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Under IHL, may a caregiver be compelled to give authorities information on persons whom they have treated? Not only health-related information, but information on their patients’ activities, connections, and position—or even on the existence of the wounded?124

As noted earlier, concern regarding such wartime denunciation arose after WWII.125 _{During that conflict, occupying forces had “ordered inhabitants, including} doctors, to denounce [to the authorities] the presence of any presumed enemy,

122. ICRC, CIHLS, Vol. I: Rules, Rule 26, pp. 86–87.

123. ICRC, CIHLS, Vol. II: Practice (Part 1), pp. 486–97. See the discussion and corresponding citations infra Section 3: “Customary IHL — ICRC’s Customary IHL Study.”

124. Breitegger, “The legal framework,” supra note 32, at p. 119 [citation omitted]. With respect to the issue of non- denunciation, medical ethics are said to be in tension with IHL. Id. Non-denunciation implicates not only medical confidentiality in particular but also medical ethics more generally. Medical confidentiality in this context refers as a general rule “to the discretion that a doctor must observe with respect to third parties regarding the state of health of

his patients and the treatment he has administered or prescribed for them.” ICRC, Commentary on the APs, para. 670 fn

21 (referring to CE/7b, p. 22) [italics added]. Medical ethics “generally require absolute confidentiality with regard to the patient’s identity and other personal information as well as health-related information […].” Breitegger, “The legal framework,” supra note 32, at p. 119 [citation omitted]. In general, that absolute confidentiality is “subject to the […] discretion of health-care personnel when there is a real and imminent threat to the patient or others and this threat can only be removed by breaching confidentiality.” Id. at pp. 119–120 [citation omitted; italics added]. 125. ICRC, Commentary on the APs, paras. 670–675.

under threat of grave punishment.”126 _{Of course, if they were to be denounced to} the authorities, the wounded were less likely to seek treatment. While drafting GCs I–IV, the delegates did not agree, however, on whether to establish a protection allowing medical personnel and the civilian population to conceal information about the wounded whom they had cared for.127

After wide-ranging and often heated discussions during the Diplomatic Conference, non-denunciation regulations were laid down in the Additional Protocols.128 _{The relevant rules in AP I and AP II are fashioned slightly differently.}129

126. Id. at para. 671.

127. See ICRC, Commentary on the APs, paras. 670–74.

128. For many delegates at the Diplomatic Conference, the protection due to those engaged in medical activities in NIACs raised threshold questions regarding state sovereignty, especially the power to compel information about those who have engaged in unlawful activities. Some delegates favored deleting the entire article or certain of its paragraphs. See, e.g., in CDDH/II/SR.28, the statements of the delegations of Canada, Mr. Marriot, p. 283, para. 14; of Australia, Mr. Clark, p. 283, para. 17; and of Indonesia, Mr. Ijas, p. 283, para. 19. Others were adamant that the non-denunciation protections had to remain, with a delegate of the Union of Soviet Socialist Republics (U.S.S.R.), for example, emphasizing that the draft provisions concerning compelling information “raised a point of crucial importance, which would indicate just how far the Conference was prepared to go in extending the humanitarian law applicable to any type of armed conflict.” CDDH/II/SR.28, Mr. Krasnopeev, U.S.S.R., p. 284, para. 25 (and further stating that “[i]t had already been agreed that a rule of that type was appropriate in the case of international conflicts; it was impossible to argue that the same provision, in the case of internal conflicts, constituted a violation of national sovereignty, or were there any grounds for saying that the paragraph would be inapplicable in the case of an internal conflict.”). Id. at pp. 284–85, para. 25. See also, e.g., in CDDH/II/SR.28, the statements of the delegations of the Ukrainian Soviet Socialist Republic, Mr. Denisov (stating that “he could not agree that paragraph 3 should be deleted. It had nothing to do with sovereignty; it was a question of providing protection to medical personnel in the case of an internal conflict. To delete the paragraph would seriously weaken the impact of the whole Protocol.”), p. 284, para. 22; of Iraq, Mr. Al-Fallouji (stating that “[t]he real question was how far the international community was ready to go in humanizing such conflicts. He thought it was prepared to make some advance, but it should not be pushed too far. The present Conference was useful precisely because it helped to reveal the degree of maturity of international opinion.”), p. 285, para. 29.

A working group was established to consider the provisions regarding compelling information. See, e.g., O.R. Vol. XI, CDDH/II/SR.41, pp. 447–456. During the discussion, Mr. Krasnopeev, of the U.S.S.R. delegation, stated that “[i]t was […] clearly necessary also in the case of an internal conflict to protect medical personnel against abusive external pressure and to allow the doctor himself to decide if he should act as a doctor or as a participant in the armed conflict.” O.R. Vol. XI, CDDH/II/SR.40, p. 424, para. 31. Mr. Krasnopeev also stated that according to the proposal under review an obligation for doctors to give information concerning their suspicions “would be valid in an armed internal conflict not only in cases of common law crimes but also in the case of political crimes, since every government considered those who had sided against it as political criminals. Many historic cases could be cited of individuals regarded by the authorities of former days as dangerous political criminals who had afterwards become Heads of State. That had even occurred many times in the case of Napoleon.” Id.

But the upshot is that the protection against compulsory denunciation130 _{in both} treaties may be subject to certain national law.131 _{Conditioning the international legal} norm on various domestic legislations weakened these protections.132

Row 11 of Table 1 summarizes the fragmentation in the lex scripta of IHL133 concerning the norm that no person engaged in medical activities may be penalized for refusing or failing to give information concerning the wounded or sick who are, or have been, under her care, if such information would, in her opinion, prove harmful to the patients concerned or to their families. Four elements of fragmentation in

for the compulsory notification of communicable diseases shall [...] be respected.” Id.

130. See ICRC, Commentary on the APs, para. 684 (stating that “there is no obligation upon those exercising medical activities to remain silent. They may denounce the presence of the wounded to the authorities even when they know that this will be prejudicial to the wounded person or his family, if such denunciation is in their view necessary for saving lives. The prohibition is aimed at those who could compel such denunciations.”) [italics added].

131. See ICRC, Commentary on the APs, paras. 686–88.

132. See, e.g., ICRC, Commentary on the APs, para. 688. Conforming that view with respect to the “subject to national law” condition in AP II, United Kingdom Ministry of Defence, Joint Service Publication 383, The Joint

Service Manual of the Law of Armed Conflict para. 15.46.b fn. 108 (2004) (also explaining that “the final text was a

compromise to avoid a perceived violation of the principle of non-interference with the internal affairs of states”). When the “subject to national law” provisions were initially adopted during the negotiations, the Head of the Norwegian delegation strongly protested: the “provision was contrary to the very essence of international law and would be extremely dangerous for the whole body of humanitarian law.” O.R. Vol. XI, CDDH/II/SR.46, p. 513, para. 2 [italics added] (also stating that “[i]t was unacceptable to his Government that an international legal norm of the importance of the Protocol should be made subject to the national law of any country.”). Id. See also ICRC,

Commentary on the APs, para. 4684; Alexander Breitegger, “The legal framework,” supra note 32, at pp. 118–22.

133. As noted above, human rights-based safeguards may provide important normative points of reference concerning medical ethics, including in relation to non-denunciation. In addition, the IHRL right not to be subjected to arbitrary or unlawful interferences with one’s privacy protects against undue disclosure of medical and other private data to persons not privy to the physician-patient relationship. Article 17(1) ICCPR. Yet as with some other IHRL rights, this right may under certain circumstances be derogated from in times of public emergency, such as armed conflict. Human Rights Committee, General Comment No. 16, paras. 3–5 and 10. See the discussion in Breitegger, “The legal framework,” supra note 32, at pp. 122–123. See generally Amrei Müller, The Relationship

between Economic, Social and Cultural Rights and International Humanitarian Law: An Analysis of Health-Related Issues in Non-International Armed Conflict 191–237 (2013). Pursuant to article 10(3) AP II, there is a corresponding

obligation, which is subject to national law, to respect the confidentiality of information that may be acquired when providing medical care. See further Separate Opinion of Judge Sergio García-Ramírez, IACtHR, De La Cruz-

Flores v. Peru, supra note 113, para. 13 (“I […] consider it necessary to prohibit incriminating the conduct of a

doctor who abstains from providing information to the authorities about his patient’s punishable conduct, which he is aware of through information provided to him by the patient in connection with the medical procedure. In that case, there could be an absolutory excuse similar to that which protects the next of kin of the defendant in cases of concealment owing to kinship.”)

the lex scripta emerge. First, GCs I–IV contain no such protection. Second, neither does Common Article 3. Third and fourth, both AP I and AP II subject the norm to certain domestic legislation. (The Customary IHL Study does not put forward a rule that expressly encompassed that norm. Though, in the discussion of a related rule, the authors comment on respect for medical secrecy more broadly.134₎