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Torture and punishment, use of the medical profession in

By:
Ahmed Al-Dawoody
Source:
Oxford Islamic Studies Online What is This? Online-only content developed by noted scholars is continuously added to the site, part of our ongoing efforts to expand our coverage of the Islamic world.

Torture and punishment, use of the medical profession in

Introduction

One of the main objectives of Islamic law is the preservation of human life. The pursuit of medical knowledge and the provision of medical services are therefore a religious duty incumbent on the Muslim community. For this reason, the Second Caliph ʿUmar ibn al-Khaţţāb (r. 634–644) ruled that if a person dies of hunger, then the neighbors must pay the blood money because they have contributed to the death by not providing food to the deceased (Hathout, 1988, pp. 25, 31). The medical profession enjoys a prominent place in Islamic normative sources and Islamic civilization throughout history because of the important role it provides to society. Nothing demonstrates this role more than the fact that among the ninety-nine attributes of God are that of Giver and Taker of human life as well as the Healer of the sick. Interestingly, in Islamic tradition, what is religious, legal, and ethical are intertwined and hence medical issues and medical practice are religiously regulated in the sense that abiding by the rules of Islamic medical ethics is religiously rewarded and any violation thereof is regarded as a sin.

The protection of physical and psychological health is essential to the concept of human dignity in Islam. The Islamic Medical Association of North America asks Muslim and non-Muslim physicians to protect this dignity not only by refusing to participate in torture, but also by notifying human rights organizations of such violations. It is an individual’s duty to ensure the protection of human dignity and the entire community would be regarded as guilty if no steps are taken to stop any torture or unlawful punishment. This is in line with the Islamic principle of enjoining right and forbidding wrong via the hand, tongue, or the heart respectively (Shabana, 2014, pp. 337ff). In his description of the characteristics of the Islamic physician, Hathout states that a physician “should be an instrument of Allāh’s justice and forgiveness, not punishment” and therefore he warns that the medical profession should not be used “to harm, destroy, or inflict upon man physical, psychological, moral, or other damage, regardless of all political or military considerations” (Hathout, 1988, pp. 26, 28). There are examples of this kind of thinking throughout Islamic history. For instance, in the tenth century, the Abbasid “good vizier” ʿAlī ibn ʿIsā ibn Dāwūd ibn al-Jarrāḥ (d. 946) grew concerned about the inhumane conditions in some of the prisons. He wrote to Sinān ibn Thābit ibn Qurrah (d. 943), the personal physician of two Abbasid caliphs and the son of the famous physician Thābit ibn Qurrah (d. 901), instructing him to appoint medical professionals to visit the prisoners daily and provide the needed medical health services for them before their prison conditions could lead to their illness (Ibn al-Qifṭī, 1903, p. 193).

After defining the concepts of torture and punishment, and giving a brief account of the historical background of the prohibition of torture, this article argues that the participation of the medical profession in torture and punishment is in stark contradiction to their mission, according to Islamic normative tradition, and constitutes a crime not only according to international law and the national legal systems of Muslim countries, but also according to the Islamic medical ethical standards.

Definitions of Torture and Punishment

At the outset, it is important to make a distinction between torture and punishment in Islamic legal tradition, particularly because some of the Islamic punishments, which include inflicting severe bodily pain and cutting off hands/legs, are considered unethical according to the modern international moral standards (Vesti and Lavik, 1991, p. 5). According to the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, “the term ‘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.” Moreover, Article 7(2)(2) of The Rome Statute of the International Criminal Court adopts virtually the same definition of torture, though it excludes from the definition of torture pain caused by lawful sanctions. Thus, the definitions of torture focus here on the contexts of detention and imprisonment where the purposes of torture are mainly to extract confessions and/or information, military-related or otherwise. In the twenty-first century, torture is often carried out by the secret services of repressive regimes against its opponents.

Regardless of the contexts, the same quality and standards of health are to be provided according to The Principles of Medical Ethics Relevant to the Role of Health Personnel, Particularly Physicians, in the Protection of Prisoners and Detainees against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (adopted by UN General Assembly resolution 37/194 of 18 December 1982). Therefore, any direct or indirect involvement of health professionals in torture is a gross violation of the medical ethics according to these principles. If such participation occurs at a massive scale as a part of genocide, war crimes, or crimes against humanity, alleged perpetrators can be persecuted in the International Criminal Court if the states in which these crimes occur are unwilling or unable to prosecute them. (Istanbul Protocol, p. 10)

The classical Islamic legal sources did not provide a definition of what constitutes torture, and the subject remains inadequately studied. In the Qurʾān, tens of derivatives of the word ʿadhāb occurred in the sense of chastisement and or punishment, inflicted mainly by God on wrongdoers mostly in the afterlife, and to a much lesser extent in this world. The word does not occur in the Qurʾān in the sense of inflicting physical or mental pain as in the UN definition above. In the Prophetic tradition, several reports prohibit torture and mutilation of animals and causing unnecessary pain during the slaughter of animals. In the context of war, it is prohibited to target the face of the enemy because disfiguring the face of humans is a violation of the concept of human dignity. It is also prohibited to deliberately use fire on enemy fortifications, or to punish prisoners of war (POWs) with fire because the use of fire as a sort of punishment is restricted to God in the afterlife (Hashmi, 2004, p. 328; Al-Dawoody, 2011, pp. 120, 123).

As for punishment, Islamic law defines three categories of punishment which entail severe pain or suffering for committed crimes: ḥudūd (scripturally prescribed crimes), qişāş (lex talionis, retaliation), and taʿzīr (discretionary punishment). These punishments must be carried out only after a sentence is passed by a judge and in accordance with Islamic court procedural safeguards and jurisdictional rules. Although the definitions of torture adopted above by the UN and the Rome Statute of the International Criminal Court (2002) do not refer explicitly to Islamic punishments, which sometimes draws criticism from international human rights organizations, these punishments are regarded as “lawful sanctions,” and therefore cannot be labeled under the category of torture. The 1981 Islamic Code of Medical Ethics, promulgated by the First International Conference on Islamic Medicine in Kuwait in 1981, did not refer to traditional Islamic punishments (Vesti and Lavik, 1991, p. 5), and hence it can be argued that this issue does not constitute a violation of the standards of the modern Islamic medical ethics adopted by Islamic medical professional associations. However, some Muslim medical professionals and human rights activists consider the application of Islamic corporal punishments as an aggression against human dignity (Mannāʻ, 1998, p. 134; Reza, 2007, p. 22). For example, Amnesty International points out that both a number of medical professionals in Pakistan as well as the Mauritanian Association of Doctors, Pharmacists and Dentists have opposed the application of the Islamic corporal punishments. It indicates that Pakistani surgeons refused to participate in carrying out amputations and following the rejection of Mauritanian surgeons to do so, medical auxiliaries participated in carrying out two amputations in 1982 (Amnesty International, 1990, pp. 12–15). Therefore, although international conventions and Islamic medical standards do not include Islamic punishments as torture and even medical professionals are “legally mandated” (Lucas, p. 13) in Muslim countries to be present during the application of these punishments, some medical voices as shown above, have expressed their disagreement with the application of the punishments altogether and the participation of the medical profession in the process as a consequence.

Historical and Legal Perspectives

The European historical record shows that doctors frequently participated in torture either during interrogations or during wars, but attention to the subject was given only after World War II and hence a number of international and professional declarations and conventions were adopted for the purpose of the prohibition of the doctors’ participation in torture (Vesti and Lavik, 1991, pp. 4–7). In his seven-volume Mawsūʿat al-ʿAdhāb (Encyclopedia of Torture), Iraqi lawyer ʿAbbūd al-Shālji documents the horrific torture methods that took place throughout the first thirteen centuries of Islamic history, but he did not discuss the medical professions’ participation in these practices. The phenomenon of torture in the Islamic world started during the rule of the Umayyads (661–750) (al-Shālji, n.d., vol. 1, pp. 7–14). Torture increased during the periods of injustice and political instability that led to the fall of both the Umayyads and the Abbasids (750–1258) (Bin Ṭārīah, et al., 2003, p. 33). This indicates that the main victims of torture throughout Islamic history were opponents of the state, whether political, religious, sectarian, etc.

However, regarding the Islamic legal position on torture, Muslim scholars turn to Islamic scriptural sources to find guidance both in cases of prisoners of war and suspected criminals. The first case is less controversial because the rules regulating the treatment of the POWs were developed based on Qurʾānic texts and Prophetic traditions (Thomas, 1997, pp. 44–53). Hence, torture of POWs, even for the purpose of obtaining intelligence information, is not permitted, as indicated by Mālik ibn Anas (d. 795), the eponymous founder of the Mālikī school of law (Al-Dawoody, 2011, p. 113). But the case of torturing suspected criminals for extracting information or confessions is somewhat controversial because, first, there is no direct guidance on this point in the Qurʾān. Second, a number of scholars, including Shāfiʻī jurist al-Māwardī (d. 1058), Ḥanbalī jurist Ibn Taymiyyah (d. 1328), and his disciple Ibn Qayyim al-Jawziyyah (d. 1350) permitted the beating of suspected dangerous criminals. Al-Māwardī confirms that this permission is given in case of serious crimes to the ruler and not the judge. However, Abū Ḥāmid al-Ghazālī (d. 1111) argued that human dignity is sacrosanct and therefore no punishment whatsoever could be inflicted on a suspected criminal until proven guilty (Reza, 2007, pp. 24ff.; Bin Ṭārīah, et al., 2003, pp. 72ff). In line with al-Ghazālī’s opinion and international declarations and conventions below, Article 7 of the Universal Islamic Declaration of Human Rights, adopted by the Islamic Council of Europe on 19 September 1981, states: “No person shall be subjected to torture in mind or body, or degraded, or threatened with injury either to himself or to anyone related to or held dear by him, or forcibly made to confess to the commission of a crime, or forced to consent to an act which is injurious to his interests.” Likewise, Article 20 of the Cairo Declaration on Human Rights in Islam, 5 August 1990 reiterates: “It is not permitted without legitimate reason to arrest an individual, or restrict his freedom, to exile or to punish him. It is not permitted to subject him to physical or psychological torture or to any form of maltreatment, cruelty or indignity. Nor is it permitted to subject an individual to medical or scientific experiments without his consent or at the risk of his health or of his life.” Hence, the standard modern Islamic position on torture is in agreement with international law and international agreements.

The United Nations Universal Declaration of Human Rights, 1948; the four Geneva Conventions of 1949; the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 1984, among many other international treaties and conventions, clearly prohibit physical and mental torture and cruel, inhuman, or degrading treatment. As a consequence, the three main international health professional organizations reiterate the prohibition of their involvement in any sort of torture of their patients. The World Medical Association’s Guidelines for Medical Doctors Concerning Torture and other Cruel, Inhuman or Degrading Treatment or Punishment in Relation to Detention and Imprisonment (Tokyo, 1975) provides physicians with precise instructions regarding what they must and must not do in cases of providing medical service to prisoners and detainees or if they were subjected to interrogation, torture, or punishment. The World Psychiatric Association’s Madrid Declaration on Ethical Standards for Psychiatric Practice, 1996, states that: “Psychiatrists shall not take part in any process of mental or physical torture, even when authorities attempt to force their involvement in such acts.” The International Council of Nurses affirms their respect for the prohibition of torture and calls upon its members to actively oppose it and to lobby to abolish the death penalty which it considers “cruel, inhuman and unacceptable.”

Other regional and national medical associations and unions also reiterate their commitment to the international prohibition of torture. The World Health Organization’s (WHO) Regional Committee for the Eastern Mediterranean, in collaboration with the Islamic Organization for Medical Sciences (IOMS), the Islamic Educational, Scientific and Cultural Organization (ISESCO) and the Executive Bureau of the Health Ministers’ Council for the Cooperation Council developed the Islamic Charter of Medical and Health Ethics. Adopted in September 2005 by the WHO’s Regional Committee for the Eastern Mediterranean as a main source for developing legislation on the medical and health ethics of the member states, Article 25 of The Islamic Charter explicitly prohibits a Muslim physician from using his medical knowledge during the interrogation of individuals with limited freedom in a way that could endanger their physical or psychological health and if it comes to his knowledge that such individuals are subjected to torture, the physician should report it to the authorities. It states that a Muslim physician “should not, actively or indirectly, perform anything that amounts to collaboration in torture procedures or other forms of cruel or inhuman treatment, or to [sic] complicity in, enticement of, or keeping silent about such acts.” The Code of Ethics of the Medical Profession in the Kingdom of Saudi Arabia does not include a reference to the prohibition of the participation in torture or punishment, while only in 2003, following the issuance of ministerial decree number 238, Article 35 of the Code of Ethics of the Medical Profession in Egypt reiterated the international prohibition of physicians’ participation in torture (Faraj, 2008, p. 213) using almost the exact words of Article 25 of The Islamic Charter.

The use of the medical profession in torture and punishment is becoming increasingly complex because of the many roles physicians are expected to play before, throughout, and after the torture/punishment process. The United Nations’ Istanbul Protocol: Manual on the Effective Investigation and Documentation of Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (1999) explains that the medical professionals’ role includes evaluating an individual’s capacity to withstand ill-treatment; being present at, supervising, or inflicting maltreatment; resuscitating individuals for the purposes of further maltreatment or providing medical treatment immediately before, during, or after torture on the instructions of those likely to be responsible for it; providing professional knowledge or individuals’ personal health information to torturers; and intentionally neglecting evidence and falsifying reports, such as autopsy reports and death certificates.

Additionally, because of the legal consequences of the prohibition of torture, improved torture techniques have been designed partly with the help, or at least under the supervision, of the medical professionals, often to avoid visible marks/traces of torture.

Despite the criminalization of the medical professional’s participation in torture, the fact remains that many cases over the last century have largely depended on the use of medical professionals’ expertise. Moreover, it is difficult to uncover and document torture committed by the police and intelligence agencies, and most of these cases remain either unknown or its perpetrators go unpunished. In its November 1990 report titled “Involvement of Medical Personnel in Abuses against Detainees and Prisoners,” Amnesty International received evidence and testimonies that document the medical professionals’ involvement in the torture of prisoners and detainees in Latin America, mainly Chile and Uruguay during the 1980s. More recently, the world was taken by surprise after the US Senate Select Committee on Intelligence released its Committee Report of the Central Intelligence Agency’s Detention and Interrogation Program, which documents disturbing evidence about the US health professionals’ involvement in the “developing, implementing, and attempting to justify the CIA’s illegal torture program—in violation of U.S. and international law and fundamental principles of medical ethics.”

In nondemocratic countries, the situation is often worse, and a large number of torture cases remain undocumented. Torture cases in nondemocratic countries are more likely to be punished in court mainly when victims die under torture, whether under police custody or in prison. For instance, on 3 May 2015, the Cairo Court of Cassation sentenced an Egyptian physician to one year in prison for participation in torturing two prisoners to death. In its report titled “Egypt’s Torture Epidemic,” 25 February 2004, Human Rights Watch alleges that “Torture in Egypt is a widespread and persistent phenomenon. Security forces and the police routinely torture or ill-treat detainees, particularly during interrogation… While torture in Egypt has typically been used against political dissidents, in recent years it has become epidemic, affecting large numbers of ordinary citizens who find themselves in police custody as suspects or in connection with criminal investigation.”

Hence, the Egyptian Medical Association’s efforts in the struggle against torture includes, first, asking Egyptian physicians to respect the UN code of medical ethics; second, investigating the claims of Egyptian physicians’ participation in torture and transferring such cases to the public prosecutor; and, third, issuing statements to the government to put an end to arbitrary detention that led to widespread torture, including of political dissident physicians (Beshir, 1991, pp. 62–63). But because of its limited role in bringing an end to this phenomenon, it seems that the Egyptian Medical Association’s priority has been to stop the torture inflicted upon detained physicians.

In nondemocratic countries, it seems that medical associations can do little to stop the physicians’ participation in torture. Without the rule of law, the phenomenon of torture will continue to pose a serious aggression against the dignity of humanity, and physicians will find themselves coerced into participating. According to Amnesty International, for example, a Turkish physician was forced by his superiors to sign a death certificate of a Turkish detainee that gave a false cause of death. (Amnesty International, 1990, p. 12). Doctors in this position are often threatened with losing their jobs, or with being tortured themselves. In some cases, their families are threatened as well. For these reasons, Article 7 of the Tokyo Declaration (1975) confirms support for physicians and their families who are subjected to threats or reprisals because of their refusal to participate in torture. At present, the most common examples of the physicians’ participation in torture include refusing to document in their medical reports the injury caused by torture inflicted upon detainees or prisoners, and/or not contributing an injury to torture, and falsifying the cause of death to conceal the use of torture (Faraj, 2008, pp. 211–215; Martirena, 1991, p. 23; Miles, 2014).

Conclusion

Although several countries have punished physicians for torture, “[P]hysicians are reliably recorded as having assisted torture in at least seventy countries that have not punished any such physician” (Miles, 2014). The use of the medical profession in torture and punishment is mainly associated with the lack of genuine democratic experiences and the existence of instability and civil and international conflicts, as well as domestic and international terrorism. Despite the prohibition of the medical profession’s involvement in torture in international law and the national legal systems, as well as the medical ethical standards, the phenomenon will continue to exist as long as the rule of law does not prevail and, more importantly, there is still a belief among torturers that torture is a an effective method that despite its legal prohibition still can be justified and used to achieve what is thought—rightly or wrongly—a good objective. In fact, a number of police and intelligence officers believe that torturing suspected criminals to get their confessions or extract information about the crimes they committed is a justifiable means of bringing about justice and stopping criminal activities. The participation of the medical profession in torture is mainly due either to sharing this same understanding or working under direct orders from their superior military or police officers and fear of the consequences of disobeying them. Therefore, independence of the medical profession, particularly those working in prisons or the military, from their police and military superiors can help to remove pressure on medical professionals to participate. In conclusion, if human dignity does not take priority over political, sectarian, or other considerations, torture and illegal punishments perpetrated by the medical profession or law enforcement agencies will not come to an end despite the host of the international and domestic laws and ethical standards developed by the medical associations prohibiting these activities.

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