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BMJ 1999;319:445-447 ( 14 August )

Sharia punishment, treatment, and speaking out

Humanitarian aid organisations may face situations which challenge theirguiding ethics and principles. Amputations afterconvictions under sharia law,

in countries such as Afghanistan,have posed just such a problem. Should theaid organisation continueto provide health care, including treatment to theperson whohad been punished, or would this make it complicit in a practicethat it sees as contrary to human rights? The conclusions andthe actions takenby the International Committee of the Red Crossand Mdecins Sans Frontiresdiffer, as outlined in these twoaccounts. But the ethical bases of theirpositions are remarkablysimilar.Pierre Perrin, chief medical officer.

International Committee of the Red Cross, 19 Avenue de la Paix, 1202 Geneva, Switzerland

In 1997 an Afghan surgeon who was being paid by the International Committeeof the Red Cross but who was working in a Ministryof Health hospital was takenby the local authorities to a marketplace.There he amputated the hand of aperson who had been convictedunder sharia law. Following an appeal by theinternational committeeto the Taliban authorities, an agreement waseventually reachedthat ensured that neither hospitals assisted materially bytheinternational committee nor staff paid by it would be involvedin thispractice.

Subsequent requests made by the authorities to the assisted hospitals toprovide an ambulance or surgical instruments to performpublic amputationswere refused. Many of the international committee'spersonnel working with

and training Afghan staff were health professionalsfrom Western countries andthey faced a dilemma in treating peoplebrought to hospital after havingsuffered an amputation undersharia. Did treating these victims constituteoffering supportto a process of torture or cruel and degrading treatment, orwasit treating a patient in need of urgent surgicalcare?

Examination of relevant laws and standards ofmedical ethics

These dilemmas forced the International Committee of the Red Cross toexamine its position on corporal punishment, its fieldoperations, the relevantinternational humanitarian and humanrights laws, and standards of medicalethics; it forced the internationalcommittee to adopt a firm position withregard to the governmentin the relevant country; and it also forced theinternationalcommittee to draw up guidelines for its health professionalsworkingin Afghanistan or any other country where sharia isenforced.

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The international committee decided in 1988 not to make a statement onwhether corporal punishment constituted torture andnot to comment oncultural or religious issues. Nevertheless,the international committee did statethat in a situation of armedconflict (the context in which it works mostfrequently), suchpunishment constituted a grave breach of international

humanitarian

law. As a result of the incident in 1997, the internationalcommitteere-examined this position, keeping the specific situation ofAfghanistanin mind. Although article 3, common to the Geneva Conventions,expressly forbids mutilation, cruel treatment, and torture, itis difficult to saywhether a person who is convicted of beinga criminal in present dayAfghanistan is protected by this article.Various tenets of human rights lawobviously apply; however, argumentsagainst amputations performed undersharia which use human rightsas a basis are unlikely to succeed in Afghanistanbecause theymay be in conflict with locally enforced law (sharia). InAfghanistan, it is important that the international committeeis not perceivedas promoting Western values or as antagonisticto Islam. The presence and

security of its personnel in the country

might be put at risk. Thus, theinternational committee appealsdirectly to the authorities for leniency in casesin which thosewho are convicted may not be protected by internationalhumanitarianlaw.

Both protocol II, additional to the Geneva Conventions of 1949, which appliesto non-international armed conflict, and the1982 resolution of the GeneralAssembly of the United Nations1 clearly state that whether in armed conflict orin general,the participation by a health professional in corporal punishmentconstitutes a grave breach of the ethical codes of the medicalprofession. Thedeclaration made in Tokyo by the World MedicalAssociation in 1975 (adopted

by the 29th World Medical Assembly)

is more specific and states that a doctormust never participatein any such act in any situation; must never provide theplace,means, knowledge, or materials to facilitate such an act; andmust neverbe present during such an act. The 1997 declarationmade by the World MedicalAssociation in Hamburg (adopted by the49th World Medical Assembly) wasaimed at uniting the professionto support doctors who refuse to participate in,or to condone,the use of torture or other forms of cruel, inhuman, ordegradingtreatment.

In addition to these ethical guidelines, the World Medical Association hasstated in a number of declarations that all patientshave the right to receiveappropriate medical care without discrimination.Although a doctor has a right

to choose which patients to treat,it is clear that "physicians have a compellingprofessional andethical duty to attend to a patient in anemergency."

The International Conference on Islamic Medicine in Kuwait in 1981 stated:"Health is a basic human necessity and is not amatter of luxury. It follows thatthe medical profession is uniquein that the client is not denied the serviceeven if he cannotafford the fee." With respect to a doctor's practice, theconferencestated that: "He should be an instrument of God's mercy not ofGod's

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justice, forgiveness and not punishment, coverage and notexposure." Theconference also stated: "The medical professionshall not permit its technical,scientific, or other resourcesto be utilised in any sort of harm or destruction orinflictionupon man of physical, psychological, moral, or other damage ...regardless of all political or militaryconsiderations."

Guidelines for action

The first Geneva Convention clearly gives anyone wounded in armed conflictthe right to treatment; this is the reason forthe existence of the InternationalCommittee of the Red Cross'surgical teams. However, in the case of shariaamputations, theinternational committee recognises that the ethics of anindividualdoctor working for the organisation might be in conflict withboth theethics of the medical profession and the ethics of theinternational committee.Every measure is taken to avoid sucha conflict occurring. This means thathealth professionals recruitedfor such work are informed of the possibility that

this situationmight arise before they are sent overseas. They are not acceptedfor the mission if they disagree with established professionalor institutionalethics.

The International Committee of the Red Cross has not changed its position oncorporalpunishment.

However, in the case of amputations carried out under sharia, the internationalcommittee has decided that it will take action.The international committeewill:

State its objection to amputations based on sharia law but will not do so

publicly

Refuse to allow personnel employed by the international committee toparticipate in performing amputations under sharia

Refuse to provide the premises, the knowledge, or material forperforming these amputations

Call for leniency in each case

Protect doctors who refuse to participate in sharia amputations

Support the World Medical Association in working to develop nationallegislation against such practices, and

Support the World Medical Association in its efforts to develop nationalmedical associations to provide support for doctorswho refuse to carryout shariasentences.

The International Committee of the Red Cross informs all health professionals

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of its position on theseissues.

The international committee will treat all people who have had amputations asa result of sharia. It will remind all doctorsthat they have a duty to treat them.And it will inform the doctorswho treat them that they have the support of theInternationalCommittee of the RedCross.

References

1. United Nations. Principles of medical ethics relevant to the role of healthpersonnel, particularly physicians, in the protection of prisoners and detaineesagainst torture and other cruel, inhuman or degrading treatment or punishment.New York: United Nations , 1994(A/RES/37/94.)