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Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field. Geneva, 12 August 1949.
-- STATUS OF AUXILIARY PERSONNEL
As we saw in connection with Article 25
(1), which defines auxiliary personnel, such personnel will be protected in future on the field of battle and when they fall into enemy hands, but they are no longer entitled to repatriation as they were under the 1929 Convention. Article 29 defines their status in the event of capture.
The solution adopted by the Conference is justified on several grounds First of all, there is no real affinity of status between auxiliary personnel and permanent medical and religious personnel. Auxiliary personnel are as much "combatant" as medical, and their repatriation would help to increase the military potential of the home country. Besides, since their medical functions are subsidiary only, the necessary instruction can quickly be given to other troops who can be detailed to replace those captured.
Secondly, although the bold innovation of the 1929 Convention did not, fortunately, give rise to abuse, it was nevertheless open to it. One can well imagine a belligerent giving training as stretcher-bearers to large numbers of the fighting troops of his armed forces, in order to [p.259] furnish them with a claim to repatriation, should they be captured.
Finally, as we have seen above, troops are most often captured nowadays in large groups, following encircling operations. When a body of troops is surrounded in this manner and disarmed, it is sent behind the lines, where the sorting out process begins. In most such cases, it will be impossible for the commanding officer to establish with any degree of certainty, whether or not particular soldiers were engaged on medical work at the moment of capture, especially as the exact moment of capture is not itself at all easy to ascertain. It would seem to have been especially this last consideration which led the delegates of 1949 to reverse the former system.
Does it follow that the special training of these men will become useless from the moment they are taken prisoner? The answer is "No". The Conference was careful to provide that auxiliary personnel who become prisoners of war "shall be employed on their medical duties, in so far as the need arises". The Detaining Power should therefore call upon them as far as may be necessary, and may employ them from time to time, or permanently, on duties connected with the care of their fellow prisoners.
Should the presence in prisoner of war camps of auxiliary medical personnel (i.e. of stretcher-bearers and medical orderlies) involve a reduction in the proportion of permanent medical personnel retained? The Convention has no specific provision dealing with this point. The matter must therefore be left to the agreements which belligerents are invited to conclude, or, in default of such agreements, to the judgment of the Detaining Power, which, under the terms of Article 45
, must always be guided by the general principles of the Convention when dealing with unforeseen cases.
It should be remembered that auxiliary personnel are only trained to act as stretcher-bearers or auxiliary medical orderlies, so that their presence in camps could at most justify the repatriation of permanent personnel of the same class, not of fully qualified personnel. Besides, there is unlikely to be a constant need for stretcher-bearers in the camps, so that the problem will probably be limited in practice to the case of auxiliary medical orderlies.
If some of them are able to fill the necessary posts satisfactorily and permanently, the Detaining Power should admittedly consider freeing a corresponding number of the permanent medical orderlies retained [p.260] under Article 28
. Such an attitude would be in full accordance with the spirit and general principles of the Convention.
What then is the status of auxiliary personnel in captivity? When they are not doing medical work, they will be treated as ordinary prisoners of war. When they are called upon to act in a professional capacity, they should, in our opinion, have the benefit of the provisions of Article 32 of the Prisoners of War Convention
, which applies to prisoners who, though not attached to the Medical Service, are doctors, medical orderlies, etc., and are required by the Detaining Power to exercise their profession. According to the terms of this Article, "they shall continue to be prisoners of war, but shall receive the same treatment as corresponding medical personnel retained by the Detaining Power".
* (1) [(1) p.258] See above, page 222;
See the Commentary of 2016
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