Why Guantánamo Detainees Should Have Access to COVID Vaccines Part II: Federal Law and DoD Policies

We argued earlier this week that the Department of Defense’s (DOD) decision to suspend vaccination plans for Guantánamo detainees is a violation of the law of armed conflict and an unsound policy. But there is another reason this decision is such a bad one: the suspension runs afoul of federal statutes as well as internal DOD regulations that recognize the right to medical care for detainees.

Statutory provisions and DOD regulations establish three basic principles. They establish (1) the DOD commitment to follow customary international law regarding medical treatment of detainees (principles we outlined in our previous article); (2) medical decisions should be made by medical experts on medical grounds alone (not political ones), and (3) detainees’ medical treatment must be as close as practicable to that of servicemembers. Refusing to offer vaccinations to the detainees while vaccinations continue for servicemembers violates these statutes and policies.

DOD Principles and the Statutory Law that Commit to Follow Customary International Law Regarding Medical Treatment of Detainees

In 2016, Secretary of Defense Ashton Carter issued a Department-wide Memorandum on the “Principles Related to the Protection of Medical Care Provided by Impartial Humanitarian Organizations During Armed Conflicts.” The document is explicitly grounded in the Geneva Conventions and Additional Protocol II, and it begins by affirming that “the protection of medical care during armed conflict is one of the oldest principles in law of war treaties.” It then proceeds to lay out several requirements that follow from this commitment. Part V makes clear, for example, that equity is essential: “The wounded and sick shall receive, to the fullest extent practicable and with the least possible delay, the medical care and attention required by their condition. There shall be no distinction among them founded on any grounds other than medical ones.” Perhaps most important, Part X makes clear that all the principles are to be “interpreted in light of conventional and customary international humanitarian law.” This commitment was recently reaffirmed yet again in DOD Directive 2310.01E, effective September of 2020.

The governing federal statute, section 1299J(b) of the National Defense Authorization Act for Fiscal Year 2021 (NDAA), adds Congress’s affirmation of the commitments in the 2016 memorandum by requiring the Secretary of Defense to ensure that “any other guidance, training, or standard operating procedures relating to the protection of health care during armed conflict, are consistent with the ‘Principles Related to the Protection of Medical Care Provided by Impartial Humanitarian Organizations During Armed Conflicts.’”

DOD Directives and Statutory Law Establishing that Medical Decisions Should be Made by Medical Experts on Medical Grounds Alone

The 2020 NDAA addressed medical care for Guantánamo detainees, making clear that medical decisions should be made based on medical expertise alone. Section 1046(e)(3) states flatly that the Chief Medical Officer at the Guantánamo Bay naval station must provide a standard of care to detainees, defined as “evaluation and treatment that is accepted by medical experts and reflected in peer-reviewed medical literature as the appropriate medical approach for a condition, symptoms, illness, or disease and that is widely used by healthcare professionals.” Certainly the approved COVID vaccines are an “appropriate medical approach” and are “widely used by healthcare professionals.”

DOD Directive 2310.01E, effective September 2020, affirms a broad commitment to treat detainees within the bounds of the Geneva Conventions. It states that, “All detainees will be treated humanely and with respect for their dignity, in accordance with applicable U.S. law and policy and the law of war.” And it notes that humane treatment includes “[a]ppropriate medical care and attention required by the detainee’s condition, to the extent practicable.”

DOD Guidance and Statutory Law Making Clear that Medical Treatment Should Be Guided by Standards Similar to Those Applied to U.S. Military Personnel

Section 750 of the FY2006 NDAA directed the Secretary of Defense to establish a policy on the role of medical professionals in the interrogation of Guantánamo detainees. The Department’s subsequent memo in response states that “medical treatment [for detainees] should be guided by standards similar to those applied to U.S. military personnel.” Section 4.1.2 of the policy elaborates that medical professionals working with detainees “have a duty to protect detainees’ physical and mental health and provide appropriate treatment for disease. To the extent practicable, treatment of detainees should be guided by professional judgments and standards similar to those applied to personnel of the U.S. Armed Forces.”

DoD Instruction 2310.08, which became effective in September 2019, further provides that health care personnel “[w]ill provide health care services for detainees and have a duty to provide appropriate medical care and attention required by the detainee’s condition. To the extent practicable, treatment of detainees should be guided by professional judgments and standards similar to those applied to personnel of the Military Services.”

What This Means for the COVID-19 Vaccine

The aggregation of these statutory provisions and DOD policies shows a requirement for detainee medical treatment to be conducted consistent with international humanitarian law, made in an appropriate medical manner, and applying standards of care similar to those provided to U.S. service members.

With the rollout of the COVID vaccine, we can compare the detainees’ treatment to the Department’s vaccination plan for the rest of the Guantánamo Bay naval station. As of January 12th, approximately 100 people at Guantánamo Bay had received the vaccine and 1,850 were expected to be vaccinated shortly after, out of 6,000 people stationed on the base. By January 25th, medical professionals were vaccinating groups 1a and 1b, according to the base’s hospital.

As a result, it is clear that the detainees, none of whom have been offered the vaccine, have failed to receive a standard of care that matches those provided to U.S. military or civilian personnel at Guantanamo, even though many detainees are older and have medical conditions that put them in a high-risk group.  As the rollout progresses, any continued suspension of vaccinations specifically for detainees moves their medical treatment further away from that of servicemembers at Guantánamo Bay — and thus further away from what the law of armed conflict, other federal law, and DoD policies all require.

The authors thank Mari Dugas for her excellent assistance on this article.

Editor’s note: See also Why Guantánamo Detainees Should Have Access to COVID Vaccines Part I: Law of Armed Conflict and Good Policy

Image: The detainee hospital’s operating room is seen in Camp Delta which is part of the U.S. military detention facility in Guantanamo Bay, Cuba (Joe Raedle/Getty Images)

 

About the Author(s)

Ryan Goodman

Co-Editor-in-Chief of Just Security, Anne and Joel Ehrenkranz Professor of Law at New York University School of Law, former Special Counsel to the General Counsel of the Department of Defense (2015-2016). Follow him on Twitter (@rgoodlaw).

Oona Hathaway

Gerard C. and Bernice Latrobe Smith Professor of International Law at Yale Law School and Director of the Center for Global Legal Challenges at Yale Law School. Member of the editorial board of Just Security. Member of the editorial board of Just Security. You can follow her on Twitter (@oonahathaway).

Steve Vladeck

Executive Editor of Just Security and Professor of Law at the University of Texas School of Law. Follow him on Twitter (@steve_vladeck).