Treaties, States Parties and Commentaries
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Commentary of 2016 
Article 31 : Selection of personnel for return
Text of the provision*
(1) The selection of personnel for return under Article 30 shall be made irrespective of any consideration of race, religion or political opinion, but preferably according to the chronological order of their capture and their state of health.
(2) As from the outbreak of hostilities, Parties to the conflict may determine by special agreement the percentage of personnel to be retained, in proportion to the number of prisoners and the distribution of the said personnel in the camps.
* Paragraph numbers have been added for ease of reference.
Reservations or declarations
None
Contents

A. Introduction
2256  The two paragraphs of Article 31 address separate points which aim to regulate and facilitate the implementation of Articles 28 and 30. The first paragraph specifies the order of return of personnel on the basis of Article 30. The second paragraph allows for the conclusion of special agreements to regulate the retention of personnel on the basis of Article 28.
2257  The personnel covered by these three provisions are those mentioned in Article 24 (military medical and religious personnel) and in Article 26 (staff of National Red Cross and Red Crescent Societies and of other voluntary aid societies assisting the medical services of their own State’s armed forces). For the sake of brevity, both categories are subsumed under the phrase ‘medical and religious personnel’ in the commentary on this article.
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B. Historical background
2258  While to a certain extent both Article 28 and Article 30 have predecessors in the 1906 Geneva Convention and the 1929 Geneva Convention on the Wounded and Sick, Article 31(1) does not.[1] The origin of Article 31(1) can be traced back to the 1946 Preliminary Conference of National Red Cross Societies for the study of the Conventions and of various Problems relative to the Red Cross, during which the following paragraph was adopted: ‘The choice of persons thus retained shall not be influenced by any consideration of race, or of political opinions’.[2] The text adopted by the 1947 Conference of Government Experts added ‘religion’ to the list and specified that the selection of ‘repatriates’ should be done ‘preferably according to the chronological order of their capture’.[3] The draft submitted to the Stockholm Conference went further, stipulating that the selection of personnel to be repatriated should preferably be done according not only to ‘the chronological order of their capture’ but also to ‘their state of health’.[4] Following an amendment submitted during the 1949 Diplomatic Conference, the word ‘repatriates’ was replaced by the words ‘personnel for return under Article [30]’, leading to the final version of Article 31(1).[5]
2259  Article 31(2) has no predecessor as such in the 1906 Geneva Convention or in the 1929 Geneva Convention on the Wounded and Sick. However, the fourth paragraph of Article 14 of the 1929 Geneva Convention on Prisoners of War stated that ‘[i]t shall be permissible for belligerents mutually to authorize each other, by means of special agreements, to retain in the camps doctors and medical orderlies for the purpose of caring for their prisoner compatriots’. The 1947 Conference of Government Experts adopted the following paragraph: ‘As from the outbreak of hostilities, belligerents may determine by special arrangement the percentage of personnel to be retained in captivity, in proportion to the number of prisoners of war.’[6] The draft adopted by the 1948 Stockholm Conference added that such a ‘special arrangement’ could also address ‘the distribution of said personnel in the camps’,[7] which became the final wording of Article 31(2).
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C. Paragraph 1: Selection of personnel for return
2260  Article 31(1) has a dual purpose. First, it regulates how the selection of personnel to be returned on the basis of Article 30 should preferably be made, by requiring that similarly situated persons are treated differently based upon certain considerations.[8] Second, it makes clear by which criteria this selection cannot be made. In this way, Article 31(1) protects medical and religious personnel who have fallen into enemy hands against potential arbitrariness in the decision-making process. It is important for all involved to have legal certainty on this point.
2261  Article 31(1) is closely linked to Article 30. Thus, where Article 31(1) speaks of ‘personnel for return’ without clarifying to whom or to where this return is to take place, it is referring to the return of the personnel ‘to the Party to the conflict to whom they belong’, as spelled out in Article 30(1).[9]
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1. Prohibited grounds for selection
2262  When selecting personnel for return under Article 30, the Party into whose hands the personnel have fallen is absolutely prohibited from allowing ‘considerations of race, religion or political opinion’ to play any role in the decision-making.[10] While no practice seems to exist with regard to the interpretation of these three criteria as far as Article 31 is specifically concerned, their meaning is self-explanatory.[11] The exhaustive list of criteria in Article 31 is less elaborate than that in Article 12 of the First Convention dealing with the prohibition of non-adverse distinction, with the former omitting ‘sex’, ‘nationality’ and the catch-all phrase ‘any other similar criteria’.[12]
2263  Thus, considerations of ‘nationality’, ‘sex’, age and ‘other similar criteria’ may be taken into account when selecting which personnel to return, but only when doing so is objectively justified, i.e. when these criteria do not qualify as an adverse distinction.[13] For example, if there are no longer any wounded or sick prisoners of war of a particular nationality, preference may be given to the medical and religious personnel of that nationality when selecting who is to return.[14] Similarly, the sex of the prisoners of war may be a deciding factor. On the basis of Article 12, as well as of similar provisions in the Third Convention, women who are wounded or sick ‘shall be treated with all consideration due to their sex’.[15] This requirement may justify retaining female medical or religious personnel to cater to the specific needs of female prisoners of war or, conversely, in the absence of such needs, returning them earlier than their male counterparts.
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2. Preferred grounds for selection
2264  The selection of personnel for return needs to be made ‘preferably according to the chronological order of their capture and their state of health’. As is clear from the use of ‘preferably’, these two criteria are neither obligatory nor exclusive. Thus, in a special agreement concluded on the basis of Article 31(2), the Parties to the conflict may decide to include additional or different criteria. If no such agreement exists, however, ‘the chronological order of their capture’ and ‘their state of health’ remain the sole criteria by which to determine the order of return of personnel covered by Article 30.
2265  Article 31(1) does not specify a hierarchy between the two criteria for return. However, when medical or religious personnel are themselves wounded or sick, they may not be able to perform their function of catering to the medical or spiritual needs of the prisoners of war. In that case, their retention on the basis of Article 28(1) may no longer be justified.[16] Thus, also in line with the purpose of Articles 28 and 30, priority for return may be granted to wounded or sick medical or religious personnel over able-bodied personnel who may have been captured earlier.
2266  The requirement that the selection be made on the basis of the ‘chronological order of their capture’ has been referred to as the ‘first-in/first-out approach’.[17]
2267  Article 31(1) speaks of the chronological order of ‘their’ capture and of ‘their’ state of health without specifying who exactly ‘they’ are. In order to interpret these references, two separate elements must be kept in mind. The first element is the scope of application ratione personae of Articles 24 and 26. These provisions not only cover doctors (general practitioners and specialists) but may also include other categories of personnel such as nurses, staff exclusively engaged in the administration of medical units and establishments, and military religious personnel.[18]
2268  The second element relates to the logic of the provisions in the First Convention regulating the fate of medical and religious personnel who have fallen into enemy hands (Articles 28 and 30): retaining some or all of such personnel is only lawful if justified by, and for as long as there are, medical or spiritual needs of the prisoners of war.[19] Thus, the sole guiding factor in assessing whether medical and religious personnel can be retained remains those needs and if and how they can be addressed by the specific skills of the persons in question.[20] Inherently, this will be a context-specific assessment. Depending on the facts of the case, for example, there may be no need to retain any administrative staff but a need to retain some nurses. The reference to ‘their’ is, therefore, to be applied to members of the same professional group: doctors vis-à-vis doctors, nurses vis-à-vis nurses, chaplains vis-à-vis chaplains, and so on. In other words, the criteria of ‘chronological order of capture’ and of ‘state of health’ cannot be applied vis-à-vis the entirety of the personnel in enemy hands. Thus, if the medical situation of the wounded and sick evolves in such a way that it is no longer required to retain all surgeons, the selection of which surgeons are to be returned has to be made on the basis of the surgeons’ chronological order of capture and state of health. This reasoning means that a Party to the conflict cannot seek to retain a surgeon to work as a nurse.[21] Conversely, the methodology of looking at the professional reference group instead of at the entirety of the medical and religious personnel in enemy hands also precludes that persons qualify for return on the basis of the chronological order of their capture while their services are still objectively required in view of the medical or spiritual needs of the prisoners of war.
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D. Paragraph 2: Special agreements on retention
1. General considerations
2269  Article 31(2) allows the Parties to the conflict, from the outbreak of hostilities, to agree on (i) ‘the percentage of personnel to be retained, in proportion to the number of prisoners’ and (ii) ‘the distribution of the said personnel in the camps’.[22] This may allow for a smoother implementation of aspects of the Convention that may otherwise cause dispute between the Parties to the conflict.
2270  An agreement concluded on the basis of Article 31(2) constitutes a special agreement in the sense of Article 6 and therefore needs to comply with the conditions of Article 6.[23] In any event, the agreement also needs to respect the prohibition under Article 31(1) of discrimination on the basis of ‘race, religion or political opinion’.[24]
2271  As indicated by the word ‘may’, the conclusion of a special agreement on the basis of Article 31(2) is not compulsory. Special agreements may be concluded by means of direct contacts between the Parties to the conflict or indirect contacts through a neutral intermediary such as the ICRC.[25] Since 1949, no special agreements appear to have been concluded on the basis of Article 31(2). In this respect, Resolution 3 of the 1949 Diplomatic Conference had noted, explicitly referring to the opening words of Article 31(2) – ‘[a]s from the outbreak of hostilities’ – that ‘agreements may only with difficulty be concluded during hostilities’. With this in mind, the Conference requested that the ICRC prepare a model agreement on the subject. This became the Model Agreement Relating to the Retention of Medical Personnel and Chaplains.[26]
2272  A Party to the conflict may only exercise the right to retain the enemy’s medical and religious personnel if the conditions of Article 28(1) are met, i.e. ‘in so far as the state of health, the spiritual needs and the number of prisoners of war require’. The fact that Article 31(2) invites the Parties to the conflict to agree upon some of the practicalities involved in this exercise does not undermine the validity of these conditions: any special agreement concluded on the basis of this provision needs to respect the conditions of Article 28(1).[27] Similarly, irrespective of whether or not such a special agreement has been concluded, the duty remains to return those who may not or no longer be retained.[28] Thus, the conclusion of a special agreement does not alter the legal framework applicable on the basis of Articles 28 and 30.
2273  Ideally, in order to ensure that different perspectives are identified and addressed in the agreements, negotiations should include persons of different genders and backgrounds.[29]
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2. Aspects which can be regulated by special agreement
2274  The first aspect with regard to which Parties to the conflict may conclude a special agreement is the ‘percentage of personnel to be retained, in proportion to the number of prisoners’.[30] Such an agreement has the advantage of providing both sides with legal certainty as to the ratios that are mutually considered permissible.
2275  ‘[P]risoners’ refers only to the prisoners of war already in the hands of the enemy. Thus, as is the case with the unilateral exercise of the right to retain medical and religious personnel, ‘anticipatory retention’ is prohibited even when provided for in a special agreement.[31] Such an agreement, for example when concluded at the beginning of an armed conflict with a view to the hypothetical, future capture of prisoners of war, would run counter to the purpose of Articles 28 and 30 of the First Convention, which is to ensure that, at all times, the expertise of medical and religious personnel can continue to serve the needs of the wounded and sick, and would thus be unlawful.
2276  The Model Agreement Relating to the Retention of Medical Personnel and Chaplains suggests different ratios between the number of prisoners of war and the number and type of medical and religious personnel who can be retained to cater for their medical and spiritual needs.[32] For a contemporary analysis of how many, and which type of, medical personnel may be retained in relation to a given number of prisoners of war, see the commentary on Article 28, section C.
2277  As with the methodology for implementing Article 31(1), the approach here should take into account the professional qualifications of the various personnel to be retained (x number of nurses per x number of prisoners of war, x number of religious personnel per x number of prisoners of war, etc.).[33] In line with the discussion under Article 31(1) regarding whether specialists can be retained, the third paragraph of Article 3 of the Model Agreement Relating to the Retention of Medical Personnel and Chaplains invites Parties to the conflict to conclude agreements concerning the ‘non-retention or immediate repatriation of physicians who are considered to be highly specialized, and whose presence in their country of origin is considered necessary for public health’.
2278  The second aspect with regard to which Parties to the conflict may conclude a special agreement is the distribution of the personnel in the camps. This possibility underscores the fact that retained personnel continue to be in the service of their Power of origin.[34] With regard to military religious personnel, Article 35 of the Third Convention states that chaplains in enemy hands, including when they are retained to assist prisoners of war, ‘shall be allocated among the various camps and labour detachments containing prisoners of war belonging to the same forces, speaking the same language or practising the same religion’.
2279  Special agreements governing the retention of medical and religious personnel need not be restricted to the two aspects mentioned explicitly in Article 31(2). Provided its conditions are complied with, Article 6 allows for the conclusion of special agreements on ‘all matters concerning which [the High Contracting Parties] may deem it suitable to make separate provision’.[35] Since Articles 28, 30 and 31 of the First Convention leave many practical yet important questions unaddressed, a special agreement may be a suitable instrument to determine the way in which such questions are to be dealt with. This may be the case, for example, for settling the question whether the detention of auxiliary medical personnel as prisoners of war on the basis of Article 29 should lead to a decrease in the number of personnel retained on the basis of Article 28;[36] or in order to establish the procedures for repatriation.[37]
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Select bibliography
See the select bibliography of the commentary on Article 28 of the First Convention.

1 - For details, see the commentaries on Article 28, paras 6–8, and Article 30, para. 5.
2 - Report of the Preliminary Conference of National Societies of 1946, p. 34.
3 - Report of the Conference of Government Experts of 1947, p. 38.
4 - Draft Conventions submitted to the 1948 Stockholm Conference, p. 18, draft article 24.
5 - Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II-B, p. 220.
6 - Report of the Conference of Government Experts of 1947, p. 19.
7 - Draft Conventions adopted by the 1948 Stockholm Conference, p. 19.
8 - See also Gabor Rona and Robert J. McGuire, ‘The Principle of Non-Discrimination’, in Andrew Clapham, Paola Gaeta and Marco Sassòli (eds), The 1949 Geneva Conventions: A Commentary, Oxford University Press, 2015, pp. 191–205, at 197.
9 - Whereas the English version of the 1949 Geneva Conventions uses the wording ‘for return’, the French version speaks of ‘le renvoi à la Partie au conflit’. The absence of the words ‘to the Party to the conflict’ in the English version of Article 31(1) can only be explained as an oversight by the drafters, in view of the close relationship between Article 30 and Article 31(1). Thus, both equally authentic versions of the Geneva Conventions express the common will of the drafters. On this point, see the commentary on Article 55, para. 3128.
10 - See also Model Agreement Relating to the Relief of Medical Personnel and Chaplains, Article 3.
11 - For a human rights law perspective, see UN Human Rights Committee, General Comment No. 18: Non-discrimination, 10 November 1989.
12 - For its part, Article 12 lists fewer criteria than Article 9(1) of Additional Protocol I. See also Gabor Rona and Robert J. McGuire, ‘The Principle of Non-Discrimination’, in Andrew Clapham, Paola Gaeta and Marco Sassòli (eds), The 1949 Geneva Conventions: A Commentary, Oxford University Press, 2015, pp. 191–205, at 197.
13 - For the concept of ‘adverse distinction’, see the commentary on Article 12, section F.1.c.
14 - On the question of whether persons covered by Articles 24 or 26 can be retained in order to care for the medical or spiritual needs of prisoners of war of a different Party to the conflict, see the commentary on Article 28, para. 2184.
15 - For references to the specific needs of female prisoners of war in the Third Convention, see Articles 3(1), 14(2), 16, 25(4), 29, 49(1), 88(2), 88(3), 97(4) and 108(2) of that convention.
16 - See Model Agreement Relating to the Retention of Medical Personnel and Chaplains, Article 10. For further information, see the commentary on that article, p. 13. See also the logic at work in Article 4 of the Model Agreement Relating to the Relief of Medical Personnel and Chaplains. For the text, origins and status of the Model Agreements, see the commentary on Article 28, para. 2159.
17 - United States, Law of Armed Conflict Deskbook, 2012, p. 54.
18 - For a discussion of these provisions’ scope of application ratione personae, see the commentaries on Article 24, section C, and Article 26, section D.1.
19 - For details, see the commentaries on Article 28, section C, and Article 30, section C.1.
20 - This is without prejudice to the rule in Article 28(4).
21 - See Model Agreement Relating to the Retention of Medical Personnel and Chaplains, Article 3, paras 1 and 2. During the 1949 Diplomatic Conference, a proposal was made (by the French delegation) to include the following sentence: ‘Specialists for whose services there is no special call in the camps shall have priority in repatriation.’ The proposed amendment was not accepted, but can also be considered redundant in that it flows in any case from a consistent application of Articles 28(1) and 31(1). For details, see Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II-A, p. 171.
22 - An alternative reading of Article 31(2) would be that the special agreement only relates to the ‘percentage of personnel to be retained’ and that this percentage is to be determined ‘in proportion to the number of prisoners’ as well as ‘in proportion to’ the ‘distribution of the said personnel in the camps’. This reading would not make sense, however: the percentage of personnel to be retained cannot depend on the distribution of personnel (already) in the camps. The understanding that the special agreement can address ‘the percentage of personnel to be retained, in proportion to the number of prisoners’ and, separately, that it can address how said personnel are to be distributed in the camps, is corroborated by the Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II-A, Report of Committee I, p. 196.
23 - Article 31(2) explicitly uses the term ‘special agreement’, while Article 6(1) explicitly refers to Article 31.
24 - See Gabor Rona and Robert J. McGuire, ‘The Principle of Non-Discrimination’, in Andrew Clapham, Paola Gaeta and Marco Sassòli (eds), The 1949 Geneva Conventions: A Commentary, Oxford University Press, 2015, pp. 191–205, at 197.
25 - See also Jean-Pierre Schoenholzer, ‘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, at 173: ‘A défaut d’accord, la puissance détentrice déterminera le pourcentage sur la base de la raison, de l’équité et de l’expérience.’ (‘In the absence of an agreement the Detaining Power will determine the percentage on the basis of reason, equity and experience.’)
26 - For details on the background and status of this Model Agreement, see the commentary on Article 28, para. 2159.
27 - For a specific example, see the discussion on ‘anticipatory retention’ in para. 2274 and the commentary on Article 28, para. 2164.
28 - See Minutes of the Conference of Government Experts of 1947, Committee I, Vol. II, Tome 1, p. 186, remarks by Jean Pictet in reaction to a proposal to delete what is now Article 31(2), with a proposal for an additional sentence.
29 - 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.
30 - This wording mirrors the third of the three criteria in Article 28(1) that can be used to justify the retention of medical and religious personnel: ‘the state of health, the spiritual needs and the number of prisoners of war’.
31 - As to the unlawfulness of ‘anticipatory retention’ if exercised unilaterally by a Party to the conflict, see para. 2274 and the commentary on Article 28, para. 2164. A special agreement allowing the Parties to the conflict to resort to ‘anticipatory retention’ would equally be unlawful as it would conflict with the conditions of the second sentence of Article 6, according to which ‘no special agreement shall adversely affect the situation of … members of the medical personnel or of chaplains, as defined by the present Convention, nor restrict the rights which it confers upon them’.
32 - See Model Agreement Relating to the Retention of Medical Personnel and Chaplains, Article 2. See also United States, Law of Armed Conflict Deskbook, 2012, p. 54. For historical reference purposes, see Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II-A, p. 170 (France).
33 - See para. 2267. See also Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II-A, pp. 126–127 (France).
34 - Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II-A, p. 196.
35 - For details, see the commentary on Article 6, para. 959.
36 - See the commentary on Article 29, paras 2212–2214 and the commentary on Article 45, para. 2721.
37 - See e.g. United States, Law of War Manual, 2015, paras 4.10.2 and 9.1.2.2.



REFERENCE DOCUMENTS
File TypeFile Name
ModelAgreementEnglishVersion.pdf