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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.
[p.234] ARTICLE 28
-- RETAINED MEDICAL PERSONNEL
[p.235] HISTORICAL BACKGROUND
The question of the retention of medical personnel and chaplains who fall into enemy hands was the most important which the Diplomatic Conference had to settle when dealing with the first Geneva Convention. (1) It is therefore advisable to begin by outlining the history of the problem.
1. ' The First World War '
The 1864 and 1906 Conventions stated as a matter of principle that medical personnel must be unconditionally repatriated. If they fell into enemy hands, they were not to be treated as prisoners of war, but sent back to their own armed forces as soon as their presence was no longer considered indispensable to the wounded in their charge.
This principle was only very indifferently applied during the First World War. The formula employed was not, it is true, a very fortunate one. Some belligerents argued over the text of the Convention, suggested that it was necessary to retain enemy medical personnel to assist in the care of prisoners of war, and held up repatriation for lengthy periods. Other belligerents concluded agreements allowing them, for example, to retain one doctor and ten orderlies for every 1,500 prisoners.
2. ' The 1929 Convention '
The 1929 Convention abandoned the unsatisfactory formula of 1906. After confirming (in Article 9
) that medical personnel were not to be treated as prisoners of war (2), the Diplomatic Conference laid down (at the beginning of Article 12
) the fundamental principle that [p.236] such personnel may not be retained after they have fallen into the hands of the enemy.
But in the second paragraph, stipulating that members of the medical personnel were to be sent back to their own forces as soon as military considerations permitted, a condition was attached by the use of the words "in the absence of an agreement to the contrary" (3). Moreover, Article 14, paragraph 4
, of the Convention of the same date relative to the treatment of prisoners of war authorized belligerents to conclude special agreements for the retention in the camps of doctors and medical orderlies to care for their prisoner compatriots.
It is rather difficult today to understand the attitude of the delegates in 1929 in solemnly proclaiming a fundamental rule only to nullify it immediately afterwards by the words "in the absence of any agreement to the contrary", camouflaged, to all appearance, in an expletive sentence. In actual fact, during the Second World War the fate of most members of the medical services depended on this short phrase.
This attitude had serious consequences. The addition of that brief phrase gave broad latitude for the retention of medical personnel, yet it was entirely unaccompanied by prescriptions as to the procedure to be followed, or the status, treatment and conditions of work of such personnel, who were, nevertheless, retained for years in prisoner of war camps. At most, the 1929 Convention briefly defined the treatment of medical personnel "while in the hands" of the enemy, and then only in regard to their maintenance and pay.
It is possible that the Plenipotentiaries, in acting in this manner, desired to show that in their eyes retention should be an exceptional measure. Be that as it may, one cannot avoid feeling that it would gave been better to face up to the problem as a whole and attempt to settle it in all its details. The First World War had already shown the necessity of retaining medical personnel.
3. ' The Second World War '
During the Second World War, repatriation of medical personnel took place on a comparatively minor scale. Taking their authority from the phrase "in the absence of an agreement to the contrary" in [p.237] Article 12
of the Geneva Convention and from a similar provision in Article 14
of the Convention relative to the treatment of prisoners of war, the belligerent Powers agreed among themselves to retain in the camps a considerable number of the medical personnel in their hands, to assist in the care of the prisoners of war. Most belligerents concluded agreements of this nature, the proportion of personnel retained being different in different cases. In Great Britain and Italy, for example, two doctors, two dentists, two chaplains and twelve medical orderlies were retained for every thousand prisoners.
The International Committee did everything in its power to ensure the return of the remainder. Repatriation of these persons, as of the severely wounded, met with great transport difficulties and was impeded by the fact that certain zones of military importance could not be crossed; repatriation was, in consequence, infrequent, incomplete and extremely dilatory.
Medical personnel from occupied countries were nearly all retained in Germany and were often employed on non-medical work. In defence of this measure it was alleged that a "reserve" was essential if such eventualities as air raids, sudden influxes of prisoners, and epidemics in the camps were to be adequately dealt with.
After hostilities ended, the same inclination to retain a large proportion of medical personnel in the camps was noted amongst the victorious nations. The proportion was eventually reduced to one doctor and ten medical orderlies for every thousand prisoners, but the repatriation of personnel in excess of this number was not always effected as promptly as could be desired.
With regard to treatment, the lack of any provision in the Convention led in general to the belligerents subjecting such personnel to the same conditions of captivity as prisoners of war, and indeed sometimes to their considering them as such.
The International Committee protested energetically against the placing of medical personnel on the same footing as prisoners of war, declaring that this was inadmissible under prevailing international law. It also pointed out that while such personnel should enjoy all the rights of prisoners of war, they should also have additional privileges, in order to be able to carry out their duties as well as possible. The Committee endeavoured in secure them such treatment, its efforts in this direction often meeting with success.
[p.238] Among the Committee's demands were that the members of the medical services should be separately housed, either in or close to the camp infirmary, that they should be entitled, in certain cases, to supplementary rations, and that they should be authorized to leave the camp, and to receive double the normal quantity of mail.
4. ' Elaboration of the 1949 texts '
During the preliminary work on the revision of the Geneva Conventions, which began in 1945, the experts soon agreed that it would be necessary to make provision for the retention of a part of the enemy's medical personnel, the proportion to be retained depending on the number of prisoners and their needs. A lively discussion continued for several years, however, on the subject of the status of retained personnel, on which there were two different views.
A new proposal, considered revolutionary, and supported mainly by the English-speaking delegations, came to the fore during the Conference of Government Experts in 1947. (4) It was suggested that medical personnel should, on falling into enemy hands, be treated as prisoners of war, Those in favour of this course had a series of arguments. In modern warfare, they contended, medical personnel have to give as much attention to men in captivity as to the wounded from the front. According to modern ideas of discipline all captures men should receive the same treatment -- namely, that of prisoners of war subject to the effective safeguards at present prevailing. Prisoners, they said, prefer to be cared for by their own countrymen, speaking the same language, and medical treatment under such conditions gives better results. Endless difficulties would attend the repatriation of medical personnel, and there would be a danger of espionage. Besides, religious and medical personnel themselves did not wish to abandon their fellow prisoners. (5)
[p.239] The other side retorted that the traditional principle of the Geneva Convention -- representing, as it did, a great humanitarian achievement -- should be maintained, that prisoners would be better cared for if medical personnel had liberty and prestige, that their inviolable character as non-combatants detached from the fighting should not be tampered with, and that otherwise, a Detaining Power could turn its obligations over to such personnel and abuse the right of retention, with the result that qualified personnel would no longer be sent to the front line by the opposing party.
Those in favour of the new arrangement were at first largely successful. The Conference agreed that if medical personnel fell into enemy hands, they should be treated as prisoners of war, subject to the provision of the necessary facilities for carrying out their duties to the best advantage. But they were only to be retained in the camps in so far as the state of health, the spiritual needs and the number of the prisoners demanded. The remainder were to be repatriated as soon as possible.
The proposals of the Conference of Government Experts caused a considerable stir, especially in the medical circles of a number of countries. During the year which elapsed before the XVIIth International Red Cross Conference, the International Committee continued to devote close attention to this important question and obtained many further opinions form authoritative sources. Supported by the National Red Cross Societies, the Committee decided to make certain changes in the Articles in question when embodying them in the Draft Conventions which it submitted to the Conference. They proposed merely to say that medical personnel should have all the rights of prisoners of war. The Committee felt, moreover, that the designation "prisoners of war" should be reserved for combatant troops, who even in captivity retain their character as enemies, whereas medical personnel are at all times outside the fighting. The status of retained medical personnel was defined in a series of Articles with sufficient precision for it to be regarded as a
status sui generis. Besides, it was hardly conceivable that the personnel of voluntary aid societies, who are placed on the same footing as medical personnel of the armed forces, should be treated as prisoners of war. Such treatment would certainly have damped their enthusiasm.
[p.240] The two opposing theses clashed again at the XVIIth International Red Cross Conference. But after lenghty discussion an appreciable majority voted for the principle of non-captivity, the Conference recommending that it should be stated specifically in the text of the Convention that medical personnel were not to be treated as prisoners of war.
The problem was examined for the last time by the Diplomatic Conference of 1949. Divergencies of view were still apparent. This time, almost all the delegates were opposed to the principle of captivity, but in order to conciliate their opponents as far as possible, the draft approved by the XVIIth International Red Cross Conference was adopted in broad outline. (6)
PARAGRAPH I -- RETENTION
This paragraph lays down the principle of the possible retention of the medical personnel and chaplains to whom Articles 24
relate, i.e. members of the Medical Service and chaplains of the armed forces, as well as the staff of National Red Cross Societies and other recognized relief societies. (7)
It will be noted that the statement of principle is given in a negative form, namely "Personnel shall be retained only in so far as the state of health, the spiritual needs and the number of prisoners of war require". This turn of phrase is deliberate: it helps to emphasize the fact that, although the principle of retention precedes that of repatriation in the order in which the Articles are placed, retention remains subordinate to repatriation. The latter is the rule, as the Rapporteur of the First Commission took pains to underline at the Diplomatic Conference. If the above wording is compared with that of Article 30
, which states the principle of repatriation ("Personnel whose retention in not indispensable..."), [p.241] it will be seen quite clearly that retention is intended to be the exception.
Under the 1929 Convention, retention was possible only by special arrangement. In the 1949 text it has full legal sanction. But, in order that a belligerent may retain a proportion of the medical personnel and chaplains who have fallen into his power, one essential condition must be fulfilled: he must have in his charge prisoners of war whose state of health and spiritual needs "require" or render "indispensable" the presence of such personnel. Retention must be justified by a real and pressing need.
It is not possible to read into the text of the Convention that retention is permissible only when the Detaining Power holds prisoners of the same nationality. The text with which we are dealing speaks of "prisoners of war" in general. Furthermore, paragraph 2 of Article 28 lays down that retained medical personnel are to carry out their duties "on behalf of prisoners of war, ' preferably ' those of armed forces to which they themselves belong". The implication clearly is that, when a belligerent holds prisoners who are nationals of different countries, he shall as far as possible allocate retained medical personnel on a basis of nationality. But a belligerent who held a surplus of personnel of any one nationality might be justifies in retaining them, should circumstances so demand, to care for prisoners of a different nationality. Such a solution is obviously an abnormal one, and should only be adopted as an exceptional and temporary measure; we must not forget that it was decided to make provision for the retention of medical
personnel, largely because it was thought desirable that prisoners should be cared for by their own countrymen, speaking the same language and using methods of treatment to which the prisoners were accustomed. It would seem in any event that the eventuality considered will rarely occur in practice, since medical personnel are nearly always captured at the same time as combatants.
The condition which we have just mentioned as being essential to justify the retention of medical personnel in the camps, is accompanied by a reference to the number of prisoners. The only purpose of this reference is to make it possible to fix the proportion of personnel who may be retained. We shall see in connection with Article 31, paragraph 2
, that belligerent Powers may fix by special agreement the percentage of personnel to be retained in proportion to the number of [p.242] prisoners. Such agreements are optional and not obligatory; they may inter alia specify that medical personnel are only to be retained in the camps in numbers proportionate to the number of prisoners of their own nationality.
In the absence of any special agreement, the Detaining Power will determine the percentage in the light of common sense, equity and experience. The maximum which may be allowed, but in no circumstances exceeded, is the staff necessary to meet the real needs of a camp without calling upon personnel of the detaining forces. (8) Should the Power of Origin consider the proportion fixed excessive, it may open negotiations with the Detaining Power and call upon the good services of the Protecting Power of the International Committee of the Red Cross.
We may further point out, in connection with this paragraph, that the Convention, when speaking of the passing of medical personnel and chaplains into enemy hands, uses the words "who fall into the hands of the adverse Party". The wording implies that the capture of medical personnel must be a matter of chance and depend upon fluctuations at the battle front; for it is hardly conceivable that a belligerent should deliberately try to capture such personnel. An organized "medical hunt" would certainly be a sorry sight and completely contrary to the spirit of the Geneva Convention. On the other hand one can well imagine a fighting unit coming upon a group of medical personnel and leaving them to carry on their duties, and the medical staff, for their part, not taking in flight when enemy forces draw near.
PARAGRAPH 2 -- STATUS AND TREATMENT OF RETAINED MEDICAL PERSONNEL
1. ' First and second sentences -- Status '
The Commission lays down that retained personnel "shall not be deemed prisoners of war", and adds: "Nevertheless they shall at least benefit by all the provisions of the Geneva Conventions relative to the Treatment of Prisoners of War of August 12, 1949."
[p.243] Although this formula was only arrived at after thorough discussion and represents a compromise that finally rallied almost unanimous support among the delegation, it must be admitted that it lacks clarity.
There can be no doubt, however, that the words "shall at least benefit" are intended to underline the fact that not all the provisions of the Prisoners of War Convention are applicable to retained medical personnel, but those only that constitute an advantage for them. To convince ourselves of this, we have only to compare the wording of the Article we are considering with that of the corresponding Article in the Prisoners of War Convention.
As a matter of fact, the Conference thought it advisable to introduce the substance of Article 28 of the First Convention into the Third Convention, in order that the commandants of prisoner of war camps could not fail to be aware of it. It did so in practically identical terms, except for the words we are examining. The authors of the proposal had the happy inspiration of giving a clearer wording to this very important sentence, which is drafted as follows in Article 33 of the 1949 Prisoners of War Convention
: "They shall, however, receive as a minimum the benefits and protection of the present Convention." This Article has the same legal force as Article 28 of the First Convention.
Moreover, study of the preliminary documents (9) and Conference records -- especially the latter -- shows quite clearly that the authors of the Conventions intended to lay down, with the help of the somewhat cryptic formula quoted above, that the Detaining Power could apply to retained medical personnel only those provisions of the Prisoners of War Convention that are manifestly to their advantage.
In his Report to the Plenary Assembly, the Rapporteur of Committee I said (10): "For all these reasons, Committee I came to the decision that detained medical personnel should not be treated as prisoners of war; but that they should be accorded a special Article which should, on the one hand, include all the provisions stipulated in favour of prisoners of war (11) and, on the other, various special facilities essential for the proper performance of their duties."
[p.244] Furthermore, those who were in favour of giving prisoner of war status to retained medical personnel opposed the present wording of the Convention precisely on the grounds that it would render certain provisions of the Prisoners of War Convention inapplicable to such personnel and give them a special status. They considered that this would actually operate to the disadvantage of the personnel themselves and that it would therefore be better to say that medical personnel, without being considered as prisoners of war, should be treated "in accordance with all the provisions" of the Third Convention. Those holding the contrary view opposed this latter wording, emphasizing that it would place medical personnel on the same footing as prisoners of war, which was precisely what they wished to avoid. They also pointed out that the two elements in the provision would be flatly contradictory. The proposed amendment was rejected by 42 votes to 6, with 2 abstentions.
The Conference finally decided to specify that the medical personnel should "at least" benefit by the provisions of the Prisoners of War Convention. The use of this expression underlines the fact that treatment as for prisoners of war should be regarded as a minimum, and that medical personnel should continue to have a privileged position.
This view is in harmony with practice, and the policy of the International Committee of the Red Cross, during the last World War. The Convention thus invites belligerents to give the medical personnel they retain additional advantages over and above those expressly provided for in the Conventions, whenever it is possible to do so.
We need not recall there the various reasons why the Conference decided not to place retained medical personnel and chaplains on the same footing as prisoners of war, and yet to give them the advantages and protection of the Prisoners of War Convention. (12) It is enough to note that its intention in so doing was to make it possible for them to carry out their medical and spiritual work for prisoners under the best possible conditions. On the one hand, the Conference thought it necessary to affirm the supra-national and quasi-neutral character of personnel whose duties placed them above the conflict. It should, moreover, always be borne in mind that these personnel should normally [p.245] be repatriated, and that they are only retained as an exceptional measure with one purpose in view -- namely, relief work carried out with the consent, and even, in a manner of speaking, on behalf of the Power of Origin. On the other hand, the Conference recognized the fact that the safeguards afforded to prisoners of war under international law were
effective, that they had been well tested, and that they constituted, generally speaking, the best guarantee that could be offered to persons in enemy hands. No less important was the practical advantage of being able to make use of an existing Convention, instead of having to establish an entirely separate code.
Although the Convention lays down that medical personnel are not to be regarded as prisoners of war -- a privilege that the wounded themselves do not enjoy -- there is no mention of exemption from capture. This expression had been rejected in 1929, because such capture exists de facto, if not de jure. (13)
Similarly, while they remain with the enemy, medical personnel will actually find that their liberty is to some extent restricted, in spite of the fact that from a strictly legal point of view they are not in captivity inasmuch as they are not prisoners of war. This state of affairs is inevitable in view of their status as "retained personnel", their enemy nationality, and the necessity, for the Detaining Power, of ensuring its own military and political security. Besides, Article 29
lays down that they are to be subject to camp discipline. The extent of the restrictions on their liberty will vary according to circumstances; and it is to be hoped that belligerents will be particularly generous in this matter, having recourse, whenever possible, to supervision and assigned residence rather than actual internment. But one can scarcely imagine any Power granting full liberty to retained medical personnel and allowing them to move about freely in a country at war, with all the consequent risk of espionage.
In order to determine the treatment to be accorded to retained medical personnel, it is necessary to consider which provisions of the 1949 Prisoners of War Convention are applicable to them. We shall study this question in due course. (14)
[p.246] 2. ' Third sentence -- Exercise of functions '
This sentence contains several distinct elements.
It lays down, in the first place, that retained medical personnel and chaplains are to continue to carry out their medical and spiritual duties in behalf of prisoners. The words "shall continue", which already figured in the Conventions of 1864, 1906 and 1929, have been kept, and with good reason. They bring out the fact that although the capture and retention of medical personnel places them in a new environment and under a different authority, their essential work of caring for sick and wounded combatants remains unchanged, and should continue without hindrance, and practically without a break.
From now on, these duties will be carried out under the laws and military regulations of the Detaining Power, and the authority of its competent services. This provision is dictated both by common sense and the demands of efficient administration. The Detaining Power, being responsible for the state of health of all prisoners in its hands, and indeed of the entire population, must necessarily retain full powers of direction and control. The retained personnel whose help it receives, are therefore absorbed, as it were, into the larger organization of the Detaining Power, and are subject in their work to the same rules as the national staff. It is difficult to see what other course could be adopted in practice. The medical personnel will naturally be placed under the authority of the Medical Service of the Detaining Power, while chaplains will come under the appropriate service -- doubtless the same as that to which the chaplains of the Detaining Power are attached.
The Convention nevertheless tempers the force of this rule by stipulating that medical and religious personnel are to carry out their duties "in accordance with their professional ethics". Although they are subject administratively to their captors, their subordination has definite limits. Compulsion by the detaining authority must end when we enter a domain which, for the priest as for the doctor, is governed by a professional code or by the dictates of his own conscience. Thus a doctor could not be prevented from treating a sick man, or obliged to apply a treatment detrimental to the patient's health. Obviously, however, medical treatment may vary with different countries and different doctors, and the competent authorities of the Detaining Power may decide what methods are to be used.
[p.247] The text also provides that the prisoners of war in whose behalf retained personnel are to carry out their duties, shall preferably be "those of the armed forces to which they themselves belong". We have already mentioned this point when discussing the principle of retention. (15)
The provision was introduced (in reference to medical personnel awaiting repatriation) when the Geneva Convention was revised id 1929. It was only adopted by a narrow majority, however, some delegates considering that it was contrary to a fundamental principle of the Convention -- the principle, namely, that the wounded are to be cared for without distinction of nationality.
In our opinion, the fears expressed in 1929 were unfounded, although those who expressed them had the best of intentions. They appear to us to have actually resulted from a confusion of thought. The fundamental obligation laid down in the Geneva Convention is that the captor is to treat and care for the enemy wounded as well as he does his own. Similarly a Power fighting against several countries must give equal care to the wounded of each; but there is no restriction as to the methods chosen to ensure such equality of treatment. In taking steps to discharge its general obligation, a Power is entirely justifies in having prisoners of a particular nationality cared for by doctors, medical orderlies or chaplains who are their own countrymen. Such a course is, in fact, eminently desirable, one of the main reasons which led to the decision to sanction the retention of medical personnel being that prisoners preferred to be looked after by doctors of their own nationality, speaking the same language, and that medical treatment given under these
conditions yielded better results.
In any case only a preference is expressed. The Detaining Power is recommended to take nationality into account in the allocation of medical personnel; but exceptions may be made where circumstances so demand, and the system can therefore be adapted to the needs of the prisoners as a whole, the fundamental principle of the Geneva Convention being thus fully respected.
[p.248] 3. ' Fourth sentence and sub-paragraphs ' (a), (b) ' and ' (c)
-- ' Facilities '
The preceding clauses confer the benefits and protection of the Prisoners of War Convention on retained medical personnel and chaplains, and give them the right to continue their proper work.
The fourth sentence of paragraph 2 sets out the additional facilities which should be accorded to such personnel. It is stated quite clearly at the outset, and emphasized in the clauses which deal with the details, that the facilities accorded are "for carrying out their medical or spiritual duties". The authors of the 1949 Conventions wished to emphasize in this way that their intention in giving medical personnel and chaplains a special status, was to enable them to carry out their duties under the best possible conditions, and not to grant them privileges as individuals. The ultimate justification of their privileged status is the good of the combatants for whose benefit they work.
It should be noted that these facilities, being expressly mentioned in the Convention, should always take precedence over similar provisions in regard to prisoners of war in general in the Prisoners of War Convention.
The first facility accorded to the personnel, under sub-paragraph (a), is the right to make periodic visits to prisoners of war in labour units or hospitals outside the camp, and to have the necessary transport for the purpose.
Prisoners need medical and spiritual aid, no matter where they are, and those whose duty it is to bring them such aid must be able to leave camp and make whatever journeys are required. The specific mention of hospitals and labour units should not be considered as limiting the scope of the provision, because prisoners in penitentiaries or living with private families also need medical or spiritual aid. The Detaining Power is free to exercise such supervision as it considers necessary over these journeys, and will decide if the circumstances call for an escort or not. It might, for example, dispense with an escort in the case of medical personnel who had promised not to abandon their posts. It should, incidentally, be noted that retained personnel cannot misuse the right so conferred on them: they are only entitled to leave the camp and travel in order to visit prisoners entrusted to their care, or in need of their services.
The Convention next provides, under sub-paragraph (b), that [p.249] "the senior medical officer of the highest rank shall be responsible to the military authorities of the camp for the professional activity (16) of the retained medical personnel". The duty so imposed has a striking analogy with that of the "prisoners' representative" in prisoner of war camps. In actual fact, the said medical officer will perform, on behalf of the retained medical personnel, all the duties which the prisoners' representative performs for the prisoners, so that the presence amongst the medical personnel of a representative, side by side with the responsible medical officer, is hardly conceivable, The medical officer in question will, in fact, be the personnel's representative.
His sphere of competence is, however, greater. While the prisoners' representative "represents" the prisoners with the military authorities (17), the senior medical officer is to be "responsible" to the authorities "for the professional activity of the retained medical personnel". The responsible officer will therefore be the real head of the retained medical personnel in the camp in all professional matters, in so far as this is compatible with the fact that such personnel are placed, in principle, under the authority of the competent services of the Detaining Power.
The necessity of placing the detained medical personnel under a responsible chief follows logically from the fact that they have a special role to play, which is not the case with prisoners of war. Their task of caring for the health of prisoners is an important one and demands their whole time and energy. An organized and graded staff, such as there is in a hospital, is necessary for the satisfactory performance of their duties, and it is for this reason that the Diplomatic Conference rightly amended at this point the draft submitted to it, which provided that medical personnel could elect a spokesman from amongst their number.
On the other hand, the Conference adopted the same procedure for the appointment of the responsible medical officer as for the appointment of the prisoners' representative in officers' camps: the senior medical officer of the highest rank (18) is automatically selected.
[p.250] It was in order to make it possible to decide upon the rightful nominee that mention was retained of an agreement to be concluded between the Parties to the conflict, to determine the corresponding seniority of the ranks of their medical personnel, including the members of Red Cross Societies and other societies authorized to collaborate with the Medical Services of the armed forces. Under the 1929 Convention, this agreement also decided their conditions of pay and maintenance; this is no longer necessary under the new text.
The Article under review gives the responsible medical officer two prerogatives: he is to have direct access to the camp authorities in all questions arising out of his duties, and he is to be allowed the necessary facilities for correspondence relating to such questions. Thus the number of letters and cards which it may be necessary for him as responsible medical officer to write and receive must never be limited, as the number of letters and cards written and received by prisoners of war may be in certain circumstances. It is important that the responsible medical officer should remain in close touch with medical circles in his own country, with the Protecting Power, the International Committee of the Red Cross, relief organizations, the families of captured personnel and so forth. In general, the facilities for correspondence accorded to him should be as generous as those accorded to prisoners' representatives. (19)
It should be noted that the appointment of a "responsible" officer only affects medical personnel, and not chaplains. On the other hand, individual chaplains are, like the responsible medical officer himself, to have direct access to the camp authorities. They will also have similar facilities for correspondence.
The provisions we have quoted help to show that the privileges accorded to retained medical personnel, far from being for their direct personal advantage, in realty benefit the sick and wounded to whom such personnel devote themselves.
As retained personnel receive in principle the protection and all the benefits of the Prisoners of War Convention, it follows that chaplains [p.251] could, if they so wished, avail themselves of the services of the prisoners' representative in their camp and take part in his election. The point is immaterial, however, in view of the fact that the Convention places each chaplain on the same level (so to speak) as the prisoners' representative and the responsible medical officer, conforming, in this respect, to the practice followed during the last World War.
It is, furthermore, most unlikely that chaplains in a camp could have one of their number recognized as their representative, or as responsible for them. The Convention does not provide for such representation in their case, whereas it does so expressly in the case of medical personnel. The situation is altogether different in the two cases, since chaplains do not form a separate corps, are few in number, and are often of different denominations.
The 1929 Convention accorded to medical personnel in enemy hands the same conditions of maintenance, housing, allowances and pay as to corresponding members of the detaining forces. The 1949 Conference did not consider it possible to continue this system, and retained personnel are now to have the same maintenance, housing and pay as prisoners of war, with the provision that these conditions should be regarded as a minimum which the Detaining Power is invited to exceed.
In sub-paragraph (c) we find two elements which appear to have been grouped together for convenience in drafting, but between which there is little or no connection.
Retained personnel are not to be required to perform any work outside their medical or religious duties. This was implied in the 1929 text; but regrettable experiences in the last World War proved the need for putting it down in black and white.
The rule is now absolute; so much so that retained personnel cannot even be obliged to do work connected with the administration and upkeep of the camp, should they happen to be unoccupied for the time being. Nevertheless, the expression "medical duties" must be understood in its broadest sense. It must be remembered that the term "medical personnel" includes men who are engaged in the administration of units and hospitals. Although such work is not, strictly speaking, medical, these men will continue to carry out the duties assigned to them in their own forces.
The same sentence provides that retained personnel are to be subject to the internal discipline of their camp. Common sense dictated [p.252] this important provision. It should be read in conjunction with the clause, examined above, which lays down that the personnel are to carry out their duties under the authority of the competent service of the Detaining Power. They will thus come under the authority of the commander of the camp except when actually carrying out their duties. Every military organization is subject to military discipline, and this rule applies with even greater force to prisoner of war camps. Personnel of enemy nationality who are often in a camp and take part in its life, cannot conceivably escape the discipline common to all: nothing but disorder could ensue.
We may note that Article 35
of the Prisoners of War Convention is devoted entirely to chaplains who are retained. This Article to a large extend duplicates Article 28 under review (which is itself reproduced as Article 33
in the Third Convention). Some of the provisions of Article 35
are, however, more detailed and it may be best to quote the actual text of the Article:
"Chaplains who fall into the hands of the enemy Power and who remain or are retained with a view to assisting prisoners of war, shall be allowed to minister to them and to exercise freely their ministry amongst prisoners of war of the same religion, in accordance with their religious conscience. They 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. They shall enjoy the necessary facilities, including the means of transport provided for in Article 33
, for visiting the prisoners of war outside their camp. They shall be free to correspond, subject to censorship, on matters concerning their religious duties with the ecclesiastical authorities in the country of detention and with international religious organizations. Letters and cards which they may send for this purpose shall be in addition to the quota provided for in Article 71
4. ' Provisions of the Prisoners of War Convention which are applicable
to retained personnel '
We have now to consider how far the provisions of the 1949 Prisoners of War Convention are applicable to retained personnel.
We have seen above (20) that retained personnel "shall at least benefit by all the provisions of the Geneva Convention of 1949 relative to the Treatment of Prisoners of War", which means, as stated specifically [p.253] in the latter Convention, that they shall "receive as a minimum the benefits and protection" of the Convention in question.
The idea of "benefits" must not be considered here in relation to prisoners of war, but in relation to medical personnel and chaplains, who are not prisoners. In other words, we must try to determine what "benefits" might accrue from the application of prisoner of war status to persons who are not prisoners and who enjoy special immunity.
The idea of "benefits" is not the only criterion. Other factors arising out of the special status of retained medical personnel must also be considered. They may be summarized as follows:
In matters where special provisions relating to retained personnel and similar provisions relating to prisoners of war both apply, the first-named always take precedence.
In matters regulated only by provisions designed for prisoners of war, it is necessary to take into consideration certain consequences of the special position and duties of retained personnel. They are, briefly, as follows:
(a) The effective carrying out of the medical or spiritual duties
for the benefit of the prisoners should be the determining factor. In
case of doubt, the interpretation chosen should be the one which will
(b) Retained personnel are, in actual fact, at liberty within
certain limits only.
(c) Retained personnel are subject to the military discipline of
the camp in which they find themselves.
This much being said, the provisions of the Prisoners of War Convention are, in their great majority, applicable to retained medical personnel and chaplains. It is to be hoped that the Powers will clarify, by means of agreements, points whose interpretation is not quite clear.
We can confine ourselves here to the following:
' Article 21
, ' which provides in its first paragraph that prisoners of war may be interned, does not legally apply to medical personnel and chaplains, since they are not prisoners of war. In any case, internment could scarcely be considered as either a "benefit" or a form of "protection". It is none the less true that their liberty may in actual fact be restricted, as we have shown above. (21)
[p.254] Paragraph 2 of the same Article
provides that prisoners may be wholly or partially released on parole. This would appear to be applicable by analogy to medical personnel: on their undertaking not to attempt to escape, they might be allowed to move about without escort. Such a concession would appear eminently desirable and would certainly be an advantage to those concerned.
' Article 12, paragraphs 2 and 3
, ' lays down the safeguards required when prisoners of war are transferred by the Detaining Power to another Power which is a party to the Convention and in a position to observe its requirements. The problem does not arise directly out of this provision, since it is quite clear that if retained personnel are transferred, they should be provided with the same safeguards as prisoners.
Transfers are recognized as being possible in the case of prisoners of war. But can retained personnel be transferred? As an appreciation of the advantages and disadvantages of transfer will depend on factors which vary in each individual case, it is difficult to find an answer to our question without taking a further element into consideration, namely, the prisoners' right to medical care. This would incline us to the opinion that it should be permissible to transfer medical personnel, in so far as this is necessary to meet the needs of the prisoners in the new country where they will be detained.
On the other hand, a Detaining Power would not be justified in transferring medical personnel to another Power where there was no accompanying transfer of prisoners of war. The retention of medical personnel is only provided for in the First Convention for the purpose of
helping the Power into whose hands they have fallen to care for prisoners held by that same Power.
' Articles 49
to 57 ' are concerned with the labour of prisoners of war. Articles 49
deal with the work to which prisoners may be assigned and the arrangements connected with it, and do not, generally speaking, apply to retained personnel. Such personnel will, on the other hand, have the benefit of the other Articles, dealing with working conditions, rest, etc., in so far as the provisions in question are compatible with the carrying out of medical or spiritual duties. (22)
[p.255] ' Article 62
' provides that all prisoners of war who work are to receive "working pay" (formerly referred to as "wages"), which may not be less than one-fourth of one Swiss franc a day.
This pay has a direct connection with the obligation laid on prisoners to do work which is not of their own choice; one might wonder, therefore, if retained personnel are entitled to receive it, their work on behalf of the prisoners being the same as the work they do normally in their own forces.
We are inclined to think that they should receive it, because this would obviously be to their advantage and because they too are compelled to do work -- even if it is the work which is normally theirs. Furthermore, Article 62, paragraph 2
, grants working pay to prisoners of war (23) who are required to carry out medical or spiritual duties on behalf of their comrades. A difference in treatment would therefore appear to be inequitable. This is a point, however, that belligerents would do well to settle by means of an agreement.
' Article 82
to 108 ' provide safeguards for prisoners prosecuted for alleged offences. Such safeguards can but be to the advantage of retained personnel against whom proceedings are taken, and they must therefore be considered as being applicable.
' Article 92
' lays down that unsuccessful attempts to escape will render prisoners liable to disciplinary punishment only. As medical personnel are not prisoners, one could not properly speak of escape in their case.
It has sometimes been held that such acts are a form of desertion and should be dealt with more severely than the escape of a prisoner of war, as they would be in the nature of a breach of professional duty. If that is so, the matter should be left to the judgment of the Power of Origin, which can, if it wishes, give suitable instructions to its medical personnel and itself provide for penalties in cases of flight. For even when in enemy hands, medical personnel, like prisoners of war, remain, to some extent, in the service of their home country. It is not impossible to visualize the conclusion, between the two interested Powers, of an agreement to put down cases of desertion among retained personnel.
[p.256] The Convention itself only entitles the Detaining Power to regard the flight of medical personnel as a breach of camp discipline. Their flight is therefore punishable by disciplinary measures only.
The provisions of ' Articles 109
to 117 ' which provide for the repatriation of seriously ill and seriously wounded prisoners, should be taken as applying to retained personnel. But it is not easy to see how the provisions dealing with accommodation in a neutral country can concern medical personnel. From the moment their state of health prevents them from carrying out their work of relief, there is no longer any justification for retaining them and they must be allowed to return home.
5. ' Conclusions '
It may be useful at the end of this study of Article 28, paragraph 2, to summarize the various elements which go to make up the special status and treatment accorded to medical personnel and chaplains who have fallen into enemy hands and are retained to care for their countrymen who are prisoners:
1. They are not prisoners of war, but enjoy the special immunity which attaches to their status.
2. Because of their position as "retained persons", their enemy nationality and the fact that it is necessary for a Detaining Power to ensure its security, their liberty may, in practice, be restricted.
3. They are subject to the laws and regulations of the Detaining Power, and to camp discipline.
4. They carry out their duties in accordance with their professional ethics.
5. They may not be compelled to do any work outside their proper sphere of duty.
6. They may visit labour detachments and hospitals.
7. The "responsible medical officer" and the chaplains have direct access to the authorities and special facilities for correspondence.
8. They receive, as a minimum, the benefits and protection of the Prisoners of War Convention, in so far as express provision has not already been made to meet their case (see points 3 to 7 above).
[p.257] The new status of medical personnel who have fallen into enemy hands is thus a very complicated matter. Experience alone can show if the system patiently built up will work, or whether it will have to be reconsidered and completely recast.
PARAGRAPH 3 -- RELIEVING OF MEDICAL PERSONNEL
During the last World War certain belligerents planned to relieve doctors retained in enemy camps, by personnel from the home country. On being replaced the doctors in question were to be repatriated. A beginning was made in the case of some Yugoslav doctors and a larger number of French doctors retained in Germany.
The Diplomatic Conference (1949) did not consider that it could make such arrangements compulsory; it merely provided for their possibility, by agreement between the Powers concerned. Security considerations seem bound to create difficulties; and it is worth pointing out that on the one occasion when relief on a partial scale was found possible during the last World War, the home country of the medical officers concerned was itself occupied by the Detaining Power.
Nevertheless, the Conference, in its Resolution 3, requested the International Committee of the Red Cross to prepare a model agreement for use in such cases. (24)
PARAGRAPH 4 -- GENERAL OBLIGATIONS OF THE DETAINING POWER
The Article ends by stating that none of its provisions are to relieve the Detaining Power of the obligations imposed on it with regard to the medical and spiritual welfare of prisoners of war.
Under the Prisoners of War Convention the Detaining Power is bound to provide free of charge whatever medical attention the prisoners' state of health may require, to take any necessary public health measures, to set up and operate suitable hospitals, etc. It is also bound to allow prisoners to practise their religion, and to provide suitable premises for the purpose.
[p.258] A Detaining Power must not be able to use the fact that the retention of a portion of the opposing party's medical and religious personnel is authorized, as a pretext for avoiding its own obligations or as justification for a dereliction on its part; it may not, for example, find in the retention of enemy medical personnel a reason for not making available such of its own personnel as may be necessary.
Retention, as the new Convention regards it, must remain a supplementary measure taken for the good of the prisoners themselves and to assist the Detaining Power. The latter continues to be fully responsible for the prisoners of war who have fallen into its hands.
* (1) [(1) p.235] For further details, see Jean S. PICTET,
' Retention of Members of the Army Medical Services fallen
into Enemy Hands ' in the English Supplement to the
' Revue internationale de la Croix-Rouge, ' Dec. 1949 --
March 1950, Geneva, 1950;
(2) [(2) p.235] The United Kingdom Delegation was the only one
to vote against this principle in 1929, as again in 1949;
(3) [(1) p.236] This reservation was proposed by the New
Zealand Delegation, speaking also in the name of the
United Kingdom Delegation;
(4) [(1) p.238] For the sake of clarity we are giving here all
the arguments presented in support of each proposal, and
will not repeat them, although some of these arguments
were in fact only advanced at later Conferences;
(5) [(2) p.238] A recent book by Professor Paul de la
Pradelle, ' La Conférence diplomatique et les nouvelles
Conventions de Genève de 1949, ' speaks of a secret motive
which, it is suggested, inspired those who wished retained
personnel to be treated as prisoners. The real reason, he
claims, was to reduce the efficacity of medical personnel,
whose reablement work had become decisive in keeping up
fighting strength and in winning the final battles.
Nothing in the discussions during the Conference or the
long studies which preceded it appears to us to justify
such an assertion, even superficially, or to give any
grounds for thinking that certain delegations wished to
challenge the very basis of the Geneva Conventions.
Moreover, any restriction in this domain would have been
as prejudicial to those who proposed it as to their
enemies in the event of war;
(6) [(1) p.240] Only the United Kingdom and New Zealand
Delegations voted against the solution finally adopted by
the Diplomatic Conference;
(7) [(2) p.240] There has been criticism of the fact that the
staff of voluntary relief societies, being placed in all
respects on the same footing as personnel of the Medical
Service, can be retained in like manner by the opposing
side. It is thought in certain quarters that this may
hinder recruiting for such societies. Thus Professor Paul
de la Pradelle ' (La Conférence diplomatique et les
nouvelles Conventions de Genève de 1949) ' has pointed out
that parents of young girls might prevent them from
enrolling as nurses in order to avoid the possibility of
their being subjected to prisoner of war camp conditions.
The argument is not without weight, and States making
special agreements on the subject should bear it in mind.
See below, page 266;
(8) [(1) p.242] Article 30, paragraph 3, of the Prisoners of
War Convention reads: "Prisoners of war shall have the
attention, preferably, of medical personnel of the Power
on which they depend and, if possible, of their
(9) [(1) p.243] The text approved by the XVIIth International
Red Cross Conference read: They "shall not be deemed to be
prisoners of war, but shall enjoy all the rights of the
(10) [(2) p.243] See ' Final Record of the Diplomatic
Conference of Geneva, 1949, ' Vol. II-A, page 195;
(11) [(3) p.243] We do not thing that it is provisions in
favour of prisoners of war that is meant, but more exactly
provisions, the application of which would be to the
advantage of retained medical personnel, who are not
prisoners of war. The difference in meaning is only a very
(12) [(1) p.244] See above, page 239;
(13) [(1) p.245] See P. DES GOUTTES, ' Commentaire de la
Convention de Genève du 27 juillet 1929, ' Geneva 1930,
(14) [(2) p.245] See below, page 252;
(15) [(1) p.247] See above, page 241;
(16) [(1) p.249] The French text corresponding to the words
"the professional activity" says "tout ce qui concerne les
activités" (everything which concerns the activities). --
(17) [(2) p.249] Article 79 of the Geneva Convention relative
to the Treatment of Prisoners of War of August 12, 1949;
(18) [(3) p.249] The wording in the French text which
corresponds to the English expression "the senior medical
officer of the highest rank" is "le plus ancien dans le
grade le plus élevé". If these words are to have a precise
meaning, as they should have, it should be what the
English text says, viz. "The senior medical officer of the
highest rank." But it may be pointed out that the
Detaining Power will not have ready facilities for
checking dates of promotion, whereas it will generally
know the age of any military personnel in its hands. It is
therefore conceivable that it might take age as the
determining factor in designating the responsible medical
(19) [(1) p.250] See Article 81, paragraph 4, of the Third
(20) [(1) p.252] See above, pages 242 ff.;
(21) [(1) p.253] See above, page 245;
(22) [(1) p.254] Medical personnel will not, for example, cease
work if there are patients in urgent need of attention;
(23) [(1) p.255] The persons referred to are those who are
engaged in medical or religious work in civil life, but
have served in a fighting unit in their armed forces and
not in the Medical Service or as chaplains, and who have,
therefore, on capture become prisoners of war. The
reference could also include auxiliary medical personnel,
of whom we shall speak later;
(24) [(1) p.257] See below, page 432;
See the Commentary of 2016
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