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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.
-- RETURN OF PERSONNEL BELONGING TO
We have seen, when discussing Article 27
, the conditions under which a relief society of a neutral country may lend the assistance of its staff to the Medical Service of a belligerent.
[p.268] Article 32 is designed to cover cases in which the personnel concerned fall into the hands of the armed forces opposed to the belligerent who is receiving such assistance.
PARAGRAPH 1 -- PROHIBITED RETENTION
This provision prohibits the retention of neutral medical personnel.
While the Diplomatic Conference profoundly modified the position of medical personnel of belligerent countries by instituting a legalized power of retention, the general rules of international law relating to neutrals obviously precluded any similar change in the status of medical personnel from neutral countries. The latter may in no circumstances be retained against their will; they remain neutrals in their new country of residence just as much as they were in the one to which they went of their own accord. In giving medical aid to a belligerent, neutral volunteers (who by definition are not even members of the armed forces in their own country, but of a private relief society) are not incorporated into the belligerent forces, as would be men who enlisted in them as combatants. Article 27
, as we have seen, provides expressly that in no circumstances shall the medical assistance of neutrals be considered as interference in a conflict. (1)
If they cannot be retained, they cannot with even greater reason be regarded as prisoners of war; they should rather be treated as guests.
The Article dealing with such personnel has therefore remained almost identical with the corresponding Article of the 1929 Convention (Article 12
). But whereas it applied then to all medical personnel, whether they belonged to belligerent forces or to a neutral country, it now relates only to neutral volunteers.
PARAGRAPH 2 -- RETURN OF PERSONNEL
Paragraph 2 lays down that neutral personnel are to have permission to return to their country as soon as a route for their return is open and military considerations permit. We refer in this connection to our remarks on Article 30, paragraph 1
. (2) The place to which they return [p.269] is to be their home country or, if this is not possible, the country in whose service they were.
The paragraph begins, however, as did the 1929 text, with the words "unless otherwise agreed", which must be taken to mean that the rule of immediate repatriation need not necessarily be followed. The personnel may wish to continue their relief work, and it was not desirable that the Convention should appear to discourage them from so doing.
With whom should the Detaining Power come to an understanding? In the first place with the actual personnel, who will continue to give voluntary help as before, and possibly also with the relief society to which they belong. Then again, it is conceivable that the neutral Power which gave its consent to the sending of medical personnel to the first belligerent country, should also be consulted. In any case, the terms of an agreement cannot affect the rights which every citizen of a neutral country possesses when on the territory of a foreign State.
What we have said above shows that there can be no question of the retention of neutral volunteers, in the sense in which the medical personnel of a belligerent may be retained. Neutrals will enjoy a very special status, and no compulsion may be exercised on them.
PARAGRAPH 3 -- EMPLOYMENT PENDING RETURN
Pending return, neutrals are authorized to continue their work under the direction of the adverse Party; they are preferably to be engaged in the care of the wounded and sick of the belligerent in whose service they were.
This provision calls for no comment, except that the phrase "under the direction of" has not here the same significance as when used in connection with the medical personnel of belligerents; it refers to a direction freely consented to.
PARAGRAPH 4 -- PERSONAL BELONGINGS
Paragraph 4 is similar to Article 30, paragraph 3
. (3) Its scope is somewhat wider, however, since it mentions arms and means of transport [p.270] among the items of personal property which the medical personnel in question may take with them when they leave. The return of means of transport is conditioned by the words "if possible"; the reference can obviously only be to cases of actual physical impossibility.
PARAGRAPH 5 -- TREATMENT OF PERSONNEL
Paragraph 5 offers neutral volunteers certain advantages which the 1929 Convention also accorded to the medical personnel of belligerents, but which the 1949 Conference did not find it possible to retain in the case of the latter.
Thus the food, lodging and pay of neutral medical personnel awaiting repatriation are not to be determined by the Prisoners of War Convention, as will be the case in future for the medical personnel of belligerents, but will depend upon the provision made for the corresponding medical personnel of the forces into whose hands the neutrals have fallen. The captor State is to treat neutral medical personnel and his own medical personnel alike. This solution is logical, and in conformity with the special status of neutral volunteers.
The Conference was careful to add that the food should in any case be sufficient as regards quantity, quality and variety to keep the said personnel in a normal state of health. This formula is modelled on that used in the Third Geneva Convention (Article 26, paragraph 1
) in reference to the food of prisoners of war.
* (1) [(1) p.268] See above, page 232;
(2) [(2) p.268] See above, page 260;
(3) [(1) p.269] See above, page 263;
See the Commentary of 2016
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