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Commentary - Art. 37. Chapter IV : Personnel
    ARTICLE 37. -- MEDICAL AND RELIGIOUS PERSONNEL
    OF OTHER SHIPS


    Paragraph 1 is almost identical to the corresponding provision in the 1907, 1899 and 1868 texts. There is, however, no longer a [p.207] reference to a "captured ship" for it was too restrictive. The provision must be applicable to all medical personnel of the navy and the merchant marine, for they may fall into enemy hands other than through the capture of the ship in which they serve. It is no longer stated that such personnel are "inviolable" or "neutral", but that they must be "respected and protected", in the wording now consecrated by the Geneva Conventions.
    Paragraphs 2 and 3 are new, and their purpose is to adapt the Maritime Convention to the system of retention of medical personnel instituted by the First Geneva Convention of 1949.

    PARAGRAPH 1. -- PROTECTION AND RETURN

    Article 37 concerns religious and medical personnel -- other than those serving in a hospital ship, to whom the preceding Article refers -- who fall into enemy hands. As we have already said, it covers all medical personnel of the navy and the merchant marine; in practice, however, it will apply most frequently to the personnel of captured ships, who will belong to the Medical Service or the chaplaincy and will be respected and protected (1) in the same way as the personnel of hospital ships and the corresponding personnel attached to the armed forces on land, so that they may continue to tend the sick and wounded.
    What will be their fate if they fall into enemy hands? For the reasons indicated in the commentary on the preceding Article , the 1949 Diplomatic Conference did not adopt the same solution for naval medical personnel as for personnel attached to the armed forces on land. The former are entitled to treatment which is more liberal -- though less favourable -- than that accorded to the personnel and crew of hospital ships.
    Thus, the Convention stipulates that the personnel referred to here may continue to carry out their duties as long as is necessary for the care of the wounded and sick. That does not mean, as the next sentence makes clear, that they may get out of those duties; but they may not be prevented from carrying them out. As for the [p.208] wounded and sick referred to here, there is no doubt -- and this too is borne out by the context -- that they are only those carried on board the ship in which the personnel are, whether the captured ship or the captor vessel.
    Once the medical personnel are no longer required in the ship, they must be sent back as soon as the Commander-in-Chief in whose power they are considers it practicable. "Sent back" means that they must be returned to their country and to the forces to which they are attached.
    The Article adds that on leaving the ship, medical personnel may take with them their personal property. The 1907 Convention specified that they could take with them "the objects and surgical instruments which are their own private property". It is self-evident that the term "personal property" in the present Convention includes surgical instruments (2).
    Article 13, sub-paragraph (5) , specifies that the present Convention is applicable not only to members of the armed forces at sea, but also to members of crews of the merchant marine and of civil aircraft who are wounded, sick or shipwrecked and who do not benefit by more favourable treatment under any other provisions of international law. As we have seen in the commentary on Article 13, from the medical point of view there is no treatment more favourable than that provided under the present Convention in the case of members of such crews who are wounded, sick or shipwrecked at sea. Article 37 protects medical personnel assigned to the care of the persons designated in Article 13 , and therefore applies to medical personnel of the merchant marine, who are thus covered by the same provisions as medical personnel attached to the navy. They may wear the red cross armlet and carry the identity papers provided for in Article 43 .
    On the other hand, the question does not arise for civil aviation, since the latter does not possess any medical service comparable with that of the merchant marine. Because of the limited passenger capacity of aircraft and the speed at which they travel, in present times it is not necessary to have medical personnel on permanent duty in aircraft. But if by chance a doctor or nurse attached to [p.209] the civil aviation services were shipwrecked, he or she would be protected by the Convention because of the reference in Article 37 to Article 13 . That in no way entitles such personnel to use the armlet or the identity card for which provision is made in the present Convention. The applicability of the Convention to such personnel is purely accidental and momentary. It is not the purpose of the Maritime Convention to make provision for the civil aviation services. Once they have been landed, such doctors or nurses would be covered by the Fourth Geneva Convention, and in particular Articles 16 , 30 and 63 . Medical personnel attached to the civil aviation services should request from their authorities a special identity card and they may use the emblem which the medical organizations have endorsed for use by members of the medical and allied professions who are not entitled to display the red cross emblem (3).

    PARAGRAPH 2. -- RETENTION

    Paragraph 1 lays down the general principle that medical personnel must be returned, unlike the case of the armed forces on land and in accordance with the traditional concept followed in 1864, 1899 and 1907. Here, however, the rule is no longer given in an absolute form as it is in the case of the personnel of hospital ships; an exception is provided. Paragraph 2 entitles the captor Power to retain some of the medical personnel if it proves necessary to do so owing to the medical or spiritual needs of prisoners of war. In that case, persons whose assistance is required should be landed as soon as possible.
    Does the term "prisoners of war" refer only to those taken prisoner on board the ship? We hope so and we trust that it will be interpreted in this way. Moreover, it is usual for the medical personnel to accompany the crew of a captured ship. Logically, however, the interpretation of the text does not permit us to affirm this and the provision should have been made more explicit (4). Nevertheless, if a Power were to cite the present Article as justification [p.210] for retaining medical personnel in order to help care for prisoners of war on land, such prisoners must at least belong to the navy, save in case of emergency, for the Second Convention does not recognize any others. Moreover, the medical personnel attached to the navy, who are specialized and accustomed to travelling by sea, are few in number as compared to the corresponding personnel attached to the armed forces on land. They should therefore be able to serve preferably at sea.
    Similarly, it would be unsatisfactory if medical personnel attached to the merchant marine were retained in order to help care for prisoners of war belonging to the armed forces. Wherever possible, they should therefore be assigned only to caring for merchant seamen in the hands of the adverse Party.
    Generally speaking, if the present paragraph made it possible to retain for any length of time medical personnel attached to the navy in order to perform their duties in camps on land, in behalf of prisoners in any category, there is a risk that the very principle of repatriation set forth in the first paragraph would be nullified. And the desire of the authors of the 1949 Convention to accord a more liberal status to medical personnel attached to the navy than that accorded to the corresponding personnel attached to the armed forces on land would thus be thwarted.
    The 1907 Convention also provided that the belligerents must guarantee to medical personnel who had fallen into their hands the same allowances and pay as were given to personnel of corresponding rank in their own navy. That provision was dropped in 1949, and understandably so since, after landing, such personnel will be subject to the provisions of the First Geneva Convention, which on this point makes a reference to the Third Convention, relative to the treatment of prisoners of war. Until such time as they are landed or repatriated, however, what pay should such personnel receive? At least that specified in the Third Convention for prisoners of war. But it also seems equitable that, as in the past, they should receive the same pay as members of the Medical Service of the captor Power.

    [p.211] ' Paragraph 3 ' provides that retained personnel are to be subject on landing, to the provisions of the First Convention of 1949, In this connection, the reader should therefore refer to the commentary on Articles 28 to 32 of that Convention. Retained personnel will not merely be subject to the treatment instituted by the First Convention; they will also benefit by the provisions relating to repatriation, if circumstances no longer require them to remain with prisoners of war or if arrangements are made for them to be relieved.
    It should be emphasized here that since the present Convention applies in certain cases to medical personnel attached to the merchant marine, after landing they are therefore covered by the First Geneva Convention, which is thus extended in scope although that is not actually specified therein.


    * (1) [(1) p.207] As regards the meaning of this term, the
    reader should refer to the commentary on Article 12, p. 89
    above;

    (2) [(1) p.208] Article 30 of the First Convention still
    contains a reference to "instruments";

    (3) [(1) p.209] See Supplement to the ' Revue internationale
    de la Croix-Rouge, ' September 1957;

    (4) [(1) p.209] (2ème appel de note 1 page 209) This is a
    question which might be settled in the agreements on the
    retention of medical personnel which the High Contracting
    Parties are invited to conclude under Article 31 of the
    First Convention;