Treaties, States Parties and Commentaries
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Commentary of 2020 
Article 33 : Rights and privileges of retained personnel
Text of the provision*
(1) Members of the medical personnel and chaplains while retained by the Detaining Power with a view to assisting prisoners of war, shall not be considered as prisoners of war. They shall, however, receive as a minimum the benefits and protection of the present Convention, and shall also be granted all facilities necessary to provide for the medical care of, and religious ministration to prisoners of war.
(2) They shall continue to exercise their medical and spiritual functions for the benefit of prisoners of war, preferably those belonging to the armed forces upon which they depend, within the scope of the military laws and regulations of the Detaining Power and under the control of its competent services, in accordance with their professional etiquette. They shall also benefit by the following facilities in the exercise of their medical or spiritual functions:
(a) They shall be authorized to visit periodically prisoners of war situated in working detachments or in hospitals outside the camp. For this purpose, the Detaining Power shall place at their disposal the necessary means of transport.
(b) The senior medical officer in each camp shall be responsible to the camp military authorities for everything connected with the activities of retained medical personnel. For this purpose, Parties to the conflict shall agree at the outbreak of hostilities on the subject of the corresponding ranks of the medical personnel, including that of societies mentioned in Article 26 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. This senior medical officer, as well as chaplains, shall have the right to deal with the competent authorities of the camp on all questions relating to their duties. Such authorities shall afford them all necessary facilities for correspondence relating to these questions.
(c) Although they shall be subject to the internal discipline of the camp in which they are retained, such personnel may not be compelled to carry out any work other than that concerned with their medical or religious duties.
(3) During hostilities, the Parties to the conflict shall agree concerning the possible relief of retained personnel and shall settle the procedure to be followed.
(4) None of the preceding provisions shall relieve the Detaining Power of its obligations with regard to prisoners of war from the medical or spiritual point of view.
* Paragraph numbers have been added for ease of reference.
Reservations or declarations
None
Contents

  • A. Introduction
  • B. Historical background
  • C. Paragraph 1: Status and treatment of retained personnel
  • D. Paragraph 2: Continuation of duties and facilities for carrying them out
  • E. Paragraph 3: Arrangements for relieving retained personnel
  • F. Paragraph 4: Continuation of the obligations of the Detaining Power
  • Select bibliography
    A. Introduction
    2320  Article 33 is the centrepiece of the regime for the retention of military medical and religious personnel (covered by Article 24 of the First Convention) and staff of voluntary aid societies employed on the same duties (covered by Article 26 of the First Convention) in international armed conflicts. Article 33 needs to be read together with Articles 28, 30 and 31 of the First Convention, where retention based on Article 28 is contemplated as an exception to the rule, set out in Article 30, requiring the return of such personnel to the Party to the conflict to which they belong. The special treatment to which qualifying personnel are entitled under this provision is designed to ensure that prisoners of war receive the necessary medical and spiritual care. The parts of Article 33 pertaining to the status, treatment and facilities due to retained medical personnel and chaplains appear almost word for word in Article 28 of the First Convention.[1]
    2321  The regulation of retention is informed by a balance between competing considerations. On the one hand, the captivity of such personnel hampers the mission of the medical and religious services of their own armed forces, which is to care for the wounded and sick wherever and whenever needed.[2] It is therefore in the interest of the home State to have medical and religious personnel returned as soon as possible. On the other hand, it is equally in the interest of the home State to have prisoners of war from its armed forces cared for by its own medical and religious personnel. However, for this to be possible, the retained personnel must be able to continue to fulfil their medical and religious tasks and not be employed on other duties. In addition, the retention of medical and religious personnel must not become a substitute for the obligation of a Detaining Power to provide for the medical and spiritual welfare of prisoners of war. If the Detaining Power discharges its responsibilities fully towards prisoners of war, there is likely to be no need to exercise the right of retention.
    2322  The retention of medical and religious personnel proved to be a contentious issue during the negotiations of the Geneva Conventions. However, in contrast to the Second World War, when belligerent Parties retained large numbers of enemy medical personnel over extended periods of time,[3] such practice today is rare.[4] Accordingly, while the provisions governing retention – with Article 33 at their core – remain applicable and relevant to the issue, the number of international armed conflicts in which they have been called upon to play a role has decreased over time.
    2323  It appears that the retention regime provided for in the Geneva Conventions, which rests on the principle that medical and religious personnel may not be retained unless the state of health, the spiritual needs and the number of prisoners of war so require, has not been applied by analogy in non-international armed conflicts. Accordingly, Parties to a non-international armed conflict are under no legal obligation to set captured medical or religious personnel free.[5]
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    B. Historical background
    2324  The legal regulation of the retention of medical and religious personnel has evolved considerably over time. Article 3 of the 1864 Geneva Convention provided that:
    [Medical and religious personnel] may, even after enemy occupation, continue to discharge their functions in the hospital or ambulance with which they serve, or may withdraw to rejoin the units to which they belong. When in these circumstances they cease from their functions, such persons shall be delivered to the enemy outposts by the occupying forces.
    The provision led commentators to conclude that Parties to an armed conflict had no unilateral right to retain such personnel.[6]
    2325  The 1906 Geneva Convention addressed the subject of retention for the first time in its Article 12, which is a rudimentary precursor of the current rule inasmuch as it contemplated the retention of medical personnel who were to ‘continue in the exercise of their functions, under the direction of the enemy, after they ha[d] fallen into his power’ for as long as their assistance was indispensable, after which they were to be ‘sent back to their army or country’.[7] The rule in the 1929 Geneva Convention on the Wounded and Sick was based on the contrary assumption, namely the principle of return of medical and religious personnel to the Party to which they belong.[8] Belligerents were allowed to abrogate from this rule by way of special agreements on the retention of medical personnel.[9] In the absence of such an agreement, retained personnel were to be sent back to the belligerent to which they belonged ‘as soon as a route for their return shall be open and military considerations permit’.[10] However, pending their return, retained medical personnel were to ‘continue to carry out their duties under the direction of the enemy’ and ‘preferably be engaged in the care of the wounded and sick of the belligerent to which they belong’.[11]
    2326  A number of special agreements of the type envisaged in the 1929 Convention were concluded during the Second World War. However, the Convention did not prescribe the procedure to be followed or the treatment and conditions of work to be accorded to retained medical personnel. Belligerents subjected such personnel to the same conditions of captivity as prisoners of war, in some cases considered them as such, and often made them engage in work of a non-medical nature.[12] The ICRC argued against such an equation in terms of their status and treatment.[13] As regards their status, the ICRC’s position had a clear basis in two legal precursors, the 1906 and 1929 Geneva Conventions, both of which stipulated that medical personnel who fell into enemy hands were not to be treated as prisoners of war.[14] As regards their treatment, the ICRC pointed out the need for additional privileges and facilities enabling retained medical personnel to carry out their duties.[15] While this request was fully in line with the underlying rationale of retaining medical personnel, it did not have a basis in law at the time.
    2327  The retention of medical and religious personnel proved to be one of the most divisive issues during the drafting of the 1949 Geneva Conventions.[16] While agreement on the permissibility of retaining medical personnel was reached relatively soon, a lively discussion continued for several years on the subject of the status of retained personnel.[17] The view of a group of States that retained medical and religious personnel should be treated as prisoners of war was opposed by other States and the ICRC, which were of the opinion that such personnel should be entitled not only to a special status that would confirm their inviolable character as non-combatants but also to a number of privileges and facilities that would allow them to perform their duties efficiently. The discussions eventually culminated in a compromise, largely based on a draft approved by the International Conference of the Red Cross held in Stockholm in 1948, which provided that retained medical and religious personnel should not be considered prisoners of war, while at least benefiting from all the provisions of the Third Convention, as well as from a number of privileges and facilities necessary to the performance of their medical and spiritual duties.[18]
    2328  The controversy surrounding the drafting of Article 33 meant that the provision as adopted lacked detail in certain respects. States decided to leave unanswered some of the specifics of the retention regime, such as the ratios between certain types of medical personnel and the number of prisoners of war, and did not include details of the relief of retained medical and religious personnel. Instead, the 1949 Diplomatic Conference adopted Resolution 3 entitled ‘Preparation of a Model Agreement on the Percentage and Relief of Retained Personnel’, requesting the ICRC ‘to prepare a model agreement’ on the topics of both Articles 28 and 31 of the First Convention, although it was understood that the Model Agreement would not be legally binding.[19] In the same resolution, the ICRC was further requested ‘to submit [the Model Agreement] to the High Contracting Parties for their approval’. Resolution 3 resulted in the publication by the ICRC in 1955 of two Model Agreements, one relating to the retention of medical and religious personnel, the other to the relief of such personnel.[20] The same year, the ICRC circulated paper copies of the Model Agreements, accompanied by a commentary, to the Permanent Missions in Geneva, as well as to National Red Cross and Red Crescent Societies. The sole substantive comments received in response were from the United Kingdom, which objected to a number of deviations in the Model Agreements from the original text of the First Convention.[21]
    2329  Academic writings in the early years after the adoption of Article 33 display a degree of dissatisfaction with the compromise reached. Some commentators lamented the provision’s resulting lack of precision. For instance, Article 33 stipulates that, although not deemed prisoners of war, retained medical personnel ‘shall … receive as a minimum the benefits and protection of the present Convention’, without specifying which provisions may be considered beneficial and which detrimental to the personnel concerned.[22]
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    C. Paragraph 1: Status and treatment of retained personnel
    2330  Article 33 applies only to ‘[m]embers of the medical personnel and chaplains while retained by the Detaining Power with a view to assisting prisoners of war’. This refers to the personnel designated in Articles 24 and 26 of the First Convention, i.e. medical and religious personnel attached to the armed forces, and staff of duly recognized and authorized voluntary aid societies employed on the same duties. Article 28 of the First Convention sets out the conditions under which their retention is permissible; these conditions are not repeated in the Third Convention. For details, see the commentary on Article 28 of the First Convention, paras 2162–2169. For a discussion of the determination of status of retained personnel, see paras 2171–2173 of the same commentary.
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    1. Exclusion from prisoner-of-war status
    2331  Paragraph 1 begins by specifying that retained personnel are not to be considered prisoners of war.[23] While thus excluding them from prisoner-of-war status, neither Article 33 nor any of the other related provisions of the Geneva Conventions define in positive terms the status of retained personnel in the way that the Third Convention does for prisoners of war[24] or the Fourth Convention does for ‘protected persons’.[25] Notwithstanding the absence of such a definition, retained personnel constitute a separate category of persons in enemy hands, subject to distinct regulation.[26]
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    2. Benefit by all the provisions of the Third Convention
    2332  Retained personnel, while they do not have prisoner-of-war status, ‘shall, however, receive as a minimum the benefits and protection of the present Convention’. As is the case under Article 28 of the First Convention (‘at least benefit by all the provisions’), the choice of wording indicates that only those provisions of the Third Convention that are advantageous to retained personnel apply.[27] By limiting the applicable rules to those that benefit and protect prisoners of war – as opposed to those that may be disadvantageous – this provision confirms that the legally required treatment of retained medical and religious personnel differs from that of prisoners of war. At the same time, there is no substantive difference between the phrase ‘shall at least benefit’ in Article 28 of the First Convention and ‘shall … receive as a minimum the benefits and protection’ here. The rules that have an element of ‘protection’ certainly ‘benefit’ prisoners of war and therefore retained medical and religious personnel as well.
    2333  Entitlement to the benefits and protection of the Third Convention means that retained personnel must at all times be humanely treated and protected, and no reprisals may be taken against them.[28] Retained personnel are entitled in all circumstances to respect for their persons and their honour.[29] Retained women must be treated with all the regard due to their sex and in all cases benefit by treatment as favourable as that granted to men.[30] Captured medical and religious personnel retain the full civil capacity which they enjoyed at the time they fell into the hands of the adverse Party.[31] The Detaining Power must also provide retained personnel free of charge with the necessities of life and the medical attention required by their state of health.[32] Like prisoners of war, retained medical and religious personnel are also entitled to equal treatment: while some differential treatment may be accorded to them on the grounds of their rank, sex, state of health, age or professional qualifications, they may be subject to no (other) adverse distinction.[33]
    2334  More concretely, when, for example, retained personnel are questioned in order to ascertain their status, they are bound to give only their ‘surname, first names and rank, date of birth, and army, regimental, personal or serial number, or failing this, equivalent information’.[34] Likewise, their personnel effects must remain in their possession, except arms that they may have carried with them for self-defence or for the defence of the wounded and sick in their charge, horses, military equipment and military documents.[35] In a similar vein, the rules governing the evacuation of prisoners of war also apply to retained personnel.[36]
    2335  However, the foregoing are relatively clear-cut examples of beneficial rules, as opposed to rules which neither benefit nor protect. In other cases, determining whether a given (part of a) provision of the Third Convention confers a benefit or a protection to retained personnel can be more complex. Some of the rules on penal and disciplinary sanctions as provided for in Articles 82–108 may serve as examples. The first sentence of Article 33(2) requires that retained personnel continue to carry out, in accordance with their professional etiquette, their medical and spiritual duties ‘[w]ithin the scope of the military laws and regulations of the Detaining Power and under the control of its competent services’. Accordingly, retained personnel may be subject to judicial or disciplinary measures in respect of violations of such laws and regulations. While a number of the rules in the Third Convention addressing such sanctions are clearly beneficial,[37] others will not necessarily be. Thus, the determination of whether a provision of the Third Convention constitutes a ‘benefit’ in the sense of the second sentence of Article 33(1) has to be made on a case-by-case basis by the Detaining Power acting in good faith.
    2336  As a general rule, however, all provisions of the Third Convention that enable retained personnel to carry out their medical or spiritual duties for the benefit of prisoners of war and that facilitate those tasks, within the confines of the military laws and regulations of the Detaining Power, are applicable to such personnel.[38] Conversely, provisions that hamper retained personnel in carrying out their duties are not applicable. Thus, although the liberty of retained personnel may be restricted, they may not be interned in the sense of the Third Convention to the extent that such an internment would interfere with the fulfilment of their medical and spiritual duties.[39] Indeed, as they may be retained only to fulfil these duties, the extent of the restrictions on their liberty will vary according to circumstances and may include less severe restrictions, such as supervision and assigned residence, rather than actual internment in a camp.[40]
    2337  Similarly, when the state of health, the spiritual needs and the number of transferred prisoners of war so require, retained medical and religious personnel may be transferred to another Detaining Power along with the prisoners of war, while benefiting from the same safeguards as the prisoners of war.[41] Furthermore, the special provisions relating to retained personnel restrict the work which may be assigned to them to medical and spiritual duties,[42] and thus exclude the provisions in the Third Convention dealing with the assignment of work to prisoners of war and the arrangements connected with it. However, retained personnel will benefit from the provisions on working conditions, rest, pay, etc., in so far as the provisions in question are compatible with the carrying out of their medical or spiritual duties.[43] The aforementioned examples show that a detailed analysis is required in order to identify those rules in the Third Convention that are applicable to retained personnel.
    2338  It is equally clear from the wording of paragraph 1 that the Detaining Power is in no way prevented from going beyond the beneficial provisions of the Third Convention, i.e. it may grant retained medical and religious personnel more advantageous treatment. However, practice seems to suggest that Detaining Powers rather treat retained personnel on the same footing as prisoners of war in terms of the benefits and protection they accord.[44]
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    D. Paragraph 2: Continuation of duties and facilities for carrying them out
    1. Continuation of medical or spiritual duties
    2339  The first sentence of Article 33(2) confirms that, although the retention of medical and religious personnel places them in a new environment and under a different authority, their essential work of caring for wounded and sick prisoners of war remains unchanged, and should continue without hindrance.[45] Indeed, the stipulation that retained personnel ‘shall continue to exercise … their medical and spiritual functions for the benefit of prisoners of war’ constitutes the centrepiece of the retention regime and informs the interpretation of the provision. The expression ‘medical and spiritual functions’ must be understood in its broadest sense to encompass all work that is intrinsically linked to meeting the medical and spiritual needs of prisoners of war.[46] Thus, for instance, personnel who are engaged in the administration of units and hospitals may be required to continue to carry out the duties assigned to them. In addition, it follows that it is impermissible to retain medical and religious personnel for undertaking other (non-medical and non-spiritual) duties, as explicitly stated in Article 33(2)(c). It also means that the Detaining Power may not interfere with the performance of their functions. Rather, it must facilitate the fulfilment of these functions.[47] Accordingly, the Detaining Power may not deprive retained personnel of, but must provide them with, the required medical equipment. Similarly, while Article 18 allows prisoners of war to keep only certain ‘effects and articles of personal use’, retained personnel are entitled to keep all articles and equipment needed for their professional use.
    2340  Several provisions of the Model Agreement specify how this underlying principle pertains to specific categories of medical personnel, including specialists[48] and women nurses.[49] Conversely, the text says they ‘shall continue … their functions’. This has been interpreted as implying that persons initially covered by Article 33 yet who refuse to perform such duties ‘would not be entitled to retained personnel status’.[50] Where such a refusal takes place even when all the conditions of Article 33 have been complied with, the persons in question will be entitled to prisoner-of-war status. [51]
    2341  Once the personnel are retained, their medical and spiritual functions will be carried out under the military laws and regulations of the Detaining Power and under the control of its competent services.[52] The Detaining Power, being responsible for the state of health of all prisoners of war in its hands,[53] retains 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 regular staff in matters relating to the exercise of their profession. The medical personnel will naturally be placed under the control of the medical services of the Detaining Power, while religious personnel will come under the same service as that to which the religious personnel of the Detaining Power are attached.[54]
    2342  The Convention nevertheless tempers this rule by specifying that medical and religious personnel are to carry out their duties ‘in accordance with their professional etiquette’. Article 28 of the First Convention refers instead to ‘their professional ethics’, a phrase that is substantively identical. It has been stated that the ‘captor’s authority ends where questions of medical ethics begin’.[55] Of importance to note is that ‘their’ professional etiquette refers to the ethics of the medical and religious personnel themselves, which are not necessarily identical to those of the retaining Power.[56] A central element of the professional ethics of medical personnel is their complete clinical independence in deciding upon the treatment of persons in their care.[57] Thus, a doctor may not be prevented from treating a sick person, or obliged to adopt a certain treatment, although some restrictions to clinical freedom may emanate from factors such as a limited choice of medications or the need to respect standard protocols on the diagnosis and treatment of particular conditions (such as communicable diseases, including tuberculosis and HIV). With regard to the ‘professional etiquette’ of religious personnel, Article 35 requires that they be allowed to minister to the prisoners of war ‘in accordance with their religious conscience’.[58]
    2343  Article 33(2) also provides that the prisoners of war on whose behalf retained personnel are to carry out their functions should preferably be ‘those belonging to the armed forces upon which they depend’.[59] The recommendatory language indicates that it is permissible to retain medical and religious personnel also for the care of prisoners of war of the armed forces of other Parties to the conflict. However, the provision reflects a clear preference of States for prisoners of war to be cared for by medical and religious personnel of their own armed forces, who, for instance, speak the same language and use familiar treatment methods, on the assumption that under these conditions medical care might be better accepted and yield better results. At the same time, the carrying out of medical and spiritual functions for members of the armed forces to which retained personnel themselves belong must not conflict with the principle of non-discrimination which informs the entire regime of care for the wounded and sick[60] or with professional ethics. It would be impermissible to grant preferential treatment to wounded and sick prisoners of war of the armed forces to which retained personnel themselves belong if they are in less urgent need of medical assistance and care than those belonging to other armed forces.
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    2. Facilities for carrying out medical or spiritual functions
    2344  The second sentence of Article 33(2) sets out the additional facilities which are to be accorded to retained personnel.[61] The wording that retained personnel ‘shall also’ benefit by the facilities listed – over and above the benefits and protections conferred by the Third Convention – entails that the application of beneficial provisions of the Third Convention to retained personnel is subsidiary to the application of the provisions of Article 33. In other words, if a given facility is regulated specifically in Article 33(2), second sentence, but the matter is also addressed in another provision of the Third Convention either in a more generic or in a conflicting fashion, the special provisions relating to retained personnel take precedence. Thus, the restriction of work of retained personnel to their medical or religious duties in Article 33(2)(c) takes precedence over Articles 49 and 50, which identify certain types of work for which a Detaining Power may utilize prisoners of war ‘with a view particularly to maintaining them in a good state of physical and mental health’ (and in that sense constituting a ‘benefit’).
    2345  The purpose of the additional facilities foreseen in the second sentence of Article 33(2) is to support retained personnel in carrying out their medical or spiritual functions. These facilities thus further underline the rationale of granting special status to medical and religious personnel, namely to enable them to carry out their functions under the best possible conditions and not to accord them privileges as individuals. The ultimate justification for their privileged status is the good of the prisoners of war for whose benefit they work.
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    a. Periodic visits to working detachments or hospitals outside the camp
    2346  The first facility accorded to retained personnel, in addition to the right to visit prisoners of war inside a camp, is the right, under subparagraph (a), to make periodic visits to prisoners of war in working detachments[62] (for instance to verify that the prisoners of war are fit for work)[63] or in hospitals outside the camp, and to have the necessary transport for that purpose.[64] The Detaining Power is free to exercise such supervision over these journeys as it considers necessary, and will decide if the circumstances call for an escort or not. 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.
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    b. Senior medical officer responsible to the camp military authorities
    2347  Under subparagraph (b), ‘[t]he senior medical officer in each camp shall be responsible to the camp military authorities for everything connected with the activities of retained medical personnel’. That medical officer is automatically selected according to their highest rank among the retained medical personnel. To facilitate the identification of these ranks, the Parties to the conflict are under an obligation to agree, from the outbreak of hostilities, ‘on the subject of the corresponding ranks of the medical personnel, including that of societies mentioned in Article 26’ of the First Convention. The said ranks are also to be communicated with a view to facilitating the determination of who is the senior medical officer.[65]Any resulting agreement is a special agreement and must comply with the requirements of Article 6 of the First and Third Conventions. Accordingly, such an agreement may not adversely affect the situation of the wounded and sick or the medical or religious personnel as defined in both Conventions, nor restrict the rights which the Conventions confer upon them.[66]
    2348  The senior medical officer will perform, on behalf of the retained medical personnel, all the duties which the prisoners’ representative performs for prisoners of war.[67] Accordingly, the senior medical officer will, in fact, be the medical personnel’s representative. However, the role of the senior medical officer differs from that of the prisoners’ representative inasmuch as Article 33(2)(b) specifies that the former is ‘responsible’ to the authorities ‘for everything connected with the activities of retained medical personnel’.[68] The senior medical officer will therefore effectively act as 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 control of the competent services of the Detaining Power. On this point, through the use of the words ‘everything connected with the activities of’, Article 33(2)(b) describes the responsibility of the senior medical officer in each camp more loosely compared with the formulation used in Article 28(2)(b) of the First Convention, which limits that responsibility to ‘the professional activity of the retained medical personnel’. However, if considered in the context of the remainder of Article 33(2)(b), where reference is made to the right of the senior medical officer and religious personnel ‘to deal with the competent authorities of the camp on all questions relating to their duties (emphasis added), it would stand to reason to interpret the responsibility as limited to the professional activity of the retained medical personnel and thus as being identical to Article 28(2)(b) of the First Convention.[69]
    2349  Article 33 gives the senior medical officer two prerogatives: the right to deal with the competent authorities of the camp on all questions relating to their duties; and the necessary facilities for correspondence relating to such questions. When comparing Article 33 of the Third Convention to Article 28 of the First Convention, the English version of Article 33(2)(b) provides more loosely for a ‘right to deal with the competent authorities of the camp’, versus the First Convention’s requirement that the senior medical officer ‘have direct access’ to the camp authorities. The French version, meanwhile, uses identical wording (‘accès direct’) in both articles. The meaning which best reconciles the differences in the texts arguably is to understand the English version of Article 33(2)(b) as also providing for a right of direct access to the camp authorities.[70]
    2350  Regarding the necessary facilities for correspondence, no limit may be placed on the number of letters, cards, emails and other communications which it may be necessary for the responsible medical officer to send and receive. This is contrary to what may be the case in certain circumstances with regard to the number of communications sent and received by prisoners of war.[71] It is important that the responsible medical officer remains in close touch with medical circles in their own country and with the Protecting Power, the ICRC, relief organizations, the families of captured personnel and others of relevance. In general, therefore, the facilities for correspondence should be at least as generous as those accorded to prisoners’ representatives.[72]
    2351  It should be noted that the appointment of a ‘responsible’ officer only concerns medical personnel and not religious personnel. However, individual religious personnel are, like the responsible medical officer, to have direct access to the camp authorities, who are under an obligation to provide them with the facilities they may require for correspondence relating to questions arising out of their duties. Furthermore, Article 35 contains additional rules pertaining to religious personnel who are retained to assist prisoners of war, including correspondence, ‘subject to censorship, on matters concerning their religious duties with the ecclesiastical authorities in the country of detention and with international religious organizations’.[73]
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    c. Performance of work outside medical or religious duties
    2352  Subparagraph (c) stipulates that retained personnel may not be compelled to carry out any work other than that concerned with their medical or religious duties. That fundamental rule is absolute. Thus, retained personnel may not be obliged to do work outside their medical or religious duties even if they happen to be unoccupied for a brief period of time. During such time, they may always, of course, volunteer for work outside their medical or religious duties. That said, it is inadvisable for retained personnel to become prisoner of war representatives in the sense of Articles 79–81.[74]
    2353  However, if no work falling within the scope of their medical or religious duties is available for a longer period of time, their retention is no longer indispensable, and they have to be returned to the Party to the conflict to which they belong, in accordance with Article 30 of the First Convention.
    2354  It follows from subparagraph (c) (in addition to the more generic stipulation that retained personnel ‘shall continue to exercise … their medical and spiritual functions’),[75] that the provisions on the labour of prisoners of war[76] – even to the extent that they are to be considered ‘beneficial’ in the sense explained above – have to be adapted accordingly: those provisions that identify the type of work to which prisoners of war may be assigned and the arrangements connected with it[77] are generally not applicable to retained personnel. Furthermore, the beneficial provisions pertaining to working conditions, rest, pay, etc.[78] are only applicable to the extent that they are compatible with the carrying out of medical and spiritual duties.[79]
    2355  The same subparagraph provides that retained personnel are to be subject to the internal discipline of the camp.[80] The provision should be read in conjunction with the clause, examined above,[81] that the personnel are to carry out their duties under the control of the competent service of the Detaining Power. They will thus come under the control of the commander of the camp except when actually carrying out their duties, in which case they are subject to the authority of the competent medical or religious service of the Detaining Power. It has been argued in this respect that ‘[i]t would therefore appear that they could now be legally disciplined for attempted escape to the same extent as a prisoner of war’.[82]
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    E. Paragraph 3: Arrangements for relieving retained personnel
    2356  Article 33(3) requires Parties to the conflict ‘to agree concerning the possible relief of retained personnel’ during hostilities, and to settle the procedure to be followed in this regard. In its ordinary meaning, ‘to relieve’ means ‘to release (a person) from a duty by acting or providing a substitute’.[83] The concept of ‘relieving’ in the present context is thus equivalent to ‘substituting’ retained personnel. Generally speaking, the substitution of retained personnel can take various forms: retained personnel can be replaced by personnel belonging to the Detaining Power, by new personnel who have fallen into the hands of that Power,[84] or by personnel selected by a Party to the armed conflict for the specific purpose of relieving retained personnel of the same nationality. For its part, Article 28 of the First Convention, rather than stipulating that the Parties ‘shall agree’, states that they ‘shall make arrangements’ for the relief. The ‘arrangements’ for relief made between the Parties to the conflict referred to pertain only to the last form of relief. The caveat ‘possible’ in front of ‘relief’ in Article 33 makes clear that there is no obligation to make such arrangements, but that their making as well as their substance will depend on a variety of factors. When drafting the Model Agreement Relating to the Relief of Medical Personnel and Chaplains, the ICRC identified the following factors: ‘the circumstances obtaining at the time, the nature of the conflict, the Powers concerned in the relief, their national characteristics, the geographical distances which separate them, the number of prisoners, the actual organization of the Medical Services of the armies concerned and that of the medical profession, the state of mind of the civilian population, and so on’.[85]
    2357  The agreements resulting from an application of Article 33(3) are special agreements in the sense of Article 6 of the Third Convention, which must comply with the substantive requirements of the latter provision. The Model Agreement Relating to the Relief of Medical Personnel and Chaplains provides a blueprint for such arrangements and the applicable procedure. However, nothing prevents the Parties from diverging from the Model Agreement. Indeed, as the ICRC explained in its commentary on the Model Agreement, opinions on the subject of relief of medical and religious personnel ‘varied considerably and were often actually contradictory’.[86] This divergence of views, which ‘had already been noted in the course of the 1949 Diplomatic Conference’, was ‘symptomatic of the special character, highly technical and often varying according to the regions and nationalities concerned, of the problems raised by the organization of a relief operation’.[87] Against the backdrop of the context-specific circumstances of any armed conflict, the ICRC, when drafting the Model Agreement, kept to a few principles which it considered to be ‘apparently valid in all cases’ at the time.[88] The principles addressed matters such as the period after which retained personnel must be relieved, the equivalence in competence and duties between relieved and relieving personnel, the choice of the personnel to be relieved, certain prioritizations of personnel to be relieved, the authority of the Detaining Power over relieving personnel, the possibility of an overlapping period after the arrival of the relieving personnel before the departure of the retained personnel, safety issues, the issuing of identity cards to relieving personnel, the responsibility for recruiting and selecting relieving personnel, and the establishment of a body to coordinate relief operations.[89]
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    F. Paragraph 4: Continuation of the obligations of the Detaining Power
    2358  Article 33(3) restates the fundamental consideration underlying the retention regime as a whole, which is that retention may not be used as a way to circumvent the Detaining Power’s obligations regarding the medical and spiritual welfare of the prisoners of war.[90] These obligations include the provision free of charge for the maintenance of prisoners of war and for the medical attention required by their state of health.[91] This obligation in turn entails that the Detaining Power makes available its own medical and, to the extent appropriate, religious personnel to prisoners of war. The retention of enemy medical and religious personnel is no substitute for this, nor does retention amount to the actual fulfilment of these obligations.[92] Instead, the lawfulness of retention is conditioned on the Detaining Power not being in a position to provide for the medical and spiritual welfare of prisoners of war through its own medical and religious personnel. Retention is thus envisaged as a complement to, rather than a substitute for, the Detaining Power’s own measures.[93]
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    Select bibliography
    Bugnion, François, The International Committee of the Red Cross and the Protection of War Victims, ICRC/Macmillan, Oxford, 2003.
    ICRC, ‘La rétention et la relève du personnel sanitaire et religieux : Accords-types’, Revue internationale de la Croix-Rouge et Bulletin international des Sociétés de la Croix-Rouge, Vol. 37, No. 433, January 1955, pp. 7–31.
    Jeanty, Bernard, La protection du personnel sanitaire dans les conflits armés internationaux, Thèse de Licence, Université de Neuchâtel, 1989.
    Lauterpacht, Hersch, ‛The Problem of the Revision of the Law of War’, British Yearbook of International Law, Vol. 29, 1952, pp. 360–382.
    Levie, Howard S., Prisoners of War in International Armed Conflict, International Law Studies, U.S. Naval War College, Vol. 59, 1978.
    Odom, Jonathan G., ‘Beyond Arm Bands and Arms Banned: Chaplains, Armed Conflict, and the Law’, Naval Law Review, Vol. 49, 2002, pp. 1–70.
    Pictet, Jean S., ‘Les nouvelles Conventions de Genève : La rétention du personnel sanitaire des armées tombé au pouvoir de la partie adverse’, Revue internationale de la Croix-Rouge et Bulletin international des Sociétés de la Croix-Rouge, Vol. 31, No. 371, November 1949, pp. 869–884, and Vol. 31, No. 372, December 1949, pp. 937–976.
    – ‘La profession médicale et le droit international humanitaire’, Revue internationale de la Croix-Rouge, Vol. 67, No. 754, August 1985, pp. 195–213.
    Schoenholzer, Jean-Pierre, ‘Le médecin dans les Conventions de Genève de 1949’, Revue internationale de la Croix-Rouge et Bulletin international des Sociétés de la Croix-Rouge, Vol. 35, Nos 410/411, February/March 1953, pp. 94–126 and 169–194.
    Vollmar, Lewis C., ‘Military Medicine in War: The Geneva Conventions Today’, in Thomas E. Beam and Linette R. Sparacino (eds), Military Medical Ethics, Vol. 2, Office of The Surgeon General, United States Army, Washington D.C., 2003, pp. 739–771.

    1 - The small differences between the two articles are analysed, where relevant, in this commentary. However, none of these differences have any substantive implications. See also Sigrid Mehring, First Do No Harm: Medical Ethics in International Humanitarian Law, Brill, Boston, 2014, p. 111, fn. 163. The choice of having a near-identical provision in both the First and Third Conventions was deliberate: in the event that a State ratified the Third but not the First Convention, it ensured that the commander of a prisoner-of-war camp would still know the rules; see Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II-A, p. 392.
    2 - Bugnion, p. 472: For medical personnel to be able to do their job properly it is not enough to protect them against the hazards of battle; the belligerents must also refrain from obstructing their work. The most common impediment of all, and the most likely to bring the work of medical services to a standstill, is captivity. If doctors, medical orderlies, and nurses are thrown into camps and fortresses pell-mell with prisoners of war, they can do nothing for the wounded lying on the field of battle.
    3 - See Pictet (ed.), Commentary on the First Geneva Convention, ICRC, 1952, p. 237.
    4 - For examples, see Bugnion, p. 478.
    5 - In this vein, see also ibid. p. 473.
    6 - Ibid. p. 472: The 1864 Conference (Art. 3) settled the issue in the clearest possible way: it ruled that medical personnel were not to be taken prisoner; that even under enemy occupation, they must be freely able to continue their work of tending the wounded and sick; and that when their care was no longer required they were to be handed over to the outposts of their own armed forces.
    7 - See also Article 17(2) of the 1906 Geneva Convention pertaining to convoys of evacuation, which reaffirmed ‘the obligation to return the sanitary personnel’ when their assistance was no longer indispensable.
    8 - See Geneva Convention on the Wounded and Sick (1929), Article 12(1).
    9 - See ibid. Articles 12(2) and 14(4).
    10 - See ibid. Article 12(2).
    11 - Ibid. Article 12(3). For an analysis of the provision, see Des Gouttes, Commentaire de la Convention de Genève de 1929 sur les blessés et malades, ICRC, 1930, pp. 72–86.
    12 - Vollmar, p. 746.
    13 - Report of the Preliminary Conference of National Societies of 1946, p. 32.
    14 - See Article 9 of both Conventions.
    15 - Report of the Preliminary Conference of National Societies of 1946, pp. 32–33.
    16 - See also Paul de La Pradelle, La Conférence diplomatique et les nouvelles Conventions de Genève du 12 août 1949, Les Editions internationales, Paris, 1951, pp. 114–133.
    17 - For an illustration of these discussions and the arguments on both sides, see e.g. the statements made by States during the 1949 Diplomatic Conference, Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II-A, pp. 67–71.
    18 - Draft Conventions adopted by the 1948 Stockholm Conference, draft article 22.
    19 - As to the intended non-binding nature of the model agreement, see Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II-A, p. 170.
    20 - ICRC, The Retention and Relief of Medical Personnel and Chaplains: Model Agreements, ICRC Doc. D306/2b, 1955, https://library.icrc.org/library/search/notice?noticeNr=42387.
    21 - The most notable inconsistencies that the United Kingdom pointed out between Article 28 of the First Convention and the Model Agreements were: (a) Article 1(1) of the Model Agreement Relating to the Retention of Medical Personnel and Chaplains provides that retained personnel may only ‘carry out their duties on behalf of prisoners of war of the armed forces to which they themselves belong’, whereas Article 28 contains no such restriction; (b) Article 1(2) of the same Model Agreement stipulates that the staff of National Red Cross and Red Crescent Societies and of other voluntary aid societies ‘may only be retained at their own express wish’, whereas Article 28 does not require such consent; (c) Article 8 of the same Model Agreement restricts the possibility of transferring retained medical and religious personnel to situations where ‘such personnel accompany prisoners of war who have already been in their care and are being transferred under the circumstances provided for in Article 12 of the Third Convention, and only in so far as such care cannot be provided by medical personnel of the new Detaining Power’, a restriction that cannot be deduced from Article 28; and (d) Article 5 of the Model Agreement Relating to the Relief of Medical Personnel and Chaplains unduly subjects them to the military laws and regulations of the Retaining Power, in contravention of Article 28.
    22 - See e.g. Schoenholzer, pp. 173–174, and Lauterpacht, p. 380. See also, later, Pictet, 1985, p. 203.
    23 - See also Article 4C: ‘This Article [definition of prisoners of war] shall in no way affect the status of medical personnel and chaplains as provided for in Article 33 of the present Convention.’
    24 - Article 4.
    25 - Fourth Convention, Article 4.
    26 - See also Pictet (ed.), Commentary on the Fourth Geneva Convention, ICRC, 1958, p. 51.
    27 - Schoenholzer, pp. 173–174.
    28 - See Article 13.
    29 - See Article 14(1).
    30 - See Article 14(2).
    31 - See Article 14(3).
    32 - See Article 15.
    33 - See Article 16.
    34 - See Article 17(1).
    35 - See, mutatis mutandis, Article 18(1).
    36 - See Articles 19–20.
    37 - Examples are the obligation of the Detaining Power to ‘ensure that the competent authorities exercise the greatest leniency and adopt, wherever possible, disciplinary rather than judicial measures’ (Article 83), and the fair trial guarantees referred to in Articles 84(2) and 86.
    38 - See also Model Agreement Relating to the Retention of Medical Personnel and Chaplains, Article 11.
    39 - See also the commentary on Article 21, para. 1930.
    40 - In this vein, see also Pictet (ed.), Commentary on the First Geneva Convention, ICRC, 1952, p. 245. On the notions of ‘supervision’ and ‘assigned residence’, see, mutatis mutandis, the commentary on Article 41 of the Fourth Convention.
    41 - See Article 12 and Model Agreement Relating to the Retention of Medical Personnel and Chaplains, Article 8.
    42 - See section D.2.c.
    43 - For further details, see Articles 49–57. See also Article 9 of the Model Agreement on working pay.
    44 - See e.g. United States, Army Regulation on Enemy Prisoners, Retained Personnel, Civilian Internees and Other Detainees, 1997, pp. 14–15.
    45 - For religious personnel, see also the first and second sentences of Article 35.
    46 - Vollmar, p. 746: ‘[T]he term “medical duties” must be interpreted broadly to include such work as administration and upkeep of a hospital or clinic in which the medical personnel are working.’
    47 - See e.g. New Zealand, Military Manual, 2019, Vol. 4, p. 12-46, para. 12.10.35(b): ‘all necessary assistance is provided to allow retained medical personnel to carry out their medical duties’ (emphasis added).
    48 - See Article 3(2) of the Model Agreement.
    49 - See Article 4 of the Model Agreement.
    50 - United States, Law of War Manual, 2016, p. 131, para. 4.9.2.3, and p. 464, para. 7.9.4.
    51 - Similarly, see Levie, p. 74.
    52 - See also para. 2(c) of this article, stating that retained personnel in a camp are subject to its internal discipline. See e.g. Denmark, Military Manual, 2016, chapter 15, section 4.4, p. 651: ‘During armed conflict, [the Danish Military Prosecution Service] is authorised to hear and decide cases against: … medical personnel and chaplains who are detained to assist prisoners of war unless otherwise provided by applicable international agreements.’; and p. 652: ‘During armed conflict, the Danish Military Disciplinary Code applies to any person serving in the Danish Defence or accompanying their units, prisoners of war, and medical personnel and chaplains who are detained to assist prisoners of war.’
    53 - See Article 15.
    54 - Article 28 of the First Convention uses the substantively identical term ‘under the authority of [the Detaining Power’s] competent service’.
    55 - Vollmar, p. 746.
    56 - Of note also is that the French version of Article 28 of the First Convention uses the term ‘conscience professionnelle’, which introduces a more subjective element; see Sigrid Mehring, ‘The Rights and Duties of Physicians in Armed Conflict’, Militair Rechtelijk Tijdschrift, Vol. 103, No. 5, 2010, pp. 205–221, at 217–218.
    57 - See e.g. World Medical Association, WMA Declaration of Tokyo: Guidelines for Physicians concerning Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment in Relation to Detention and Imprisonment, adopted by the 29th World Medical Assembly in Tokyo, Japan, in October 1975, last revised by the 173rd WMA General Assembly in October 2016. See also Additional Protocol I, Article 16.
    58 - For a discussion of how this squares with the ‘under the control’ element of Article 33, see the commentary on Article 35, para. 2396.
    59 - See the same logic at play in Article 30(3).
    60 - See First Convention, Article 12(2) and (3).
    61 - See also the additional facilities granted to retained religious personnel by virtue of Article 35.
    62 - Article 28 of the First Convention uses the substantively identical term ‘labour units’. Similarly, see the commentary on Article 79 of the present Convention, section E.
    63 - See Article 55.
    64 - For details regarding religious personnel, see the commentary on Article 35, section C.3.
    65 - See United States, Law of War Manual, 2016, p. 545, para. 9.4.2.5.
    66 - Article 6(1). As to the temporal scope of the applicability of such special agreements, see Article 6(2).
    67 - On prisoners’ representatives, see, in particular, Articles 79–81, in addition to Articles 28(2), 41(2), 48(4), second sentence, 57(2), 62(3), 65(1), 78(2), 96(4), third sentence, 98(5), second sentence, 104(3) and (4), 107(1), second sentence, 113(1), subparagraph 2, and 113(4), 125(4), first sentence, and 126(1), second sentence.
    68 - On this point, Article 33 is broader than its counterpart in the First Convention, which limits this responsibility to the ‘professional activity of the retained medical personnel’.
    69 - In this vein, see New Zealand, Military Manual, 2019, Vol. 4, p. 12-46, para. 12.10.35(c): ‘[T]he senior retained medical officer has the right to deal directly with the commander on any matter related to medical care.’ (Emphasis added.)
    70 - See Vienna Convention on the Law of Treaties (1969), Article 33(4).
    71 - See Article 71(1).
    72 - See Article 81(4).
    73 - Article 35, fourth sentence. For details, see the commentary on Article 35, section C.4.
    74 - United States, Law of War Manual, 2016, p. 606, para. 9.24.1: In practice, it is advisable for the POW Representative to be a POW as opposed to a retained person. Medical personnel have their own representative for issues related to their activities. In addition, the duties of the POW Representative and the duties of retained personnel could interfere with one another, and special provision is made in the [Third Convention] to ensure that other duties [do] not interfere with the duties of retained personnel or the duties of the POW Representative.
    75 - See section D.1.
    76 - Articles 49–57.
    77 - See Articles 49, 50, 52, 56 and 57.
    78 - See Articles 51 and 53–55.
    79 - Pictet (ed.), Commentary on the First Geneva Convention, ICRC, 1952, p. 254.
    80 - See also United States, The Commander’s Handbook of the Law of Land Warfare, 2019, para. 3-37 (‘Retained personnel are subject to the same disciplinary proceedings as [prisoners of war]’).
    81 - See section D.1.
    82 - Levie, p. 74.
    83 - Concise Oxford English Dictionary, 12th edition, Oxford University Press, 2011, p. 1215.
    84 - See Article 31(1) of the First Convention, which provides that the selection of personnel for return under Article 30 is to be made ‘preferably according to the chronological order of their capture and their state of health’ (emphasis added).
    85 - For the reference to the Model Agreement, see para. 2328 of this commentary.
    86 - See the commentary on the Model Agreement, p. 19.
    87 - Ibid.
    88 - Ibid.
    89 - See ibid.
    90 - See, in particular, Articles 15 and 34, but also Articles 20(2), 30–31, 46(3), 55 and 108(3). See also United States, Law of War Manual, 2016, p. 467, para. 7.9.6: ‘In other words, the fact that the Detaining Power permits and enables retained personnel to care for POWs does not relieve the Detaining Power of its own responsibilities to care for POWs.’
    91 - Article 15.
    92 - See e.g. New Zealand, Military Manual, 2019, Vol. 4, p. 12-47, para. 12.10.38: ‘If retained medical personnel lack the training, qualifications, skill or experience, to look after persons deprived of liberty, they are to be relieved of their duties, and [New Zealand Defence Force] medical resources are to be applied instead.’ See also Jeanty, p. 65.
    93 - See also Article 1(1) of the Model Agreement and its commentary, p. 10.