Treaties, States Parties and Commentaries
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Commentary of 1952 


As the Convention provides for the retention of medical personnel whose presence is necessary to the prisoners of war, and for the return of the remainder, it was necessary to decide the rules according to which the Detaining Power would make the selection. But the criteria which the Convention lays down for selecting personnel for repatriation will first of all have to be used to select those who are to remain, this selection preceding the other in time. For it is only after deciding who will have to be retained that the Detaining Power can determine who can be returned.
The first factor to be taken into account is not mentioned in this Article, but follows from Article 28 , and is self-evident. It is the criterion of needs.
The agreements which belligerents are invited to conclude, or, in the absence of such agreements, a reasonable estimate of the needs of the prisoners, will make it possible to decide how many doctors, chaplains, dentists, medical orderlies, members of the administrative staff, etc., it will be necessary to retain.
The Detaining Power should therefore always classify medical personnel and chaplains according to the duties they are called upon to fulfil -- it could hardly hold back a doctor, for example, to act as a stretcher-bearer or hospital cook. (1)
After this question of appreciation as between needs and special qualifications, we must consider the two distinct provisions in the paragraph [p.266] under review, which, as we have seen, should be applied to each category of the personnel after they have been classified according to their functions.
The first prohibits any discrimination founded on race, religion or political opinions. Born of the painful experiences of the Second World War, it makes use of a formula which is used in several places in the new Conventions to stress the equal rights of the human beings protected. It is in the form of an absolute prohibition.
The second provision is different in character. Its effect is that, in the absence of the details which would be given in an ad hoc agreement, medical personnel are to be repatriated preferably according to their date of capture and state of health: those who have been held for a long time and those whose health has deteriorated are to have priority. Equity demands that the Detaining Power should, so far as possible, base itself on these two considerations.
Thus, if the fortunes of war lead to the arrival of successive batches of medical personnel and their number exceeds requirements, a rotation is to be introduced among the retained personnel, the latest arrivals replacing their comrades, who can then return to their home country.


Under this provision belligerents can determine by special agreement, as from the outbreak of hostilities, the percentage of personnel to be retained in proportion to the number of prisoners, and the distribution of the said personnel in the camps.
We have already referred to these agreements on several occasions, and we have, we think, shown how desirable it is that the Powers should accept the invitation made to them. The retention of medical personnel is a complicated matter, and calls for detailed provision over and above what is actually in the Convention if the new system is to work satisfactorily without giving rise to disputes. We feel that such agreements should not be limited to settling the percentage of personnel to be retained and their distribution in the camps, but should also decide, as we have already mentioned, whether medical personnel may be retained only in proportion to the number of prisoners of their own nationality, how far certain Articles of the Prisoners of War Convention [p.267] are applicable to retained personnel, whether the presence in the camps of auxiliary medical personnel should lead to a reduction in the number of permanent personnel who may be retained, and to what extent the need for specialists in the forces of the country of origin can be taken
into account.
Conscious of the importance of concluding special agreements of this nature, the 1949 Diplomatic Conference, in its Resolution 3, requested the International Committee of the Red Cross to prepare a model agreement for submission to the Powers for their approval.

* (1) [(1) p.265] At the 1949 Diplomatic Conference certain
delegations (especially the French Delegation) actually
asked that the Convention should take into account in this
connection any specialized qualifications which doctors
might possess. They advocated that express provision
should be made for a selection which would "take into
account the need for specialists at the front". It would,
in their view, be senseless and completely contrary to the
interests of the sick and wounded of the fighting forces
to retain a specialist, such as a neurological surgeon, in
the camps to do work which an ordinary general
practitioner could do equally well, while his particular
qualifications were urgently needed in his own army. If
the Convention could not exclude anomalies of this sort,
one would find army commands refusing to allow specialists
to go to the front line, for fear they might be captured,
and it would be the wounded who would suffer as a result.
These are obviously not imaginary difficulties. The
proposal to amend the Convention in this way could not be
accepted, however, as it was put forward too late. The
question might well be dealt with, with others, in the
special agreements which belligerents are, in the next
paragraph, invited to conclude;