31 Jan Hanging Hippocrates: Criminal Doctors from Nuremberg to Homs
[Merlina Herbach holds an LLM in International Law from the University of Edinburgh, has worked at the International Nuremberg Principles Academy and is currently a Legal Fellow with the Syria Justice and Accountability Centre (SJAC).]
A medical doctor practicing in Germany was discovered to have tortured his patients in Syria at the behest of the Syrian government, turning his back on that most sacred of oaths taken by all doctors, the Hippocratic Oath to do no harm. The allegations against the former Syrian doctor, Alaa M., whose trial is to commence in January 2022 at the Higher Regional Court in Frankfurt, Germany, are so shocking to the conscience, it is tempting to believe that this is the first time a doctor would turn his training into a weapon. But this is not the first time Frankfurt has seen such a trial. In 1963, the so-called “Auschwitz-Trial” started in Frankfurt wherein four of the twenty-four defendants were medical staff who had been involved in the systematic killing of detainees at the concentration camp in Auschwitz.
This historic parallel shows that the participation of medical professionals in atrocity crimes is not a new development arising from the Syrian context, but a common pattern in times of war and systematic or widespread attacks against civilian populations. Past trials such as the Auschwitz Trial in Frankfurt or the Medical Trial in Nuremberg can shed light on the subject matter of medical crimes, difficulties in prosecution, the importance of such trials for transitional justice, and what to expect from the trial of Alaa M.
Role of Medical Professionals in Systems of Ill-treatment
According to the prosecutor’s indictment and the court’s order to commence trial, Alaa M. was a resident at the military hospital in Homs, Syria, and worked as a medical professional at Branch 261 of the Military Intelligence Service in Homs. In these capacities, he is accused to have tortured multiple patients by beating them, setting their wounds on fire, and deliberately stepping on their injuries. He is also accused of having killed a patient by administering a pill that led to the patient’s death. Due to the defendant’s profession, his conduct was often described as ‘medical crimes’ in discussions about the upcoming trial.
However, there is to-date no clear definition of this term. German domestic criminal law does not provide a set of crimes defined as ‘medical crimes.’ Nonetheless, it acknowledges that certain crimes, such as corruption in the health sector can only be committed by medical professionals. In addition, there are certain crimes that could be committed by anyone but are typically committed by medical professionals. Such crimes are for example not providing medical care or involuntary medical procedures and experiments, given that surgeries without informed consent and without serving the patient’s interest are considered dangerous bodily harm. International law also identifies medical crimes through the profession of the perpetrator, however, not providing any crimes exclusively committed by medical professionals. The Rome Statute for example, lists medical or scientific experiments causing suffering and not conducted in the patient’s interest as war crimes in Arts. 8(2)(b)(x), 8(2)(e)(xi). These crimes are usually committed by medical professionals. In addition, most grave breaches of the Geneva Conventions that constitute war crimes can have medical aspects when they are committed by a medical professional. The same is true for many acts of genocide (given the perpetrator’s genocidal intent) and crimes against humanity (given that the crimes are committed as part of a systematic or widespread attack against a civilian population). The set of underlying ordinary crimes like torture or killing includes crimes not necessarily related to medical profession but when committed by a medical professional in stark contrast to the profession’s aim of healing people. The below analysis of past and current prosecution of crimes committed by medical professionals, including those administering medical procedure, indicates that a broad definition of medical crimes is feasible in international law to capture the full scope of criminal misbehavior of medical staff.
Historical Antecedents: Human Experiments
Medical crimes were first judicially addressed as crimes against humanity during the Medical Trial, the first of the subsequent Nuremberg proceedings. The subject matter of this trial were different experiments performed by the SS and Wehrmacht on detainees in concentration camps, mentally disabled persons, and allegedly ‘asocial’ persons. By describing their professional careers before and during the Nazi regime, the defendants illustrated how the medical sector in Germany was taken over by the Nazi regime: Jewish doctors were prohibited from practicing, vacant positions were filled with NSDAP party members and Nazi sympathizers, and doctors were ordered to work as field doctors or at concentration camps. Nonetheless, most of the defendants at Nuremberg argued that the cruel, involuntary, and often deadly experiments that they ordered, facilitated, or carried out, served a higher good, namely the military, or were not unethical because the participants were sentenced to death anyway. This ignores the extraordinary suffering imposed upon the patients without their consent and the way doctors dehumanized their victims in order to justify their mistreatment.
Deciding on Death or Life
While other judicial processes, such as the Tokyo Trial, neglected the issue of biological experiments performed on detainees during World War II, it took another seventeen years until a German court again dealt with the role of medical professionals during the Nazi regime. The court in Frankfurt was tasked with the judicial evaluation of crimes committed at Auschwitz Concentration Camp. Four of the twenty-four defendants were medical staff who worked at the camp in different capacities, from caretaker to dentist. None of the defendants showed any remorse. Most of them merely argued that they would not be responsible for mass extinction because they only played a marginal role, and merely executed orders on which they had no influence – a common defense to mass criminality which was also put forth by Anwar R. in Koblenz. One defendant in the Auschwitz Trial was acquitted due to insufficient evidence to prove that he actively engaged in crimes beyond approving them through omission. Surprisingly, one defendant’s sentence was overturned, finding that although the selection of detainees was ethically wrong, the defendant only participated in this deadly procedure because he feared for his own life. This defense has also reappeared in many trials of atrocity crimes, most famously at the Erdemovic trial at the ICTY.
Modern Day Hospitals turned into Torture Outposts
Similar concerns as to the sufficiency of evidence to prove the defendant’s direct participation in crimes are again arising in the case of Alaa M. In announcing the start of the trial, the Judges at the Higher Regional Court in Frankfurt explained that they dropped ten charges because they considered the indictment to lack required preciseness with regard to the alleged acts. Amongst the dropped charges are two allegations of attempted forced sterilization and acts that were allegedly committed at Al-Mazzeh military hospital. Alaa M. could also refer to similar arguments as the defendants in the Frankfurt Auschwitz Trial, by saying that he had no choice but to work for the military and acted under duress. One of the doctors who testified in the Koblenz Trial told the Court how a guard at Al-Khatib Branch insulted him and accused him of being ungrateful for the free medical education he received, by treating and supporting demonstrators instead of being loyal to the Syrian government who paid for his studies.
Syrian intelligence services were able to use hospitals in Syria as out-posts of their detention and torture facilities and as storage for corpses of detainees, immediately after the start of the revolution started. This, and the fact that corpses were meticulously documented at the hospitals show that the medical facilities had long been an integral part of the government’s repressive machinery.
Deprivation of Medical Care – Foreshadowing from Koblenz
Almost every witness in the Koblenz Trial described to the Court how detainees at Branch 251 of the Syrian General Intelligence Directorate were desperately begging the prison guards for life-saving medicine. Doctors who had to treat patients at and from Branch 251 repeatedly stated that despite the imminent need for medical treatment, they were not allowed to directly treat patients, had to provide care based on false information, or could only make suggestions to Branch personnel on how to treat patients. A forensic expert also confirmed based on the pictures from the Caesar Files that detainees across all Branches of the Syrian intelligence services suffered from a lack of medical care and that the medical treatment they received was often insufficient. This shows, as already seen from the Medical Trial and the Auschwitz Trial in Frankfurt, that patients are not only reliant on medical professionals but often at the mercy of guards and other military officers. This is even more true when civilians are held in detention. In addition, witnesses in the Koblenz Trial, the indictment against Alaa M. and many other reports provide strong indication that some medical staff adopted the violent behavior of guards or officers, by not only depriving patients of medical care but by actively torturing them.
What Makes Medical Crimes so Cruel?
Indeed, ethical and moral standards and regulations for medical staff played an important role in past trials. One of the main outcomes of the Medical Trial in Nuremberg was the so-called “Nuremberg Code” which lays out ten principles of ethical human experiments that are still valid today. By providing participants in human experiments with more codetermination rights and stressing the importance of informed consent, the Nuremberg Code also points at how patients are at the mercy of medical professionals to treat them correctly and not cause them harm. Doctors around the world therefore have to take a particular oath, the Hippocratic Oath, to not harm their patients and always act in their patients’ best interest. All Syrian medical students still have to take this oath at the end of their studies, for example at Aleppo or Damascus universities. Any omission or active behavior in violation of this oath and the special trust of people is therefore widely seen as particularly cruel and hard to capture.
As one can see, the dependence of patients towards medical professionals or those responsible for providing at least basic medical care, is even more critical in situations of detention. However, it has been challenging for courts to properly encapsulate the magnitude of criminal conduct arising from a doctor’s betrayal of his most basic oaths. For example, the Trial Chamber at the International Criminal Tribunal for Rwanda (ICTR) found in Ntakirutimana et al. [para. 910] that a medical professional’s occupation merely constituted an aggravating circumstance in sentencing. The Chamber found that by abandoning his patients, the defendant did not commit a crime but betrayed the particular trust that people generally have in medical professionals and deliberately violated his ethical and professional obligations.
Learning from the Past
One of the often-criticized shortcomings related to German Nazi trials was the fact that many former Nazis were able to continue working in their profession and even occupy leading positions. Several defendants of the Medical Trial and Auschwitz Trial as well as other medical professionals involved in Nazi atrocity crimes kept working as doctors after the war. One of them, Dr. Lucas, whose sentence was later overturned, even kept practicing as a doctor at his own clinic during the early stages of the Auschwitz Trial. Alaa M. also continued working as a doctor in Germany after he left Syria in 2015 and before he was eventually arrested in June 2020. While of course not every Syrian doctor or nurse was involved in crimes against humanity, authorities must find more effective ways to determine who was affiliated with the Syrian government or other armed forces to the conflict and investigate these cases. De-Nazification surveys after WWII already proved that self-assessment, as is also largely done during asylum interviews, is useless in determining someone’s affiliation and past behavior. The fact that Alaa M. was able to continue working in Germany as well as the fact that Anwar R. was able to obtain visa and fly to Germany caused considerable frustration among Syrian refugees who struggle to build new lives, continue professional training and studies, and obtain acknowledgement for their degrees.
However, resource intensive efforts by German authorities to prosecute crimes committed in the Syrian conflict, through the structural investigation of the German Federal Public Prosecutor’s Office (GBA) and international cooperation, raise hopes that Germany has learned from past mistakes. As described above, there were significant gaps in putting Nazi perpetrators to justice, spanning over decades. In 1996, three years after the Frankfurt Auschwitz Trial, the German Federal Court of Justice (BGH) practically terminated all accountability efforts with a judgment finding that the statute of limitation for mass crimes is determined after the 25-year-limitation of aiding and abetting these crimes. The Court further found that in accordance with newly established law at the time, alleged perpetrators whose racial hate as base motive of their criminal acts could not be proven after 25 years could not be prosecuted for their involvement in Nazi atrocities. It took more than forty years until the Demjanjuk Trial in Munich in 2010, when prosecutions of Nazi perpetrators gained new momentum by effectively lowering the evidentiary hurdles, at least for persons who were present at Concentration Camps, and after the statute of limitations of murder was revoked. Several trials of former Camp secretaries and guards followed and are ongoing until today.
In relation to remaining Nazi perpetrators and collaborators, and in relation to crimes committed in the Syrian conflict, the credo that “Germany, was not, is not, and will not be a safe haven for perpetrates” seems to be (finally) fulfilled.
Managing Expectations in the Future
Nonetheless, procedural and evidentiary hurdles always exist in fair trials and must be overcome in future trials. The dropping of ten charges at the start of the Alaa M. trial, and the fact that investigations leading up to the Auschwitz Trial in Frankfurt were only possible thanks to an internal document from Auschwitz Concentration Camp that the prosecutor received from a journalist who obtained it from a survivor of the camp, further underlines the importance of documenting mass atrocities and survivor testimonies. Civil society will therefore continue to play an integral part in the prosecution of crimes committed in the Syrian conflict.
However, survivors must be aware that just like the defendants in the Koblenz Trial, the defendant in trials in the near future will not be the highest-ranking and most responsible officers of the Syrian government. The trial of Alaa M. is another step on the long way to justice and accountability for crimes committed on side of the Syrian government and thereby shed light on an individual instance and illustrating the role of medical professionals in these crimes. Not one group, be they Nazis, or the Syrian government, has a monopoly on human cruelty. But those who have proclaimed their loyalty to higher ideals of human healing and to reduce human suffering should be held to that standard. When they turn their backs on the oaths they have taken to do no harm, the punishment should fit the crime.