Traités, États parties et Commentaires
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Commentaire of 2016 
Article 29 : Status of auxiliary personnel who have fallen into enemy hands
Text of the provision
Members of the personnel designated in Article 25 who have fallen into the hands of the enemy, shall be prisoners of war but shall be employed on their medical duties in so far as the need arises.
Reservations or declarations
None
Contents

A. Introduction
2201  Article 29 is one of three provisions in the First Convention which regulate the protection of auxiliary medical personnel. The other two provisions are Article 25 (setting out who qualifies as auxiliary medical personnel) and Article 41 (setting out their means of identification).
2202  Article 25 provides that members of the armed forces who qualify as auxiliary medical personnel shall be ‘respected and protected’ if they are carrying out their medical duties ‘at the time when they come into contact with the enemy or fall into his hands’.
2203  Article 29 applies to all ‘[m]embers of the personnel designated in Article 25 who have fallen into the hands of the enemy’, whether or not they are carrying out their medical duties ‘at the time when they come into contact with the enemy or fall into his hands’. The rationale is clear: to avoid the possibility that medical expertise which may be needed for the care of prisoners of war will remain unused. When members of the armed forces specially trained for employment in one or more of the functions referred to in Article 25 fall into enemy hands, they are prisoners of war covered by the Third Convention, but they ‘shall be employed on their medical duties in so far as the need arises’ (this being the sole exception to their having to be treated like other prisoners of war on the basis of the Third Convention).
2204  When auxiliary medical personnel fall into enemy hands, their initial status as combatants prevails. Hence, they can be detained, and continue to be detained, as prisoners of war regardless of the number or the state of health of prisoners of war.[1] They are only entitled to return to the Party to which they belong under the conditions generally applicable to all prisoners of war.[2] This is because they are not permanent medical personnel and could always be required to perform combat duties.[3]
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B. Historical background
2205  Under the 1929 Geneva Convention on the Wounded and Sick, when medical personnel fell into enemy hands, they could not be detained as prisoners of war nor be retained to assist in caring for prisoners of war. They had, in principle, to be sent back to the belligerent to which they belonged. This prohibition on detaining or retaining them was applicable to all categories of medical personnel recognized under that Convention,[4] and therefore also to auxiliary medical personnel.[5]
2206  The First Convention of 1949 modified this uniform approach by allowing for the retention of (i) military medical and religious personnel, and (ii) the staff of National Societies and other voluntary aid societies assisting the medical services of their State’s armed forces under certain conditions.[6] However, when the conditions for retaining these categories of medical personnel do not or no longer exist, they shall be returned to the Party to the conflict to whom they belong.[7]
2207  During the Diplomatic Conference of 1949, it was a matter of controversy whether to maintain auxiliary medical personnel as a separate category of protected persons under the First Convention.[8] In the end it was decided to do so.[9] As a result, an additional rule was needed to regulate their status and treatment when they fell into enemy hands. This rule, now Article 29, was formulated by the Drafting Committee and adopted without any discussion.[10] Since 1949, there seems to have been no practice with regard to Article 29. This is related to the fact that very few armed forces have actually used, or intend to use, auxiliary medical personnel within the meaning of Article 25.[11]
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C. Discussion
1. Status
2208  Article 25 applies only to ‘Members of the armed forces specially trained for employment, should the need arise, as hospital orderlies, nurses or auxiliary stretcher-bearers, in the search for or the collection, transport or treatment of the wounded and sick’.[12]
2209  These combatants are protected as medical personnel under the First Convention if they are carrying out their medical duties at the time when they come into contact with or fall into enemy hands.[13]
2210  When auxiliary medical personnel fall into enemy hands at the time they are carrying out their medical duties,[14] they lose their status as persons temporarily protected under the First Convention. Instead, they ‘shall be prisoners of war’, covered by the Third Convention, except that they ‘shall be employed on their medical duties in so far as the need arises’. Prisoner-of-war status applies even if they were carrying out medical duties at the time of their falling into enemy hands and wearing the armlet provided for in Article 41, and even if the state of health and the number of prisoners of war do not require their medical care.
2211  Because they have the status of prisoners of war, the time of their release and repatriation is governed by the Third,[15] and not by the First Convention.[16] All other aspects of their status and treatment are also regulated by the Third Convention. In contrast to persons covered by the retention regime (who shall ‘at least benefit by all the provisions’ of the Third Convention)[17], auxiliary medical personnel who have fallen into enemy hands are to be treated on the basis of the Third Convention, there being no injunction to the Party retaining them to go beyond the provisions of the Third Convention as regards the treatment accorded to them. If persons covered by Article 25 are themselves wounded or sick when they fall into enemy hands, the First Convention also applies to them.[18]
2212  The reason why auxiliary medical personnel are given specific protection only if and for as long as they are carrying out their medical duties goes back to the distrust about this category of personnel.[19] After all, since their primary status is that of combatants, they may be deployed again as combatants when they rejoin their armed forces. Therefore, the drafters of the First Convention feared that, if personnel in this category were entitled to repatriation in the same way as permanent medical personnel, this might lead to abuses.[20] This is the difference with the retention regime: persons covered by the retention regime do not have the status of prisoners of war, but shall at least benefit by the treatment to which prisoners of war are entitled on the basis of the Third Convention.
2213  The First Convention does not address the question of whether the detention of auxiliary medical personnel as prisoners of war should lead to a decrease in the number of personnel retained on the basis of Article 28. According to Article 25, auxiliary medical personnel have been trained as ‘hospital orderlies, nurses or auxiliary stretcher-bearers’. While the potential role for auxiliary stretcher-bearers inside a prisoner-of-war camp seems rather limited, both hospital orderlies and nurses may have useful services to provide in that context. Their detention might lead to a situation in which the retention of some of the personnel on the basis of Article 28 is no longer necessary, thus requiring their return to the Party to the conflict to which they belong.
2214  The matter may, first of all, be addressed in a special agreement, which the Parties to the conflict are invited to conclude on the basis of Article 31(2), with regard to (i) the ‘percentage of personnel to be retained, in proportion to the number of prisoners’ and (ii) the ‘distribution of said personnel in the camps’. Such an agreement may allow the Parties to the conflict to agree upon a formula regarding the degree to which the presence of auxiliary medical personnel should lead to a decrease in retained personnel.[21]
2215  Absent such agreement, reference may be had to the idea contained in Article 7 of the Model Agreement Relating to the Retention of Medical Personnel and Chaplains, pursuant to which the number of auxiliary medical personnel detained ‘shall reduce by the same amount that of the regular personnel engaged on similar duties who are liable to be retained’.[22] When interpreting the words ‘on similar duties’, it must be kept in mind that Articles 25 and 29 apply only to hospital orderlies, nurses or auxiliary stretcher-bearers and not to other medical professionals such as doctors or surgeons.[23] Therefore, in a context in which the conditions for retaining medical personnel are fulfilled,[24] the presence of auxiliary medical personnel is unlikely to make retained personnel redundant altogether.[25]
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2. Employment
2216  One of the conditions to be met before members of the armed forces can acquire protected status under Article 25 is that they must have been ‘specially trained for employment, should the need arise, as hospital orderlies, nurses or auxiliary stretcher-bearers’.[26] The type of training received needs to be specified on the military identity documents which are to be carried by persons covered under Article 25.[27] By stating that the prisoners of war who, prior to their falling into enemy hands, qualified as auxiliary medical personnel ‘shall be employed on their medical duties in so far as the need arises’, Article 29 ensures that their medical skills can be used, as needed, for the benefit of the prisoners of war.
2217  The First Convention does not state explicitly how persons who have been trained as auxiliary medical personnel should be employed if they fall into enemy hands at a time when they are acting as combatants. While it is clear that they become prisoners of war, the question is whether they must also ‘be employed on their medical duties in so far as the need arises’. This appears to be the case, since Article 29 refers generically to ‘members of the personnel designated in Article 25’, without requiring them to have been acting as auxiliary medical personnel at the time of their falling into enemy hands.
2218  The ‘need’ referred to in Article 29 is only the medical need of the prisoners of war held by the Detaining Power.[28] Persons covered by Article 29 will preferably work on behalf of the prisoners of war of the armed forces to which they themselves belong.[29] The ‘medical duties’ referred to are the activities of auxiliary medical personnel as hospital orderlies, nurses or auxiliary stretcher-bearers in the treatment of the wounded and sick and – though less likely inside a prisoner-of-war camp – in the search for, the collection or the transport of the wounded and sick.
2219  As indicated by the unconditional use of the word ‘shall’, the employment of auxiliary medical personnel for medical duties is not left to the discretion of the Detaining Power.[30] It has to be based on a good-faith assessment of the needs of the prisoners of war. This means that, as soon as and for as long as prisoners of war have medical needs which cannot be addressed by the Detaining Power itself, but which can be addressed by the auxiliary medical personnel, the Detaining Power is obliged to make use of them.
2220  In that case, it seems appropriate to apply the provisions of Article 32 of the Third Convention to auxiliary medical personnel:[31] ‘they shall continue to be prisoners of war, but shall receive the same treatment as corresponding medical personnel retained by the Detaining Power’.[32] This means that they should enjoy the necessary facilities for carrying out their medical duties, as described in Article 33 of the Third Convention.[33] When they are required to carry out such medical duties, they should be paid in line with the Third Convention for such work.[34]
2221  On the other hand, if their fellow prisoners of war have no medical needs, or no longer have such needs, persons covered by Article 29 may be asked to perform non-medical duties.[35] The rules and conditions set out in the Third Convention’s section on ‘Labour of prisoners of war’ apply in this regard.[36]
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Select bibliography
See the select bibliography of the commentary on Article 24 of the First Convention.

1 - In order to make it clear to readers of the First Convention that permanent medical personnel and auxiliary medical personnel are different categories, it was decided to deal with the various aspects of their status and treatment in separate provisions throughout the First Convention; see Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II–A, p. 194.
2 - See Third Convention, Articles 109 and 118.
3 - For permanent military medical personnel (covered by Article 24), see Articles 28 and 30.
4 - On their status and treatment, see Articles 12–13 of the 1929 Geneva Convention.
5 - Auxiliary medical personnel were defined in Article 9(2) of the 1929 Geneva Convention. As discussed in the commentary on Article 25, para. 2017, Article 9(2) of the 1929 Geneva Convention resulted from a proposal introduced during the Diplomatic Conference by the US delegation. The second sentence of that proposal already contained the notion that, should auxiliary personnel fall into enemy hands, they were to be treated as prisoners of war. For the text of the proposal, see Proceedings of the Geneva Diplomatic Conference of 1929, p. 127.
6 - The relevant condition can be found in Article 28(1): ‘shall be retained only in so far as the state of health, the spiritual needs and the number of prisoners of war require’.
7 - For details, see the commentary on Article 30, section C.
8 - For details of the misgivings expressed regarding the category of auxiliary medical personnel, both before and during the 1949 Diplomatic Conference, see the commentary on Article 25, paras 2019–2020.
9 - For details, see the commentary on Article 25, paras 2020–2021.
10 - See Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II-A, p. 140. See also Minutes of the Diplomatic Conference of Geneva of 1949, Committee I, Tome I, pp. 63–64.
11 - See the commentary on Article 25, para. 2015.
12 - For the meaning of the terms ‘hospital orderlies, nurses or auxiliary stretcher-bearers’, see the commentary on Article 25, para. 2029.
13 - Article 25.
14 - For the meaning of the expression ‘fall[ing] into enemy hands’, see the commentary on Article 14, section C.3. As mentioned in paragraph 2025 of the commentary on Article 25, auxiliary medical personnel may be on board medical aircraft. If such an aircraft involuntarily lands in enemy or enemy-occupied territory, Article 29 applies to them; see the final sentence of Article 36(5), which explicitly states that they ‘shall be treated according to Article 24, and the Articles following’.
15 - The relevant provisions are Articles 109–121 of the Third Convention (Part IV: Termination of captivity).
16 - The regime of persons covered by Article 25 differs in this respect from both (i) the regime of persons covered by the retention regime (see Articles 28, 30 and 31 of the First Convention and Article 33 of the Third Convention), and (ii) persons covered by Article 27 when they fall into the hands of the adversary of the Party they are assisting (see Article 32).
17 - See Article 28(1) of the First Convention and Article 33(1) of the Third Convention.
18 - See the commentary on Article 14, section C.1.
19 - See the commentary on Article 25, para. 2020.
20 - Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II–A, p. 194–195: ‘Whereas the Convention of 1929 provided for [auxiliary medical personnel’s] return on the same conditions as those applicable to permanent personnel, Committee I concluded that there was no justification for granting this special favour, and declared that they should also be treated as prisoners of war.’
21 - See the commentary on Article 31, para. 2279. See also the commentary on Article 45, para. 2722.
22 - In this regard, see also the commentary on Article 7 of the Model Agreement Relating to the Retention of Medical Personnel and Chaplains, pp. 9 and 12. The original text of Article 7 of the Model Agreement speaks, in connection with auxiliary medical personnel, of their being ‘retained’. This is to be considered a mistake, since persons covered by Article 25 are detained, not retained. For a discussion of the origin and status of this Model Agreement, see the commentary on Article 28, para. 2160.
23 - See the commentary on Article 25, para. 2027.
24 - These conditions are outlined in Article 28(1). In this regard, it must be recalled that the Retaining Power bears the primary responsibility for looking after the medical needs of the prisoners of war; see Article 28(4).
25 - This will in any event apply to religious personnel, who can be retained on the basis of Article 28, but who can never qualify on the basis of Article 25; see the commentary on Article 25, para. 2031.
26 - For a discussion of this requirement, see the commentary on Article 25, paras 2033–2034.
27 - Article 41(2).
28 - In speaking generically of ‘the need’, Article 29 does not clarify whose need is covered. All other similar provisions in the First and Third Conventions, however, indicate that medically qualified personnel in the hands of a Party to the conflict must work ‘on behalf of prisoners of war, preferably those of the armed forces to which they themselves belong’ (Article 28(2) of the First Convention). Similar language can be found in Articles 30(2) and 32(3) of the First Convention and in Articles 32 and 33(2) of the Third Convention.
29 - See the previous footnote for the provisions in both the First and Third Conventions, as well as in the Model Agreement Relating to the Retention of Medical Personnel and Chaplains, which states, in Article 7(1) (even more categorically than the provisions in the First and Third Conventions, in that the word ‘preferably’ does not appear here): ‘Auxiliary medical personnel, … who fall into the hands of the adverse Party, shall be employed on medical duties on behalf of prisoners belonging to the armed forces to which they themselves belong.’ For an interpretation of these nuances to the effect that this cannot lead to a violation of the principle of impartiality of care, as enshrined in Article 13(3) of the First Convention, see the commentaries on Article 28(2), para. 2185, Article 30, para. 2250, and Article 32, paras 2306–2308.
30 - See also Article 32 of the Third Convention regarding ‘[p]risoners of war who, though not attached to the medical service of their armed forces, are physicians, surgeons, dentists, nurses or medical orderlies’. These persons ‘may be required by the Detaining Power to exercise their medical functions in the interests of prisoners of war dependent on the same Power’ (emphasis added).
31 - In this context, see also the commentary on Article 45, para. 2724.
32 - Since Article 32 of the Third Convention applies to prisoners of war who have medical qualifications without being attached to the medical services of their armed forces, it can be argued that it applies, a fortiori, to prisoners of war who have such qualifications while having some links with the medical services of their armed forces, without being a member thereof either.
33 - See also the corresponding provision in Article 28(2).
34 - See, in particular, Article 62(2) of the Third Convention.
35 - This is another difference between persons covered by Article 29 and those covered by the retention regime. The latter ‘shall not … be required to perform any work outside their medical or religious duties’; see Article 28(2)(c).
36 - This section, containing Articles 49–57, can be found in Part III, Section III, of the Third Convention.