International criminal prosecution of physicians: a critique of Professors Annas and Grodin's proposed International Medical Tribunal.

I. INTRODUCTION Society benefits from physicians who seek truth and healing for the good of humanity.1 Despite ethical admonishments to "do no harm,"2 however, physicians have caused some of the most appalling human rights abuses of the twentieth century.3 Physicians, alone or in concert with the state, have willfully abused their medical knowledge and debauched their profession in furtherance of human rights violations. Compounding their crimes, physicians often have been complicit in following oppressive regimes in abusive practices against their citizens. Ironically, it is their knowledge of this healing art that allows physicians to take part in this injurious conduct; and it is this knowledge that states seek to harness in buttressing violative policies. In fact, for nations bent on violating human rights, it is "much easier for governments to adopt inherently evil and destructive policies if they are aided by the patina of legitimacy that physician participation provides."4 There is widespread international agreement that physicians can and should be held accountable for their involvement in human rights abuses. The Doctors' Trial of 1946-47, in which Nazi physicians were tried at Nuremberg for war crimes and crimes against humanity, remains the only international criminal prosecution of physicians for violations of human rights. Despite the success of the Doctors' Trial, and the medical ethics codes that have derived from it, physicians continue to participate in human rights violations, often outside the reach of criminal prosecution. Condemning such acts and preventing future abuses of medicine have become a focus for lawyers, doctors, and human rights practitioners. Beginning in 1992, professors George Annas and Michael Grodin5 have advocated the creation of an "International Medical Tribunal" to prosecute physicians who violate human rights.6 Even after the successes and failures in the creation of the International Criminal Court ("ICC"), Annas and Grodin continue to believe that "[t]he arguments for a permanent international medical tribunal are every bit as compelling as those for [an International Criminal Court]."7 Yet, the International Medical Tribunal lacks many of the advantages of the ICC while retaining many of its disadvantages. On July 17, 1998, representatives of more than 160 nations met in Rome, Italy and adopted an international treaty to govern a permanent international criminal court, the Rome Statute of the International Criminal Court ("Rome Statute").8 The ICC, created by the Rome Statute, has subject matter jurisdiction over the so-called "core crimes" of genocide, crimes against humanity, war crimes, and, once defined, aggression.9 Within this jurisdiction will fall crimes committed by physicians and non-physicians alike. This permanent criminal court, built upon the ad hoc tribunals of Nuremberg and beyond, came into effect in 2002 and has just begun to adjudicate its first case.11 This article analyzes professors Annas and Grodin's proposed International Medical Tribunal in light of the international community's experiences in creating the ICC. Part II describes the actions of Nazi physicians during World War II and the trial of these physicians at Nuremberg. Part III explains how, contrary to expectations of those at Nuremberg, physicians continue to take part in widespread violations of human rights. Part IV details Annas and Grodin's proposed International Medical Tribunal and their arguments in favor of its creation. Part V critiques the International Medical Tribunal. Specifically, Part V argues that there is no longer a valid justification for establishing a separate international court for physicians now that the ICC has been formed to prosecute perpetrators of human rights violations; if such an International Medical Tribunal were created, it would fail to achieve Annas and Grodin's purported goals. Only when nations have codified the rights of victims can national and international tribunals enforce these rights under international criminal law. …