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Commentary - Art. 113. Part IV : Termination of captivity #Section I : Direct repatriation and accommodation in neutral countries
    ARTICLE 113. -- PRISONERS ENTITLED TO EXAMINATION BY
    MIXED MEDICAL COMMISSIONS


    [p.529] Article 70 of the 1929 Convention stated that in addition to those prisoners of war selected by the medical officer of the camp, Mixed Medical Commissions should also inspect those who so requested or who were presented either by the prisoners' representative or by the Power on which they depended, or again by a duly recognized relief society.
    The experience of the Second World War showed that it was essential to revise this provision since the large number of prisoners of war who came before the Mixed Medical Commissions led to congestion of work and the Commissions were much hampered thereby (1).
    There were two possible solutions: either to provide for an adequate number of Mixed Medical Commissions in every country, or to revise Article 70 of the 1929 Convention so as to diminish the number of candidates. The latter proposal was approved and Article 113 of the present Convention contains the relevant provisions. The basic consideration, however, was the question of the advisability of abolishing the right conferred by the 1929 Convention on all prisoners of war to present themselves for examination by Mixed Medical Commissions. The majority of the experts decided to maintain that [p.530] right but to regulate its application so as to establish some method of preliminary selection (2). These proposals were approved by the 1949 Diplomatic Conference and embodied in the present Article.

    PARAGRAPH 1. -- CATEGORIES OF PRISONERS OF WAR
    ENTITLED TO EXAMINATION

    The first category of prisoners of war entitled to examination by the Mixed Medical Commissions comprises those designated by the medical authorities of the Detaining Power. This Power is responsible for applying the Convention to the prisoners of war in its hands, and it must therefore take the necessary measures for the repatriation of seriously wounded and seriously sick prisoners (Article 109, paragraph 1 , and Article 110, paragraph 1 ). It does not seem likely that the Detaining Power could be suspected of favouritism towards enemy prisoners of war, and those designated by it will probably be those who most deserve repatriation.
    When the Detaining Power is informed of the impending visit of the Mixed Medical Commission, it will prepare a list of wounded or sick prisoners of war who should, in its view, be examined by that Commission with a view either to repatriation or, if appropriate, accommodation in a neutral country.
    Besides this first list, three other lists may be prepared:

    (1) ' Wounded and sick proposed by a physician or a surgeon of the same or an allied nationality: ' In accordance with Article 33 of the Convention, the Detaining Power may retain the medical personnel which it needs, without considering them as prisoners of war. Such personnel will continue to exercise their medical functions in the camps for the benefit of prisoners of war, preferably those belonging to the armed forces upon which they depend. This also applies to prisoners of war assigned to similar tasks under Article 32 .
    These medical officers therefore hold an important position in the camps. Their status is a special one, and they are entitled to present lists of wounded and sick prisoners of war who they consider should be examined by the Mixed Medical Commission. On the other hand, they should also induce prisoners of war whose health is not really affected not to go before the Mixed Medical Commission, in order not to hamper its work for no good reason (2).

    [p.531] (2) ' Wounded and sick proposed by their prisoners' representative: ' This right of prisoners' representatives was already recognized in Article 70 (b) of the 1929 Convention. A prisoners' representative may know of a prisoner of war who, though ill, does not report sick because of will-power, resignation, or any other sentiment. There were many such cases during the First World War, particularly among officers (3). Similarly, the prisoners' representative may be familiar with the case of sick prisoners of war who have been unjustly excluded from the list either by the medical authorities of the Detaining Power or by the medical officer of their own nationality.

    (3) ' Prisoners of war proposed by the Power on which they depend or by a relief organization: ' This possibility also existed under the 1929 Convention, Article 70 (c) . It relates to recommendations submitted on an official form, such as those used during the First World War. Such recommendations were sent either by the State of origin, or by duly recognized societies which, having learned from correspondence that a prisoner of war was very sick or badly looked after, requested the Commission to examine the case. The Mixed Medical Commissions kept the forms, and recorded their decision on them for communication to the family concerned.
    As regards the meaning of the phrase "organization duly recognized by the said Power and giving assistance to the prisoners", reference should be made to the commentary on Article 125 below.

    PARAGRAPH 2. -- PRISONERS WHO PRESENT THEMSELVES
    INDIVIDUALLY

    Despite the large numbers of prisoners of war who presented themselves for examination pursuant to Article 70 of the 1929 Convention during the Second World War, the drafters of the new Convention decided not to modify the right of prisoners of War to do so. Those in the categories listed in paragraph 1, or presented by the Detaining Power, will, however, be examined first.
    Thus a system of selection was introduced which ensures that the Commissions will not waste valuable time examining prisoners who are not seriously affected, to the detriment of those who are fully eligible for examination by Mixed Medical Commissions. Furthermore, [p.532] it is understood that those who present themselves individually must do so on the grounds of being wounded or sick and for no other reason.
    While Mixed Medical Commissions may be hampered in their work by prisoners of war who present themselves without due justification, it may also happen that prisoners who are really affected, and sometimes seriously so, are not presented for examination, as the experience of the Second World War proved (4).
    This question is all the more important because long periods sometimes elapse before a Commission again visits the same camp; Article 14 of the Regulations annexed to the Convention states that visits must take place at intervals of not more than six months, but during the Second World War a year sometimes passed between visits. Any oversight may have very serious consequences.
    It was nevertheless considered that, on the basis of Articles 8 and 10 , the delegates of the International Committee of the Red Cross and the Protecting Power were responsible for ensuring that all prisoners of war who should be examined by the Commission had actually been able to present themselves.
    Moreover, under Article 126 these delegates have access to all places of internment, imprisonment and work. Prisoners of war in labour detachments or working for private employers (5) are often at a great distance from the main camp and it is impossible for a Mixed Medical Commission to reach them. This is therefore the responsibility of the delegates of the International Committee of the Red Cross and the Protecting Powers.
    The Protecting Power is not actually mentioned in the present Article but there is nevertheless no doubt that if a medical officer of that Power finds that a prisoner of war who should have been repatriated has been omitted from the lists, through an oversight, he can make representations to the Detaining Power for the error to be put right. Such action comes within the general right of scrutiny which the Convention confers on the Protecting Power. It is also justified by paragraph 1, sub-paragraph (3) above, which authorizes proposals to be made by an organization duly recognized by the Power on which prisoners of war depend.
    [p.533] Under Article 114 below, the Mixed Medical Commissions may examine prisoners of war whose injury or illness is the result of accidents, whether at work or elsewhere, in the same way as prisoners in other categories. Article 115 affords the same rights to sick or wounded prisoners of war undergoing detention as a disciplinary punishment and, subject to the consent of the Detaining Power, to those imprisoned as a judicial punishment. In the absence of any agreement to the contrary, the Detaining Power must carry out the decisions of the Commission within three months of being notified of them (Annex II, Article 12 ).

    PARAGRAPH 3. -- PRESENCE OF A DOCTOR OF THE SAME NATIONALITY
    OR THE PRISONERS REPRESENTATIVE

    This provision was not included in the 1929 Convention; it was inserted mainly because the prisoners' representative and a physician or surgeon of the same nationality as the prisoners of war who know the person concerned can be of great assistance to the Commission. They will be able to give any explanation required as to the reasons why they included a particular person on their lists. They will also make sure that any documentation which might be necessary (X-rays, case-history sheets, etc.) is available to the Commission.


    * (1) [(1) p.529] See ' Report on the Work of the Conference of
    Government Experts, ' p. 240;

    (2) [(1) p.530] See ' Report on the Meeting of Neutral Members
    of the Mixed Medical Commissions, ' p. 24;

    (3) [(1) p.531] See ' Actes de la Conférence de 1929, '
    p. 505;

    (4) [(1) p.532] The International Committee of the Red Cross
    raised this point during the preparatory work before the
    1949 Diplomatic Conference, and proposed the following
    additional text: "Mixed Medical Commissions and their
    chairmen are empowered, if necessary, to verify that all
    prisoners of war due for examination by them appear on the
    lists drawn up to this effect, and are brought up before
    the Commissions" (See ' Report on the Meeting of Neutral
    Members of the Mixed Medical Commissions, ' pp. 8-9);

    (5) [(2) p.532] See the commentary on Articles 56 and 57,
    above;