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Commentary - Art. 112. Part IV : Termination of captivity #Section I : Direct repatriation and accommodation in neutral countries
    [p.523] ARTICLE 112. -- MIXED MEDICAL COMMISSIONS


    GENERAL REMARKS

    Article 69 of the 1929 Convention provided that, in each belligerent country, Mixed Medical Commissions would be appointed to examine sick and wounded prisoners of war and to make decisions regarding their repatriation. The Commissions were to be composed of three members, two of whom were to belong to a neutral country, the third being appointed by the Detaining Power, The Convention did not state, however, which authority was to appoint the neutral members, and in many cases the belligerents laid this task upon the International Committee of the Red Cross. It also occurred that these appointments were made jointly by the International Committee and the Swiss Government, in its capacity as Protecting Power. In other cases, Switzerland alone dealt with the appointment of the neutral members (1).
    The 1929 Convention did not in any way define the status of the neutral members of Mixed Medical Commissions, and this situation created real problems. Since they were subordinate to no one, their plan of work was not co-ordinated and the criteria serving as a basis for repatriation were not invariably the same. The International Committee of the Red Cross nevertheless succeeded in achieving some improvements in this matter (2).
    At the end of the war, the International Committee of the Red Cross convened a meeting of former neutral members of Mixed Medical Commissions who were in Switzerland. Their suggestions and comments formed the basis for the International Committee's work [p.524] connected with the revision of the 1929 Convention, in regard to the repatriation of seriously wounded and seriously sick prisoners of war, their accommodation in neutral countries and the operation of Mixed Medical Commissions.

    PARAGRAPH 1. -- ROLE AND ORGANIZATION OF THE COMMISSIONS

    1. ' First sentence. -- Rôle of the Commissions '

    Mixed Medical Commissions must be appointed ' upon the outbreak of hostilities; ' this is obviously essential so that they may commence their work as soon as fighting has begun. During the Second World War, and particularly in distant colonies, belligerent States frequently Waited until a large number of prisoners of war were in their hands before taking any steps to set up Commissions. The question was therefore raised of fixing a time-limit in the Convention for the appointment of the Mixed Medical Commissions. The neutral members of Mixed Medical Commissions who met at Geneva in September 1945 considered it indispensable to lay down in the Convention that such Commissions should set to work within three to six months after the outbreak of hostilities (3). This proposal was not adopted but it remained understood that the Commissions should start work as soon as prisoners needed their attention, regardless of the number of the latter. Article 9 of the Regulations annexed to the Convention (Annex II) states that the Commissions must begin their work not more than three months after the date of their appointment and approval by the Parties to the conflict.
    The task of the Commission is therefore twofold: to examine wounded or sick prisoners of war, and to make all appropriate decisions regarding them.
    With regard to the examination of wounded and sick prisoners of war, it has already been pointed out in connection with Article 110 above that in many cases expressly mentioned in the Model Agreement annexed to the Convention (Annex 1), the decisions of the Mixed Medical Commissions will be based to a great extent on the records kept by camp physicians and surgeons of the same nationality as the prisoners of war, or on an examination by medical specialists of the Detaining Power (4). Apart from those cases which are expressly [p.525] referred to, the text seems to require that the Commission should itself examine the wounded or sick prisoner of war. This provoked criticism during the Second World War, when the prisoners themselves sometimes complained of not being examined by a Mixed Medical Commission, which was content to make decisions after consulting the records presented (5). The solution is to set up a sufficient number of Commissions so that their members can undertake thorough examinations.
    After examining prisoners of war, the Commissions must take ' all appropriate decisions ' regarding them. In the first place, this means the necessary decisions for the application of Article 110 , that is to say decisions relating to repatriation, accommodation in a neutral country or a further examination at a later date.
    The phrase ' all appropriate decisions, ' which was adopted in 1929, has a still broader meaning, however; for instance, it permits the Mixed Medical Commissions to request the camp commander to move the patient or exempt him from certain work, as well as to make representations to the camp commander concerning requests presented by the camp physician or surgeon, etc. (6)
    The categories of wounded and sick prisoners of war who are to be examined by the Mixed Medical Commissions are specified in Articles 113 and 114 below.

    2. ' Second sentence. -- Organization and functioning '

    Matters relating to the organization and functioning of Mixed Medical Commissions are governed by annexed Regulations (Annex II), which did not exist in the 1929 Convention.

    A. ' Appointment '. -- This is dealt with by Articles 1 to 6 and 13 of the ' Regulations concerning Mixed Medical Commissions ' annexed to the Convention (Annex II).
    As already provided by the 1929 Convention, the Commissions are to be composed of three members, two of them belonging to a neutral country and the third being appointed by the Detaining [p.526] Power. The two neutral members will usually belong to the same country (7).
    During the Second World War it was sometimes impossible to find on the spot a sufficient number of neutral practitioners qualified to constitute Mixed Medical Commissions (8). This difficulty is now settled by Article 13 of the Regulations, which provides for co-operation between the Protecting Power and the Detaining Power in the appointment of the members of the Commission.
    Article 1 of the Regulations states that one of the neutral members must act as chairman of the Commission; this appointment will be made by agreement between the members, due regard being paid to seniority, rank, capacity and the preference of the members (9).
    During the Second World War the International Committee of the Red Cross was often called upon to constitute Mixed Medical Commissions, and this practice is retained, under Article 2 of the Regulations. As an alternative solution, Article 5 states that Commissions may be appointed by the Protecting Power (10).
    Article 3 retains the principle of approval by two States (the Power of origin and the Detaining Power) and this approval must be requested simultaneously. Under Article 4 , deputy members must also be appointed to replace the regular members in case the Commission's work is held up because of death, unavailability or resignation of any of the regular members.
    icle 6 provides that so far as possible one of the two neutral members shall be a surgeon and the other a physician. At the meeting of neutral members of Mixed Medical Commissions, held in Geneva in 1945, it was also recommended that neutral practitioners resident in their own country should be chosen in preference to those residing in the territory of the Detaining Power, as the former were more likely to be impartial; exceptions might have to be made in the case of distant countries where this would cause too many practical difficulties (11).
    It is also recommended that the medical corps of neutral countries should draw up in advance a list of qualified doctors prepared to [p.527] serve on a Mixed Medical Commission, and such lists would be kept available to Protecting Powers and the International Committee of the Red Cross.

    B. ' Duties '. -- Once they have been appointed and approved, the neutral members of Mixed Medical Commissions must begin their work within a period of three months thereafter (Article 9 of the Regulations). It is desirable that the Commissions should begin their work as soon as possible after the commencement of hostilities. Their tasks are defined in Article 10 of the Regulations, which refers to Article 113 of the Convention (12).
    After making these examinations the Mixed Medical Commissions will, pursuant to Article 11 of the Regulations, communicate their decisions to the Detaining Power, the Protecting Power and the International Committee of the Red Cross, as well as to each prisoner of war concerned. Furthermore, if the Commission has proposed the repatriation of a prisoner of war, he must be given a certificate similar to the model appended to the Convention (Annex IV. E).
    Forms for such certificates will usually be supplied by the Detaining Power and the chairmen of Mixed Medical Commissions would then hand them duly filled in to the prisoners of war entitled to repatriation (13).
    The Mixed Medical Commissions will function permanently (Article 14 ) and visit each camp at intervals of not more than six months.

    C. ' Functioning '. -- The principle that Mixed Medical Commissions must be entirely independent of the Parties to the conflict was never questioned and is confirmed by Article 7 of the Regulations. This independence was, however, accompanied by certain disadvantages during the Second World War; since the Commissions were subordinate to no one, their plan of work was not co-ordinated and the criteria serving as the basis for repatriation were not invariably the same (14). This disadvantage was remedied by re-drafting the Model Agreement (Annex I); the new text concerning cases eligible for direct repatriation [p.528] (Section A) includes in sub-paragraphs (1) and (2) details which were not given in the Model Draft Agreement of 1929.
    Article 8 of the Regulations states that the terms of service of members of Mixed Medical Commissions will be settled by the International Committee of the Red Cross in agreement with the Detaining Power. This means that their salary, insurance (life, health, accidents), and travel expenses will be paid either by the International Committee of the Red Cross, which will then claim reimbursement from the Detaining Power, or by the Detaining Power itself (15).
    Furthermore, members of Mixed Medical Commissions will wear military uniform, after prior notification of the Detaining Power by the International Committee (16).
    It is also recognized that the Detaining Power should provide accommodation and maintenance for neutral members on its territory, and should furnish the necessary staff to accompany and assist them in the carrying out of their duties, as well as all necessary records (X-rays, etc.)

    PARAGRAPH 2. -- PRISONERS OF WAR REPATRIATED WITHOUT
    EXAMINATION BY A MIXED MEDICAL COMMISSION

    This clause provides that prisoners of war who are manifestly seriously injured of seriously sick may be repatriated without having to be examined by a Mixed Medical Commission. It will be particulary useful early in the conflict, before the Commissions have been able to begin their work. The application of this provision may not, however, serve as a pretext for evading the requirement in Article 109, paragraph 3 , that no sick or injured prisoner of war may be repatriated against his will (17).


    * (1) [(1) p.523] See ' Report of the International Committee of
    the Red Cross on its activities during the Second World
    War, ' Vol. I, p. 386;

    (2) [(2) p.523] Ibid., pp. 387-388;

    (3) [(1) p.524] See ' Report on the Meeting of Neutral Members
    of the Mixed Medical Commissions, ' p. 4;

    (4) [(2) p.524] See above, p. 516; see also Annex I, p. 650
    ff.;

    (5) [(1) p.525] See ' Report of the International Committee of
    the Red Cross on its activities during the Second World
    War, ' Vol. I, p. 390. It sometimes happened that, since
    time was too short to allow examination of the numerous
    candidates, the doctors held that the patients' records,
    the result of a series of observations, offered better
    surety than a single examination. Such a practice should
    only be followed, however, in the cases specially
    indicated in Annex I, Section (3), which are marked with
    asterisks; see below, pp. 652-653;

    (6) [(2) p.525] See ' Actes de la Conférence de 1929, '
    p. 502;

    (7) [(1) p.526] See ' Actes de la Conférence de 1929, '
    p. 504;

    (8) [(2) p.526] See ' Report on the Meeting of Neutral Members
    of the Mixed Medical Commissions, ' p. 3;

    (9) [(3) p.526] Ibid., p. 3; see also, as regards the rôle of
    the Chairman, pp. 13-14;

    (10) [(4) p.526] See ' Report on the Work of the Conference of
    Government Experts, ' p. 235;

    (11) [(5) p.526] See ' Report on the Meeting of Neutral Members
    of the Mixed Medical Commissions, ' p. 12;

    (12) [(1) p.527] Mention should also be made of Article 114,
    which provides that prisoners of war who meet with
    accidents at work will also be eligible for repatriation
    or accommodation in a neutral country. Such cases must
    therefore also be examined by the Mixed Medical
    Commissions;

    (13) [(2) p.527] See ' Report on the Meeting of Neutral Members
    of the Mixed Medical Commissions, ' p. 10;

    (14) [(3) p.527] See above, p. 523;

    (15) [(1) p.528] See ' Report on the Meeting of Neutral Members
    of the Mixed Medical Commissions, ' pp. 12-13;

    (16) [(2) p.528] Ibid., p. 13;

    (17) [(3) p.528] See above, pp. 512-513;