The legal framework

Multiple systems of legislation coexist. Besides mission-specific mandates and the Medical Rules of Eligibility, Dutch military physicians and nurses have to abide by military criminal law, military disciplinary law, medical disciplinary law and international humanitarian law.6 Not obeying a lawful military command may court-martial them; obeying a military command that is unethical may lead to a reprimand or even a suspension by medical disciplinary law.7 Disobedience may have severe legal, professional and personal consequences.

All Dutch physicians and nurses are bound to the standards and rules set by the Royal Dutch Medical Association and the ‘ Individual Healthcare Professions Act ’.8 9 (This law includes other medical professions such as dentists and pharmacists as well. The law does not explicitly acknowledge the position of military medical personnel nor state that it is in effect in locations outside of the Netherlands; however, case law demonstrates that physicians are held accountable according to the Individual Healthcare Professions Act in similar fashion outside of the Netherlands.) These laws protect healthcare professions and state that disciplinary measures will be taken against any registered professional who acts (or omits an act) contrary to a patient’s best interest or to ‘ proper exercise of individual healthcare ’.8 This includes the provision of medical help to anyone who requires it without distinction or discrimination, that care should be provided according to the professional standards of the time, and that continuity of care should be ensured, as well as confidentiality. Consequently, equal care should be provided to soldiers, prisoners of war and civilians alike. Medical need should be the only factor influencing the priority and quality of medical care provided. International humanitarian law confirms these rules and behavioural codes. For this exact reason, healthcare personnel is protected through the given non-combatant status.10 Interestingly, the Individual Healthcare Professions Act also explicitly states that ‘ A physician will not accept any assignment or task conflicting with generally accepted medical-ethical views ’.11

According to the Dutch state, a military physician or nurse is bound to (military) criminal law first, and to medical and military disciplinary law second. The Dutch armed forces’ legal guidelines and mission-specific Medical Rules of Eligibility for medical personnel closely follow the medical standards, at least for as long as the military situation allows it.12 Situations that might compromise the military operation, for example shortage in equipment and manpower, permit divergence from these standards.12 13 Furthermore, individuals serving in the armed forces are forbidden to commit acts that may impede the functioning of the armed forces or harm its interests in any way, including not obeying orders by a superior, unless those orders were unlawful or considered unlawful in good faith.7 Actions are punishable if they directly lead to an impediment of the armed forces’ ability to perform their primary goals such as an operation in the field.14 When a medical requirement obstructs military necessity, a physician or nurse loses the agency to act on his or her professional moral compass.

The military legal framework prioritises military necessity and duty towards the armed forces and one’s peers. The medical legal framework prioritises what is ethical in respect to the caregivers’ responsibility towards their patients. While military commanders are ultimately responsible for the provision of healthcare to their personnel, individual healthcare workers maintain their own responsibility to provide healthcare according to professional medical standards.12 While under the command of superiors without relations to the medical profession, military medical personnel is held responsible for their actions by both the medical and military professional peer groups. This may put them in a complicated position regarding law and legislation.

Professional identity and the moral framework

Within the modern type of warfare of the post-Cold War era, Western powers have legitimised their military interventions with a specific kind of moral supremacy. They intervene on behalf of international peace politics aiming to help a country troubled by conflict. Fighting moral wars and fighting them in a moral way were the conditions to gain and maintain legitimacy for military operations.15 The moral framework is an important part of professional identity. Within both the military and medical professional environment, moral standards are held high within education as well as the working environment. Both professions enjoy a great deal of trust from society that they will act in a just way under all circumstances.16 The Dutch physicians’ oath states that the patients’ needs come first and care is distributed along those lines.17 The medical moral framework in this sense closely resembles the medical legal framework. One is a physician or nurse first and anything else second. The World Medical Association confirms this viewpoint: a physician, who may experience dual or conflicting loyalties, has a primary obligation as a physician.18 19 Loyalty within the medical profession refers to a physician’s or nurses’ loyalty to their moral values and by direct extent to their patients.

Meanwhile, the military profession has a slightly different idea of professionalism. Their oath swears obedience to the state’s laws and the discipline of the armed forces.20 Contrastingly, loyalty in the military is foremost duty to the military organisation and to one’s commanders and peers. It is directed upwards in hierarchy, especially since the military profession lacks an independent organisation transcending company affiliation to guard the principles and moral values of the profession (as the medical profession has). (In the Netherlands we have the Royal Dutch Medical Association and the Verpleegkundigen & Verzorgenden Nederland.) This lack of transparency, checks and balances could pressure its members’ moral integrity.21–23

Duty and obedience while serving in the armed forces do not absolve a physician or nurse of his or her own autonomous judgement of situations and compliance with the medical moral framework. Meanwhile, the legal framework does require them to obey legal orders by military commanders. The medical moral framework is very clear on the position a military healthcare worker should take, but does not deal with the hierarchical position physicians and nurses have under military command, nor with the combat situation they are placed in. The misalignment between what is legal and what can be considered morally just by medical personnel complicates the decision-making process, as the moral framework of the medical profession includes different moral values and behavioural codes than the legal framework in which they serve.

Moral injury and moral outrage: Dutch military medical personnel in Srebrenica

The case of the Dutch military medical personnel deployed to Srebrenica in the summer of 1995 with the United Nations Protection Force (UNPROFOR) peace mission illustrates this misalignment between the moral and legal framework and the consequences this may have. (UNPROFOR, former Yugoslavia; a Dutch battalion of the ‘airmobile brigade’ had been stationed on several locations in the enclave since 1994.) The military situation had gotten critical early in 1995. The enclave was closed off, hardly any new material and equipment could reach the battalion. When the Bosnian-Serbs launched their attack in early July, there were shortages of everything, including medical equipment. Medical personnel, who had been providing care to the local population for the past year, was ordered to put treatment on hold to save medical capacity for potential wounded Dutch soldiers. Meanwhile, refugees flooded into the Dutch compound in need of (medical) attention. The order was justified within the legal framework and mission mandate, as the medical personnel’s priority was to provide care for the Dutch soldiers.24 25 Military necessity, above all, would be served with this measure, as it was focused on maintaining the fighting strength by protecting the own troops. However, the contrasting moral and legal framework and the events that followed had severe consequences.

On a personnel level this legal order by military command led to moral problems for physicians and nurses involved. Several medical professionals expressed feeling compromised in their identity as a medical professional. Feelings of anger and shame are expressed. Several members of the medical staff even decided to ignore orders, for example the order to hide in a bunker during an attack. They went outside to help Bosnian victims as, like one physician expressed, not helping did not match his idea of being a physician. Even years after their deployment many are still bothered by the situation they were put in. Some who obeyed the orders still felt problematised by their choice to follow these.26 27 Negative feelings of anger and guilt as well as corrosion of identity as a physician or nurse are the result, feelings that often continue postdeployment and may lead to trauma such as moral injury.28

Second, this friction between the moral and the legal framework caused problems for the legitimacy of the armed forces. The inability to provide medical aid to the civilian refugee population led to widespread moral outrage in Dutch society. Newspapers wrote extensive articles on the supposed moral failure of the Dutch medical personnel, and the investigative television programme Brandpunt aired an episode on the supposed immoral behaviour of the Dutch military medical personnel.29 30 Subsequently, the Dutch parliament demanded a broader investigation into the behaviour of medical personnel during the fall of Srebrenica. The moral outrage also contributed to the installation of a broader system of checks and balances before the armed forces could be deployed in the future. (The Toetsingskader included checks such as the guarantee of backup by other nations as well as support from society for the peace mission.)

The inability of medical personnel to uphold their own moral standards during the fall of the enclave, because the legal framework had a ‘ moral standard ’ that prioritised military necessity and demanded them to obey, led to negative self-perception by military medical professionals. Simultaneously, it sparked moral outrage in society because actions did not comply with the moral standards that were expected of them by the public, even though the actions complied with the legal framework. This affected the legitimacy of the armed forces in society negatively and reduced support for future peace missions.