context of World War II – for example, was their use
necessary for the United States to defeat Japan and/or do so with minimal casualties? Even if
their use in World War II was justified (that is, a ‘good use’), however, it should be noted that
nuclear weapons should themselves be considered dual use according to the (narrow normative)
definition offered above.2 While their use in World War II might arguably have been good/justified
2 This thus reveals a key way in which the (narrow) normative definition I am operating with differs
from the original/traditional definition of the expression ‘dual use’ (according to which weapons would not
be considered dual use).
the problem is that, now that they exist, they might also be used for unjustified/bad purposes – and
the consequences could be apocalyptic.
Contemporary Life Science Research
Genetics and biotechnology have been among the most widely discussed ethical topics associated
with contemporary science and technology. During the 1990s commentators expressed concern that
the revolution in genetics promised to produce enormously powerful knowledge and technologies,
just as the revolution in atomic physics led to enormously powerful knowledge and technologies
decades earlier (Cooke-Deegan 1994). To avoid making the same mistake twice, it was argued, we
should give more thought to the ethical implications of developments in genetics/biotechnology than
was given to ethical implications of atomic physics in the episode described above. A proportion of
the Human Genome Project budget was thus specifically dedicated to research regarding ethical,
legal, and social implications (ELSI) of genetics. This general topic has since become a virtual
industry within bioethics – and an enormous number of books, book chapters, and journal articles
have focused on such issues.
Oddly, however, this huge body of ELSI of genetics literature (with a few exceptions) has
included very little discussion of what is arguably the most salient way in which the life sciences
(and genetics and biotechnology in particular) are presently in a situation similar to that of atomic
physics when the first atomic bombs were made and used. The current revolution in genetics/
biotechnology enables production of a new generation of weapons of mass destruction, just as
the revolution in atomic physics did then, but only a very small portion of the explicitly ethical
literature3 regarding genetics and biotechnology has focused on the weapons implications of recent
life science developments.4 With regard to the idea that the enormous potential power of genetic
knowledge and technologies is similar to the enormous power of atomic physics, most authors
have apparently had things other than weapons-making in mind. A quick look at most literature
concerned with ethical, legal, and social implications of genetics produced during the past 30 years
reveals a focus on the following ‘usual suspect’ topics:
• laboratory biosafety and environmental dangers associated with recombinant DNA research
and/or genetic modification of organisms.
• clinical safety of genetic therapy (or research pertaining thereto).
• genetic determinism.
• genetic testing.
• genetic discrimination.
• genetic enhancement.
• selective reproduction (for example, eugenics).
• cloning.
• stem cell research.
• DNA fingerprinting.
• patenting of genetic sequences.
3 By ‘explicitly ethical’ literature I primarily mean that which is (1) authored by ethicists (2) in ethics
journals, and/or (3) in books (or papers) that (purport to) focus on ethics.
4 For such exceptions, see Resnik and Shamoo (2005); Selgelid (2007); Jones (2007); Miller and
Selgelid (2008); Ehni (2008); Kuhlau et al. (2008); Dando (2009); Rappert (2010); Resnik (2010); Douglas
and Savulescu (2010); Kuhlau et al. (2011).
Though hardly part of the discussion to date, meanwhile, biological weapons (of mass destruction)
may turn out to be the most ethically problematic consequence of the revolution in genetics and
biotechnology.
Another major topic of discussion in literature concerned with ethics of science has been research
ethics. Research ethics is an area that bioethics grew out of to become an autonomous academic
discipline – and it is safe to say that research ethics is one of the best developed areas of bioethics.
Literature and oversight mechanisms concerned with research ethics, however, have primarily
focused on protection of human and animal research subjects (Green et al. 2006) – and issues
regarding research integrity (for example, plagiarism, falsification of results, and so on). Ethical
implications of dual-use research have, again, hardly been part of the discussion. Dual-use research
is rarely mentioned among principles and guidelines concerned with research ethics. And oversight
mechanisms addressing dual use dangers – for example, committee review of ‘experiments of
concern’ before research takes place and/or before potentially dangerous discoveries are published5
– have not, to date, been widely implemented.
The 10/90 divide in medical research is the phenomenon whereby less than 10 per cent of
medical research resources focus on diseases than account for 90 per cent of the global burden of
disease, and vice versa. If I am correct that dual use implications of genetics and biotechnology are
among the most important ethical issues associated with contemporary biology,6 then bioethicists
failure to further engage with this topic illustrates one of the ways in which a situation analogous
to the 10/90 divide in medical research arguably holds true for bioethics (Selgelid 2005; Capron
2007). Part of the explanation for bioethics’ neglect of the topic of dual-use life science research
and technology is presumably that bioethicists have historically paid relatively little attention to
ethical issues associated with infectious disease more generally.7 Concerns about dual-use life
science research and technology are largely associated with biological weapons – and biological
weapons generally involve infectious diseases. In any case, bioethics’ neglect of the topic of dual-
use research demands explanation – and raises interesting historical and sociological questions
about the discipline of bioethics (Selgelid 2010). The fact that Plato touches on dual use issues
in the opening of the Republic perhaps makes the lack of ethicist/philosopher engagement with
the topic of dual use all the more surprising. As far as I am aware, the above passage(s) from the
Republic (which, I would hope/assume, the majority of (bio)ethicists trained in philosophy have
read) has never been previously cited in contemporary debates about dual-use life science research
and technology.
Controversial Cases
The idea that weapons implications may turn out to be the most ethically problematic consequence
of the revolution in genetics and biotechnology is illustrated, inter alia, by an unclassified CIA
(2003) document titled ‘The Darker Bioweapons Future’:
5 See, for example, Resnik, Barner and Dinse (2011).

6 The ethical importance of dual use will be further illustrated in the discussion (below) of controversial
cases.
7 This has, in some ways, changed recently – as considerable bioethics (which I take to include public
health ethics) literature has focused on SARS and pandemic influenza during the past decade. HIV/AIDS,
meanwhile, was an exception all along – it received considerable attention from bioethicists since the time
AIDS was first recognised. Nonetheless, major gaps remain – for example, tuberculosis, malaria, lower
respiratory disease, diarrhoea, drug resistance, and biological weapons.
A panel of life sciences experts convened for the Strategic Assessments Group by the National
Academy of Sciences concluded that advances in biotechnology … have the potential to create a
much more dangerous biological warfare (BW) threat. The panel noted [that]he effects of some of
these [genetically] engineered biological agents could be worse than any disease known to man.
This is no small claim – and it emanates from eminent scientists rather than the CIA itself. The
legitimacy of such concerns, meanwhile, has been demonstrated by numerous studies conducted
and/or published during the past decade.
Mousepox
Australian researchers, for example, inadvertently produced a superstrain of mousepox.

Because periodic plagues of mice pose a serious pest problem in Australia, scientists at CSIRO
(Commonwealth Scientific and Industrial Research Organisation) and the Australian National
University in Canberra aimed to develop a method to control mouse reproduction. They used
standard genetic engineering techniques to insert the IL-4 (interleukin) gene into the mousepox
virus. There was reason to believe that infection with such a virus would lead to an immune system
reaction in mice that would render them infertile – the hope being that such a virus could be
deployed as a contagious contraceptive. To their surprise, the scientists found that the altered virus
killed both mice that were naturally resistant to and mice that had been vaccinated against ordinary
mousepox. According to Ian Ramshaw, one of the lead researchers involved in this study, ‘This was
the first [discovery] of a virus overcoming vaccination’ (Selgelid and Weir 2010a). The scientists
proceeded to publish their findings, along with description of materials and methods, in the Journal
of Virology in 2001 (Jackson et al. 2001).
Due to its dual use implications, heated controversy followed publication of this study. Because
mousepox is closely related to smallpox, it is considered likely that a similar alteration of the
smallpox virus – that is, variola – would result in vaccine-resistant smallpox. This is worrisome
partly because smallpox has historically been one of humankind’s worst enemies. It is highly
contagious and kills one-third of its victims. It killed somewhere between 300 and 500 million
people during the twentieth century alone – three times the number of people killed in battle in
all the wars of that century (Oldstone 1998). Smallpox commonly tops lists of feared biological
weapons agents – and modelling has shown that a smallpox attack (for example, by bioterrorists)
could cause the devastation expected to result from (perhaps a series of) nuclear attack(s) (Samuel,
Selgelid and Kerridge 2010). Because there is no known treatment for smallpox, vaccination
provides our only defence against it.
Polio
Second, American researchers based at State University of New York at Stony Brook (SUNY)
artificially synthesized a ‘live’ polio virus. Research funding was in this case, ironically, provided
by the US Army’s Defense Advanced Research Projects Agency (DARPA). Following the map
of polio’s RNA genome, which is published on the Internet, the scientists bought (via mail order)
and strung together corresponding DNA sequences. Addition of the synthesized DNA version of
polio’s RNA genome to ‘cell juice’ (that is, a solution containing cellular ingredients but no live/
whole cells) lead to production of active polio virus that paralyzed and killed mice.
There were several motivations behind this study (Selgelid and Weir 2010b). While it was
previously believed that such a feat would be technically possible, part of the motivation was
‘proof of concept’ – that is, to demonstrate that chemical synthesis of viruses was actually feasible
in practice. A related motivation was to demonstrate that viruses are ultimately just chemicals. An
additional motivation was to send a warning that bioterrorists might be able to synthesize polio
via such means – and thus demonstrate that we should give up on the idea of polio eradication.
(The point here, according to Eckard Wimmer, one of the lead researchers involved in this study,
is that even if polio is eliminated from human populations via vaccination efforts, we would want/
need to continue vaccinating people afterwards.) This study, including description of materials and
methods, was published in Science in 2002.
Again, publication led to controversy regarding dual use dangers. A problematic implication of
this study, according to critics, was that the same techniques of synthetic genomics used to synthesize
polio might be used to synthesize pathogens that would-be bioterrorists might not otherwise have
easy access to. Of particular concern was that such techniques might enable synthetic production
of smallpox in particular. At the time this study was published, many downplayed this concern
on the grounds that the smallpox genome is so much larger than that of polio. The polio genome
comprises only 7,500 base pairs – and it took the SUNY scientists several years to synthesize it.
The smallpox virus genome, in comparison, is composed of almost 200,000 base pairs. In 2002,
anyway, many doubted that synthesis of smallpox was possible.
Meanwhile, however, genome synthesis technology has been rapidly advancing – just as genome
sequencing technology advanced rapidly during the Human Genome Project. It is increasingly
possible to synthesize larger and larger genomes – and to do so much more quickly. Just one
year after the polio study was published, Craig Venter and colleagues synthesized a bacteriophage
genome comprising 6,000 base pairs in a fortnight (Westphal 2003) – and in 2010 a team led by
Venter announced synthesis of a bacterial genome comprising over 1 million base pairs (Gibson
et al. 2010). Though artificial synthesis of smallpox involves serious technical challenges beyond
mere genome synthesis, experts (for example, lead investigators of both the mousepox and polio
studies) believe that synthesis of smallpox is now technically feasible (Selgelid and Weir 2010a;
Selgelid and Weir 2010b).
1918 Spanish Flu
In a third study, American researchers employed techniques of synthetic biology, similar to those
employed in the polio study, to reconstruct the 1918 Spanish Flu virus. In this case, previous research
had involved the recovery of 1918 flu virus samples from bodies buried in permafrost in Norway
and Alaska. Though attempts to revive recovered virus samples failed (Kolata 1999), its genome
was subsequently sequenced – and this sequence information synthetic reconstruction of the virus.
The reconstructed virus was more deadly to chickens than any flu virus that had previously been
studied (Tumpey et al. 2005). This study was motivated by contemporary concerns about pandemic
influenza. It aimed to improve understanding of pandemic influenza and (ultimately/eventually)
our ability to develop new drugs and vaccines against potential pandemic strains of influenza.
Obvious dual use implications of this study, however, relate to the fact that the strain of
influenza reconstructed was responsible for one of the worst epidemics in human history. This
virus is estimated to have killed between 20 and 100 million people over the course of a year or
two. According to the historian Alfred Crosby (1989: 3), the 1918 flu undoubtedly ‘killed more
humans than any other disease in a period of similar duration in the history of the world’. Gina
Kolata (Kolata 1999: xii) writes that the 1918 flu killed ‘more Americans in a single year than died
in battle in World War I, World War II, the Korean War, and the Vietnam War’. Like smallpox, such
a virus could produce mass mortality if intentionally released by bioterrorists or other malevolent
actors.
Before this study was published by Science in 2005 (Tumpey et al. 2005), it was sent to the
US National Science Advisory Board for Biosecurity (NSABB) for review – regarding whether
publication was advised, in light of potential dual use dangers. The NSABB was established in 2004
to advise the US government on matters pertaining to dual-use life science research. It is composed
of members with diverse areas of expertise – for example, in science and security. Because it is
merely an advisory body, referral (by scientists and/or journals) of studies to NSABB for review is
voluntary – and its decisions are not legally binding. NSABB members voted unanimously that this
study, including description of materials and methods, should be published in virtue of its potential
medical importance. Soon after the study was published, however, Science editor-in-chief Donald
Kennedy (2005: 195) wrote (in an editorial) that he would have published the paper ‘even if the
NSABB had voted otherwise’. Because NSABB decisions are not binding, he presumably would
have been free to do so.
Ferret (Bird) Flu
The most recent and, to date, most controversial cases of dual-use life science research have
involved research on the transmissibility of H5N1 influenza. Also known as ‘bird flu’ – or ‘avian
influenza’ – H5N1 has, for over a decade, been of major concern in light of its apparent pandemic
potential. Because it is (currently) not transmissible between humans, H5N1 has, to date, infected
fewer than 600 people. On the other hand, it is extremely deadly, killing approximately 60 per
cent of (identified) persons infected.8 According to Michael Osterholm and Donald Henderson
(2012), this mortality rate ‘places this pathogen in the category of causing one of the most virulent
known human infectious diseases’. Public health experts have thus long been concerned about the
possibility that H5N1 might become transmissible among humans. With the aim to investigate the
likelihood or possibility of such a scenario, scientists have conducted relevant research with ferrets
– which are believed to provide the best model for influenza in humans. Via genetic manipulation
of H5N1 – and sequential ‘passaging’ of altered virus from ferret to ferret – research teams in the
Netherlands and US, led by Ron Fouchier and Yoshiro Kawaoka respectively, produced strains of
H5N1 that are airborne and easily transmissible among ferrets.
Like the 1918 influenza reconstruction study described above, the papers reporting these
studies were sent to the NSABB for review prior to publication in Science (Fouchier’s paper)
and Nature (Kawaoka’s paper). In contrast with the 1918 study, however, NSABB recommended
in December 2012 that, although general findings of this ferret flu research should be published,
detailed description of materials and methods should be omitted from the published articles. The
US government endorsed this recommendation – and the scientists and journals agreed to amend
the articles in question if they could be assured that legitimate parties could be provided with the
redacted details on a need-to-know basis – and that a feasible system for such communication
could be put into place. Many expressed doubts, however, about how this could be done – that
is, given that a large number of people, in a large number of countries, would arguably ‘need-to-
know’.
In January 2012, furthermore, scientists announced a temporary moratorium on H5N1
transmissibility studies and further research with transmissible strains of H5N1 that have already
8 According to Kate Kellend (2012) the Spanish flu, in comparison, killed only ‘an estimated 0.5 per
cent of those infected’.
been produced. The expressed purpose of this moratorium (which is ongoing at the time of this
writing in December 2012), according to the scientists who announced it, is to allow time for (1)
better communication to the public regarding benefits of the research in question and (2) more
international deliberation regarding dual use implications of the research in question.
With regard to (2), the World Health Organization hosted a Technical Consultation regarding
these ferret flu transmission studies in February 2012. Contrary to the NSABB recommendation,
the group convened by WHO reached a ‘consensus’ that the articles should be published in full.
This ‘consensus’, however, was not unanimous. According to Anthony Fauci, director of the US
National Institute of Allergy and Infectious Diseases, who participated in the meeting, ‘the United
States was not part of that consensus … He said he still agreed with the National Science Advisory
Board for Biosecurity, which recommended that the research be published only in a redacted form,
for safety reasons’ (Grady 2012a).
On 30 March 2012, however, the NSABB finally approved publication of revised versions of
both manuscripts apparently containing ‘full details of the research’ (Grady 2012b) in question.
The new decision to approve of publication was based on new information provided in the revised
manuscripts which:
made it clear that the experiments were not as dangerous as they originally appeared to be and that
the benefits of the research were greater … Dr. Keim [acting chairman of the NSABB] said that
the new decision was not a reversal, because the revised manuscripts were so different from the
originals. Had these versions been presented originally, the board would not have recommended
withholding any details, he said. (Grady 2012b)
One reason why the revised version of Fouchier’s paper, in particular, was considered to be less
dangerous was that it ‘clarified that the airborne viruses [he created] weren’t lethal to the ferrets’
(Schnirring 2012), whereas previous reports (in the media anyway) indicated that the airborne
strains created by Fouchier (though not Kawaoka) were just as deadly as ordinary H5N1. According
to the NSABB, the revised manuscripts also said more about ways in which the studies could be
useful for surveillance and public health purposes – ‘but it did not elaborate’ (Schnirring 2012).
Both studies were finally published in full in June 2012.
Publication of details concerning this ferret H5N1 research could have important public
health benefits. Even when they agreed to amend their articles in line with NSABB’s initial
recommendations, both Fouchier and Kawaoka expressed belief that their papers should be
published without redaction of specific details concerning materials and methods (Cohen 2012).
Publication of such details, they claimed, could facilitate development of vaccines against such
strains of H5N1 and alert public health scientists involved with surveillance to genetic changes in
naturally occurring H5N1 they should keep an eye out for. The latter point is that if those involved
with surveillance are made aware of genetic changes that enabled H5N1 transmissibility (among
ferrets) in the lab, then they might be better able to detect and/or predict when a strain that is
transmissible (among humans) is about to occur in nature – thus allowing advanced warning and
earlier preparation.
On the other hand, these potential benefits of publication (of research details) might actually
be quite limited. The idea that details regarding these particular studies need to be published in
order to enable production of vaccines against naturally occurring transmissible H5N1 and/or to
provide advanced warning that transmissible H5N1 is about to occur in nature seems to presuppose
that when (and if) transmissible H5N1 evolves in nature this will occur via the same genetic
changes generated in the laboratory. But there are presumably numerous different ways via which
transmissible H5N1 might evolve in nature. If this is correct, then developing vaccines against
specific strains produced in the lab, or keeping an eye out for the natural emergence of strains
similar to those produced in the lab, might not do much good.
With regard to the benefits of surveillance, meanwhile, an important lesson learnt from
pandemic H1N1 (swine flu) is that there is not much that can be done to contain outbreaks of
pandemic strains of influenza once they emerge.9 The point here is that even if publication of
details of these studies allows somewhat earlier detection that a transmissible strain of H5N1 is
emerging in nature, there might not be much we can (effectively) do with this information to
forestall or contain the epidemic/pandemic foreseen.
Appropriate vaccine production, of course, could be useful – but large scale vaccine production
takes months, while influenza spreads very quickly. Because the influenza virus is prone to a great
deal of genetic mutation, specific vaccines are needed against specific strains of influenza. This is
why different vaccines for seasonal influenza are offered each year – and this is why it would be
difficult to prepare vaccines against naturally occurring transmissible strains of influenza before
such strains actually arise.
Even if benefits regarding vaccine development and/or surveillance are real, furthermore, they
might be achieved without making details of these studies available to the general public. Those
specifically involved in vaccine production and/or relevant surveillance, that is, could be informed
about details of the ferret flu research on a need-to-know basis.
While the benefits of this research are thus arguably limited, the potential harms might be
enormous. The ultimate worry is that research conducted by Fouchier and/or Kawaoka could
(eventually) lead to production of a strain of H5N1 that is transmissible among humans – and as
deadly as ordinary H5N1. Such a strain could cause enormous harm if intentionally released by
bioterrorists or others bent on wreaking havoc. If such a virus were intentionally (or accidentally,
for that matter) created and released, perhaps one half of the world’s population would become
infected – and perhaps 60 per cent10 of those infected would die. Given the current world population
of 6,800,000,000 people, roughly 2 billion human lives could be lost.
Epidemiological mathematics aside, statements by Fouchier and Keim might already vindicate
the CIA’s (2003) claim (above) that ‘engineered biological agents could be worse than any disease
known to man’. Even Fouchier admits that the strain he created is ‘probably one of the most
dangerous viruses you can make’ (Enserink 2011). NSABB chair Paul Keim says ‘I can’t think
of another pathogenic organism that is as scary as this one … I don’t think anthrax is scary at all
compared to this’ (Enserink 2011).
Censorship
Much of the controversy surrounding the cases described above has focused on the issue of
publication in particular. Critics claim that publishing details of research like this alerts (or would
alert) would-be bioterrorists to new possible ways of making biological weapons and provides
them with explicit instructions – ‘recipes’, ‘road-maps’, or ‘blue-prints’ – for doing so. Many
have argued that these studies should not have been published and/or that detailed description of
9 This point was emphasised in meetings of the WHO SAGE Working Group on H5N1 as a key lesson
learnt from experience with H1N1 (swine flu).
10 While the death rate of H5N1 among humans is usually estimated to be 60 per cent, it should here be
admitted that the actual death rate might actually be lower. While 60 per cent of identified human cases have
resulted in death, it is possible that numerous less severe cases have gone undetected.
materials and methods, at least, should have been omitted from the published articles (as previously
recommended by NSABB regarding the ferret flu studies).
Openness in the sharing of information, on the other hand, is a central norm of science. And
publication of materials and methods is considered important to scientific methodology–that is, for
verification and replication by other scientists. It is also often argued that publishing studies like
these is important to alert the scientific community about new dangers against which we need to
develop protection.
If there is one consensus that has emerged in debates about dual-use life science research it is
that we need policy that strikes a balance between the aim to protect security, on the one hand,
and the aim to promote scientific progress (and the good things thereby made possible), on the
other. The idea here is that too much governmental regulation of dual-use research would hinder
scientific progress – but that a total lack of oversight/regulation of dual-use research could have
unacceptable (that is, potentially catastrophic) security consequences.
Whether or not the above studies should have been published (in full detail), we can presumably
at least imagine cases of research (details) that should not be published. If scientists accidentally
discovered an easy way to produce a pathogen just as deadly, contagious and untreatable as
smallpox, for example, then details about how to do so presumably should not be made public
(Selgelid 2007). Publishing such details could have disastrous consequences – and publishing such
details would not have the obvious kinds of benefits appealed to by those in favour of publishing
details of the ferret flu studies. If this is correct, then we should not in principle be opposed to
censorship. In exceptional cases where harms of publication would clearly outweigh benefits,
publication presumably should not occur. This, however, raises the question of who the censor
should be in such cases. Should we rely on voluntary self-governance of scientists (that is, self-
censorship) – or would censorship by government sometimes be appropriate?
The US National Research Council’s (2004) canonical Fink Report recommends that we should
rely on voluntary self-governance of the scientific community in matters pertaining to dissemination
of information regarding dual-use research – at least when such research is unclassified. The status
quo in the US apparently involves such a regime. As noted above, referral of cases to the NSABB
for review is voluntary, and NSABB decisions/recommendations are not binding. But what if
scientists refuse to voluntarily go along with NSABB’s recommendations (for example, if they
call for omission of details regarding materials and methods in publication of future controversial
studies)? Would more coercive interference by government then be appropriate? As noted by
Kraemer and Gostin (2012), there are difficult questions about when, or the extent to which,
government censorship of (unclassified) dual-use life science research would technically be legal.
Regardless of what is actually/technically legal, however, another important question concerns
what should be legal.
There are good reasons for being opposed to governmental censorship of science. Given what
they do for a living, it would not be surprising if bureaucrats place especially high weight on the
value of security vis-à-vis scientific progress – rather than striking an appropriate/impartial balance
between the two. Another concern about decision-making by government is that government
officials might not always sufficiently appreciate the scientific importance of research they might
want to censor.
On the other hand, there are reasons for being concerned about voluntary self-governance on
the part of scientists. First, obvious conflicts of interest may arise. Given that career advancement in
science depends upon a strong publication record, scientists may often have obvious self-interested
reasons for publishing their research findings (even when security concerns arise). Second, given
what they do for a living, scientists might be biased in favour of the value of scientific progress
vis-à-vis security (just as bureaucrats are likely to be biased in favour of the value of security).
Third, scientists might lack adequate expertise for assessing the security dangers of studies they
might want to publish. Most scientists do not have special training in security studies, and they may
sometimes be systematically denied information essential to assessment of the security dangers
of publishing particular studies (and they may thus, in such cases, be unable to make a sound
assessment of whether or not benefits of publication outweigh security risks).
This last point is well illustrated by the mousepox study – which, until the ferret flu studies
were announced in late 2011, was probably the most controversial example of dual-use life
science research. In this case danger of publication partly depends on the likelihood that there
has been proliferation of smallpox virus from Soviet biological weapons stockpiles11 – that is,
because bioterrorists would need access to the smallpox virus in order to alter it in the manner that
mousepox was altered. But any detailed information about smallpox proliferation is classified –
and not the kind of information that ordinary scientists would have access to. In this case, then,
scientists were systematically denied information essential to estimating the risks of publication
(and thus assessing whether or not benefits outweighed the risks) (Selgelid 2007).
Perhaps the best solution, then, would be decision-making by a mixed panel of experts –
comprised of civilians, governmental personnel, scientists, security experts, ethicists, and others.
Like the NSABB, all members of such a panel would presumably need to have security clearance
(that is, so they could be informed about relevant classified information), but unlike the NSABB,
its decisions should be binding. The ultimate aim would be a decision-making (rather than merely
advisory) body with adequate expertise in both science and security – and without being biased in
favour of one of the two key values at stake (that is, scientific progress or security). Rather than
being situated nationally, furthermore, such a decision-making panel should arguably be located
at the level of international governance. Because both the potential harms and benefits of dual-
use research relate to global public health, the elephant in the room is that a US body (that is, the
NSABB) has largely been calling the shots until now.12 Given its mandate regarding global public
health policy, the WHO is an obvious place where such a decision-making body should be located
– and WHO is one of the few institutions with authority to make international law.
Web of Prevention
While censorship might sometimes be called for in order to protect against dangers of dual-use
research, the decision to censor should not be taken lightly. Censorship would only be appropriate
in exceptional circumstances, if ever. We should thus recognize other measures that could, and
arguably should, be put into place to protect against harms that might result from malevolent use
of legitimate science.
11 The point here is that all of the world’s smallpox samples are officially supposed to be held under
secure conditions at the CDC in Atlanta and a similar facility in Russia. It is unclear, however, what happened
to enormous Soviet weapons stockpiles of smallpox – and it is widely believed that proliferation from these
is the most likely way that bioterrorists might gain access to smallpox virus.
12 Though the NSABB is merely an advisory body, it nonetheless has significant power – as is
illustrated by the fact that Fouchier agreed to follow its initial recommendations despite the fact that he
disagreed with them. Though such analysis is beyond the scope of this chapter, it is arguably the case that
NSABB’s recommendations exert significant social/political pressure in various ways – and that Fouchier’s
agreement to redact research details was not entirely voluntary.
To illustrate the variety of (other) protective measures that might be put into place, it is fruitful
to consider the image of the ‘dual use pipeline’ – that is, the series of events that could lead
to a harmful outcome. First, a potentially dual-use study is conceived and conducted. Second, a
potentially dangerous finding results from the research in question. Third, the dual-use discovery
is published. Fourth, the information revealed by the dual-use publication enables manufacture of
biological weapons. Fifth, such weapons are deployed. Sixth, and finally, they cause disease and
death.
There is no need to rely on censorship alone to prevent dangers associated with dual-use
research, because a variety of measures can be employed at various up-, middle- and downstream
locations of the dual use pipeline in order to achieve what should be the ultimate aim – that is,
prevention of the harms that might result from malevolent use of the research in question.
The most upstream measures would include things like (increased) education of scientists (for
example, via schools, universities and research institutions) about dangers of dual-use research
– and the ways in which one’s own research might be used by malevolent actors for nefarious
purposes. Further awareness-raising could be achieved via establishment and promulgation of
science codes of conduct (which, inter alia, include prescription that scientists consider dual use
dangers before conducting research and/or publishing findings – and that scientists refrain from
conducting research and/or publishing findings when harms are likely to outweigh benefits).
If scientists were thereby made more aware of dangers of dual-use research, and their social
responsibilities, then they would hopefully be less likely to conduct/publish the most problematic
kinds of experiments/findings (even if they were free to do as they choose).
A slightly more downstream measure would involve committee review of proposed research
with an eye to dual use dangers. Just as institutional committees currently routinely review proposed
research regarding issues associated with biosafety and human/animal research subject protection,
that is, the mandate of such committees could be expanded to include scrutiny regarding the
likelihood and/or magnitude of harms that might result from proposed research. Such committees
could vet research in cases where harms of research are likely to outweigh benefits (National
Research Council 2004).
Censorship is a more middle-stream measure. Life science journals have increasingly been
reviewing papers submitted for publication for dual use dangers. Such review could also be put
into place at research institutions themselves. In addition to reviewing proposals before they are
conducted, that is, institutional committees could review papers for dual use dangers before they
are submitted for publication. Some kind of formal system could, furthermore, be put into place
whereby the most problematic studies are systematically sent (by research institutions or journals)
for review by higher-level (for example, national and/or international) panels – such as the NSABB
and/or at WHO.
It is inevitable that some studies with dual use potential (such as those described above) will
eventually be published – but the dangers of such studies could be mitigated by more downstream
measures that make it more difficult for malevolent actors to use the information to produce
biological weapons. Such measures could include more control over who has access to potentially
dangerous materials and technologies – for example, licensing/registration of things like DNA
synthesizers and increased control over trade and transportation of ‘select agents’ and (dangerous)
DNA sequences. A related kind of measure would involve strengthening of the Biological and
Toxins Weapons Convention – that is, by the addition of verification measures. This would help
prevent state actors, at least, from using legitimate science for the promotion of offensive weapons
programmes. (It should be kept in mind that dangers of bioterrorism are partly associated with the
potential proliferation of biological weapons from state weapons programmes.)
Last, but not least, the most downstream measure would involve further development (and
stockpiling) of more effective medical countermeasures – for example, broad spectrum vaccines
and antimicrobials. Greater availability of better countermeasures would mean that harms of
biological attack would be reduced even in the event that biological weapons are made and used.
Of course no one of these measures would be fail-proof or a magic bullet. But the hope is that
putting them each into place would lead to an effective ‘web of prevention’. A virtue of such a
web of prevention, furthermore, is that its existence would mean that we would not need to be too
heavy-handed with regard to any one kind of measure in particular. The need for censorship, for
example, would be less pressing if more effective downstream measures were put into place. It
would be less important to censor a potentially dangerous discovery, that is, if it were more difficult
for malevolent actor to actually use it to cause great harm.
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Chapter 10
Biosecurity and Dual-Use Issues:
The Education Module Resource
Maria J. Espona
Introduction
At the end of the Second World War it was clear that there were three types of weapon systems
– chemical, nuclear and biological – that threatened new levels of destructive power and were
designated as weapons of mass destruction. Fortunately, chemical weapons (CW) had never been
widely used in war. Although the military capability had been available since the First World
War, the German development of new deadly nerve gases still came as a shock to allied forces.
The development of CW led to massive stockpiling of lethal chemical weapons during the Cold
War period and, eventually, to the agreement in the 1995 Chemical Weapons Convention (CWC)
that these stockpiles should be destroyed – a process that is now almost complete for states that
are parties to the Convention. The Cold War period was of course dominated by concerns over
the proliferation of nuclear weapons and the build-up of such systems particularly by the two
superpowers: the US and the USSR. However, the process of proliferation of nuclear weapon states
was much slower than was feared and, to an extent, it is reasonable to argue that the international
community has coped well with the problem of proliferation and build-up of nuclear weapons.
Indeed it is not impossible to conceive of a period of gradual decline in the current nuclear arsenals
and in their perceived military utility.
This, then, leaves the problem of biological weapons (BW). It is clear that major states
continued to investigate the utility of these weapons following the Second World War and that in
the process new advances in biology, such as the improved understanding of the nature of viral
pathogens, were made use of. Moreover, in the first 25 years of the Cold War the US satisfactorily
demonstrated that biological weapons could be as lethal as nuclear weapons if weather conditions
were favourable (Wheelis et al. 2006: 284–303). Later in the Cold War it became clear that the
USSR was using the first fruits of the nascent genomics revolution to advance an illegal offensive
biological weapons programme. In the 1990s it was discovered that South Africa and Iraq both
had illegal biological weapons programmes; it is also probable that a number of other states
such as North Korea continue to have offensive biological weapons programmes. It also became
very clear amidst international discussions leading up to the agreement of the 1975 Biological
and Toxin Weapons Convention (BTWC), and the efforts to add a verification protocol to the
Convention during the 1990s, that dealing with the proliferation of chemical and nuclear weapons
would prove to be easier than halting the proliferation of biological weapons. Both nuclear and
chemical weapons could be constrained by monitoring the production of material required to
develop weapons of mass destruction. Producing a weapon of mass destruction – either nuclear or
chemical – required very large amounts of material to be produced and delivered to the production
site. Given that biological agents were living and could self-replicate it was harder to devise a
control system that was widely accepted because it would need to include both military and civilian
research and facilities. Moreover, it has become clear in the last decade that there is a rapidly
evolving revolution occurring in the biomedical and associated sciences that is likely to open
up new avenues of research that could potentiate harmful uses of such sciences. In late 2011 the
impact of this revolution became clear when it was announced that benignly intended work in
the Netherlands had led to the creation of a deadly H5N1 bird influenza that was contagious in
mammals when spread through the air. When the authors submitted their paper for publication in
Science it led to a heated public debate over whether or not the work posed such a high level of risk
that it should not be carried out or even published (Berns 2012).
Preventing such misuse will therefore be a major problem for the international community over
the next few decades and will require not only the continued development of a range of policies
centred on the BTWC but also the inclusion of carefully constructed export control systems and
national biological defence programmes. This chapter is concerned with one aspect of that web
of policies that has only recently come into prominence, but which is no less important, namely
the lack of knowledge concerning the Convention and the corresponding responsibilities to which
biomedical scientists are bound under the Convention, as well as their consequent inability to add
their particular expertise to constraining the misuse of their benignly intended work.
A paper produced by a large group of states parties, including the United States, for the Seventh
Review Conference of the BTWC (2011) clearly set out the problem in a section reviewing the key
findings from their investigations:
‘7. The analysis of the various experiences made by States Parties … seems to reveal a number
of key findings:
a) Existing curricula and/or training at university or research facilities do often contain references
to aspects related to (bio-) safety, but rarely contain any aspects related to (bio-) security; …
b) Life scientists do not often consciously consider the possibility that their specific work
could be of relevance to a biological weapons program or otherwise misused to cause
harm to people, animals, or plants or to render critical resources unusable …’.
In such circumstances it is not surprising that at the December 2011 Seventh Review Conference
States’ Parties agreed to consider a new Standing Agenda Item for their annual meetings through
to 2016:
c) ‘(d) Voluntary codes of conduct and other measures to encourage responsible conduct by
scientists, academia and industry …
d) And as such measures are unlikely to be effective unless scientists are able to understand
why they are necessary:
e) Education and awareness-raising about risks and benefits of life sciences and biotechnology’.
Unfortunately, however, there is very little educational material available and very little expertise
in the ‘life sciences’ community to create such material. Moreover, the material that is available is
rarely designed for incorporation into university courses. It is clear that without such incorporation
of relevant material, a sustained programme to deal with the problem of dual-use1 is not possible.
Therefore, this chapter sets out to first describe the Educational Module Resource (EMR) developed
by the National Defence Medical College of Japan and the University of Bradford with the specific
1 In this context, dual use means that the same research result, materials, etc., could be used both to
produce biological weapons and legitimate civilian research.
Biosecurity and Dual-Use Issues: The Education Module Resource 157
intention that it could be called upon by university lecturers as a key resource to enhance their
teaching of life scientists. Secondly, this chapter attempts to assess the EMR from the point of view
of a university-level lecturer who has introduced such dual-use and biosecurity information into
lectures for life scientists.
The EMR was developed with the objective of fulfilling a gap in the specific knowledge
about the risks posed by biological weapons and peaceful research in the life sciences arena. An
interdisciplinary team was developed in order to address all sides of this particular problem and,
at the same time, to make the EMR applicable to professionals from different fields of expertise.
The Educational Module Resource (EMR)
The EMR is based on the assumption that practicing life scientists know almost nothing about the
potential misuse of their work and, therefore, need a broadly based awareness of the problem to
be addressed. It is also based on the contention that the BTWC and its national implementation
are central to the BW Prohibition Regime. The BTWC2 came into force in the early 1970s after
President Nixon had closed down the US offensive weapons programme. The objective of the
Convention was to prevent the misuse of the life sciences, as is clear from the first Article which
states:
Each State Party to this Convention undertakes never in any circumstances to develop, produce,
stockpile or otherwise acquire or retain:
1. Microbial or other biological agents or toxins whatever their origin or method of production,
of types and in quantities that have no justification for prophylactic, protective or other peaceful
purposes.
The parties to the BTWC also agreed to ensure the national implementation of the Convention:
Article IV states that:
Each State Party to this Convention shall, in accordance with its constitutional processes, take any
necessary measures to prohibit and prevent the development, production, stockpiling, acquisition
or retention of the agents, toxins … specified in Article I … . (emphasis added)
The meaning of ‘prohibit’ is reasonably clear in requiring measures to prohibit what is specified
in Article I, but the meaning of ‘prevent’ needs further consideration. That meaning was clarified
when the Final Declarations of the Five Yearly Review Conferences of the Convention were
examined. For example, as early as the Second Review Conference of 1986 it was agreed that:
The Conference notes the importance of … inclusion in textbooks and in medical, scientific and
military educational programmes of information dealing with the prohibition … and believes
that such measures which States might undertake … would strengthen the effectiveness of the
Convention.
In short, the in-depth national implementation of the BTWC needs the scientific community to be
aware of the prohibition and of its obligations under the Convention.
2 For all BTWC official documentation previous to 2011, see www.opbw.org.

The EMR consists of 21 lectures that cover five specific topics:
1. The threat of disease (Lectures 2–6).

2. The development of the prohibition regime (Lectures 7–10).
3. The dual-use dilemma and the responsibilities of scientists (Lectures 11–17).
4. National implementation of the BTWC (Lectures 18–20).
5. Building of a ‘Web of Prevention’ based on the BTWC (Lecture 21).
Topics to be included in the EMR were selected on the understanding that biological weapons are a
multidimensional problem. Therefore, topics needed to address disciplines such as legal, historical
and scientific impart a comprehensive view and analysis. The EMR consists of Power Point slides
and links to further information and references. The core contents of the 21 lectures, organized in
the five specific groups, are as follows.
Introduction to the EMR: Lecture 1
Lecture 1 is a summary of the EMR. It outlines the lectures, provides notes to guide the learning
process, and clarifies the objectives of each lecture. The major problem involved in the construction
of the EMR was clearly confronted in this lecture: the EMR needed to broadly address many issues
well outside scientists’ central interests. This meant that the lectures always had to include scientific
material that would hold the audience’s attention. In particular, modern scientific accounts of the
agents used and developed in offensive programmes were meticulously introduced as a means of
maintaining the scientists’ interest. This topic will be addressed in the next section of the EMR.
The Threat of Disease: Lectures 2–6
In this group of lectures students are introduced to the history of biological warfare (Geissler et al.
1999). In particular, lectures focus on historical events during which biological agents were used,
but without knowledge of the biological principles involved. We call this period ‘pre-scientific
biological warfare’. Examples examined include the siege of Thun l’Eveque (1340) where it has
been suggested that siege engines were used to hurl dead horses into the castle, forcing the defenders
to evacuate, and similarly that in the siege of Caffa (1346) plague victims were catapulted into
the fortified Genoese city of Caffa by Mongol forces: fleeing survivors, thus infected, carried the
plague into Europe (Wheelis 1999: 8–34).
At this point the EMR stresses the necessity of being cautious about evaluating historical
allegations of BW use, and it is suggested that similar caution should be applied to evaluations of
current events. The key criteria needing to be considered when evaluating any allegation are:
• Does this allegation make political and historical sense?

• Is this allegation supported by sufficient detail to allow evaluation?
• The alleged case action should be technically feasible in the context of the state of scientific
knowledge at the time of the event.
• The reported outbreak should be a plausible consequence of the alleged action.
• The source of the allegation should be clearly documented.
• There should be some evidence to support the allegation.
The EMR then returns to the history of biological warfare as scientific understanding of the nature
of infectious diseases developed. During World War I, Germany carried out an extensive sabotage
campaign using agents such as glanders and anthrax in an attempt to prevent valuable cavalry and
draft animals, such as horses, from being delivered to the opposing Allied Powers. Although less
is known, France also carried out a similar anti-animal campaign on the western front (Redmond
et al. 1998).
Before the onset of the World War II, France, the UK, Canada, Japan, and the US started to work
on their BW Programmes (Geissler and van Courtland Moon 1999; Dando 2006), the targets were
humans, animals and, to a lesser extent, plants. By the end of World War II all of the major victorious
powers regarded BW as a significant threat. Canada was even concerned that botulinum toxin might
be used against the allies when they landed in Europe (Avery 1999: 197). During the Cold War, both
the US and the URSS had massive biological weapons programmes (Wheelis et al. 2006: 284–303;
Hart 2006: 132–56; Domaradskij and Orent 2003; Alibek and Handelman 1999). With regard to the
US programme it is important to mention the ‘anti-crop’ programme: a range of anti-crop biological
warfare agents including fungi, bacteria and viruses were tested in order to assess their effectiveness
upon crops (Whitby 2002; Whitby and Rogers 1997). Also important are the anti-crop activities of
the US in Vietnam, which involved a synthetic plant bioregulator that should be viewed both as a BW
agent and as a CW agent, given the future threat that bioregulators may pose.
Towards the end of the 1960s the US began a process of rejecting BW, and by the early 1970s
the BTWC was negotiated. However, at the same time the Soviet Union decided to rebuild its
modern biology around a massive offensive BW programme. With regard to this programme, ‘It
is generally believed that the Soviet Union had the largest, most extensive biological weapons
program of any country. The highly secret program, which was expanded on the basis of a decision
taken in 1973 by the Central Committee of the Soviet Communist Party, continued until at least 6
March 1992 … The program reportedly involved the development and fielding of both tactical and
strategic BW systems. Estimates of the number of people employed … are generally put at between
25,000 and 60,000 …’ (Hart 2006: 132–56).
Following the discussion of such historical details, the pedagogy of the EMR was to carefully
introduce a discussion of the biological agents and explain their attraction as military weapons
(Dando 1994). One of the most advantageous aspects of BW agents is that they can be used during
a great variety of potential attacks:
• different targets (humans, animal and plants)

• different agents (bacteria, viruses, fungi, toxins, bioregulators)
• different scales (assassination, tactical military, strategic military, WMD)
• different purposes (overt or covert war or terror).3
Due to the fact that BW are dealing with micro-organisms that are alive (except for, of course,
the toxins) presents both burdens and benefits. From a military perspective the most important
questions to be asked when selecting the use of BW are:
• Does an agent consistently produce a certain effect?

• Is the dose needed to produce the effect low?
3 BW agents could be used to generate terror in a population due to the fact that the humanity has a fear
of these diseases. Fear also ensues when threats or harms are hidden or unidentifiable and, thus, a population
cannot be protected against such threats.
• Is there a short and predictable incubation period?

• Does the target population have little or no immunity?
• Are treatments for the disease unavailable to the target population?
• Does the user have means to protect troops and civilians?
• Is it possible to mass-produce the agent?
• Is it possible to efficiently disseminate the agent?
• Can the agent be stabilized in munitions storage and transport?
Up to this point the EMR discusses the BW state programmes and developments. Thereafter, it
continues by evaluating alternative options, such us bioterrorism. Bioterrorism is certainly possible,
even though the probability of occurrence is low. There is very little evidence of bioterrorism in
historical records and if it does occur in the near future it is likely to be relatively unsophisticated.
However, because bioterrorism has not been a major threat in the past, it does not follow that we
should ignore it potential now and in the future.
The EMR, therefore, discusses two cases of bioterrorism. The first case is the 1995 Aum Shinrikyo
(a Japanese religious sect) Sarin gas attack on the Tokyo subway system which killed 12 people and
injured approximately 1,000. Aum had also attempted to use biological weapons including anthrax
and botulinum toxin from 1990 to 1995. However, the attempts failed due to technical errors. Another
well-documented incident of bioterrorism that is discussed is the attempt by the Rajneesh religious
commune to influence a local election by infecting large numbers of voters in Oregon causing them
to become ill (USA). Thankfully, there were no fatalities, but it took more than a year to understand
the nature of the attack, which was itself the result of an unrelated police investigation. ‘This outbreak
of salmonellosis, affecting at least 751 persons, was caused by intentional contamination of restaurant
salad bars by members of a religious commune. It was the largest outbreak of foodborne disease … in
the United States in 1984’ (Wheelis and Sugishima 2006).
There are precedents in history illustrating that previous scientific and technological
revolutions have served both for benign and malignant purposes. The most well-known example is
what happened in the aftermath of discovering particular properties of certain natural radioactive
materials. Clearly, most readers will be aware that this scientific breakthrough led to the development
of nuclear weapons and nuclear energy power plants as well as other applications. Thus, we must
consider the possibility that the exponential growth in molecular biology, biotechnology, chemistry
and biology could follow this historical trend and impact on BW agent development for solely
benign purposes, considering that the micro-organisms are the same for both ends. In 2003 a group
of US military analysts tried to envisage what the future might look like if biochemical weapons
were to be assimilated into military forces. The authors, Petro et al. (2003), begin their analysis by
dealing with traditional agents like anthrax, pointing out there are a limited number of naturally
occurring agents that have properties that lend themselves to biological warfare. Moreover, as
there are a limited number of such agents, it can be expected that the defensive militaries would
eventually be able to deal with attacks using similar agents. Since the counterattacking militaries
could eventually deal with traditional BW agents, these authors suggest that the attackers would
move to genetically modifying the agents. However, since the number of modifications that can be
made is also limited in an offensive/defensive arms race, the defence should eventually also be able
to cope with these modified traditional agents. Yet, as the revolution in the life sciences continues,
it is hardly conceivable that the defence will be able to cope with the ever increasing range of
targets and means of attack.
The Development of the Prohibition Regime: Lectures 7–10
The BW Prohibition Regime has developed incrementally over the last century as the perception
of biological weapons threat has increased. The three central elements – the 1925 Geneva Protocol,
the 1975 BTWC, and the 1997 Chemical Weapons Convention – are supported by a ‘web’ of other
related laws and regulations such as the Australia Group restrictions on exports of agents and
equipment. In this set of lectures this legal framework is presented and analysed in regard to the
impact on life scientists’ activities.
1925 Geneva Protocol The Geneva Protocol was negotiated following use of CW in World War I.
In this context, the Polish delegation argued that BW were just as dangerous and easy to obtain as
CW so the ban should be extended to BW. Currently almost universal adherence and the removal
of reservations reinforce the ban on use of CBW.
Biological and Toxin Weapons Convention (BTWC) The BTWC was negotiated in the late 1960s/
early 1970s (Sims 2001) and is now moving towards universal adherence. It contains:
• a Preamble which sets out the aims of negotiators

• 15 Articles which set out the legal agreement (including obligations on development,
production, stockpiling and transfer of agents in types and quantities that have no justification
for prophylactic, protective or other peaceful purposes; legal domestic implementation;
consultation and cooperation; and cooperation with the Security Council).
As a strategy to allow the evolution of the Convention, Five-Year Review Conferences are
organized; this is particularly important when it comes to changes in the international environment
(for example the terrorist threat) and the evolution of science and technology.
A major deficiency of the BTWC is the lack of any effective compliance mechanisms to ensure
that state parties live up to their obligations. Therefore, ‘Confidence-Building Measures’ were
agreed to in 1986 and improved in 1991 as a means of improving transparency. They required
annual declarations, for example, of data on research centres and laboratories with high biosafety
standards and outbreaks or toxin occurrences deviating from normal patterns. In 1994 a Special
Conference received the results of VEREX (an ad hoc Group of governmental experts open to all
states parties to identify and examine potential verification measures from a scientific and technical
standpoint) and this mandated an ad hoc Group negotiation of a Verification Protocol. At the Fourth
Review Conference of 1996 the Group was encouraged to complete its work. At the Fifth Review
Conference in 2001–2002 a new Inter-Sessional Process was instituted due to the failure on the
Verification Protocol negotiations; and at the Review Conference of 2006 a new phase of ISP
meetings and a small Implementation Support Unit was agreed.
Scientists have always played a role in the BTWC either through ad hoc requests by states
parties or through contributing to the Review Conference background papers. Successive Review
Conferences have made various requests to the scientific and professional community. Of
significant importance was the Inter Academy Panel issued during the 2005 Meeting of states
parties of the BTWC, which provided a statement on codes of conduct that were agreed on by more
than 60 academic institutions worldwide (IAP 2005). However, the role of scientists in the BTWC
will likely grow (Revill and Dando 2007). As Professor Matthew Meselson of Harvard explained
(Meselson 2000), all previous scientific and technological revolutions have been both peaceful
and hostile implications. The major question for life scientists concerns what they can do to help
prevent the same happening in other sciences, because, if it does, terrible new threats to humans,
animals and plant life might emerge. With all of this information in place, the EMR has set the
context to move into the question of dual use.
The Dual-Use Dilemma and the Responsibilities of Scientists: Lectures 11–17
The dual-use dilemma arises in the context of research in biological and other sciences when the
same piece of scientific research has the potential to be used for harm as well as for good. Also, dual-
use raises the ethical question: should we hold a scientist morally responsible for the consequences
of an action when those consequences were not intended and were, in some cases, beyond the
scientist’s control? The ethical question asks whether a person is morally bound to take pre-emptive
precautions to avoid unwanted future outcomes.
Dual-use is an ethical dilemma for researchers. There exists the potential for malevolent non-
researchers to steal dangerous biological materials or make use of the original researchers’ work to
cause harm. Thus, there is a basic conflict between the researcher’s freedom and the duty to prevent
harm. These unique conflicts are difficult to resolve because it is hard to determine the extent to
which the contribution has the potential to be harmful (is it possible to misuse it in BW related
development?) and in what degree its outcome is controllable (does it stay within the scientific
community or not?). Accordingly, Kuhlau et al. (2009) proposed that researchers follow a sequence
of ethical considerations:
• prevent bioterrorism
• engage in response activities to bioterror attacks
• consider the negative implications of their research
• not publish or share sensitive information
• oversee and limit access to dangerous material
• report activities of concern.
So we can see that two key issues are: whether or not to conduct an experiment with possible security
implications and whether or not to disseminate results that may have security consequences. If we
do a risk-benefit analysis, certain points of tension become clear. One such tension is the right to
academic freedom and scientific progress versus the public’s right to not be put at risk by the very
research which is meant to help them. This tension, of course, characterizes much of the literature in
the dual-use debate. Secrecy ‘strikes at the heart’ of science, as Robert Oppenheimer famously said.
Yet Albert Einstein and Nils Bohr both struggled to sort out this question of personal responsibility.
As Einstein said in an address at a Nobel Anniversary dinner, ‘Today, the physicists who participated
in forging the most formidable and dangerous weapon of all time are harassed by an equal feeling
of responsibility, not to say guilt.’
The idea that a balance between the promotion of security, on the one hand, and scientific
freedom/openness, on the other, is needed was expressed in the important joint ‘Statement on
Scientific Publication and Security’. This was produced by the Journal Editors and Authors Group4
4 Members of the Editors and Authors Group: Ronald Atlas (President American Society for Microbiology,
Editor, CRC Critical Reviews in Microbiology); Philip Campbell (Editor, Nature); Nick Cozzarelli (Editor,
Proceedings of the National Academy of Sciences); Greg Curfman (New England Journal of Medicine);
Gerry Fink (Massachusetts Institute of Technology); Annette Flanagin (Managing Senior Editor JAMA,
President, Council of Science Editors); Jacqueline Fletcher (President, American Phytopathological Society);
Beth George (Department of Energy); Gordon Hammes (Editor, Biochemistry); David Heyman (Center
(2003). This statement, resulting from workshop discussions between scientists, the scientific
publishing community and the security community, stated that:
We recognize that on occasion an editor may conclude that the potential harm of publication
outweighs the potential societal benefits. Under such circumstances, the paper should be modified
or not be published. Journals and scientific societies can play an important role in encouraging
investigators to communicate results of research in ways that maximize public benefits and
minimize risks of misuse.
In regard to dual-use and biotechnology risks, the EMR considers two reports that provide an
essential background to a proper analysis of this topic: first Biotechnology Research in an Age of
Terrorism (known as ‘The Fink Report’) published by the US National Academies (2004). This
was the first national academies’ report to examine national security and the life sciences. Second,
in 2006, the US National Academies also published Globalization, Biosecurity and the Future of
Life Sciences (2006) which added significantly to the understanding of the threats and possible
preventive responses developed in the 2004 report, by greatly expanding the range of life sciences
of possible concern.
Following its principle of careful engagement with the scientific community, the EMR gives
detailed examples of dual-use research that could be misused. It deals, for example, with research
by R.J. Jackson et al. (2001) in which a genetically manipulated new virus showed unexpectedly
strong virulence in killing mice. Originally the virus was constructed for a different purpose
(to produce a contraceptive vaccine for mice). The vaccine was developed to raise the antibody
response to zona pellucida glycoprotein 3, and mousepox virus was used as a simple vehicle
to carry it. The problem for the security community was that a similar manipulation might
dramatically increase the virulence of smallpox. In this context the EMR highlights the seven
classes of concern mentioned on The Fink Report (2004). These are experiments which:
1. would demonstrate how to render a vaccine ineffective

2. would confer resistance to therapeutically useful antibiotics or antiviral agents
3. would enhance the virulence of a pathogen or render a non-pathogen virulent
4. would increase transmissibility of a pathogen
5. would alter the host range of a pathogen
6. would enable the evasion of diagnostic/detection modalities
7. would enable the weaponization of a biological agent or toxin.
These experiments demonstrate how cutting edge biological science has enormous potential for
misuse. Dealing with this situation is not simple. Is scientific freedom or weapons control more
for Strategic and International Studies); Thomas Inglesby (Editor, Biosecurity and Bioterrorism); Samuel
Kaplan (Chair, American Society for Microbiology Publications Board); Donald Kennedy (Editor, Science);
Judith Krug (American Library Association); Rachel Levinson (Office of Science and Technology Policy);
Emilie Marcus (Editor, Neuron (Cell Press)); Henry Metzger (National Institute of Arthritis, Musculoskeletal
and Skin Diseases, NIH); Stephen S. Morse (Columbia University); Alison O’Brien (Editor, Infection and
Immunity); George Poste (Health Technology Networks); Beatrice Renault (Editor, Nature Medicine); Robert
Rich (Editor, Journal of Immunology); Ariella Rosengard (University of Pennsylvania); Steven Salzburg (The
Institute for Genome Research); Thomas Shenk (ASM President-Elect, Past Editor, Journal of Virology);
Mary Scanlan; American Chemical Society); Herbert Tabor (Editor, Journal of Biological Chemistry); Harold
Varmus (Eckard Wimmer, SUNY Stony Brook); and Keith Yamamoto (Editor, Molecular Biology of the Cell).
important? Any restriction on academic freedom could affect scientific progress, so caution needs
to guide the design of any regulatory measures their implementation. This group of lectures closes
with a case studying involving weapons targeted at the nervous system, which illustrates the wide
range of the life sciences involved in the dual-use debate.
National Implementation of the BTWC: Lectures 18–20
This section of the EMR uses a literature review as a tool for analysing implementation of
the BTWC. So, using Medline, Dolgitser (2007) identified a very clear preference among life
scientists for allowing the scientific community to regulate its own activities, rather than have the
government introduce legislation to regulate dual-use risks. An interesting point brought forward
in this section is that the scientific literature appears to lack any substantive debate on the topic
of dual-use. Rather than an evolving consensus, there was a wide divergence of opinion, not only
about whether there should be a bottom-up or top-down approach, but also about implementation
modes for either approach. A second, more extensive, review by Gabrielle Samuel and her
colleagues (Samuel et al. 2009) specifically deals with the difficulty of controlling what the
authors refer to as the synthetic life sciences (taken to include synthetic genomics and synthetic
biology). This 2009 review highlights the grave dangers of hostile misuse by discussing the
smallpox virus - one which could be made into one of the ‘most feared bioweapons’.
The US National Science Advisory Board for Biosecurity (NSABB) approach is much
broader in its scope. It includes the following areas: review of scientific research; publication of
scientific research; the domestic and international adoption of practices or codes developed by the
NSABB; the implementation of NSABB guidelines at local level; and applicability of NSABB
recommendations to federal agencies other than Health and Human Services. Even though they
have suggested ways to deal with the dual-use issue, the NSABB has found it difficult to produce
recommendations upon which the government has been willing to act (Shea 2007). Probably
the most detailed analysis of the challenges to regulating the dual-use risk within life science
research has been undertaken by a group led by John Steinbrunner at the University of Maryland
in the US (The Controlling Dangerous Pathogens Project). In this proposal both institutions and
individuals would have to be nationally licensed and the initial review of projects peer reviewed
at the institutional level. This approach is very different from that of the NSABB, which does
not envisage such strict licensing procedures. Moreover, the NSABB indicates how much work
needs to be done to find an efficient, effective and acceptable oversight system in many different
countries.
The international regulation of biotechnology to ensure the peaceful use of biology and
biotechnology extends across several issue areas including National Legislation, Export Controls,
Biosafety Regulations, Biosecurity Measures, Codes of Conduct and Education (Annex 10.1). The
EMR briefly reviews these measures. For example, it covers the following topics.
Export controls In the twenty-first century effective biological export controls have suffered from
a collection of challenges. Although many of these problems are not new, emerging complexities
in the international system and the changing nature of science and technology have generated new
challenges, as well as compounding those problems which have traditionally blighted effective
export controls on dual-use materials and technology.
Biosafety regulation Biosafety is defined by the World Health Organization as ‘the containment
principles, technologies and practices that are implemented to prevent unintentional exposure to
pathogens and toxins, or their accidental release’.
Biosecurity measures Biosecurity in the BTWC is ‘most commonly used to refer to mechanisms
to establish and maintain the security and oversight of pathogenic micro-organisms, toxins and
relevant resources’. Key measures include: Personnel Reliability; Physical Security; Information
Technology Security; Material Control and Accountability; Material Transfer Security and
Programme Management.
Codes of conduct Discussion at BTWC meetings in 2005 generated increased interest in codes of
conduct/ethics/practice which are designed to raise awareness of the BTWC and ensure scientists
are cognisant of the obligation to do no harm. Despite this, very few states have codes of conduct
for scientists, although some National Academies do have some kind of regulations.
Education Discussion in the BTWC and elsewhere has led to a significant increase in the
attention devoted to programmes of education designed to nurture a culture of responsibility
amongst life scientists, and to ensure awareness of the legislation and regulations that govern
scientific research.
Legislation VERTIC (Verification Research, Training and Information Centre),5 the London-
based verification organization, has been developing model laws and materials to assist states
in meeting their obligations under the BTWC Article IV and UNSC Resolution 1540. They have
developed a Sample Act for states to use.
Finally, as part of a joint project the Harvard Sussex6 group has been working on an International
Criminalization Law for it to be an offence for ‘any person knowingly to develop, produce, acquire,
retain, transfer or use biological or chemical weapons or knowingly to order, direct or render
substantial assistance to those activities or to threaten to use biological or chemical weapons’.
The importance of this initiative is that ‘any person’ will be internationally and equally treated as
a criminal, whether they are scientists or state-employed BW personnel. As some states’ parties
of the BTWC lack a penal code in their legislation or have not be legislated a domestic law to
implement the BTWC, an explicit international criminalization would strengthen the prohibition
against the misuse of biology, such as biocrimes or bioterrorism as well as state BWC programmes
(Harvard Sussex Program on CBW Armament and Arms Limitation).
Building of a ‘Web of Prevention’ Based on the BTWC: Lecture 21
Biosecurity has become increasingly prominent since the combination of bioterrorism events in
2001 (the Anthrax Letters and the 9/11attacks), but bioterrorism is not the only risk potentially
propagated by life science research in the twenty-first century. The possible use of biological
weapons by states or by malignant individuals still remains. In response to these diverse challenges
5 VERTIC is an independent, not-for-profit non-governmental organization. Their mission is to support

the development, implementation and effectiveness of international agreements and related regional and
national initiatives. They are focused on agreements and initiatives in the areas of arms control, disarmament
and the environment, with particular attention to issues of monitoring, review, implementation and verification.
6 Harvard Sussex Program is an inter-university collaboration for research, communication and training
in support of informed public policy towards chemical and biological weapons. The Program links research
groups at Harvard University in the United States and the University of Sussex in the United Kingdom. It
began formally in 1990, building on two decades of earlier collaboration between its co-directors.
the EMR suggests that we need to employ a range of measures operating at a range of levels from
individual to international. Some, such as G.S. Pearson (1993) and the International Committee of
the Red Cross, have referred to this as a ‘Web of Prevention’. In summary, by an integrated set of
policies an objective of the Web is to ‘persuade those contemplating the misuse of modern biology
for hostile purposes that the effort and costs are just not worth it … at many different levels’
(Dando 2006). This idea of a web of interrelated policies is illustrated in Figure 10.1.
Figure 10.1 The web of prevention
Conclusion
By January 2012 the highly pathogenic avian influenza (H5N1) virus caused 577 confirmed
cases of human infection (of which 340 of the subjects died) but sustained human-to-human
transmission had not been reported (Fouchier 2012). When the research was submitted to
Science it was referred to the US NSABB. Although originally intended as benign research, the
US NSABB advised researchers that some of the experimental data should be redacted. During
a subsequent meeting of the World Health Organization members disagreed with the suggestion
to redact data. At the time of writing this conclusion, the matter has not been resolved and it
appears likely that the NSABB will maintain its original position. The issue has now taken on a
political tone with one senior US Congressional Representative asking the White House Science
Advisor very serious questions such as (Melakoff 2012):
How does the NSABB weigh the potential risks and benefits of dual-use research? When does it
advocate against publication?
What systems exist to identify and, if necessary, control early stage dual-use research?
Is the NIH [National Institutes of Health – which funded the avian influenza research] review
system adequate to identify potentially dangerous dual-use research? Why did it fail to identify the
avian flu research until it was completed and submitted for publication?
Such questions are difficult for the scientific community to answer, particularly in its present state
of naivety concerning biosecurity issues. We know, for example, from Kathleen Vogel’s studies of
the role of tactical knowledge and organizational structures (Vogel 2008), that decisions about the
risks of misuse of biological agents cannot be satisfactory without considerable input from social
science. However, we also know that it is not easy to teach social science to science students – in
good part because of a great difference in the two cultures (Johnson 2010: 197–213). We also know
that the EMR with its specific design of putting the science first, then the straightforward account
of the growth of the prohibition regime can help to make the ethical issues involved in the dual-use
question quite acceptable to scientists, as long as the lecturers are well acquainted with the issues of
dual-use (Minehata et al. 2011). So the real question now is what else needs to be done to develop
this model of dual-use education?
In that regard, there is a clear need for an acceleration of the efforts being made to train more
people to use the EMR through the online Train-the-Trainer programme developed by Bradford
University and the continued translation of the module into different languages (Minehata et al.
2011). However, it is also clear that the module can be simplified into a five-lecture nationally
specific one-or-two-day short course that can be delivered with country-specific material to groups
of lecturers, and thus to facilitate the establishment of national and regional networks to accelerate
the spread of such dual-use education (Espona and Dando 2011). If such networks can be brought
into operation and their activities reported out to the annual meetings of the BTWC over the
next few years, there is the prospect of a major acceleration of the capabilities of the life science
community to contribute to protecting its work from misuse.
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Annex 10.1 Issues Areas and Legal Framework
Issue area Legal framework

The 1925 Geneva Protocol
The 1975 Biological and Toxin Weapons Convention
Arms control
The 1997 Chemical Weapons Convention
Convention on the Prohibition of Military or Any Other Hostile Use of
Environmental Modification Techniques
Disease control:
For human health – the International Health Regulations
For animal health – the Terrestrial and Aquatic Animal Health Codes
For plant health – the International Plant Protection Convention
Biosafety and biosecurity:
Laboratory Biosafety Manual
Guidance on Regulations for the Transport of Infectious Substances
Laboratory Biosecurity Guidance
Health and Provisions within the Manual of Diagnostic Tests and Vaccines for
disease control Terrestrial Animals and Terrestrial Animal Health Code
Food safety:
The Codex Principles for the Risk Analysis of Foods Derived from
Modern Biotechnology
The Codex Guideline for the Conduct of Food Safety Assessment of Foods
Produced Using Recombinant-DNA Micro-organisms
The Codex Guideline for the Conduct of Food Safety Assessment of Foods
Derived from Recombinant-DNA Plants
Codex Guideline for the Conduct of Food Safety Assessment of Foods
Derived from Recombinant-DNA Animals
Environmental Convention on Biodiversity
protection Cartagena Protocol on Biosafety (to the Convention on Biodiversity)
Free trade
Agreement on Technical Barriers to Trade
Agreement on the Application of Sanitary and Phytosanitary Measures
Access to genetic resources
Bonn Guidelines on Access to Genetic Resources
Trade International Treaty on Plant Genetic Resources
Intellectual Property Protection
Agreement on Trade Related Aspects of Intellectual Property Rights
Patent Cooperation Treaty
Patent Law Treaty
Budapest Treaty on the Deposit of Micro-organisms for the Purpose of Patent Procedure
Convention for the Protection of New Varieties of Plants
Illicit drugs trade
Convention on Narcotic Drugs
Convention on Psychotropic Substances
Drugs control
Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances
Anti-Doping
World Anti-Doping Code
International Convention Against Doping in Sport
Development
Social and Universal Declaration on the Human Genome and Human Rights
ethical impacts International Declaration on Human Genetic Data
of human Universal Declaration on Bioethics and Human Rights
genetics United Nations Convention on Human Cloning
Chapter 11
Psychologists, Torture and SERE
Jessica Wolfendale
The American Psychological Association’s (APA) code of ethics (2010) identifies five general
principles: Beneficence and Non-maleficence, Fidelity and Responsibility, Integrity, Justice
and Respect for People’s Human Rights and Dignity. Prima facie, these principles render the
participation of psychologists in torture and cruel, inhuman, and degrading treatment (CIDT)
unethical. As the APA (2009) states:
Torture in any form, at any time, in any place, and for any reason, is unethical for psychologists
and wholly inconsistent with membership in the American Psychological Association … No
exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political
instability or any other public emergency, legal compulsion or organizational demand, may be
invoked as a justification for torture.
Yet despite the clarity of this stance, and the fact that the participation of medical personnel in
torture and CIDT is a violation of international law,1 the APA effectively turned a blind eye to
the involvement of US psychologists in the development and use of torture2 and CIDT3 in Iraq,
Afghanistan and Guantanamo Bay after 9/11 (Miles 2006; Soldz 2009, 2008).
This involvement of psychologists in the US torture programme has generated significant
debate about whether such serious violations of international law and professional ethics could
ever be justified, given the need to combat the threat of terrorism. While important, however, this
issue will not be the main focus of this chapter, since the case for the illegality and immorality
of the US torture and CIDT programme has been convincingly made by a number of authors
(Brewer and Arrigo 2009 Mayer 2009; Miles 2006; Soldz 2009). It is worth noting, however, that
even if torture and CIDT could be justified in rare cases such as a ‘ticking bomb’ scenario (see
Gross 2004), any conclusions drawn from such cases are irrelevant to the question of the ethics of
1 For example, it is a violation of the United Nations’ Convention Against Torture, and Other Cruel,
Inhuman, and Degrading Treatment, as well as the Geneva Conventions.
2 The United Nations Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment
defines torture as follows: ‘torture means any act by which severe pain or suffering, whether physical or mental,
is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a
confession, punishing him for an act he or a third person has committed or is suspected of having committed,
or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when
such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public
official or other person acting in an official capacity. It does not include pain or suffering arising only from,
inherent in or incidental to lawful sanctions’ (United Nations 1997).
3 The distinction between torture and CIDT is not easy to define. Typically the difference is explained in
terms of the relative severity of the immediate and long-term effects of different methods (see Basologu et al.
2007 and Wolfendale 2009). For the purposes of this chapter, it is sufficient to note that participation in both
CIDT and torture is unethical and illegal for psychologists.
the US programme of torture and CIDT, which was institutionalized, lasted many years, involved
thousands of detainees, and the collaboration of lawyers and medical professionals. It is difficult
to imagine a system of torture more remote from the ‘ticking bomb’ scenario.
The purpose of this chapter is to broaden the debate by considering the implications of the
involvement of psychologists in the US torture and CIDT programme for the participation of
psychologists in the Survival, Evasion, Resistance and Escape (SERE) programmes designed to
prepare military personnel to withstand capture and interrogation. In particular, I will focus on
their role in the interrogation resistance component of SERE courses. While many commentators
have noted that US torture and CIDT methods were developed from methods used in SERE
programmes few, if any, have considered whether the use of SERE methods on detainees on the
war in terror raises wider ethical concerns regarding psychologists’ continued participation in
interrogation resistance training.
This chapter has four aims: to explain the nature and history of SERE courses and of
interrogation resistance training, and to show the connection between interrogation resistance
training and the torture and CIDT methods used in the US torture and CIDT programme; to
explain the role of psychologists in interrogation resistance training and in the development of
SERE methods for use on detainees; to elucidate the ethical issues that arise from the participation
of psychologists in interrogation resistance training and, in conclusion, to develop an account of
when and on what grounds it would be unethical for psychologists to participate in interrogation
resistance training in SERE courses. I shall argue that if psychologists could have reasonably
known4 that their skills were likely to be used to indirectly and directly support the US torture
and CIDT programme, then they have a duty to refuse to provide their expertise in such cases,
particularly when (as is the case in the military) they may not be able to control how their research
and expertise is used. This suggests that, while psychologists may play many legitimate roles
within the military,5 the limits on ethical collaboration between psychologists and the military
are more stringent than has previously been recognized. Clarifying these limits has important
implications not just for ethical debates about the participation of psychologists in the military,
but also for whether and on what grounds psychologists may be held accountable for indirect and
direct participation in torture and CIDT.6
4 I shall define ‘reasonable knowledge’ in the third section.

5 For example, psychologists provide counselling to and mental health assessments of military
personnel (Budd and Kennedy 2006), train soldiers who might undergo interrogation (Doran et al. 2006),
and offer advice to interrogators regarding general interrogation strategies (Shumate and Borum 2006).
Finding a non-arbitrary way of distinguishing permissible and impermissible forms of collaboration with the
military is important since it would be unjust to censure or prosecute psychologists for their involvement with
torture and CIDT unless such involvement is clearly and substantially different from the legitimate roles that
psychologists might play.
6 A number of human rights organizations including Physicians for Human Rights have (so far
unsuccessfully) attempted to have psychologists known to have been involved in torture officially censured by
their professional organizations (Popowski 2011). One of the challenges facing these attempts is differentiating
legitimate from illegitimate participation by psychologists in the military.
Psychologists, Torture and SERE 175
SERE Courses
The Courses
SERE courses were first developed after World War II, and were originally intended to help service
personnel survive hostile environments such as extreme cold weather (Doran et al. 2006). However
after the Korean War, in which over 40 per cent of prisoners of war (POWs) died in captivity and
36 captured airmen gave ‘stunningly false’ confessions under torture (Mayer 2009, 158), SERE
programmes changed to include courses designed to help military personnel at high risk of capture
to evade capture, resist the stress of detention, and resist the interrogation techniques that they
might encounter were they to be captured by enemy forces who did not adhere to or recognize the
Geneva Conventions – a part of the course known as ‘interrogation resistance training’ (Doran et
al. 2009; Fink 2009; NS Archive 2007). By 1963 all three services had established SERE schools.
Interrogation Resistance Training
The methods used in interrogation resistance training were derived from techniques used by
Germany, Japan, North Korea and Vietnam on POWs and fall into four basic types: isolation,
involving solitary confinement and also ‘breaking ties with family, country, and … a former
identity of oneself’; deprivation, involving ‘withholding food, water, adequate clothing, and
shelter, sleep, access to constructive physical and cognitive activity, medical care, and adequate
means of maintaining personal hygiene’; psychological abuse, including, for example, ‘threatening
to harm or kill prisoners’ as well as coercive physical abuse; and interrogations ‘often utilizing
combinations of the first three tactics’ (Doran et al. 2006: 247).
Extensive medical literature on the effects of these techniques demonstrates that they ‘can have
a devastating impact on the victim’s physical and mental health’ (Marks 2007: 3). The evidence
regarding the effects of these methods (Basoglu et al. 2007; Marks 2007; Mosiander and Edston
2003; Wolfendale 2009) leaves little doubt that many if not all of these methods (particularly when
used in combination, as is most often the case) would meet the UN definition of torture, as well as
definitions of torture and CIDT7 given in other domestic and international documents, such as the
US Military Commissions Act (MCA) of 2006 and Common Article 3 of the Geneva Conventions.8
Of course, since the aim of interrogation resistance training is to give trainees the resources to
endure real-life torture and CIDT, the interrogation methods used in the training must reflect actual
torture and CIDT methods. As a result of the extensive research into torture and CIDT methods
that underpins interrogation resistance training, SERE has effectively become a ‘repository of the
world’s knowledge about torture’ (Mayer 2009: 158).
Since the methods used in interrogation resistance training are known to (indeed, are designed
to) cause severe physical and psychological suffering, SERE instructors and those who design
7 This does not imply that these methods count as torture or CIDT when used on trainees during
interrogation resistance training – I will discuss this point in the third section.
8 The MCA defines torture as ‘an act specifically intended to inflict severe physical or mental pain or
suffering … upon another person’, and ‘cruel or inhuman treatment’ as ‘an act intended to inflict severe or
serious physical or mental pain or suffering including serious physical abuse, upon another within his custody
or control’ (Marks 2007: vi). Common Article 3 of the Geneva Conventions prohibits ‘mutilation, cruel
treatment and torture, outrages upon personal dignity, and in particular humiliating and degrading treatment’
(Marks 2007: vi).
SERE interrogation resistance courses face a dilemma. They must create a realistic simulation of
the experience of being held captive and interrogated – a process that ‘necessarily incorporates
certain levels of emotional and physical distress to maintain the integrity and efficacy of the
training experience’ (Doran et al. 2006: 247) – but they must also protect trainees’ physical and
psychological well-being. In light of the inherent risks of these methods, therefore, there are at
least three personnel present during the interrogation resistance training to monitor the well-being
of trainees. Psychologists also play an important role in the design and implementation of this
training.
The Role of Psychologists in SERE
When interrogation resistance training was first developed, psychiatrists and psychologists were
instrumental in researching the interrogation techniques used by the Koreans and Chinese on their
captors and in using this information to ‘strengthen resistance to coercion in captivity’ (Anderson
1996: 8). During the 1950s and 1960s psychologists and psychiatrists were also heavily involved
in CIA research on the effects of methods such as isolation, forced standing, noise bombardment
and sleep deprivation (McCoy 2006).9
In modern SERE programmes, psychologists play a number of roles. Psychologists assigned
to interrogation resistance training must first undergo that training themselves (Doran et al. 2006),
and then undertake at least one (usually more) of the following duties: evaluating the suitability of
military personnel for the position of SERE instructor, observing the safety of trainees during mock
interrogations, observing the behaviour of the mock guards and captors to ensure that they do not
‘cross the line’ (Doran et al. 2006: 248), educating students and staff about ‘the dangers of role-
playing situations’ (Doran et al. 2006: 249) and the likely effects of the training process on trainees,
and consulting and researching on ‘the effects that severe stress has on humans’ (Doran et al. 2006:
250) in order to more effectively create training methods that will provide ‘stress inoculation’ for
trainees. Psychologists involved in SERE courses thereby have extensive knowledge about the
nature and likely effects of SERE methods, as well as the origins and uses of these methods.
The Move from SERE to Torture
After 9/11 the modification of SERE methods for use on terrorism suspects occurred rapidly.
A 2001 memo from the Joint Personnel Recovery Agency (the agency that oversees all SERE
programmes) states that: ‘SERE techniques including physical (for example, slapping, repeatedly
pushing subjects into a wall, waterboarding, shaking and manhandling) and psychological (for
example, isolation, sensory deprivation, “disruption of sleep and biorhythms”) pressures may be
very effective in inducing learned helplessness and breaking the [Afghan] detainees’ willingness
to resist’ (Fink 2009).
From late 2001–2002, three senior military psychologists (Colonel Morgan Banks, Captain
Bryce Lefever and Colonel Larry James) were present at Bagram air base in Iraq, where two
detainees died from torture in December 2002. Colonel Banks, who had established the Army’s
first SERE programme, was in Bagram to consult on interrogations (Bond et al. 2012; Soldz 2009:
9 The result of this research was the now infamous KUBARK Counterintelligence Interrogation Manual
(Ojeda 2008: 7).
105). In September 2002, Colonel Banks arranged for the psychologists working in Behavioural
Science Consulting Teams (BSCT) at Guantanamo Bay to be trained in ‘how to use harsh SERE-
based interrogation techniques to “exploit” detainees for intelligence value’ (Soldz 2009: 106). In
the same year, former SERE psychologists James Mitchell and Bruce Jessen consulted with the
CIA on the interrogation of Khalid Shaikh Mohammed and Abu Zubaydah, and were involved
in training CIA interrogators in ‘enhanced interrogation’ (Soldz 2009: 106). By September 2002,
the Joint Personnel Recovery Administration was involved in training Guantanamo staff in SERE
interrogation techniques. Some of the most brutal SERE methods (including stress positions,
waterboarding, the use of dogs, and hooding) continued to be used on Guantanamo detainees
throughout 2003, 2004, and into 2005. During this time psychologists were involved in designing
‘behaviour management plans’ for detainees, monitoring interrogations, approving interrogation
plans, training interrogators, utilizing detainees’ medical and psychological profiles to advise
interrogators on detainee vulnerabilities, and treating detainees after interrogations (Rubenstein
2009: 61).
In addition to these activities, there is evidence that SERE psychologists were involved in
experimentation on detainees. A Physicians for Human Rights White Paper (Raymond and Marks
2010) documented how the process of adapting SERE techniques for use on detainees involved the
‘systematic collection of data [on the effects of SERE techniques on detainees] and/or identifiable
personal information for the purpose of drawing generalizable inferences’ – a practice that is
‘consistent with legal definitions of human subject research and experimentation’ (Raymond and
Marks 2010: 7). For example, 2004 CIA guidelines for Office of Medical Services (OMS) staff
involved in administering waterboarding on detainees required health professionals to report:
how long each application (and the entire procedure) lasted, how much water was applied … how
exactly the water was applied, if a seal was achieved, if the naso- or oropharynx was filled, what
sort of volume was expelled, how long was the break between applications, and how the subject
looked between each treatment. (Raymond and Marks 2010: 8)
Such information was used to refine the waterboarding technique for use on other detainees. Other
studies involved the collection of information regarding detainees’ susceptibility to pain (involving
studying 25 detainees who had been subjected to enhanced interrogation methods) and research on
the effects of sleep deprivation on detainees (Raymond and Marks 2010: 9–10).
From 2005 to 2007, the use of these methods was largely suspended as a result of a number of
scandals (including Abu Ghraib). However, in 2007 President George W. Bush issued an executive
order regarding the application of Common Article 3 of the Geneva Convention to detainees
interrogated by the CIA. According to some press reports, this order banned some previously used
‘enhanced interrogation’ methods, including waterboarding (Marks 2007: 1), but did not ban stress
positions or sleep deprivation (Washington Post 2007). President Bush also stated that the 2006
Military Commissions Act would still permit the CIA programme of enhanced interrogation to
continue (Marks 2007: 1). Thus, while the worst of the torture and CIDT regime appears to have
lessened after 2005, psychologists were still involved in the interrogation of detainees until at least
2007 and SERE methods were still being used on detainees during this time.
Unfortunately, it is not clear that the enhanced interrogation programme ended with the election
of President Obama in 2008. The Obama administration built a new prison at Bagram, called
the ‘Detention Facility in Parwan’, which holds over 3,000 detainees and is scheduled to expand
by the end of 2012. On the site is Tor Jail, a separate facility in which prisoners are exposed to
‘distressingly cold cells, perpetual loud noise, and constant light’ (Bond et al. 2012) – methods
very similar to those used by the Bush administration. Evidence of the continuing involvement
of psychologists at these facilities comes from a presentation at a symposium on ‘Operational
Problems in Behavioural Sciences’ (sponsored by the US Air Force Medical Services), which
describes the roles of BSCT teams at Parwan as providing ‘psychological expertise … in order to
assist the command in conducting safe, legal, ethical, and effective detention facility operations,
intelligence interrogations, and detainee debriefing operations’10 (Bond et al. 2012). While the level
of participation in and the severity of interrogations is probably less than occurred 2002–2005,
it appears that psychologists’ involvement in the interrogation of detainees is ongoing, and that
interrogation methods derived from SERE are still being used on detainees.
Is It Ethical for Psychologists to Work in SERE Programmes?
The participation of psychologists in SERE programmes raises a number of pressing ethical

questions that it is important to separate. First, since interrogation resistance training uses torture
and CIDT methods against trainees, perhaps participation in SERE is ethically equivalent to
participation in a programme of torture and CIDT. If so, then for psychologists to participate in
interrogation resistance training is just as unethical as participating in the use of torture and CIDT
against detainees. Second, even if interrogation resistance training is not a form of torture, SERE
psychologists still knowingly develop and monitor techniques that could be used to seriously harm
non-consenting individuals outside SERE programmes, a particularly salient possibility given
what we know about the use of SERE methods on detainees in the war on terror. So participating
in SERE appears to clearly violate the principles of non-maleficence and beneficence. Related to
this concern is a third problem. Military psychologists can face a ‘dual-loyalty dilemma’ (Allhoff
2008; Clark 2006; International Dual-Loyalty Working Group 2008; Singh 2003): a conflict
between their professional ethical and legal commitments, and their obligations to the military.
The situational pressures under which military psychologists operate mean that even the best-
intentioned psychologists participating in SERE might be unable to maintain their professional
ethical commitments in the face of claims of military necessity and pressure to accept military
demands. Given the gravity of being complicit in torture and CIDT, this provides a compelling
reason to consider participation in SERE unethical.
Is SERE Torture?
While interrogation resistance training utilizes torture and CIDT methods, and can be very traumatic
for trainees, there are a number of significant differences between interrogation resistance training
and torture.
Firstly, unlike torture victims, SERE trainees knowingly consent to be part of SERE training and
their welfare is carefully monitored throughout the training and particularly during interrogation
10 The claim that the primary role of psychologists in the torture and CIDT program was to ensure the
safety and legality of interrogations was also made during the Bush administration. However, as Leonard
Rubenstein (2009) argues, this ‘illusion of beneficence’ is difficult to sustain in the light of the roles that
psychologists actually played (including conducting experiments) and the known effects of the methods
being used. Several prominent psychologists, including current and past presidents of the APA, wrote to
Senator John McCain in 2006, arguing that; ‘There must be no mistake about the brutality of the “enhanced
interrogation methods”’ (Raymond and Marks 2007: 3).
resistance training. For example, trainees typically can use a ‘code word’ to stop the training at
any point, and often the most severe interrogation techniques are used only once. As Senator Carl
Levin explained in a Senate Committee Report on the ‘reverse engineering’ of SERE techniques
for use on detainees:
Troops are medically screened to make sure that they’re fit for the SERE course … There are
explicit limitations on the duration and intensity of physical pressures … when waterboarding
was permitted at the Navy SERE school, the instructor manual stated that a maximum of 2 pints
of water could be used on a student who was being waterboarded. (Committee on Armed Services
2008: 3)11
Thus a trainee undergoing interrogation resistance training is in a very different epistemic position
from a detainee being subjected to the same methods during an interrogation. Unlike a detainee,
the trainee knows that the process is not indefinite, that he or she can stop the process at any stage,
and that the purpose of the training is to benefit him or her. The significant differences between
the context of interrogation resistance training and the context in which SERE methods would be
used in a real interrogation was one of the main reasons why additional research was required to
ascertain the effects of these methods on detainees (Raymond and Marks 2010: 19).
However, the fact that interrogation resistance training is not a form of torture is not sufficient
by itself to justify the serious distress to trainees that this training may cause. The handful of
studies on the effects of interrogation resistance training shows that SERE trainees are likely to
suffer extreme stress reactions during training, although this may not necessarily cause long-term
harm (Taylor et al. 2007; Morgan III et al. 2000). However, this last point is contentious, since a
number of these studies do not include any measures of long-term psychological stress (Lacopine
et al. 2011).
But even though undergoing interrogation resistance training may be traumatic and distressing
for the trainee, the argument in favour of such training is that the temporary trauma it causes
‘inoculates’ the trainee so that they will be less likely to ‘break’ and suffer the long-lasting
psychological trauma that can result from ‘truly being held prisoner’ (Doran et al. 2006: 258; NS
Archive 2007).
The problem with this justification is that the success of this training in preparing military
personnel for the experience of captivity and torture is difficult to assess, since clearly not everyone
who undergoes interrogation resistance training will be captured and tortured. Anecdotal evidence
from current and former US military personnel such as retired Vice Admiral James Stockdale
and Senator John McCain suggests that at least some soldiers believed that SERE training was
effective in preparing them for the experience of capture (NS Archive 2007). Given the relatively
small number of individuals who have undergone SERE training and have also been interrogated
and captured, anecdotal evidence might be the best available evidence of effectiveness in light of
the difficulty in conducting systematic studies on the benefits of SERE training, but more than a
few anecdotes are necessary to establish the benefits. The single study I found (a 1996 study of
former Desert Storm prisoners of war) showed that POWs who had SERE training prior to their
combat experience believed that their training helped them deal with the experience of being held
captive and interrogated (Anderson 1996). One former POW claimed that his SERE training gave
him ‘a mental and [sic] psychological framework for understanding the nature of the situation I
11 Waterboarding was also used only once on trainees, compared to (to cite just one example) the 83
times that detainee Abu Zubaydah was waterboarded in August 2002 (Shane 2009).
found myself [in]’ (Anderson 1996: 24). However, this study involved only 17 participants, of
whom only 10 had undergone SERE training. As yet, therefore, it is not clear that interrogation
resistance training is more effective in helping military personnel prepare for and endure capture
and interrogation compared to alternative methods of training or to no survival training at all.
Given the lack of clear evidence (anecdotal and otherwise) of the effectiveness of interrogation
resistance training and the difficulty of obtaining such evidence, one could argue that psychologists
should refuse to assist in interrogation resistance training regardless of whether or not interrogation
resistance training methods are being used on detainees. After all, even if the techniques do not
amount to torture in the context of interrogation resistance training, it is possible they do amount
to CIDT.12 The fact that military personnel consent to SERE training is not sufficient to ameliorate
this concern, since establishing that military personnel have given free and informed consent is
not an easy task (see Wolfendale and Clarke 2008).13 For example, it is possible that military
personnel may not fully understand the risks of SERE training, given the limited research on the
long-term effects of the training.14 But even if it were possible to establish that military personnel
have given free and informed consent to participate in SERE, that would still not be sufficient to
ensure that SERE is ethical. Whether a given practice is ethical is not merely a function of whether
the participants consent to that practice.15 If interrogation resistance training causes significant
harm and distress to trainees for little proven benefit, the fact that military personnel consent to the
training would not be sufficient to justify it. Given this possibility, the question of the connection
between interrogation resistance training and the use of torture and CIDT on detainees becomes
even more significant.
Is Researching SERE Techniques Unethical?
As we have seen, participation in interrogation resistance training requires psychologists to develop,

refine and monitor the application of torture and CIDT techniques. By devoting psychological
12 I thank an anonymous reviewer for this suggestion.

13 The reference to informed consent does not imply that participation in SERE is a form of medical
research. My point is that, all things being equal, the infliction of harm on an individual (even for their own
benefit) is only justified if that person has consented to such treatment.
14 The fact that military personnel might be fully aware that SERE training is required for certain career
paths in the military does not show that they understand the risks of interrogation resistance training. Nor
does their consent to that career path end the ethical discussion regarding whether the harms of interrogation
resistance training are justified. The question of what risks military personnel can be considered to have
consented to when joining the military (or applying for certain roles in the military) is beyond the scope of this
chapter, but it is implausible to suppose that military personnel have implicitly consented (ahead of time) to
be exposed to just any level of risk – the military’s duty of care to military personnel places limits on the level
and kinds of risks military personnel may be exposed to. It is reasonable to suggest that military personnel
can be taken to have implicitly consented to all necessary and reasonable training required for their military
duties, and thus consented to the risks such training and operations might impose. So the relevant question
is whether it is reasonable to impose the risks of interrogation resistance training on military personnel. To
answer this requires, as I have suggested above, more information about the relative benefits of interrogation
resistance training than is currently available. I thank an anonymous reviewer at Ashgate for raising these
concerns.
15 To use an example made famous by Mill, even if you consented to be my slave, this would not make
it permissible for me to enslave you (Mill 1980: 158). Mill’s reasoning is that one cannot rationally consent to
practices that are likely to undermine one’s future autonomy and freedom.
expertise to this aim, psychologists are assisting in the creation of techniques intended to attack
and undermine the psychological and physical well-being of those upon whom they are inflicted,
a practice that appears to clearly violate the APA’s principles of non-maleficence and beneficence.
But this is too quick. The interrogation methods used in SERE were originally designed
with the intention of breaking down the victim’s physical and psychological well-being, but in
interrogation resistance training the intention in using these techniques is to benefit the trainee. As
Malcolm Nance explains (NS Archive 2007), SERE ‘literally gives you a short touch [of captivity
and torture] like a little bit of the flu, so that you can resist … a big flu in the future’.
The medical analogy is apt. In some cases medical doctors may legitimately cause short-term
pain and suffering (for example, by administering painful tests such as spinal taps) to patients in
order to benefit their health. Since the purpose of such practices is to promote the patient’s welfare,
they are not a violation of the principles of medical ethics. Similarly, interrogation resistance
training could ultimately be consistent with the principles of beneficence and non-maleficience
even though it involves the intentional infliction of suffering, if such suffering is intended and can
be expected to benefit those personnel who undergo the training.16
There is one problem with this response, however. Firstly, as I argued earlier, it has not been
clearly established that interrogation resistance training benefits military personnel sufficiently
to outweigh the harm caused by the training. Secondly, this response is only successful if SERE
psychologists can be reasonably sure that their research and expertise in torture and CIDT methods
will not be used to harm non-consenting individuals. The problem is that SERE psychologists
do not retain control over how SERE methods may be applied beyond the scope of SERE. This
raises the third ethical issue regarding the participation of psychologists in interrogation resistance
training – the conflict between the demands of military necessity and the ethical commitments of
the profession of psychology.
SERE and the Dual-Loyalty Dilemma
Psychologists face potential conflicts between loyalty to their profession and loyalty to the military
in a number of areas. For example, a frequent complaint of military psychologists who provide
counselling to military personnel is that they are unable to maintain patient confidentiality in the
face of requests from senior military officials or the Department of Defense for information about
specific patients (Johnson 2008, 1995). This can result in a tension between adherence to APA
codes of conduct, and adherence to Department of Defense requirements, particularly since in most
cases Department of Defense requirements are given priority.
During the last ten years the dual-loyalty dilemma has been particularly salient for many
military psychologists. As we have seen, psychologists were directly involved the process of
‘reverse engineering’ SERE techniques for use on detainees in the war on terror, but psychologists
were also present in prisons in Iraq and Afghanistan as well as in ‘black sites’ where CIA
interrogations took place in collaboration with states with poor human rights records. In these
16 However, it could be objected that in interrogation resistance training (and unlike painful medical
procedures) the infliction of harm is not merely a foreseeable side effect of the use of the interrogation
methods – it is the whole point of using those methods. Thus using such methods seems to be a violation of
the principles of beneficence and non-maleficence in a way that painful medical procedures are not. If so,
the question then becomes whether it is permissible to violate those principles in the short term to benefit the
trainees in the long term. If interrogation resistance training is a violation of these principles, then establishing
the benefit of such training is even more important. I thank an anonymous reviewer for raising this possibility.
‘black sites’, psychologists witnessed the effects of abuse on prisoners, evaluated prisoners before
or after torture, and were involved in covering up the evidence of abuse (Brewer and Arrigo 2006).
The fact that few, if any, psychologists protested against such practices is likely a product of a
number of factors, including the authoritarian military structure, peer pressure and the isolation
of psychologists working in these places from professional organizations such as the APA and the
World Health Organization. Combined, these factors made it extremely unlikely that an individual
psychologist could or would protest against prisoner abuse or refuse to participate in such abuse
if they were requested to do so (Brewer and Arrigo 2006: 6–12; Marks 2006; Rubenstein 2009).
The situation of psychologists operating in remote prisons demonstrates how difficult it can be
for health professionals embedded within the military chain of command to prioritize commitment
to professional ethics above perceived military necessity when these conflict. Yet the factors
that partly explain why many psychologists and other health professionals didn’t protest or try
to prevent the prisoner abuse they witnessed and were party to, also apply to a lesser degree to
the participation of psychologists in SERE programmes. Once the Bush administration decided
that SERE techniques should be applied to detainees, SERE psychologists were not in a strong
position to refuse (assuming that some wished to refuse) to assist in adapting SERE techniques
for interrogations and may not have had much choice about whether to participate (Marks 2006).
A Senate Armed Services Committee Report revealed that some SERE psychologists warned
military officials that applying SERE techniques to detainees could be ‘ineffective and dangerous’
(Fink 2009), but then assisted in the development and implementation of interrogation policies
involving the very techniques they warned against. This suggests that military psychologists, either
by choice or as a result of situational pressures, are unlikely to be able to prevent the use of
SERE interrogation methods against detainees once to decision to use them is made, which gives
credence to the claim that it is unethical for psychologists to participate in interrogation resistance
training when SERE methods are being used against real detainees.
There are two objections that could be raised at this point. Firstly, it might objected that since
SERE psychologists were not responsible for the decision to use SERE techniques against prisoners,
it would be unfair to accuse them of violating professional ethics just because the military hierarchy
abused the knowledge that they provided. Secondly, it could be argued that psychologists are not in
a position to second-guess whether using SERE methods against detainees is justified, and so it is
unreasonable to demand that they question claims of military necessity.
The first objection is unconvincing. Psychologists, like other professionals, have a duty to
ensure that they do not directly or indirectly participate in torture and CIDT against non-consenting
individuals (International Working Group on Dual-Loyalty 2008; Matthews 2008).17 Psychologists
therefore have a duty to refuse to provide their expertise if they know or can reasonably be expected
to know that their expertise is likely to be misused. But when is this point reached?
17 The obligation to prevent the misuse of medical expertise is clearly stated in the relevant international
treaties and conventions dealing with medical ethics. For example the World Medical Association Declaration
of Tokyo states that: ‘The physician shall not use nor allow to be used, as far as he or she can, medical knowledge
or skills, or health information specific to individuals, to facilitate or otherwise aid any interrogation, legal or
illegal, of those individuals’ (WMA 1975). Note that the WMA forbids physician participation in any form of
interrogation, not just torture and CIDT. However, I do not think that it is unethical for psychologists to play
a role in interrogations that do not use torture or CIDT. I clarify the limits of ethical collaboration in the final
section.
The ‘Reasonable Knowledge’ Criterion
It would be unjust to blame psychologists if their expertise were misused in ways they could neither
predict nor control. If the use of SERE techniques in interrogations was explicitly prohibited, and
SERE psychologists had no knowledge of or reason to believe that violations of this prohibition
were occurring, then they couldn’t be expected to know that their expertise would be misused, and
their participation in interrogation resistance training would not be unethical.
So when would psychologists reasonably know that participation in interrogation resistance
training had become unethical? I suggest that the most plausible way to construe ‘reasonable
knowledge’ in this context is to adopt a professional and context-specific version of the ‘ordinary
person’ standard of reasonable knowledge. Instead of asking what an ordinary layperson might
know about the use of SERE methods on detainees, we should ask what it would be reasonable to
expect a trained psychologist working in SERE programmes to know about SERE methods and the
likelihood of their use on detainees.
A SERE psychologist would know that SERE methods are forms of CIDT and torture, since
the point of interrogation resistance training is to enable military personnel to resist CIDT and
torture.18 They would know about the effects of SERE methods on trainees, since part of their
role involves research on the effects of these methods. Given their expertise, it is also reasonable
to expect that they would know that extended application of these methods on non-consenting
individuals would cause far more severe harm than that experienced by SERE trainees (Raymond
and Marks 2010: 20).
But could SERE psychologists have reasonably known that it was possible (indeed likely) that
SERE methods would actually be used on real detainees?
As we have seen, by 2002 the Bush administration was discussing the use of torture and
‘enhanced interrogation’ methods, the agency in charge of SERE programmes had issued memos
regarding the use of SERE methods on detainees, and top SERE psychologists were involved in
‘reverse engineering’ SERE methods and training interrogators in their application on detainees.
From 2003 (possibly even earlier), an ordinary civilian might reasonably be expected to know
that torture and CIDT were being discussed as tactics in the fight against terrorism. Once the Abu
Ghraib scandal broke in 2004, there could be no doubt that torture was being used. If an ordinary
person could easily have gained this knowledge, it is reasonable to think that, from as early as
September 2002, SERE psychologists could have known about these events. Arguably, given their
roles and their expertise, they would be more likely to known this information than an ordinary
person. After late 2002, then, SERE psychologists had access to evidence that their expertise about
torture and CIDT methods could and was being used against detainees. This is sufficient to meet
the ‘reasonable knowledge’ criterion even if they failed to seek out that evidence. Ignorance is not
an excuse when evidence was there to be found as early as 2002.
Prioritizing National Security?
This brings us back to the second objection to the reasonable knowledge criterion; that the standard
I propose is unreasonable because it would require psychologists to answer the larger question
18 The relevant question is not whether SERE psychologists could have reasonably known which SERE
methods were torture and which were CIDT. Instead, the question is whether they could have reasonably
known that SERE methods were likely to be used on real detainees.
of whether the use of torture and CIDT was ethical – a question well outside the scope of their
professional expertise. Since the use of torture and CIDT was debated at the highest levels in
the military and government, surely we can’t expect SERE psychologists to take sides on such a
contentious issue, and so it is not unreasonable for them to defer judgement on this issue to those
better placed to decide the question.19
I agree that military psychologists may legitimately place military interests above loyalty to
their profession in some situations. But this does not imply that military demands should always
take priority over professional ethics. As the International Dual-Loyalty Working Group argued,
‘subordinating loyalty to the patient to the interests of the state is only permissible to serve a higher
social purpose’ (2008: 28).20
Thus military demands may override professional commitments only when those demands
serve a justifiable military purpose. For example, a psychologist could be justified in breaching
patient confidentiality when requested by the chain of command given that the military has a
legitimate interest in the mental health of military personnel (International Dual-Loyalty Working
Group 2008: 17).
If we apply this principle to the case of torture and CIDT, we must ask if it was reasonable for
SERE psychologists to believe that torture and CIDT programme served ‘a higher social purpose’.
Some prominent military psychologists clearly did believe that the use of torture and CIDT was
justified, and the Bush administration attempted to justify both the use of torture and CIDT, and
the involvement of medical personnel (Rubenstein 2009). Indeed, every state that has used torture
(including the military dictatorships in Brazil, Chile and Greece during the 1970s and 1980s,
and the Khmer Rouge in Cambodia) has gone to great lengths to justify that decision, often by
reference to variations of the ticking-bomb scenario and the need to fight terrorism by breaking the
rules of war (Wolfendale 2007: 104–5). But the fact that those who create and implement a torture
programme believe they are justified in doing so doesn’t mean that their belief is correct. Nor does
it mean that they can’t be held accountable for the use of torture and CIDT simply because the
issue was under debate. If we absolve those involved in a torture and CIDT programme on those
grounds, then no one involved in such programmes can be held accountable. Thus the fact that
the US government debated the use of torture and CIDT does not exempt those involved from
responsibility. Nor should it blind us to the fact that the UN prohibition against torture and CIDT
(a prohibition also found in US law and in numerous codes of medical ethics) explicitly states that:
No exceptional circumstances whatsoever, whether a state of war or a threat or war, internal political
instability or any other public emergency, may be invoked as a justification of torture … An order
from a superior officer or a public authority may not be invoked as a justification of torture.21
(United Nations 1997)
One of the reasons for this absolute prohibition is the frequency with which national security has
been invoked to justify the use of torture in situations far removed from the classic ‘ticking bomb’
scenario. From its inception in 2002, the US torture programme was very different from the kind of
scenarios used to justify torture in academic, government, and media publications. It was evident
19 I thank the editors of this volume and an anonymous reviewer for raising this objection.
20 The Working Group’s report focuses primarily on medical practitioners, but the principles apply to
psychologists and psychiatrists also, and are consistent with the APA’s ethics statements.
21 Italics added.
very early in the programme’s implementation that the programme was institutionalized, long-
lasting and very broad in terms of those on whom it was used.
SERE psychologists thus had access to sufficient information about the nature of the US torture
and CIDT programme for them to judge that the programme was a violation of international
law and that participation in the programme was a violation of their ethical and professional
commitments. The fact that the US government and military justified the use of torture and CIDT
by appealing to military necessity is not a legitimate reason for psychologists to violate their ethical
and professional duty to refuse to participate or assist in the use of torture and CIDT.
Furthermore, if we absolve SERE psychologists of responsibility for their involvement in
torture and CIDT on the grounds that some of them believed that the use of torture was ethical,
we are failing to take seriously what a commitment to professional ethics means. To say that
psychologists are committed to the values of beneficence and non-maleficence is to say that these
values should be the fundamental guiding focus of their work. If psychologists may violate these
values when they conflict with claims of military necessity, this effectively means that these
values are binding only when it is easy or convenient to uphold them. If so, in what sense are they
fundamental values? Likewise, the legal prohibition against the participation of medical personnel
in torture and CIDT is intended to apply precisely when there is pressure to break it. Thus to take
the prohibition seriously as a prohibition requires a willingness to question and (if necessary) take
a stand against the use of CIDT and torture. The prohibition against torture and CIDT has no real
meaning if it may be violated once torture and CIDT seem attractive options.
Psychologists are professionals who have a duty to ensure they do not indirectly or directly
support torture and CIDT, and they cannot take on faith that their expertise will not be misused.
Given what is known about the use of SERE methods of detainees, involvement in interrogation
resistance training is a form of indirect support for torture and CIDT.
Psychology and the Limits of Ethical Military Collaboration
The prior discussion of the ethics of the involvement of psychologists in SERE allows us to develop
a preliminary sketch of a way of delineating ethical from unethical forms of collaboration between
psychologists and the military.
Many of the roles that military psychologists play are permissible given the military’s legitimate
interests in maintaining, protecting and being informed about the mental health of military
personnel. However, collaboration becomes unethical when psychologists engage in practices
directly intended to seriously attack the physical and psychological integrity of non-consenting
individuals, such as assistance in the design and implementation of torture and CIDT, or when they
provide research and advice that is likely to be used to harm such individuals.
But this leaves room for many ways in which psychologists can ethically assist in interrogation
and other intelligence activities. Psychologists can and do play a number of legitimate roles in
intelligence operations, including assessing the psychological fitness of intelligence workers and
potential human assets such as informers, and providing cultural insights to operatives working in
foreign countries (Shumate and Borum 2006). During interrogations, psychologists may observe
and discuss a detainee’s behaviour, and offer advice about lines of questioning (for example,
whether to focus on a detainee’s religious beliefs, or their relationship with their family).
Unlike these interrogation methods, torture and CIDT methods deliberately use pain and
suffering to undermine the victim’s basic agential capacities. ‘Regressing’ and ‘breaking’ the
victim is the explicit aim of many techniques (Ojeda 2008: 7). Thus, torture and CIDT are not
simply more distressing or stressful forms of ordinary interrogation methods. A bleak interrogation
room, a slightly uncomfortable chair, and the use of coercion and deception may cause discomfort
and distress to the subject but these methods are not direct attacks on the subject’s basic physical
and psychological capacities. As Jeremy Waldron (2005: 1703) argues:
it is important to understand that torture is a crime of specific intent: it involves the use of pain
deliberately and specifically to break the will of the subject. Failing to provide a comfortable
armchair for the interrogation room may or may not be permissible; but it is in a different category
from specifically choosing or designing furniture in a way calculated to break the will of the
subject by the excruciating pain of having to sit in it.
It is this distinction that allows us to draw a line between torture and CIDT, and legitimate forms of
interrogation. When psychologists assist in the design and use of interrogation methods intended
to seriously attack the victim’s basic physical and psychological capacities, they are engaged in
behaviour that is qualitatively different from the forms of interrogation assistance I mentioned
earlier. It is essential that psychologists be trained to understand the difference between these
forms of interrogation assistance. Indeed, their professional expertise makes them well placed
to understand these distinctions and assist others in understanding them also. It is therefore
unconvincing to claim that psychologists would be unable to know when legitimate interrogation
assistance becomes illegitimate.
Conclusion
I have argued that, given the connection between interrogation resistance training and the use of
torture and CIDT against detainees, it is unethical for psychologists to participate in interrogation
resistance training. Indeed, if interrogation resistance training is not effective in preparing military
personnel for the experience of interrogation, then participation in such training may be unethical
even if SERE methods are not being used against detainees – a point that has not been adequately
addressed in the justifications offered for interrogation resistance training. The reasons why such
participation is unethical provide a starting point from which to develop a non-arbitrary way of
distinguishing between ethical and unethical forms of collaboration with the military. Military
psychologists have a duty to ensure that their expertise is not used to seriously harm individuals
without their consent, and this entails a duty to reflect upon the legitimacy of military demands that
conflict with their professional ethical commitments. While in some cases military demands may
legitimately override professional commitments, the importance of the central ethical commitment
to patient well-being can also in some cases override military demands. If this is not the case,
then military psychologists are no more than tools of the military. Thus, the ethical constraints
on the participation of psychologists in the military are more stringent than has previously been
recognized.
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PART III
Patient Rights, Research Ethics and
Chapter 12
Rights of British Military Patients during
Peace and War
Mike Gibson
Introduction
Every human being has rights. In recognition of this, civilized sovereign states assume responsibility
for delivering these rights. These ethical rights are codified to some extent in international and
national laws and thus become legal rights. However, on enlisting in the military, some of these
rights may be surrendered. In the United Kingdom, the service member is required to comply with
the Armed Forces Act 2011. In short, the soldier, sailor or airman gives up a degree of autonomy –
for example, the military can require orders to be followed and can place the individual in situations
that can carry an inherent risk of danger. In volunteer forces, such as in the United Kingdom, this
forfeiture of rights should be, but in practice is not always, a result of an informed decision, whilst
in countries where conscription is obligatory it is involuntary.
Amongst the rights that are relinquished include some rights that are implicit in being a patient.
Johnson, Grasso and Maslowski (2010) draw attention to the potential conflict between the
executive branches of the military (the ‘operators’) and the medical staffs, when ethical concerns
are made subservient to Federal (that is, national) law. For example, a mental health history could
be expected to be divulged in order to obtain security clearance. In the United Kingdom, the
government developed a military covenant, based on an Army publication (Roberts 2000), which
was intended to outline the rights that military personnel should expect. There is no evidence that
this was developed specifically in relation to any principles of ethics or human rights generally but
it was introduced at a time when there was a growing recognition of the sacrifices being made by
service personnel. However, the covenant was short on detail and was not widely communicated
when it was introduced. It was recently announced that the intention was to enshrine the military
covenant in law (for example Porter and Kirkup 2011) and this has been duly recognized in the
Armed Forces Act 2011. The Act requires an annual report to Parliament on the renamed Armed
Forces’ Covenant from 2012 and an interim report before then. It remains to be seen whether or not
this will give a better guarantee of the rights of British service personnel. As part of this covenant,
the state equips and trains service personnel appropriately and should assume responsibility for
their medical fitness. Amongst the duties of care is one to provide expeditious and professional
treatment for illness and injury. Although the state’s interest is that this is primarily to aid recovery
for further service, it coincides with the serviceman’s interest in becoming well again. Treatment is
also necessary to prepare for civilian life those who do not become fit enough for continued service.
The responsibility for medical treatment can be extended to the dependants of the personnel –
especially when they live on a base that is used as a training practice for primary care – and this
may aid morale and diminish worry when a partner is deployed. The ability of the state to deliver
its part of the covenant may be compromised by several factors, not all of which are under its
control (for example, the military situation or the actual delivery of support promised by allies).
However, as Gibson and Giovanetti (1994) pointed out, the ethical and political ramifications for
a preventable medical mishap can be substantial. The state therefore has a real interest in ensuring
appropriate medical care for its service personnel.
Pellegrino (2003) emphasizes that the doctor–patient relationship is at the cornerstone of
medical ethics in both military and civilian settings. He argues that the moral commitment this
implies may be shaped by the extraordinary circumstances of war. In other words, there may be
occasions or circumstances when rights may be adjusted or suspended. The purpose of this chapter
is to describe patient rights in general and explore which can properly be relinquished, which can
be modified and which should be sacrosanct for military patients.
Rights of Civilian Patients
The World Health Organization (WHO) has identified patient satisfaction, patient safety, patient
centredness and responsiveness of care as important principles (2007). On its genomics home page,
the WHO in a statement of patient rights in more specific terms, states that, ‘It is important … that
patients receive treatment consistent with the dignity and respect they are owed as human beings.
This means providing, at minimum, equitable access to quality medical care, ensuring patients’
privacy and the confidentiality of their medical information, informing patients and obtaining their
consent before employing a medical intervention, and providing a safe clinical environment.’
The Department of Health’s Handbook to the National Health Service (NHS) Constitution
(2010) lists the rights and pledges afforded to patients in the United Kingdom as follows:
• Access to health services. This relates to a patient’s right of access to the NHS without
charge, and right not to be unlawfully discriminated against on the grounds of gender, race,
religion, sexual orientation, disability or age in the provision of such services.
• Quality of care and environment. This promises to provide treatment to a professional
standard in an approved organization which monitors and attempts to improve standards.
• Access to nationally approved treatments, drugs and programmes. This right implies that
medicines licensed by the Medicines and Healthcare Products Regulatory Agency (MHRA)
and programmes approved by the National Institute for Health and Clinical Excellence
(NICE) will be provided to the patient.
• Respect, consent and confidentiality in accordance with human rights. Patients have the
right to be given information about their proposed treatment in advance, including any
significant risks and alternative treatments and the right to refuse. If the patient does not
have capacity to consent, then consent must be obtained from a person legally able to act on
the patient’s behalf or the treatment must be in their best interests. Patients have the right
to privacy and confidentiality and the right to access their own health records. The right not
to have medical records used for research without consent, referred to by Klote and Brosch
(2010) in the context of military records, applies just as much to civilian patients. At the
very least the research protocol should be approved by an ethics committee.
• Informed choice. The right to choose the patient’s primary care provider and the right to
make choices about the patient’s NHS care.
• Involvement by the patient in their own healthcare and in the NHS. This includes the
right to be involved in discussions about the healthcare provided and to be given adequate
information to do this.
• Complaints and redress. The right to have any complaint dealt with efficiently and properly
Rights of British Military Patients during Peace and War 195
investigated and to know the outcome. The right to take the complaint to an Ombudsman
or to judicial review if not satisfied. It also includes the right to compensation if harmed by
negligent treatment.
As with most rights, they are accompanied by responsibilities – in this particular instance,
responsibilities incumbent on the patient. The patient is required to take some personal
responsibility for their own health and to register for primary care. They should treat staff with
respect and provide accurate information about their health. They should keep appointments and
follow the course of treatment, discussing it with the clinician if there are difficulties. They should
also participate in public health programmes such as vaccination, and give appropriate feedback –
both positive and negative.
These responsibilities also apply to service personnel. They have no choice about registering
for primary care when they live on base or when deployed. When they live off base, they can
register with civilian primary care facilities, although their fitness for role and deployment will be
decided by the military medical services judged against published standards. Military personnel
also have to take some responsibility for maintaining their own health and fitness. For example, it
is an offence under the Armed Forces Act 2006 for a British serviceman ‘to aggravate or prolong
any injury to avoid service by any act or omission’ (my emphasis) and the term ‘injury’ includes
disease. Another example is Queen’s Regulations and Orders for the Canadian Forces (2009)
which state, ‘Any officer or non-commissioned member who is suffering or suspects he is suffering
from a disease shall without delay report himself sick’. In Barrett v Ministry of Defence (1995),
a case involving death of a serviceman from acute alcohol intoxication, Beldam LJ held that, ‘To
dilute self-responsibility and to blame one adult for another’s lack of self-control is neither just nor
reasonable and in the development of the law of negligence an increment too far.’ Participation in
vaccination programmes is controversial and will be discussed separately below.
The military patient’s rights and responsibilities will be considered for each of the phases of
a military operation – that is, during preparation or training, planning, deployment for operations
other than war or for warfighting and the recovery.
Preparation
Access to Health Services
The military patient should have access to health services without charge and without discrimination.
In former days, this was delivered by a purely military health service providing both primary
and secondary care. Primary care is still largely delivered in a military environment in the UK,
although more civilian doctors are employed on military bases. Personnel who do not live on
base can be registered with a local NHS practice. However, successive cuts have whittled away
this separate secondary care service. Operational deployments and NHS budget arrangements for
patients impacted on the availability of the requisite variety of patients required for specialist
training for military doctors. This, together with cost-saving measures (for example Defence
Cost Study 15), resulted in the closure of military hospitals. In peacetime in the UK, secondary
care is now delivered by the NHS and service personnel in partnership with the NHS. However,
the requirement to have personnel fit for short-notice deployment on military duty has led to the
agreement, in principle, that military patients should have a degree of priority in access to secondary
care. It could be argued that this prioritization or positive discrimination places civilian patients at
a disadvantage. However, the counter-argument is that the national interest in defence of the realm
carries a greater priority than that of the individual, civilian patient. In general terms however, the
overriding criterion for access to medical care should be that of clinical urgency.
Quality of Care
British military medical doctors and nurses receive the same training and achieve the same
qualifications as their civilian equivalents. Doctors are appointed to consultant posts using the same
criteria as their civilian counterparts. Military patients should, therefore, expect similar standards
from their medical personnel. In the same way, the treatment offered within the UK is the same as
that received by civilian patients.
In order to protect against infectious diseases, it is appropriate to expect that all immunizations
would be appropriately tested and licensed for use. It would be also ethical to expect that service
personnel would agree to be immunized against common, preventable diseases particularly if the
condition was very infectious so that a large uptake would guarantee ‘herd immunity’. However,
Gibson (2002) pointed out that compulsory immunization against biological warfare agents would
not be considered ethical unless the risk was considered extremely high. It was for this reason
that immunization against anthrax, with a properly tested and licensed vaccine, was voluntary for
British service personnel deployed to the Middle East from the late 1990s. This in itself carries
a risk; the author is aware of one serviceman who refused immunization on the grounds that he
thought he was only being given a choice because it was unsafe. However, had the potential threat
been from an organism with a high risk of person to person transfer, or the threat assessed as being
extremely high, it may have been necessary to consider compulsory immunization. In the United
States, vaccination against anthrax was initially compulsory but Dyer (2004) reported that the
scheme was stopped temporarily after a legal challenge resulted in an injunction. The mandatory
vaccination programme was restarted almost two years later. Even so, there was evidence reported
by Pica-Branco and Hudak (2008) that a substantial number of United States personnel continued
to have misgivings about the ethics, safety and efficacy of the anthrax vaccine immunization
programme. This requirement for vaccination against a perceived risk is similar to the requirement
for healthcare employees to be immunized against hepatitis B, when those who refuse may be
refused access to particular jobs or not authorized to carry out certain procedures. Provided the
requirement is balanced against the risk, there should be no infringement of individuals’ rights.
Thus, in terms of access to quality care, the rights of the serviceman accord with those of the
general population.
Choice
The serviceman does not have the same choice in medical practitioner enjoyed by the civilian
patient. In practice, especially in larger units, there is as much choice in which doctor the patient
wishes to see as in any other group practice. In addition, Wilson et al. (2007) and Wilson and
McAllister (2010) reported evidence that the wearing of uniform by military medical personnel
is viewed negatively by some military patients with mental health disorders. In general terms,
however, most uniformed medical staff would like to think that they develop a normal therapeutic
relationship with their patients. Military doctors also can interface with their patients on many
levels (Johnson et al. 2006) – for example as neighbour, friend, colleague and this can provide
challenges. Much depends on the personality of the doctor. Rank remains a useful link to pay and
often provides easier access to the higher military ranks in order to provide advice. Moreover, a
formal place in the military structure may afford some protection in case of capture.
Consent and Confidentiality
In general terms, military patients expect the same rights of confidentiality as civilian patients.
This is balanced by a commander’s right to know that all his personnel are fit (or otherwise)
for operations but, as Gibson and Coker (2002) point out, the commander cannot expect to be
told any clinical details. Gibson and Coker (2003) further advised that this approach extends
to sensitive diagnoses such as HIV positivity, where the commander can only be told that the
individual has a reduced medical category preventing him from being deployed. This expectation
of confidentiality contributes to the development of trust between the military patient and the
military doctor. However, the requirement to notify public health authorities remains as for civilian
patients. Although notionally discriminatory, the prevention of deployment in such cases is aimed
at protecting the patient who may be disadvantaged by exposure to an austere environment without
access to the degree of specialized or emergency care available in the home country. Moreover, the
Armed Forces are not subject to the disability aspects of the Equality Act 2010.
The arrangements for research on members of the military match those for civilians. Research
cannot be carried out on military personnel without the consent of the individual and without the
protocol for the research being approved by one or more ethics committees.
Complaint and Redress
British personnel can seek a ‘redress of grievance’ should they perceive that they have been
wronged by any process, and this includes medical treatment. This can lead to disciplinary action
being taken against the perpetrator should wrong-doing be found likely. In addition, service
patients now also have the right to sue for compensation from the Ministry of Defence through the
civil courts, under the tort of negligence, in exactly the same way as civilian patients, although this
was not always the case. The Crown Proceedings Act 1947 protected the Crown from being sued
in tort, if the Secretary of State certified that the death or injury would be treated as attributable
to service for the purposes of entitlement to a war pension. Section 10 of this Act relating to the
Armed Forces was repealed by the Crown Proceedings (Armed Forces) Act 1987 although the
change was not made retrospective. If the serviceman has to retire from the service as a result of a
medical condition, he can be awarded a disability pension, which is enhanced if the injuries have
been received on military operational duty.
Military Considerations
Military medical standards, for example Joint Service Publication 346 (2006), ensure that a
serviceman is selected to be fit for the role and this fitness is regularly checked. Thus it would
be inappropriate to select a 150 kg man, no matter how fit, to be a military parachutist since his
weight would exceed the safety limit for the standard parachute. Wolfendale (2008) considered
the ethics of scientific advances for enhancing the performance of military personnel in general
terms, and concluded that the use of enhancements was constrained by the need to maintain moral
responsibility. Enhancements that undermined moral responsibility would in turn degrade the
military’s moral standing and harm the well-being of the combatant. Gibson (2006) considered in
detail the ethics of selection and preparation for spaceflight and suggested that the more intrusive
the procedure the less ethical it would be. On the other hand, the greater the potential risk, more
aggressive forms of protection may become more ethically acceptable.
The same principles would hold true for military selection and training. To use an extreme
example, it would be completely unethical to amputate a pilot’s legs in order to improve protection
against acceleration forces in flight (for example, +Gz). Hard physical training for military
operations is accepted but there is a balance to be maintained between such training and not
injuring the individual. Risks can be, and are, taken but not unnecessary risks. Thus exposure of
military personnel to live chemical warfare agents, as has been detailed by Brown (2009) to have
happened in the United States and by Fedorov (1994) in the former USSR, would not be considered
ethical but exposure to simulated, relatively harmless chemical agents, such as CS gas, would. The
application of medical standards for a particular occupation and exposure to training for that role
is not ethically different for the serviceman compared to the civilian, although the standards may
be higher. He has the right, however, to expect that the training is not significantly more hazardous
than it need be for the task.
Planning
The British Army has an epigram that ‘Failing to plan is planning to fail’. Military personnel
should expect that long-term planning has considered the size, shape and capabilities of the medical
services so as to match the expected commitments of the Armed Forces, at least for the current
manning, training and equipment cycle. Alternatively, the operational planners should not accept
tasks that are beyond the capability of the supporting medical services.
For any specific exercise or operation, medical staff will have to work closely with the operational
planners to determine the expected casualty rate so that the appropriate medical capability can
be deployed. It is appropriate for medical planners to advise on the expected Disease and Non-
Battle Injury (DNBI) rate, but it should be for the operational planners (from the ‘teeth’ arms)
to determine the expected killed, captured or missing in action (KCMIA) rates. This will allow
medical force calculations to populate the units involved in the flow of casualties from the battle
to the home country. As Coupland observed in 1994, modern weapons are more efficient at killing
and wounding than older ones and more weapons have been designed to be non-lethal. In addition,
modern medical techniques are better at saving casualties. Both of these factors therefore create
more work for the medical services.
During the planning of any operation, there is always intense scrutiny of the support services
to be provided by the accountants. Often this scrutiny is coloured by the experiences of the last
operation. Medical planners should have the experience and knowledge to be able to withstand
pressure to reduce resources inappropriately. In addition, there is always significant competition
for logistic support and finance. Soldiers have the right to expect that sufficient medical services
are deployed in time with sufficient capability to deal with illness or injury during any stage of the
operation, from the first boot on the ground to final withdrawal.
From the point of wounding, first aid is delivered first by buddies, then by regimental
medics. In conventional war, the casualties are evacuated to a dressing station, usually manned
by a Regimental Medical Officer and paramedical personnel. They are then evacuated to a Field
Ambulance, which may be armoured or wheeled before evacuation to a Field Hospital for specialist
treatment, although in Operations Other than War (for example in Afghanistan) primary evacuation
by helicopter, manned by a team specializing in trauma care, is often necessary. Aeromedical
evacuation to the UK then follows. Figure 12.1 charts the casualties’ progress.
Figure 12.1 Casualty flow

Abbreviations: FEBA = forward edge of the battle area; Fd = field; Hosp = hospital; Rehab = rehabilitation.
In any case, as Gibson suggested (1998), the provision of robust medical services in theatre may
actually prevent casualties by convincing a potential enemy of the deploying force’s resolve and
sense of purpose.
To permit this to be done effectively, medical planners should have been an integral part
of any planning for an operation and present on any reconnaissance together with appropriate
environmental health support. At the same time, data should have already been prepared on host
nation or allied facilities providing equivalent standards of care that may be available in the
theatre of operations. Involvement in reconnaissance would allow confirmation of the standards
and availability of such facilities. Moreover, any medical resupply system should be efficient and
timely. ‘Just enough, just in time’, whilst attractive to accountants, does not provide sufficient
reliability and flexibility for military operational logistics, of which medical supply is a small but
important component. There should always be some reserve provision to be able to cope with the
chaos of war.
Quality of Care
Basic military, medical training should include practice of the procedures commonly required on
operations, for example treatment of normal illness and injury. To use another military aphorism,
‘Practice and preparation prevent poor performance.’ In addition, as warfighting operations can
comprise intense periods of activity with apparently interminable periods of inactivity, arrangements
are made for highly skilled medical personnel to serve for only limited periods at a time in theatre
to prevent skill fade. This has led, in times of financial stringency, to a greater reliance on reserve
forces and the use of quasi-military ‘sponsored reserves’ who can obtain valuable experience that
they would not have at home.
Other Considerations
It is ethical within the planning process to make arrangements for similar medical care to be
provided for enemy prisoners of war who are also casualties. This will be discussed in more detail
later. There is therefore nothing in the planning process per se that impinges directly on the rights
of the military medical patient.
Deployment for Operations Other than War (OOTW)
Deployment into the field involves a movement away from base and base facilities. Service
personnel should expect therefore still to have access to primary and secondary care. Where this
is not readily available, repatriation in a safe and timely manner should be available so that such
care can be provided.
Quality of Care
Quality of care includes the right to be provided with appropriate prophylaxis and advice. For
example, personnel deploying into a malarial area should receive advice on bite prevention,
dipping of clothes, knock-down sprays, anti-insect cream and anti-malarial prophylaxis. It would
be unreasonable to tell them not to operate at night but they should be expected to take their
medication and expect disciplinary action if they do not. For operations to a hot country in summer
such as Afghanistan or Iraq, basic heat acclimatization should be allowed, either pre-deployment
or in theatre before operations start.
It is believed that formed units who practise together perform better than units cobbled together
for the operation. Military patients therefore expect that they will be treated by medical units that
are appropriately trained and practised in their role. However, in the current climate of greater
and greater specialization in developed countries, it may not always be possible to provide a high
degree of specialization in the field. The serviceman therefore would expect that medical personnel
were adequately trained for most eventualities and that they had access through media, such as
telemedicine, to the most appropriate advice. Thus they may expect to have a consultant radiologist
in the field to interpret X-rays and scans but it would be just as ethical to provide remote, real-
time interpretation as long as secure communications could be guaranteed. In the same way, it
may not be possible to deploy heavy and expensive items of capital medical equipment such as an
MRI scanner, but most effective use of deployable items such as ultrasound, would be expected.
Thus the facilities in Camp Bastion in Afghanistan, where support is provided for personnel who
are actually fighting, should be more comprehensive than those on a West Indies guard ship.
Basic expectations should be that the medical team should have previous experience of using
the equipment that is sent to theatre, that the equipment is deployable by air and that it would be
necessary in the theatre of operations.
Choice
When deployed, service personnel cannot choose their medical provider and do not have easy
access to a second opinion (Neuhaus et al. 2001). This is one compromise that has to be made when
deploying on military operations.
Complaint and Redress
People injured while serving in the military may be able to claim compensation through the
Armed Forces Compensation Scheme. There has been considerable publicity given to the apparent
injustice of the Scheme’s award, within its permitted limit, of £152,150 to a very seriously maimed
soldier injured in Afghanistan (Norton-Taylor 2009), compared to much bigger awards in the civil
courts given to persons who had sustained relatively trivial injuries in the UK. For example Dawar
(2011) reported an award of £200,000 to a teacher who had slipped on a grape. As a result, the
government in 2010 reviewed and amended the Armed Forces Compensation Scheme. The review
report considered whether the Scheme should provide different (that is, enhanced) compensation
to those injured on operations in recognition of the circumstances of their injury. It was felt that to
do this would undermine the ‘all of one company’ concept. Service in the Armed Forces involves
personnel being told where and how they will serve. When this leads to injury it should lead to the
same compensation regardless of the circumstances. It has been held in the courts (R v Ministry
of Defence ex parte Walker [2000]) that a serviceman engaged on OOTW overseas is not covered
by the Criminal Injuries Compensation scheme, even though he has been injured by a criminal
act. However, this does not preclude a claim from the Armed Forces Compensation Scheme. In
addition, such a claim does not prevent the pursuit of a personal injury claim for compensation if
the Ministry of Defence has been negligent. A civil claim may lead to a higher award in respect of
damages.
In the United Kingdom, does the serviceman have a right to protection under Health and Safety
legislation? On bases in the UK, this right is accepted but should it apply overseas on deployment?
It has been argued that it should apply on base but not off base. The situation when warfighting is
relatively clear. In the case of Mulcahy v Ministry of Defence (1996), Neill LJ stated that ‘I hold
that there is no civil liability for injury caused by the negligence of persons in the course of an
actual engagement with the enemy seems to me in accord with common sense and sound policy.’
However, in operations other than war, it is less clear since the jurisdiction is that of the country in
which the operation is taking place. One case tested in the courts – Secretary of State for Defence
v Smith R (2009) – related to the applicability of the Convention of Human Rights and the Human
Rights Act 1998 (c42). As Sir Anthony Clarke MR stated, ‘It is not in dispute that the army owes
soldiers a duty of care while they are in Iraq, as elsewhere … However, it is accepted that a British
soldier is protected by the HRA and the Convention when he is at a military base. In our judgment,
it makes no sense to hold that he is not so protected when in an ambulance or in a truck or in the
street or in the desert … we accept the submission made by the Commission that there would have
to be compelling reasons of principle for drawing a distinction for the purposes of jurisdiction
under Article 1 of the Convention between the soldier while at his base and the soldier when he
steps outside it, at any rate so long as he is acting as a soldier and not, in the old phrase, on a frolic
of his own.’
In OOTW, there is often a tendency for ‘mission creep’. This happens particularly when host
nation medical facilities are compromised and there is a need to support the civilian population.
The World Medical Association (2006) advises that, ‘In emergencies, physicians are required to
render immediate attention to the best of their ability. Whether civilian or combatant, the sick and
wounded must promptly receive the care they need. No distinction shall be made between patients
except those based on military need.’ Tobin (2005) points out that it may be operationally impossible
for a troop-contributing nation to deploy with sufficient resources for the civilian population. In
these circumstances it is necessary to determine the resources that should be husbanded against an
emergency affecting the deployed forces. The soldier patient would probably believe that his rights
had been compromised if his injuries or illness were not able to be effectively treated because of a
shortage of medical supplies no matter how the shortage was caused.
Warfighting
It has always been accepted that soldiers from regular armies are more willing to fight with
commitment when they understand that they will be properly looked after if they are wounded.
The standard of military medicine now is such that casualties will expect to be retrieved from
the forward edge of the battle area (FEBA) and evacuated to the rear for emergency treatment
well within the ‘golden hour’ (the time period for emergency intervention after which death rates
were thought likely to increase). Soldiers who would have died and limbs that would have been
lost in earlier times are now saved. This has an impact on the facilities required in theatre (for
example helicopters are frequently used rather than tracked or wheeled ambulances for evacuation,
particularly when the lines of communication are unsafe), as well as the facilities needed for
aeromedical evacuation and for treatment and rehabilitation in the home country.
There may be occasions when the medical facilities are overwhelmed with casualties, for
example as a result of terrorist bombing or during intense fighting. In these circumstances, a
system of triage is used where resources are allocated first to those who can be saved by immediate
treatment. As Neuhaus et al. (2001) point out, this creates an ethical dilemma for the medical staff,
who have to balance medical need against military need. There may be pressure to give priority
treatment to those who may be able to return to the fight. However, the intention should be to leave
those who have more minor injuries, together with those very seriously injured who may tie up
scarce medical resources for a long time or who have a very poor chance of being saved, until later.
Most doctors and patients would reasonably expect that adequate pain relief will be provided and
that the situation is carefully monitored so that should the clinical state change, appropriate action
can be taken. Since the timing of treatment depends on the triage system, it is reasonable for the
casualty to expect that it would be carried out by a suitably experienced person to avoid mistakes
being made.
In circumstances where resources are limited, service personnel may find themselves treated
in the same facility and even the same ward, as enemy personnel. Provided there is no risk to the
facility or the individual, this practice, although perhaps distasteful to some, is ethical and conforms
to the precepts of the Geneva Conventions (1949). One of the most important provisions of the
First Convention is contained in Article 12 which lays down that ‘Only urgent medical reasons
will authorize priority in the order of treatment to be administered.’ Thus a wounded soldier should
expect that a more serious casualty from either side should be treated first – as long as that casualty
is triaged for immediate treatment. It is therefore worrying that Carter (1994) reported that 22
per cent of a sample of United States Army and Navy doctors believed that US soldiers should
be treated first regardless of injury. This perception is reinforced by Howe (2003) who reported
that United States soldiers may ‘feel enraged’ should any of their comrades in arms come to harm
because an enemy casualty had been given priority in treatment.
The Convention dealing with prisoners of war mirrors the protection outlined for soldiers
and sailors in the First and Second Conventions. Article 3 of the Third Convention requires the
wounded and sick to be collected and cared for, whilst Article 13 states, ‘Prisoners of war must
at all times be humanely treated. Any unlawful act or omission by the Detaining Power causing
death or seriously endangering the health of a prisoner of war in its custody is prohibited, and will
be regarded as a serious breach of the present Convention.’ Article 20 also states that the detailing
power should provide prisoners of war with medical attention ‘in conditions similar to those for the
forces of the Detaining Power’. Chapter 3 of the Convention lays down the medical requirements
for prisoner of war camps.
Needless to say, the expectation is that allied soldiers will be afforded similar protection in
accordance with the First and Second Geneva Conventions. Article 12 of the First Convention
states that, ‘Members of the armed forces … who are wounded or sick, shall be respected and
protected in all circumstances. They shall be treated humanely and cared for by the Party to
the conflict in whose power they may be, without any adverse distinction founded on sex, race,
nationality, religion, political opinions, or any other similar criteria … they shall not wilfully
be left without medical assistance and care, nor shall conditions exposing them to contagion or
infection be created.’ Unfortunately this is often marked more by the breach than the observance,
even by countries that may consider themselves civilized and whose previous administrations had
ratified the Geneva Conventions. However, as Kaar (2007) points out, this ethical and conventional
approach to medical treatment of the enemy combatant is difficult when dealing with terrorists who
‘have no regard for human life or the rule of law’.
Quality of Care
Many surgeons are now highly specialized. For example, some orthopaedic surgeons specialize
solely in hand injury or spinal conditions. It is not always possible to have the whole range of
more highly specialized surgeons in the theatre of operations. Thus the surgeons may need to have
generalist training in addition to their own specialist training; for example, a urological surgeon
may have to perform an amputation. In addition, any reservist surgeon deployed on operations must
be kept updated on the most recent military surgical doctrines so that the standard of practice is
maintained. Moreover, modern techniques, such as keyhole surgery, are often more time-consuming
that conventional, open surgery. A shortage of time and the nature of war wounds – usually dirty
or contaminated – may therefore dictate that open surgery is more practicable in war. The military
patient, and his relatives, may need to have their expectations managed.
Military patients would also expect that accurate, full and contemporaneous medical records
are maintained. Failure to do so may compromise later medical care and render the services more
vulnerable to legal challenge in case of any claim of medical negligence. In a rapidly changing
environment during manoeuvre warfare, it is important for the patient that the medical record is kept
up to date. It is easy for paper records to become detached from the patient and there is continuing
pressure to develop a smart card or chip containing details of the previous medical history (such
as medications and blood group) which can be carried by or implanted in the patient and which
could be read and electronically updated at each stage of treatment. One possible disadvantage is
that such information could be decoded and made use of by the enemy, particularly if the Geneva
protocols were not being observed. In terms of confidentiality and safety, paper records are still
the norm.
Consent and Confidentiality
When it comes to medical treatment in theatre, the standards relating to consent should be observed.
Consent in law is the defence to the tort of battery – which, as Jones (1999) observed, includes
surgery. This is easy when there is a conscious patient. Even an enemy wounded may be assisted
by an interpreter. However, in civilian practice, it has been suggested that there should not be a
need to inform the patient of the risks that the normal person would be expected to know, such
as the risk of bleeding, infection, pain (Sidaway v Bethlem Royal Hospital Governors [1984] per
Browne-Wilkinson LJ) or even death from anaesthetic (Sidaway per Lord Bridge). Whether this
should be extended to enemy casualties is debateable since spelling out the possible consequences
of treatment may be interpreted by someone from a different culture as an attempt at intimidation.
When the casualty is unconscious, decisions are taken for him on the basis of ‘best interests’ as the
next of kin cannot be consulted, be they allied or enemy casualties.
At the same time, any injured serviceman should expect that his next of kin are informed, and
kept informed, in a sensitive manner before the details are released by the media. Frequently the
media will be present in an operational theatre, often embedded with the military units. Thus a
secure and rapid communication system is a prerequisite. For this reason, casualty and aeromedical
evacuation request signals in the UK are in two parts, one of which contains the administrative
details while the other, containing the medical details, is for distribution solely to medical personnel.
Whilst not separately considered in the handbook to the NHS constitution, decisions regarding
resuscitation and brain death are governed by normal ethical considerations and, to an extent, by
advance directives. One aspect that can cause concern is that we have nowadays the ability to
keep wounded individuals who are brain dead physically alive. Should they be repatriated on life
support, with the consequent use of scarce resources and highly trained personnel so that they can
‘die’ surrounded by their loved ones, or should they be switched off in theatre and their bodies
repatriated with honour? As Branthwaite (2001) points out, ‘However, even fully informed patients
or relatives are far less willing to accept a recommendation against treatment, even when made in
good faith and explained by a clinician seeking to act in the patient’s best interest.’
Post-Deployment
In the aftermath of warfighting, there are two cohorts to consider. First, those who are injured in
theatre should expect that their care would continue when back in their home country, in terms of
further treatment and rehabilitation. Second, those who are unfit for further service have the right
to a war pension linked to the extent of their disabilities. In addition, they should expect that they
would receive additional help and support – in the United Kingdom this task is often taken up
by service-related charities such as the single Services’ Benevolent Funds, the Soldiers, Sailors
and Airmen Families Association (SSAFA) or the British Limbless Ex-Serviceman’s Association
(BLESMA) and others. The fact that there are so many organizations indicates that there is a
perceived lack of support from the government to its disabled ex-servicemen. For those who are
not physically injured, there is still the potential for post-traumatic stress disorder (PTSD) to impact
on the serviceman’s life. One research group (Highfill-McRoy et al. 2010) has shown that there is
an increased risk of disciplinary action being taken against US Marines who develop PTSD after
being deployed to war. In the United States, punitive discharge can lead to loss of benefits normally
accessed through the Veterans Administration. In addition, there is a greater risk of long-term
illness and disability amongst those who have been prisoners of war (Hunt et al. 2008).
Although the services do make efforts to find roles for disabled servicemen, it is not always
possible for them to have their full jobs back. As noted above, the services in the UK still enjoy
exemption from disability legislation designed to prevent discrimination. However, if there is a
risk that disabled servicemen would compromise the military mission or the safety of the unit, then
it is ethically acceptable to discharge them from service. However, the government has a moral
obligation to the wounded serviceman to provide support and rehabilitation back to as full a life as
possible, either within the military family or in civilian life. The serviceman, particularly once he
has been evacuated to home and if he has competence, should expect to be involved in his own care
decisions and this, includes the right to decline treatment (Wicks 2001). He should also expect to
have the same rights of complaint and redress as his civilian counterpart although the bureaucracy
and rules dealing with these are different.
Conclusion
Turning once more to the rights of the civilian patient in the NHS, we can now see which
remain for the serviceman. The serviceman, like his civilian counterpart, enjoys access to health
services without discrimination but, like the NHS, this access may at times be rationed because of
availability of resources. Both NHS and service medical facilities may be overwhelmed and a form
of triage may be necessary at times for both service and civilian patients. Both groups have access
to good quality of care, although the serviceman may have to await repatriation before accessing
the more specialized forms of treatment. In some ways, this is little different, and indeed in some
ways it is better, than the specialized care available to civilian inhabitants of remote communities
in the British Isles. Respect, consent and confidentiality are rights that are common to both groups
of patients and should not be compromised in any way by military service. The right of redress is
another right that is protected in the military although the bureaucracy involved in the earlier stages
is different. Both groups have access to civil law when required. However, informed choice and
involvement in decisions regarding an individual’s own healthcare are rights afforded to civilian
patients that may be less available to service personnel. Overall, the rights of the military patient
are compromised less than might initially be expected.
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Chapter 13
Medical Confidentiality in the Military
Angus H. Ferguson
As in peacetime, medical confidentiality must be preserved by the physician. Also as in peacetime,

however, there may be circumstances in which a patient poses a significant risk to other people
and physicians will need to weigh their obligation to the patient against their obligation to other
individuals threatened. (WMA 2006)
In article 6 of its Regulations in Times of Armed Conflict the World Medical Association asserts
that the boundaries of medical confidentiality during war mirror those observed during peacetime.
Confidentiality has long been recognized as a cornerstone of the doctor-patient relationship
– facilitating the full exchange of information necessary for effective diagnosis, prognosis and
treatment. As such, it can be regarded as part of the ‘internal morality of medicine’: the ethical
principles distilled from the primary healing purpose of the doctor-patient relationship (Pellegrino
2003). Consequently, the boundaries of medical confidentiality should be strictly observed in both
civilian and military contexts, and be overridden only where there is clear and overwhelming
reason for disclosure without patient consent.
While Pellegrino highlights the need to identify and analyse the basic moral principles of ethical
medicine, it is also important to recognize that the doctor-patient relationship does not exist in a
vacuum. Medicine is practised in a variety of contexts at any given time, and has changed over time.
Historical research on medical confidentiality reveals an enduring ideal that has been the subject
of recurring debate. Confidentiality is promoted as a patient right, a professional duty, and a means
of facilitating effective medicine. Similarly, arguments for overriding confidentiality are presented
in terms of third party/communitarian rights, dual loyalty duties and negative consequences if
confidentiality is maintained as absolute.
This chapter considers whether models of confidentiality based on rights, duties or consequences
differ between military and civilian medicine. In emphasizing doctors’ obligations to the chain of
command, and/or the loss of autonomy and patient rights for service personnel, military medicine
often appears to minimize the importance of patient confidentiality (Gross 2006; BMA 2004;
Beauchamp and Childress 2001). The cultural differences between civilian and military life are
also a factor. While bioethics arose out of critiques of paternalistic medicine and concerns about
abuse of medical power, it seems obvious that military culture is, necessarily, paternalistic and
authoritarian. Although such apparent paternalism might be recast in consequentialist terms (Visser
2003), there is undoubtedly a more explicit hierarchy of authority and defined chain of command
in the military compared to civilian life. This brings with it additional pressures to share patient
information and may be an obstacle to adopting a universal approach to confidentiality in practice
(Gibson and Coker 2002).
In order to study these issues in more depth, the following section outlines key points in the
evolution of medical confidentiality in the United Kingdom. Treating this as a case study, the
conclusion considers how greater knowledge of the evolution of medical confidentiality affects
current thinking on its place in the military context today.
Case Study: The United Kingdom
When People join the armed forces they relinquish some rights and freedoms. One of these is the
right to strict confidentiality. Doctors may at times need to balance the interests of the individual
patient’s confidentiality and the interests of the unit of which he or she is a part. (BMA 2004)
The British Medical Association states that, in common with their civilian colleagues, doctors in
the armed forces have a fundamental duty to respect the confidentiality of their patients. However,
this duty is qualified. The opening sentences of the above quote echo critics of a universal approach
in noting the loss of the right to strict confidentiality on entry into the armed forces. The final
sentence mirrors the WMA position, highlighting the balance to be struck between individual and
collective interests. The extreme circumstances in which military doctors often work, coupled
with the direct link between the health of an individual serviceman, the welfare of other members
of his unit and the successful achievement of military goals and national security, encourage the
conclusion that in military medicine ‘information needs to be shared more often than in civilian
life’ (BMA 2004). The curtailing of patient confidentiality can also apply to family members of
serving personnel whose choice of doctor may be limited when living on a military base in a
foreign territory and whose health can impact on the performance of a serviceman.
Recognizing that there are times when a medical officer has to disclose patient information
to a commanding officer, the BMA stress the importance of ensuring that this is done with the
knowledge and consent of the patient. The information disclosed should be limited to that which
is necessary, and the patient should be made aware of what information is given and the reasons
for the disclosure (BMA 2004). These principles reflect the core advice given to all doctors
by the General Medical Council – the regulator of medical practitioners in the UK. The GMC
recognizes that good medical care depends upon the trust that stems from the assurance of medical
confidentiality, but also that ‘appropriate information sharing is essential to the efficient provision
of safe, effective care, both for the individual patient and the wider community of patients’ (GMC
2009). Research suggests that patients are not always aware of this balance, or of the exceptions
to medical confidentiality, in either civilian (Sankar et al. 2003; Bolton Research Group 2000) or
military contexts (Gibson and Coker 2002). However, the literature on doctors’ dual loyalties is
growing (Benza and O’Brien 2011; Benatar and Upshur 2008; International Dual-Loyalty Working
Group 2008; Ascheim and Gittleman 2011; Gregg Bloche 1999; Holland 2007).
The evidence presented below demonstrates a gradual convergence of civilian and military
approaches to confidentiality over the past century. Whereas civilian medical practice traditionally
gave priority to the confidentiality of patients, by the early twentieth century this approach came
under increasing pressure. Patient confidentiality was qualified to better serve collective interests
through public health policy and the administration of justice in civil courts. However, although
convergence was initially a consequence of the law’s impact on civilian medical practice, more
recent changes in military policy, to ensure that medical officers follow the same principles and
guidelines as their civilian colleagues, have been no less significant.
Individual versus Collective
World War I exposed large numbers of civilian doctors to medical practice in a military context,
providing many with their first experience of the contrasting approach to medical confidentiality in
Medical Confidentiality in the Military 211
the military compared to private practice. In his analysis of doctors’ role in combating malingering,
Roger Cooter states:
Common soldiers and sailors were not of course private patients; nevertheless, civilian doctors
carried over into the military norms of confidentiality and trust, sufficient for many of them to find
the business of exposing malingerers deeply repellent. (Cooter 1998)
In private practice, the perception that a doctor could be trusted to keep his patients’ secrets was
an asset in securing him business in a competitive medical marketplace where reputation mattered
(Ferguson 2006). While the importance of medical confidentiality had long been emphasized in
writings on professional ethics, by the outset of the twentieth century it was coming under increasing
pressure – and not only from the military during times of conflict. Public health legislation required
doctors to notify cases of contagious and infectious diseases. In allowing for the forcible medical
examination of prostitutes near military garrisons, the Contagious Disease Acts proved particularly
controversial and were ultimately repealed (Savage 1990). However, the impact of poor health on
the industrial and military competitiveness of the country (Searle 1971; Higgs 2004) ensured that
growing emphasis was given to a public health agenda which often required breaches of patient
confidentiality.
The establishment of the National Health Insurance scheme in 1911 further blurred the
surveillance and therapeutic roles of medical practitioners. With worker, employer and state all
contributing to the cost of healthcare insurance each had an interest in the doctor’s assessment of an
insured patient if questions arose over malingering and paid absence from work. Increasing interest
in the information they held about patients contributed to a sense that doctors were becoming
caught up in a web of competing loyalties, priorities and obligations which posed a threat to
traditional understandings of confidentiality.
The pre-war introduction of National Health Insurance had already led some practitioners to
proffer expressions about ‘the first duty of the doctor [is] to his patient, without whose permission
to open them the doctor’s lips are absolutely closed concerning all he may come to know of his
patient while in discharge of his professional duties to him. (Cooter 1998)
As Steve Sturdy notes, both Lloyd George and Churchill believed that concerns about widespread
malingering would be short-lived, as workers came to realize that individual abuse of the system
would have a negative impact on the collective benefits of the scheme. Therefore ‘individual welfare
depended upon the responsible conduct of all’ (Sturdy 2002). However, while economic and military
challenges placed new emphasis on the interconnection of individual and collective interests,
calculating the impact of keeping or breaching confidentiality – in the myriad circumstances in
which doctor-patient relations arose – was complex. Consequently, even when there was agreement
on the intended end, the means of achieving it was not always clear or straightforward.
For instance, the treatment of venereal disease (VD) sparked a contentious debate (Morrice
2002). In considering ways to tackle its rapid spread, a Royal Commission Report on VD in
1917 recognized that, given the stigma of the disease, collective welfare depended on protecting
the confidentiality of patients who might otherwise be reluctant to seek treatment. While many
infectious and contagious diseases became subject to notification in the interests of public health,
VD was given a publicly advertised guarantee of confidential treatment at state-backed clinics
(Davidson 2000; Evans 1992). When doctors from these clinics were subpoenaed to provide
evidence during divorce cases, judicial insistence that they breach confidentiality met with outrage
from both the medical profession and the Ministry of Health (Ferguson 2009).
Legal and public health policy demands therefore placed new emphasis on the value of medical
information beyond its function in the doctor-patient relationship, reflecting growing state interest
in a healthy population as a key resource for the economic and military competitiveness of Britain.
The emerging specialism of public health brought with it new categories of doctors such as medical
officers of health for municipal authorities, whose agenda reversed the priorities of the private
practitioner. In Roy Porter’s words: ‘A cohort of doctors emerged, beholden not to individual
clients but in the guise of guardians of the health of the populations generally’ (Porter 1997).
Civilian versus Military
The shift, from the relatively unbridled freedom of the individual in the private medical marketplace
to greater emphasis on the collective, left doctors pulled between competing agendas: individual
and collective, medical and legal. Although doctors frequently had to mediate competing demands
in both civilian and military practice, the public debates and controversies over issues such as
the confidentiality of VD treatment were largely limited to the former. WW1 impacted on family
life and personal relationships and contributed to the sharp rise in divorce cases that triggered
the intense debate over medical confidentiality in the interwar years. However, crown privilege
for service medical records meant that military doctors were insulated from the resultant battle
between the judiciary, the Ministry of Health and the medical profession (Ferguson 2009). Whereas
civilian doctors received government sanction for the confidentiality of their work in VD treatment
clinics, this was undermined by the law’s insistence that patient records and doctors’ testimony
be disclosed in divorce courts. Conversely, doctors in military service were regularly expected to
override patient confidentiality in pursuit of military effectiveness, but service medical records
were exempted, by crown privilege, from disclosure in court.
In the divorce case of Anthony v Anthony (1919) the judge was forced to accept the Secretary of
State for War’s insistence that the husband’s service medical records could not be used as evidence
in court (The Times 1919). Although military doctors sometimes expressed concern about being
called on to breach patient confidentiality during courts martial, these took place in private and
were unlikely to involve breaching a government pledge of patient confidentiality. However, the
prospect of a nationalized health service following the Second World War provoked questions
about the distinction between civilian and service medical records. The Lord Advocate, the UK
government’s adviser on, and representative in, the Scottish legal system, suggested service
medical records should be used to facilitate the ends of justice in the same way as civilian records.
In Duncan v Cammell Laird and Co. (1942, A.C. 624), the House of Lords established that the
basis for crown privilege was the determination, by the head of the political department involved,
that disclosure would be detrimental to the public interest. This was either because the document
contained sensitive information or because it belonged to a class withheld from production on
grounds of public interest. Service medical reports were considered to fall within the second
justification, as ‘if the communications were liable to be produced in a Court of Justice, the effect
would be to restrain the freedom of the communications and to render the reports more cautious,
guarded and reserved’ (National Archives WO 32/12406). The Lord Advocate questioned the
validity of exempting service records as a class, especially when the medical records of the wartime
Emergency Medical Service hospitals, run by the Department of Health, were not privileged from
disclosure in court. However, the War Office felt that there were cogent distinctions to be drawn
between the two.
The difference in status between the service doctor on the one hand and the private practitioner or
a publicly employed doctor on the other is clearly brought out in the Service regulations, which
show that the relations between doctor and patient within the Services and without are totally
different on account of Service discipline. (National Archives WO 32/12406).
In effect, doctors in civilian life were concerned only with well-being; whereas doctors in the
military had additional obligations related to military discipline: ‘the doctor being an officer as
well as a doctor, is under a duty, in making his medical report, to pass any comment which might
bear on discipline for example that a soldier is malingering’ (National Archives WO 32/12406).
Therefore, two arguments were put forward for maintaining a distinction between military and
civilian approaches to confidentiality. The first was consequentialist: if doctors were concerned
that their medical reports were liable to be produced and scrutinised in court it was less likely they
would be open and frank in the opinions they expressed within them. This would have detrimental
consequences for the communication of information within the military. Similarly, concern that
medical records could subsequently be produced in court might deter servicemen from seeking
early medical treatment for a disease such as VD, despite being subject to disciplinary action for
failure to do so (National Archives WO 32/12406). The second defence focused on dual loyalties:
doctors not only had obligations towards the well-being of servicemen, as officers they also had a
duty to maintain service discipline.
Of course, both defences also resonated in civilian practice. The revelation that the judiciary was
prepared to override the Ministry of Health’s publicized pledge on the confidentiality of VD clinics
led some doctors to consider resigning and presumably led others to review the information they
recorded on patient files (Ferguson 2009). Equally, as already noted, concerns about malingering
were not confined to the military and civilian doctors were under pressure to consider the discipline
of the insured labour force in a similar way to their military counterparts.
Although the Lord Advocate’s suggestion was rejected, reorganization of medical services
had resulted in greater scrutiny of differences between medical confidentiality in the civilian and
military contexts. While the majority of public debate on confidentiality in the first half of the
twentieth century focused on civilian practice, in the decades following WW2 questions about
the privilege of service medical records continued to arise. Predominantly, discussions concerned
whether there should be more legal scrutiny of ministerial decisions to apply crown privilege.
However, it was not long before enquiries began to penetrate deeper, explicitly questioning the
guidelines on medical confidentiality given to medical officers in the military.
GMC and MoD
The spark which triggered the review of medical confidentiality in the military involved a complaint
against an army doctor, brought to the attention of the GMC in 1986. Although originating in
the army, the resultant discussions involved senior members of the Military Medical Services
representing all three branches of the armed forces. The complaint stemmed from concerns
that a medical officer had breached the confidentiality of a serving soldier’s wife (to preserve
confidentiality the couple will be referred to as Sergeant and Mrs A), by disclosing details of her
medical history to both her husband and his commanding officer without her consent. In summary:
Mrs A was dissatisfied with the medical treatment she was receiving, on an army base abroad, for
a chronic condition that appeared to be worsening. Sergeant A applied for compassionate leave to
accompany his wife back to the UK. During a meeting to consider this application, the medical
officer, who became the subject of the complaint, disclosed elements of Mrs A’s medical history
to both Sergeant A and his commanding officer. This was done to contextualize a recent drop in
Sergeant A’s performance and to support his application for leave. However, the details disclosed
included Mrs A’s previous history of drug abuse and the fact that she had had an abortion during
a previous marriage. The subsequent complaint indicated that this information had been disclosed
without Mrs A’s prior consent, and that a number of other officers and administrative personnel
had unnecessarily been made aware of her medical history. Through its subsequent correspondence
with Sergeant and Mrs A, the Surgeon General and the firm of solicitors engaged to represent the
doctor, the GMC sought to establish whether there was a case of serious professional misconduct
to answer.
In defence of his disclosure, the medical officer’s lawyers argued that, whilst on the military
base abroad, both their client and Mrs A were subject to military law, under which a doctor was
obliged to answer questions put to him by the commanding officer of the forces with which he was
serving. They pointed out that, in choosing to consult a doctor in the armed forces, Mrs A knew
that she ‘was not entitled to expect her affairs to be treated as confidential as against the Army.’
More generally:
It is usual in the Army for commanding officers who are for example, worried about the performance
of a soldier, to seek information from the medical officer and the medical officer is no more entitled
to withhold information than are any of the other officers on whom the commanding officer may
rely. (GMC 1986)
In support of this, they enclosed a copy of Notes for the Guidance of Military Medical Officers on
medical confidentiality (hereafter Notes) issued to service medical staff.
Following initial consideration by its Preliminary Proceedings Committee, the GMC wrote to
the Surgeon General (who is the Director of Army Medical Services) requesting his opinion on the
merits of the explanation furnished by the doctor in the case of Mrs A (GMC 1986). In particular,
clarification was sought on the position of civilian doctors employed by the military; whether the
Notes had official status; and the legal basis of paragraph 8 of the Notes which stated:
The military equivalent of a Court of Law is Commanding Officers Orders or a Court Martial.
Para[graph] 6 applies to a medical officer called upon to give evidence in a case involving a
Service patient.
Paragraph 6 highlighted that medical confidentiality did not exempt doctors from disclosure in
a court of law, meaning a doctor must give evidence if ordered by a judge (for background see
Ferguson 2006, 2009, 2011). Taking the two paragraphs together, the Notes implied that, just as
doctors had no privilege to maintain patient confidentiality in a court of law, military medical
officers could not object when ordered to disclose information by a commanding officer.
It took over four months for the Surgeon General to reply, indicating that the case had
highlighted discrepancies between the position of service and civilian doctors in the military
which had taken time to clarify and resolve. Civilian doctors were not subject to the same legal
compulsion or disciplinary procedures under the Army Act as doctors who were serving officers.
Moreover, civilian doctors employed in a military capacity were not issued with specific guidance
on protocol upon appointment, although they did have access to the Notes. The fact that, in the
case of Mrs A, the doctor was a retired Colonel re-employed in a civilian capacity minimized the
latter distinction. The Surgeon General indicated that the Notes were advisory only and did not
invoke sanctions for non-compliance. Rather they were designed to supplement GMC guidance in
recognition of the fact that the military environment could ‘occasionally give rise to differences’
(GMC 1987). Echoing the line taken during correspondence with the Lord Advocate in 1947/8, the
Surgeon General stressed:
The essential point is that the relationship between a Serviceman and his MO (whether a serving
officer or civilian), is, in important respects, different from that between a civilian and his GP.
This derives from the nature of military service and is explained in the Notes for Guidance. (GMC
1987)
He referred to the way in which the Notes emphasized that in the interests of a patient a medical
officer ‘may have to bring to the attention of the CO changes in circumstances affecting the troops
under his command’. He regarded this as ‘important militarily’, noting that in the case of Mrs A,
concern had been raised about a drop-off in Sergeant A’s performance ascribed to anxiety about
his wife’s health. While suggesting that the commanding officer would have been better advised to
discuss the issue with the doctor alone, and the latter should have sought Mrs A’s explicit consent
to disclosure of those facts considered essential to support Sergeant A’s application for leave, the
Surgeon General was generally satisfied with the medical officer’s explanation.
Ultimately the case against the doctor did not advance to consideration before the GMC
Professional Conduct Committee. The Preliminary Proceedings Committee accepted that, while
resident with the army, both the medical officer and Mrs A were, to an extent, subject to military
law. In the circumstances it was appropriate for the doctor to share details of Mrs A’s medical history
with the commanding officer in order to explain the drop-off in Sergeant A’s performance and
facilitate his application for compassionate leave. However, in their letter conveying this decision
to the doctor, the GMC drew attention to their published guidance on medical confidentiality,
stressing the importance of restricting disclosure to the ‘minimum required for the immediate
purpose’ and the need to obtain assurance from the commanding officer that he, in turn, would
respect confidentiality. If similar circumstances arose again, the GMC expected doctors in the
military to ‘have greater regard to the primary medical duty of confidentiality’ (GMC 1986).
Although this brought the specific case to a close, concerns remained over the content of the
Notes. Whilst recognizing that the military had valid reasons to demand the sharing of medical
information, the emphasis placed on medical officers’ obligations to unit welfare and military
regulations appeared to have eclipsed their basic duty to respect patient confidentiality. After
deliberation, the GMC decided to raise this with the Surgeon General.
MoD Guidelines and GMC Revision
The GMC Committee on Standards of Professional Conduct and on Medical Ethics were asked
to consider the issues raised by Mrs A’s case. On reviewing the Notes, the committee expressed
concern that while they made broad reference to GMC guidance on medical confidentiality there
were points where they seemed at variance. In particular, insufficient detail was given about the
circumstances in which disclosure would be justified in a military context. Mrs A’s case highlighted
latent ambiguity in the phrase ‘Commanding Officers’ Orders.’ An enquiry from the GMC
prompted the Directorate of Army Legal Services to informally clarify that the phrase did not
mean any written or oral command – only those situations in which the commanding officer sat as
magistrate in summary disciplinary proceedings. However, the case of Mrs A illustrated that even
experienced senior military medical officers were unaware of this. Had the Notes firmly stated
that disclosure of medical information to commanding officers should always be restricted to the
minimum necessary for the particular purpose, and to the minimum number of personnel, Mrs A’s
complaint might have been avoided.
Prompted by their discussion, the GMC again wrote to the Surgeon General to express the ‘firm
opinion that the approach to medical confidentiality in the military situation should be clarified to
eliminate, as far as possible, any confusion that may exist in the minds of doctors serving with the
Army, or indeed in the minds of their patients’ (GMC 1987). While stressing their recognition that
there was, at times, a valid military need for confidential medical information about soldiers to be
disclosed, the GMC invited the Directorate of Army Medical Services to consider redrafting the
Notes to reflect their strong feeling ‘that military needs and the rights of individual patients should be
balanced, and that the circumstances in which disclosures may be made should be fully understood
by all concerned’ (GMC 1987). In effect this mirrored demands on the civilian medical profession
over the previous century. Just as civilian doctors had been forced to rebalance their traditional
emphasis on individual patient confidentiality by accepting their additional duties to public health
and the law, military doctors were now being asked to redress the dual loyalties imbalance in
the opposite direction. In light of the GMC’s comments, the Surgeon General accepted that the
Notes required review and should be redrafted. Four months later, a revised draft accompanied the
Surgeon General’s next letter. It indicated that he would welcome any observations the GMC may
have before the revised Notes were published and distributed to all service medical officers and
civilian medical practitioners employed by the armed forces on a full or part-time basis.
At first sight the revised Notes seemed ‘simpler, less discursive and more logical’ (GMC 1987).
The number of paragraphs had been reduced from 14 to 7, all references to Commanding Officers’
Orders had been removed and more emphasis was given to the fact that disclosure of patient
information should always be limited to the minimum necessary for the specific purpose. However,
although improved, significant concerns remained. The revised Notes referred to the GMC
guidance, but did not include it. This somewhat overcomplicated the issue, relying on doctors to
read the military notes and then look up the GMC guidelines. It would be preferable to have the
key points in one document – starting with the core GMC guidance and principles, followed by
details of the reasons why, and circumstances in which, military policy differed. Recognizing that
a summarized version of the GMC position could be misleading, the committee suggested that
the relevant paragraphs of GMC guidance be inserted as an addendum to the Notes. In addition to
this general point, two specific issues also required clarification. The final paragraph of the revised
Notes introduced the possibility that a third person could be present when a military doctor met
with his commanding officer. The GMC questioned the lack of detail provided about who this third
person might be and also highlighted the need to make clear that he/she would similarly be bound
to ensure medical information was treated confidentially. In addition, the revised guidance made
no specific mention of family members of serving personnel – a striking oversight when the initial
review had been triggered by the case of Mrs A.
These three points formed the basis of the response sent to the Surgeon General the following
month. As a result, further discussion of the Notes was added to the agenda of a meeting already
scheduled to take place in early 1988 between senior representatives of the GMC, the Royal Navy,
the Royal Air Force and Army. During this meeting it was agreed that the Notes should be amended
further. However, when the latest revision arrived in March 1988, little had changed. The reference
to a possible third person had been removed from the last paragraph, but the GMC guidance was
not included, nor was any reference made to the position of family members.
In fact it took an additional revision to get a version of the Notes that was to the satisfaction
of both the GMC and the Medical Directorate of Military Medical Services. The key change was
the addition of a new opening sentence in paragraph one: ‘The General Medical Council has
published guidance on professional confidence and a copy is attached as an annex to this letter’.
The Surgeon General indicated that, after having considered the issue of family members of armed
forces personnel serving overseas, he felt that it ‘would be wrong to highlight a particular category
of patient when service doctors should always have the disclosure problems of all their patients
constantly at the back of their minds’ (GMC 1988). The Notes would no longer be privileged but
made available to all service personnel and their families prior to departure overseas. The Surgeon
General thanked the Standards Committee for its ‘constructive help and forbearance’ – a sentiment
reciprocated in the GMC’s reply welcoming the approach taken in the final draft.
So, two years after the case of Mrs A had first sparked discussion, fresh guidelines presented
a sharper, more focused understanding of medical confidentiality in the military which included
the guidance given to all doctors by the GMC. This seemed to exemplify growing recognition of
the need for military practice to more explicitly reflect the values underpinning civilian practice.
However, the fact that it had taken numerous meetings and revisions of the Notes to arrive at a
satisfactory version, suggested that there was still some reluctance towards the merger of guidance.
It was not long before a new issue rekindled the debate and illustrated that convergence was not
yet complete.
Disclosure of Non-Medical Information
The spark in this instance was the revision of policy and guidelines on homosexuality in the armed
forces, following its decriminalization in that context in the early 1990s. Although decriminalized,
homosexuality was still regarded as incompatible with service in the armed forces ‘not only because
of the close physical conditions in which personnel often have to live and work, but also because
homosexual behaviour can cause offence, polarize relationships, induce ill-discipline, and as a
consequence damage morale and unit effectiveness’. Consequently, homosexuality was regarded
as grounds for automatic dismissal. In addition to issuing new tri-service guidelines to officers,
distributed down the chain of command in March 1994, the Ministry of Defence also produced
specific guidance for military doctors (hereafter 1994 Guidelines).
This latter guidance acknowledged that homosexuality was not a medical matter. However,
it also stated that all evidence of homosexuality or homosexual feelings must be disclosed by
medical officers to their commanding officers. This aspect of the new guidance provoked groups
representing homosexuals in the military to raise concern that the policy would discourage some
service personnel from seeking medical advice for fear of being reported and dismissed. When
such concerns brought the 1994 Guidelines to their attention, the GMC expressed unease that they
were ‘not wholly compatible’ with the version of the Notes that had been jointly agreed in 1988.
Whereas the 1994 Guidelines advocated the reporting of all evidence of homosexuality, the Notes
had stated that disclosures should only be made when the security, health, safety, discipline or
welfare of the unit or the individual would otherwise be put at risk. If no questions were raised over
an individual serviceman’s performance, and there was nothing to suggest his health posed a direct
threat to himself or his unit, then it was unclear why a doctor should be obliged to report evidence
of homosexuality to his commanding officer, knowing it would lead to dismissal.
As in 1986–1988, there ensued a period of correspondence and meetings with the Surgeon
General’s office, aimed at clarifying the position and seeking a mutually agreeable set of guidelines.
The GMC again acknowledged that service personnel voluntarily gave up some of their individual
rights and freedoms on enlistment. While not endorsing the attitude which the military took
towards homosexuality, the GMC recognized that it was established policy that homosexuality
was incompatible with military service. However, while cultural attitudes might differ in civilian
and military contexts, the GMC’s remit was to ensure consistent standards of medical practice.
Therefore, ‘the MOD guidance should make clear that MOs should disclose information according
to the same rules that other doctors abide by’. So, in addition to querying the substantive change
in approach between the 1988 Notes and the 1994 Guidelines, the Standards Committee pointed
out that, once again, the GMC guidance on confidentiality had not been included in the military
guidelines.
As in the earlier negotiation of the Notes, the Surgeon General agreed to revise the 1994
Guidelines to take account of GMC concerns and include its guidance on medical confidentiality.
As before, the initial result was only a partial redraft that made more explicit mention of GMC
guidance but left intact the obligation on military doctors to report all evidence of homosexuality
to their commanding officers. After a further meeting in July 1997 the Surgeon General agreed to
withdraw the 1994 Guidelines and instead issue an amended version of the Notes. The revision
would ‘make clear that homosexuality should not automatically be disclosed; the Commanding
Officer should only be informed if it were relevant to a risk to the Unit or another individual’.
In fact, the updated version of the Notes removed all reference to homosexuality and was
issued with a covering letter explaining that the 1994 Guidelines had been found to conflict with
GMC policy on medical confidentiality and had therefore been withdrawn. The original approach,
that non-medical information should not be disclosed unless the specific circumstances indicate
that disclosure would prevent serious harm to the individual or unit, continues to be reflected in
current guidance: ‘Additional details that do not have a bearing on the health of the individual
patient and are not relevant to the issue for which disclosure is required (such as his or her sexual
orientation) should not be released’ (BMA 2004). Crucially, the opening paragraph of the updated
Notes provided an unambiguous demonstration of the way in which a decade of negotiation
had produced convergence of civilian and military approaches to medical confidentiality: ‘As
registered medical practitioners, Medical Officers and Civilian Medical Practitioners are to follow
the General Medical Council’s guidance in precisely the same way as civilian doctors’.
Implications of Convergence
The case study above illustrates a gradual convergence of approaches to medical confidentiality
over the last century. Initially, this stemmed from a qualification of traditional understandings
of medical confidentiality as civilian doctors were subjected to increasing pressure to fulfil dual
loyalty roles within public health policy and law. Latterly, external scrutiny pointed to the need
for service doctors to rediscover the importance of patient confidentiality to efficient, effective and
ethical medicine. In detailing this, the case study develops understanding of how arguments over
duties, rights and consequences have been utilized in debates.
Duties
While doctor–patient confidentiality is integral to ethical medicine, the issue of doctors’ dual
loyalties has grown significantly over time. In 1947 and 1987, military authorities stressed the dual
function that a medical officer fulfils as both a doctor with responsibility for well-being and an
officer with responsibility for discipline. However, the suggestion that this dual responsibility sets
military doctors apart from their civilian counterparts was obsolete even at the time of expression.
As noted, the surveillance role of military doctors in notifying suspected malingering had a direct
correlation with doctors assessing insurance claims in the civilian workforce.
The parallels of dual loyalty extend further to consideration of law. The fact that medical officers
and service personnel are subject to military law is no different from civilian doctors and patients
being subject to civil and criminal law. To be problematic, military law must alter the boundaries
of medical confidentiality. On this point, the case study is revealing. In the original version of the
Notes, latent ambiguity in the term ‘commanding officer’s orders’ gave the false impression that
military law was, in fact, different. As revealed in the case of Mrs A, even an experienced senior
medical officer misunderstood its meaning. However, as subsequently clarified, it did not mean
medical officers must disclose information whenever a commanding officer requested it. Rather, it
referred only to situations in which a commanding officer sat as magistrate in summary disciplinary
proceedings – a position equivalent to a judge in court. So, once the hazy phraseology had been
clarified, there was no difference between military and civilian approaches. Just as medical officers
cannot refuse to give information during summary disciplinary proceedings or courts martial,
civilian doctors must disclose information when subpoenaed to give evidence in court (Ferguson
2006, 2009, 2011).
While, historically, military culture may have subjugated medical confidentiality to demands
from the chain of command for information, this position has been rejected as a result of greater
external scrutiny in recent decades. However, Gibson and Coker (2002) note that commanding
officers still, at times, have unrealistic expectations of what medical officers should disclose.
Rights
Importantly, such disclosures appear more readily justified in an environment where individual
autonomy and rights are reduced and the hierarchy of authority is clear and explicit. At first sight,
this seems to echo the previous argument, replacing the emphasis on the authority of the chain of
command with a focus on the curtailment of individual rights of personnel. Though approached
from the opposite end, the argument leads to the same conclusion: that service personnel have less
entitlement to confidentiality in a military context. However, this position must be qualified in two
ways.
Firstly, medical confidentiality is not an absolute patient right in either military or civilian
contexts. In both, it is qualified by third party rights/public interest exceptions. In this regard the
assertion, quoted at the start of the case study, that military personnel relinquish their ‘right to
strict confidentiality’ could be misinterpreted as suggesting a near absolute right to confidentiality
in civilian life. Secondly, while bioethics emphasizes confidentiality as a derivative of the right to
privacy and respect for autonomy, historical analysis demonstrates that the deeper running roots of
medical confidentiality lie in the trust it engenders in the doctor–patient relationship. In other words,
medical confidentiality was, and is, functional. Discussion of medical confidentiality in terms of
rights encourages a legal approach to the issue, focusing attention on the likelihood of litigation and
the need to promote defence against complaint (as per Gibson and Coker 2002). While it is in the
military’s interests to consider such issues, it is equally important to recognize the role of medical
confidentiality in facilitating the welfare of individual service personnel and, by extension, military
units as a whole. A serviceman who trusts that his medical officer will respect his confidentiality
is more likely to seek early advice, and to be more open and honest in consultations, than one who
does not. Individual and collective welfare each depend on patients, whether civilians or service
personnel, having the confidence to trust their doctor – and confidentiality is an integral part of that
trust (Mechanic 1998, 2004).
This raises questions about the emphasis often put on the fact that military personnel give up
some of their rights and freedoms as citizens when they join the armed forces (BMA 2004; Gross
2006; Beauchamp and Childress 2001). It also undermines the suggestion that the problem of
breaching confidentiality in the military could be reduced by highlighting this forfeiture at the
point of enlistment, bolstering a defence of implied consent if complaints arise (Beauchamp and
Childress 2001; Gibson and Coker 2002). A more useful approach would highlight to medical
recruits the heightened responsibilities of the medical officer’s role in the military. Recognizing that
the responsibility for making important decisions on when to keep/breach patient confidentiality
will fall on their shoulders in both military and civilian practice, doctors must understand that
the military environment will bring additional pressures – not least the chain of command. As in
civilian practice, military doctors’ primary obligations are to the patient, except when there is a
clear and specific threat to an identifiable third party.
Consequences
Where maintaining confidentiality presents an evident threat, doctors should be willing to

disclose information by notifying the relevant authority after seeking the consent of the patient.
The minimum amount of information necessary to the specific purpose should be disclosed and
only to those with a recognized need to be notified. Unwarranted disclosures have the potential
to provoke complaints (as in the case of Mrs A), or legal action (as per Gibson and Coker 2002),
and to undermine trust, thereby reducing the effectiveness of the doctor–patient relationship and
increasing risk to individual and unit welfare. As the guidance stemming from discussions between
the GMC and the Surgeon General make clear, confidentiality should only be breached when non-
disclosure would pose a clear threat to the health, safety or security of the individual or unit.
Importantly, these exceptions are also recognized in civilian medical practice. Confidentiality can
be overridden if there is an evident risk in granting a driving licence (including public transport
operators) or gun licence to someone whose medical history indicates this would be unsafe.
Military medicine is likely to involve more frequent disclosure because of the security and
safety issues associated with the access to weaponry in the armed forces. However, this does
not reflect a difference in principle, but rather is a consequence of more practical considerations.
Operating in an environment where activities, contacts, risks and demands can, to a greater extent,
be recognized in advance and controlled, ensures that military doctors will need to provide regular
medical reports about patients. This might be in order to limit activity, ensure adequate supervision
of a condition, or deny access to dangerous equipment. The difference therefore arises out of
increased risk in a military setting, rather than a variation in principle, and should not be used as a
smokescreen for unjustified breaches of confidentiality.
When crown privilege was challenged by the Lord Advocate, a key defence was that protection
against public disclosure allowed medical officers to record all relevant information on service
medical reports, thereby facilitating effective communication within the military. If medical
officers believed the report may subsequently be produced in public, this would impact on the
information recorded. As the Treasury Solicitor noted, ‘the effect would be to restrain the freedom
of the communications and to render the reports more cautious, guarded and reserved’ (National
Archives WO 32/12406). In other words, the military presented a consequentialist defence of the
importance of medical confidentiality. However, if the functional importance of confidentiality is
recognized at the level of service medical records as a class of document, it is not clear why the
same logic should not apply at the level of individual servicemen in their contact with medical
officers. Though evidence of certain diseases or symptoms might be found during routine or
enforced medical checks, the trust that confidentiality engenders in the doctor–patient relationship
is more likely to encourage service personnel to seek early advice and treatment for any physical or
mental health concern. As the Ministry of Defence acknowledged in 1948, the threat of disciplinary
action for failing to seek medical advice may not, in itself, be sufficient. Respect for confidentiality
at the medical officer–serviceman level has positive consequences for the individuals involved and
their military unit.
The case study also highlights the importance of external scrutiny. Crown privilege insulated
medical officers and the military from the external scrutiny and public debates that challenged
civilian doctors’ understandings of the boundaries of medical confidentiality in the interwar
years (Morrice 2002; Ferguson 2009, 2011). As a result, misunderstandings (for example of the
meaning of commanding officer’s orders) were allowed to perpetuate, gradually eroding patient
confidentiality. When external scrutiny came via the GMC, it was evident that a rebalancing of
duties was required. The fact that the Surgeon General took four months to reply to the GMC’s
initial enquiry, citing, in justification of the delay, that the query had highlighted discrepancies that
required clarification, emphasizes the importance of ensuring independent verification of policy
and practice. The inconsistencies between the 1988 Notes and the 1994 Guidelines, suggest this
scrutiny should occur on a regular basis.
Medical Confidentiality in the Military in the Twenty-First Century
Although historical debates have helped to clarify the principles underpinning policy on medical
confidentiality, guidance cannot comprehensively set down in detail what should be done in every
scenario that might arise. In some cases the need to override the duty of confidentiality will be
clear-cut, in others it will not. Doctors will at times have to rely more heavily on experience and
judgement in deciding the best course of action. In all cases, they must ‘weigh the harms that are
likely to arise from non-disclosure of information against the possible harm, both to the patient and
to the overall trust between doctors and patients, arising from the release of that information’ (GMC
2009) and be prepared to fully justify their decision and subsequent actions if called to account for
them. Undoubtedly this places a considerable emphasis and responsibility on the individual doctor.
However there is no difference in principle between civilian and military medical practice in this
regard. Doctors should be made aware from the outset of their training that they are accepting
a position of responsibility – one where the welfare and lives of others explicitly depend on the
knowledge, skills and judgement they possess and seek to utilize.
While the force of the autonomy/patient rights argument differs between the civilian and military
contexts, the function of medical confidentiality does not. To discuss medical confidentiality in the
military predominantly in terms of patient rights, as critics of a universal approach do, is to miss
the significance of its role in facilitating trust and thereby promoting individual and unit welfare. In
practice there is likely to be a greater frequency of disclosure within the military, but it is important
to understand that the justification for this is neither the chain of command, nor curtailment of
autonomy, nor dual loyalty demands. Each accurately reflects the position in the military, but to
place the emphasis on them provides greater scope for inappropriate and unnecessary disclosure.
Rather, just as in civilian medicine, the basis for limiting medical confidentiality is the recognition
of the interconnection of individual and collective welfare. There are reciprocal benefits for service
personnel whose more frequent consent to disclosure of information promotes the safety of their
colleagues and their unit. In turn their own welfare is enhanced by the knowledge that colleagues
will seek early medical advice in an environment where personnel trust their doctor and will
consent to disclosure where appropriate. Therefore, instead of stressing a loss of individuals’ right
to confidentiality, medical officers in the military should promote a better understanding of the
function and purpose of medical confidentiality and the benefits that stem from it. As in civilian
practice, where there are valid reasons to disclose information this should be discussed with the
patient. Given the reciprocal benefits of disclosure for individual and collective welfare, in most
cases the motivation for consenting should be clear. In circumstances where consent is withheld,
the doctor must make an assessment based on an evaluation of the risks to individual and collective
welfare. In all circumstances disclosure must be limited to the minimum amount of information
necessary to the specific purpose, given to the minimum number of authorized persons who in turn
must respect the confidential nature of the information.
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in early twentieth-century Britain. Social History of Medicine, 5(3), 413–33.
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Law and Public Policy in Scotland c.1850–1990, edited by M. Freeman, E. Gordon and K.
Maglen. Dundee: Dundee University Press.
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Chapter 14
Accidents and Experiments: Nazi Chemical
Warfare Research and Medical Ethics during
the Second World War
Ulf Schmidt
Introduction
After the Second World War, Gerhard Schrader, the German industrial chemist who in the mid
1930s discovered the chemical warfare potential of organophosphorous compounds, wanted
Allied interrogators to believe that plant workers in German nerve agent factories had occasionally
suffered from minor convulsions and that there had only been a ‘single human fatality’ among the
workforce. According to Schrader, one of the employees had died within two minutes of being
exposed to half a gallon of the nerve agent Tabun.1 Although nerve gases were extremely toxic,
and their handling extremely dangerous, German military manufacturing facilities had apparently
complied with the latest health and safety standards. Post-war witness statements, however,
painted a substantially different picture, suggesting that accidents had been more frequent and
more serious, and that plant workers, including forced and slave labourers, had suffered from
severe and sometimes fatal injuries. Up until the end of 1941, a total of 324 apparently minor
accidents occurred at Dyhernfurth, code-named ‘Hochwerk’, a small town northwest of Breslau,
in the eastern province of Silesia, where the German conglomerate IG Farben had established the
first ever plant for the manufacture of the nerve agent Tabun after the outbreak of war (Schmaltz
2005: 452–5; Klee 1997: 274; Tucker 2006: 45ff).2 For some Allied investigators, the figure was
‘in no sense spectacular; indeed, judged by experience elsewhere, it might be regarded as quite a
low figure’.3 Subsequent interrogations revealed, however, that there had been 12 serious casualties
in a single accident in 1941. Despite intensive medical care, good food and the administration of
oxygen, eight of the injured men and women died. Among those who recovered was ‘one girl’
who had an extremely low count of white blood cells.4 In 1945, Allied officers from Porton Down,
Britain’s chemical warfare establishment since the First World War, concluded that the ‘effects
upon man were observed whenever it was possible to do so; the accidents in factories, laboratories
etc. offered the opportunity to study the effects as well as the proper treatment’.5 Officially,
1 Combined Intelligence Objectives Sub-Committee (‘CIOS’), Report, Item No. 80, A New Group of
War Gases, 23 April 1945.
2 For the directorship of Dyhernfurth see Imperial War Museum (‘IWM’), Nuremberg Documents, NI-
9772, Affidavit Albert Palm, 24 July 1947.
3 British Intelligence Objectives Sub-Committee (‘BIOS’), Final Report, No. 782 (Interrogation Report
No. 291), Item No. 8, Interrogation of Professor Ferdinand Flury and Dr Wolfgang Wirth on the Toxicology
of Chemical Warfare Agents (no date).
4 CIOS, Item No. 8, Chemical Warfare Installations in the Munsterlager Area, 23 April–3 June [1945], 5.
5 Ibid., 3; for the origins of Britain’s chemical warfare programme see Schmidt 2012: 129–58.
experiments with lethal dosages of nerve agents were only conducted on animals, yet military
scientists were prepared to ‘capitalize’ from different types of accidents and forms of exposure in
nerve agent factories, irrespective of the ethical implications involved.
Given that Germany’s nerve agent programme was one of the best-kept secrets of the war, so
secretive that Allied intelligence had no idea that German scientists had developed a new generation
of toxic compounds, it is hardly surprising that documentation about accidents, including the ones
highlighted above, and deliberate human experiments with chemical warfare agents would have
been kept to a minimum. If such documentation was ever produced, it would probably have been
destroyed by the end of the war. Yet an analysis of the ethics of accidents and experiments in Nazi
chemical warfare research, even if based on fragmented evidence, can extend our understanding
of the applied medical ethics standards in different research environments. In his study of a
major biological warfare accident during the Cold War, which turned into a prolonged human
experiment, Balmer has argued that ‘those who are accidentally or deliberately exposed, but are
not the objects of experiment, challenge not only the boundaries between accident and experiment
… but, significantly, between the patron and experimenter’ (Balmer 2004: 201; Balmer 2012:
39). By looking at the role of accidents in the production of military knowledge, we can also
gain insights into the role of secrecy as an overriding justification for ethical decision-making.
The chapter aims to explore the extent to which German military scientists addressed, ignored
or circumvented the ethical dilemmas resulting from their top secret military assignments, and
examines some of the differences between military medical research ethics and civilian medical
practices (Balmer 2004: 220).
More broadly, the chapter raises a series of inter-related questions: to what extent are medical
ethics applied, and are they applied equally, in all research contexts, including those which
are generally hidden from public view because of their military relevance or national security
classifications? Are medical ethics standards monitored and enforced uniformly in both civilian
and military science? Do the risks involved for those participating in human experiments increase
during times of war, and if so, how are these risks justified by military and medical experts and
the agencies of the state? Can we detect a decline in upholding professional ethics standards in
non-therapeutic research on humans in national emergencies, especially in relation to bioethical
principles such as informed consent, non-humiliation, beneficence and non-maleficence (to do
no harm)? Or, seen in more general terms, is it true that ‘things can happen in war that would
not be tolerated in peacetime’, as Proctor has stressed? (Proctor 1992: 24). Although the World
Medical Association (WMA) categorically prohibits physician-scientists from participating in
offensive chemical and biological warfare research, or from contributing to their ‘conception and
manufacture’, the subject nonetheless produces, as Gross has argued, an ‘overwhelming tension
between military necessity and humanitarian obligations’ (Gross 2006: 246). This is not only
reflected in the historical debates leading up to, and since the promulgation of the 1925 Geneva
Protocol which outlawed chemical and biological weaponry, but also in recent controversies
over the use of nonlethal weapons in asymmetrical or low-intensity warfare. By examining the
context and wartime conditions of Nazi chemical warfare research, the chapter hopes to provide
important historical evidence which can inform wider debates about military medical ethics,
national security and research ethics.
Whereas international biomedical research ethics has recently become the focus of the
Presidential Commission for the Study of Bioethical Issues, which is investigating unethical
research practices by the US Public Health Service in Guatemala in the 1940s, it is important to
stress that military medical ethics is largely outside the purview of the commission (Reverby 2011:
6–28; Schmidt 2011: 1–17; CDC Report). Tasked to assure the US government that ‘current rules
Accidents and Experiments 227
for research participants protect people from harm or unethical treatment’, it is to be seen how far
this will remain more than an aspiration within tightly controlled military research environments.6
As Gutmann, chair of the commission, pointed out, ‘we must look to and learn from the past so
that we can assure the public that scientific and medical research today is conducted in an ethical
manner. Research with human subjects is a sacred trust. Without public confidence, participation
will decline and critical research will be stopped. It is imperative that we get this right’.7
Latterly, scholars have come to look more closely at how existing medical ethics regimes
relate to, and develop as a result of, national security considerations, wartime conditions
and contingency planning. Experts have questioned, for instance, the extent to which human
experiments can be performed under conditions of great secrecy, and whether such experiments
can be ethical, transparent and accountable (Moreno 2007: 327–9; also Gross 2010: 458–64).
Others have examined the shifting boundaries between accident and experiment in the context of
nuclear and biological weapons trials by stressing the role of secrecy in guiding the behaviour of
military officials and scientists (Levidow 1990: 99–109; Balmer 2004; Balmer 2012). As a result,
a growing consensus has emerged that we need to enhance our understanding of the history of
military medical ethics as practised by various agencies and political regimes (Moreno 2007:
327f; Gross 2010; Moreno 2006; Moreno 2011; Schmidt 2011).
Nazi Germany offers a valuable case study, given that medical and research ethics are at the
centre of the historiographical debate (Schmidt 2007a; Schmidt 2007b; also Schmidt 2011). As
Proctor has shown, the Third Reich was evidently one of the most progressive nations in the field
of industrial, environmental and occupational health and safety (Proctor 1999: 73–119). It had
some of the most advanced safety standards to protect workers and the public against the dangers
of asbestos, lead, tar, radiation and other known health hazards, and was investing heavily in
public health and modern cancer research, yet our knowledge relates almost exclusively to civilian
industries. So far, scholars have paid less attention to accidents and safety issues in military
facilities, not only with regard to existing safety standards, or lack thereof, for experimental
subjects, but for scientists, students, engineers, plant workers and chemical suppliers. In addition,
large numbers of forced and slave labourers were exposed to serious occupational hazards. Some
of the greatest risks for those working in the chemical warfare industry, especially in connection
with the production of nerve agents, resulted from prolonged toxic exposures and frequent
accidents, causing severe disabilities, injuries and death among hundreds of workers. At the
same time, experts exploited data resulting from such accidents to advance chemical warfare
knowledge. The subjects were generally unaware that they were taking part in an experiment, and
in some cases found themselves ‘in the wrong place at the wrong time’. Secrecy in this industry
was all-pervasive. It not only functioned as a ‘catalyst’ to sanction unprecedented medical ethics
transgressions, and in some cases outright war crimes, but also spread to ever higher levels.
Information about accidents was often known to only a few officials who did little to improve
inadequate safety provisions. During the war, accidents could easily turn into ‘experiments of
opportunity’ (Moreno 1999: 219–26).
6 See the recent report by the Presidential Commission for the Study of Bioethical Issues, Ethically
Impossible: STD Research in Guatemala from 1946 to 1948, Washington, DC, September 2011.
7 Presidential Commission for the Study of Bioethical Issues, Sixth Meeting, 29–30 August 2011.
Nazi Chemical Warfare Policy
Based on the assumption that the material resources and production facilities were insufficient for
a sustained chemical warfare campaign, some authors have argued that Germany never seriously
considered the use of chemical weapons for offensive purposes, and that the Nazi leadership, and
Hitler, in particular, had no intention of employing chemical agents except in retaliation against
Allied chemical attacks (Gellermann 1986: 211; Tucker 2006: 44). Seemingly unable to exploit
the more toxic nerve agents for strategic purposes, and vulnerable from insufficiently developed
defensive measures, the German regime was apparently not in a position to launch a large-scale
chemical attack during the entire period of the war. An uncritical reading of post-war testimonies
also led some to assume that Germany would have been unable to withstand an Allied attack
(Brown 1967; Brown 1968; Gellermann 1986: 211; Schmaltz 2005: 24).8 More recently, historians
have stressed that Germany’s chemical warfare programme enjoyed greater military priority, was
more aggressively pursued and technologically more advanced than previously assumed, and that
there were recurrent proposals to use toxic agents in different stages of the war. Having amassed
stockpiles of over 41,000 tonnes of conventional chemical warfare agents by the end of 1941,
phosgene and mustard gas especially, the German military was reportedly prepared and ready to
use them in 1943 (Ebbinghaus 1999: 190f; Müller 1999: 705–10; Schmaltz 2005: 24f).
In Germany, a detached leadership, having cultivated an informal, highly personalized system
of communication, was accustomed to a fragmented, uncoordinated and often chaotic decision-
making process that had a detrimental effect on research and development. Military and civilian
experts, as well as competing laboratories, were often ignorant about working side by side, and in
secret, on overlapping scientific problems (Schmidt 2007a: 207–53). Teamwork and the coordinated
pooling of resources and expertise required ingenuity and considerable perseverance. At the same
time, the aggressive and belligerent nature of the Third Reich not only created a self-feeding and
ultimately self-destructive process of cumulative radicalization, but a highly competitive research
culture to develop new and more toxic compounds, innovative delivery systems and productions
facilities for the mass manufacture of huge quantities of chemical warfare agents. Backed up by
vague and sometimes inaccurate intelligence assessments, German chemical warfare policy was
also influenced by military assumptions about Allied preparedness and capabilities. A government
system in which secrecy was all-pervasive and camouflaged a plethora of criminal activities (not
least a cover-up of the murder of millions of people in the Holocaust), and in which the sharing
of classified information was heavily censored, facilitated the successful concealment of nerve
agents from Allied intelligence services: but it also produced an uncoordinated and, as the war
progressed, increasingly ineffective system of communication which hampered chemical warfare
planning across the services. As a result the efficient monitoring of health and safety standards was
significantly reduced. Unsupervised and largely detached from centralized government control,
those in charge of German manufacturing plants often turned a blind eye to frequent accidents
or the prolonged incidental exposure of staff to nerve and blistering agents. In the absence of a
uniformly applied regulatory framework, secrecy began to undermine the level of transparency and
accountability with which chemical warfare research was conducted in Nazi Germany.
8 See also Speer’s post-war account; International Military Tribunal (‘IMT’) 1971, 527f; National
Archives and Records Administration (‘NARA’), RG338, Entry 6C, Box 96, U.S. Chemical Warfare Project,
Bericht über Produktion und Einsatz von K-Stoffen, Raumexplosionen und Raumbränden, bearbeitet von
Hermann Ochsner, P-004a.
Nerve Agents
Following the Nazi consolidation of power, the military launched a large-scale rearmament
programme which included the search for new chemical weapons (see Schmaltz 2005; Schmaltz
2006a: 186–209; Schmaltz 2006b: 139–56; Schmaltz 2006c: 171–94; Tucker 2006: 30ff). Unlike
Allied countries, where chemical warfare work was largely centralized, state-sponsored and
integrated into the military command structure to protect national security interests, German
research was predominately decentralized and concentrated in military and partly state-controlled
research institutions (Schmaltz 2005: 192–356). In collaboration with German industry, universities
and the military, the regime pursued research into offensive and defensive chemical weapons
(Schmaltz 2005: 357–432; 480). In this complex, at times fragmented, ideologically driven and
secretive research environment, in which laboratory scientists were informed on a strictly need-to-
know basis, German military authorities played a coordinating role in exploiting research data for
the war effort, and in stimulating an aggressive, highly competitive research culture.
An estimated 450 scientific experts at the Army Gas Protection Laboratory
(Heeresgasschutzlaboratorium, HGL) in Berlin-Spandau, officially tasked with chemical defence,
synthesized thousands of chemical compounds to see whether any of them could be developed
into warfare agents, performed tests on animals and humans, established collaborative networks
and secret contracts with private companies, including IG Farben, conducted extensive literature
reviews, and secured the support of the State Patent Office, yet up until the mid 1930s no major
advances had been made (Klee 1997: 272; Tucker 2006: 30ff).9 Largely unrelated to the allocation
of government resources or the provision of military expertise, the discovery of the first major new
warfare agent since the First World War resulted from research into new synthetic pesticides.
In December 1936, Schrader, a 33-year-old chemist heading the plant protection group at
Bayer, a subsidiary of IG Farben located in Leverkusen, synthesized a new colourless substance,
today known as Tabun, which was part of a programme to develop a non-flammable pesticide
(SIPRI 1971: 71f; Harris and Paxman 1982: 53–67; Schmaltz 2005: 433–79).10 Research with
organophosphorous compounds had been conducted since the mid nineteenth century and
systematically developed by the chemical industry in the early twentieth century. To increase
its toxicity, Schrader and his team synthesized hundreds of analogue compounds, one of which
included the element of cyanide which is poisonous in itself. Having been exposed to the fumes of
the compound, Schrader suffered from ‘extremely unpleasant’ side-effects, severe headache, lack of
breath and poor eyesight, and had to be hospitalized for two weeks (Harris and Paxman 1982: 53f;
Schmaltz 2005: 435f).11 Examined for its insecticidal activity, researchers at Leverkusen quickly
established the high toxicity of the compound; a drop spilled by accident by one of Schrader’s
assistants led to a ‘strong irritation of the cornea, marked dimming of the visual field, and an
9 See also IWM, CIOS, Investigation of Chemical Warfare Installations in the Munsterlager Area,
including Raubkammer, APO 413.
10 See also BIOS, Final Report, 714, Gerhard Schrader, The Development of New Insecticides;
presented by S.A. Mumfort and E.A. Perren, Ministry of Supply, 1945; BIOS, Final Report, No. 542, Item No.
8, Interrogation of Certain German Personalities Connected with Chemical Warfare, 1946. For Schrader’s
biography see The National Archive (‘TNA’), FO 1031/105, curriculum vitae Gerhard Schrader, 30 August
1945; also TNA, FO 1031/239, Gerhard Schrader, No. 13 – Arbeiten aus der Tabun-, Sarin- und Somanreihe,
Dustbin, 8 October 1945, 7.; NARA, RG 319, Entry IRR, Box 200, Gerhard Schrader, The Development of
New Insecticides, Part II: Oranophosphorous Compounds, 30 October 1945, 4.
11 BIOS, Final Report, No. 138, Item No. 8, Interrogation of German CW Medical Personnel, August/
September 1945.
oppressive feeling of tightness in the chest’ (Tucker 2006: 28). For the most part, senior chemists
in both civilian and military establishments accepted that their work involved certain occupational
hazards, but they also expected others, their staff and students especially, to take similar levels of
risk when researching new chemical compounds.
Further tests on warm-blooded animals, including mice, guinea pigs, rabbits, cats, dogs and
apes, demonstrated that the compound, named Le-100, was extremely toxic when injected or
inhaled in minute concentrations. Apes exposed to vapours of Le-100 in a gas chamber gasped for
air, then convulsed and died within less than 30 minutes. This level of toxicity made the substance
unsuitable as a commercial pesticide, yet IG Farben officials alerted the military authorities after
realizing its potential as a chemical warfare agent (Tucker 2006: 29f). The subsequent patent
applications, filed by IG Farben in February and July 1937 and in September 1939, but classified
by the German authorities until the early 1950s, covered the entire class of organophosphorous
compounds, and thus secured IG Farben the property rights for their commercial exploitation as
pesticides for civilian purposes and as nerve agents for the German military (Schmaltz 2005: 438f).
By synthesizing Tabun, Schrader’s team had manufactured a product that could be used for
both peaceful and offensive military means, yet despite the ethical issues arising from such a
discovery, known as the ‘dual-use’ dilemma, neither he or any other chemical scientist from IG
Farben, nor the company as a whole, seems to have expressed any reservations in collaborating
with the German military to establish an offensive chemical warfare capability. It gave the Nazi
regime extra confidence in pursuing its military objectives on the European continent. For the
scientists, it appears that the prospect of additional research resources and investments to advance
their field of expertise had priority over any ethical concerns which they may have had. The Nazi
regime not only lacked the necessary legal and regulatory system which could have governed the
systematic exploitation of civilian science for military objectives, but there was also no normative
ethical framework that may have prevented the misuse of chemical discoveries for hostile purposes.
Tests with Tabun-filled shells at the Army Proving Ground (Heeresversuchsstelle) in
Raubkammer, near Münster, were immediately carried out to ensure that the German army would
be ready to employ the agent in any future war (Tucker 2006: 33; Schmaltz 2005: 441). Recalling
some of the animal tests after the war, the Chief of the German Chemical Troops (Nebeltruppe),
Herman Ochsner, noted: ‘Convulsions after a few minutes; death often occurs within ten
minutes; [agent shows] immediate effect’ (Schmaltz 2005: 441). At the end of October 1937, in a
memorandum submitted to the Army General Staff, Ochsner argued for research and development
into a new generation of chemical warfare agents. Given that enemy forces were no longer
unprotected against poison gases, and since most of the known warfare agents could be detected by
their odour, it was necessary to manufacture agents which had ‘little or no odour, caused no sensory
irritation, and were so toxic that one or two breaths could kill’ (Tucker 2006: 34f). Although field
trials had highlighted problems in dispersing Tabun into a deadly cloud, Ochsner recommended
it to the military. Difficult to detect, extremely toxic, and able to penetrate through the skin, all
this made Tabun an ideal warfare agent. A week later, on 5 November 1937, Hitler informed his
senior advisors about his plans to expand the German Reich by force, first by preparing Germany
for war against the European powers, possibly as early as 1938, and in a second stage through a
major conflict which had to take advantage of Germany’s military superiority. For the military, the
discovery of Tabun and other deadly nerve agents such as Sarin could not have come at a better
time.12
Accidents and Experiments
On the eve of the Second World War, the German military had formulated ambitious plans to
establish one of the most deadly chemical warfare programmes in the world which required
detailed studies on human subjects under laboratory and real life conditions, some of which
were performed in Nazi concentration camps. Germany’s invasion of Poland in September 1939
marked the transition from military planning to the construction of highly secret pilot plants and
factories for the mass production of chemical warfare agents, especially of mustard gas and Tabun.
After Hitler had instructed the military to ‘prepare for gas warfare’, officials wasted little time in
manufacturing a credible chemical warfare stockpile with an estimated output of 19,000 tons of
mustard gas by the end of 1940 (Schmaltz 2005: 450). In collaboration with IG Farben, the military
also pursued the construction of a plant for the production of Tabun. After having been briefed
about the discovery of a new class of warfare agents, Hitler is said to have expressed his wish to
‘build as soon as possible a plant for the manufacture of the new warfare agent with an output of
1,000 tons per month’ (Schmaltz 2005: 452).
The extreme toxicity of nerve agents exposed those individuals dealing with the substances
in the laboratory, on the test range or in the factory, to considerable health risks, when the agents
accidentally came into contact with their unprotected bodies, contaminated their respirators or
adhered to their clothes and technical equipment. Researchers could even experience adverse
effects from inhaling small quantities of vapours released from contaminated experimental
animals. German scientists knew that nerve agents differed widely in toxicity but were likely to
be ‘lethal when applied to the skin’ or when inhaled in the form of vapours.13 Through animal
experiments, they had established variations in the lethal dosages of Tabun for cats, dogs and apes.
Depending on the concentration (c = concentration) and length of exposure (t = time), data for a
lethal ct of Tabun ranged from 200 to 300 milligrams per cubic metre to 300 to 600 milligrams
per cubic metre (Schmaltz 2005: 455f). Knowing the importance of obtaining comparable data for
lethal dosages of Tabun and Sarin for humans, some scientists studied chemical warfare accidents
as a way of advancing biochemical and physiological knowledge about the agents. Depending on
the kind of exposure, individuals suffered from ‘marked contraction of the pupils, bronchospasm
with respiratory distress, diarrhoea, convulsions, unconsciousness and finally death’.14 Most of
these clinical pictures were observed under controlled conditions in animals but there were also a
number of cases, some of them fatal, in which humans were poisoned by accident.
12 For the discovery of Sarin see Schmaltz 2005: 446ff; Harris and Paxmann 1982: 54, and Tucker 2006:
40 erroneously lists Colonel Rüdiger instead of Ritter as one of the individuals involved in the development
of Sarin; BIOS, Final Report, No. 44, Item No. 8, Examination of various German Scientists, 29 August–1
September 1945; BIOS, Final Report, No. 542, Item No. 8, Interrogation of Certain German Personalities
Connected with Chemical Warfare, 1946. For Ambros see IWM, Nuremberg Documents, NI-6788, Affidavit
Otto Ambros, 1 May 1947.
13 CIOS-Report, Item No. 80, A New Group of War Gases, 23 April 1945.
14 CIOS, Item No. 8, Chemical Warfare Installations in the Munsterlager Area, 23 April–3 June [1945],
6; see also BIOS, Final Report, No. 138, Item No. 8, Interrogation of German CW Medical Personnel, August/
September 1945.
Despite general safety regulations at Dyhernfurth, where parts of the plant were enclosed
in ‘double-glass-lined chambers with pressure air circulating between’, neither the Nazi regime
nor the IG Farben conglomerate introduced occupational exposure limits or routine medical
examinations to protect plant workers from the short- and long-term effects of nerve gas poisoning.
Germany’s chemical warfare plants also lacked a robust system to monitor potential health risks
and major incidents, as was standard practice in Britain where serious accidents or explosions had
to be immediately reported to military headquarters.15 In general, experts believed that there was
an ‘inevitable’ risk to the incidental exposure of small quantities of toxic gases in laboratories and
production plants, yet they underestimated the cumulative effects of nerve agents. As a result,
operators and mechanics, wearing full protective clothing and respirators, suffered from chemical
warfare injuries which indirectly contributed to existing knowledge about the agents. Due to
leaking rubber seals, workers were constantly exposed to small amounts of nerve agents which
over time led to serious medical complications and in some cases death.
Officials later conceded that there had been ten accidental deaths between May 1942, when mass
production of Tabun began, and the end of the war. These were probably the first human beings
ever to die of nerve gas poisoning.16 Some of the few surviving records highlight the enormous
hazards to which staff in chemical warfare plants had been exposed. Wilhelm Kleinhans, for one,
an IG chemist working at Dyhernfurth until 1945, later testified about an accident in which four
pipe fitters were killed by Tabun-leaking pipes: ‘These workmen had died in convulsions before
the rubber suits could be torn off’.17 In another terrible incident, five plant workers were killed, and
two seriously injured, after their faces had been exposed to large quantities of liquid Tabun: ‘They
became giddy, vomited, and so then removed their respirators thus inhaling more of the gas. On
examination they were all unconscious … had a feeble pulse, marked nasal discharge, contracted
pupils, asthmatic type of breathing, and smelled strongly of flowers’.18 Although the attending
medical officer immediately injected an atropine sulphate and sympotal solution intramuscularly,
and for the more severe cases intravenously, and although artificial respiration, heart massage and
oxygen masks were applied, only two of the men survived. An autopsy performed at the Military
Medical Academy in Berlin found the lungs and brains of the dead men to be heavily congested.19
During the war, the industry also employed prisoners as well as forced and slave labourers
who worked under appalling conditions and with almost no access to medical facilities. Often
their human rights and dignity was violated; medical ethics principles of beneficence and non-
maleficence frequently ignored. After the summer of 1943, Dyhernfurth used prisoners from
Dyhernfurth I, a subsidiary camp of the Gross-Rosen concentration camp (Schmaltz 2005: 456;
Sprenger 1996: 242; Groehler 1989: 246). One-time prisoner Mikolaj Koroloko recalled that he
and his fellow inmates, despite wearing protective clothing, often suffered from toxic poisoning
15 It is not entirely clear, though, whether Britain introduced its safety procedures before, during or after
the Second World War; see University of Kent, Porton Archive, Maddison Inquest (MI), Folder 2A/I, 281–4;
Procedure in Connection with Reporting Accidents to Headquarters, December 1952.
16 BIOS, Final Report, No. 782 (Interrogation Report No. 291), Item No. 8, Interrogation of Professor
Ferdinand Flury and Dr Wolfgang Wirth on the Toxicology of Chemical Warfare Agents (no date); see also
BIOS, Final Report, No. 41, Item No. 8, Interrogation of German CW Personnel at Heidelberg and Frankfurt
(no date); see also Klee 1997: 277.
17 CIOS, Report No. 30, Chemical Warfare – I.G. Farbenindustrie A.G., Frankfurt/Main, c.April 1945;
also Harris and Paxman 1982: 57.
6; Harris and Paxman 1982: 57; also Tucker 2006: 48.
19 Ibid., 7; also Tucker 2006: 48.
when filling artillery shells and aerial bombs with chemical agents at Dyhernfurth: ‘The pupils
became smaller, we lost our ability to see over a certain period and mucus was running from our
noses’ (Schmaltz 2005: 456). At another facility in Gendorf, which manufactured mustard gas,
technicians were likewise exposed to serious health risks. According to a post-war report, ‘a good
deal of non-quantitative data, arising from accidental exposure of the workers concerned, must
have been available even in 1939’.20
Given the pressing need for greater scientific understanding of the agents, Nazi officials seem
to have given tacit approval for such accidents to occur in order to study their effects on the human
body. Although evidence about the systematic exploitation of accidents for experimental purposes
may be circumstantial, there is little to suggest that the regime was concerned about preventing
such accidents from happening, or that it went to any length to prevent them. Except for providing
extra rations of milk and fatty foods to the workforce to improve resistance against Tabun vapours,
the authorities did little to reduce the risks involved in working at Dyhernfurth: ‘All members of
the staff working in the Dyhernfurth plant were never free at one time from the effects of Tabun;
some of the members were labouring to a greater or lesser degree under the influence’.21 For a man
like Karl Brandt, Hitler’s doctor, the enormous health risks to the workers at Dyhernfurth were all
too apparent. Since the outbreak of war, Brandt’s meteoric rise to power was accompanied by his
responsibility for, and involvement in the systematic murder of tens of thousands of handicapped
children and adults in the Nazi ‘euthanasia’ programme (Schmidt 2007a, 117–72). Appointed to
General Commissioner for Health and Sanitation in 1942, he controlled the majority of the German
health care system. In the summer of 1944, shortly before his promotion to Reich Commissioner,
he witnessed cases of Tabun poisoning during an inspection tour of Dyhernfurth and Gendorf.22
At Raubkammer, researchers also conducted various experiments on animals and human
subjects: ‘There was extensive testing of German CW on human volunteers – experiments to test
skin decontamination agents, the miotic action of Tabun, possible protective suits, eye, nose and
throat irritants’.23 With up to 800 employees working at Raubkammer during the war, the scientists
enjoyed ready-access to a considerable number of test subjects.24 Most of the volunteers were
officers, clerks, employees and labourers, possibly even forced and slave labourers, and sometimes
students from the Army’s Gas Protection Laboratory, who, for a small financial incentive, took
part in nerve agent tests, sometimes wearing as little as rubber shorts to protect their genitals.25
Men crawled over contaminated grounds without wearing any form of protective garments, lay in
shallow trenches for up to an hour downwind, or were exposed to toxic agents in a gas chamber.
In some instances chemical agents were fired into the woods: ‘Human subject [then] entered the
Ferdinand Flury and Dr Wolfgang Wirth on the Toxicology of Chemical Warfare Agents (no date); see also
Schmaltz 2005: 455ff.
21 CIOS, Report No. 30, Chemical Warfare – I.G. Farbenindustrie A.G., Frankfurt/Main, c.April 1945;
also Harris and Paxman 1982: 57.
22 BIOS, Final Report, No. 542, Item No. 8, Interrogation of Certain German Personalities Connected
with Chemical Warfare, 1946: 24; see also Schmidt 2007a: 291f.
September 1945; CIOS, Item No. 8, Chemical Warfare Installations in the Munsterlager Area, 23 April–3
June [1945], 6.
1.
September 1945.
area to see how long they could remain there without adjusting their respirators’.26 Over a ten-year
period, from 1935 to 1945, scientists at Raubkammer performed a total of 174 aircraft weapons
trials with different types of air- or ground-bursting bombs, cluster bombs, and spraying devices
which in 52 cases involved the large-scale use of Tabun. Only a single aircraft trial was conducted
with Sarin which turned out to be three times more effective than phosgene.27 In addition, from
1940 to 1945, a total of 109 ground weapon trials with Sarin, Tabun, Gelan II, Phosgene, HCN,
CNC1, HN3 and mustard gas were carried out.28
Investigators later discovered a pathological museum which, among other artefacts, exhibited
the organs of seven cats that had been gassed with Tabun. Photographic albums containing some
4,000 images, some of them in colour, systematically documented almost all of Raubkammer’s
activities, including the controlled application of mustard gas to the skin of human subjects, and
also the case history of over 200 accidents, some apparently fatal, from mustard gas exposure.
Somewhat uncritically, the investigators remarked: ‘Due to the gruesome appearance of some
half-dozen fatal cases, the suggestion has been made that political prisoners might have been
used in these experiments. There was no evidence for such a contention’.29 Yet there was also no
indication that medical ethics standards had been upheld. On the contrary, there was sufficient
evidence to suggest that non-therapeutic experiments on humans had led to considerable physical
and psychological harm at Raubkammer (Klee 1997: 274f).
In general, the chemical warfare field saw the expansion of research to develop diagnostic and
therapeutic methods for phosgene and mustard gas poisoning, and an intensification of experimental
work on nerve agents. Under the directorship of Wolfgang Wirth, and in total secrecy, scientists
from the Institute for Pharmacology and Toxicology at the Military Medical Academy conducted
animal and human experiments, sometimes on themselves, to advance existing physiological
knowledge of nerve gas poisoning and develop possible antidotes, for example through the use of
atropine.30 They also performed experiments with different types of mustard gas for hot and cold
climates and with specially developed rubber pants to protect the arm pits and genitals, performed
decontamination trials with various ointments, or studied blood samples obtained from accidents
(Schmaltz 2005: 457). To assess the miotic effects of nerve agents, Wirth undertook a number of
self-experiments and on medical officers, who apparently volunteered for the tests, perhaps to
avoid being drafted to the front line (Klee 1997: 270f; Schmaltz 2005: 457).31 Wirth also oversaw
a collaborative, highly competitive network of pharmacologists, some of whom were seconded
to the Military Medical Academy, who included Hans Gremels from the university of Marburg,
Ludwig Lendle from the university of Leipzig, and Werner Koll from the University of Münster.
By performing a range of tests, they were able to establish the biochemical properties of nerve
4.
27 Although the substance itself was considerably more poisonous than phosgene, its toxicity could not
directly be translated into chemical weapons.
6.
29 Ibid., 9. Harris and Paxmann have taken the quote out of context by deleting the last sentence which
suggests that Allied investigators felt that there was not sufficient evidence to back up the claim that political
prisoners had been used in the experiments; Harris and Paxmann 1982: 60.
September 1945; also Tucker 2006: 36ff.
31 According to Wirth, the tests involved small quantities of Tabun (0.1–1.0 mg cbm), yet in the absence
of other evidence it is difficult know whether his post-war recollections are accurate; Schmaltz 2005: 457.
agents as ‘inhibitors of cholinesterase’, an enzyme which is of fundamental importance for the

functioning of the peripheral and central nervous system (Schmaltz 2005: 459–79).
Beginning in 1936, human research with known chemical warfare and nerve agents were also
performed by Colonel Welde and Captain Kroeber at the Army’s Gas Protection Laboratory in
Berlin-Spandau. In some cases, the subjects experienced chemical warfare tests as deeply traumatic
events which had a detrimental effect on their personality, leaving them with feelings of isolation
and depression for years to come (Klee 1997: 274f). Post-war testimonies also suggest that some
of the experiments were done on prisoners who, having been sentenced to death, were given an
opportunity to redeem themselves by taking part in the trials (Klee 1997: 272ff).32 Attempting to
shift responsibility away from himself, Wirth alleged that ‘these special experiments’ with Tabun
were exclusively been conducted at Spandau, yet evidence seems to suggest that experiments with
nerve agents were performed in both places. In one case, a metalworker, wearing a protective
rubber suit, suffered a fatal accident in the course of repair work undertaken on one of the pipes
when Tabun leaked directly onto the filter of his gas mask (Schmaltz 2005: 456f). Reports later
confirmed the occurrence of accidental cases of Sarin poisoning at the laboratory.33 In April 1944,
after having ‘witnessed one of Wirth’s tests with Sarin’, Brandt indirectly confirmed ongoing
experiments on humans during a meeting with senior representative of IG Farben. Although
Brandt only referred to ‘guinea pigs’, it was apparent from the manner in which he described the
experiments that ‘human beings had been the subjects, not animals’.34
In the same year, the Military Medical Academy published a photographic edition documenting
the clinical symptoms and pathology of chemical warfare injuries. Dressed in stripped prison
garments, some of the subjects are likely to have been political prisoners. Other images showed
the effects of mustard gas on the body and lungs of people who had died. None of the injured men
appeared to have consented to the tests and some of the material appeared to suggest that crimes
might have been committed. Seemingly conscious that the context in which the images had been
made raised serious ethical concern, especially in relation to the voluntary consent principle, one
senior Nazi official noted: ‘It is not permitted to use the images for any other purpose than as
illustration in lectures’ (Klee 1997: 275f).35
German researchers also performed a range of tests with different animals to assess the vesicant
power of liquid chemical warfare agents on guinea pigs, rabbits, mice, cats and dogs. Whereas in
Britain experimental tests on dogs were generally banned under existing laws and regulations,
scientists in Nazi Germany considered tests with dogs comparable with humans, especially when
testing different substances on the skin between the dog’s toes.36 Trials involved rabbits whose
belly had been shaved, and then brought into contact with different types of contaminated clothing;
shaved guinea pigs exposed to aircraft spraying trials, and caged cats positioned inside tanks to
tests the extent to which chemical warfare grenades hurled against the vehicle would infiltrate
32 See also the exhibition ‘Sperrgebiet Zitadelle’ which Gebhard Schultz organized in 1995.
6.
34 Field Information Agency, Technical (‘FIAT’), Control Commission for Germany (B.E.), Report
on Chemical Warfare, based on Interrogation and written Reports of Jürgen E. von Klenck, Speer, and Dr E.
Mohrhardt, 6 December 1945: 21; see also Schmidt 2007a: 290.
35 See also Bundesarchiv-Militärarchiv (‘BA-MA’), RHD 43/56, Kampfstoffverletzungen.
Bildsammlung zur Klinik und Pathologie der Verletzungen durch chemische Kampfstoffe und durch andere
militärisch wichtige Stoffe.
3.
the commander’s position in the turret or the gunner’s seat. Special arrangements were made to
acclimatize the animals before the trials commenced to protect them from the cold. At the Army
Gas Protection Laboratory, animals placed in cages in a gas chamber were exposed to mustard gas
and other agents.
Upon discovering that most of the German research confirmed their own findings, which they
had obtained in similar trials, Allied scientists highlighted Germany’s ‘unrealistic approach’ to field
assessments with toxic agents, yet refrained from assessing German research ethics. For Allied
investigators from Porton the applied methodologies were subject to considerable inaccuracies,
misleading observations and gross factual errors. For them, it was not clear why German scientists
had not exposed human subjects directly to aircraft spray with chemical agents, why no ‘objective
tests’ had been used in assessing harassing agents, and why humans had not been placed inside
tanks to test the effects of such substances. Germany had admittedly invested considerable
resources in chemical warfare research, had employed twice as many research staff compared to
Britain, and had been able to accommodate an expansion of its chemical warfare programme, but
the overall research output appeared to be questionable. In conclusion, the investigators remarked:
‘The outstanding achievement of German chemical warfare research has undoubtedly been the
discovery of Tabun, Sarin and Soman. Apart from this, however, there was surprising lack of
originality in their work, and important phases of CW, such as micrometeorology, the vapour effect
from mustard ground contamination and ointments were given small or belated attention’.37
Although not impossible, there is no evidence to suggest that military experts engaging in
chemical warfare research discussed or implemented the ‘Regulations Concerning New Therapy
and Human Experimentation’ which had been formulated by the Reich Ministry of the Interior in
1931 (Sass 1983: 99–111; Grodin 1992: 130ff). In § 12, concerned with non-therapeutic research,
the Regulations stated, among others, that ‘experimentation shall be prohibited in all cases where
consent has not been given’. It also stipulated that human experiments should be avoided if they
could be replaced by animal studies. However, since the Regulations were directed specifically, if
not exclusively, to physicians in full-time hospital employment, who were asked to sign them upon
taking up their position, they were not necessarily seen to be applicable to scientists or doctors
working in other institutional contexts.38 As a result, military researchers, including those trained as
doctors, were either unaware of the existence of the guidelines or decided to ignore them. Shielded
from the interferences of civilian regulatory bodies, Nazi scientists were given access to substantial
resources and personnel, yet their concerns for the well-being of human subjects was limited at
best; rarely, if ever, did they engage in debates about issues of informed consent, beneficence and
care. Under wartime conditions, medical ethics came second to what many perceived to be a fight
for national survival.
Concentration Camps
Experiments on camp inmates, including those with chemical and biological warfare agents and
poisoned bullets, coincided with a progressively worsening military situation which affected tens
of thousands of German soldiers, and undermined morale among the civilian population (Annas
and Grodin 1992 83f; Schmidt 2007a: 255–96). As Germany was fighting a titanic struggle for
survival on the European continent and beyond, members of the German military were suffering
37 Ibid., 2ff; also Harris and Paxman 1982: 57f.

38 I am grateful to Professor Christian Bonah for sharing his information about the intended ‘target
group’ of the 1931 Regulations.
in their thousands from severe battle wounds, gas gangrene, malnutrition, frostbite, hypothermia,
malaria, typhus and other infectious diseases. At home, Allied bombing raids with high explosives
and incendiary bombs caused severe burns and multiple injuries among the civilian population.
Sensing military defeat after the catastrophe of Stalingrad, the Nazi leadership called for ever more
radical measures and sacrifices from all sections of society which provided the necessary rationale
for experiments on camp inmates on an unimaginable scale (Schmidt 2004; Schmidt 2007a).
After the war, Allied intelligence attempted to establish the extent to which German scientists
had conducted chemical warfare experiments on camp inmates. From early on, investigators
expressed ‘serious doubts’ whether the regime would have agreed to the allocation of resources
and personnel during the war for the mass production of a novel agent ‘which had not been shown
unequivocally to be capable of killing men’.39 Given that the military had classified Tabun as a
‘quick acting lethal agent’, it appeared reasonable to assume that German scientists had exploited
the opportunity presented to them in concentration camps to ‘determine with some degree of
accuracy the lethal dosages for men of various war gases’.40 Researchers readily admitted the
importance of obtaining such data for the military, yet when it was put to them that their ‘less
squeamish’ colleagues in Himmler’s SS might have performed such experiments on camp inmates,
they ‘flatly denied all knowledge of such killings ever having been carried out in Germany at all,
until the end of the war when it was announced by the Allied Nations’.41 Allied investigators were
not impressed: ‘The profession of such complete ignorance, advanced with wholly unnecessary
vehemence, left us with some doubts regarding their veracity’.42
Overall, the evidence suggests that camp experiments were conducted with various well-
known chemical agents, with phosgene and mustard gas, in particular, but not, so it seems, with
the new class of top secret nerve agents which were strictly controlled and overseen by a relatively
small group of experts.43 The availability of a sufficient number of volunteers in military, industrial
and other well-equipped research laboratories, together with the findings gained from accidental
exposures, animal and self-experiments, is likely to have made the recourse to human experiments
in concentration camps, under the auspices of the SS, on malnourished camp inmates and prisoners
of war, against international law and under poor conditions, an unattractive proposition for the
majority of German scientists. For them, it was more important to establish the precise properties
of nerve agents to develop protective measures and potential antidotes.
Chemical warfare experiments with phosgene and mustard gas, commonly known as Lost,44
were largely conducted at Sachsenhausen and Natzweiler camps.45 Believing that experiments on
man were the most expeditious and efficient way of obtaining data for chemical warfare injuries,
and how to treat them, German researchers generally subjected non-German nationals to the
experiments, Poles and Russians, but also Jews and gypsies. Intelligence information suggesting
Ferdinand Flury and Dr Wolfgang Wirth on the Toxicology of Chemical Warfare Agents (no date).
September 1945.
41 Ibid.
42 Ibid.
43 Harris and Paxmann allege that nerve agents ‘were almost certainly tested on the inmates of
concentration camps’ but do not provide any evidence to back up their claim; Harris and Paxmann 1982: 61.
44 The name ‘Lost’ derived from the German scientists Lommel and Steinkop who had developed a
method for the mass manufacture of the agent during the First World War.
45 Nuremberg Doctors’ Trial Documents (‘NDT-Documents’), frame 3/2641; also Schmidt 2007a:
284–96.
the stockpiling of large quantities of chemical warfare agents at Tunis and Dakar by Allied forces,
to be used for a large-scale attack against the Axis powers, added further pressure to expedite the
development of effective therapeutic methods against poison gases.
Since the summer of 1942, researchers such as August Hirt and Otto Bickenbach from the
University of Strasbourg collaborated with the SS Research Foundation, Ancestral Heritage,
SS-Ahnenerbe for short, and with the Pathology and Anatomy Departments of the University,
in performing animal and human experiments with phosgene and mustard gas at Natzweiler
concentration camp (Schmidt 2007a: 293–5). Joint experiments at Dachau concentration camp
with experts from the Strasbourg Institute for Physiological Chemistry and the Entomological
Institute were also planned (Klee 1997: 361f). Early in 1943, after initial problems had been
overcome, Hirt reported about his experiments in which inmates were fed Vitamin-A to protect
them against mustard gas exposure: ‘Our L[ost]-Experiments at Natzweiler are now at last making
good progress. After three fatalities, the applied therapy is producing a good healing process’ (Klee
1997: 364f). Encouraged by the results, and oblivious to the lives’ lost, the SS-Ahnenerbe proposed
a large-scale follow-up experiment on hundreds of prisoners.
Between November 1942 and autumn 1944, according to estimates by Allied prosecutors,
Hirt and his fellow scientists conducted poison gas experiments on approximately 220 inmates of
Russian, Polish, Czech and German nationality at Natzweiler camp, of whom 50 reportedly died.46
In some cases the bodies of experimental subjects were exposed to liquid mustard gas; in others
prisoners were forced to inhale the agent in a gas chamber which led to a number of deaths from
suffocation.47 Ferdinand Holl, who in 1940 had been arrested in Bordeaux by the secret police
(Gestapo), and had been transferred first to Buchenwald and then to Natzweiler, where he worked
as one of the medical orderlies in the infirmary (Revier), testified about the involuntary, degrading
and often deadly experiments. After rumours about experiments in other camps had spread among
the prisoner population, not a single volunteer had come forward. Arbitrarily selected, naked and
fearing for their lives, prisoners had to report to the laboratory where Holl, under the direction
of Karl Wimmer, a staff physician of the German Air Force, and Hirt’s principal collaborator,
administered a mustard gas solution to their arms which produced severe burns and excruciatingly
painful injuries; vapours released from the gas produced additional medical complications such
as blindness. A report written by Hirt and Wimmer only referred to ‘heavy, medium and light
wounds’.48 Another witness, the internee Fritz Leo, whose alleged involvement in medical killings
weakens his credibility, recalled that ‘there were deep areas of necrosis on the forearms, and
also burns on the side of the body where the contaminated arms had come into contact. The men
also suffered a severe conjunctivitis and about three days later bronchitis, which developed into
bronchopneumonia’.49 Treated with dressings of Rivanol and other ointments made of boric acid
or zinc oxide, the wounds of the subjects were photographed on a daily basis yet after five or six
days, despite constant medical attention, the first fatalities occurred (Klee 1997: 366; Mitscherlich
and Mielke 1962: 168f). Holl counted a total of 7 deaths in a group of 30 subjects who had been
thus exposed to chemical agents.50 Autopsies performed by Wimmer revealed the internal damage
46 NDT-Documents, frame 3/2914f; also frames 3/1094–1097; Klee 1997, 366; Schmidt 2007a: 293.
Other sources suggest a total number of approximately 150 experimental subjects of whom about 40 died;
also Mitscherlich and Mielke 1962: 170f.
47 NDT-Documents, frames 3/1094–97; Mitscherlich and Mielke 1962: 170.
48 NDT-Documents, frames 3/2991.
7f; NDT-Documents, frames 3/2460–2461.
50 NDT-Documents, frames 3/1095.
poison gases could cause; in all cases, the men has suffered from a purulent bronchopneumonia.
Highly unethical and criminal, the experiments did little more than confirm existing knowledge
about known chemical agents.
The Nazi medical establishment was well informed about these and other medical experiments
in support of the German war effort. By the end of 1943, Professor Picker from the University of
Strasbourg conducted another series of chemical warfare experiments which caught the attention
of Brandt. Having had their chests X-rayed, ten prisoners, all of whom were classified as ‘habitual
criminals’, were administered Urotropin in the form of tablets or injections before being placed in a
gas chamber, two from each group at a time, where they were exposed to phosgene for two to three
minutes. To assess the extent to which Urotropin could act as a prophylactic, the pairs were exposed
to increasingly higher doses of the agent and were given proportionally higher doses of the drug.
Four days after the exposure, the men were suffering from breathing difficulties and headache,
low blood pressure, raised pulse rate, higher temperature, and increased respiration; another X-ray
showed that they had developed a pulmonary oedema, a swelling and fluid accumulation in the
lungs which impairs breathing and can lead to death from respiratory failure. A fortnight later, all
of the men had recovered after their chests showed no clinical symptoms; a couple of weeks later
they were back to work. According to Leo, who had administered the drugs to the prisoners, high-
ranking SS officers, including Brandt, subsequently conducted an inspection tour of the recovered
experimental subjects in the camp. Allied investigators, though, were not overly concerned with
military medical ethics; their primary objectives were the spoils of war: ‘The exact data of the
above experiments would be most valuable. We believe that Professors Wimmer and Picker should
be interviewed and this information obtained’.51 Whereas the use of data originating from the
Dachau experiments led to public debate and some considerable embarrassment for the scientific
community in the 1980s, much less is known about the extent to which Nazi chemical warfare
research was exploited in developing Allied chemical weapons’ programmes after the war.
In March 1944, Brandt was personally informed about the ongoing Natzweiler experiments,
and visited the camp a month later, yet subsequently alleged that he had not realized that the
work involved human subjects: ‘I was as Hirt’s place at the end of April 1944, and I did not gain
the impression that we were concerned with experiments on some concentration camp inmates
carried [out] in camps’.52 Allied prosecutors further undermined his credibility with evidence of
yet another set of experiments which he had sponsored. In the summer of 1944, Bickenbach and
his assistants, Helmut Rühl and Fritz Letz, performed criminal chemical warfare experiments ‘on
40 prisoners on the prophylactic effect of hexamethylentetramin [urotropin] in cases of phosgene
poisoning’ at Natzweiler. Most of the subjects were probably Russian prisoners of war. Although
four humans had been killed, the experiments had not yielded any conclusive results.53 Conscious
of breaching known standards of medical ethics by taking excessive risks with the lives of his
subjects, Bickenbach later defended his actions by referring to the need to protect the German
people against the dangers of gas warfare: ‘I thought it my duty to do everything to ensure this
protection and to save the lives of thousands of Germans, especially the children and women’.54
The emergency of war, with its overriding ideological and military objectives, required improved
protection for the general population which justified, in the eyes of Bickenbach and his fellow
scientists, unethical experiments on humans. In their world view, the lives of others, of men, women
8.
52 NDT-Records, frame 2/2690.
53 NDT-Documents, frames 3/2110–2130, here frame 3/2128.
54 NDT-Documents, frame 3/1836; also Mitscherlich and Mielke 1962: 171f.
and children with different cultural and religious traditions, had become meaningless; imprisoned
behind barbed wire, sentenced to death, and stripped of their rights and human dignity, they had
become dispensable, useful as experimental subjects to support the war effort, perhaps, but not
more. Their lives had lost all intrinsic value.
Conclusion
Although judged as highly unethical and criminal by the Nuremberg judges, there were some Nazi
experiments which caught the imagination of British military officials tasked with developing new
types of chemical weapons (Schmidt 2004; Schmidt 2007a). A report signed by the SS physician
Joachim Mrugowsky in 1944, on trial at Nuremberg on charges of war crimes, showed how five
Russian prisoners from the Sachsenhausen camp had been shot through their left thigh with poison
bullets containing aconitine nitrate. Whereas the bullets passed right through the legs of two of the
victims, who survived but were then shot in the neck, the report documented in horrific detail the two-
hour-long process of dying of the three remaining victims (Klee 1997: 173–6).55 In August 1947, as
the Nazi doctors were sentenced at Nuremberg, British experts considered the possibility of ‘using
certain special chemical warfare and biological warfare agents as a means of imparting extreme
toxicity to bullets, shell or bomb fragments’.56 Since it was not certain whether such weapons
would have ‘enhanced operational value’, and could ever be produced, senior officials were asked
to consider two hypothetical cases before a research programme could be recommended, one in
which a poisonous bullet or shell fragment, if it penetrated through the skin, would kill a man
within 24 hours, which basically meant ‘injecting a poison subcutaneously’, another in which an
agent would cause a man ‘grave illness, probably ending fatally in the course of one or two weeks’.
The latter case was based on the assumption that medical experts would find it difficult to establish
whether the wounds had been caused by poison bullets or specially treated fragments, and therefore
had to work on the basis ‘that all wounds of this type were potentially lethal’. Attempting to restrict
discussion of this highly classified research to the smallest of circles, senior officials were advised
to treat the matter as ‘rather unusually secret’.57 The War Office was, on the whole, supportive of
the idea, arguing that there appeared to be a ‘definite operational value’ in manufacturing poison
bullets and shell fragments since the enemy medical services would have to treat all wounds ‘as
though they were lethal’.58 Although such weapons were not going to increase casualty numbers,
one official noted, their ‘moral affect’ on enemy troops was likely to be considerable: ‘On the
whole I think toxic bullets might well be a useful adjunct to our armoury, provided that production
problems are completely satisfactorily solved. In other words considerable research is necessary’.59
The moral ambiguity and inconsistency in prosecuting German physicians for alleged war crimes
with poison bullets, on the one hand, and initiating research into strikingly similar weapons of
war at the same time, on the other, seems to have been of little concern to Whitehall officials. In
responding to rising Cold War tensions, military experts felt under pressure to study, in complete
secrecy and outside any normative ethical framework, new weapons of war which had hitherto
been classed as immoral and illegal under international law.
55 See also TNA, WO 195/9678, Chemical Defence Advisory Board, German C.W. Experiments on
Human Beings, Major D.C. Evans, 12 January 1948.
56 TNA, WO32/20606, Scientific Adviser to the Army Council to Brigadier G.H.C. Pennycook,
D.S.W.V., War Office, 19 August 1947.
57 Ibid.
58 TNA, WO32/20606, Handwritten notes on ‘Toxic Fragments’, 22 August 1947.
59 Ibid.
What the historical record seems to suggest then, is that medical ethics, far from being applied
equally, has in the past evolved inconsistently and at times unpredictably. It highlights that civilian
research ethics has been, and is, fundamentally different from military medical ethics, particularly
in those research facilities in which national security considerations were given priority over
humanitarian obligations. During times of heightened international tensions and armed conflict,
scientists and officials were more likely to take greater risks with the lives of experimental subjects
in order to expedite the development of modern weaponry and suspend, for the time being, key
bioethical principles of informed consent and non-maleficence (to do no harm). The inherent
tension between military necessity and the protection of human subjects in non-therapeutic trials
was all too often decided in favour of the former, thus lending support to the argument that ‘war
makes actions wholly impermissible during normal times appear more acceptable – especially to
physicians already inclined to view the interests of society as more important than those of the
individual’ (Weiss 2010: 173). As a result, physicians-scientists, who today are morally prohibited
from taking part in offensive chemical weapons research, as stipulated by the WMA, took a leading
role in shaping the nature of chemical warfare experiments. Their loyalty as professional soldiers
to the military and the regime often conflicted with their Hippocratic duty to protect the health
of patient-subjects. In the absence of internationally accepted ethics standards governing human
experiments, and conscious of the apparent ambiguity of national ethics rules, military medical
experts felt that the exigencies of war justified their ethical decision-making. In this, the safety
of human subjects was generally of secondary concern; their rights to life, self-determination and
dignity at times severely curtailed.
Yet this has not been a conventional case study; instead the work has revealed certain limitations
in examining the application of ethical principles in research contexts which are generally
concealed from public scrutiny. In the case of Nazi Germany, the rules and regulations which were
meant to protect one of Germany’s most closely guarded secrets, namely her possession of nerve
agents, also impacted upon research ethics. The efficient monitoring and recording of accidents
and experiments was neither in the national interest, nor were ethical procedures and safeguards
seen to be conducive to the advancement of military science. Scholars are therefore faced with a
series of methodological problems: how does one examine the perception of, and responses to,
ethical dilemmas in the military, for example the exploitation of accidents for research purposes, if
the empirical evidence is incomplete or non-existent, or itself highly classified; how can one gain
insight into the nature of military research ethics without being seen to endanger national security;
how can one be sure that the material one is permitted to see is relevant and representative for
military medical ethics as whole, and not a smokescreen to camouflage ethically more problematic
work. For biomedical ethicists, these are exceedingly difficult issues to tackle. Perhaps the debate
whether research conducted in great secrecy can also be ethical, transparent and accountable
should be turned on its head by exploring the existing regulatory systems within military research
facilities, both in past and present societies, and by recommending, through medical ethics training
and education, constructive changes that are acceptable to military scientists and the authorities
alike (Carrick 2008: 187–98; Carrick et al. 2009; Gross 2010: 458–64). They need to realize that
research performed in an ethically responsible manner is neither lacking in quality nor undermining
national security; rather, it has the added incentive of receiving a ‘clean bill of health’, and thus
broad political support, once scholars can discuss the work more openly, thereby protecting
governments from legal liability and public embarrassment in a world in which financial prudence
and stability is going to have a high priority.
Acknowledgement
The chapter is part of a larger Wellcome Trust-funded project on the history and ethics of biological
and chemical weapons’ research in the twentieth century. I am most grateful to the Wellcome
Trust for its support, and to Don Carrick, Michael L. Gross and an anonymous reviewer for their
constructive comments and suggestions.
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Chapter 15
Institutional Review Board Specialization for
Non-Lethal Weapon Research
Eric N. Erickson Jr
Introduction
Brief Historical Perspective on the Establishment of the Institutional Review Board
The establishment of the International Military Tribunal for Nazi leadership led to a trial known as
United States v Karl Brandt et al.; it was during the ‘Nazi Doctor Trial’ that the conceptual seeds
of research ethics were sown in the 1947 Nuremburg Code (Stephenson and Anderson 2008: 566).
The United States (US) Army promulgated Nuremburg Code principals for research with human
subjects by including them in Army Directive CS-385 published 30 June 1953, which became
Army Regulation 70-25 in 1962. Thereafter, the World Medical Association’s 1964 Declaration
of Helsinki established ethical principles for human experimentation. Later in the US, the passage
of the National Research Act in 1974 established the National Commission for the Protection of
Human Subjects of Biomedical and Behavioural Research, which resulted in completion of The
Belmont Report. The report established the ethical cornerstones of beneficence, justice and respect
for persons in human subject research. In the US, elements of The Belmont Report became codified
in Title 45 Code of Federal Regulation (CFR), Part 46. This regulation required all research
involving human subjects to be reviewed by an Institutional Review Board (IRB) that has the
authority to approve, require modification, or disapprove all human participant research activities
at its respective institution.1
Basic Ethical Principles of IRBs
Independent ethical bodies that review biomedical human participant research, traditionally
termed Ethics Committees (EC) in the European Union (EU) and IRBs in the US use the principles
of beneficence, justice and respect for persons during the review of a research study/protocol.
Beneficence implies that the proposed research has an acceptable risk-benefit profile in order
to be ethically permissible. Justice demands that appropriate populations are fairly selected to
avoid inequity and targeting of vulnerable populations. Finally, respect for persons requires that
research participants be given relevant information about the research in a method/manner that
can be understood. Using the aforementioned principles, the EC/IRB must ensure that research
participants are selected fairly, understand research risks, and are empowered to make a judgement
about their decisions to participate and withdrawal at any point during the course of a study.
1 45 Code of Federal Regulation 46, ‘Criteria for Approval of IRB Research’, §111.
Transition of the Biomedical IRB Framework to Non-lethal Weapon IRB Framework
The preponderance of EC/IRB review and risk considerations has been focused on biomedical
research activities. Research ethics as a discipline and in practice is continually advancing in the
biomedical community, allowing it to keep pace with biomedical advancements. Further, biomedical
IRBs have had the opportunity to mature and gain resources, including journals, databases, archives
and consultants. This is in stark contrast to the non-biomedical arena. The resources available to
nascent IRBs reviewing Non-lethal Weapons (NLWs) have been limited. There are no journals,
databases, archives for the NLW IRB to review and/or consult. Furthermore, a common ethical and
risk determination framework for the development, study, and review of NLWs that do not directly
benefit the subject, does not exist. In turn, rapid advancements in materiel and technologies present
both novel and challenging ethical dilemmas as well as unique risk determinations for an EC/ IRB
that reviews NLW research outside the biomedical arena.
For many types of NLW research, new knowledge can only be gained if research participants are
exposed to a certain degree of risk. The potential harm and risks involved may vary considerably
depending on the technological domain. However, there is no standard risk-benefit assessment to
reference; the EC/IRB can assess the risks in several ways that are not standardized across research
fields. The expertise, experience, and composition of the IRB can have a profound impact on the
review process. Specifically, two different ECs/IRBs reviewing the same research study may come
to different conclusions regarding the level of risk and the ethical grounds that support or oppose
the study. For example, a research study that utilizes a technology (non-pharmacological) that
alters or interferes with brain function presents multiple ethical questions related to the degree of
physical, social, and legal risks, as well as confidentiality and privacy issues. The EC/IRB would
employ a method of decision-making to facilitate the resolution of issues within the proposed
research that is both justifiable, and that abides by established guidelines and regulations. In turn,
a determination would be made as to whether or not the merits of the individual protocol and
established ethical principles would allow the study to be approved, approved with modifications
(that is, EC/IRB directed changes to the consent, and/or research protocol), tabled (that is, a rewrite
of the research protocol) or disapproved.
The ethical considerations in the case of a NLW research proposal may need new ethical
principles to be created or current principles may need to be reinterpreted or applied differently. A
series of questions that have yet to be answered satisfactorily are:
1. Are the research risks acceptable, given there are no benefits to a NLW research participant?
2. Do the principles of medical ethics permit medical personnel to participate in the
conceptualization or review of a NLW (Gross 2010: 35)?
3. What knowledge would enable good judgement, facilitate philosophical progress, and
synthesize a workable framework for the review of NLW research protocols?
While there are many more questions than answers, the inquiry of this chapter resides at the
intersection of established human research principles that have traditionally been applied to
biomedical IRBs, and the less explored ethical challenges, risk assessment processes and resource
needs for IRBs that review NLWs.
Institutional Review Board Specialization for Non-Lethal Weapon Research 247
IRB Composition and Function
Criteria for IRB Composition
United States Title 45, Code of Federal Regulation (CFR) 46, and 32 CFR 219 require each IRB
to have at least five members with varying backgrounds to promote complete and adequate review
of research activities conducted by the institution. It also requires the following criteria to be met:
‘(1) Nondiscriminatory efforts must be made to ensure that the IRB does not consist of one sex,
and that no IRB may consist entirely of one profession, (2) There must be one member whose
primary concerns are in scientific areas and at least one member whose primary concerns are in
a non-scientific area, (3) There must be at least one member who is not otherwise affiliated with
the institution and who is not part of the immediate family of a person who is affiliated with the
institution, (4) Members with a conflicting interest in a research study/protocol may not participate
in the IRBs initial or continuing review, except to provide information requested by the IRB and,
(5) An IRB may, in its discretion, invite individuals with competence in special areas to assist in the
review of issues which require expertise beyond or in addition to that available on the IRB; these
individuals may not vote with the IRB’.2,3 The Department of Defense (DoD) has the additional
requirement that the IRB must consist of members who are federal employees, military members,
individuals covered by sections 3371–3376 of Title 5, USC or individuals appointed as experts or
consultants.4
Criteria for IRB Approval of Research
The IRB is charged with and has the authority to approve, require modification or disapprove
all research activities at its respective institution.5 According to Title 45, CFR 46, in order for
an IRB to approve a research proposal the following criteria must be met: ‘(1) Risk to subjects
are minimized, (2) Risks to subjects are reasonable in relation to anticipated benefits, if any, to
the subjects, and the importance of the knowledge that may reasonably be expected to result,
(3) Selection of subjects is equitable, (4) Informed consent will be sought from each prospective
subject, (5) Informed consent will be appropriately documented, (6) When appropriate, the
research plan makes adequate provisions for the monitoring of the data collected to ensure safety
of subjects, (7) When appropriate, there are adequate provisions to protect the privacy of subjects
and maintain the confidentiality of data.’6 In addition to possessing the professional competence
necessary to review specific research activities, IRBs are required to ascertain the acceptability
of proposed research in terms of institutional commitments and regulations, applicable law, and
standards of professional conduct and practice.7
2 45 Code of Federal Regulation 46, ‘IRB Membership’, §107.

3 32 Code of Federal Regulation 219, ‘Protection of Human Subjects’, §107.
4 Department of Defense Instruction (DODI) 3216.02, ‘Protection of Human Subjects and Adherence
to Ethical Standards in DoD Supported Research’.
5 45 Code of Federal Regulation 46, ‘IRB Review of Research’, §109.
6 45 Code of Federal Regulation 46, ‘Criteria for Approval of IRB Research’, §111.
7 32 Code of Federal Regulation 219, ‘Protection of Human Subjects’, §107.
Basic History and Increased Use of Non-Lethal Weapons
Non-lethal weapons complement and extend the military and law enforcement communities’
options beyond the use of traditional lethal weapons for crisis and contingency operations/
responses. NLWs provide the ability to apply force proportional to the threat. They allow the
selection of a force, allowing a means to discriminate in the application of force. Further, their use
has the potential to mitigate destruction, and reduce the societal burden associated with death and
injury. Moreover, it would seem that the capabilities inherent in NLW, if used appropriately and
discriminately, could thwart aggression and promote stability.
While countering the irregular warfare (IW) tactics of today, incorrect or displaced use of
force may create tensions in the local community. This tension might influence the willingness
of informants to provide vital information, and/or local leader’s disposition to allow the use of
key buildings or strategic operational areas. The strategy to mitigate disproportionate use of force
resulted in the conceptualization and development of NLW. During Operation United Shield, United
States Marine Corps (USMC) Lieutenant General Anthony Zinni investigated the use of NLW for
the final withdrawal of UN forces from Somalia in 1995. A year later, the Department of Defense
published directive 3000.3, Policy for Nonlethal Weapons, which defined NLWs as ‘weapons that
are explicitly designed and primarily employed so as to incapacitate personnel or materiel while
minimizing fatalities, permanent injury to personnel, and undesired damage to property and the
environment’.8 Less than ten years later, in 2002, the National Research Council published a report
entitled, An Assessment of Non-lethal Weapons Science and Technology that concluded ‘the case
for non-lethal weapons appears to be strong and getting stronger’.9
Given the continued interest and ongoing development of NLW, the IRB that reviews this
type of research must be appropriately staffed with scientific, engineering, safety and medical
professionals. Further, at least one member must be knowledgeable about operational objectives
for NLWs. This is a critical point. If a proposed NLW research protocol is inadequately designed
to meet the operational objective, participants will be needlessly exposed to a potential risk, no
generalizable knowledge or finding will be made, and resources will have been wasted. Reinforcing
the concept that IRBs have a difficult task, the General Accounting Office (GAO) report stated,
‘the increasing complexity of research makes it difficult for some IRBs to adequately assess human
subject protection issues when members are not conversant with the technical aspects of the
proposed study, or when studies raise ethical questions that have not been satisfactorily resolved
within the research community’.10
Examples of NLW Technologies That May Be Reviewed by an IRB
An EC/IRB may be tasked to review research that blends known human behaviour and motivation
with individual response to a single or set of NLW aversive stimuli. The study may employ a NLW
to redirect a hostile individual or group of individuals with directed energy (for example, a focused,
invisible energy beam that produces an intolerable heat sensation to force an individual to move),
acoustic hailing devices (for example, focused, directional sound beams), and/or optical distracters
8 Department of Defense Directive 3000.3 ‘Policy for Non-Lethal Weapons’, 2.

9 Committee for an Assessment of Non-Lethal Weapons Science and Technology, ‘An assessment of
Non-lethal Weapons Science and Technology’, 98.
10 Testimony before the U.S. Senate Committee on Governmental Affairs, ‘Continued Vigilance
Critical to Protecting Human Subjects’, 7.
(for example, non-blinding laser, and light devices). Such NLWs may include but are not limited to
the Active Denial System (ADS)/Silent Guardian™, Long Range Acoustical Device, and ‘dazzling
lasers’ (for example, LA-9/P™, and Glare MOUNT®), respectively. Further, IRB reviews may
include research that uses incapacitating NLWs such as sticky foam, blunt trauma projectiles (for
example, sponge grenades, beanbags and rubber bullets) and electro-muscular disruption weapons
(for example, TASER®). Moreover, DoD IRBs may review studies involving the Joint Non-Lethal
Weapons Directorate (JNLWD) non-lethal capabilities currently under development such as the 40
mm human-electro-muscular incapacitation projectile, long-range ocular interruption, distributed
light and sound array and active denial technology or enhancements of the flash-bang grenade and
acoustic hailing device (Department of Defense Non-Lethal Weapons Program 2010/11).
Similarities and Differences Between Biomedical and NLW Research
Risk Assessment
Biomedical research tries to determine if one treatment is either more effective, has fewer side
effects, or should be the standard of care for a class of people who have a particular disease or
pathological state. In contrast, NLW research is trying to determine what modality, frequency, and/
or power is necessary to obtain a desired effect on a healthy individual or group of participants.
Ongoing development and improvements to NLWs and systems intended to interrogate, track,
disrupt, deter, and/or incapacitate, challenge the depth of the current EC/IRB risk assessment
expertise. In the US, IRBs use a regulatory provision of minimal risk, which is defined as: ‘the
probability and magnitude of harm or discomfort anticipated in the research are not greater in
and of themselves that those ordinarily encountered in daily life or during the performance of
routine physical or psychological examinations or tests’.11 Empirical studies have confirmed wide
variability among the risk assessment process in IRBs. These studies have also confirmed the
need for a systematic evaluation of research risks in biomedical IRBs.12 These systemic problems
can result in loss of legitimacy for an IRB if its risk assessment process is inadequate or leads to
inconsistency. This common problem among biomedical IRBs is exacerbated in NLW IRBs, and
cannot be overcome until a standardized risk assessment process is defined and quantified. An
additional difficulty for the NLW IRB is the paucity of available data to construct an appropriate
risk assessment and evaluation process.
Risk Characterization
An IRB must consider how to characterize the wide variety of daily life activities for an average
individual and compare those activities to the research study in order to assess the probability and
magnitude of harm as they relate to the research study. Every occupation being that of a soldier
or a police officer or a teacher carries its own risk. For example, a study involving loud noise and
laser dazzlers to distract or deter would warrant considerations of the risk of everyday exposure to
loud noise (for example, lawn mowers, ambulance sirens and occasional construction site noise)
and lasers (for example, laser pointers and laser barcode scanners) and those risks associated with
11 32 Code of Federal Regulation 219, ‘Protection of Human Subjects’, §102(i).

12 Shah, S., Whittle, A., Wilfond B., Gensler, G. and Wendler, D. ‘How do institutional review boards
apply the federal risk and benefit standards for pediatric research?’
the risk of loud noise and laser exposure in the research facility/area where the study will be
conducted. Determining risk level is complex. It is not always clear which of many risks should be
incorporated into the risk assessment.
For NLW research, the difficulty is further compounded by limited data about the hazards and
risks inherent to a system or device that is being tested. As a non-lethal device or technology may
be a prototype, the development and conduct of innovative and independent safety assessments
become critical tools to identify hazards and risks. Further, as technological data of NLWs are
fragmented, and limited in publication, sharing of this data becomes increasingly essential. Data
about the capability, limitation, hazards and risks are indispensable to the NLW IRB that must
make a risk determination based on the use of the technology or device in a research protocol.
However, assessments of the hazards and risks are not accomplished in a standardized fashion for
NLW research. This is in contrast to biomedical research that has standardized processes as well
as publications and repositories from which data are drawn. An IRB reviewing a non-lethal device
or system must therefore make decisions about which risk factors are most relevant based on the
strength and quality of available scientific evidence.
Benefits to the Individual versus Society
Biomedical research has the potential to provide information that will improve the health of future
generations. It may also provide an individual with personal benefits for participation (for example,
health care screening, and genetic testing). Non-lethal weapon research does not provide a direct
benefit, but it may provide an individual with personal benefits for participation (for example, vision,
and hearing screening). However, in NLW research, future generations of soldiers and those in the
law enforcement communities stand to derive indirectly the most benefit from knowledge gained
about crowd behaviours and movement. Furthermore, NLW research presents an opportunity to
understand and disseminate data about the hazards and risks of specific technologies, coupled with
the capabilities and limitations for use. Pursuit of this knowledge may contribute to improvements
of existing NLW technologies/systems and their use in hostile situations. An additional, often
unrecognized benefit may be a reduced psychological burden (for example, development of post-
traumatic stress disorder) of the individual using lethal force in situation where a NLW could
have mitigated the escalation of force that resulted in death(s). Therefore, NLW research has the
potential to reduce the societal burdens of death and injury (for example, physical, psychological
and social) had only lethal means been available.
NLW IRB Expertise
Although the biomedical EC/IRB possesses the ethical and regulatory expertise required to conduct
traditional protocol reviews, it may lack knowledge of applicable law(s), safety regulations,
institutional commitments, and development, engineering and testing processes as they relate to
NLW research. In the US there is a requirement that, ‘in addition to possessing the professional
competence necessary to review specific research activities, the IRB shall be able to ascertain
the acceptability of proposed research in terms of institutional commitments and regulations,
applicable law and standards of professional conduct and practice’.13 The potential lack of a benefit
for the participant, the need for diversity of the scientific and engineering expertise, and novel
technological applications make the review of NLW research somewhat foreign or unusual to
13 45 Code of Federal Regulation 46, ‘IRB membership’, § 107(a).

a biomedical IRB. The nature of NLW research challenges basic premise of an IRB that must
consider beneficence, justice and respect for persons. This requires a variety of expertise not
normally associated with biomedical IRBs.
NLW Research Review Challenges
Assembly of a Multidisciplinary IRB
The construction of an EC/IRB with a multidisciplinary membership composed of disciplines

including, but not limited to engineering (for example, mechanical, electrical, biomedical
and software), physics (for example, laser, optical and computational), biology (for example,
neurobiology, sociobiology and integrative biology), military operational art and science,
epidemiology, and medicine (for example, occupational health and safety, and trauma) is a
challenge. Once assembled IRB members are required to understand, interpret and apply human
research regulations to protect the subject; a process during which they may discover conflicting
moral obligations to their profession and the institution they serve. For example, a pacifist may
oppose the research, a physicist may believe that there is no scientific benefit to conducting the
research, and a physician may oppose the research based on the Hippocratic oath as principle and
code of conduct. In turn, some individuals with strong moral convictions may not elect to serve on
a NLW EC/IRB, thus reducing the pool of potential EC/IRB members.
Further, for defence supported research in the US, IRB members must be familiar with and
comply with additional requirements (for example, consent, compensation, research monitoring,
and ensuring that an ombudsman is present for recruitment of military members 14,15,16). The
EC/IRB review must be conducted to assure ethical and regulatory protections for the human
volunteer. Although there may be sponsorship or leadership pressure, the human subject research
must be conducted without regard for national or military priorities, a paradox that may be seen
as incomprehensible. Therefore, the hallmark of a mature NWL EC/IRB is not only its diverse
membership, but also the construction of a support infrastructure that supports its independent
institutional function.
Lack of Standard Testing Criteria and Risk Assessment
There is no standard testing criterion and risk assessment procedure for the review of NLW
systems. In turn, a process to provide best practice standards of review for NLW systems, coupled
to guidelines and standards for the interpretation and analysis of NLW across a broad spectrum of
scientific and technological disciplines has not been developed. IRBs need more than a reliance on
intuition, as the complexity of technological and ethical concerns are mounting. This problem is
illustrated by an empirical study that evaluated how members of an IRB determined the research
risks and potential benefits of participants; in the study 6 of 53 members indicated the use of a
systematic approach.17 Although this research was from a biomedical IRB, I believe the results to
14 10 United States Code 980, ‘Limitation on Use of Humans as Experimental Subjects’.
15 32 Code of Federal Regulation 219, ‘Protection of Human Subjects’.
16 Department of Defense Directive 3216.02, ‘Protection of Human Subjects and Adherence to Ethical
Standards in DoD Supported Research’
17 Heleen E. Van Luij, W. Albert et al., ‘Assessment of the Risk/Benefit Ration of Phase II Cancer
Clinical Trials by Institutional Review Board (IRB) Members’.
be just as relevant to non-clinical IRBs reviewing NLWs. In the case of NWL EC/IRB’s members
unfamiliar with the proposed research and/or technology may judge the same risks to be greater
or less than investigators and IRB members familiar with the known risks of the research. For
example, an EC/IRB member may review systems/technologies and procedures in a NLW research
protocol and automatically assume a higher risk, where one may not exist. Therefore, it is possible
that some NLW research participants are not being protected from research risks, while other
volunteers may not get the opportunity to participate in NLW research because the protocol is
being tabled or disapproved by the IRB. In turn, reviews may lead to cascading delays of NLW
deployment that could have been used to mitigate injury, destruction, civil strife or death.
Subject Matter Expert Consultation
The positioning of Subject Matter Experts (SMEs) and collaboration amongst IRBs capable of
providing the necessary review and analysis of NLW research appear to be fragmented. It is
the responsibility of the respective institution that the IRB serves to ensure that the IRB has the
requisite resources and subject matter expertise for the review of a given non-lethal technology
or system. The challenge will be to connect the resources at each institution to keep pace with
technology and materials that are continuously being refined and adapted for NLWs. The SME
is essential in mitigating shortcomings of limited NLW empirical information/data and lack of
standard risk assessment processes.
Age Range of the NLW Participant Pool
Populations that NLWs are most likely to be employed against must also be considered. Based on
the focus of a study, the element of justice would suggest that enrolment should span the ages of
1–100. However, the most likely ages of the persons engaged in crowd behaviour would warrant
discussions about the additional protection needed for vulnerable populations, respect for persons,
and beneficence of the representative population of individuals most likely to be affected by the
use of NLWs. Vulnerable populations such as children, the mentally handicapped and the elderly
may become involved in a situations by happenstance, may be coerced or brought into a situation
by their caregivers, or may be fully engaged in violent actions within small or large groups
(crowds) that lead to NLW employment. Further, as there has been an increase in ‘child soldiers’ in
organized military and non-military organizations, it has been suggested that this age group should
be included in NLW research.18
It has been estimated that between 250,000 and 300,000 children are actively recruited for
armed conflict worldwide. The ethical dilemma of including children (< 18 years of age) in NLW
research confounds the debate of justice and respect for persons, as children have the potential to
be on the receiving end of a NLW that has not had research into age related effectiveness, and that
could be lethal to those with smaller and/or frail bodies. Outside of conflict areas, an argument may
be made that the justification for the exclusion of vulnerable populations such as children, is that
the gain for them is further abated by the low probability of being involved in clashes that have
the potential to become violent and necessitate the use of NLWs. Further, it may be argued that the
small percentage of ‘child warriors’ does not warrant their inclusion in NLW research. However,
given the current number of children involved in conflict, and those that may become involved in
18 Singer, P.W. ‘Caution: Children at War’.

future conflict, it could be argued that that inclusion in this research is necessary, as NLWs present
a preferable way to disarm a child armed with an AK-47.
Reparations to Injured Participants
Those who volunteer to participate in NLW research, in no way alter the ethical obligation to take
care them in the event of a research related injury. For those who are harmed while participating in
NLW research, it may be difficult to separate injuries traceable to research from those that stem from
underlying disease or pre-existing conditions. Further complicating the issue are consequences of
funding cuts for NLW research, especially when the cost to conduct the studies may be beyond the
means of the researchers, their sponsors and the institution. This could result in a failure to provide
the appropriate care and compensation to injured participants, thus causing financial harm and
stress. Therefore, the acquisition process is a consideration for all NLW research. However, IRBs
are typically not versed in the acquisition process. Knowledge about the concept and development
phases in research is essential information for an IRB to assure comprehension of the system’s
original intent and technological shortcomings, which may affect a NLW research participant
during the latter phase of research. An understanding of the acquisition process will assist the IRB
in determining the strength of the research, development and sustainment budget. This is essential,
as the NLW participants must be assured of proper injury compensation should injury result.
Recommendations
NLW Modelling and Simulation Development
The goal of NLW research is to generate useful, generalizable knowledge about the system’s effect
on the participants; producing direct benefit to the participant is not the purpose of the research.
Human participation is the essential, critical element necessary for providing a foundation of
generalizable knowledge that will be used to prevent future death and mitigate human injury.
Existing modelling programmes, although useful, are limited in their ability to incorporate the
multiple variables associated with physiology, behaviour and injury in response to a technology
or system. Until modelling and simulation platforms and algorithms are robust enough and can
be validated to capture the cognitive and physiological dynamics of human interactions, human
subjects’ participation will be vital. Therefore, human participation and its associated risks require
an ethical review as is currently practised.
Adapt Good Clinical Practice Guidelines
Adapt the principles outlined in Good Clinical Practice (GCP) guidelines for NLW research. The
guidelines consist of a standard for the design, conduct, performance, monitoring, auditing and
recording analyses and reports of biomedical research.19 Additionally, they provide assurance that
the data and reported results are credible and accurate and that the rights and confidentiality of
the participants are protected. The modification of these guidelines traditionally used in clinical
trials provides an appropriate methodology and framework for NLW research, as no guidelines
19 International Conference on Harmonisation of Technical Requirements for Registration of

Pharmaceuticals for Human Use.
for NLW currently exist. For NLW research, it could be termed Appropriate Technology Practice
(ATP) Guidelines. Creating ATP guidelines would standardize a framework for the interpretation
and application of technical guidelines across a broad spectrum of scientific and technological
disciplines. Furthermore, it would establish a registration process for the respective technology or
system to be studied, making its presence known to those in the research community (that is, NLW
database). This would make it easier to track and compare similar technological developments and
mitigate unnecessary or redundant testing and risk exposure to participants.
Moreover, ATP would provide an ethical and risk assessment framework for review for NLW
research protocols (for example, risk level categories, and classification of levels and duration
of sound, light, and blunt trauma). This would ensure consistency for determining probability
and magnitude of harm considerations and enable better-informed comparisons to similar hazards
and experiences in everyday life. This framework in the context of NLW research would provide
guidance and evidence-supported lessons for developing NLWs in a report that is specific to a
technology device or system. Moreover, it would provide stakeholders (for example, IRB members,
participants and principal investigators) with standard assessment to aid in the risk determination
process.
Human Research Subject Safety Assessment Report
The purpose of a Human Research Subject Safety Assessment Report (HURSSAR) is to delineate
the safety-related aspects of a research study to identify potential hazards associated with the
protocol, and to recommend procedures and precautions to minimize hazards. The HURSSAR
would be completed by the principal investigator (PI) and applied to the human testing of the
technologies, devices or systems and/or the tactics, techniques and procedures to be performed
at a specified location. Within the report would be a protocol description, supporting evaluations,
system operations (that is, operational procedures and safety procedures), system safety engineering
(that is, safety criteria and hazard analysis), a listing of hazardous material and/or classifications,
as well the recommendations and conclusions of the PI. Thereafter, designated safety reviewers
would provide feedback to the PI, who would either modify (as applicable) the protocol or submit
a memorandum as to why he/she is not willing to act on the safety reviewers’ advice.
Merging Phase Concepts of Clinical Trials and Technology Readiness Levels
The initial phases of clinical trial phases in human subjects (Phase I) is to assess the metabolic
and pharmacological actions of a drug. The second phase of testing (Phase II) is designed to
demonstrate a drug’s effectiveness in a selected group of subjects. The third phase (Phase III) is an
assessment of the effectiveness of the drug when compared to the ‘gold standard’ of treatment for
the respective condition, and consists of randomized trials at multiple sites. The final phase (Phase
IV) consists of surveillance to detect rare or long-term adverse effects in a greater population for
an extended period.
The DoD has a system that considers the phases of technology development, called a
Technology Readiness Level (TRL). The levels range from TRL 1 (lowest level of technology
readiness, as scientific research begins to be translated into applied research and development) to
TRL 9 (application of the technology in its final form and under mission conditions, such as those
encountered in operational test and evaluation).20 Although originally designed by the National
Aeronautics and Space Administration, it has been adapted by the DoD for use in the acquisition
system. The United States Army Medical Research and Material Command have married TRLs
and milestones to the phases of Food and Drug Administration (FDA) regulated trails listed in the
previous paragraph.
Combining the FDA phase approach and DoD TRL level approach for NLW research
necessitates a similar but separate process. All non-biomedical human subjects research of NLW
systems should only use at-or-near-scale operational systems, with most functions available for
demonstration and test (for example, TRL 7–9) to ensure human subjects are not exposed to
immature systems. Distinct TRL levels could then be correlated across the types of phases (I-IV)
that are used in clinical trials. In turn, correlating the traditional clinical FDA drug trial phases
and the TRL levels for non-biomedical human subjects’ research would result in a Human Subject
Research Level (HSRL), which would be used as part of the IRB risk assessment.
The HSRL would be the result of the HURSSAR, described above. As an example, a flash-bang
device used as a NLW weapon for distraction would have the hazards of sound and bright light.
The HURSSAR would identify the device, protocol description, supporting evaluations, system
operations, system safety engineering and hazard classifications. This report could be used on a
case-by-case basis to better enable the IRB to identify and mitigate hazards within a NLW protocol.
In turn, the IRB could use the report to develop the HSRL for a particular technology, device or
system.
Shared Resources across the United States Department of Defense
The DoD has a wealth of Subject Matter Experts (for example, engineering, biology, mathematics,
ethics) and training modules across the service components. Although there are Memorandums
of Agreement/Understanding (MOA/MOU), and examples of service components combining
training (for example, Army and Air Force medics at Fort Sam Houston, TX), there is little shared
data among the non-biomedical IRBs. Areas of expertise that can be drawn on across the service
components are philosophy and ethics, as well as the required Scientific Reviews. For the latter, the
Army’s Research Development and Engineering Command, the Navy’s Office of Naval Research,
and Air Force’s Air Force Research Laboratory seem to be the logical sources for the necessary
expertise in non-biomedical research. In turn, agreements could be made to retain a core group
of necessary engineering and scientific disciplines required for scientific reviews. The pooling of
resources seems logical since all service components will use the knowledge that is generated from
the human subject participation.
NLW Data Repository
To effectively capture research data from NLW studies there needs to be an agreement on the
manner, methods and configuration management of data capture and storage. A widely accepted
set of standards will enable the future use of data a across a broad spectrum of technologies and
systems, enabling cross comparisons of data. For example, PIs could obtain an aggregate total
of NLW participants who meet specific query criteria (for example, effects of directed energy
levels at 95 GHz, and iris scan performance at 50 metres) and obtain coded and/or identifiable
20 Defense Acquisition University: Ask a Professor – Question and Answer, ‘Technology Maturity
Levels’, 1.
data with IRB approval. The creation of a NLW Data Repository would be a critical resource to
the military and law enforcement communities, and would enable IRBs to review existing data to
make better-informed risk determinations. However, security classification and data rights would
also determine who could have access to the data and for what purposes.
Conclusion
The EC/IRB is an institutional organization, each instance of which has its own inherent expertise
and is convened for the protection of participants. Members bring their particular moral composition
that has been developed through their culture, religion, life experiences and education. What they
all possess is a moral obligation to ensure that guidelines and regulations are followed and that an
ethically justifiable decision was made for a proposed study. This is an obligation that can easily be
broken through corrupt or inadequate processes (for example, STD research in Guatemala,21 and
genetic therapy research that resulted in the death of Jesse Gelsinger22. In my opinion, the ethical
lapses can only be mitigated through a robust decision-making process that resolves issues within
a study that is justifiable within the IRB, the institution, and the public at large.
Balancing the ethical considerations to ensure human subject protection in the non-biomedical
environment will necessitate commonly accepted and practised standards. Those involved in NLW
research must establish a comprehensive, transparent, risk review process that is tied to an ethical
framework that is universal in its approach. NLW research needs to define itself through common
definitions, standardized measures and delineation of the manner and methodologies employed
in single and/or concurrent systems for the interrogation and/or temporary incapacitation of
human beings. Moreover, standard mechanisms for the transparent reporting of NLW research
results among the services and within the international community is needed. Together, these will
continually propagate the necessary ethical and regulatory knowledge base for those reviewing
risks, and present comprehensive, unbiased information necessary to interpret reports of adverse
events and ethical hazards.
In conclusion, it will be the suitably constituted IRB that possesses the ability to comprehend
and analyse the nature of knowledge behind the NLW and how it relates to respect, justice and
beneficence, which will be indispensable to society. The EC/IRB is the cornerstone that bears
the weight of transparency necessary for human subject research. Creating a parallel process for
non-biomedical (NLW) research will help to ensure the institutional memory necessary for the
perpetual protection of the participants that volunteer for NLW research.
Disclaimer
The views expressed in this chapter are those of the author and do not reflect the official policy or
position of the Department of the Army, Department of Defense, or the US government.
21 Presidential Commission for the Study of Bioethical Issues, ‘Ethically Impossible’ STD Research in
Guatemala from 1946 to 1948.
22 Obasogie, O.K., ‘Ten Years Later: Jesse Gelsinger’s Death and Human Subjects Protection’
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Chapter 16
Hovering Between Roles:
Military Medical Ethics
Daniel Messelken and Hans Ulrich Baer
A Need for Military Medical Ethics
[Physician and soldier] are two very different professions, yet societies, if they are to survive, need
both of them, just as they need laws and moral direction. The physician-soldier bridges these two
professions. (Madden and Carter 2003: 279)
To which rules is this ‘bridging profession’ of physician-soldier bound? How can those who are
practising the profession know whether they should follow the ethos of their physician colleagues
or that of their soldier comrades? Finding themselves between two professions each of which has
its own code of conduct, physician-soldiers are confronted with moral conflicts that have been
depicted in the literature as the fight of ‘Aesculapius and Mars’ (Sidel 1968): Aesculapius is striving
for better medical care while Mars is aiming for more effective military means and strategies. Thus,
are the professions of physician and soldier irreconcilable? Must physician-soldiers, like their civil
physician colleagues, entirely base their judgements on medical ethics? Or is there room for a
distinctive military medical ethics code that takes into account the specifics of both the military and
medical aspects of the profession?
In this chapter we will illustrate the problems and needs that arise out of the bridging profession
of the physician-soldier. We argue that, although the two professional ethics seem to contradict
each other, there are ways in which they might be reconciled, at least on a case-by-case basis. The
introduction will outline the need for military medical ethics research and subsequent sections will
present each separate ethos (medical and military) with its respective obligations before bringing
the two together into a hybrid military medical ethics code.
Setting the Stage: Changed Realities
Participants of ICMM1 courses dealing with the Law of Armed Conflict (LOAC) have repeatedly
reported that they face situations in which their ethical and legal knowledge does not suffice to make
them comfortable with the decisions they have to make. Current ethical and legal knowledge among
military physicians, it seems, does not adequately prepare them for their duties during deployment.
The main explanation for this perceived lack of preparation can be found in the changing face
of war and the new forms of deployment, such as UN-led missions (within, for example, the
new paradigm of the ‘responsibility to protect’ (International Commission on Intervention and
1 International Committee for Military Medicine. See the webpage for further information: http://www.
cimm-icmm.org/ and http://www.reference-centre.ch/.
State Sovereignty 2001)), humanitarian assistance, and so-called asymmetrical wars, that have
become more or less usual practice (see for example Heidelberg Institute for International Conflict
Research 2011). All of these challenge the application of classic international humanitarian law
(IHL) either because the forms of conflict have changed since the Geneva Conventions or because
they do not fall under the category of armed conflicts and are thus beyond the scope of application
of the Geneva Conventions.
Even if applicable, the body of possibly pertinent legislation still creates a complex legal
framework illustrated, for example, in the ‘List of Some of the Legislation Relevant to Medical
Personnel on Deployment’ compiled by van Leusden and Hoejenbos (2006: 214). They name
no less than 14 conventions, codes and acts that can be relevant during missions. In addition,
during disaster relief operations, local legislation may apply, and during asymmetrical conflicts the
adversary may not feel bound to existing rules or may even intentionally act against the laws of
war to seek advantage. The complexity of the legal framework provides one motivation for ethical
analysis and education that could help discern the best course of action.
Growing Public Scrutiny
Another reason why military ethics has been getting more attention lies in the growing public
scrutiny of soldiers’ actions during deployment. Undoubtedly, public opinion has become more
critical and military deployment is now under much closer monitoring than it used to be. Two main
reasons for this development can be identified: first, new forms of deployment, such as peace-
building missions, UN-led missions and humanitarian assistance, are by their very nature, under
closer scrutiny than ‘ordinary warfare’. During the last mentioned, national security interests and
fear among the population render a more critical assessment unlikely. Secondly, new media like
WikiLeaks provide faster and easier access to documents and reports that would not have been
accessible before and are not even intended for public consumption. The mere availability of such
information makes it more likely that public debate regarding the conduct of their military forces
abroad will emerge.
To be clear, the fact that military conduct and the conduct of military physicians are exposed
to (moral) evaluation should not, by itself, constitute a source of concern. The military, as an
institution, as well as medical associations picture themselves as moral agents and are acquainted
with a professional ethos.
Summary: Need for Legal and Ethical Education
To sum up, physicians serving in the military and being deployed in war or in operations other than
war (OOTW) are confronted with an increasingly complex environment influenced by whether the
mission is humanitarian or military in nature, lack of clear distinctions between friend and foe, and
blurred borders between fighting and peacekeeping. At the same time, their behaviour is vigilantly
monitored not only by their superiors but also by worldwide civil society. A solid knowledge of
ethics and moral deliberation would certainly help in finding an acceptable way to navigate these
many situations.
All this said, one additional premise needs to be clarified: the necessity of ethics education
is based on the assumption that physicians in the military must make genuine and responsible
decisions. If this were not the case, that is, if they were only and always carrying out orders
that could never be challenged, military medical ethics would be a ‘pseudo-ethics’ (Bschleipfer
Hovering Between Roles: Military Medical Ethics 263
2007: 118).2 But soldiers must be enabled to distinguish not only between legal and illegal but
also between moral and immoral, and to critically assess the soundness of their own actions and
received orders.
Locating the Issues in Military Medical Ethics
The term ‘military medical ethics’ communicates that it is composed of two branches of applied
ethics and their respective problems and topics: military ethics and medical ethics. Both are
examples of specific professional ethics that address the typical problems and situations that a
professional in each respective field encounters. Both of them are important subjects for ethical
research and both already rely on an independent large body of literature.3 Yet, the combined field
of interest – that is, medical ethics in a military context – has been more or less disregarded as a
topic and has only lately been brought to attention.4 However, physicians serving in the military
(‘physician-soldiers’ or ‘medical officers’: physicians working in the military) face a number of
ethical problems or dilemmas that arise specifically out of the overlapping of the two professional
environments: the military context and its distinctive features adds to the complexity of the medical
environment. Resulting ethical questions sometimes cannot be sufficiently addressed by medical
ethics alone. The following case from World War II may illustrate this claim:
Example 1
During the spring of 1943, while British troops in North Africa were preparing to invade Italy and
Sicily, many in the ranks contracted gonorrhoea after visiting local prostitutes. The debate was
whether penicillin should be used to treat these soldiers who had contracted gonorrhoea rather than
to treat soldiers suffering from battle wounds – the goal being to return to health as many soldiers
as possible so that they could resume training for the imminent invasion. (Adams 2008: 222)
If you assume that penicillin would cure both groups of patients equally well,5 then you should
distribute the treatment, from a medical point of view, with the aim of saving the greatest number
of patients. On the contrary, from a military perspective, you could prefer to treat those who would
more quickly be able to return to duty in order to maintain the military capacity of your troops at a
higher level. Such a decision would take into account criteria that are beyond the pure medical ethical
sphere. In the cited case, this would mean treating the soldiers infected with gonorrhoea, as they will
be cured and fit for duty within days. This rather simple example of distribution of scarce resources
shows that, sometimes, the military context may change a situation and alter the moral assessment.
2 A similar critique is formulated in a sharp way by Sidel and Levy 2003 who negate the possibility of
a military medical ethics framework.
3 As introduction and/or overview can be given Baumann 2007, Coady and Primoratz 2008, and Rhodes
2009 for military ethics. For biomedical ethics, see for example the extensive textbook by Kuhse and Singer
2009.
4 See for example Allhoff 2008, Bschleipfer 2007, Beam 2003a, Gross 2004 and 2006, Moreno 2008,
and Schapowal and Baer 2002. (For earlier literature pointing up the problem see Sidel 1968 and Howe 1981).
5 Actually, penicillin was a new medicine and its effectiveness not proved for wound treatment while its
effectiveness for treating gonorrhea was known.
In the following section, key elements of medical ethics and military ethics will be presented in
order to provide the background for the comprehensive discussion of military medical ethics that
follows.6
Medical Ethics: Rules for the Physician
The origin of medical ethics is seen in the oath of Hippocrates and can be summarized by the
dictum salus aegroti suprema lex – the well-being of his patient is the most important purpose
of the physician’s task. Since its publication in 1979, the Principles of Biomedical Ethics by T.
Beauchamp and J. Childress (2009) has been the leading approach to medical ethics problems.
While their approach is subject to much criticism (see for example, Gert, Culver and Clouser 2006),
it nevertheless provides a useful framework for ensuring that the relevant points are considered.
Therefore, the principles are present in nearly all case discussions, even though other parts of their
theory are challenged at the same time.7 These core principles are:
• patient autonomy
• non-maleficence
• beneficence
• justice.8
The principle of (patient) autonomy requires involving patients in all decisions regarding their
therapy. This includes the obligation of the physician to provide patients with all necessary
information on possible therapeutic alternatives and their respective (dis)advantages (enable them
to decide) and to respect patients’ decisions for treatment or non-treatment (see Beauchamp and
Childress 2009: 104). Both requirements are brought together under the label of ‘informed consent’,
which should be sought before any medical intervention. Informed consent can be replaced by the
notion of best interest if patients are not yet or no longer (or at least not at the moment) able to give
their consent. Still, treatment against the (assumed) wishes of the patient is deemed to be immoral.
The second principle, non-maleficence, is one of the oldest rules in medical ethics: do not do
anything that does harm to your patient, or primum non nocere. Even if the notion of harm is not a
very clear one, it can in many cases, clearly forbid at least some courses of action. The obligation
not to harm is generally more stringent than the third principle, beneficence. Beneficence requires
positive action to help the patient, actively averting harm from happening to the patient. The
decision about what is best, in these cases, often focuses on an objective assessment and could,
thus, compete with the autonomous decision of the patient. This can lead to paternalistic decisions
when aims and values of the treating physician and the patient do not coincide. The fourth and last
principle, justice, requires the equal and fair treatment of all patients in the distribution of (scarce)
6 The respective presentations of medical and military ethics take only those aspects into consideration
that are deemed relevant for the intertwined discipline of military medical ethics pursued in this article. The
principles of military and medical ethics are also considered in more detail in the Editors’ Introduction to this
volume.
7 Most of the critique is directed against the grounding of Beauchamp and Childress’ arguments in
common morality: some critics were not convinced by this. However, even those critics acknowledged the
importance and relevance of the four principles as guidelines in bioethical discussions.
8 The following paragraphs summarize briefly the principles proposed by Beauchamp and Childress
2009, chapters 4 to 7.
resources. It is, therefore, the only one of the four principles that goes beyond the physician–patient
relationship and takes into account societal issues.
One can imagine many examples in which the four principles may conflict, leading to
ambiguities in moral judgement. As all of the principles produce only prima facie obligations,
in these cases, further refinement is needed during moral deliberation. The principles must be
specified and balanced, which means that, first, their abstract and indeterminate character has to be
reduced to generate more specific, action-guiding content (cf. Beauchamp and Childress 2009: 17).
Second, the principles must be balanced so as to reflect the weight and strength ascribed to them
in concrete cases. Clearly, this process may lead to different interpretations of the same or similar
situations. However, this is not necessarily problematic but can be interpreted as strengthening
the universal applicability of the principlism approach. For example, different opinions on the
appropriateness and weight of principles based in cultural differences can promote reflection and
debate and result in a fruitful exchange of opinions.
In summary, reasoning in questions of medical ethics is centred on the well-being of the patient
and the patient-physician relationship. Medical ethics, therefore, follows an individual logic as
it is centred on the needs and wishes of one person: the patient. Only when questions of justice
come into consideration do larger groups or the whole society become a relevant factor. This is
substantially different in military ethics in which a collective logic more often takes the lead.
Military Ethics: Rules for the Soldier
The origins of military ethics can be found in ancient war principles, chivalry codes and the like. The
most venerable and, perhaps most influential, tradition is that known as Just War theory, originating
in Judaeo-Christian teaching and practice and first articulated in a recognizably modern form by
St Augustine, later developed and refined by Thomas Aquinas, Francisco de Vitoria and others. It
has had a large impact on later authors like Grotius and de Vattel and, thus, on the development of
the modern LOAC. Today, the legal basis for conduct during war is codified inter alia in the United
Nations Charter (concentrating on ius ad bellum issues) and the Geneva Conventions (ius in bello).
Both attempt to set limits to what is allowed during war.
Soldiers will, most of the time, only be concerned with the ius in bello regulations when they
are sent out.9 The two most important principles of the ius in bello are:
1. the principle of discrimination

2. the principle of proportionality.
The first states that only combatants are legitimate targets and that non-combatants and, especially,
civilians must be protected from attacks to the greatest extent possible. The second reduces the
allowed use of force to an amount that seems to be proportional to the aim of a concrete military
action. Both rules are meant to reduce the amount of (lethal) force to a minimum. Clearly, however,
they allow actions like killing other people and override restraints valid in ‘normal’, or peaceful,
circumstances.
The ius in bello rules are sometimes summarized under the principle of military necessity. The
latter, however, has been described in the literature in two importantly differing ways. In its first
meaning it states that (i) the attack must aim at defeating the enemy militarily, (ii) the attack must
9 The view that soldiers do not have to be concerned with ius ad bellum consideration has prominently
been challenged by McMahan 2009.
be directed against a military objective, and (iii) the harm to civilians or civilian property caused
by the attack must be proportional in relation to the military advantage that can be achieved.10
Interpreted in this way, necessity is a principle that reduces the use of military force to a minimum:
to what is necessary to defeat the enemy. On the other hand, military necessity has also been
interpreted more broadly as a principle allowing for greater exemption in order to avoid military
defeat because of the exceptional situation of war. We will come back to this second problematic
interpretation later.11
To summarize what mainly differentiates military ethics from medical ethics, we point out
two elements: while physicians are committed by their oath to the well-being of their patients,
soldiers swear to protect their fellow citizens and country. While physicians are committed to help
the sick and wounded and to save lives, soldiers fulfil a task that may oblige them to take lives.
Whereas the logic of medical ethics is centred on the individual physician–patient relationship,
military ethics follows a collective logic centred on national security and the survival of a group.
Military Medical Ethics
Dealing with the Conflicting Roles of Physician and Soldier
Thus, fulfilling both the role of a physician and that of a soldier leads to complex and, sometimes,
competing obligations as basic principles of military and medical ethics are, at the same time,
intertwined and antipodal. In a way, physician-soldiers ‘bridge’ (Madden and Carter 2003: 279)
two professions and, therefore, should be familiar with the ethical rules of both professions. They
may – as a result of playing two roles (see also Pearce and Saul 2008: 76f.) – meet situations in
which those roles and their respective ethical codes may well be competing or even contradictory
(Sidel and Levy 2003). Examples include triage of their own and enemy wounded, providing
care with scarce resources, use of non-approved (new) medication, involvement in interrogation,
medical confidentiality, and the decision to return soldiers to duty, to name a few. The list could
easily be extended, but it already illustrates the range and complexity of the problems involved.
We will take up some examples to illustrate important aspects of the problems throughout this
article. All of them share the characteristic that they would not occur as a moral problem either in
the civilian clinical or military setting alone. Three ways of addressing the problem of integrating
medical and military ethics are described in the following subsections: medical and military
obligations seen as dilemmatic, medical obligations considered to trump military obligations, or
military obligations prioritized over medical considerations.
Dual loyalty: dilemmatic obligations The overlapping obligations of medical officers’ dual position
are often described as ‘divided loyalty’ or ‘dual loyalty’ conflicts (cf. Allhoff 2008). They are not
specific to physicians working in the military context and the term has been framed to generally
10 cf. http://www.crimesofwar.org/a-z-guide/military-necessity/.

11 For a more detailed account of the principles of Just War theory and of some problems with the
application of the principle of military necessity see also the Editors’ Introduction.
describe situations in which physicians have loyalties and obligations other than to their patients:
[C]linical role conflict between professional duties to a patient and obligations, express or implied,
real or perceived, to the interests of a third party such as an employer, an insurer or the state.
(International Dual-Loyalty Working Group 2008: 16)
It can nevertheless be applied to the military context in which physician-soldiers must straddle
their medical loyalty to the patient and the loyalty to their military commitment. Both loyalties
can bring with them different obligations and entail, as previously discussed, different ethical
rules. The following example from a deployment of German troops in a PSO mission in Somalia
illustrates these claims:
Example 2
While convoys operate between Beled Weyne and Mogadishu to transport personnel and material,
a rescue helicopter is based midway at Camp Gialalassi in order to guarantee efficient medical
supply of German soldiers in case of incidents. One day, a group of local people show up at
the camp with a pregnant woman and ask for help. The physician realizes at once that only the
immediate hospitalization of the woman by helicopter can save her life and that of her unborn
child. (Zentrum Innere Führung 2000: 12. Translated by DM.)
The military order and priorities are clear: the helicopter is to provide medical care to the unit’s
soldiers in case of emergency and must continuously be held at disposal. The larger medical duties
of the physician, however, require helping the pregnant woman. Military and medical obligations
contradict and cannot be simultaneously fulfilled. Dual loyalties in the military context can be
summarized as follows:
The military medical personnel faces the conflict originated both from the medical and military
professions. Ethical issues arise when the physician is forced to choose between the benefit of an
individual patient and the needs of an army. (Németh 2011: 8)
In the example, individual benefit and medical obligations would clearly call for treating the woman
and saving her child. The needs of the army, on the contrary, require the helicopter to be ready at
any moment, even if there is no emergency situation present. The complexity of the situation is
increased by the fact that actual needs have to be balanced against possible future needs, which
despite not being imminent, might be evaluated as more important.
Within the approach of dual loyalties (dilemmatic)conflicts between the two codes of military
and medical ethics are considered problematic, but no solution to the issue follows from that
description. It is assumed that physicians have to come to a solution to the conflicts when they
find themselves confronted with them. Bschleipfer, in a book on disaster medicine, describes these
expectations as follows:
It is expected from a ‘sovereign physician’s character’ to meet this conflict adequately. A problem
that cannot be solved on the institutional level is broken down to the personal level. The medical
officer is challenged with the balancing act between two kinds of ethics that both demand primacy.
(Bschleipfer 2007: 116. Translated by DM)
Thus, the concept of dual loyalty does not give any help to the physician but only descriptively
points at an issue that needs more attention. It is therefore questionable whether it could be of any
help to those who are in a situation in which they need to make a decision. Annas goes even further
and identifies the dual loyalty framework as based on ‘oversimplified expressions’ and as a ‘false
choice’ (Annas 2008: 1090).
The framework, therefore, should be replaced to (i) avoid any simplification resulting from the
combination of two sets of ethics and (ii) to give physician-soldiers a better and more coherent
guideline to find a way for dealing with their different obligations.
Extending medical ethics One alternative consists of extending the scope of medical ethics so
that it includes the military context and its specific problems. Accordingly, cases from military
deployment can and should be discussed within an extended framework of otherwise ordinary
medical ethics. In this framework, there would be no need to establish different rules for the military
context. As a result, this approach prioritizes the role of the physician. The scope of application
of medical ethics would simply be broadened, and to Moreno (2008: 1) ‘it is blindingly obvious
that a full accounting of bioethics absolutely requires the inclusion of this subject matter [that is,
military application of biomedical ethics]’. Such an approach to the field of military medical ethics
seems also to be favoured by the World Medical Association (2006: § 1 and 3), which states in its
Regulations in Times of Armed Conflict the following:
1. Medical ethics in times of armed conflict is identical to medical ethics in times of peace, as
stated in the International Code of Medical Ethics of the WMA. If, in performing their professional
duty, physicians have conflicting loyalties, their primary obligation is to their patients … .
3. During times of armed conflict, standard ethical norms apply … .
Furthermore, in a similar way, the First Geneva Convention (1949) and the Protocol Additional I
(1977) state that medical treatment should be administered for medical reasons only and that no
one should be punished for their actions as long as they conform to medical ethics:
Only urgent medical reasons will authorize priority in the order of treatment to be administered.
(First Geneva Convention 1949, Article 12)
Under no circumstances shall any person be punished for carrying out medical activities compatible
with medical ethics, regardless of the person benefiting therefrom. (Protocol Additional to the
Geneva Conventions 1977 (Protocol 1), Article 16, number 1)
For sure, extending the field of medical ethics is one alternative, and it would give medical
ethics priority when considering physician-soldiers’ ethical dilemmas. Annas summarizes the
idea behind this approach as ‘physician first, last, and always’ (Annas 2008). For a great number
of cases, this approach may well be acceptable and valid, and produce justifiable, and even best,
choices. Still, one might wonder whether there are examples in which medical ethics will reach
their limit when confronted with situations in which military considerations come into play and
may demand to tip the scales. Take the following example, even if it is a fictitious one:
Example 3
[I]magine a battalion (approximately 400 soldiers) is facing an enemy force of about 550 soldiers
and that each force is equipped with comparable weaponry. After several hours of fighting … there
are 300 wounded and of these only 15 have life-threatening injuries … Also, assume that the
battalion will be overrun in the field if the physicians are unable to quickly treat those with
superficial injuries. (Adams 2008: 222)
Clearly, according to medical ethics and normal criteria of triage, the physician should treat the 15
soldiers (or a majority of them) who need help most urgently and try to save their lives, even if this
could result in losing the battle. Medical ethics standards would not allow for a different order of
treatment, as it would be demanded by considerations of, in this case, military necessity. Cases like
this one may be rare, but they still represent relevant ethical questions and need answers. However,
according to Annas and those who see medical ethics above military considerations:
There is no special medical ethics for active-duty military physicians … The only question is
whether there are ‘extreme contingencies’ that justify physicians’ suspension of their medical–
ethical obligations. (Annas 2008: 1087)
Maybe the case just presented would fall under such an ‘extreme contingency’ and thus allow
for an exemption. But the question seems valid: how is medicine, and the work of physicians,
so different that it can be exempted from nearly all considerations and occupy a separate moral
sphere? In the next section, we will look at a different approach to military medical ethics that
proposes to assign different weights to the two spheres of medical and military ethics.
Military necessity as overriding principle A second alternative, by contrast, highlights the

military role and obligations of the physician-soldier. In this framework, military necessity comes
into play and rivals with the principles of medical ethics. Gross formulates the assumption and
indicates a possible way out of the impasse:
Unlike the medical ethics taught and practiced in civilian settings, military medical ethics
introduces the imperative of military necessity alongside the familiar principles of patient rights,
well-being, and autonomy. (Gross 2010: 458)
The central question, then, consists in knowing how military necessity is balanced against the other
principles. If one takes the classic approach in biomedical ethics by Beauchamp and Childress, all
four principles are equally valid requirements and can all claim to produce prima facie obligations
(cf. Beauchamp and Childress 2009: 15ff.). At first, it is conceivable that a fifth principle regarding
military necessity could be added, amending the list to include one more equally valid principle.
However, military necessity is more often interpreted as an overriding principle that allows for
exceptions in regard to rules for civilian settings. According to Gross, military necessity ‘joins
the pantheon of other principles that guide medicine and war as first among equals, and forces the
peculiar care-giving and noncare-giving dilemmas that characterize bioethics during war’ (Gross
2006: 63, emphasis added). Treatment, then, would be administered, not on medical grounds, but
according to calculation in terms of military utility. Applied to Example 3, this would mean that
the physician should treat those who can return to duty most quickly and support their comrades
in winning the battle, even if this could mean allowing (some of) the 15 severely wounded to die.
Interpreted in this way, military necessity, understood in the second way described above
(Military Ethics: Rules for the Soldier), comes closer to pure utility considerations that are not easily
acceptable. Namely, because this kind of utility calculus is often based on arguments of exception
that allow for breaking rules in order to save a so-called higher value or larger community. In the
words of Walzer, who elaborates the concept of ‘supreme emergency’ in his Just and Unjust Wars,
‘individuals cannot kill other individuals to save themselves, but to save a nation we can violate
the rights of a determinate but smaller number of people’ (Walzer 2006: 254). The idea behind
his argument is that, under extreme conditions, namely when there is an imminent danger of a
‘defeat likely to bring disaster to a political community’ (Walzer 2006: 268) we could be allowed
to (reluctantly) break the law to avert the consequences of defeat. This could, in the context of
the rules of war, allow for attacking non-combatants and, transferred to our context, subordinate
medical ethics to the needs of military necessity. However, two points have to be emphasized:
according to Walzer, supreme emergency can only be invoked in extreme conditions and thus,
the argument is mostly a theoretical one. Secondly, if we decide to follow the logic of exception,
the risk clearly consists of eventually losing every limit because, as Walzer forewarns, ‘necessity
knows no rules’ (Walzer 2006: 254).
Therefore, by its very definition, military necessity understood in this way seems to stand above
or outside the ethical deliberation process. Rubenstein points at that danger when commenting on
Gross:
The core of Gross’s argument is that during war, the principles of dignity, autonomy, and protection
of life must be balanced against the principle of utility, which justifies war as a means of protecting
the welfare of the nation-state and the community it represents. (Rubenstein 2004: 3)
Military necessity, then, not only represents a fifth and somewhat outstanding principle, its
introduction also brings about another actor – the state or, more generally speaking, a community.
This is because military necessity is always measured or balanced against the needs and possible
benefits of a larger group community rather than an individual. Thus, reasoning on the basis of this
principle takes place on a level other than, for example, respect for patient autonomy, which only
concerns the relationship between the patient and the physician (cf. Gross 2006: 27ff.). Examples
3 and 5, and their respective discussions, demonstrate this very clearly. The introduction of military
necessity as an additional principle, therefore, is more likely to result in adding a dominating
principle. Medical ethics, then, finds itself under the thumb of military ethics.
Conjoining the Roles in Military Medical Ethics
Given the shortcomings of any of the three alternatives, we would like to propose a different
approach to military medical ethics that does not, a priori, place either the military or medical
logic above the other. Moreover, it does not proclaim that military and medical ethics are mostly
irreconcilable and lead forcibly to irresolvable dilemmas as does the dual loyalty approach.
Military medical ethics, in our view, has to combine principles from both of its parts and weigh
them according to situational exigencies. Physician-soldiers fulfil more the role of a soldier or
that of a physician according to the situation; as a result, their acts have to be judged according to
different standards accordingly.
In the reminder of this section we illustrate this claim using four types of cases that represent
different situations of deployment and their corresponding ethical issues: dealing with insufficient
resources during ongoing conflict, the question of soldiers’ return to duty, dealing with detainees,
and humanitarian disaster relief.
Case 1: Scarce resources, triage and priority to own troops Situations of scarce resources and
need for triage amongst the wounded are typical issues in military medical ethics. Most likely,
they will occur during the short period of an enduring battle – a situation dominated by military
context. As we have seen in Example 3, military necessity could suggest treating the less-severely
wounded first in order to regain or maximize combat strength and, thus, to increase the likelihood
of military success. Such a course of action could be justified by the fact that, during an enduring
fight, military and, therefore, collective logic prevails. According to Adams, a ‘triage prioritization
reversal’ could be justified under ‘extreme battle conditions’ (Adams 2008: 222) – a position that
comes close to a necessity argument calculating only overall utility. If ever, it is extreme situations
like this that most likely allow for a situation-related predominance of military over medical ethical
considerations. The medical officer becomes more a soldier committed to military obligations and
bound by comradeship. However, introducing military necessity as an additional and potentially
overriding principle in the stated way could lead to a violation of international humanitarian
law because IHL puts physicians wearing the distinctive signs (Red Cross, Red Crescent or Red
Diamond) of their profession under special protection on the one hand while, on the other hand,
obligating them to treat anybody ‘without any adverse distinction founded on sex, race, nationality,
religion, political opinions, or any other similar criteria’ (Geneva Convention I, § 12). Similarly,
medical ethics would not allow preferring someone based solely on membership to a certain group,
even if overall utility considerations would have better results. In summary, acting primarily
according to military necessity can only be justified by soldiers and only in circumstances that do
not allow otherwise.
Therefore, the argument and importance of military necessity becomes much less pertinent
when we take away the ‘extreme battle conditions’ and regard the following example:
Example 4: Priority to own troops?
The international PSO mission in Blueland at the moment is rather successful and no fighting has
taken place lately. When a road accident happens in a village near Redland’s camp, the decision is
made to send the camp’s single rescue helicopter to help treat some severely wounded victims. In
the moment the helicopter is about to arrive at the accident, a patrol unit of Redland’s troops sends
a request for medical emergency aid as they have run over a landmine. They are far away from any
medical aid and can only be reached in time by the helicopter.
Here, the picture changes as there is no situational allowance for exceptions. The medical officer
acts within the role and obligations of a physician serving in the military and has to justify the
actions taken, including difficult decisions of triage, primarily with regard to standards of medical
ethics. But what does that mean in the case of Example 4? Basically, there are two options: help the
civilian victims at the accident site or help the soldier comrades injured by the landmine. If both
calls had come in at the same time, the decision probably would have been clear: priority would have
been given to the troops. Such a decision can be backed up by the fact that this is what the resources
have been provided for on the one hand and that, on the other hand, you are morally allowed to
treat persons preferentially according to closeness of relationship when no other considerations
come into play.12 In the example, both groups need the same help with the same urgency, but the
12 This argument cannot be further elaborated here. However, we would think in many cases that one
has a moral right to care first for, for example, her family and then for strangers if both are equally in need of
help. In addition, the bioethical principle most relevant in this example seems to be that of beneficence and it
physician has a closer relationship to one of the groups, to which the physician is bound inter alia
by comradeship. Instead of, for example, throwing a die to make an impartial choice, the argument
of proximity tips the scale in favour of the physician’s own troops. It is, however, less clear whether
the same argument would allow an order for the helicopter to withdraw from the accident site once
it had arrived there. In any case, the argument is not one of medical ethics, and if physician-soldiers
want or are ordered to treat their comrades first, they do so not as physicians but as soldiers.
Case 2: Declaring (own) soldiers fit for duty In the second case group, military considerations
interfere with the classic physician–patient relationship. Declaring a soldier fit to return for duty
is among the normal tasks of a medical officer and does not forcibly conflict with the patient’s
interests. Yet, in situations in which every soldier is needed to fight, a physician-soldier may be
pressed, with regard to military necessity, to send patients back to service earlier than would be
desired under normal circumstances. In this case, military necessity competes with the principles
of autonomy, beneficence, and/or non-maleficence and is given more weight. This is problematic
insofar as individual and collective considerations are mixed together and pitted against each other.
Nevertheless, this is also true for many other non-medical issues during war, in which soldiers are
often merely recognized as part of a group rather than as individuals. Thus, as long as the weighing
and balancing of the principles is done with a decent level of precaution, one could possibly accept
the resulting decision.
Case 3: Dealing with detainees The third group of cases briefly analysed here deals with
physician-soldiers’ treatment of detainees. It is twofold and can be separated into purely medical
treatment on the one hand and other relationship on the other. The first is governed by medical
ethics only, which dictates that there should be no difference between treating your own and the
enemy wounded. Military necessity is not a consideration here and the cited regulations in IHL are
clear on this issue (cf. Extending medical ethics section). On the other hand, military considerations
are sometimes referred to when medical officers are dealing with detainees; most prominently, in
recent years, the participation of physicians in interrogations and in the treatment of hunger strikers
have been questioned. Typical questions in these cases include, inter alia, should medical personnel
comply with orders to force-feed hunger strikers in order to save their lives (and inhibit insurgency
among the fellow detainees and bad media coverage)? Are physicians allowed to disclose patient
information in order to facilitate interrogation? Are physicians allowed to participate in ‘harsh’
interrogation procedures? In these cases, standard principles of biomedical ethics are weighed
against the possible benefits of gaining information, which could result in military advantage, and
the exceptions are justified with reference to military necessity. Take the following case that has
been reported to an ICMM LOAC teacher:
Example 5: Taking part in Interrogation
During his service on a hospital ship, a medical officer is regularly ordered to take part as an
observer in interrogations of detainees. Repeatedly, he is a witness of ‘harsh methods’ that come
close to torture. The physician tries, by intervening at early stages, to reduce the use of these
methods to a minimum. However, he does not report the incidents to his superiors or neutral
is the principle that leads to stronger obligations vis-à-vis persons with a closer relationship. See also Gross
2012.
agencies (for example, the ICRC) because he thinks that he would be withdrawn from the tasks
and that his colleagues would tolerate even harsher methods.
The physician does not cooperate mindlessly, or follow orders without questioning their legality.
He seems to be quite aware of the problem and of the fact that he witnesses unlawful and unethical
acts. However, his deliberation leads him to think that he is still acting in the best interest of the
‘patients’ as they would be treated even worse if he were not there to intervene. Weighing non-
maleficence against beneficence he concludes that his act leads to the best possible results and
is, therefore, in the best interest of the patient (best interest replacing autonomy here). But the
physician does not explicitly recognize his tacit concession that there is a (military) necessity
for the harsh interrogation that overrides his basic medical beliefs by allowing for a calculus
completely alien to medical ethics and that violates IHL regulations.
In contrast to the return to duty questions in which military necessity would be a principle
among others, when the participation or cooperation of physicians in interrogation is concerned,
ordinary medical ethics seem to lose every reasonable influence. Basically giving up fundamental
bioethical principles, such as the obligation not to harm, cannot be justified within a framework
of medical ethics, and even military medical ethics. Consequently, military necessity is the only
principle on which justifications of, for example, harsh interrogation methods could eventually
be based. While he still acts as a physician in the first two groups of cases (by medically treating
patients, even if the priority rules might have changed), his participation in interrogation violates
the most fundamental principles of his professional ethos. As medical ethics are not respected at
all, there should be no room for a physician-soldier to take part in such action.
Case 4: Emergency relief Ethical guidelines for situations of emergency relief missions (for
example, after earthquakes) should be strictly distinguished from military medical ethics in the
narrower sense. Most importantly, there is no situation of conflict that could influence moral
deliberation in emergency relief missions. The deployment of military troops in disaster relief
follows an occurrence of a humanitarian catastrophe and is motivated by ‘altruistic’ considerations.
Thus, even if military personnel are leading the mission, it is not a military deployment in the basic
sense. Military ethics, being a framework for situations of armed conflict, therefore do not apply
as international regulations for emergency relief missions. Physician-soldiers can and will take
part in such deployments fulfilling only their role of a physician. During emergency relief action,
it is normally civilians that are treated and, therefore, a normal physician–patient relationship is
established even if it is, from the beginning, limited to a short period of time. The main difference
from civilian medical ethics ‘at home’ lies in the scarcity of resources that, once again, entails
the need for triage. In contrast to military triage, one will primarily focus on the principle of
(distributive) justice in order to save as many lives as possible and to do as little harm as necessary
during emergency relief triage. This could, for example, mean that a slightly wounded physician
would be treated first in order to then be able to support his colleagues. It could also mean that a
severely wounded person, who could be saved when the only victim, would not be treated (what
could mean to give palliative treatment but without trying to save the live) in order to distribute the
available resources to more people.
Roundup
The four analysed case groups illustrate the complexity of the profession of physician-soldier
and the changing role obligations that they oscillate between depending on situational demands.
However, we think that there are very few examples in which the different ethical obligations
conflict in a dilemmatic way that leaves no acceptable way out. The challenge consists of
deciding which logic and which set of ethical rules are pertinent in specific cases. We have tried to
demonstrate this through the use of case studies. According to our approach, the role of physician-
soldiers has to be interpreted differently with regard to the dominant characteristics of concrete
circumstances. Depending on the environment, they would act according to their role either as a
soldier or as a physician and be bound in a stronger way to the corresponding set of ethical rules.
Nevertheless, the alternate set of ethical rules and obligations (be it the medical or the military)
must never be completely ignored and the overriding of whatever principle must, in any case, be
justified by cautious reasoning and be based on strong arguments.
It is certainly true, not only within our context, that consensus will rarely be found in ethical
matters. Mutual consent becomes all the more difficult when the number of individuals and/or
cultures involved increases. Therefore, it is most important to clearly spell out the arguments and
presumptions that lead to a certain moral judgement. The aim of dialogue on moral questions should
not necessarily be agreement, but transparency of standards and disclosure of basic principles. As
a result, individuals who find themselves in morally challenging situations will more likely be able
to make and justify their own appropriate judgements.
Clearly, this comparably open approach to military medical ethics remains challenging and
its application to concrete cases presupposes adequate ethical education and knowledge among
the concerned medical officers, dialogue to exchange experiences and refine the distinctions, and
further consolidation in research.
Outlook
Ethics Education and Research within the ICMM
In our last section, we will briefly outline how the ICMM, in recent years, has tried to address the
need for combined military medical ethics research and education. Namely, some new structures
have been developed within the neutral body of the ICMM Reference Centre of Education of
International Humanitarian Law and Ethics, based in Switzerland.13 They are far from being
perfect, but we believe that these structures represent a valuable approach to current needs.
LOAC courses: fostering knowledge For more than 10 years, annual ICMM mandated courses
on the law of armed conflict have taken place in Spiez/Switzerland. Every year, medical officers
from all over the world come to improve and consolidate their knowledge in IHL. A solid training
and education of the LOAC is the basis for adaptive and ethically sound behaviour of (physician-)
soldiers. However, feedback given by participants with experience in deployment also suggested
that the LOAC does not always keep up with real-world changes and, therefore, cannot always give
sufficient guidance. It has been revealed that the knowledge of the LOAC alone does not suffice
for dealing with the challenges of deployment during war, PSO, or emergency relief. Aspects
of military medical ethics underlying humanitarian law, the LOAC, and the ethical behaviour
of military physicians will therefore be included in the teaching and discussion of such courses
13 http://www.reference-centre.ch/.
starting in 2012.
Advisory Board: deepening analysis and research Further analysis of problematic issues
is required. They will be given attention by the ICMM Advisory Board, which is composed of
international experts in ethics and IHL. Together, they investigate and try to address ethical issues
raised during or after deployment. Unlike deployed soldiers who have to make instant decisions,
the members of the advisory board can take their time to reflect on the cases presented to them and,
thus, make judgements based on solid research. The aim is to build up a worldwide network of
scholars from different origins and cultures that can be consulted to formulate recommendations.
Military medical ethics workshop: strengthening dialogue Annual workshops on military

medical ethics issues bring together people from the professional fields involved with those doing
academic research to share their experience and expertise. Coming from different backgrounds, the
participants raise dissenting, or even contradictory concerns and opinions seen by those working in
the reality of military deployment and those thinking in the ‘ivory tower’. Cases illustrate situations
in which the regulations of international humanitarian law are not easily applicable or in which the
limits of current international legislation become visible – ethical dilemmas that leave no simple
course of action to be taken.
The main aim of the workshop is to strengthen dialogue between medical officers from different
countries on the one hand and between researchers and those from the field on the other.
Conclusions
The need to dedicate more attention to research in military medical ethics has been restated in this
article but had already been pointed to 30 years ago by Howe:
Without such writings [i.e., on bioethical issues arising in military settings], military medicine will
continue to operate according to principles of expediency, and the potential for abuse will remain
unchecked. (Howe 1981: 837)
Military medical ethics is a new discipline or field of interest motivated by a concern expressed
by physician-soldiers and by the general preoccupation with sound principles and moral behaviour
among military medical personnel. The development of military medical ethics should follow the
same aim that has been formulated recently to guide military ethics by the editors of the Journal
of Military Ethics:
In sum, military ethics is at its core practical and professional. It is meant to be the handmaid of
the profession of arms. It exists to assist thoughtful professionals to think through their real-world
problems and issues. (Cook and Syse 2010: 121)
As a consequence, military medical ethics should be oriented towards the real-world problems
that military medical officers face or perceive. To support this further research and deepening
of analysis, it is therefore important to collect reports of (perceived) dilemmas to orient future
activities.
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Chapter 17
Medical Education: Teaching Military Medical
Ethics at the Uniformed Services University of
the Health Sciences
Edmund G. Howe
Overview
At the Uniformed Services University of the Health Sciences (USUHS) in Bethesda, Maryland,
USA, all students have been required to study medical ethics since the first class came to USUHS
more than 30 years ago. All students have taken, since the school began, a required 22-hour course
in medical ethics in their second year. This course includes the discussion of topics addressed in
civilian medical schools but, unlike these schools, includes a three-hour session in military medical
ethics. I have been directing this course since its inception.
The students discuss ethical issues in military medicine in numerous other contexts throughout
their four years at the school. The Department of Military and Emergency Medicine prepares them,
for example, for the military roles they will confront, and the students participate in simulated
combat situations, in which they have to decide, for example, how to triage and how to respond to
illegal orders to mistreat a detainee. These exercises are carried out outside the classroom ‘in the
field’.
In the second-year course they explore the different, often conflicting, ethical values and
arguments that may arise in these contexts. Here, my main goal is to expose them to key ethical
issues so that they can recognize these ethical issues when they present and then evaluate them
soundly. I also hope to enable these students to have greater awareness of their own value biases so
that they do not unknowingly impose them.
Structurally, this course has been divided into nine sessions. Each session focuses on a major
topic. Most sessions in this medical ethics course are devoted to traditional topics, not the military.
Students study these topics through the ‘tool’ of rational argumentation, and also the humanities.
Hopefully, using both modes will help them better appreciate the nuances inherent in ethical
conflicts. They see, for instance, a live performance of the play ‘Frankenstein’ that depicts this
well-known creature’s response to others treating him badly (Howe 2011: 290–4).
The military medical ethics component is three hours. During the first half of each class,
speakers present their views, generally, on conflicts that they have personally experienced. For
example, military physicians who have served in Iraq have spoken about their experiences. One
described how going to his direct commanders and then ‘up the chain’ to higher military authorities
improved living conditions for Iraqi prisoners. Another military doctor described a similar initiative
on a Navy ‘medical ship’. Along with other colleagues, she tried to get the ship’s commander to
agree to put enemy prisoners in less restrictive restraints. Again, by taking this request up the chain
of command, they succeeded. These speakers model for the students how it is possible to pursue
compassionate interventions on enemy prisoners’ behalves.
During the last half of each class, students are divided into discussion groups of approximately
eight students to discuss cases I provide in advance. Each faculty member facilitating these
discussions receives guidelines in advance for discussing each case so as to highlight key values
the students should ‘bring to the table’ during their conversation. Each group may discuss one or
two cases in more depth or discuss several cases, depending on how engaged they are in particular
discussions.
I shall discuss this course in more detail now in three main sections. The first section will
describe the main goals of the course. The primary goal is to enhance the students’ capacity to
think about these issues, as opposed to providing them with ‘rules’ that they might less thoughtfully
apply. The second section will present the principal ethical issues discussed. These issues involve
three areas: military physicians’ duties to their own soldiers, their duties to enemy prisoners and
their duties to civilians. The final section will discuss the means by which students are evaluated.
The Goals of the Course
In this course, I do not teach what I, or the military, presently ‘thinks’ is the right or wrong answer
to any problem or dilemma. Rather, I encourage students to think through these issues themselves.
My main goal is for students to acquire important ‘tools’ for resolving ethical conflicts on their
own. This is especially important because they may well confront new ethical issues in their future
careers. Thinking critically about ethical issues does not provide hard and fast answers, but helps
students learn how to make the best ethical decision with a set of general guidelines in situations
where there is no one to solicit advice. Thus, students must first consider certain questions that
are primarily, at least at this time, theoretical. An example is whether active euthanasia is ever
justifiable during combat (Swann 1987: 545–9).
The students are also exposed to an extremely wide range of questions that others have raised
in regard to military medical ethics. One such question is the extent to which the military in its
combat efforts should use animals, such as dolphins, if at all. (Vogel 1998). Such a question allows
students to consider different presuppositions regarding the moral status of animals. The goal is to
enhance the ‘range’, as well as the depth, of the students’ thinking.
Since neither the presentations nor discussion groups provide ‘right’ answers, this can be
frustrating to students who want right answers. Thus, I explicitly inform them that the purpose of
this course is to give them tools to assess the conflicts the course poses, not to provide them, as
I have said, with ‘rules’ or algorithms that they can uncritically apply in each and every real-life
dilemma they encounter. I emphasize that they may be faced with situations in which there simply
is no ‘one right answer’ to the question ‘What should I do?’ They may be forced, then, to choose
the least-worst of two (or more) alternative courses of action.
The students learn several approaches that can be used adjunctively (though sometimes these
approaches may conflict). These include formal ethical analysis; casuistry – or how they can
use other, similar cases; the care perspective – or how they can pay particular attention to the
relationships between people and their feelings; and the narrative approach – or how they can
understand each person, uniquely.
In recent years, since the attacks of 11 September 2001, I have added new issues to the prior
curriculum (Gross 2006; Lifton 2004: 415–6; Miles 2004: 725–9; Annas 2005: 2127–32; Bloche
and Marks 2005a: 3–6; Bloche and Marks 2005b, 6-8; Howe 2003a: 175–88; Beam 2003). The
students have, for example, heard an attorney who represented detainees at Guantanamo. The
students also explore whether it is ever justifiable to use approaches, such as waterboarding, if
Medical Education 281
it seems that such an approach would save many people’s lives. The ‘torture debate’ exposes
students to the classic hypothetical ‘ticking time bomb’ example, and to whether saving others in
danger, be they servicepersons or civilians, is ever certain. Finally the discussion explores whether
waterboarding could ultimately undermine the moral principles for which a country is fighting.
Students also address ethical issues in respect to other controversial practices, such as the force-
feeding of detainees who refuse to eat. The arguments for force-feeding have been, and continue
to be, challenged (Howe 2009: 75–102; Howe, Kosaju, Laraby, and Casscells 2009: iv–xiii). Some
critics argue, for example, that since we are detaining these detainees, we must absolutely preserve
and protect their lives. Others believe that detainees should retain, if nothing else, their option to
express their autonomy, even if by their refusing to eat.
A key pedagogic dilemma is how to best ‘reach’ all medical students when the prior values they
‘come in with’ are highly diverse (Howe 2001: 97–110). A clash of medical and military ethical
obligations may occur (Howe 1997: 419–514).
Hopefully the students come to be aware through this course that reasonable people may
reasonably have different views, and that all military policies, as currently written, may not be the
best ethical options. Thus, these students may be among those who try to change military policies
in the future.
Core Topics and Key Ethical Issues within Them
Conflicts between Military and Medical Loyalties
Should physicians even be in the military? The issue I start with each year is why it is ethically
justifiable for physicians to serve in the military. This reason is, perhaps, self-evident, but, to some,
it is not: military physicians supporting those who fight may, ultimately, in net effect, prevent harm.
The core values in conflict are healing, which is the primary goal of medicine, and if necessary
harming to achieve a possibly greater goal; namely, the protection of society, which is the ultimate
goal of the military. The key question is whether care providers should be excluded from having any
role in harming, so that that they can more or less exclusively ‘heal’. Some exceptional privileges
are assigned, for example, to civilian clergypersons and attorneys in the greater society.
On this topic, students have heard a presentation by a physician who, after joining the military,
came to believe that the war in Iraq was immoral – that this was not a just war. She then refused to
continue to serve in the military since her continuing to serve violated her moral conscience. She,
like Dr Gordon Livingston, about whom I shall say more about later, modelled for the students how
they, too, may ultimately come to place the dictates of their own, personal, spiritual and/or moral
beliefs above their duties as members of the military, even though it may be that in so doing they
may have to pay not a small price. On the other hand, I also discuss why military doctors may be
most justified in not only serving in the military, but also in giving priority to military goals: to save
innumerable lives and, even, a way of life.
Should the military or ‘medicine’ come first? A second, major question is: to whom do military
care providers owe their greatest loyalty – their society, or their medical profession and their
patients? The greatest ethical problem here for students is that military physicians may have, or
at least feel that they have, mixed or dual loyalties (Howe 1986: 903–13; Howe, McKenzie, and
Bradford 2011: 727–49). In these contexts, military doctors may have, or feel they have, duties to
their patients and to the military that not only conflict, but are, or seem, mutually exclusive.
Here again, the major conflicting values are the individual interests of patients and the interests
of the overall greater society. Physicians have duties to their medical profession, but these duties
may come into conflict with those duties of the military which, ultimately, reflect the needs of
society. The core questions are which values should prevail and when.
Michael L. Gross states, on one hand, ‘If one can substantiate a supremely important goal … by
definition, the same goal must direct the behavior of medical professionals’. He continues, ‘… when
convinced that their state’s interests are at risk, professional medical obligations emphasizing the
priority of the patient fall to collective survival …’ (Gross 2006: 331; Gross 2008; Howe and Gross
2008: 6–7). Gross argues that military medical personnel are not only ‘angels on the battlefield,
saving lives’ but an integral part of their nation’s war-making machine. He highlights differences
between conventional war and asymmetrical war in which guerrilla groups and/or lawless regimes
are involved. Gross also addresses such problems as enemies mingling among civilians and the
possible use of non-lethal weapons to temporarily incapacitate an enemy. He suggests that in even
the most ethically problematic roles, there is no need to exempt health care professionals, but
that, even so, they should always scrutinize their own country’s policies to ensure that they are
sufficiently just and humane (Gross 2008).
The students, considering the possible importance of context, address a specific question Gross
has raised: what should a country do if its enemies mingle among civilians just outside their own
country’s border and shoot rockets from across that border into the country? (Howe and Gross
2008: 6–7). I ask students to consider the following question: ‘Should circumstances make the role
of military care providers different in one context from what it should be in another?’
Conflicts Involving One’s own Soldiers
Military medical triage Several important areas of military medical ethics involve military
doctors’ treatment of their own soldiers1 (Howe 1987b: 46–62). In this context, students consider
that military ‘needs’ and soldiers’ individual interests may differ, and that, as the military’s needs
become greater in importance, soldiers’ interests may need to be sacrificed to a greater extent.
The first example is that of military medical triage. The military goals, according to this principle,
are to treat sick or injured soldiers and to seek to fulfil the military’s ‘missions. These goals may
conflict with civilian physicians’ conventional goal in non-military triage situations, which is to
provide medical attention to the more injured first. A noteworthy example of the military’s ‘sliding
scale’ triage occurred during World War II. At the time there were limited amounts of penicillin
available. The available penicillin could be used either to treat soldiers with venereal disease so
that they could return to the front, or soldiers with more severe infections who would likely die
without the penicillin treatment. The decision was made to give the available penicillin to the
soldiers who could return to the fight because, in this situation, winning the battle and war were
deemed more important than saving the lives of the seriously ill soldiers.
A key point raised in this section is that soldiers know and accept that they may lose their
lives in the service of their country. In turn upon entering the military, military care providers
also implicitly agree that winning the war will be their priority. It is only to ‘win the war’ that
soldiers are willing to risk their lives for their country in the first place. Severely injured soldiers
1 Throughout this chapter I shall use ‘soldiers’ as a generic term for members, male or female, of all
branches of the armed services
not receiving penicillin might, like soldiers still at the front, be at risk of losing their lives for the
greater good of society.
Sacrificing autonomy Soldiers, on entering the military, promise to give their lives and/or to make
less severe sacrifices, when necessary, for the military to accomplish its ends. The nature of this
promise may greatly vary depending on numerous factors, such as whether they have volunteered
or been drafted. Military care providers are among these soldiers. Soldiers also implicitly accept
upon entering the military that the decisions that may put them at risk will be made by those higher
up in their chain of their command. It is also true that these ‘higher-ups’ may make decisions that
endanger their lives for reasons they will not know.
Soldiers know and accept that while in the military they may be asked to sacrifice certain rights
they would have as civilians. One such right may be to autonomously make certain choices. One
such example occurred during the first Gulf War. The military gave soldiers agents to try to protect
them from biological and chemical warfare (for example botulism). These agents had not been
fully tested for human use in prior research. This research, itself, would have been unethical. Data
from the botulism vaccine used in other, non-military contexts suggested that in this context, its use
could be profoundly beneficial if Iraq were to deploy missiles containing botulism. For this reason,
soldiers were required to accept the vaccine against botulism whether or not they were willing to
give consent (Howe and Martin 1991: 21–4).
During this section I pose subsequent questions for student’s to ponder, such as: should such
untested vaccination be given to enemy prisoners and/or near-by civilians? If so, how should this
treatment be administered? I suggest that as military needs decrease in importance and in urgency,
values prioritized in civilian contexts should increase. For instance, the military could provide, at
no expense to its mission, the most advanced reproductive assistance to couples wanting to have
biologically related offspring, but unable to accomplish this ‘on their own’. This medical assistance
would not directly further a combat effort, but may increase soldiers’ morale, though it may go
beyond what the military is willing or able to provide.
Military research Soldiers participating in military medical research is a context in which the
conflicting needs of the military and individual soldiers are not ‘balanced’. Research in some areas
might be beneficial to the military, and this research might be furthered by asking soldiers to
undergo significant risks by participating as research subjects. Such risk would be similar to the
risk in combat. In contrast to combat, however, it is deemed absolutely critical in military research
that soldiers be afforded at least the same protection as civilian research subjects. This implies that
soldiers should not undergo unreasonable risks and should be given greater protection from ‘undue
influence’. Though soldiers are willing to make sacrifices for their country during combat, this risk
should not be increased by their also participating in research that is too risky. Students learn why
this would be ethically problematic; namely, that such participation would violate the principle
of justice. Soldiers already make exceptional sacrifices for society: their burden should not be
increased due to their participation in research. In contrast, society’s burdens should be distributed
as equitably as possible (Howe, Kark and Wright 1983: 119–25).
I suggest to students that society may also owe soldiers some exceptional benefits as repayment,
in part, for sacrifices they make for the greater population. Examples may range from providing
soldiers with less expensive goods on military bases to the possibility of having earlier access to
medical innovations (Beam and Howe 2003: 853–7). An example of such earlier access to newly
developed medical innovations might be a ‘blood supplement’ that soldiers could carry during
combat to maximize the chances of saving injured soldiers’ lives. This example illustrates for
students the ethical principle of ‘compensatory justice’.
Asking soldiers to participate in research also could risk exploiting their ingrained tendency
to obey orders (McManus et al. 2005: 1120–6; McManus et al. 2007: 297–303). Soldiers may
feel that they have a duty to participate. Due to their expectation that they will follow orders in
other contexts, it is doubly important to protect soldiers from implicit coercion in the research
context. Similarly, soldiers might be motivated to volunteer in the hope that this might help them
be promoted. Soldiers might volunteer, on the other hand, because they have an exceptional desire
to make sacrifices for others. This altruism might be most admirable and these soldiers, most
courageous. Still, investigators could wrongfully exploit these soldiers’ exceptional altruism and
courage by allowing these soldiers to participate in overly dangerous research. Allowing this to
occur would violate both the principles, then, of both justice and non-maleficence.
Students at USUHS, being members of the military as well as medical students, are themselves,
protected from this same potential of being exploited. Based on USUHS policy, they cannot be
asked to participate in research by their teachers or by those who are higher up in rank and in their
chain of command.
Confidentiality From the military’s perspective, students learn that military care providers’ have
two major goals, which are to maintain the health of soldiers and to provide their commanders
the most accurate information possible regarding the unit’s health. In the light of these two goals,
students discuss which value priorities they should follow to maximize these goals.
In most cases, they can only maximize both of the above goals by giving priority to meeting
soldiers’ needs as patients. To best further these two ends, military care providers need to take the
initiative in clarifying for soldiers which hat they are wearing – that of care provider or that of
military officer – if and when this may be unclear to soldier/patients. Soldiers may be uncertain
whether the military doctor treating them is acting primarily in his or her role as a physician or
as a military officer.2 Military physicians can help avoid such ambiguity by explaining to these
serviceperson-patients which of these two roles they are serving, prior to their asking questions
which could result in these serviceperson/patients inadvertently incriminating themselves (Howe
1989: 317–37; Howe 1991: 301–24).
Students learn that this approach furthers these soldiers’ autonomy; therefore, it also most
respects soldiers as persons. In the long run, this may heighten military care providers’ ability to
both keep their units ‘healthy’ and to enable them to inform their commanders most accurately
regarding their unit’s health and, thus, its readiness for combat (Howe 1988a: 5101–12; Howe
1988b: 7–11; Howe 1988c: 72–6; Howe 1988d: 140–4; Howe 1981: 837–40).
In the past, the ethical question of disclosure of soldier-patients’ information occurred when
homosexual soldiers came to military physicians for medical reasons related to their homosexual
conduct. Some military physicians believed that they should report these soldiers if they
acknowledged that they were gay. Other military physicians did not (Howe 1987a: 111–49; Howe
1999; Institute of Medicine 2009). This dilemma will no longer arise under the new policy enacted
by US President Obama. However, similar examples involve soldiers who use illegal drugs. If the
military physician takes a drug history, a soldier having recently use marijuana may believe that
the military doctor is asking questions about illegal drugs in the physician’s medical role, when
2 In the US armed forces, as in those of many other countries, all serving physicians hold officer rank:
they will thus outrank many, if not most, of their patients and this may well add to the feelings of inferiority/
disadvantage that ‘ordinary’ soldiers may have when faced with an officer.
this is not the case. The soldier could unintentionally incriminate him or herself if he or she shared
this information wrongly believing that the military physician was acting in his or her medical role.
Thus, students consider specific arguments in favour of and against reporting soldiers who
share their illegal drug activity. If a soldier is using drugs, it is more likely that he/she will be
impaired, which is particularly dangerous if the soldier’s duties involve weaponry. Using illegal
drugs may be risky for him/herself and/or others, as well as for the greater society. Drug usage can
also reduce the success of the military’s mission. At the same time, there are negative consequences
resulting from care providers not disclosing to soldier-patients that they report soldiers who use
illegal drugs. By withholding this information, the care provider has implicitly deceived the soldier.
Such a deception could cause military doctors to lose the trust of other soldiers if these soldier/
patients tell other soldiers what has happened to them.
Finally, care providers not providing such warnings before reporting soldiers may inadvertently
discriminate between those soldiers who use illegal drugs but are ‘too savvy’ to disclose soldiers
who are less savvy. Furthermore, the solider may honestly assume that military care providers are
asking questions about their drug use in a medical role, not military officer roles. If military care
providers inform all soldiers they see, prior to taking a drug history, that they will report them upon
disclosing illegal drug use, this ‘levels’ this particular ‘playing field’.
In fact, military care providers giving this warning may have the net effect of increasing
soldiers’ trust amongst the soldiers for whom they care, which may ultimately encourage soldier-
patients to share more important information regarding their health. This, in turn, may enable
military care providers to best meet the military’s needs: attending to the health of these soldiers
healthier and providing the soldiers’ commanders with accurate information regarding their health.
The students are asked also to compare and contrast the dual commitments within the military
context to similar conflicting duties faced by civilian doctors. One example is whether a physician
should publish the picture of a wanted criminal in a dermatology journal. Another is whether a
physician should participate in capital punishment (Gaylin 1976: 90–3; Curran and Casscells 1980:
226–30). These examples challenge the students to find criteria for going ‘one way or the other’
and illustrate that civilian doctors also face similar ethical dilemmas.
Treating soldier-patients for combat fatigue While some issues that students discuss vary from
year to year, a specific ethical issue I always address is how military care providers should handle
soldiers who present with acute stress or with what used to be called ‘combat fatigue’ during
combat. The important point, in this context, is that if military physicians relieve all these soldiers
of all further combat duties, this action may open up a floodgate through which others, for conscious
or unconscious reasons, may follow suit (Beam 2003; Veatch 1977: 61–4) This could undermine
the combat mission.
In these circumstances, one possible reaction of military physicians is to give affected soldiers
brief respite, food, sleep, and, most importantly, to try to instil in them the expectation that after
they recover, they will return to their units.3 Ethically, some people hold that the above practice
is justified and, indeed, optimal, because soldiers will then be less likely to develop subsequent
psychiatric symptoms due to survivor guilt – guilt produced by their having survived, due to being
separated, when others in their unit have, later, been killed. Though this belief may be open to
question, military doctors’ experience, stemming back through World War II, has tended to suggest
that if soldiers experiencing such acute stress are removed from their unit, they may subsequently
3 In practice, this is generally what happens and the soldiers are back with their units in relatively short
order.
have more emotional problems. The ethical principle of respecting these soldiers’ autonomy might
be viewed, in contrast, as requiring military care providers to give these same soldiers the choice
of returning to battle with the consequent risk of injury or death, or to return to the States. Soldiers
might choose the latter course of action, because they would prefer the risk of psychiatric morbidity
to the risk of combat injury or death.
The students are encouraged to consider the countervailing justifications of trying to return
these soldiers to their unit as opposed to removing them from additional combat stress. One factor
students are alerted to is the fact that if they relieve one soldier from further combat duty, others
may, consciously or unconsciously, ‘believe’ that they too can ‘escape’ from further combat duty
and its risk of death in this same way. Such an occurrence could decimate the unit’s fighting
numbers and, thus, its strength. The only sound rationale for military care providers treating these
soldiers differently from how they would treat comparable patients in civilian contexts is, then, to
meet the needs of the military mission.
In reality, commanders, not military care providers, have the ultimate responsibility for deciding
if and when soldiers with physical or emotional problems should return to duty. The care provider,
in theory, informs the commander of the state of the soldier’s health, and the commander, with
this knowledge, decides whether the soldier is needed in combat, despite the soldier’s being ill. I
provide an example from World War II where there was an exceptional military need for soldiers
and the ill were asked to return to battle.
Soldiers feigning emotional illness Soldiers in this and other military contexts can, of course,
feign anxiety or other symptoms. They may also feign emotional problems during basic training in
the hope of obtaining some secondary gain, such as being released from further military obligations.
The military provides other means by which such soldiers may directly seek these same ends. They
may, for instance, directly request that they be released from duty.
Therefore, if and when soldiers’ conduct raises the possibility of their ‘malingering’, military
care providers are expected to discuss other options with these soldiers and, whenever possible, to
pursue approaches that will give emotionally ill soldiers an opportunity to recover. Soldiers who
are not truly ill will be able to pursue other, more direct, options for dealing with their stress. For
example, in a non-combat setting military care providers may give these soldiers an opportunity
to engage in psychotherapy and have a trial of psychotropic medication before they support their
release from the military.
Soldiers who want to return to combat An additional issue students consider is how military
physicians should treat soldiers who want to return to combat but who have, or have had,
psychiatric problems that could interfere with their ability to serve in this role (Howe, McKenzie,
and Bradford: 2011: 727–49). Many soldiers serving in the military have strong feelings about
wanting to return to their unit. A soldier may feel that his or her purpose in life lies in being a
soldier and in serving his or her country in combat. Further, they may do better, psychologically, if
they can remain with their fellow soldiers. This possibility is consistent with and, indeed, the ‘flip
side’ of the increased emotional problems they may experience if they are separated from their unit
by an injury or combat fatigue, which may later cause the soldier to endure survivor guilt.
The risks inherent in returning to duty differ, of course, depending on what diagnosis and
symptoms soldiers have acquired. For instance, if a soldier has had post-traumatic stress disorder
he or she may experience greater stress in combat. The same holds true if the soldier has had a
traumatic brain injury. Both could result in greater risks to the individual soldier and his or her
unit. Even if the soldier may do worse when re-exposed to combat stress, they may, nonetheless,
want to return. Further, it is uncertain when, if ever, it is best for soldiers to return to combat after
acute stress. Some soldiers may do better, possibly because they can rejoin other soldiers with
whom they feel close, but others may do worse. It is not known which soldiers would be in which
of these two groups. Such uncertainty makes these decisions all the more difficult for military care
providers yet it requires that they still be able to balance competing options.
Finally, it is important that the military not keep a soldier in the unit who could pose too
great a risk to the mission and/or to other soldiers’ lives. When soldiers have significant emotional
problems, it may, again, not be possible to accurately predict how they will act and react in combat
situations. Thus, to fulfil the mission and the promise implicitly made to all soldiers to keep them
as safe as possible, it may be necessary to not return a soldier to his or her unit when his or her
behaviour cannot be accurately predicted.
Conflicts Involving Enemy Prisoners
Triage and treating enemy prisoners ‘equally’ Another core issue always discussed is how care
providers should perform triage when they must decide between attending to the needs of their
own versus enemy soldiers. Some believe more strongly than others that military care providers
should give greater priority to their own troops’ treatment because such treatment is important to
maintaining their own troops’ morale.
Many students at USUHS have had prior military experience before coming to USUHS and the
above view, as one would expect, is particularly common among those who have seen combat. It
is, however, US military policy to treat its own and enemy soldiers equally. The US has agreed to
this obligation under the Geneva Convention.
Once enemy soldiers are captured they no longer pose the same degree of threat. Treating
captured enemy soldiers equally would require, in addition, that the US should not mistreat
captured enemy soldiers and that soldiers, including military doctors, should report abuse if and
when they think that abuse has occurred.
This concept of treating enemy soldiers equally is especially difficult for some students to
accept under conditions in which they would know that the prisoner has killed one of their own
soldiers. This may be most difficult for them also if they believe that these enemy soldiers may
have information that could save their own soldiers’ lives.
In these discussions, students are introduced to the possibility that their legal requirement to
treat enemy prisoners equally may be implemented in a way that is significantly ‘elastic’. That is,
it may be that if they choose to, they can ‘game’ this standard. For example, it may be possible for
them to expand the categories of serious illness into which they divide patients’ injuries when they
‘triage’. As an analogy, one could expand the category of 14-year-olds to that of ‘teenagers’! When
deciding whom to treat first, military physicians may be able, within the letter of international
law, to treat more US soldiers first. Since all injured soldiers would be in the same category for
triaging they are, in this sense, equal and there is no explicit requirement within the law for military
physicians to select patients within a category randomly! That is, using a nuanced approach to
triage, military physicians may be able to place more soldiers from their side within the same
category of illness that has been determined needs to have primacy in treatment.
Interrogating enemy soldiers In this section students consider a related question; namely, whether
there are ever cases in which they could or even should refuse to give captured enemy soldiers the
immediate treatment they need because interrogators have requested that treatment be used as a
‘carrot’ to elicit life-saving information from the captured soldier (Howe and Jones 1994: 115–31).
More generally, students consider what actions are and are not ethically permissible as part of
interrogations of suspected ‘terrorists’. Students also consider what should be done when they
suspect that detainees have been subjected to severe pain, serious harm or even death (Howe 2009:
75–102; Howe, Kosaju, Laraby, and Casscells 2009: iv–xiii).
In the US, the military’s view differs from some leading medical organizations on the extent
to which, if any, care providers should be directly or even indirectly involved in interrogating
detainees. The military holds that, in general, psychologists specifically trained for this role should
be the mental health professionals directly involved as consultants in interrogations. The military
does not rule out, however, military psychiatrists from being involved in this role. The American
Medical Association and the American Psychiatric Association disagree.
A relatively new instruction (Department of Defense 2006) from the US Department of Defense
states, ‘Health care personnel have a duty in all matters affecting the physical and mental health of
detainees to perform, encourage, and support, directly and indirectly, actions to uphold the humane
treatment of detainees and to ensure that no individual in the custody or under the physical control
of the Department of Defense, regardless of nationality or physical location, shall be subject to
cruel, inhuman, or degrading treatment or punishment, in accordance with and as destined in U.S
law’ (4.1.1); ‘Healthcare personnel … shall safeguard patient confidences and privacy within the
constraints of the law’ (4.4); and ‘Any health care personnel who in the course of a treatment
relationship or in any other way observes or suspects a possible violation of applicable standards,
including those prescribed in References (b),(c) and (e), for the protection of detainees shall report
those circumstances to the chain of command’ (4.5).
Still, practical questions continue to exist in the application of this requirement. For example,
what constitutes a ‘violation of acceptable standards’? What is and should be the extent to which,
if any, prisoners should be allowed to be isolated or deprived of sleep?
In some cases, absolute prohibitions are clear. An example is the use un-muzzled dogs to
frighten detainees at Abu Ghraib (Priest 2004; Priest and Smith 2004; White and Higham 2004).
This example raises a question for military care providers as well as for all soldiers. Specifically,
whether if there is specific evidence of inappropriate treatment of detainees or are the allegations
of such behaviour are mere rumours. When does a military physician have a duty to ‘whistleblow’
other than to the higher authority commanding such treatment? When, precisely, should this ethical
duty be triggered? There are innumerable related, if less pressing, examples. It may be easier to
examine detainees if they are stripped to their underwear; however, it would be more dignified if
prisoners were given robes. Rectal and pelvic searches a more subtle example. These searches may
be necessary to detect concealed weapons. Nonetheless, searches should be conducted in the most
humane way possible, which means doing these searches in a way that respects detainees’ cultural
norms. Thus, the gender of those who search detainees may be a critically important factor.
The standards any country adopts or establishes may be inherently ‘more’ right or wrong and
in either case also may affect what other countries do in response to such treatment. If the standard
a country sets is the highest one possible, then it is important in and of itself. In addition, other
countries may be more likely to follow suit.
Gordon Livingston is a psychiatrist, currently practising in Maryland, who went to West Point.
Livingston is known for having spoken out against certain US practices during the Vietnam conflict.
Military practices Livingston deemed unethical in Vietnam included a superior officer’s suggesting
that he leave an enemy soldier to die after he had been interrogated and another officer’s suggesting
that he give a prisoner succinyl choline to get the prisoner to disclose information. Succinyl choline
paralyzes one’s respiratory muscles so that one feels as though one is suffocating. The effect is
essentially the same as ‘waterboarding’, an ‘enhanced interrogation technique’ recently used on

some detainees.
Livingston refused to comply with these suggestions (Livingston 1969; Livingston 1996).
Accordingly, he models for the students, as I have previously mentioned, that military physicians
can confront what they deem ethically unacceptable and act on these beliefs. Each year I bring also
in other military care providers, like Livingston, who have faced difficult moral decisions in the
military and have responded on the basis of their conscience.
I hope that from hearing these doctors, who have faced and made these decisions, the students
will better appreciate that they, too, may do this if and when they feel that they must.
Conflicts Involving Civilians
Treating civilians in occupied territory Another core question always addressed is whether
military physicians should treat civilians in occupied foreign territories. The students discuss when
and whether this wrongfully exploits these patients’ vulnerability.
Treating such patients may make then more favourable towards the military, but treating them
only under some conditions, such as that they divulge family members or friends who are enemy
soldiers, may be unconscionable. Another question raised during the Vietnam conflict considers
whether or not treatments aimed in part toward military gain, or even merely resulting in military
gain, should be carried out. E.A. Vastyan, for example, has questioned the medical approaches
military physicians took to try to win over Vietnamese civilians’ ‘hearts and minds’. He criticizes
military care providers for being willing to ‘exploit’ the vulnerability of these patients in this
occupied territory in an effort to further US military and political ends (Vastyan 1978: 1695–99).
In this session, students address the need to treat civilian patients in an occupied territory as
ends in themselves, rather than predominantly as a means to the US’s political or military ends.
They are asked to consider whether there is a morally significant difference between treating just
a smaller number of such patients, as by treating some with dramatic cosmetic surgery, to gain
the population’s allegiance, and treating greater numbers for basic health needs, such as for life-
threatening infections and parasites.
Livingston also describes his experience regarding the military’s providing Vietnamese civilians
with inadequate supplies of medication. One example is distributing only a few days’ treatment
for tuberculosis. Such decisions may have been made, in part, to ensure that enemy troops would
not steal these medical supplies. Nevertheless, these treatment efforts would likely foster goodwill,
even though they would not ultimately provide these civilians with significant benefits.
Thereafter, I ask the students to consider different kinds of medical interventions, along a
hypothetical spectrum in which some are more exploitative of patients’ vulnerability than others.
In contrast, I also present some interventions that are more likely than others to further US political
or military ends. Plastic surgery, which was performed in Vietnam, and is particularly impressive
to civilians, is at one end of this spectrum, and ‘no medical interventions’ is at the other. I ask the
students where they would ‘draw this line’, and why.
These conversations are similar to the question of active euthanasia, previously presented
and challenge students’ thinking, even if there are not exact comparisons to ethical issues in
contemporary warfare.
I suggest that there are possibly two main alternative motivations of military physicians treating
these patients: firstly, that improving civilian health is the primary goal and the military’s gain
is only secondary, and secondly, that the military’s gain is the primary goal and these patients’
gains only secondary. I point out that the military physician treating these patients may not be
party to, and thus may not know, the many factors underlying the decision to give medical care,
whatever its limits and extents. I ask students to then consider whether this should matter, and
why or why not. I add, in this regard, that military care providers may have no way of telling
which of those alternative motivations primarily apply. I ask the students, whether the military’s
underlying incentives should matter, and then suggest in the light of both of these uncertainties and
ambiguities that the students might wish to reconsider where ‘to draw the line’.
Livingston wrote a piece in the Saturday Review in 1969 in which he cited several experiences he
had in Vietnam that further motivated his opposition to what he saw in Vietnam. Another narrative
explains how military personnel driving vehicles through rice paddies on dirt roads at high speeds
caused so much dust to be blown into the meals of people by the roadsides that they had to throw
the rice away (Livingston 1969). Listening to Livingston describe these experiences underscores the
importance of military physicians, as all soldiers, showing respect for people in other countries even
when – and perhaps especially when – some of these people may also be fighting.
Triaging injured civilians
The United States has agreed under international law that the military will treat enemy soldiers, but
has not agreed that its physicians will treat civilians equally with US soldiers, though there are some
instances, as when US soldiers have injured a civilian, when military physicians are required to treat
civilians.
In some instances, military physicians may find this role-defined duty, to treat their own and
enemy soldiers prior to treating civilians, emotionally most difficult. They may also see this
prescribed practice of not treating all patients equally as a violation of their professional medical
ethical requirements. Not surprisingly, military doctors returning from combat areas have informally
reported that some military doctors have sought to find ways to treat civilians outside and beyond
their military and legally dictated requirements. There may, for example, be cases in which a civilian
could have been injured by the military, but was not. In these instances, it could be that the military
care provider could treat this civilian, and it would appear that his or her providing this treatment was
permissible. Military care providers may be particularly moved to try to provide assistance when it
seems less likely that these civilians would otherwise get the appropriate treatment they need at local
medical facilities in a timely manner.
The emotional anguish military care providers may experience under conditions in which they
are not legally permitted to treat civilians needing treatment is also mirrored in other contexts such as
when they serve in humanitarian missions. In some cases, they are precluded from treating civilians
because if their troops needed urgent treatment, military care providers would need to abandon
the treatment of civilians. Such care providers may also find it difficult, and indeed agonizing, on
humanitarian missions, to be told that they cannot intervene when local groups come into conflict and
cause harm to each other.
I present these dilemmas to students so that they can consider various implications before the
problems occur. In addition to understanding the ethical conflicts involved, weighing various sides of
these dilemmas will better prepare our students to face the challenges that will confront them later
in their careers.
Evaluation
Two approaches are used to evaluate students: a multiple-choice exam and student essays or
projects.
The students take a 100-question multiple-choice exam at the end of the course. Generally,
these questions echo important concepts in the course and, hopefully, reinforce them. Questions
are based on the ethical tools and concepts presented in the course. They are graded on how
they reason, not on their giving ‘right answers’. This is, in part, because reasonable people may
have different ethical ‘answers’ to these questions. Nonetheless, an assessment that includes all,
rather than only some, of the morally relevant considerations that should be taken into account on
‘decision-makers’ tables is a preferable analysis, because it is more complete.
Below is an example. This question involves military care providers giving a warning when
soldier-patients may be unsure which ‘hat’ they are wearing. These physicians may confront this
problem when treating soldiers who may be using illegal drugs, as discussed above.
1. A new regulation requires all military officers to report soldiers they know to be using
marijuana. Upon taking a drug history from a soldier with a cold he reports that he smokes
marijuana on weekends. What is (are) the strongest argument(s) for reporting him?
a. Your upholding military regulations supports their authority.
b. The soldier has reason to know that in the military he is not allowed to use marijuana.
c. The soldier has reason to know that in the military the patient-soldier/doctor
relationship lacks confidentiality.
d. All of the above.
e. None of the above.
The correct answer here is ‘d’. All of the first three answers here are sound, because they each
warrant moral weight. Therefore, a student giving any other answer fails to show that he or she fully
understands the moral complexity of the question. It is noteworthy, in regard to this question, that
‘reporting’ such soldiers is not what this course ‘says’ students should do. Rather, this question is
meant solely to test the students’ reasoning. In fact, the course does ‘suggest’ that in this particular
context there is a strong prima facie argument that initially supports the notion that military doctors
should ‘warn’ such soldier-patients, as discussed above. This is also an example of a context in
which, as opposed to this course being wholly value neutral, the course ‘suggests’ that, whenever
possible, military doctors should strive to act consistently with the ethics of the medical profession.
In this context, giving this warning or showing compassion for enemy prisoners might be the
ethically appropriate action. This outlook is modelled by the military doctors who spoke in the
class concerning their attempts to uphold their own sense of ethical obligations.
This course emphasizes that, while it may be morally optimal for military physicians to care for
all patients equally once they are non-combatants, this is not possible in all the contexts that they
will confront. Physicians may, as an example of possible limitations, have to keep enemy prisoners,
who still may want to cause harm, in restraints. This non-neutral bias is not, however, part of the
above test.
The students also submit an essay or project. The topic and form of this they choose themselves.
They may do, for example, art, write a story or enact a play. This second aspect of their evaluation
better enables them to depict the nuances of ethical conflicts and to individually express themselves.
This part of the evaluation echoes aspects of the course. In addition to students learning about
military medical ethics, they also, as mentioned earlier, study more common medical ethical
subjects, such as issues involving infants, withholding or withdrawing life-preserving care, and
genetics.
In this learning process students are exposed not only to the tools of rational argumentation,
which are applicable to all these areas, but also to other sources that can enhance their medical
ethical knowledge and awareness. As part of their learning about research ethics, for instance, they
see a live performance of the play Frankenstein, performed by a single actor.
This play bears on the question concerning the kinds of research in which care providers should
be involved, and, as I have said previously, it also conveys wisdom regarding the response of this
creature to the care provider who created him and then badly treated him (Howe 2011b).
The student projects may involve virtually any of the humanities. One student, for example,
wrote a poem about her cadaver. Others performed a breath-taking dance depicting a patient with
a fatal illness, her husband and her doctor. The ‘patient’ in this performance declined medical
treatment, because she believed, instead, on relying, wholly, only on her religious faith.
The student indicated in her dance that she would not accept medical treatment by nodding
back and forth to say ‘No!’ My memory of the expression on her face as she nodded to say ‘NO!’
remains as vivid a memory today as it was when she performed her project.
After students perform such projects, I ask them questions relating to their projects and how
they might use what they learned in their later medical careers. For example, I asked the students
who performed this dance to explain how they believed they would and should respond to such
a patient, if the patient had a potentially curable illness, but refused to accept medical treatment,
based on his or her religious beliefs.
Conclusion
I have been teaching military medical ethics, now, for over 33 years at USUHS (Howe 1985: 12–4;
Howe 2009). In this chapter I have discussed how I have taught military medical ethics in a second-
year medical ethics course and described how this course has changed over time.
The emphasis in this course is on how students may best think about ethical issues, as opposed
to its being on what the ‘right answers’ here are. Their ultimate resource, they are told, may be
their own moral conscience (Bloche and Marks 2005b: 6–8; Howe 2003b: 333–5). To highlight the
importance of personal conscience, each year I end this course with a lecture by a historian from
the Holocaust Museum in Washington, DC, USA. She shows a film depicting how Nazi doctors
participated in and contributed to immoral practices. Thereafter, she continues by speaking on the
same subject (Pellegrino 1997: 307–8; Hassenfeld 2002: 183–94; Chelouche 2005: 703–16.) The
point I attempt to illustrate with this presentation is that we all may be more vulnerable to sub-
optimal ethical behaviour than we believe. To amplify this same point, students are also referred
to the work of Robert Lifton in which he discusses how some physicians came to commit Nazi
atrocities (Lifton 1986). It is hoped that these materials will help these students better appreciate
the possibility raised above: that they, too, may be ‘tested’ in their future careers, and their best,
ultimate protection against acting immorally, then, may lie, already, within themselves.
I was recently reminded of this when speaking with several military physicians who had just
returned from serving in the Middle East. One of the doctors present raised a question concerning
his experiences while deployed. He asked what should be done if an enemy prisoner came into
their military clinic needing surgery and the physician knew he or she was the only surgeon on
duty and in the area. Moreover, this physician also knew that a US soldier had the same need for
the same life-saving surgery and was ‘on the way’. The information had just been communicated
by the helicopter bringing ‘in’ the injured soldier. What should they do, he asked, if an enemy
prisoner came into their military clinic needing surgery, they were the only surgeon on duty, they
knew that a US soldier said to have a similar need for immediate surgery was ‘on the way’, and
their commanding officer gave them an order to wait to treat their own soldier first?
All said that those present said they would treat the enemy soldier before the US soldier, because
he was present at that moment. The physician posing the question then stated that this was the
chosen course of action. In this instance, all these military physicians faced with this dilemma, like
the one reporting it, would have had to think for themselves. This, indeed, illustrates the rationale
for emphasizing moral reasoning in this course.
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Index
Abu Ghraib 59, 177, 183, 288 military necessity; non-lethal weapons;
Afghanistan 1, 6, 13, 17, 26, 72-5, 77, 99, public health; SERE; triage
127, 173, 181, 199-201 definition of 44
medical practices in 59, see also civil affair Army Gas Protection Laboratory (HGL) 229, 235
programs; MEDCAP asymmetric war
and civilians 63-5 and bio-terrorism 144-5, 160, 166
and dual-loyalty 60-3 combatants in 1, 17-19, 22, 55, 76, 92
and healthcare 65-8 tactics in 1, 17-23, 26, 76
Afghan National Army (ANA) 64 Australia 144, 161
Afghan National Security Forces (ANSF) 63-5 Australian National University 144
Afghanistan Research and Evaluation Unit (AREU)
67 Bagram Airfield 176-8
Alaska 145 Bangladesh 100
ambulances Bayer 229
attacks on 23, 28 Behavioural Science Consulting Teams (BSCT)
American College of Physicians 40 177-8
American Medical Association 28, 116, 288 Belmont Report 114-15, 245
American Psychological Association (APA) 173, Benghazi 100
181-2 Berlin 232
Anthrax 133, 149, 158, 160, 166, 196, Berlin-Spandau 229, 235
see also biological and chemical weapons Bethesda, Maryland 279
armed conflict Biafra 100
changes in 1, 69, see also asymmetric conflict Bickenbach, Otto 238-9
civilian treatment in 3, 4, 7, 17-22, see also biological and chemical weapons 101, 139-44,
collateral harm; host nations; MEDCAP; 150-2, 155, see also dual use technology
non-combatants development of 159-60, 225, 227, 240
disobedience of soldiers during, see military experimentation in 226
disobedience pros and cons of 159, 160
international treaties of 1, 2, 6-8, 76, see also regulation and censorship of 1-2, 9-10, 155-6,
Geneva conventions; military laws and 161, 226
regulations instances of
medical technology in 1, 2, 8, see also in Caffa 158
enhanced combatants; experimentation in Japan 160
necessities of, see military necessity in Thun L’eveque 158
propaganda in 6, 17-20, 22, 44, 61, 65-6, see in USA 160, 166
also civil affairs; MEDCAP in Vietnam 159
bioethics in 1-8, 17-19, 26, 33, 44, in World War I 12, 102, 155
51, 60, see also biological and in World War II 158-9, 225, 229-37
chemical weapons; collateral harm; treaties and regulations regarding,
confidentiality; dual loyalty; dual use see also Geneva Conventions (protocol)
technology; enhanced combatants; Australia group 161
experimentation; host nations; medical Chemical Weapons Convention (CWC)
care; medical neutrality; medical 155, 161
personnel; military laws and regulations; Biological and Toxin Weapons Convention
(BTWC) 155-9, 161, 164-7
uses of 159 relationships amongst 79-81, 93-4

Bohr, Nils 162 rights of 3-6, 8-9, 45, 47, 54, 73, 76, 82, 94,
Bradford, University of 156 102, 115-17
Brandt, Karl 233, 235, 239, 245 Commonwealth Scientific and Industrial Research
British Limbless Ex-Serviceman’s Association Organisation (CSIRO) 144
(BLESMA) 204 confidentiality, see also medical care, principals of
and civilians 211-12, 221-2
British Medical Association 28, 210 and dual-loyalty 211-13, 218-20
Breslau 225 in the military 209-10, 212-14, 216-18, 220-2
Bulgaria 100 and dual-loyalty 209, 211-13, 215-16, 219-
Bush, George W. 177-8, 182-4 20
Brazil 184 and homosexuality 217-18
and military necessity 210, 215
Cambodia 184 in public health 210-12, 219
Canada 159 Congo 98
Canberra 144 Contagious Disease Acts 211
Central Intelligence Agency (CIA) 144, 148, Crimea 1
176-7, 181
child soldiers 252-3 Dakar 237
Chile 184 Darfur 98
civil war (U.S) 1, 2, 102 Declaration of Helsinki 114, 245
civil affairs programs 18, Defense Advanced Research Projects Agency
see also medical care, of civilians (DARPA) 123, 131-2, 145
unintended consequences of 18-19 Defense Intelligence Agency (US) 130
military benefits of, see state, interests of the Demitry, Peter 132
Coast Guard director of health and safety (US) 129 Department of Defense (DoD) (US) 29, 115, 129,
Cold War 155, 159, 226, 240 181, 247-9, 255, 288
collateral harm, see also non-combatants, justifiable Dexedrine 127, 132-3
harm of disarmament 102-3
of civilians 3, 6, 22, 32, 43-4 doctrine of double effect (DDE), see collateral
definition of 49, 104-5 harm; JWT; military necessity, and
intentions and foresight in 45-8, 52-3, 105-6 proportionality
incidental and accidental, justifications of 43, restrictions on the 52-3, 97
46, 52, 54, 105, 108 dual loyalty (dual agency) 5, 7-8, 11, 17, 37-8,
obligation to minimize effects of 43-4, 48-9, see also medical care, principals of, medical
54, 105, 107-8 neutrality; medical personnel; military
and medical aid 49-55, 64, 74, 107 necessity; triage;
and infrastructure 50-1 and civilian treatment 19-23, 27, 29, see also
limitations on the 52-4 host nations, medical care of civilians in;
treatment of 6, 20-2, 32, 50, see also civil NGOs
affairs; Geneva Conventions conflicting oaths and codes in 60-8, 87, 89, 92,
and utilitarianism 43-4, 46-9, 52, 54, 106 261, 266
limitations of 50-1, 53, 55 definition of 17, 59, 86-91, 94, 267
combatants, see also non-combatants and ethics education 262
captured combatants, see also sere and military medical ethics framework 267-8,
definition of 45, 49, 89, 98 270, 273-4
education of 26 resources and triage in 271-2
and enhanced combatants, use of, see enhanced doctor-patient relationship in 272
combatants; detainees in 272-3
experimentation on, see experimentation and humanitarian aid 273
medical care for, see medical care; military research and education on 274-5
necessities; triage legislation 262
Index 299
medical ethics framework 264-6, 268-9 Dyhernfurth 225, 231-3

and medical neutrality 61-4, 81-2, 85, 88,
91-2, 134, 262 education of military physicians
military ethics framework 265-6, 269-70 and medical ethics course 12-13, 17-18, 33, 279
and military necessity 61-2, 64, 67-8, 178, and military medical ethics course 279, 291-3
241, 262, 266, 269, 271, 273 and civilian treatment 289-90
moral dilemmas of 61, 64-8, 86, 90-2, 262, combat fatigue and stress in 285-6
265 and detainee interrogation 287-9
argument of 59-60, 64 and dual-loyalty 281-2
military vs medical obligations 267 goals in 280-1
and operations other than war (OOTW) 262 and malingering 286
and oversight 61, 64, 67 and medical neutrality 282, 287, 293
policies and ethics of 61-9, 262-3, and research 283-4
see also medical eligibility and return to combat 286-7
dual use technology, see also biological and and soldier patient rights 283-5
chemical weapons; combatants, medical student evaluation in 291-2
care of; medical care, experimentation and training of personnel 17-18, 23
bio-safety 165 Einstein, Albert 162
chemical agents in 230 emblems
countermeasures 10 Red Archway 99
dangers of 9-12 Red Crescent 99, 271
and life sciences 139-40, 142-4, Red Cross 99, 166, 271
see also biological and chemical weapons Red Diamond 99, 104, 271
and Ferret (bird) flu 146-8, 155, 167 Red Lion of Persia 99
Influenza 146, 148 Red Shield/Star of David 97, 99, 104
and mousepox 144, 150, 163 as symbols of neutrality in international law 97,
and polio 145 99-100, 104, 107
smallpox 144-5 enemy combatants, see combatants
and Spanish flu 145-6 treatment of 4-6, 25, 37, 51, 75-6, 80-81
and nuclear physics in 141-2 treatment of detainees 27-8, 74-7, 92, 103 see
definition of 139-41 also medical care, malingering; medical
education concerning 9-10, 156, 165 personnel, interrogation and torture
dilemmas and responsibilities of scientists abuse of 27
in 162-4 English National Health Service 88
and disease 158-60 enhanced combatants, see also combatants, rights
and the Educational Module Resource of; DARPA; experimentation
(EMR) 156-8, 167 bioethics of, see also Belmont Report; medical
and implementation of the BTWC 164-6 neutrality; public health; risk assessment
and prohibition 161-2 and consent 114-15, 117-18, 122-3
web of prevention 9, 139, 151-2, 158, 166 and dignity 122
Ethical, Legal And Social Implications (ELSI) medical model of 116-17
142-3 military hybrid model 120-4
history of 140-2 public health model 117-19
and international trade 139, 165 research model of 114-16
regulation and censorship of 9, 139, 143, 156, and reversibility 122, 127-8
165-6 risk assessment model 119-20
governmental or organizational 9-10, and cognitive enhancement
146-52, 164 cognitive liberty in 128, 130-1, 133-6
self-regulation 9-10, 141, 149-51, 156, 162, consent in 127-30, 132-6
164 definition of 127
research and medical ethics in 143, 162, 165 drugs 113, 121, 127, 130-1, 133
Dunant, Henri 1, 102, 107 definition of 113, 130
examples in 131 Dachau 238-9

instances of Natzweiler 237-9
amphetamines 127, 132-4 Sachsenhausen 237, 240
LSD 133 development of chemical weapons in 225-6,
and military necessity 1 16-17, 121, 135 228-31, 234
and oversight 123, 129-30, 134, 136 and accidents 229-35
and standard/non-standard medical treatments research and experimentation in the 226,
and prevention 128, 130-1, 134-5 230-1, 233-8
evacuation, see medical care, evacuation and labour 232
experimentation and research 1-2, 4, 8-9, 11-12, and secrecy 228
114-15, 143, 241 medical ethics in 226
consent and non-maleficence in 115-16, 241 autonomy, confidentiality and dignity in
laws and regulations 245 232, 235-6, 238
ethics in 226-7 beneficence and non-maleficence 232-4,
and accidents 227, 241 238-9
in the military context 227, 241 and dual use 230
and secrecy 241 regulations concerning new therapy and
instances of human experimentation 236
in first gulf war 115 and research 227, 230, 233-6, 238
Tuskegee 119 and secrecy 227, 234
United States 119 and safety provisions 227-8, 231-3
euthanasia program in 233
Farben, IG 225, 229-31, 235 Ghadafi, M. 100
Fauci, Anthony 147 Guantanamo Bay 59, 61, 173, 177
Fouchier, Ron 146-8 Greece 184
France 141, 159 Gremels, Hans 234
Frankenstein 279, 292
Hippocrates 3, 23, 28, 60
Gaza 98 Hiroshima 47-8, 141
Gelsinger, Jesse 256 Hirt, August 238-9
Gendorf 232-3 Hitler, Adolf 228, 230-1
General Medical Council (GMC) (UK) 210, 213- Hobbes, Thomas 44, 102
18, 220-1 Holl, Ferdinand 238
Geneva Conventions 29, 74, 82, 102, 108, 204, 262 Holocaust 228
and the duty to protect 98, 103, 107 homosexuality 217-18
and health care 49, 75-6 hospitals 5-6, 17, 23-6, 100, 104
and immunity 103, 107 combat support hospitals (CHS) 25, 74-5
and lawful war 121, 265 host nations, see also combatants; non-combatants;
and medical care 20-2, 24, 32, 36-7, 71 military necessity, and resources; triage;
and medical neutrality 38, 40, 71, 77-8, 81, medical eligibility
202, 268, 271, 287 medical care for coalition employees 25-7, 38
and non-combatants 19-20, 98, 100, 103 medical care of allied forces in 5, 7, 24-5, 74-7
and POW 203 medical care of civilians in 5, 7, 23, 33-5, 63,
and torture 28, 124, 175, 177 76-7
Geneva Conventions Additional Protocol I (1977) risk assessment of 20-1, 23, 25-7, 34
62, 100, 103, 268 medical facilities and health care of 23-6, 38-9,
Geneva Protocol (1925) 161, 226 66-8, 74-7, 81-8, 202, see also civic affairs;
Germany 76, 158,175, 226 MEDCAP
Germany, Nazi 12, 119, 245, 292 human genome project 142, 145
chemical warfare policy 228, 230 humanitarian intervention 100, 262
and concentration camps 232, 236-7 medical programmes 6, 18-19, 75
Buchenwald 238
Index 301
humanitarian law 6, 8, 13, 98, 105, 107-8, 121, 262, Leverkusen 229
271, 274-5 Libya 121
human rights 3, 4, 6, 11, 43-6, 48, 51, 54, 71, 80, Lifton, Robert 292
101, 116, 173, 193, 232 Livingston, Gordon 281, 288-90
informed consent, see military medicine, principles Mallon, Mary (typhoid Mary) 40, 117
of, autonomy Marburg, university 234
Institute for Pharmacology and Toxicology (DE) Maryland, university 164
234 Médecins Sans Frontières (MSF) 100
Institutional Review Board (IRB) 12, 115, 146-7 medical care
and biomedical research 246 on the battlefield 1, 5, 7, 12, 17, 22, 37, 80
composition of 247-8, 250-2 challenges of 1-6, 17, 28-9, see also dual
criteria for approval of research 247, 253 loyalty
ethical principles of 245, 247-8, 251, 256 of civilians 2, 6, 11, 17-23, 32-3, 35
beneficence 246, 249, 254 ethics of 1-3, 5-6, 19, 24-5 28-9, 32
justice 252 evacuation 1, 5, 12, 17, 23, 25, 28-9, 74-5, 108
respect 245 experimentation in, see experimentation
and non-lethal weapons 246, 248-9, 256, health care 1, 3-5, 8, 13, 17, 19, 23-7, 40-1, 45,
see also non-lethal weapons 72, 80
benefits of 250 during deployment 74-5, 101
standard testing in 251-2, 254-5 malingering 27-8, 195, 211, 213
risk assessment in 249-52, 254 medical neutrality in 1, 6, 7, 20-1, 27, 33, 36,
resources for 255-6 38, 62, 71-2, 78, 80-1, 85, see also dual
insurgency see asymmetric warfare loyalty; medical neutrality
Inter Academy Panel 161 patient rights in 1-5, 8-9, 10-12, 40-1, 71, 76,
International Code of Medical Ethics 61, 268 see also public health, principals of
International Committee for Military Medicine principles of
(ICMM) 13, 261, 272, 274-5 autonomy, respect for 4, 8, 11-12, 28, 40,
International Dual Loyalty Working Group 61, 178, 45, 105, 116
184, 210, 267 dignity, respect for 4, 8, 12, 27, 60
International Humanitarian Law (IHL) 13, 98, 105, confidentiality 10-12, 27, 116, 181, 209
121, 262, 271-5 resource allocation in 53, see also military
International Security Assistance Force (ISAF) 6-7, necessity, resources
63-8 utility 4-5, 17, 20-1, 36-7, 71-3, 78, 81
Iraq 1, 13, 60, 65-6, 72-7, 83, 155, 173, 176, 181, Medical Civic Action Programs (MEDCAP) 6,
200-1, 279, 281, 283 65-8
medical neutrality, see also non-combatants,
Japan 43, 47-8, 142, 156, 159-60, 175 immunity of
Jus ad bellum 3, 265 beneficence and reciprocity in 71, 73, 78, 80,
Jus in bello 3, 54, 102, 265 91, 104, 232
comradery and associative obligations 74, 77-
Kawaoka, Yoshiro 146-8 82, 91-4
Kleinhans, Wilhelm 232 definition of 97-9, 101, 103-4
Koll, Werner 234 during armed conflict 72-4, 78-81, 92, 97, 101-
Koroloko, Mikolaj 232 3, 105, 108, 202-3
medical personnel 17, see also civil affairs; dual
Laenas, proconsul 101 loyalty; dual use technology;
Larrey, Dominique 5 in torture and interrogation 10, 28-9, 44, 61,
Leipzig, university 234 173, 175
Lendle, Ludwig 234 in weapons research and enhancement 1, 2,
Leo, Fritz 238-9 4, 8, 12, 116-17, 123, see also biological
Letz, Fritz 239
and chemical weapons; experimentation; and resources 4, 6, 18, 20-4, 26, 29, 36-7, 40,
enhanced combatants 44, 73, 75, 81, 103 see also triage
medical research, see experimentation sanctioned/non-sanctioned measures 2, 3, 43,
regulation of, see IRB 46-8
medical rules of eligibility soldiers in, treatment of see medical care,
tenants of 64-5 patient rights, principles of wounded,
Medicines and Healthcare Products Regulatory see triage; military medicine, utility
Agency (MHRA) (UK) 194 Mitchell, Alvina 132
Middle East 292 Mohammed, Khalid Shaikh 177
military disobedience 4, 29 Munster 230
military laws and regulations Munster, University 234
Armed Forces Act (UK) 193 Nagasaki 47-8, 141
Armed Forces Covenant (UK) 193
Army Regulations (US) 129-30, 134-5 Napoleon 1, 5
doctors’ roles in 81, 91, 93 National Defense Medical College of Japan 156
Geneva Conventions, see Geneva Conventions National Guard (US) 127
and health care principles, see also non- national health insurance 211
combatant immunity National Health Service (NHS) (UK) 88, 194-5,
Armed Forces Compensation Scheme (UK) 204-5
201 National Institute for Health and Clinical Excellence
International Committee Of The Red Cross (NICE) (UK) 194
20, 22, 24, 28 National Institute of Allergy and Infectious Diseases
interpretation of 33-5 147
norms and laws 40, 75, 98, 100, 103, 107-8, National Research Council (US) 130, 149, 248
173, see also emblems National Science Advisory Board for Biosecurity
World Medical Association Regulations in (NSABB) (US) 140, 146-51, 164, 167
Times Of Armed Conflict 19, 33, 209 Netherlands 146, 156
JWT (just war tradition/theory) 3, 6, 43-7, 265 New York 118
legal principals of 2, 4, 22 Nixon, Richard M. 157
Lieber code 2 non-combatants
laws of armed conflict (LOAC) 13, 71, 105, definition of, see combatants
120, 261, 265, 272, 274 duties toward 46-7, 49, 51-3, 98, 101, 103-4,
Military Commissions Act (MCA) 175 108
moral principles of 2-5 immunity of 7, 19-20, 43-50, 97-8, 100-5,
norms in 7-8, 71, 105 107-8
rules of engagement interpretations of 100, 104
medical 29-30, 33 medical care for see medical care; civil affairs;
and torture 184 collateral harm, obligation to minimize
Uniform Code of Military Justice (UCMJ) (US) non-lethal weapons 2, see non-lethal weapons
128 rights of 2-4, 6, 19, 20, 40, 43-9, 54,
military medical academy (DE) 232, 234-5 see also human rights
military necessity 1, 2, 121, see also confidentiality; justifiable harm of 3, 6, 43-4, 46, 48-
enhanced combatants; USUHS 9, 52, 54, 92 see also collateral
combat readiness 26-7, 37-9 harm, incidental and accidental, and
and dual loyalty, see dual loyalty utilitarianism; supreme emergency
definition of 2 non-governmental organization (NGO) 19, 25, 64,
and non-combatant medical care 51-2, 54, 76 67, 100, 102
non-lethal weapons 2 non-lethal weapons 1, 2, 12 see also medical
priorities of 5-6, 11, 17, 19-21, 28-9, 32, 38-9, personnel; medical care, principals of,
47, 72-3 patient rights, experimentation in
and proportionality 43-4, 46-8, 51-2, 102, definition of 248
106-8 types of 248-9
Index 303
use of 248 San Francisco 118

North Atlantic Trade Organization (NATO) 63, 65 Schmidt, Harry 127
North Korea 155, 175 Schrader, Gerhard 225, 229-30
Norway 145 Schutzstaffel (SS) 237-40
nuclear weapons SS Research Foundation, Ancestral Heritage 238
development of 141-2, 160, 227 self-determination see military medicine, autonomy
proliferation of 155 sexually transmitted diseases (STD) 25-7, 39, 118,
restrictions on 2, 53 211-13
use of 47-8, 141 Silesia 225
Nuremberg Code 114, 245 Socrates 140
Soldiers, Sailors and Airmen Families Association
Ochsner, Herman 230 (SSAFA) 204
Operation Olympic 47
Oppenheimer, Robert 162 South Africa 155
Soviet Union 1, 155, 159, 198
peace keeping, see armed conflict Sri Lanka 98
physicians, see medical care; medical personnel state
Plato 35, 140-1, 143 interests of the 2, 18-19, 72, 117
Poland 231 responsibilities and obligations of the 44, 46,
post-traumatic stress syndrome 131 71-3, 75-6, 104, 117
Porton Down 225 State University of New York 145
principle of humane treatment, see non-combatants, Steinbrunner, John 164
duties toward Stony Brook 145
principle of salvage, 63, see also triage Strasburg, university 238
proportionality, see military necessity, and supreme emergency
proportionality tenets of 54
psychologists, 10, see also medical care, Survival Evasion Resistance and Escape
experimentation in; medical personnel (SERE) 10, 173 see also medical care,
public health, see also disease; host nations, medical experimentation in
facilities and health care of; medical care, beneficence and non-maleficence 178, 181-2,
patient rights 185
during deployment 25-7, 38 and consent 178-80
ethical tenants of 38-41, 61 and dual-loyalty 181-2, 184-6
resource allocation in 40, 65-7 history of 175
principals and powers 117-19 and interrogation resistance 175-6
and quarantine 117-18 participation of psychologists in 174, 176
and contact tracing 118 and detainee interrogation 176-8, 181-2,
Pyridostigmine Bromide (PB) 115, 133 184, 186
ethical dilemmas of 178, 182-6
Ramshaw, Ian 144 and experimentation 177,
Raubkammer 230, 233-4 see experimentation
Recombinant DNA Advisory Committee (RAC) and interrogation resistance training 176,
123 180-1, 185-6
and research 143 and personnel training 177, 183
Republic, The and torture 178-80
and dual-use 140-1, 143-4 Szilard, Leo 141
risk assessment 119-23
Ruhl, Helmut 239 Taliban 67
terrorism, see asymmetric warfare
St Augustine 3, 265 torture 1, 3, 10, 175, 177, 184
St Thomas Aquinas 3, 46, 265 triage 2, 4-7, 17, 24, 28, 35-7, 39-40, 61, 63, 71-4,
salvage, principal of 63, see also triage 77-8, 82, 94, 202, 269
and medical necessity 33, 36, 38 Korean war 146, 174

Truman, Harry S. 47 Seven Years’ War 102
Tunis 237 Solferino 1, 102, 107
Vietnam 132, 146, 159
Umbach, William 127 World War I, 102, 146
Uniformed Services University of The Health World War II, see World War I
Sciences (USUHS) 13, 279, 284, 287, 292 Operation Iraqi Freedom 5, 17-19, 23-9, 38-9,
civilian patient rights 194-5, 204 47
rights of military personnel 193-5, 204 Williams, Bernard 78
and brain death 204 Wimmer, Eckard 145
and choice 196-7, 201, 205 Wimmer, Karl 238
and confidentiality 197, 204-5 Wirth, Wolfgang 234-5
and consent 196-7, 204-5, 283 World Health Organization (WHO) 32-4, 67, 147,
and disability 204-5 151, 165, 167, 182, 194
and dual-loyalty 193 World Medical Association (WMA) 3, 9, 19, 21,
and health services 1 95-6, 198-200, 202, 28, 61-3, 98, 114, 202, 209-10, 226, 241,
204 245, 268
and military necessity 197-8 World War I 102, 146
in operations other than war (OOTW) 201- and chemical weapons, see biological and
2 chemical weapons
and quality of care 196, 199-200, 203 World War II 54, 146, 155
and redress 197, 201, 205 aerial bombings during 47-8, 106, 236
and atomic weapons 141-2
Venter, Craig 145 and bio-weapons 159
Verification Research, Training and Information casualties 47-8, 141-2, 236
Center (VERTIC) 165 civilian targets during 43, 48
Vitoria, Francisco de 265 invasions during
of Japan 47
war and penicillin 9, 40, 72-3, 262, 282
just war 35, 121 and amphetamines 132
of humanitarian intervention 3, 121
instances of Yugoslavia 1
American civil war 102
Desert Storm 77 Zubaydah, Abu 177
First Gulf war 4, 24, 115, 121, 132, 282

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Military Medical Ethics for the

Paul Robinson – Professor in Public and International Affairs

Also in the series

Precision-guided Munitions and Human Suffering in War

Protecting Civilians During Violent Conflict

Kantian Thinking about Military Ethics

British Library Cataloguing in Publication Data

The Library of Congress has cataloged the printed edition as follows:

ISBN 9781409438984 (hbk)

List of Figures and Table  vii

PART I Battlefield Ethics

1 Military Medical Ethics: Experience from Operation Iraqi Freedom  17

2 The Doctrine of Double Effect, Utilitarianism and

3 Civilian Care in War: Lessons from Afghanistan  59

4 The Limits of Impartial Medical Treatment during Armed Conflict  71

5 Medical Neutrality and the Dilemmas of War  85

6 Revisiting Medical Neutrality as a Moral Value

PART II Military Medical Ethics and New Technologies

7 Enhanced Warfighters: A Policy Framework  113

8 Refusing to Be All That You Can Be: Regulating against

9 Ethics and Censorship of Dual-Use Life Science Research  139

10 Biosecurity and Dual-Use Issues: The Education Module Resource  155

11 Psychologists, Torture and SERE  173

PART III Patient Rights, Research Ethics and

12 Rights of British Military Patients during Peace and War  193

13 Medical Confidentiality in the Military  209

14 Accidents and Experiments: Nazi Chemical Warfare Research

15 Institutional Review Board Specialization for Non-Lethal Weapon Research  245

16 Hovering Between Roles: Military Medical Ethics  261

17 Medical Education: Teaching Military Medical Ethics at the

10.1 The web of prevention  166

1.1 Hierarchy of legal authority in descending order of priority  30

Myriame Bollen is an Associate Professor in organization studies at the Netherlands Defence

Shlomit Zuckerman is a post-doctoral fellow at Tel Aviv University Department of Medical

Military Ethics and Medical Ethics

Battlefield Medical Ethics

Medical Care for Civilians

Military Medical Ethics and New Technologies

Dual-Use Life Science Technologies

Patient Rights, Research Ethics and Military Medical Ethics Education

Research Ethics in Military Medicine

Military Medical Ethics Education

Case 1: Civil Affairs Missions during Deployment

1. What are the public health goals of the proposed programme?

Care for Local National Civilians

Case 2: Injured Civilians and Mission Safety

ihl/eng/docs/v1_rul_rule109) (Henckaerts et al. 2005). Rather than an absolute obligation in all

Case 3: Collateral Damage – Caring for Wounded Civilians

Case 4: Medical Emergencies in Local Nationals during Deployment

Care for Host-Nation Wounded Combatants

Care for Coalition Employees

Case 6: Public Health in the Deployed Environment

Case 7: Suspected Malingering and Detainee Abuse

Table 1.1 Hierarchy of legal authority in descending order of priority

Category of Authority Applicable Documents

Note: a Department of Defense.

Ethical Reflection on Battlefield Triage Priorities

Public Health in the Deployed Environment

Non-combatant Immunity in Bioethics and Just War Theory

The Doctrine of Double Effect

Utilitarianism and Collateral Damage

Limitations of the Doctrine of Double Effect and Utilitarianism

The Duty to Provide Medical Care

List of Figures and Table vii

1 Military Medical Ethics: Experience from Operation Iraqi Freedom 17

3 Civilian Care in War: Lessons from Afghanistan 59

4 The Limits of Impartial Medical Treatment during Armed Conflict 71

5 Medical Neutrality and the Dilemmas of War 85

7 Enhanced Warfighters: A Policy Framework 113

9 Ethics and Censorship of Dual-Use Life Science Research 139

10 Biosecurity and Dual-Use Issues: The Education Module Resource 155

11 Psychologists, Torture and SERE 173

12 Rights of British Military Patients during Peace and War 193

13 Medical Confidentiality in the Military 209

15 Institutional Review Board Specialization for Non-Lethal Weapon Research 245

16 Hovering Between Roles: Military Medical Ethics 261

10.1 The web of prevention 166

1.1 Hierarchy of legal authority in descending order of priority 30