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Convention (III) relative to the Treatment of Prisoners of War. Geneva, 12 August 1949.
[p.216] ARTICLE 33
. -- RIGHTS AND PRIVILEGES OF
[p.217] Article 14, paragraph 4
, of the 1929 Convention provided that doctors and medical orderlies might be retained in the camps for the purpose of caring for their prisoner compatriots.
The Conference of Government Experts decided that this provision should be removed from the Convention relative to the Treatment of Prisoners of War and embodied in the First Convention (1). The First Committee of the Diplomatic Conference adopted a provision which contained detailed stipulations concerning retained medical personnel, and became Article 28
of the First Convention. It then appeared to the delegates to the Conference, meeting in plenary session, that such an important provision should not be left out of the present Convention, and the text of Article 28
was finally reproduced in the present Article (2), to ensure that commanders of prisoner-of-war camps would be aware of it.
The conditions for retention are stated in Article 28, paragraph 1
, of the First Convention and are not reproduced in the present Article (3).
PARAGRAPH 1. -- STATUS AND TREATMENT OF RETAINED
The wording of this paragraph is not absolutely identical with the corresponding text in Article 28
of the First Convention. Although both of them state that retained personnel shall not be considered as [p.218] prisoners of war, the First Convention adds (Article 28, paragraph 2
) that they shall ' at least ' benefit by all the provisions of the Third Convention, while the present paragraph states that they "shall... receive ' as a minimum the benefits and protection of the present Convention '". It would seem, as the author of the Commentary on the First Convention has pointed out (4), that the drafters' intention was to stipulate that the Detaining Power could apply to retained medical personnel only those provisions of the Third Convention that constituted an advantage for them.
Moreover, the phrase "as a minimum" clearly indicates that treatment as prisoners of war should be regarded as a minimum standard and that medical personnel should have a privileged position. This interpretation is in harmony with the practice and policy of the International Committee of the Red Cross during the Second World War. The Convention thus invites belligerents to give medical personnel additional advantages over and above those expressly provided for in the Conventions, whenever it is possible to do so.
In deciding not to place retained personnel on the same footing as prisoners of war, the intention of the Conference was to enable the former to carry out their medical and spiritual work in behalf of prisoners under the best possible conditions. The Conference thought it necessary to affirm the supra-national and quasi-neutral character of personnel whose duties placed them outside the conflict. By virtue of their neutral character alone, such personnel should be repatriated, and they are retained only as an exceptional measure with one purpose in view -- namely, relief work carried out with the consent, and even, in a manner of speaking, on behalf of the Power of Origin. The difference is that whereas under the 1929 Convention the matter had to be settled by special agreement between the two adverse parties to the conflict, under the new provisions this agreement is concluded beforehand, as it were, by the very fact of accession to the Convention.
While they remain with the adverse Party, medical personnel will actually find that their liberty is to some extent restricted, although from a strictly legal point of view they are not in captivity inasmuch as they are not prisoners of war. This state of affairs is inevitable in view of their status as "retained personnel" and their enemy nationality. Besides, Article 28
of the First Convention lays down that they are to be subject to camp discipline. The extent of the restrictions on their liberty will vary according to circumstances. In no event may they be more stringent than those imposed on prisoners of war. On [p.219] the contrary, belligerents should be particularly generous in this matter, having recourse, whenever possible, to supervision and assigned residence rather than actual internment.
In order to determine the treatment to be accorded to retained medical personnel, it is necessary to consider which provisions of the 1949 prisoners of War Convention are applicable to them. We shall revert to this matter in commenting on the second paragraph of this Article.
PARAGRAPH 2. -- FUNCTIONS
1. ' First sentence. -- General '
In the first place, retained medical personnel and chaplains are to continue to carry out their medical and spiritual duties in behalf of prisoners of war. The words "shall continue", which already appeared in the 1864, 1906 and 1929 Conventions, have been kept, and with good reason. They bring out the fact that although the capture and subsequent retention of medical personnel places them in a new environment and under a different authority, their functions remain unchanged and should continue without hindrance, and practically without a break. It is in fact only because of these functions that they are retained.
From now on, these functions will be performed under the laws and military regulations of the Detaining Power, and the authority of its competent services. This provision is dictated by both common sense and the demands of efficient administration. The Detaining power, being responsible for the state of health of all prisoners in its hands, and indeed of the entire population, must necessarily retain full powers of direction and control. The retained personnel whose help it receives are therefore absorbed, as it were, into the larger organization of its Medical Service and are subject in their work to the same rules as the national staff. It is difficult to see what other course could be adopted in practice. The medical personnel will naturally be placed under the authority of the Medical Service of the Detaining Power, while chaplains will come under the appropriate service -- doubtless the same as that to which the chaplains of the Detaining Power are attached.
Compulsion by the detaining authority must end, however, when we enter a domain which, for the doctor as for the priest, is governed by the rules of professional conscience or of the sacerdotal mission.
[p.220] The prisoners of war in whose behalf retained personnel are to carry out their duties shall be "preferably those belonging to the armed forces upon which they depend". This clarification was inserted in the Geneva Convention in 1929 in reference to medical personnel awaiting repatriation. It was adopted only by a narrow majority, some delegates considering that it was contrary to a fundamental principle of the Convention -- the principle, namely, that the wounded are to be cared for without distinction of nationality. These fears may have arisen from a confusion of thought. The fundamental obligation laid down in the Geneva Convention is that the captor is to treat and care for the enemy wounded as well as he does his own. Similarly a power fighting against several countries must give equal care to the wounded of each; but there is no restriction as to the methods chosen to ensure such equality of treatment. A power is thus entirely justified in having prisoners of a particular nationality cared for by doctors, medical orderlies or
chaplains who are their own countrymen. Such a course is, in fact, eminently desirable, one of the main reasons which led to the decision to sanction the retention of medical personnel being that prisoners preferred to be looked after by doctors of their own nationality.
In any case, this is only a recommendation and exceptions may be made where circumstances so demand.
2. ' Second sentence and sub-paragraphs (a), (b), and (c).--
The preceding clauses confer the benefits and protection of the Prisoners of War Convention on retained medical personnel and chaplains, and give them the right to continue their proper work.
The present paragraph sets out the additional facilities which should be accorded to such personnel. It is stated quite clearly at the outset, and emphasized in the clauses which deal with the details, that the facilities accorded are for "the exercise of their medical or spiritual functions". The authors of the 1949 Convention wished again to emphasize in this way that medical personnel -- who should normally be repatriated -- are retained only because of the duties which they perform. The ultimate justification of their privileged status is the good of the combatants who need their assistance.
It should also be noted that these facilities, being expressly mentioned in the Convention, should always take precedence over similar provisions in regard to prisoners in general in the Prisoners of War Convention.
[p.221] The first facility accorded to the personnel, under ' sub-paragraph (a) ', is the right to make periodic visits to prisoners of war in labour detachments or hospitals outside the camp, and to have the necessary transport for the purpose.
Prisoners need medical and spiritual aid, no matter where they are, and those whose duty it is to bring them such aid must be able to make whatever journeys are required. The specific mention of hospitals and labour detachments should not be considered as limiting the scope of the provision, because prisoners in penitentiaries or living with private families also need medical or spiritual aid. The Detaining Power is free to exercise such supervision as it considers necessary over these journeys, and will decide if the circumstances call for an escort or not. It might, for instance, dispense with an escort in the case of medical personnel who had promised not to abandon their posts. Retained personnel cannot misuse the right so conferred upon them: they are entitled to leave the camp and travel only in order to visit prisoners entrusted to their care.
The Convention next provides, under ' sub-paragraph (b) ', that the senior medical officer shall be responsible to the camp military authorities for everything connected with the activities of retained medical personnel.
The necessity of placing retained medical personnel under a chief follows logically from the fact that they have an important role to play. An organized and graded staff, such as there is in a hospital, is necessary for the satisfactory performance of their duties, and it is for this reason that the Diplomatic Conference rightly amended at this point the draft submitted to it, which provided that medical personnel could elect a spokesman from amongst their number. As in the case of the appointment of the prisoners' representative in officers' camps, the senior medical officer of the highest rank is automatically selected.
It was in order to make it possible to decide upon the nominee that mention was retained of an agreement to be concluded between the Parties to the conflict to determine the corresponding seniority of the ranks of their medical personnel, including the members of Red Cross Societies and other societies authorized to collaborate with the Medical Services of the armed forces.
The Article under review gives the responsible medical officer two prerogatives: he is to have direct access to the camp authorities in all questions arising out of his duties, and he is to be allowed the necessary facilities for correspondence relating to such questions. Thus the number of letters and cards which it may be necessary for him as responsible medical officer to write and receive must never be limited, [p.222] as the number of letters and cards written and received by prisoners of war may be in certain circumstances. It is important that the responsible medical officer should remain in close touch with medical circles in his own country, with the Protecting Power, the International Committee of the Red Cross, relief organizations, the families of captured personnel and so forth.
It should be noted that the appointment of a "responsible" officer affects only medical personnel, and not chaplains. On the other hand, individual chaplains are, like the responsible medical officer himself, to have direct access to the camp authorities. They will also have similar facilities for correspondence.
As retained personnel receive in principle the protection and all the benefits of the Prisoners of War Convention, it follows that chaplains could, if they so wished, avail themselves of the services of the prisoners' representative in their camp and take part in his election. The point is immaterial, however, in view of the fact that the Convention places each chaplain on the same level (so to speak) as the prisoners' representative and the responsible medical officer, conforming, in this respect, to the practice followed during the Second World War.
It is, furthermore, most unlikely that chaplains in a camp could have one of their number recognized as their representative, or as responsible for them. The Convention does not provide for such representation in their case, whereas it does so expressly in the case of medical personnel. The situation is altogether different, since chaplains do not form a separate corps, are few in number, and are often of different denominations.
The 1929 Convention accorded to medical personnel in enemy hands the same conditions of maintenance, housing, allowances and pay as to corresponding members of the detaining forces. The 1949 Conference did not consider it possible to continue this system, and retained personnel are now to have the same maintenance, housing and pay as prisoners of war, with the proviso that those conditions should be regarded as a minimum which the Detaining power is invited to exceed.
In ' sub-paragraph (c) ' we find two elements which appear to have been grouped together for convenience in drafting, but between which there is little or no connection.
Retained personnel are not to be required to perform any work outside their medical or religious duties. This was implied in the 1929 text, but difficulties in the Second World War proved the need for putting it down in black and white.
[p.223] The rule is now absolute; so much so that retained personnel cannot even be obliged to do work connected with the administration, installation and upkeep of the camp, should they happen to be unoccupied for the time being. Nevertheless, the expression "medical duties" must be understood in its broadest sense. It must be remembered that the term "medical personnel" includes men who are engaged in the administration of medical units and hospitals. Although such work is not, strictly speaking, medical, these men will continue to carry out the duties assigned to them in their own forces.
The same sentence provides that retained personnel are to be subject to the internal discipline of their camp. They will thus come under the authority of the commander of the camp except when actually carrying out their duties. Every military organization is subject to military discipline, and this rule applies with even greater force to prisoner-of-war camps. Personnel of enemy nationality who are in a camp and take part in its life cannot conceivably escape the discipline common to all.
We may note that Article 35
is devoted entirely to chaplains who are retained, and to a large extent duplicates the present one.
* * *
We now have to consider how far the provisions of the present Convention are applicable to retained personnel.
We have seen above that retained personnel are to "receive as a minimum the benefits and protection of the present Convention". One may summarize as follows the special status and treatment accorded to retained personnel:
1. They are not prisoners of war, but enjoy the special immunity which
attaches to their status.
2. Because of their position as "retained personnel", their enemy
nationality and the fact that it is necessary for a Detaining power
to ensure its security, their liberty may, in practice, be
3. They are subject to the laws and regulations of the Detaining power,
and to camp discipline.
4. They carry out their duties in accordance with their professional
5. They may not be compelled to do any work outside their proper sphere
[p.224] 6. They may visit labour detachments and hospitals.
7. The "responsible medical officer" and the chaplains have direct
access to the authorities and special facilities for correspondence.
8. They receive, as a minimum, the benefits and protection of the
Convention, in so far as express provision has not already been made
to meet their case (see points 3 to 7 above) (5).
PARAGRAPH 3. -- RELIEVING OF MEDICAL PERSONNEL
During the Second World War, certain belligerents planned to relieve doctors retained in enemy camps with personnel from the home country. A start was made in the case of Yugoslav and French doctors retained in Germany.
The Diplomatic Conference did not consider that it could make such arrangements compulsory; it merely provided for their possibility, by agreement between the powers concerned.
The 1949 Diplomatic Conference, in its Resolution No. 3, requested the International Committee of the Red Cross to prepare a model agreement for use in such cases, and this was done (6). Like various other model agreements drawn up by the Diplomatic Conference itself, this one is merely a model proposed to States, and the latter are at liberty to make any amendments they deem advisable.
PARAGRAPH 4. -- GENERAL OBLIGATIONS OF THE DETAINING POWER
The last paragraph of the Article is designed to eliminate any possible misunderstanding. The Detaining power continues to be responsible for providing the maintenance and care required by prisoners of war, as laid down by the Convention, regardless of the assistance which may be available from retained personnel.
The Detaining Power can have no justification for failing to recruit the necessary personnel from among its own nationals in order to carry out its obligations, if sufficient retained personnel are not available.
[p.225] Retention must remain a supplementary measure taken for the good of the prisoners themselves and to assist the Detaining Power.
The latter continues to be fully responsible for the prisoners of war who have fallen into its hands (7).
* (1) [(1) p.217] See ' Report on the Work of the Conference of
Government Experts ', p. 147;
(2) [(2) p.217] See ' Final Record of the Diplomatic
Conference of Geneva of 1949 ', Vol. II-A, pp. 464 and
583; Vol. II-B, p. 174; Vol. III, p. 67, No. 110. For the
history of this Article, see ' Commentary I ',
(3) [(3) p.217] In this connection, see ' Commentary I ', pp.
240-242; as regards chaplains, see also p. 229 ff. below;
(4) [(1) p.218] See ' Commentary I ', p. 243;
(5) [(1) p.224] In this connection, reference may usefully be
made to ' Commentary I ', pp. 242-257;
(6) [(2) p.224] See ' Revue internationale de la
Croix-Rouge ', January 1955, pp. 7 ff. ' La rétention et
la relève du personnel sanitaire, Accords-types. ';
(7) [(1) p.225] For the commentary on this paragraph, see
' Commentary I ', pp. 257-258;