Traités, États parties et Commentaires
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Commentaire of 2016 
Article 32 : Return of personnel belonging to neutral countries
Text of the provision*
(1) Persons designated in Article 27 who have fallen into the hands of the adverse Party may not be detained.
(2) Unless otherwise agreed, they shall have permission to return to their country, or if this is not possible, to the territory of the Party to the conflict in whose service they were, as soon as a route for their return is open and military considerations permit.
(3) Pending their release, they shall continue their work under the direction of the adverse Party; they shall preferably be engaged in the care of the wounded and sick of the Party to the conflict in whose service they were.
(4) On their departure, they shall take with them their effects, personal articles and valuables and the instruments, arms and if possible the means of transport belonging to them.
(5) The Parties to the conflict shall secure to this personnel, while in their power, the same food, lodging, allowances and pay as are granted to the corresponding personnel of their armed forces. The food shall in any case be sufficient as regards quantity, quality and variety to keep the said personnel in a normal state of health.
* Paragraph numbers have been added for ease of reference.
Reservations or declarations
None
Contents

A. Introduction
2280  Article 32 deals with the specific scenario in which the medical personnel of a recognized society of a neutral country (persons covered by Article 27) fall into the hands of the adversary of the Party to the conflict they are assisting. Article 27, for its part, clarifies the conditions under which such society may offer the assistance of its medical personnel and units to a Party to the conflict. When the conditions of Article 27 are fulfilled, these personnel will qualify as persons protected under the First Convention, i.e. they are to be respected and protected in all circumstances.[1]
2281  Since the end of the Second World War, there seem to have been no instances in which Article 27 was implemented; hence, there also seems to be no practice from this period with regard to Article 32.[2]
2282  When Additional Protocol I applies, Article 9(2) thereof provides that the relevant provisions of Article 32 are applicable to the personnel of permanent medical units and transports made available to a Party to the conflict for humanitarian purposes: (a) by a neutral or other State which is not a Party to that conflict; (b) by a recognized and authorized aid society of such a State; or (c) by an impartial international humanitarian organization.[3]
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B. Historical background
2283  The origins of Article 32 can be traced back to Articles 12 and 13 of the 1906 Geneva Convention,[4] and especially to Articles 12 and 13 of the 1929 Geneva Convention on the Wounded and Sick. Article 12 of the latter Convention established a prohibition on retaining the three categories of personnel for which it provided: (i) military medical and religious personnel; (ii) the personnel of voluntary aid societies assisting the medical services of their own State’s armed forces; and (iii) the personnel of recognized societies of neutral countries assisting the medical services of a Party to an international armed conflict.
2284  The 1949 Diplomatic Conference reversed this logic when it comes to categories (i) and (ii); in other words, when these persons fall into enemy hands, they may be retained, but only in so far as the state of health, the spiritual needs and the number of prisoners of war require.[5] The rule in Article 12 of the 1929 Geneva Convention was kept, however, as far as category (iii) was concerned, resulting in Article 32(1).[6]
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C. Paragraph 1: Prohibition on detaining
2285  Article 32 applies to the persons designated in Article 27. Although Article 32(4) deals with certain objects which these persons have with them when they fall into the hands of the adversary of the Party to the conflict they are assisting, the status of these objects (such as medical units and transports) is covered by Article 34.
2286  Article 32 applies only when persons covered by Article 27 fall ‘into the hands of the adverse Party’. The circumstances in which these persons fall into the hands of that Party are immaterial. The words ‘adverse Party’ need to be understood as referring to the adversary of the Party to the conflict whose medical services these persons are assisting.[7] Private individuals of a neutral country are not in an adversarial relationship vis-à-vis that Party to the conflict.
2287  When these persons fall into the hands of the adversary, Article 32 stipulates that the latter has no right to detain them (be it as prisoners of war, civilian internees, or persons having any other status), for example on account of having assisted the medical services of the armed forces of its adversary. At that moment, that Party to the conflict is obliged to implement Article 32(2). Thus, while they are exempt from capture and detention, they may be held temporarily in line with Article 32(2).[8]
2288  While the provision does not say so explicitly, the Party into whose hands they have fallen may not retain (in the sense of Article 28) medical personnel covered by Article 27. This is the case even if the medical needs of the prisoners of war are compelling.
2289  The rationale for the prohibition on detaining and retaining persons covered by Article 27 is that these are civilians of a neutral country.[9] This neutral country may be either the country of the recognized society covered by Article 27, or any other neutral country. In all instances, as these persons are protected under the First Convention, the State into whose hands they fall does not have the right to detain or retain them. This reading is, of course, without prejudice to the possibility that the State concerned may have a separate legal basis for detaining a given individual, for example if they are suspected of having committed a grave breach or an ordinary crime.
2290  The only exception to the prohibition set forth in Article 32(1) is the existence of an agreement to the contrary, based on Article 32(2).
2291  It is conceivable that a recognized society working on the basis of Article 27 decides to hire one or more private citizens of the same nationality as the Party to the conflict they are assisting. The First Convention does not deal, under this hypothesis, with the status of such persons when they fall into the hands of the Party to the conflict that is their own State’s adversary.[10] Since, from the perspective of the Party into whose hands they have fallen, they are enemy nationals, it would be understandable if that Party sought to deny the applicability of Article 32 (a provision based on the assumption that the persons covered by Article 27 are private citizens of a neutral country). However, in that case, the least that can be expected is that Article 28 (which applies to medical personnel working as auxiliaries to the medical services of their own State’s armed forces), as well as Articles 30 and 31, will be applied by analogy.
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D. Paragraph 2: Permission to return unless agreement to the contrary
2292  The basic premise of Article 32 is that the persons covered by it have permission to leave the territory of the Party into whose hands they have fallen. Ideally, they are entitled to return to the neutral country of which they are nationals.[11] However, if this is not possible, they are entitled to go to the territory of the Party to the conflict they were assisting within the framework of Article 27.[12] The assessment of whether it is ‘possible’ to return to the neutral country of which they are nationals may depend not only on practical considerations, but also on the wishes of the persons in question. In all instances, upon return, the persons are entitled to resume their duties within the framework of Article 27.
2293  Article 32(2) assumes that the medical personnel have fallen into the hands of the adversary outside the territory of the State they are assisting. Article 32(2) does not clarify what happens if they are captured when on the territory of the State they are assisting, for example when that territory is invaded by an outside force. In such instances, the basic rule applies, i.e. they may not be detained, and must, unless otherwise agreed, have permission to return to their country.
2294  Except when there is an agreement to the contrary, the Party into whose hands persons covered by Article 27 have fallen may unilaterally and temporarily delay their return, either to their country or to that of the Party they are assisting, on two grounds only: when a route is not yet open for their return, or when military considerations do not permit such a return.[13] Articles 32(3) and 32(5) regulate the period prior to the personnel’s return.
2295  Article 32 leaves it to the Party into whose hands the medical personnel have fallen to invoke one or both of the aforementioned grounds. Yet that Party is expected to interpret these grounds in good faith, bearing in mind that it has no right to detain or to retain these persons.
2296  The first ground which may be invoked to delay the return of persons covered by Article 32 relates to a material impossibility, i.e. the fact that no route (whether by land, water or air) is open for their return. This may be the case, for example, when hostilities are still ongoing and no safe alternatives exist.
2297  The second ground is more delicate, in that it allows the Party into whose hands the personnel have fallen to invoke ‘military considerations’ (but no considerations other than those of a military nature). This may be the case when the persons would be in a position to pass on information of military value they acquired to the Party to the conflict they are assisting. Use of the term ‘military considerations’ makes it clear that this ground is less stringent than if there would have been a requirement of military necessity.
2298  Both grounds only allow the Party into whose hands the persons have fallen to delay their return, not to refuse to allow them to return altogether. As soon as the basis for delay disappears, for example, when a route becomes available or when the information acquired has lost its military value, e.g. because a planned attack has taken place, the persons must be allowed to return.
2299  No grounds other than the two explicitly mentioned in Article 32 may be invoked as a reason to delay the return of persons covered by Article 27. Even when the prisoners of war detained by the Party to the conflict have considerable medical needs, the return of this category of medical personnel may not be refused. In this respect, Article 32 is markedly different from the retention regime,[14] and justifiably so. As neutral nationals, coming from a neutral State which remains entitled to all the protections conferred on it by the law of neutrality, persons covered by Article 27 can indeed not be treated on the same basis as nationals of a Party to the conflict.
2300  Article 32 does not specify who has to pay the costs of the transport. Failing an agreement on this matter, the rules governing the transport of prisoners of war to a neutral country, and those governing the return of civilian internees, could be applied by analogy: the Party into whose hands the personnel have fallen must pay the costs of their transportation only up to its own borders.[15] From there, the neutral country (or its recognized society) will have to pay the costs of transportation to their final destination.
2301  All of the foregoing is without prejudice to the possibility – explicitly provided for through the formula ‘unless otherwise agreed’[16] – that an agreement is reached stating that one or more persons covered by Article 32 will stay with the Party into whose hands they have fallen, for example in order to perform medical activities.
2302  For its part, Article 32 provides no guidance as to who needs to be involved in the agreement:[17] the persons covered by Article 32, the recognized society of a neutral country which lends its assistance to a Party to the conflict, the neutral country, the Party whose medical service they are assisting, and/or the Party into whose hands the persons have fallen.[18] First and foremost, since its consent is required for the recognized society to act under Article 27 in the first place, the neutral State will need to agree to allow the staff of the recognized society to continue to serve while they are no longer in the hands of the Party for which the initial consent was given. Second, the Party into whose hands the personnel have fallen will need to be involved in the agreement. No agreement is required, however, of the Party whose medical services the personnel are assisting, since such persons work not only for the wounded and sick of one Party to the conflict, but for the wounded and sick of all sides in a conflict.
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E. Paragraph 3: Work pending release
2303  The third and fifth paragraphs of Article 32 both govern the period during which the medical personnel are awaiting their return. They are relevant both when the return is imminent and when there is an agreement (on the basis of Article 32(2)) for them to stay longer.
2304  These paragraphs fail to address many questions which may arise in terms of the treatment to be accorded to these persons during that period. This will be a matter of particular concern in cases where their return is delayed. As a practical matter, the persons ought to be entitled to the same facilities as those provided for under the retention regime.[19] If an agreement under Article 32(2) exists, such a clarification could be part of it.
2305  The first sentence of Article 32(3) indicates that ‘they shall continue their work under the direction’ of the Party to the conflict into whose hands they have fallen. As is the case with retained personnel, the work in question can only be of a medical nature,[20] and the Party to the conflict into whose hands they have fallen must allow the medical personnel to carry out their work ‘in accordance with their professional ethics’.[21] Persons covered by Article 32 are not subject to ‘the framework of the military laws and regulations of the Detaining Power’ as required for retained personnel under Article 28. Having said that, they work ‘under the direction’ of the Party to the conflict into whose hands they have fallen. This implies that they will have to accept a certain amount of oversight.[22]
2306  Pursuant to the second sentence of Article 32(3), the personnel should work ‘preferably’ for the care of the wounded and sick of the Party to the conflict in whose service they were.[23] From the perspective of contemporary medical ethics, this recommendation makes sense, in that it prohibits the Party into whose hands they have fallen from instructing the persons covered by Article 27 to look after the medical needs of its own armed forces (or of its own civilian population) to the detriment of the ‘wounded and sick of the Party to the conflict in whose service they were’.
2307  If the Party into whose hands the medical personnel have fallen detains prisoners of war of several nationalities, the clarification that ‘they shall preferably be engaged’ ensures that the prisoners of war receive medical care from professionals who speak their own language and are familiar with their culture,[24] to the extent that this is lawful.
2308  However, as indicated by the word ‘preferably’, their being ‘engaged in the care of the wounded and sick of the Party to the conflict in whose service they were’ is merely a recommendation. In particular, and at all times, the principle of impartiality of care, as enshrined in Article 12(3), prevails, i.e. ‘[o]nly urgent medical reasons will authorize priority in the order of treatment to be administered’. This will be so even if the order in which treatment is administered on the basis of such ‘medical reasons’ leads to a situation in which the personnel in question are unable to prioritize care for the wounded and sick of the Party to the conflict in whose service they were.
2309  Should these persons work for the National Red Cross or Red Crescent Society of a neutral State, the same rule would also flow from their having to comply with the Fundamental Principle of impartiality.
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F. Paragraph 4: Objects which may be taken when departing
2310  Article 32(4) addresses a practical matter with regard to the departure of persons covered by this provision. It applies both to persons who leave soon after they fall into the hands of the adversary of the Party they are assisting, and to those who stay longer pursuant to an agreement under Article 32(2).
2311  First, when leaving, they are entitled to take with them ‘their effects, personal articles and valuables’.[25] They had to have those objects with them at the time they fell into the hands of the adversary of the Party to the conflict they were assisting. It is immaterial whether these ‘effects, personal articles and valuables’ are their private property.
2312  Second, when leaving, such persons are entitled to take with them ‘the instruments, arms and if possible the means of transport belonging to them’. Here, too, the words ‘belonging to them’ need to be construed as meaning that they are their personal property. However, it is likely that these instruments, arms and means of transport are not their private property, but rather that of the recognized society of the neutral country or of the medical services of the armed forces they were assisting.[26] If that is the case, these objects cannot be taken with them when they depart. However, the logic underpinning Article 33(2) and Article 35(2) can arguably be considered applicable mutatis mutandis, i.e. while these objects remain in enemy hands, they must continue to be used for the care of the wounded and sick.
2313  However, if persons covered by Article 32 have taken arms from the wounded and sick prior to their falling into the hands of the Party to the conflict they were assisting, these arms cannot be taken with them on their departure. They belong neither to them nor to the recognized society of the neutral country. Nor do they belong to the medical services of the armed forces they were assisting. These arms are booty of war, and can remain with the Party into whose hands the personnel have fallen.
2314  The ‘instruments’ referred to must be understood to include their medical instruments.[27] As to the ‘arms’, this refers to the individual light weapons which persons covered by Article 27 may carry in order to defend themselves, or to defend the wounded and sick in their charge.[28] There is no such absolute right to take with them the ‘means of transport’, such as ambulances, they had with them when they fell into the hands of the adversary. Whether or not they will be able to take such means of transport with them when they depart will depend on whether or not it is possible to do so.[29] If it is not possible in the circumstances (for example, because the person is returning by aeroplane), this does not necessarily mean that the Party to the conflict into whose hands they have fallen acquires any right of ownership of the said means of transport. The rules set forth in Article 34 continue to apply.
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G. Paragraph 5: Treatment to be accorded while in the power of the adversary
2315  The third and fifth paragraphs of Article 32 both govern the period during which the medical personnel are awaiting their return.
2316  Article 32(5) prescribes a number of practicalities in terms of the treatment to which persons covered by Article 32 are entitled as long as they remain in the power of the Party to the conflict into whose hands they have fallen.[30] Like Article 32(3), Article 32(5) applies both to persons who will leave soon after they fall into the hands of the adversary of the Party they are assisting, and to those who stay longer pursuant to an agreement reached under Article 32(2), in each instance for as long as they are in the power of that Party.
2317  The first sentence of Article 32(5) requires that Party to ‘secure to this personnel … the same food, lodging, allowances and pay as are granted to the corresponding personnel of their armed forces’.[31] Persons covered by Article 27, however, are civilians and will not necessarily have ranks corresponding to military ranks. Where an agreement is reached on the basis of Article 32(2), it may clarify this point. If no such agreement exists, the Party into whose hands they have fallen could consider granting them the same level of treatment as it accords to its own military medical personnel of approximately the same seniority.
2318  The second sentence of Article 32(5) deals with the amount and type of food which must be given to the personnel as long as they remain in the hands of the adversary of the Party to the conflict they are assisting. This food must ‘in any case be sufficient as regards quantity, quality and variety to keep the said personnel in a normal state of health’.[32] The words ‘in any case’ emphasize that this is a minimum standard of treatment to which the personnel are entitled in all circumstances.
2319  Lastly, with regard to the question of whether the personnel are entitled to fly their national flag, see Article 43(2).[33]
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Select bibliography
See the select bibliography of the commentary on Article 26 of the First Convention.

1 - This protection can be lost if such persons commit an act harmful to the enemy. For a discussion of what type of conduct amounts to an act harmful to the enemy, see the commentary on Article 24, section F.
2 - For a discussion of the absence of practice with regard to Article 27 since 1949, see the commentary on that article, para. 2116. Article 12 of the 1929 Geneva Convention on the Wounded and Sick, one of the precursors of Article 32, was among the most controversial, and most frequently violated, provisions during the First World War; see Des Gouttes, Commentaire de la Convention de Genève de 1929 sur les blessés et malades, ICRC, 1930, p. 72.
3 - Except hospital ships, to which Article 25 of the Second Convention applies. See Article 9(2) of Additional Protocol I.
4 - As to Article 32(1), the prohibition on detaining cannot be found in Article 12 of the 1906 Geneva Convention. That provision was based on the premise that all categories of medical personnel, when they had fallen into enemy hands, would continue to exercise their medical functions except when their assistance was no longer necessary. The 1929 Geneva Convention reversed this logic (which was, in turn, partially reversed in the 1949 Geneva Conventions for two categories of medical personnel). For details, see the commentary on Article 28, section B.
5 - For details, see the commentaries on Articles 28–30 and 31 of the First Convention, as well as the commentary on Article 33 of the Third Convention.
6 - ‘It was perfectly obvious, in view of the general principles of International Law, that it was quite impossible to contemplate altering the status of medical personnel of neutral countries.’ Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II-A, p. 196.
7 - The words ‘adversary of the State which accepts such assistance’ are used in Article 27(2), and describe the relationship more accurately than the term ‘adverse Party’ used in Article 32(1).
8 - See e.g. United States, Law of War Manual, 2015, para. 7.9.1.1.
9 - Persons covered by Article 27 do not become members of the armed forces of the country they assist. See the commentary on Article 27, para. 2126.
10 - Lanord, 1999, p. 69.
11 - As is clear from the word ‘permission’, persons covered by Article 27 cannot be compelled to return against their will. In this regard, see the commentary on Article 30, para. 2231.
12 - Article 12(2) of the 1929 Geneva Convention states that ‘they shall be sent back to the belligerent to which they belong’. The qualifying provision ‘return to their country, or if this is not possible, to the territory of the Party to the conflict in whose service they were’ was added by the 1947 Conference of Government Experts; see Minutes of the Conference of Government Experts of 1947, Vol. II, p. 7.
13 - While phrased slightly differently, Article 30(1) envisages essentially identical grounds with regard to persons covered by Articles 24 and 26 who have fallen into enemy hands.
14 - See Articles 28, 30 and 31, which apply when medical and religious personnel (covered by Article 24) and personnel of voluntary aid societies (covered by Article 26) fall into enemy hands.
15 - See Article 116 of the Third Convention and Article 135(2) of the Fourth Convention.
16 - This possibility derives from an amendment adopted without discussion during the 1929 Diplomatic Conference; see Proceedings of the Geneva Diplomatic Conference of 1929, p. 148.
17 - Since such an agreement involves the High Contracting Parties, it is a special agreement within the meaning of Article 6 and, as such, will need to comply with the conditions of that provision.
18 - See Lanord, 1999, p. 69.
19 - This means that, while they are not to be deemed prisoners of war, they must at least benefit from all the provisions of the Third Convention and, in addition, be entitled to certain facilities for carrying out their medical or spiritual duties; see Article 28 of the First Convention and Article 33 of the Third Convention.
20 - See Article 28(2)(c): ‘… they shall not … be required to perform any work outside their medical or religious duties’. As to whether religious personnel may be covered by Article 27, see the commentary on that provision, section D.3.
21 - This wording appears in Article 28(2) of the First Convention (for a discussion, see the commentary on that article, paras 2168 and 2184). See also Article 33(2) of the Third Convention, which uses the phrase ‘in accordance with their professional etiquette’.
22 - See Proceedings of the Geneva Diplomatic Conference of 1906, p. 125. Initially, it was proposed to use the term ‘control’; this was changed to ‘direction’; see ibid. p. 255. Retained personnel work under the ‘authority’ (Article 28 of the First Convention) and ‘control’ of the ‘competent service’ of the Party retaining them (Article 33 of the Third Convention). Practically speaking, however, the extent to which they must obey the instructions of the Party into whose hands they have fallen is not regulated.
23 - Substantially identical terminology can be found in Articles 28(2) and 30(2) of the First Convention and in Article 33(2) of the Third Convention. During the 1929 Diplomatic Conference, this language was criticized, yet in the end it was maintained. See Proceedings of the Geneva Diplomatic Conference of 1929, pp. 149, 160 and 162.
24 - See also, in this regard, Article 30(3) of the Third Convention.
25 - There is some redundancy in the list in Article 32(4), which speaks both of ‘effects’ and of ‘personal articles’; here, ‘effects’ means ‘personal belongings’ (see Concise Oxford English Dictionary, 12th edition, Oxford University Press, 2011, p. 456). Similarly, ‘valuables’ (‘small valuable items of personal property’, ibid. p. 1598) are but a subcategory of personal articles. Except for the mention of ‘arms’ and ‘means of transport’ in Article 32, a similar list appears in Article 30(3) of the First Convention for personnel whose retention is necessary by virtue of Article 28: ‘On their departure, they shall take with them the effects, personal belongings, valuables and instruments belonging to them.’ With regard to the personal property of prisoners of war, see Article 18 of the Third Convention.
26 - In this context, it should be recalled that the real and personal property of aid societies covered by Article 26 or Article 27 is to be regarded as private property. For details, see Article 34(1).
27 - See Proceedings of the Geneva Diplomatic Conference of 1906, pp. 55 and 117.
28 - See the commentary on Article 27, para. 2134. Article 27 does not address the issue of whether persons covered by Article 32 are entitled to continue to carry their arms once they have fallen into the hands of the adversary of the Party they are assisting. If one looks for guidance to the regulations for prisoners of war, this is not the case; see Article 18(1) of the Third Convention.
29 - During the 1949 Diplomatic Conference, a proposal to delete the words ‘if possible’ was not adopted; see Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II-A, p. 82.
30 - Paragraph 5 speaks of ‘the Parties to the conflict’ in the plural. Of course, the obligation pertains only to the Party to the conflict into whose hands the persons covered by Article 27 have fallen.
31 - This wording is the same as that used in Article 13(1) of the 1929 Geneva Convention on the Wounded and Sick. Article 13(2) of that Convention requires that ‘at the outbreak of hostilities the belligerents will notify one another of the grades of their respective medical personnel’. On the issue of pay, see Proceedings of the Geneva Diplomatic Conference of 1906, p. 125.
32 - On this point, see Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II-A, p. 196.
33 - See also United States, Law of War Manual, 2015, para. 4.12.