Treaties, States Parties and Commentaries
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Commentary of 1960 

The purpose of this Article is to ensure spiritual assistance for prisoners of war who, despite the facilities provided by Articles 33 , 35 and 36 , have no access to a minister of their faith.
In such a case, spiritual assistance may be given by a minister belonging to another denomination, or even by a layman (1), if such a [p.235] course is feasible from a confessional point of view. Several delegations considered, however, that there was a risk that this might give the Detaining power an opportunity of introducing among prisoners of war a person who, although fully qualified from the religious point of view, might actually be a propaganda agent. The Article therefore specifies that the appointment shall be made at the request of the prisoners concerned and shall be subject to the approval of the Detaining Power and, wherever necessary, of the local religious authorities (2).
The text is rather ambiguous -- probably intentionally so -- and does not specify by whom the appointment is to be made. Since the person in question may be chosen either from among the prisoners of war or from the civilian population of the country of detention, one might expect the proposal to be made by the prisoners, by the military authorities, or by the local religious authorities, at the request of the prisoners concerned.
It seems reasonable that the actual appointment should, if possible, be made by the competent religious authorities, or, in the absence of religious authorities, by the community of prisoners. The appointment is, of course, subject to the approval of the Detaining power.
The agreement of the prisoners involves no special problems. It will be given by a majority vote and may at any time be withdrawn, if the majority so desire. The question is rather more delicate in regard to the Detaining Power. A similar situation arises in connection with Article 79, paragraph 4 , which concerns the election of prisoners' representatives and states: "Every representative elected must be approved by the Detaining Power before he has the right to commence his duties...". But the second sentence of the same paragraph goes on to say: "Where the Detaining power refuses to approve a prisoner of war elected by his fellow prisoners of war, it must inform the Protecting Power of the reason for such refusal". This clause limits arbitrary action. Although there is no such reference in Article 37, it would be desirable that the Detaining power should follow the procedure of Article 79 regarding prisoners' representatives if it refuses to approve the appointment of a minister of religion or a qualified layman pursuant to
the present Article.
The concluding sentence requires the minister or layman thus appointed to comply with all regulations in the interests of discipline and military security. This phrase, which has no exact equivalent in the provisions relating to exercise of religion by prisoners of war, was included because, in most instances, the persons concerned will not be [p.236] members of the camp community. Once they enter the camp, they must nevertheless comply with the regulations, in accordance with this clause. As a reciprocal measure, such persons should be afforded the various facilities referred to in Articles 33 and 34 to 36 by virtue of the duties which they perform.

* (1) [(2) p.234] This reference was inserted by the 1949
Diplomatic Conference in order to meet a point raised by
the Indian Delegate. See ' Final Record of the Diplomatic
Conference of Geneva of 1949 ', Vol. II-A, p. 439;

(2) [(1) p.235] See ' Final Record of the Diplomatic
Conference of Geneva of 1949 ', Vol. II-A, pp. 332-333;