ICRC databases on international humanitarian law
  • Print page
Commentary - Art. 35. Part III : Captivity #Section II : Internment of prisoners of war #Chapter V : Religious, intellectual and physical activities
    ARTICLE 35. -- RETAINED CHAPLAINS


    [p.230] GENERAL

    As has already been done in connection with Article 33 , reference should be made here to the difficulties which arose at the Diplomatic Conference in 1949 (1).
    As will be seen in considering the present Article, the contradictions referred to do not all seem to have been eliminated. They are, however, mitigated by the fact that Article 33 applies mainly to medical personnel, while the present Article and Articles 34 , 36 and 37 were drawn up to apply expressly to chaplains and to the exercise of religious duties in prisoner-of-war camps.
    Some confusion arose in the past from the reference in the corresponding provision in the 1929 Convention (Article 16, paragraph 2 ) to "ministers of religion, who are prisoners of war" because of the often widespread belief that ministers of religion are always chaplains in the army. This is not so, and the distinction is an important one since chaplains are entitled to protection under the First Geneva Convention, relative to the wounded and sick, and therefore may not be prisoners of war. The question is settled by the Third Convention in a way which leaves no room for doubt; the present Article refers exclusively to chaplains, while other ministers of religion are the subject of Article 36 (2).

    [p.231] 1. ' First sentence. -- Free exercise of ministry '

    This provision has certain elements in common with Article 33, paragraph 2 , and Article 34, paragraph 1 : retention, freedom to exercise their duties, professional and religious conscience, and respect for the routine prescribed by the military authorities. This similarity, however, also serves to emphasize certain differences. The present Article refers not only to "retained" chaplains but also to those "who remain", that is to say, who remain of their own free will.
    The prerogatives of retained chaplains are based on their mission, which is that of "assisting prisoners of war". Chaplains who remain voluntarily in the hands of the Detaining Power have the same mission. An identical situation therefore calls for identical status, the more so as such voluntary internment is subject to the consent of the Detaining Power (3).
    Moreover, the right officially granted to chaplains to minister to prisoners of war and to exercise freely their ministry should, in our view, be examined in the light of Article 34 . The provisions of Article 33 , which require respect for the military laws and regulations of the Detaining power are more restrictive than the reference to "disciplinary routine prescribed by the military authorities" in Article 34, paragraph 1 . In our view, the principle of religious freedom and free exercise of ministry cannot be limited by any regulations which the Detaining power, has laid down for its own armed forces; in this instance, the special provision (Article 34 ) seems to override the general one.
    The Convention next states that chaplains must be allowed to minister to prisoners of war "in accordance with their religious conscience". This condition is absolutely essential, since religion is inspired directly by the faith and conviction of those who profess it. The same is true of the assurance that chaplains are to be allowed to exercise their ministry among prisoners of war of the same religion. The principle is stated here in an absolute form; the following sentence provides for its practical application.

    2. ' Second sentence. -- Allocation '

    This sentence, which provides for the allocation of chaplains between camps, was included following interventions by the International [p.232] Committee of the Red Cross (4) and it in no way conflicts with Article 33 . On the contrary, it falls naturally within the scope of the arrangements made by the Detaining power in accordance with paragraph 2 of that Article.

    3. ' Third sentence. -- Facilities '

    The "necessary" facilities include, in the first place, those listed in Article 33 , but that list is by no means exhaustive. Reference should also be made to Section VI, Chapter II (Articles 79 to 81) and to the commentary on Article 81 , which concerns the prerogatives of prisoners' representatives; libraries, reading rooms or the circulation of a newspaper may prove most useful for chaplains.
    Lastly, it should be noted that the Detaining Power must grant such personal facilities to chaplains as are necessary if they are to carry out their duties. For instance, they should if possible be given separate quarters so that they may converse freely and frankly with prisoners. Similarly, the fact that Article 33 (c) exempts them from other work is no justification for giving them the same rations as prisoners who do not work, if the exercise of their ministry calls for really arduous effort on their part (5). They will receive working pay from the Detaining Power, in accordance with the provisions of Article 62, paragraph 2 .

    4. ' Fourth and fifth sentences. -- Freedom to correspond '

    A clause similar to that contained in the two concluding sentences of the present Article, but providing for "all necessary facilities for correspondence", appears at the end of Article 33 (c) .
    Such facilities will include not only exemption from restriction as to quantity, but also, if need be, the right of priority for censorship, [p.233] since considerable delays may otherwise occur. The Detaining Power might also grant special privileges to chaplains regarding the language to be used in correspondence.
    Freedom and facilities for correspondence are granted for questions relating to their ministry (Article 33 (b) ) and for matters concerning their religious duties, according to the present provision. The text should be interpreted liberally, so as to include all correspondence concerning spiritual assistance for prisoners of war, whether individually or as a group. In accordance with Article 125, paragraph 2 , limitations may be placed on the number of international religious organizations with which such correspondence is permitted.


    * (1) [(1) p.230] The text finally proposed by the Committee
    included the following text, as Article 29B, instead of
    the present Article 33, which corresponds almost
    identically to Article 28 of the First Convention. The
    text of Article 29B read as follows:
    "Members of medical personnel and chaplains
    whilst retained by the Detaining Power to look after
    prisoners of war shall be granted all facilities
    necessary to provide for the medical care of and
    religious ministrations to prisoners of war. Such
    retained personnel shall not be considered prisoners
    of war but shall receive all the benefits and
    protection of this Convention".
    (See ' Final Record of the Diplomatic Conference of
    Geneva of 1949 ', vol. II-A, p. 583.)
    The present Articles 34 to 37 were finally adopted in
    the form in which they were drafted with the exception of
    a few amendments subsequently made to Article 35, as we
    shall see.
    At a plenary meeting, however, the above text of
    Article 29B was strongly opposed and a delegation
    submitted an amendment providing for the inclusion of
    Article 28 of the First Convention (Article 33 of the
    present Convention) referring to the rights and privileges
    of retained personnel.
    A protracted discussion ensued during which some
    delegations asserted that the new Article 29B (now Article
    33) and Article 30A (now Article 35) of the draft text
    were incompatible because they contained certain
    conflicting provisions (see ' Final Record, ' vol. II-B,
    pp. 282-288). Finally, a working party was instructed to
    co-ordinate the two provisions and they were both adopted
    at a plenary meeting (see ' Final Record, ' vol. II-B, p.
    342);

    (2) [(2) p.230] See ' Final Record of the Diplomatic
    Conference of Geneva of 1949 ', vol. II-A, p. 332. See
    also ' Remarks and Proposals ', p. 46;

    (3) [(1) p.231] See ' Commentary I ', pp. 240-242;

    (4) [(1) p.232] See ' Report of the International Committee of
    the Red Cross on its activities during the Second World
    War ', Vol. I, pp. 274-276. See also ' Report on the Work
    of the Conference of Government Experts, ' pp. 149-150;

    (5) [(2) p.232] It should be pointed out, moreover, that the
    draft text proposed by Committee II contained a further
    paragraph, which was deleted by the Working Party of the
    plenary assembly. The text was as follows: "They shall be
    granted additional rations as provided for working
    prisoners of war in the second paragraph of Article 24,
    and they shall also be granted additional opportunities
    for exercise and recreation including some freedom of
    movement in order to maintain the state of mental and
    physical fitness required to carry out their religious
    duties." (' Final Record of the Diplomatic Conference of
    Geneva of 1949. ' vol. II-A, p. 583.);