Treaties, States Parties and Commentaries
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Commentary of 2017 
Article 37 : Protection of medical and religious personnel of other ships
Text of the provision*
(1) The religious, medical and hospital personnel assigned to the medical or spiritual care of the persons designated in Articles 12 and 13 shall, if they fall into the hands of the enemy, be respected and protected; they may continue to carry out their duties as long as this is necessary for the care of the wounded and sick. They shall afterwards be sent back as soon as the Commander-in-Chief, under whose authority they are, considers it practicable. They may take with them, on leaving the ship, their personal property.
(2) If, however, it proves necessary to retain some of this personnel owing to the medical or spiritual needs of prisoners of war, everything possible shall be done for their earliest possible landing.
(3) Retained personnel shall be subject, on landing, to the provisions of the Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field of August 12, 1949.
* Paragraph numbers have been added for ease of reference.
Reservations or declarations
None
Contents

A. Introduction
2497  In addition to the religious, medical and hospital personnel of hospital ships, covered by Article 36, there may be personnel performing the same duties on board warships, other navy vessels, and ships of the merchant marine. Medical personnel may also be present, for example, on board coast guard vessels.
2498  When such persons are assigned to the care of wounded, sick and shipwrecked members of the armed forces or of other persons protected by the Second Convention, they are, when they fall into enemy hands, subject to the a retention regime. Article 37 sets out the circumstances and conditions of that regime, which is similar to the one foreseen under the First Convention.[1]
2499  When they are in enemy hands at sea, religious, medical and hospital personnel may continue to tend to the wounded and sick for as long as is necessary. Once they are no longer needed in that capacity, they must be sent back, unless they have to be retained by the Party into who hands they have fallen to care for prisoners of war detained on land by that Party.
2500  Persons covered by Article 37 are one of the categories of persons protected under the Second Convention.[2] Therefore, the acts listed in Article 51 of the Second Convention, if committed against them, may qualify as grave breaches of the Convention.
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B. Historical background
2501  The origins of the first paragraph of Article 37 can be traced back to the 1868 Additional Articles to the 1864 Geneva Convention,[3] the 1899 Hague Convention (III)[4] and the 1907 Hague Convention (X).[5] Paragraphs 1 to 3 of Article 64 of the 1913 Oxford Manual of Naval War contain similar rules.[6]
2502  Paragraphs 2 and 3 of Article 37, for their part, have no precursors in any previous treaty.
2503  The Commission of Naval Experts convened by the ICRC in 1937 to revise the 1907 Hague Convention (X) proposed three quite elaborate provisions. These texts formed the basis of all intermediate drafts between 1946 and 1949, which contained elements of what eventually became the shorter Article 37.[7]
2504  The draft submitted to the 1948 International Conference of the Red Cross in Stockholm contained three articles on the subject. These restated the essential rules governing the retention of medical and religious personnel, but were dropped in favour of a simpler cross-reference (in Article 37(3) of the Second Convention) to the relevant rules of the First Convention.
2505  During the Diplomatic Conference in 1949, an important change was made to the scope of this provision: while all the previous iterations spoke of personnel of ‘any captured vessel/ship’, the new approach ‘pu[t] on the same footing warships, merchant ships and other vessels. The Committee wished to restrict protection exclusively to personnel engaged for the medical and spiritual assistance of the persons protected by the present Convention.’[8]
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C. Scope of application of Article 37
1. Persons covered by Article 37
2506  Article 37 applies only to the ‘religious, medical and hospital personnel assigned to the medical or spiritual care of the persons designated in Articles 12 and 13’. This phrase contains three cumulative requirements.
2507  First, the persons need to be ‘assigned’. This requirement, which introduces an element of formality, presupposes a decision by the competent public authorities (e.g. the Ministry of Defence) that the persons will discharge the functions described. While the Convention does not stipulate what form this decision should take, one indication as to whether persons are covered will be if they wear the ‘armlet bearing the distinctive emblem’ in the sense of Article 42(1). For a person to be covered by Article 37, it is immaterial whether they are a member of the armed forces: the relevant criterion is not their status but the fact of their having been assigned by the competent authorities to the care of the specified categories of persons. As discussed in the commentary on Article 36, a State may decide to assign, on this basis, the personnel of coastal rescue craft and installations, thus ensuring that they will be covered by Article 37.[9]
2508  The Second Convention does not address whether combatants may be assigned to medical or hospital duties on a temporary basis, unlike the First Convention, in which this possibility is covered by Article 25 (auxiliary medical personnel). However, the concept of temporary assignment was envisaged in the preparatory work for the Convention.[10] Furthermore, Article 37 does not specifically require that the assignment be on a permanent basis. For its part, Additional Protocol I puts personnel with a permanent or temporary assignment on an equal footing provided that the assignment is exclusive to medical duties.[11] It would therefore seem that combatants temporarily assigned to medical or hospital duties are protected under Article 37.
2509  Prior to falling into enemy hands, persons covered by Article 37 may be on board a vessel such as a warship or a merchant vessel having enemy character.[12] Article 37 does not, however, require that they be assigned to work on board a vessel. Persons covered by Article 37 may also initially have been on board a medical aircraft.[13]
2510  Second, only those assigned as ‘religious, medical and hospital personnel’ are covered.[14] Importantly, unlike under Article 36, the protection conferred by Article 37 does not apply to the ‘crews’ of the vessels concerned.[15] When these ‘crews’ fall into enemy hands at sea, their status will be individually determined on the basis of the Second, Third or Fourth Conventions. The same holds true for any other personnel not ‘assigned to the medical or spiritual care of the persons designated in Articles 12 and 13’. Depending on the circumstances, this may be the case for the personnel of vessels covered by Article 27.[16]
2511  Third, only those ‘assigned to the medical or spiritual care of the persons designated in Articles 12 and 13’, i.e. to the care of wounded, sick or shipwrecked members of the armed forces and other persons listed in Article 13, are covered by Article 37. In this context, it must also be kept in mind that Article 13(5) of the Second Convention extends the coverage of the Convention, under certain conditions, to (civilian) ‘[m]embers of crews … of the merchant marine and the crews of civil aircraft’. For its part, Article 8 of Additional Protocol I has rendered it irrelevant whether the wounded and sick being looked after by the medical and religious personnel are ‘military’ or ‘civilian’.
2512  Thus, Article 37 protects only personnel looking after the medical and spiritual needs of persons covered by the Second Convention. At the 1949 Diplomatic Conference, it was assumed that persons not covered by Article 37 but who are assigned to medical or religious duties would have their status determined on the basis of the Fourth Convention.[17]
2513  For its part, Additional Protocol I has extended the scope of application of Article 37 to medical and religious personnel on medical ships and craft other than hospitals ships and ships used for the conveyance of medical equipment.[18]
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2. When falling into the hands of the enemy
2514  Article 37 applies when persons covered by this provision ‘fall into the hands of the enemy’. Based on the general scope of application of the Second Convention, this pertains only to their falling into enemy hands at sea.[19] Before the submission of the draft conventions to the 1948 Stockholm Conference, the scope of application of the precursors to Article 37 was limited to persons falling into enemy hands as a result of the capture of a vessel. This is no longer the case: the circumstances in which a person falls into enemy hands are immaterial.[20]
2515  Whereas the ‘wounded, sick and shipwrecked of a belligerent who fall into enemy hands shall be prisoners of war’ (see Article 16), persons covered by Article 37 may not be deemed prisoners of war.[21] In line with the more elaborate provision in the First Convention, they ‘shall at least benefit by all the provisions’ of the Third Convention.[22]
2516  Article 37 uses the formula ‘if they fall into the hands of the enemy’. If a national of a neutral Power meets the personal requirements for the application of Article 37, the term ‘enemy’ must be understood as referring to the enemy of the Power for which that person was working.[23]
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D. Entitlement to be respected and protected
2517  The core substantive obligation of Article 37 is that persons covered by that provision must be respected and protected ‘if they fall into the hands of the enemy’.[24]
2518  Article 37 remains silent as to their fate when they have not fallen into enemy hands. However, since they are religious, medical and hospital personnel, they must be respected and protected on the basis of customary international humanitarian law.[25] When it comes to their being attacked, directly or indirectly, this is regulated by the relevant rules of Additional Protocol I regarding the conduct of hostilities, as well as by customary international law.[26]
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E. Entitlement to continue to take care of the wounded and sick on board
2519  When persons covered by Article 37 fall into enemy hands at sea, on the basis of paragraph 1 of this provision, ‘they may continue to carry out their duties as long as this is necessary for the care of the wounded and sick’. As long as paragraph 1 applies, they may not be retained to care for prisoners of war on land, a potentiality which is regulated by paragraph 2, and which requires a separate decision to that effect, based on the needs of prisoners of war in land-based facilities. The fact that Article 37(1) is limited to the provision of care on board a ship can be deduced from the last sentence of that paragraph, which refers to the medical and religious personnel ‘leaving the ship’.
2520  The implication of the words ‘may continue’ is that the Party into whose hands persons covered by Article 37 have fallen may not prohibit them from carrying out their medical or religious duties at sea, i.e. on board the vessel they are on.[27]
2521  Article 37 is silent as to how that work is to be organized. However, Article 28 of the First Convention provides a relevant framework for regulating the work of medical and religious personnel, i.e. under the authority of the competent service of the Party into whose hands they have fallen. In turn, this Party must ensure that they can work in accordance with their professional ethics.[28] Reference may also be made to the logic underpinning draft article 19 put forward by the 1937 Commission of Naval Experts: ‘Belligerents shall see that [the personnel covered by what is now Article 37], while in their hands, receive the same rations, the same quarters, in so far as accommodation on board permits, the same allowances, and the same pay as the corresponding personnel of their own navy. On the outbreak of hostilities they shall agree as to the corresponding ranks in their respective medical services.’[29] Commenting on the phrase ‘in so far as accommodation on board permits’, the Commission added that ‘[i]n practice, indeed, it will not always be possible, space on board a war vessel being limited, to give captured medical personnel the same quarters as the corresponding personnel of the captor’.[30]
2522  The category of ‘wounded and sick’ includes those who were already in the care of the medical and religious personnel and who fell into enemy hands at the same time.[31] The performance of medical and spiritual duties must not conflict with the principle of non-discrimination, which informs the entire regime of care for the wounded and sick.[32] Thus, in line with the principle of impartiality of care, the notion of ‘wounded and sick’ also covers those persons who were already on board the vessel on which the personnel find themselves. These may include wounded and sick persons of enemy nationality. Furthermore, it is immaterial whether or not these persons belong to the categories referred to in Article 13.
2523  Once the medical or religious expertise of persons covered by Article 37 is no longer ‘necessary for the care of the wounded and sick’, they may not be kept on board but ‘shall afterwards be sent back as soon as the Commander-in-Chief, under whose authority they are, considers it practicable’. For example, there may not be any wounded or sick persons on board the vessel on which the medical and hospital personnel find themselves upon falling into enemy hands. Or the wounded and sick on board may quickly recover. At all times, however, the decision remains in the hands of the ‘Commander-in-Chief’.[33]
2524  The Second Convention does not define the term ‘Commander-in-Chief’.[34] In the terminology used by many armed forces, the ‘Commander-in-Chief’ does not refer to an officer commanding a vessel at sea, but to a high, or even the highest, authority in the military chain of command, who is directing the naval (or joint-service) operation (and who is usually based ashore). In some States, this term may refer to the head of State commanding the armed forces.
2525  In practice, this ‘Commander-in-Chief’ remains of course entitled to delegate the responsibility foreseen under Article 37(1) to a lower level. Such delegation ought to be to a level of command appropriate enough to maintain an overview of the full picture, i.e. to remain able to ensure good faith compliance with Article 37. The officer commanding the vessel on board which persons covered by Article 37 find themselves does not necessarily have such an overview, particularly when it comes to the ability to organize their return (Article 37(1))[35] or to the assessment that the ‘medical or spiritual needs of prisons of war’ ashore justify retaining them on the basis of Article 37(2).[36]
2526  Indeed, although the ‘Commander-in-Chief’ is singled out as the person responsible for deciding when it is ‘practicable’ to send back the persons covered by Article 37, ultimate responsibility under international law lies with the Parties to the conflict.
2527  The words ‘sent back’ were chosen deliberately in order to make it clear that it is not just a matter of setting these personnel free in a port. The Party into whose hands they have fallen has an obligation to organize and facilitate their return.[37] No guidance is given in the Second Convention regarding which Party they are to be sent back to. This, too, was deliberate: a proposal to clarify that they must be returned ‘to the belligerent in whose service they were’ or ‘to the belligerent on whom they depend’ was rejected.[38] The drafters of the Second Convention felt that there may be situations in which doing so would not be desirable, for example if the vessel would be required to pass through enemy-controlled waters, thus putting it in danger. Moreover, on the basis of the applicable rules of international law, the facts may call for a different solution.[39]
2528  The requirement that the personnel covered by Article 37 ‘shall be sent back’ applies ‘as soon as the Commander-in-Chief … considers it practicable’, i.e. as soon as it is ‘able to be done or put into practice’.[40] While this decision remains in the hands of the designated authority, it must be implemented in good faith. One exception to the requirement that the personnel ‘be sent back’ can be found in the text, i.e. when they may be retained on the basis of Article 37(2). A second exception arises when the sending back would be against the individual’s will. A person covered by Article 37 who refuses to return acquires the status of prisoner of war and will be covered by the Third Convention.[41]
2529  When medical and religious personnel are sent back, ‘[t]hey may take with them, on leaving the ship, their personal property’.[42] Thus, objects they were carrying with them at the time they fell into enemy hands, and which are the property of the Party to which they belong, or of a voluntary aid society acting on the basis of Articles 24 or 25, do not qualify on the basis of this provision: they cannot be taken with them on the personnel’s departure. Similarly, objects given to medical or religious personnel by the Power on which they depend for the exercise of their duties cannot be taken with them: these are not ‘their personal property’. With regard to such objects, arguably the logic underpinning Articles 33(2) and 35(2) of the First Convention can be considered to apply mutatis mutandis. Thus, while such objects remain in enemy hands, they must continue to be used for the care of the wounded and sick.[43]
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F. Retention for prisoners of war on land
2530  When persons covered by Article 37 are no longer required to cater to the needs of the wounded and sick on board, a Party to the conflict may also decide that the skills of these persons are required to minister to the medical or spiritual needs of prisoners of war (of whatever nationality)[44] who it detains on land. In such cases, on the basis of Article 37(2), that Party is entitled to decide that it needs to retain them.[45]
2531  The relevant test is a stringent one, namely necessity.[46] In this context, it needs to be kept in mind that the rule set out in Article 28(4) of the First Convention, i.e. that none of the provisions of the retention regime ‘shall relieve the Detaining Power of the obligations imposed upon it with regard to the medical and spiritual welfare of the prisoners of war’, is equally relevant here. While the retention regime of the First Convention does not apply as a matter of law to retained personnel for as long as they are at sea, the provisions of the First Convention on the retention regime are relevant for interpreting the Second Convention.[47]
2532  The state of health, spiritual needs and number of prisoners of war are inherently context-specific. Therefore, the extent to which retention is lawful cannot be determined in the abstract. For instance, the retention of religious personnel may be called for if the Detaining Power’s own religious personnel and the prisoners of war are of different faiths, as it would be inappropriate in such a case for the Detaining Power to make its own religious personnel available. Conversely, religious personnel of a particular denomination cannot be retained in order to look after the spiritual needs of prisoners of war of a different denomination.
2533  Article 37(2) explicitly refers to the need to retain ‘some of this personnel’. Thus, in line with the ‘necessity’ threshold, the matter is framed neither in terms of triggering an entitlement to retain all personnel, nor of creating an obligation to release all of them. Everything depends on the circumstances. The decision as to the number and qualifications of the persons who can be retained will depend on the specific medical and religious needs of the prisoners of war. Article 31 of the First Convention provides useful guidance in this respect.
2534  Once the decision to retain some members of the medical or religious personnel has been reached, ‘everything possible shall be done for their earliest possible landing’. The double use of the word ‘possible’ indicates that implementation of this provision will be fact-specific.
2535  In particular, ‘personnel thus retained shall not be deemed prisoners of war’, but ‘shall at least benefit by all the provisions’ of the Third Convention.[48] Further, while waiting to be sent back or to be brought to land, they should be entitled to the provisions of the retention regime concerning pay.[49] While Article 37(2) does not explicitly say so, it is logical to consider that the last sentence of Article 37(1) applies mutatis mutandis once they leave the ship.
2536  In accordance with Article 37(3), once retained personnel are on land, the rules of the First Convention apply.[50] This paragraph provides a practical illustration of the principle contained in Article 4(2) of the Second Convention that ‘[f]orces put ashore shall immediately become subject to’ the First Convention.[51] The draft submitted to the 1948 Stockholm Conference, too, included a lengthy proposed text concerning the retention regime in the First Convention. In the end, those provisions were deleted for two reasons: first, to simplify the text of the Second Convention, and second, because it is not the authorities at sea who will be called upon to implement the full panoply of provisions comprising the retention regime.[52]
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Select bibliography
Doswald-Beck, Louise, ‘Vessels, Aircraft and Persons Entitled to Protection during Armed Conflicts at Sea’, British Yearbook of International Law, Vol. 65, 1994, pp. 211–301.
Genet, Raoul, ‘La révision de la Xe Convention de La Haye relative à la guerre sur mer’, a partwork collection published in the Revue internationale française du droit des gens, No. 7, pp. 75–80 (originally published as a series of articles in the Revue from 1951 to 1953).

1 - First Convention, Articles 28, 30 and 31. See also Third Convention, Article 33.
2 - With regard to their identification, see Article 42. For the relevant provisions in Additional Protocol I, see Articles 8(c)(i) and 43(2).
3 - See Additional Articles relating to the Condition of the Wounded in War (1868), Articles 7 and 8.
4 - See Hague Convention (III) (1899), Article 7.
5 - See Hague Convention (X) (1907), Article 10.
6 - Article 64(1)–(3) of the 1913 Oxford Manual of Naval War read: The religious, medical, and hospital staff of every vessel taken or seized is inviolable, and its members may not be made prisoners of war. On leaving the ship they take away with them the objects and surgical instruments which are their own private property. This staff shall continue to discharge its duties while necessary, and can afterwards leave, when the commander in chief considers it possible. The belligerents must guarantee to the said staff, when it has fallen into their hands, the same allowances and pay which are given to the staff of corresponding rank in their own navy.
7 - See Naval Expert Report of 1937, draft articles 17, 18 and 19. See also Report of the Preliminary Conference of National Societies of 1946, in which articles 17, 18 and 19 of the draft maritime convention were identical to those proposed by the 1937 Commission of Naval Experts. See also Draft Conventions submitted to the 1948 Stockholm Conference, draft articles 18 and 28. The earlier drafts were substantially rewritten at the 1948 Stockholm Conference so as to incorporate, in the Second Convention, the key elements of the retention regime. See Draft Conventions adopted by the 1948 Stockholm Conference, draft articles 31, 32 and 33, pp. 41–42. For an analysis, see Genet, pp. 75‒80.
8 - Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II-A, p. 204. See also Genet, p. 76.
9 - See the commentary on Article 36, para. 2473.
10 - See the initial proposal made by the 1937 Commission of Naval Experts: Naval ratings specially trained for employment, when necessary, as auxiliary orderlies or stretcher-bearers, for the removal, transport and treatment of the wounded and sick, and duly provided with a document of identity, shall enjoy the same treatment as regular medical personnel, if they are captured while carrying out these duties. Naval Expert Report of 1937, draft article 17, para. 3.
11 - See Additional Protocol I, Article 8(k).
12 - The determination of the enemy character of vessels is not dealt with by the Geneva Conventions. See San Remo Manual on International Law Applicable to Armed Conflicts at Sea (1994), paras 112–117.
13 - See Genet, p. 76.
14 - For the meaning of these terms, see the commentary on Article 36, section C.1.
15 - See Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II-A, p. 204: ‘This article concerns personnel of vessels other than hospital ships. Here, of course, there is no question of the crew, since the grounds for its protection no longer exist.’
16 - See the commentary on Article 36, section C.2.d.
17 - See Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II-A, pp. 129 and 203.
18 - See Article 23(5) of Additional Protocol I. For an interpretation of what this covers, see Sandoz/Swinarski/Zimmermann (eds), Commentary on the Additional Protocols, ICRC, 1987, para. 885: ‘[A]ny means of transportation by water fulfilling the following conditions may be considered to be “medical ships and craft”: [(i)] they must be exclusively assigned, for the duration of their assignment (which may be short) to medical transportation … ; [and (ii)] they must be placed under the control of a Party to the conflict.’ For an example, see ibid. para. 886.
19 - For an analysis of the term ‘at sea’ in the context of the Second Convention, see the commentary on Article 12, section D.2.
20 - Similarly, see the commentary on Article 16, section C.2.
21 - See San Remo Manual on International Law Applicable to Armed Conflicts at Sea (1994), para. 164.
22 - See First Convention, Article 28(2), and its commentary, paras 2170–2180.
23 - For the meaning of the term ‘neutral Power’, see the commentary on Article 5, section C.1. For the situation in which persons covered by Article 37 fall into the hands of a neutral Power, see the commentary on Article 5, section C.3.c.
24 - For a discussion of the terms ‘respected’ and ‘protected’, see the commentary on Article 36, section C.2.b.
25 - See ICRC Study on Customary International Humanitarian Law (2005), Rules 25 and 27.
26 - See Additional Protocol I, Articles 48–58, and ICRC Study on Customary International Humanitarian Law (2005), Rules 1–24.
27 - See San Remo Manual on International Law Applicable to Armed Conflicts at Sea (1994), para. 164.3: ‘These personnel cannot be prevented from continuing to look after the wounded and sick in their care if they consider this necessary.’ For a critique of the wording used in Article 37(1), see Genet, pp. 77–78.
28 - For a discussion, see the commentary on Article 28 of the First Convention, para. 2183.
29 - Naval Expert Report of 1937, p. 40.
30 - Ibid. pp. 40–41.
31 - For the status of these wounded and sick persons, see Article 16.
32 - See the commentary on Article 12, section F.1.c.
33 - See also Genet, pp. 77‒78.
34 - See the commentary on Article 46 of the Second Convention, para. 2822 and the commentary on Article 45 of the First Convention, section C.1.b.
35 - See para. 2527.
36 - See para 2530.
37 - Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II-A, p. 129. See also Minutes of the Diplomatic Conference of Geneva of 1949, Committee I, Tome II, 28th meeting, p. 32: ‘Nous préférons les mots “être renvoyés” parce que l’on a voulu sous-entendre que le commandant en chef du belligérant capteur, devait accorder des moyens de retour au personnel renvoyé.’ (‘We prefer the words “be sent back” because we wanted to imply that the commander-in-chief of the belligerent captor should provide the returned personnel with the means for their return.’)
38 - Minutes of the Diplomatic Conference of Geneva of 1949, Committee I, Tome II, 28th meeting, pp. 35–37. In this respect, the Second Convention differs from Article 30(1) of the First Convention, which requests that they ‘shall be returned to the Party to the conflict to whom they belong’. For a discussion, see the commentary on Article 30 of the First Convention, section C.1.
39 - Thus, it is logical to consider that Article 37 is without prejudice to the grounds on which their ‘return’ may be temporarily delayed; see the commentary on Article 30 of the First Convention, paras 2238‒2242. See also San Remo Manual on International Law Applicable to Armed Conflicts at Sea (1994), para. 164.3: ‘Once they finish, they are to be sent back to their own country and, where appropriate, to the forces to which they were attached.’
40 - Concise Oxford English Dictionary, 12th edition, Oxford University Press, 2011, p. 1126.
41 - For details, see the commentary on Article 30 of the First Convention, para. 2231.
42 - For a critique of this wording, see Genet, pp. 78‒79.
43 - For further considerations in this regard, see the commentary on Article 30 of the First Convention, para. 2254. See also Genet, pp. 78‒79.
44 - It is acknowledged that Articles 28(2) and 30(2) of the First Convention state, respectively, that retained personnel ‘shall continue to carry out … their medical and spiritual duties on behalf of prisoners of war, preferably those of the armed forces to which they themselves belong’ and ‘shall preferably be engaged in the care of the wounded and sick of the Party to the conflict to which they themselves belong’. Nevertheless, see the commentaries on Article 28, para. 2185, and Article 30, para. 2250.
45 - See Genet, p. 79. See also San Remo Manual on International Law Applicable to Armed Conflicts at Sea (1994), para. 164.4.
46 - Article 28(1) of the First Convention states that the personnel ‘shall be retained only in so far as the state of health, the spiritual needs and the number of prisoners of war require’, while Article 30(1) of the First Convention applies the criterion of their being ‘indispensable’. These terms are understood to be interchangeable with the notion of ‘necessity’. For further analysis, see the commentary on Article 28 of the First Convention, para. 2165 and the commentary on Article 30 of the First Convention, para. 2228.
47 - See also Introduction, para. 26.
48 - First Convention, Article 28(2). During the 1949 Diplomatic Conference, a proposal was made to state that point explicitly in the Second Convention as well. Since the point was considered to be self-evident, the proposal did not succeed. See Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II-B, p. 254.
49 - See the commentary on Article 28 of the First Convention, para. 2179. Article 10(3) of the 1907 Hague Convention (X) made the point explicitly: ‘The belligerents must guarantee to the said staff, when it has fallen into their hands, the same allowances and pay which are given to the staff of corresponding rank in their own navy.’ See also the final sentence of Article 8 of the 1868 Additional Articles relating to the Condition of the Wounded in War.
50 - See the rules on the retention regime as contained in Articles 28, 30 and 31 of the First Convention and in Article 33 of the Third Convention.
51 - See the commentary on Article 4, section D.
52 - Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II-A, p. 129. See also Minutes of the Diplomatic Conference of Geneva of 1949, Committee I, Tome II, 28th meeting, p. 38.