Treaties, States Parties and Commentaries
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Commentary of 2016 
Article 28 : Retained personnel
Text of the provision*
(1) Personnel designated in Articles 24 and 26 who fall into the hands of the adverse Party, shall be retained only in so far as the state of health, the spiritual needs and the number of prisoners of war require.
(2) Personnel thus retained shall not be deemed prisoners of war. Nevertheless they shall at least benefit by all the provisions of the Geneva Convention relative to the Treatment of Prisoners of War of 12 August 1949. Within the framework of the military laws and regulations of the Detaining Power, and under the authority of its competent service, they shall continue to carry out, in accordance with their professional ethics, their medical and spiritual duties on behalf of prisoners of war, preferably those of the armed forces to which they themselves belong. They shall further enjoy the following facilities for carrying out their medical or spiritual duties:
(a) They shall be authorized to visit periodically the prisoners of war in labour units or hospitals outside the camp. The Detaining Power shall put at their disposal the means of transport required.
(b) In each camp the senior medical officer of the highest rank shall be responsible to the military authorities of the camp for the professional activity of the retained medical personnel. For this purpose, from the outbreak of hostilities, the Parties to the conflict shall agree regarding the corresponding seniority of the ranks of their medical personnel, including those of the societies designated in Article 26. In all questions arising out of their duties, this medical officer, and the chaplains, shall have direct access to the military and medical authorities of the camp who shall grant them the facilities they may require for correspondence relating to these questions.
(c) Although retained personnel in a camp shall be subject to its internal discipline, they shall not, however, be required to perform any work outside their medical or religious duties.
(3) During hostilities the Parties to the conflict shall make arrangements for relieving where possible retained personnel, and shall settle the procedure of such relief.
(4) None of the preceding provisions shall relieve the Detaining Power of the obligations imposed upon it with regard to the medical and spiritual welfare of the prisoners of war.
* Paragraph numbers have been added for ease of reference.
Reservations or declarations
None
Contents

A. Introduction
2151  Article 28 is the centrepiece of the regime for the retention of military medical and religious personnel (covered by Article 24) and staff of voluntary aid societies employed on the same duties (covered by Article 26) in international armed conflicts. Retention is contemplated as an exception to the rule, set out in Article 30, requiring the return of such personnel to the Party to the conflict to which they belong. The special treatment to which qualifying personnel are entitled under this provision is designed to ensure that prisoners of war receive the necessary medical and spiritual care.
2152  The regulation of retention is informed by a balance between competing considerations. On the one hand, the captivity of such personnel hampers the mission of the medical and religious services of their own armed forces, which is to care for the wounded and sick wherever and whenever needed.[1] It is therefore in the interest of the home State to have medical and religious personnel returned as soon as possible. On the other hand, it is equally in the interest of the home State to have prisoners of war from its armed forces cared for by its own medical and religious personnel. However, for this to be possible, the retained personnel must be able to continue to fulfil their medical and religious tasks and not be employed on other duties. In addition, the retention of medical and religious personnel must not become a substitute for the obligation of a Detaining Power to provide for the medical and spiritual welfare of prisoners of war. If the Detaining Power discharges its responsibilities fully towards prisoners of war, there is likely to be no need to exercise the right of retention.
2153  Article 28 sets forth the conditions under which retention is permissible. It also clarifies the status of retained personnel, their role, and the treatment and facilities to which they are entitled. The provision needs to be viewed in conjunction with Articles 30 and 31 of the First Convention, which regulate the return of medical and religious personnel and allow for the possibility of concluding special agreements with regard to their retention. Further, the parts of Article 28 pertaining to the status, treatment and facilities due to retained medical personnel and chaplains are reaffirmed almost verbatim in Article 33 of the Third Convention.[2]
2154  The retention of medical and religious personnel proved to be a contentious issue during the negotiations of the First Convention. However, in contrast to the Second World War, when belligerent Parties retained large numbers of enemy medical personnel over extended periods of time,[3] such practice today is rare.[4] Accordingly, while the provisions governing retention – with Article 28 at their core – remain applicable and relevant to the issue, the number of international armed conflicts in which they have been called upon to play a role has decreased over time.
2155  It appears that the retention regime provided for in the Geneva Conventions, which rests on the principle that medical and religious personnel may not be retained unless the state of health, the spiritual needs and the number of prisoners of war so require, has not been applied by analogy in non-international armed conflicts. Accordingly, Parties to a non-international armed conflict are under no legal obligation to set captured medical or religious personnel free.[5]
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B. Historical background
2156  The legal regulation of the retention of medical and religious personnel has evolved considerably over time. Article 3 of the 1864 Geneva Convention provided that:
[Medical and religious personnel] may, even after enemy occupation, continue to discharge their functions in the hospital or ambulance with which they serve, or may withdraw to rejoin the units to which they belong. When in these circumstances they cease from their functions, such persons shall be delivered to the enemy outposts by the occupying forces.
The provision led commentators to conclude that Parties to an armed conflict had no unilateral right to retain such personnel.[6]
2157  The 1906 Geneva Convention addressed the subject of retention for the first time in its Article 12, which is a rudimentary precursor of the current rule inasmuch as it contemplated the retention of medical personnel who were to ‘continue in the exercise of their functions, under the direction of the enemy, after they ha[d] fallen into his power’ for as long as their assistance was indispensable, after which they were to be ‘sent back to their army or country’.[7] The rule in the 1929 Geneva Convention on the Wounded and Sick was based on the contrary assumption, namely the principle of return of medical and religious personnel to the Party to which they belong.[8] Belligerents were allowed to abrogate from this rule by way of special agreements on the retention of medical personnel.[9] In the absence of such an agreement, retained personnel were to be sent back to the belligerent to which they belonged ‘as soon as a route for their return shall be open and military considerations permit’.[10] However, pending their return, retained medical personnel were to ‘continue to carry out their duties under the direction of the enemy’ and ‘preferably be engaged in the care of the wounded and sick of the belligerent to which they belong’.[11]
2158  A number of special agreements of the type envisaged in the 1929 Convention were concluded during the Second World War. However, the Convention did not prescribe the procedure to be followed or the treatment and conditions of work to be accorded to retained medical personnel. Belligerents subjected such personnel to the same conditions of captivity as prisoners of war, in some cases considered them as such, and often made them engage in work of a non-medical nature.[12] The ICRC argued against such an equation in terms of their status and treatment.[13] As regards their status, the ICRC’s position had a clear basis in two legal precursors, the 1906 and 1929 Geneva Conventions, both of which stipulated that medical personnel who fell into enemy hands were not to be treated as prisoners of war.[14] As regards their treatment, the ICRC pointed out the need for additional privileges and facilities enabling retained medical personnel to carry out their duties.[15] While this quest was fully in line with the underlying rationale of retaining medical personnel, it did not have a basis in law at the time.
2159  The retention of medical and religious personnel proved to be one of the most divisive issues during the drafting of the 1949 Geneva Conventions.[16] While agreement on the permissibility of retaining medical personnel was reached relatively soon, a lively discussion continued for several years on the subject of the status of retained personnel.[17] The view of a group of States that retained medical and religious personnel should be treated as prisoners of war was opposed by other States and the ICRC, which were of the opinion that such personnel should be entitled not only to a special status that would confirm their inviolable character as non-combatants but also to a number of privileges and facilities that would allow them to perform their duties efficiently. The discussions eventually culminated in a compromise, largely based on a draft approved by the International Conference of the Red Cross held in Stockholm in 1948, which provided that retained medical and religious personnel should not be considered prisoners of war, while at least benefiting from all the provisions of the Third Convention, as well as from a number of privileges and facilities necessary to the performance of their medical and spiritual duties.[18]
2160  The controversy surrounding the drafting of Article 28 meant that the provision as adopted lacked detail in certain respects. States decided to leave unanswered some of the specifics of the retention regime, such as the ratios between certain types of medical personnel and the number of prisoners of war, and did not include details of the relief of retained medical and religious personnel. Instead, the 1949 Diplomatic Conference adopted Resolution 3 entitled ‘Preparation of a Model Agreement on the Percentage and Relief of Retained Personnel’, requesting the ICRC ‘to prepare a model agreement’ on the topics of both Articles 28 and 31 of the First Convention, although it was understood that the Model Agreement would not be legally binding.[19] In the same resolution, the ICRC was further requested ‘to submit [the Model Agreement] to the High Contracting Parties for their approval’. Resolution 3 resulted in the publication by the ICRC in 1955 of two Model Agreements, one relating to the retention of medical and religious personnel, the other to the relief of such personnel.[20] The same year, the ICRC circulated paper copies of the Model Agreements, accompanied by a commentary, to the Permanent Missions in Geneva, as well as to National Red Cross and Red Crescent Societies. The sole substantive comments received in response were from the United Kingdom, which objected to a number of deviations in the Model Agreements from the original text of the First Convention.[21]
2161  Academic writings in the early years after the adoption of Article 28 display a certain degree of dissatisfaction with the compromise reached. Some commentators lamented the provision’s resulting lack of precision. For instance, Article 28 stipulates that, although not deemed prisoners of war, retained medical personnel ‘shall at least benefit by all the provisions’ of the Third Convention, without specifying which of those provisions are to be considered beneficial, as opposed to detrimental.[22]
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C. Paragraph 1: Scope of application
2162  Article 28 applies only to the personnel designated in Articles 24 and 26, i.e. medical and religious personnel attached to the armed forces, and staff of duly recognized and authorized voluntary aid societies employed on the same duties. The status and treatment of other personnel who fall into enemy hands, in particular the staff of voluntary aid societies of neutral States referred to in Article 27 and the auxiliary medical personnel referred to in Article 25, are regulated in separate provisions.[23]
2163  The retention regime is applicable when the personnel designated in Articles 24 and 26 ‘fall into the hands of the adverse Party’. Article 14 of the First Convention similarly uses the phrase ‘fall into enemy hands’ in respect of the wounded and sick.[24] Despite the almost identical wording, there are different underlying assumptions in the two cases: pursuant to Article 15 of the First Convention, the Parties to the conflict have an obligation to search for and collect the wounded and sick; a similar duty or, for that matter, a right to search for medical and religious personnel is absent from Article 28, reflecting the incidental nature of their capture and possible subsequent retention. While nothing would prevent the Parties to an international armed conflict from holding, until their status has been determined, medical and religious personnel encountered during the capture or surrender of enemy troops, it would be incompatible with that incidental nature if these Parties were to search actively for such personnel in order to retain them or, to put it otherwise, to engage in a ‘medical hunt’.[25] The ‘adverse Party’ may not be the only one called upon to implement Article 28: where persons covered by Articles 24 or 26 are on the territory of a neutral Power, the latter must apply Article 28 (and its related provisions in Articles 30 and 31) by analogy.[26]
2164  Retention is contemplated as an exception to the rule of return of captured medical and religious personnel to the Party to the conflict to which they belong. This is clear from the phrasing of the first paragraph: ‘Personnel … shall be retained only in so far as’ (emphasis added). It is further confirmed by the regulatory context in which Article 28 operates: Articles 30 and 31 provide in detail for the return of personnel ‘whose retention is not indispensable by virtue of the provisions of Article 28’. Unless the conditions laid down in Article 28 are met, medical and religious personnel have to be returned in accordance with Articles 30 and 31. In other words, while it is not unlawful per se to retain medical and religious personnel, their retention is conditioned on certain requirements.
2165  First and foremost, medical and religious personnel can only be retained for the benefit of prisoners of war. Accordingly, retention would be impermissible if the Power retaining medical or religious personnel is not also a Detaining Power in the technical sense of the Third Convention, i.e. a State Party to an international armed conflict into whose hands the persons designated in Article 4 of the Third Convention have fallen. This excludes the possibility not only of any ‘anticipatory’ retention of medical and religious personnel,[27] but also of their retention for the benefit of civilians (unless the civilians in question have prisoner-of-war status).[28] Second, the state of health, the spiritual needs and the number of prisoners of war must require it. As indicated by the use of the word ‘require’, along with the word ‘indispensable’ in Article 30(1), the possibility of retaining medical and religious personnel is contingent on meeting a stringent threshold of necessity.[29]
2166  The state of health, the spiritual needs and the number of prisoners of war are inherently context specific. Therefore, the extent to which retention is lawful cannot be determined in the abstract. For instance, the retention of religious personnel may be called for if the Detaining Power’s own religious personnel and the prisoners of war are of different faiths, as it would be inappropriate in such a case for the Detaining Power to make its own religious personnel available.[30] Another scenario would be an increase in the need for medical and religious personnel following the capture of a large number of prisoners of war, many of whom may be wounded. Conversely, during a later phase of an armed conflict, the need for retained medical and religious personnel may decrease. In all instances, the situation may evolve to the point where the initial condition for allowing retention may no longer exist, with the legal consequence that retention is no longer permissible. In that case, the right to retain medical and religious personnel will be superseded by the obligation to return them.[31] In any event, the Detaining Power has to assess in good faith the factual circumstances surrounding the need for retention.
2167  According to Article 31(2) of the First Convention, the proportion of retained medical and religious personnel to prisoners of war and their distribution in prisoner-of-war camps may be the subject of a special agreement between the Parties to the conflict. In this respect, Article 2 of the Model Agreement Relating to the Retention of Medical Personnel and Chaplains suggests some possible ratios between different types of medical and religious personnel, such as general practitioners, specialists, dentists, nurses and chaplains, on the one hand, and the number of prisoners of war, on the other hand.[32] The suggested ratios are a clear reflection of the state of medical and social affairs at the time. From a contemporary perspective, the Model Agreement is conspicuously silent, for instance, on the specific needs of female prisoners of war,[33] whose medical care may differ in some respects from those of male prisoners. For example, it fails to take account of the need for gynaecologists. Furthermore, the Model Agreement is a reflection of the resources of industrialized States rather than the scarcer resources of less-developed States.
2168  It may be that modern medicine requires different ratios from those proposed in the Model Agreement.[34] Ideally, in order to ensure that different perspectives are identified and addressed in the agreements, negotiations should include persons of different genders and backgrounds.[35] In addition, each Party’s available resources must be taken into account. While these factors militate against an abstract determination of universally applicable ratios, certain guiding principles can be drawn from Article 28. First, the ratios must ensure that the care of prisoners of war is both timely and sufficient in quality and quantity to meet their health and spiritual needs. Second, medical care must be provided in accordance with contemporary professional ethics. These ethics are set down in the rules and codes of conduct for health-care professionals, the core elements of which include: respect for the dignity and autonomy of persons deprived of their liberty; avoidance of any action detrimental to the patient; provision of relevant and quality medical care; informed consent; and medical confidentiality.[36] Third, the number of retained personnel must not be excessive, i.e. it must not be more than needed in order to ensure adequate care. In determining that need, retention may not be more than a complement to – as opposed to a substitute for – the Detaining Power’s obligation to ensure the medical and spiritual welfare of prisoners of war through its own medical and religious personnel, as confirmed in Article 28(4). Thus, when paragraph 1 stipulates that one of the parameters for determining whether and to what extent retention is permissible is the number of prisoners of war, the Detaining Power’s own available medical and religious personnel have to be factored in. Retained medical and religious personnel cannot be relied on as substitutes for them.
2169  If, however, the aforementioned conditions are fulfilled, the right to retain arises. That right can be lawfully exercised in good faith unilaterally by the Detaining Power. The consent of the belligerent Party to which the personnel belongs is not required, nor is the consent of the retained personnel.
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D. Paragraph 2: Status and treatment of retained personnel
1. First sentence: Exclusion from prisoner-of-war status
2170  Paragraph 2 begins by specifying that retained personnel shall not be deemed prisoners of war.[37] While thus excluding them from prisoner-of-war status, neither Article 28 nor any of the other related provisions of the Geneva Conventions define in positive terms the status of retained personnel in the way the Third Convention does for prisoners of war[38] or the Fourth Convention does for ‘protected persons’.[39] Notwithstanding the absence of such a definition, retained personnel constitute a separate category of persons in enemy hands, subject to distinct regulation.[40]
2171  If a person falls into the hands of the adverse Party and claims the status of medical or religious personnel and, as a consequence, the applicability of the rules on return or retention, as opposed to the regime applicable to prisoners of war, the Detaining Power will have to determine the status of that person if any doubt arises as to the merits of his or her claim. A conceivable example would be if a person claims the status of medical or religious personnel and displays the distinctive emblem on an armlet, but fails to produce an identity disc and/or card, claiming to have lost them, or, if an identity disc and/or card is produced, there are doubts as to their authenticity. An obvious body to make such a determination would be a ‘competent tribunal’ as foreseen in Article 5(2) of the Third Convention.[41] However, Article 5 does not apply as a matter of law unless the person whose status is unclear has ‘committed a belligerent act’. Medical and religious personnel are presumed not to engage in such acts and, indeed, are only allowed to use weapons in their personal defence or for the defence of the wounded and sick in their charge.[42]
2172  It would nevertheless be necessary to determine the status of a person who claimed to fall into the category of retained medical or religious personnel, not least to ensure that a Detaining Power meets its relevant legal obligations, including the return of those whose retention is not indispensable in accordance with Article 30 of the First Convention. Consequently, if the Detaining Power decides not to rely on the competent tribunal foreseen in Article 5(2) of the Third Convention, it would have to adopt an alternative procedure able to make an effective and reliable determination of the person’s status.
2173  In the course of this determination, the distinctive emblem on the armlet, the identity disc mentioned in Article 16, and an identity card would be important elements in proving the person’s status.[43]
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2. Second sentence: Benefit by all the provisions of the Third Convention
2174  Retained personnel, while they do not have prisoner-of-war status, ‘shall at least benefit by all the provisions’ of the Third Convention. The choice of wording indicates that only those provisions of the Third Convention that are advantageous to retained personnel apply.[44] Article 33 of the Third Convention is even more explicit in this respect, inasmuch as it stipulates that retained personnel ‘shall … receive as a minimum the benefits and protection’ of the Third Convention. By limiting the applicable rules to those that benefit and protect prisoners of war – as opposed to those that may be disadvantageous – Article 33 of the Third Convention confirms that the legally required treatment of retained medical and religious personnel differs from that of prisoners of war. At the same time, there is no substantive difference between the phrase ‘shall at least benefit’ in the present article and ‘shall … receive as a minimum the benefits and protection’ in Article 33 of the Third Convention. The rules that have an element of ‘protection’ certainly ‘benefit’ prisoners of war and therefore retained medical and religious personnel as well.
2175  Entitlement to the benefits and protection of the Third Convention means that retained personnel must at all times be humanely treated and protected, and no reprisals may be taken against them.[45] Retained personnel are entitled in all circumstances to respect for their persons and their honour.[46] Retained female personnel must be treated with all the regard due to their sex and in all cases benefit by treatment as favourable as that granted to men.[47] Captured medical and religious personnel retain the full civil capacity which they enjoyed at the time they fell into the hands of the adverse Party.[48] The Detaining Power must also provide retained personnel free of charge with the necessities of life and the medical attention required by their state of health.[49] Like prisoners of war, retained medical and religious personnel are also entitled to equal treatment: while some differential treatment may be accorded to them on the grounds of their rank, sex, state of health, age or professional qualifications, they may be subject to no (other) adverse distinction.[50]
2176  More concretely, when, for example, retained personnel are questioned in order to ascertain their status, they are bound to give only their ‘surname, first names and rank, date of birth, and army, regimental, personal or serial number, or failing this, equivalent information’.[51] Likewise, their personnel effects shall remain in their possession, except arms that they may have carried with them for self-defence or for the defence of the wounded and sick in their charge, horses, military equipment and military documents.[52] In a similar vein, the rules governing the evacuation of prisoners of war also apply to retained personnel.[53]
2177  However, the foregoing are relatively clear-cut examples of beneficial rules, as opposed to rules which neither benefit nor protect. In other cases, determining whether a given (part of a) provision of the Third Convention confers a benefit or a protection to retained personnel can be more complex. Some of the rules on penal and disciplinary sanctions as provided for in Articles 82–108 of the Third Convention may serve as examples. The third sentence of Article 28(2) of the First Convention stipulates that retained personnel shall continue to carry out, in accordance with their professional ethics, their medical and spiritual duties ‘[w]ithin the framework of the military laws and regulations of the Detaining Power, and under the authority of its competent service’. Accordingly, retained personnel may be subject to judicial or disciplinary measures in respect of violations of such laws and regulations. While a number of the rules in the Third Convention addressing such sanctions are clearly beneficial,[54] others will not necessarily be. Thus, the determination of whether a provision of the Third Convention constitutes a ‘benefit’ in the sense of the second sentence of Article 28(2) has to be made on a case-by-case basis by the Detaining Power acting in good faith.
2178  As a general rule, however, all provisions of the Third Convention that enable retained personnel to carry out their medical or spiritual duties for the benefit of prisoners of war and that facilitate those tasks, within the confines of the military laws and regulations of the Detaining Power, are applicable to such personnel.[55] Conversely, provisions of the Third Convention that hamper retained personnel in carrying out their duties are not applicable. Thus, although the liberty of retained personnel may be restricted, they may not be interned in the sense of the Third Convention[56] to the extent that such an internment would interfere with the fulfilment of their medical and spiritual duties. Indeed, as they may be retained only to fulfil these duties, the extent of the restrictions on their liberty will vary according to circumstances and may include less severe restrictions, such as supervision and assigned residence, rather than actual internment in a camp.[57]
2179  Similarly, when the state of health, the spiritual needs and the number of transferred prisoners of war so require, retained medical and religious personnel may be transferred to another Detaining Power along with the prisoners of war, while benefiting from the same safeguards as the prisoners of war.[58] Furthermore, the special provisions relating to retained personnel restrict the work which may be assigned to them to medical and spiritual duties,[59] and thus exclude the provisions in the Third Convention dealing with the assignment of work to prisoners of war and the arrangements connected with it. However, retained personnel will benefit from the provisions on working conditions, rest, pay, etc., in so far as the provisions in question are compatible with the carrying out of their medical or spiritual duties.[60] The aforementioned examples show that a detailed analysis is required in order to identify those rules in the Third Convention that are applicable to retained personnel.
2180  It is equally clear from the wording of paragraph 2 that the Detaining Power is in no way prevented from going beyond the beneficial provisions of the Third Convention, i.e. it may grant retained medical and religious personnel more advantageous treatment. However, practice seems to suggest that Detaining Powers rather treat retained personnel on the same footing as prisoners of war in terms of the benefits and protection they accord.[61]
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3. Third sentence: Continuation of medical or spiritual duties
2181  The third sentence of Article 28(2) confirms that, although the retention of medical and religious personnel places them in a new environment and under a different authority, their essential work of caring for wounded and sick prisoners of war remains unchanged, and should continue without hindrance. Indeed, the stipulation that retained personnel ‘shall continue to carry out … their medical and spiritual duties on behalf of prisoners of war’ constitutes the centrepiece of the retention regime and informs the interpretation of the provision. The expression ‘medical and spiritual duties’ must be understood in its broadest sense to encompass all work that is intrinsically linked to meeting the medical and spiritual needs of prisoners of war.[62] Thus, for instance, personnel who are engaged in the administration of units and hospitals may be required to continue to carry out the duties assigned to them. In addition, it follows that it is impermissible to retain medical and religious personnel for undertaking other (non-medical and non-spiritual) duties, as explicitly stated in Article 28(2)(c). It also means that the Detaining Power may not interfere with the performance of their duties. Rather, it must facilitate the fulfilment of these duties. Accordingly, the Detaining Power may not deprive retained personnel of, but must provide them with, the required medical equipment. Similarly, while Article 18 of the Third Convention allows prisoners of war only to keep certain ‘effects and articles of personal use’, retained personnel are entitled to keep all articles and equipment needed for their professional use.
2182  Several provisions of the Model Agreement specify how this underlying principle pertains to specific categories of medical personnel, including specialists[63] and female nurses.[64] Conversely, the text says they ‘shall continue … their duties’. This has been interpreted as implying that persons initially covered by Article 28 yet who refuse to perform such duties ‘would not be entitled to retained personnel status’.[65] Where such a refusal takes place even when all the conditions of Article 28 have been complied with, the persons in question will be entitled to prisoner-of-war status.
2183  Once the personnel are retained, their medical and spiritual duties will be carried out under the laws and military regulations of the Detaining Power and under the authority of its competent services.[66] The Detaining Power, being responsible for the state of health of all prisoners of war in its hands,[67] retains full powers of direction and control. The retained personnel whose help it receives are therefore absorbed, as it were, into the larger organization of the Detaining Power, and are subject in their work to the same rules as the regular staff in matters relating to the exercise of their profession. The medical personnel will naturally be placed under the authority of the medical services of the Detaining Power, while religious personnel will come under the same service as that to which the religious personnel of the Detaining Power are attached.
2184  The Convention nevertheless tempers this rule by specifying that medical and religious personnel are to carry out their duties ‘in accordance with their professional ethics’. Article 33 of the Third Convention refers instead to ‘their professional etiquette’, a phrase that is substantively identical. It has been stated that the ‘captor’s authority ends where questions of medical ethics begin’.[68] Of importance to note is that ‘their’ professional ethics refers to the ethics of the medical and religious personnel themselves, which are not necessarily identical to those of the retaining power.[69] A central element of the professional ethics of medical personnel is their complete clinical independence in deciding upon the treatment of persons in their care.[70] Thus, a doctor may not be prevented from treating a sick person, or obliged to adopt a certain treatment, although some restrictions to clinical freedom may emanate from factors such as a limited choice of medications or the need to respect standard protocols on the diagnosis and treatment of particular conditions (such as communicable diseases, including tuberculosis and HIV). With regard to the ‘professional ethics’ of religious personnel, Article 35 of the Third Convention requires that they be allowed to minister to the prisoners of war ‘in accordance with their religious conscience’.
2185  The text also provides that the prisoners of war on whose behalf retained personnel are to carry out their duties should preferably be ‘those of the armed forces to which they themselves belong’.[71] The recommendatory language indicates that it is permissible to retain medical and religious personnel also for the care of prisoners of war of the armed forces of other Parties to the conflict. However, the provision reflects a clear preference of States for prisoners of war to be cared for by medical and religious personnel of their own armed forces, who, for instance, speak the same language and use familiar treatment methods, on the assumption that under these conditions medical care might be better accepted and yield better results. At the same time, the carrying out of medical and spiritual duties for members of the armed forces to which retained personnel themselves belong must not conflict with the principle of non-discrimination which informs the entire regime of care for the wounded and sick[72] or with professional ethics. It would be impermissible to grant preferential treatment to wounded and sick prisoners of war of the armed forces to which retained personnel themselves belong if they are in less urgent need of medical assistance and care than those belonging to other armed forces.
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4. Fourth sentence: Facilities for carrying out medical or spiritual duties
2186  The fourth sentence of Article 28(2) sets out the additional facilities which are to be accorded to retained personnel.[73] The wording that retained personnel ‘shall further’ enjoy the facilities listed – over and above the benefits and protections conferred by the Third Convention – entails that the application of beneficial provisions of the Third Convention to retained personnel is subsidiary to the application of the provisions of the present article relating to retained personnel specifically, even if these provisions are similar to those in the Third Convention. In other words, if a given facility is regulated specifically in Article 28(2), fourth sentence, but the matter is also addressed in a provision of the Third Convention either in a more generic or in a conflicting fashion, the special provisions relating to retained personnel take precedence. Thus, the restriction of work of retained personnel to their medical or religious duties in Article 28(2)(c) takes precedence over Articles 49 and 50 of the Third Convention, which identify certain types of work for which a Detaining Power may utilize prisoners of war ‘with a view particularly to maintaining them in a good state of physical and mental health’ (and in that sense constituting a ‘benefit’).
2187  The purpose of the additional facilities foreseen in the fourth sentence of Article 28(2) is to support retained personnel in carrying out their medical or spiritual duties. These facilities thus further underline the rationale of granting medical and religious personnel special status, namely to enable them to carry out their duties under the best possible conditions, and not of according them privileges as individuals. The ultimate justification for their privileged status is the good of the prisoners of war for whose benefit they work.
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a. Periodic visits to labour units or hospitals outside the camp
2188  The first facility accorded to retained personnel, in addition to the self-evident right to visit prisoners of war inside a camp, is the right, under sub-paragraph (a), to make periodic visits to prisoners of war in labour units (for instance to conduct the periodic assessments to verify that the prisoners of war are fit for work)[74] or in hospitals outside the camp, and to have the necessary transport for that purpose. The Detaining Power is free to exercise such supervision over these journeys as it considers necessary, and will decide if the circumstances call for an escort or not. Retained personnel cannot misuse the right so conferred on them: they are only entitled to leave the camp and travel in order to visit prisoners entrusted to their care or in need of their services.
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b. Senior medical officer responsible to the military authorities of the camp
2189  Under sub-paragraph (b), ‘the senior medical officer of the highest rank shall be responsible to the military authorities of the camp for the professional activity of the retained medical personnel’. That medical officer is automatically selected according to his or her highest rank amongst the retained medical personnel. To facilitate the identification of these ranks, the Parties to the conflict are under an obligation to agree, from the outbreak of hostilities, ‘regarding the corresponding seniority of the ranks of their medical personnel, including those of the societies designated in Article 26’. The said ranks are also to be communicated with a view to facilitating the determination of who is the senior medical officer.[75]Any resulting agreement is a special agreement and must comply with the requirements of Article 6 of the First Convention. Accordingly, such an agreement may not adversely affect the situation of the wounded and sick or the medical or religious personnel as defined in the First Convention, nor restrict the rights which the Convention confers upon them.[76]
2190  The senior medical officer will perform, on behalf of the retained medical personnel, all the duties which the prisoners’ representative performs for prisoners of war.[77] Accordingly, the senior medical officer will, in fact, be the medical personnel’s representative. However, the role of the senior medical officer differs from that of the prisoners’ representative inasmuch as Article 28(2)(b) specifies that the former is ‘responsible’ to the authorities ‘for the professional activity of the retained medical personnel’. The responsible officer will therefore effectively act as head of the retained medical personnel in the camp in all professional matters, in so far as this is compatible with the fact that such personnel are placed, in principle, under the authority of the competent services of the Detaining Power. Article 33(2)(b) of the Third Convention, meanwhile, describes the responsibility of the senior medical officer in each camp more loosely as extending to ‘everything connected with the activities of retained medical personnel’. However, if considered in the context of the remainder of Article 33(2)(b), where reference is made to the right of the senior medical officer and religious personnel ‘to deal with the competent authorities of the camp on all questions relating to their duties’ (emphasis added), it would stand to reason to interpret the responsibility as limited to the professional activity of the retained medical personnel and thus as being identical to Article 28(2)(b) of the First Convention.
2191  Article 28 gives the senior medical officer two prerogatives: direct access to the camp authorities in all questions arising out of his or her duties, and the necessary facilities for correspondence relating to such questions. As far as direct access is concerned, the English version of Article 33(2)(b) of the Third Convention stipulates more loosely a ‘right to deal with the competent authorities of the camp’. However, the French version uses wording identical to Article 28 and provides for ‘accès direct’. The meaning which best reconciles these different texts arguably is to understand the English version of Article 33(2)(b) of the Third Convention as also providing for a right of direct access to the camp authorities.[78]
2192  Regarding the necessary facilities for correspondence, no limit may be placed on the number of letters, cards, emails and other communications which it may be necessary for the responsible medical officer to send and receive. This is contrary to what may be the case in certain circumstances with regard to the number of communications sent and received by prisoners of war.[79] It is important that the responsible medical officer remains in close touch with medical circles in his or her own country and with the Protecting Power, the ICRC, relief organizations, the families of captured personnel and others of relevance. In general, therefore, the facilities for correspondence should be at least as generous as those accorded to prisoners’ representatives.[80]
2193  It should be noted that the appointment of a ‘responsible’ officer only concerns medical personnel and not religious personnel. However, individual religious personnel are, like the responsible medical officer, to have direct access to the camp authorities, who are under an obligation to provide them with the facilities they may require for correspondence relating to questions arising out of their duties. Furthermore, Article 35 of the Third Convention contains additional rules pertaining to religious personnel who are retained to assist prisoners of war, including correspondence, ‘subject to censorship, on matters concerning their religious duties with the ecclesiastical authorities in the country of detention and with international religious organizations’.[81]
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c. Performance of work outside medical or religious duties
2194  Sub-paragraph (c) stipulates that retained personnel may not be required to perform any work outside their medical or religious duties. That fundamental rule is absolute. Thus, retained personnel may not be obliged to do work outside their medical or religious duties even if they happen to be unoccupied for a brief period of time. During such a brief period of time they may always, of course, volunteer for work outside their medical or religious duties. That said, it is inadvisable for retained personnel to become prisoners’ of war representatives in the sense of Articles 79 to 81 of the Third Convention.[82]
2195  However, if no work falling within the scope of their medical or religious duties is available for a longer period of time, their retention is no longer indispensable and they have to be returned to the Party to the conflict to which they belong, in accordance with Article 30 of the First Convention.
2196  It follows from sub-paragraph (c) (in addition to the more generic stipulation that retained personnel ‘shall continue to carry out … their medical and spiritual duties’),[83] that the provisions on the labour of prisoners of war[84] – even to the extent that they are to be considered ‘beneficial’ in the sense explained above – have to be adapted accordingly: those provisions that identify the type of work to which prisoners of war may be assigned and the arrangements connected with it[85] are generally not applicable to retained personnel. Furthermore, the beneficial provisions pertaining to working conditions, rest, pay, etc.[86] are only applicable to the extent that they are compatible with the carrying out of medical and spiritual duties.[87]
2197  The same sub-paragraph provides that retained personnel are to be subject to the internal discipline of the camp. The provision should be read in conjunction with the clause, examined above,[88] that the personnel are to carry out their duties under the authority of the competent service of the Detaining Power. They will thus come under the authority of the commander of the camp except when actually carrying out their duties, in which case they are subject to the authority of the competent medical or religious service of the Detaining Power.
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E. Paragraph 3: Arrangements for relieving retained personnel
2198  Article 28(3) requires Parties to the conflict to make arrangements for relieving retained personnel during hostilities, where possible, and to settle the procedure of such relief. In its ordinary meaning, ‘to relieve’ means ‘to release (a person) from a duty by acting or providing a substitute’.[89] The concept of ‘relieving’ in the present context is thus equivalent to ‘substituting’ retained personnel. Generally speaking, the substitution of retained personnel can take various forms: retained personnel can be replaced by personnel belonging to the Detaining Power, by new personnel who have fallen into the hands of that Power,[90] or by personnel selected by a Party to the armed conflict for the specific purpose of relieving retained personnel of the same nationality. The ‘arrangements’ for relief made between the Parties to the conflict contemplated in paragraph 3 only pertain to the last form of relief. The caveat ‘where possible’ makes clear that there is no obligation to make such arrangements, but that their making as well as their substance will depend on a variety of factors. When drafting the Model Agreement Relating to the Relief of Medical Personnel and Chaplains, the ICRC identified the following factors: ‘the circumstances obtaining at the time, the nature of the conflict, the Powers concerned in the relief, their national characteristics, the geographical distances which separate them, the number of prisoners, the actual organization of the Medical Services of the armies concerned and that of the medical profession, the state of mind of the civilian population, and so on’.[91]
2199  The agreements resulting from an application of Article 28(3) are special agreements in the sense of Article 6 of the First Convention, which must comply with the substantive requirements of the latter provision. The Model Agreement Relating to the Relief of Medical Personnel and Chaplains provides a blueprint for such arrangements and the applicable procedure. However, nothing prevents the Parties from diverging from the Model Agreement. Indeed, as the ICRC explained in its commentary on the Model Agreement, opinions on the subject of relief of medical and religious personnel ‘varied considerably and were often actually contradictory’.[92] This divergence of views, which ‘had already been noted in the course of the 1949 Diplomatic Conference’, was ‘symptomatic of the special character, highly technical and often varying according to the regions and nationalities concerned, of the problems raised by the organization of a relief operation’.[93] Against the backdrop of the context-specific circumstances of any armed conflict, the ICRC, when drafting the Model Agreement, kept to a few principles which it considered to be ‘apparently valid in all cases’ at the time.[94] The principles addressed matters such as the period after which retained personnel must be relieved, the equivalence in competence and duties between relieved and relieving personnel, the choice of the personnel to be relieved, certain prioritizations of personnel to be relieved, the authority of the Detaining Power over relieving personnel, the possibility of an overlapping period after the arrival of the relieving personnel before the departure of the retained personnel, safety issues, the issuing of identity cards to relieving personnel, the responsibility for recruiting and selecting relieving personnel, and the establishment of a body to coordinate relief operations.[95]
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F. Paragraph 4: Continuation of the obligations of the Detaining Power
2200  Article 28(4) restates the fundamental consideration underlying the retention regime as a whole, which is that retention may not be used as a way to circumvent the Detaining Power’s obligations regarding the medical and spiritual welfare of the prisoners of war.[96] These obligations include the provision free of charge for the maintenance of prisoners of war and for the medical attention required by their state of health.[97] This obligation in turn entails that the Detaining Power makes available its own medical and, to the extent appropriate, religious personnel to prisoners of war. The retention of enemy medical and religious personnel is no substitute for this, nor does retention amount to the actual fulfilment of these obligations.[98] Instead, the lawfulness of retention is conditioned on the Detaining Power not being in a position to provide for the medical and spiritual welfare of prisoners of war through its own medical and religious personnel. Retention is thus envisaged as a complement to, rather than a substitute for, the Detaining Power’s own measures.[99] Such an understanding of the nature of retention is entirely in line with other relevant rules, such as Article 19(1) of the First Convention, which stipulates that, should units of the medical service of the armed forces fall into enemy hands, ‘their personnel shall be free to pursue their duties, as long as the capturing Power has not itself ensured the necessary care of the wounded and sick found in such establishments and units’.
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Select bibliography
Bugnion, François, The International Committee of the Red Cross and the Protection of War Victims, ICRC/Macmillan, Oxford, 2003.
ICRC, ‘La rétention et la relève du personnel sanitaire et religieux: Accords-types’, Revue internationale de la Croix-Rouge et Bulletin international des Sociétés de la Croix-Rouge, Vol. 37, No. 433, January 1955, pp. 7–31.
Jeanty, Bernard, La protection du personnel sanitaire dans les conflits armés internationaux, Thèse de Licence, Université de Neuchâtel, 1989.
Lauterpacht, Hersch, ‛The Problem of the Revision of the Law of War’, British Yearbook of International Law, Vol. 29, 1952, pp. 360–382.
Odom, Jonathan G., ‘Beyond Arm Bands and Arms Banned: Chaplains, Armed Conflict, and the Law’, Naval Law Review, Vol. 49, 2002, pp. 1–70.
Pictet, Jean S., ‘Les nouvelles Conventions de Genève : La rétention du personnel sanitaire des armées tombé au pouvoir de la partie adverse’, Revue internationale de la Croix-Rouge et Bulletin international des Sociétés de la Croix-Rouge, Vol. 31, No. 371, November 1949, pp. 869–884, and Vol. 31, No. 372, December 1949, pp. 937–976.
– ‘La profession médicale et le droit international humanitaire’, Revue internationale de la Croix-Rouge, Vol. 67, No. 754, August 1985, pp. 195–213.
Schoenholzer, Jean-Pierre, ‘Le médecin dans les Conventions de Genève de 1949’, Revue internationale de la Croix-Rouge et Bulletin international des Sociétés de la Croix-Rouge, Vol. 35, Nos 410/411, February/March 1953, pp. 94–126 and 169–194.
Vollmar, Lewis C., ‘Military Medicine in War: The Geneva Conventions Today’, in Thomas E. Beam and Linette R. Sparacino (eds), Military Medical Ethics, Vol. 2, Office of The Surgeon General, United States Army, Washington D.C., 2003, pp. 739–771.

1 - Bugnion, p. 472: ‘For medical personnel to be able to do their job properly it is not enough to protect them against the hazards of battle; the belligerents must also refrain from obstructing their work. The most common impediment of all, and the most likely to bring the work of medical services to a standstill, is captivity. If doctors, medical orderlies, and nurses are thrown into camps and fortresses pell-mell with prisoners of war, they can do nothing for the wounded lying on the field of battle.’
2 - The main differences between the two articles are analysed below; see sections D.2, D.3 and D.4.b. However, these have no substantive implications. See also Sigrid Mehring, First Do No Harm: Medical Ethics in International Humanitarian Law, Brill, Boston, 2014, p. 111, fn. 163.
3 - See Pictet (ed.), Commentary on the First Geneva Convention, ICRC, 1952, p. 237.
4 - For examples, see Bugnion, p. 478.
5 - In this vein, see also Bugnion, p. 473.
6 - Ibid. p. 472: ‘The 1864 Conference (Art. 3) settled the issue in the clearest possible way: it ruled that medical personnel were not to be taken prisoner; that even under enemy occupation, they must be freely able to continue their work of tending the wounded and sick; and that when their care was no longer required they were to be handed over to the outposts of their own armed forces.’
7 - See also Article 17(2) of the 1906 Geneva Convention pertaining to convoys of evacuation, which reaffirmed ‘the obligation to return the sanitary personnel’ when their assistance was no longer indispensable.
8 - See Geneva Convention on the Wounded and Sick (1929), Article 12(1).
9 - See ibid. Articles 12(2) and 14(4).
10 - See ibid. Article 12(2).
11 - Ibid. Article 12(3). For an analysis of the provision, see Des Gouttes, Commentaire de la Convention de Genève de 1929 sur les blessés et malades, ICRC, 1930, pp. 72–86.
12 - Vollmar, p. 746.
13 - Report of the Preliminary Conference of National Societies of 1946, p. 32.
14 - See Article 9 of both Conventions.
15 - Report of the Preliminary Conference of National Societies of 1946, pp. 32–33.
16 - See also Paul de La Pradelle, La Conférence diplomatique et les nouvelles Conventions de Genève du 12 août 1949, Les Éditions internationales, Paris, 1951, pp. 114–133.
17 - For an illustration of these discussions and the arguments on both sides, see e.g. the statements made by States during the 1949 Diplomatic Conference, Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II-A, pp. 67–71.
18 - Draft Conventions adopted by the 1948 Stockholm Conference, draft article 22.
19 - As to the intended non-binding nature of the model agreement, see Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II-A, p. 170.
20 - ICRC, The Retention and Relief of Medical Personnel and Chaplains: Model Agreements, ICRC Doc. D306/2b, 1955.
21 - The most notable inconsistencies between the First Convention and the Model Agreements pointed out by the United Kingdom were: (a) Article 1(1) of the Model Agreement Relating to the Retention of Medical Personnel and Chaplains provides that retained personnel may only ‘carry out their duties on behalf of prisoners of war of the armed forces to which they themselves belong’, whereas Article 28 contains no such restriction; (b) Article 1(2) of the same Model Agreement stipulates that the staff of National Red Cross and Red Crescent Societies and of other voluntary aid societies ‘may only be retained at their own express wish’, whereas Article 28 does not require such consent; (c) Article 8 of the same Model Agreement restricts the possibility of transferring retained medical and religious personnel to situations where ‘such personnel accompany prisoners of war who have already been in their care and are being transferred under the circumstances provided for in Article 12 of the Third Convention, and only in so far as such care cannot be provided by medical personnel of the new Detaining Power’, a restriction that cannot be deduced from Article 28; and (d) Article 5 of the Model Agreement Relating to the Relief of Medical Personnel and Chaplains unduly subjects them to the military laws and regulations of the Retaining Power, in contravention of Article 28.
22 - See e.g. Schoenholzer, pp. 173–174, and Lauterpacht, p. 380. See also, later, Pictet, 1985, p. 203.
23 - See Articles 32 and 29, respectively.
24 - For an explanation of this notion, see the commentary on Article 14, section C.3.
25 - Pictet (ed.), Commentary on the First Geneva Convention, ICRC, 1952, p. 242.
26 - See Article 4, and, importantly, the commentary on that provision at para. 937. See also United States, Law of War Manual, 2015, para. 15.16.6.
27 - See also Article 5(1) of the Model Agreement Relating to the Retention of Medical Personnel and Chaplains: ‘The number of personnel and chaplains liable to be retained, as determined by the foregoing provisions, shall be considered as a maximum, and shall not be exceeded in order to provide for possible needs arising from the capture, at a later date, of enemy military personnel, or on any other pretext.’ (Emphasis added.) This is subject to the two limited exceptions stipulated in Article 5(2) of the Model Agreement pertaining to the retention of surplus personnel to replace personnel who have been retained for more than one year; and in Article 6 of the Model Agreement pertaining to the increase of the number of retained chaplains by way of mutual agreement between the belligerent Parties.
28 - See Third Convention, Article 4(A)(4)–(5).
29 - See also the commentary on Article 30, para. 2227.
30 - The context-specific nature of these equations is also reflected in the Model Agreement; see e.g. Article 6, allowing the Parties to the conflict to ‘agree mutually, in the course of hostilities, to increase the number of chaplains to be retained, should this be necessary, and in the case of a Detaining Power not having ministers of the religion practised by the prisoners, among its own nationals’. Indeed, the retention of religious personnel would facilitate compliance with the obligation of Parties to an international armed conflict to grant prisoners of war ‘complete latitude in the exercise of their religious duties’, in accordance with Article 34 of the Third Convention.
31 - See Article 30 on the return of medical and religious personnel and Article 31 on the selection of personnel for return. See also Articles 109–117 of the Third Convention on direct repatriation of seriously wounded and sick persons and their accommodation in neutral countries, which may have an impact on the medical and spiritual needs in a prisoner-of-war camp. See, further, Odom, p. 29: ‘Likewise, the stated length of such retention of chaplains is not for a set period of time or for the duration of the armed conflict like POWs [prisoners of war]. Instead, the term of their retention is conditionally based upon the “necessity” or “need” for their religious services. Therefore, if their retention is “not indispensable,” then the Conventions mandate that chaplains be returned to their side of the conflict as soon as practicable.’
32 - See also Article 5 of the Model Agreement, stipulating that the numbers of retained personnel specified in Article 2 of the Model Agreement ‘shall be considered as a maximum’ and lists the conditions for retaining surplus personnel. See further Article 7 of the Model Agreement on the reduction of these numbers in the light of the retention of auxiliary medical personnel and of prisoners of war who, though not attached to the medical service of their armed forces, are physicians, surgeons, dentists, nurses or medical orderlies and are required by the Detaining Power to exercise their medical functions in accordance with Article 32 of the Third Convention.
33 - These needs are partially reflected in Article 12(4) of the First Convention, as well as in Articles 14(2), 25(4) and 29(2) of the Third Convention. For a very limited exception to the neglect of the special needs of women prisoners of war in the Model Agreement, see Article 4(2) pertaining to the retention of female nurses.
34 - As an illustration, see e.g. United States, Army Regulation on Enemy Prisoners, Retained Personnel, Civilian Internees and Other Detainees, 1997, section 3-15(k), providing for a ratio of two physicians, two nurses, one chaplain and seven enlisted medical personnel per 1,000 prisoners of war.
35 - See UN Security Council, Res. 1325, 31 October 2000, para. 1. There is a growing acknowledgement that women, men, girls and boys are affected by armed conflict in different ways, and that, accordingly, the representation of both women and men at all decision-making levels in national, regional and international institutions and mechanisms for conflict prevention, management and resolution benefits the process. The application of international humanitarian law should also reflect this understanding.
36 - For details, see Additional Protocol I, Article 16.
37 - See also Article 4(C) of the Third Convention: ‘This Article [definition of prisoners of war] shall in no way affect the status of medical personnel and chaplains as provided for in Article 33 of the present Convention.’
38 - Third Convention, Article 4.
39 - Fourth Convention, Article 4.
40 - See also Pictet (ed.), Commentary on the Fourth Geneva Convention, ICRC, 1958, p. 51: ‘Every person in enemy hands must have some status under international law: he is either a prisoner of war and, as such, covered by the Third Convention, a civilian covered by the Fourth Convention, or again, a member of the medical personnel of the armed forces who is covered by the First Convention. There is no intermediate status; nobody in enemy hands can be outside the law.’
41 - See also United States, Human Intelligence Collector Operations, 2006, p. vii: ‘Persons in the custody of the US Armed Forces who have not been classified as an EPW [enemy prisoner of war] (Article 4, GPW [Third Geneva Convention]), retained personnel (Article 33, GPW), and Civilian Internee (Articles 27, 41, 48, and 78, GC [Fourth Geneva Convention]) shall be treated as EPWs until a legal status is ascertained by competent authority; for example, by Article 5 Tribunal.’
42 - See the commentaries on Article 24, paras 59–60, and Article 26, para. 40.
43 - See Article 40 and its commentary, para. 2.
44 - Schoenholzer, pp. 173–174.
45 - See Third Convention, Article 13.
46 - See ibid. Article 14(1).
47 - See ibid. Article 14(2).
48 - See ibid. Article 14(3).
49 - See ibid. Article 15.
50 - See ibid. Article 16.
51 - See ibid. Article 17(1).
52 - See mutatis mutandis Article 18(1) of the Third Convention.
53 - See ibid. Articles 19–20.
54 - Examples are the obligation of the Detaining Power to ‘ensure that the competent authorities exercise the greatest leniency and adopt, wherever possible, disciplinary rather than judicial measures’ (Article 83 of the Third Convention), and the fair trial guarantees referred to in Articles 84(2) and 86 of the Third Convention.
55 - See also Model Agreement Relating to the Retention of Medical Personnel and Chaplains, Article 11.
56 - On internment of prisoners of war, see Third Convention, Article 21(1).
57 - In this vein, see also Pictet (ed.), Commentary on the First Geneva Convention, ICRC, 1952, p. 245. On the notions of ‘supervision’ and ‘assigned residence’, see mutatis mutandis the commentary on Article 41 of the Fourth Convention.
58 - See Third Convention, Article 12, and Model Agreement Relating to the Retention of Medical Personnel and Chaplains, Article 8.
59 - See section D.3.
60 - For further details, see Article 49–57 of the Third Convention. See also Article 9 of the Model Agreement on working pay.
61 - See e.g. United States, Army Regulation on Enemy Prisoners, Retained Personnel, Civilian Internees and Other Detainees, 1997, pp. 14–15.
62 - Vollmar, p. 746: ‘[T]he term “medical duties” must be interpreted broadly to include such work as administration and upkeep of a hospital or clinic in which the medical personnel are working.’
63 - See Article 3(2) of the Model Agreement.
64 - See Article 4 of the Model Agreement.
65 - See United States, Law of War Manual, 2015, paras 4.9.2.3 and 7.9.4.
66 - See also paragraph 2(c) of this article, stating that retained personnel in a camp shall be subject to its internal discipline.
67 - See Third Convention, Article 15.
68 - Vollmar, p. 746.
69 - Of note also is that the French version of Article 28 uses the term ‘conscience professionnelle’, which introduces a more subjective element; see Sigrid Mehring, ‘The Rights and Duties of Physicians in Armed Conflict’, Militair Rechtelijk Tijdschrift, Vol. 103, No. 5, 2010, pp. 205–221, at 217–218.
70 - See e.g. World Medical Association, Declaration of Tokyo – Guidelines for Physicians Concerning Torture and other Cruel, Inhuman or Degrading Treatment or Punishment in Relation to Detention and Imprisonment, 2006. See also Article 16 of Additional Protocol I.
71 - See also the same logic at play in Article 30(3) of the Third Convention.
72 - See Article 12(2) and (3).
73 - See also the additional facilities granted to retained religious personnel by virtue of Article 35 of the Third Convention.
74 - See Third Convention, Article 55.
75 - See United States, Law of War Manual, 2015, para. 9.4.2.5.
76 - Article 6(1). As to the temporal scope of the applicability of such special agreements, see Article 6(2).
77 - On prisoners’ of war representatives, see, in particular, Third Convention, Articles 79–81, in addition to Articles 28(2), 41(2), 48(4), second sentence, 57(2), 62(3), 65(1), 78(2), 96(4), third sentence, 98(5), second sentence, 104(3) and (4), 107(1), second sentence, 113(1), sub-para. 2, and (4), 125(4), first sentence, and 126(1), second sentence.
78 - See Vienna Convention on the Law of Treaties (1969), Article 33(4). Generally, see also Article 55.
79 - See Third Convention, Article 71(1).
80 - See ibid. Article 81(4).
81 - Ibid. Article 35, fourth sentence.
82 - United States, Law of War Manual, 2015, para. 9.24.1: In practice it is advisable for the POW [prisoner-of-war] representative to be a POW as opposed to a retained person. Medical personnel have their own representative for issues related to their activities. In addition, the duties of the POW representative and the duties of retained personnel could interfere with one another, and special provision is made in the [Third Convention] to ensure that other duties [do] not interfere with the duties of retained personnel or the duties of the POW representative.
83 - See section D.3.
84 - Third Convention, Articles 49–57.
85 - See ibid. Articles 49, 50, 52, 56 and 57.
86 - See ibid. Articles 51 and 53–55.
87 - Pictet (ed.), Commentary on the First Geneva Convention, ICRC, 1952, p. 254.
88 - See section D.3.
89 - Concise Oxford English Dictionary, 12th edition, Oxford University Press, 2011, p. 1215.
90 - See Article 31(1), which provides that the selection of personnel for return under Article 30 shall be made ‘preferably according to the chronological order of their capture and their state of health’ (emphasis added).
91 - For the reference to the Model Agreement, see para. 2159.
92 - See the commentary on the Model Agreement, p. 19.
93 - Ibid.
94 - Ibid.
95 - See ibid.
96 - See, in particular, Third Convention, Articles 15 and 34, but also Articles 20(2), 30–31, 46(3), 55 and 108(3). See also United States, Law of War Manual, 2015, para. 7.9.6: ‘In other words, the fact that the Detaining Power permits and enables retained personnel to care for POWs [prisoners of war] does not relieve the Detaining Power of its own responsibilities to care for POWs.’
97 - Third Convention, Article 15.
98 - Jeanty, p. 65.
99 - See also Article 1(1) of the Model Agreement and its commentary, p. 10.