Treaties, States Parties and Commentaries
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Geneva Conventions of 1949 and Additional Protocols, and their Commentaries
Historical Treaties and Documents
Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field. Geneva, 12 August 1949.
-- RETURN OF MEDICAL AND RELIGIOUS
PARAGRAPH 1 -- REPATRIATION OF MEDICAL PERSONNEL
The repatriation of medical personnel, traditionally a principle of the Geneva Convention, remains, as we have shown above (1), the essential [p.261] rule. Retention is only a secondary possibility. Consequently, all permanent medical and religious personnel (2) whose retention is not indispensable under the provisions of Article 28
, which we have examined, should be sent back to the belligerent to whom they belong. All medical personnel and chaplains beyond the number fixed by agreement and proportional to the number of prisoners, or, in default of such agreement, all who are not indispensable in view of the medical condition or spiritual needs of the prisoners, are to be repatriated. The obligation laid on the Detaining Power in this matter is an absolute one. It springs not only from the letter of the Convention, but from its inmost spirit, which the 1949 revision has not affected. Medical personnel must always, as a matter of principle, be in a position to carry on their particular work. To hinder them in this by holding doctors
idle while they might be saving the lives of patients in their own country, would be gravely at variance with the Geneva Convention and the very idea of the Red Cross.
The retention of indispensable personnel is now explicitly recognized by the Convention and governed by carefully drafted rules, thus satisfying the legitimate requirements of States which felt they should be able to avail themselves of the services of medical personnel of the adverse Party. The Powers must therefore aim at respecting the essential principle of repatriation all the more strictly, since its field of application is now more limited. The provisions of the new Geneva Convention spring as a whole from the central idea that sick and wounded soldiers form a single group, and must be cared for as well as possible, whether they are with their own forces or in enemy hands. All the preliminary discussions were dominated by the desire to maintain a just balance between the needs of the wounded on the battlefield and those of prisoners of war.
The paragraph lays down that surplus medical personnel are to be returned "as soon as a road is open for their return and military requirements permit".
Only physical impossibility or military necessity can be invoked as a reason for delaying their return. Thus it is not always possible to cross a battle front; similarly, transport overseas or across a neutral country cannot be organized from one moment to the next. Then [p.262] again, repatriation may be delayed if there are good grounds for believing that medical personnel have, at the time of capture, been able to collect information of tactical or strategic value which they will communicate to their own army command on their return.
The two conditions laid down in the paragraph under review are the only admissible ones; and they must be reasons, not pretexts. (3) These conditions apart, repatriation should be immediate. It is essential that steps should be taken to prevent a repetition of the unjustifiable delay which occurred in the repatriation of medical personnel in the two World Wars. If one really wishes, it is not physically impossible to hold fire just long enough to allow a few hundred men to pass; nor is it impossible to ensure the security of a ship over a route agreed upon beforehand. Similarly, any information of military value which medical personnel may have been able to collect will very soon be out of date.
If belligerents were to yield to the temptation of delaying the repatriation of surplus medical personnel on the chance of prisoners later falling into their hands, it might well be said that the introduction of the system of retention had marked the end of one of the first real achievements of the Geneva Convention. The system of retention will not, we must repeat, give the good results expected of it, unless the principle of repatriation is also scrupulously observed. It is at this price that the new provisions will take on their full value and that the Convention as a whole will retain its high moral significance.
The Convention stipulates that medical personnel are to be returned "to the Party to the conflict to whom they belong". This is the expression used in the 1929 Convention, and was preferred to the 1906 text which spoke of the return of medical personnel "to their own army or country". It was necessary to ensure that the belligerent could not meet his obligation by transferring medical personnel to a part of their country which he himself had occupied. Further, medical personnel might have served in forces other than those of their home country, and it is to these forces that they should be returned. The whole object of the restitution is to reinstate medical personnel in the position which they occupied when they fell into enemy hands or, if that is not possible, in conditions approaching it as nearly as possible.
[p.263] PARAGRAPH 2 -- MEDICAL PERSONNEL AWAITING REPATRIATION
We have seen above that a certain interval -- which should be as short as possible -- will elapse between the capture of medical personnel and their return. It was necessary to decide their status and living conditions during this period, and this is done in the paragraph under review.
The essential provisions laid down for the benefit of medical personnel retained permanently are also valid for those awaiting repatriation. The latter are not to be considered as prisoners of war, but are to receive, as a minimum, the benefits and protection offered by the Prisoners of War Convention. They are to continue to carry out their duties under the orders of the adverse Party, and to be engaged, preferably, in the care of the wounded and sick of their own nationality. It is desirable from every point of view that their professional abilities should not be left unused. For the rest the reader is referred to what has been said in this connection on Article 28
Although the Diplomatic Conference reproduced here only the most striking of the provisions established for the benefit of retained personnel, this does not mean that personnel awaiting repatriation cannot also claim the benefit of the other provisions and general spirit of Article 28
, as for example the right to carry out their duties in accordance with their professional ethics.
The real reason for simplifying the Article is that the medical personnel in question only have to remain with the enemy for a short period, and will therefore most often have no need of more detailed provisions.
But if repatriation is delayed and the work they are doing justifies it, such personnel certainly have every right to demand fuller application of the provisions. Indeed, in such cases, they should very soon be considered as having passed by force of circumstances into the category of retained personnel, at least in so far as their prerogatives are concerned.
PARAGRAPH 3 -- PERSONAL BELONGINGS
Provision is made here for the principle of respect for private property, already recognized as being valid in the case of prisoners of war (Prisoners of War Convention, Article 18
), as in the case of civilians.
[p.264] Among the things which are to remain the property of medical personnel, and which they may take with them on repatriation, the Convention mentions "instruments" -- articles proper to the medical profession, especially to surgeons. All articles, including instruments, taken with them must "belong to them". If only entrusted to them by their home country, such articles cannot be taken away, but come under the provisions dealing with medical equipment of the armed forces.
The 1929 Convention included arms and means of transport among the personal belongings which medical personnel were authorized to take with them on departure. The 1949 Conference dropped this provision, as they felt that it would be difficult to apply in practice. Besides, such material could admittedly be used to assist the war effort.
Therefore, even if the arms and means of transport are the private property of medical personnel, they are in future to be subject to capture.
Let us finally note that it is not only medical personnel earmarked from the beginning for return to their own fighting forces, who will be able to invoke Article 30. Retained medical personnel are obviously entitled to the benefit of this Article as soon as they also are nominated for repatriation, which will be the case when their help is no longer necessary, when they are replaced by colleagues who have been captured more recently, or when their state of health so requires.
* (1) [(1) p.260] See above, page 240;
(2) [(1) p.261] The Diplomatic Conference rejected a proposal
that only doctors, dentists and medical orderlies should
(3) [(1) p.262] See Paul DES GOUTTES, ' Commentaire de la
Convention de Genève du 27 juillet 1929, ' Geneva, 1930,
See the Commentary of 2016