Practice Relating to Rule 27. Religious Personnel

“religious personnel” means military or civilian persons, such as chaplains, who are exclusively engaged in the work of their ministry and attached:

Religious personnel are defined as those military or civilian personnel, who are exclusively engaged in their ministry and who are permanently or temporarily attached to one of the protagonists, their medical units or transports, or to a civil defence … Like medical personnel, chaplains may not be attacked but must be protected and respected. As with medical personnel, religious personnel do not become PW, unless their retention is required for the spiritual welfare of PW [prisoners of war]. They must be repatriated as early as possible. 

Identity cards are to be issued to … religious … personnel regardless of whether they are of permanent or temporary status. Under no circumstances are they to be deprived of this identification. Should circumstances prevent the issue of an identity card, a certificate may be issued temporarily until such time as a proper card can be issued. 

Medical and religious personnel must fulfil their tasks under the special protection of the belligerents; amongst other things, they must provide assistance in the various combat zones and when circumstances require.

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[Special protection was initially] accorded to [just] military chaplains …, to religious personnel on hospital ships … and [to] religious personnel assigned to the spiritual service of the wounded, sick and shipwrecked (provided that such personnel had an official link with the armed forces …), and has [now] been extended to all civilian religious personnel.

The term religious personnel is understood to include personnel who are attached either to the armed forces of the parties to the armed conflict or to medical units or means of transport, or to organs of the civil defence.

The right to protection for religious personnel is the same as for medical personnel. 

Certain categories of persons and objects benefit from special protection under the law of armed conflict and international humanitarian law, both in the civilian domain and in the military domain.

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The protection is identical for both civilian and military “religious personnel”. 

In case of capture, such personnel must be able to continue their activities if the capturing force has not itself secured spiritual assistance.

Their juridical status is identical to that of permanent medical military personnel. Such personnel must not be captured while in service on hospital ships. 

Medical and religious personnel, both military and civilian, have protected status and thus shall not be attacked. These persons wear the Red Cross or Red Crescent … and carry identity cards which identify them as protected persons. 

“Religious personnel” have the same protections as medical personnel. They are non-combatants. In all cases, the provisions relating to distinctive emblems, such as ID cards and status upon capture for medical personnel applies equally to religious personnel. 

Religious personnel mean military or civilian persons, such as chaplains, who are exclusively engaged in the work of their ministry and attached to:

[M]ilitary religious personnel [and] civilian religious personnel … enjoy special protection. They are identified as follows:

Specially protected personnel [including military and civilian religious personnel, as identified in Volume 1 of this manual] are authorized to carry out their tasks unless the tactical situation does not allow it. The mission and actual activities of such personnel may be checked. 

I.3. Protection of military medical and religious personnel

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The law gives civilian medical and religious personnel the same status as military medical and religious personnel. Both must be respected and protected. It is appropriate to do everything to allow them to carry out their activities. 

I.2.3. Medical and religious personnel

Medical and religious personnel, military as well as civilian, enjoy the status of protected person and, consequently, must not be attacked. These persons display the red cross, red crescent or red crystal … and carry pieces of identification which identify them as protected persons …

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I.3.1. Chaplains

The chaplains of armed forces are non-combatants. They must not be attacked. If they are captured, they are returned to their armed forces unless they are retained by the detaining Power to assist POWs [prisoners of war].

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NB: Distinctive emblem and pieces of identification

Chaplains and medical personnel display a distinctive emblem consisting of a red cross, red crescent or red crystal. 

The specific immunity granted to certain persons and objects by the law of war [including military religious personnel and religious personnel of civilian medical units or civil defence] must be strictly observed … They may not be attacked. 

801. Chaplains are ministers of faith assigned to the armed forces of a state to provide spiritual care to the persons in their charge.

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811. Chaplains shall be respected and protected in all circumstances. This shall apply:

812. Chaplains as such are entitled to the protection provided by international law. Direct participation in rendering assistance to the victims of war (wounded, sick, shipwrecked, prisoners of war, protected civilians) is not required.

813. Unlike medical supplies, the articles used for religious purposes are not explicitly protected by international law. It is, however, in keeping with the tenor of the Geneva Conventions to respect the material required for religious purposes and not use it for alien ends.

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816. Any attack directed against chaplains and any infringement of their rights constitutes a grave breach of international law, which shall be liable to criminal prosecution.

817. The fact that chaplains may be armed, and that they may use the arms in their own defence, or in that of the wounded, sick and shipwrecked shall not deprive them of the protection accorded to them by international law. They may use the arms only to repel attacks violating international law, but not to prevent capture.

818. The protection accorded to chaplains shall cease if they use their arms for any other purpose than that of self-protection and defending protected persons.

819. The only arms which may be used are weapons suited for self-defence and emergency aid (individual weapons).

820. In the Federal Republic of Germany chaplains are not armed. 

Medical [and religious] personnel engaged in the search for, or the collection, transport, or treatment of the wounded or sick must be respected and protected in all circumstances. Medical [and religious] personnel may be armed with light individual weapons for their own protection and the protection of persons under their care. Religious personnel attached to the armed forces have the same rights as medical personnel.

… [R]eligious personnel include:

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If … religious personnel fall into “enemy” hands, they shall be allowed to continue their duties towards the wounded and sick. It is important to note that technically they do not become PWs [prisoners of war] but they are entitled to the benefit of the same treatment afforded to PWs. As soon as the situation permits, senior headquarters will permit these personnel to be returned to their own side. In spite of these rules, the capturing party is entitled to retain a certain number of … religious personnel for the benefit of the PWs they hold. The number of those retained will be determined by … the spiritual needs and the number of prisoners. 

Religious personnel are not considered medical personnel, but enjoy the same protection. They may be military or civilian. They include almoners, field pastors and rabbis whose sole duty is to act as ministers. They are attached to the armed forces of one party to the conflict, to medical corps or to civil defence institutions. Although less well known outside the Netherlands, humanist counsellors and life coaches also belong to the category of religious personnel. 

Medical and religious personnel must be respected, protected and helped in fulfilling their duties. They may not be forced to carry out tasks incompatible with their humanitarian mission. 

(1) Religious personnel can be retained to tend to the spiritual needs of the prisoners of war of their own armed forces. If there is no work for them, they must be repatriated.

(2) The status of retained religious personnel is as follows:

(3) They are entitled, as a minimum, to the protection granted to prisoners of war under the Geneva Conventions. 

(1) Religious personnel can be retained to tend to the spiritual needs of the prisoners of war of their own armed forces. If there is no work for them, they must be repatriated.

(2) The status of retained religious personnel is as follows:

1-6.3. The 1949 Geneva Convention includes the doctrine of proportionality – a concept which provides foundation for LOAC … It also embodies the protection of the various classes of people affected by the hostilities.

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1-6.5. In addition to the conventions, Additional Protocols are incorporated which deal with people and their claim to protection under defined circumstances, such as medical and religious personnel. Additional Protocol One includes international conflicts and wars of national liberation. In effect, it defines the protection of the civilian population in times of international conflict.

1-6.6. Additional Protocol Two defines two things: limitations in the conduct of operations and principles relating to the protection of civilians in a non-international conflict. Thus, every combatant should understand the consequences of this Protocol. 

62. … Religious Personnel. … [R]eligious personnel of the parties to a conflict, whether military or civilian, are to be respected and protected. This protection is not a personal privilege but rather a natural consequence of the rules designed to ensure respect and protection for the victims of armed conflict …

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64. … [R]eligious personnel must abstain from all acts of hostility or they lose their protection. They are authorised to carry only light arms and have the right to use them only for their own defence or for that of the wounded and sick for whom they are responsible. 

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The following persons and objects fall within the specifically protected category under the LOAC:

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Civilian persons, medical personnel and chaplains present in a military object or in the immediate vicinity of such an object share the risk of possible attacks.

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The LOAC grants particular protection to specific categories of persons and objects[.] The reason for this special protection corresponds with the general aim of the LOAC, to wit, to allow commanders to wage war against the enemy with maximum effect, but at the same time to minimise the suffering of those who are caught up in a war without being any threat to the warring parties.

Persons who are specifically protected are persons who do not participate in hostilities and objects specifically protected are those that are not used for combat purposes. Such persons and objects are not used in attacks and cannot properly defend themselves against attacks.

Persons Who Enjoy Protection in terms of the LOAC. These persons are:

- General Principles

- Specific Provisions. Apart from the abovementioned general principles, the LOAC also contains specific provisions relating to the respective categories of protected persons and objects, which must be complied with.

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- The LOAC is aimed at allowing the tasks of the following specifically protected persons and objects within the armed forces (in the widest sense) to continue independently of any military operations[:]

Providing for this specific protection is:

- The special protection regarding protection of civilians and civilian objects is aimed at[:]

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- Persons who enjoy protection in terms of the LOAC are combatants who are hors de combat, civilians, medical and religious personnel and the dead.

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According to Additional Protocol I article 8(c), read with Geneva Convention I article 24 and Geneva Convention II articles 36 and 37, the following personnel fall under the definition of “medical personnel”:

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According to Additional Protocol I article 8, read with Geneva Convention I article 24 and Geneva Convention II articles 36 and 37, the following personnel fall under the definition of “religious personnel” as military or civilian persons, such as Chaplains, who are exclusively engaged in the work of [their] Ministry and permanently or temporarily attached to;

Additional Protocol [I] Article 43.2 states that medical personnel and chaplains are not “combatants” even though they are members of an armed force of a Party to a conflict.

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- Note must also be taken of article 15.5 of Additional Protocol I which determines that[:]

- Military medical and religious personnel mentioned above are at all times entitled to protection from the use of force against them, provided that they themselves refrain from any participation in combat or hostile military action, excluding private defence. (Geneva Convention I article 24.)

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- Military medical and religious personnel, are non-combatants, therefore they do not become POW [prisoners of war] when falling into the power of the enemy Party. However:

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- Military medical personnel and military religious personnel are entitled to be armed with light individual weapons for their own protection or for that of the wounded and sick in their care. (Geneva Convention I article 22, Geneva Convention II article 35 and Additional Protocol I article 28.)

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- Non-International Armed Conflicts. Article 9 of [the 1977] Additional Protocol II determines that in non-international armed conflicts, medical and religious personnel shall[:]

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Warning: Condition before Military Medical Personnel, Establishments, Units or Transport and Military Religious Personnel can forfeit their Protection (Geneva Convention I Article 21). Even if the abovementioned loses its right to protection, the following steps must be taken before such an establishment or unit can be attacked.

Military medical personnel and chaplains of the armed forces are specifically protected by the LOAC.

Military and civilian religious personnel are both specially protected by the LOAC, but are protected differently in that military religious personnel have the same status as military medical personnel and civilian religious personnel enjoy the same protection as civilians.

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Religious personnel are military or civilian persons who are exclusively engaged in the work of their ministry and permanently or temporarily attached to civil defence organisations, armed forces or medical units or medical transports of a Party to the conflict or to medical units or medical transports, (other than hospital ships) and their personnel made available to a Party to a conflict for humanitarian purposes by a neutral or other State which is not a Party to that conflict, a recognised and authorised aid society of that State or an impartial international humanitarian organisation.

Members of the medical personnel and chaplains may not renounce the rights that they have under LOAC.

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Military medical personnel and religious personnel mentioned above are at all times entitled to protection from the use of force against them as long as they refrain from any hostile military action. Medical and religious personnel are non-combatants, therefore they do not become POW when falling into the power of the enemy Party. They may be retained by the capturing party for the purpose of providing medical and religious services to POW. While they are retained, they are entitled to support and assistance by the retaining Power. If such services are not required anymore, they must be released, according to specific prescripts, to return to their own forces.

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Medical and religious personnel are also protected during non-international armed conflicts where they shall be respected and protected, granted all available help for the performance of their duties and not be compelled to carry out tasks which are not compatible with their humanitarian mission.

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Non-International Armed Conflicts. Article 9 of Additional Protocol II also applies to civilian medical and religious personnel. They shall therefore also:

The LOAC extends special protection to civilian medical services and religious personnel.

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Civilian medical and religious personnel are all medical and religious personnel that are not military medical personnel or chaplains of the armed forces.

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During non-international armed conflicts, civilian medical and religious personnel shall be respected, protected, granted all available help for the performance of their duties and not be compelled to carry out tasks which are not compatible with their humanitarian mission.

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Members of the medical services and religious personnel who have been captured are not regarded as POW but enjoy nevertheless, as a minimum, all the advantages of Geneva Convention III.  [emphasis in original]

- Targeting Prohibitions. It is prohibited to specifically target those possible targets which are specially protected under the Geneva Conventions and Additional Protocol I such as:

159 Hostilities must be directed exclusively against combatants and military objectives. …

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3 Protected persons are persons who are not or no longer taking part in combat or enjoy specially protected status, such as medical and religious personnel, civil protection or cultural property protection personnel, as well as wounded persons and prisoners of war.

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175 Chaplains must be spared and protected in all circumstances. This applies at all times and in all places during the armed conflict, particularly when the enemy retains them to minister to their own armed forces. Military chaplains wear, affixed to the left arm, an armlet bearing the red cross or the red crescent on a white ground.

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225 Indiscriminate attacks, i.e. attacks which cannot distinguish between protected persons/objects and military objectives, as well as attacks directed against protected persons/objects or acts of revenge are prohibited in any place and at any time.

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237 The following in particular are criminal offences: … harmful acts against internationally protected persons and objects[.] 

1.2.24. Non-combatants (those who do not fight) are members of the armed forces who provide assistance to them but take no direct part in hostilities. These [include] chaplains … Weapons shall not be employed against such persons while they are engaged in the performance of their direct duties.

Such persons become combatants in case of their direct participation in hostilities.

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1.2.36. “Religious personnel” means persons who are exclusively engaged in the performance of religious (spiritual) functions. 

Chaplains are entitled to similar respect, protection and identification to that afforded to medical personnel. The rules on armlets and identity cards [concerning identification of service medical personnel] apply equally to chaplains. The [1949 Geneva] Conventions are silent on whether chaplains may be armed. United Kingdom policy is that chaplains should be unarmed. 

Noncombatants [§ 5.4.2. – “Noncombatants are those members of the armed forces who do not take direct part in hostilities because of their status as medical personnel and chaplains”] may not be deliberately or indiscriminately attacked, unless they forgo their protection by taking a direct part in hostilities. 

[C]haplains falling into enemy hands … unless their retention by the enemy is required to provide for the … religious needs of prisoners of war, … must be repatriated at the earliest opportunity. 

In this Subdivision:

religious personnel includes non-confessional, non-combatant military personnel carrying out a similar function to religious personnel. 

Whoever, in violation of the rules of international law in time of war or armed conflict, orders or perpetrates in regard to … clergy, any of the following acts:

shall be punished by imprisonment for a term of not less than ten years or long-term imprisonment. 

The persons, units and logistical means mentioned hereafter may use the Emblem or be designated by it:

Any person who uses war instruments or procedures the application of which violates an international agreement entered into by Denmark or the general rules of international law, shall be liable to the same penalty [i.e. a fine, lenient imprisonment or up to 12 years’ imprisonment]. 

Any person who deliberately uses war means [“krigsmiddel”] or procedures the application of which violates an international agreement entered into by Denmark or international customary law, shall be liable to the same penalty [i.e. imprisonment up to life imprisonment]. 

(1) Whoever, in the circumstances defined above [i.e., in time of war, armed conflict or occupation … and in violation of the rules of public international law and of international humanitarian conventions] organizes, orders or engages in:

is punishable in accordance with Article 270 [i.e., with rigorous imprisonment from five years to twenty-five years, or, in more serious cases, with life imprisonment or death]. 

Combatants must respect and treat with humanity all persons protected by the applicable international conventions, as well as their objects.

… [R]eligious personnel are protected persons …

Protected persons are protected as long as they abstain from taking a direct part in hostilities.

It is prohibited for combatants to deliberately target protected persons. 

Anyone who contravenes or is accessory to the contravention of provisions relating to the protection of persons or property laid down in … the Geneva Conventions of 12 August 1949 … [and in] the two additional protocols to these Conventions … is liable to imprisonment. 

378. Violence against … ministers of religion – 1. … [A]nyone who uses violence against any of the persons regularly assigned to the medical service, when, in accordance with the law and international agreements, the said personnel must be respected and protected, shall be punished by imprisonment for 5 to 15 years.

379. Failure to release … ministers of religion. – Anyone who, in violation of the laws and international agreements, fails to hand over or release or otherwise detains any of the persons referred to in the preceding article when they have ceased to carry out their work in … places where they were providing services, shall be punished by military confinement for one to five years. 

Anyone who [commits any of the following acts] during armed conflict shall be punished with three to seven years’ imprisonment:

During operations that may involve the use of force, chaplains belonging to the Military Archbishopric shall wear on their left arm an armlet … with the international distinctive sign for the protection of chaplains assigned to the Armed Forces established in the Geneva Conventions of 12 August 1949 and their Additional Protocols of 8 June 1977, consisting of a red cross on a white background. 

Subject to the provisions of the Criminal Act of 1991, shall be punished with imprisonment for a term not exceeding twenty years, or with any lighter penalty, whoever treats inhumanly any of the persons hereinafter mentioned, during wartime, by killing him/her or causing physical or moral injury or grievous suffering thereto …:

Ҥ 950v. Crimes triable by military commissions

“(a) DEFINITIONS AND CONSTRUCTION. – In this section:

Ҥ 950p. Definitions; construction of certain offenses; common circumstances

“(a) DEFINITIONS.—In this subchapter:

The accused has been indicted before this Court on three counts of terrorism, that is to say, contraventions of s 54(1) of the Internal Security Act 74 of 1982. He has also been indicted on three counts of attempted murder.

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The accused’s position is stated to be that this Court has no jurisdiction to try him.

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… The point in its early formulation was this. By the terms of [the 1977 Additional] Protocol I to the [1949] Geneva Conventions the accused was entitled to be treated as a prisoner-of-war. A prisoner-of-war is entitled to have notice of an impending prosecution for an alleged offence given to the so-called “protecting power” appointed to watch over prisoners-of-war. Since, if such a notice were necessary, the trial could not proceed without it, Mr Donen suggested that the necessity or otherwise for giving such a notice should be determined before evidence was led. …

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On 12 August 1949 there were concluded at Geneva in Switzerland four treaties known as the Geneva Conventions. …

South Africa was among the nations which concluded the treaties. … Except for the common art 3, which binds parties to observe a limited number of fundamental humanitarian principles in armed conflicts not of an international character, they apply to wars between States.

After the Second World War many conflicts arose which could not be characterised as international. It was therefore considered desirable by some States to extend and augment the provisions of the Geneva Conventions, so as to afford protection to victims of and combatants in conflicts which fell outside the ambit of these Conventions. The result of these endeavours was Protocol I and Protocol II to the Geneva Conventions, both of which came into force on 7 December 1978.

Protocol II relates to the protection of victims of non-international armed conflicts. Since the State of affairs which exists in South Africa has by Protocol I been characterised as an international armed conflict, Protocol II does not concern me at all.

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The extension of the scope of art 2 of the Geneva Conventions was, at the time of its adoption, controversial. …

The article has remained controversial. More debate has raged about its field of operation than about any other articles in Protocol I. …

South Africa is one of the countries which has not acceded to Protocol I. Nevertheless, I am asked to decide, as I indicated earlier, as a preliminary point, whether Protocol I has become part of customary international law. If so, it is argued that it would have been incorporated into South African law. If it has been so incorporated it would have to be proved by one or other of the parties that the turmoil which existed at the time when the accused is alleged to have committed his offences was such that it could properly be described as an “armed conflict” conducted by “peoples” against a “ra[c]ist regime” in the exercise of their “right of self-determination”. Once all this has been shown it would have to be demonstrated to the Court that the accused conducted himself in such a manner as to become entitled to the benefits conferred by Protocol I on combatants, for example that, broadly speaking, he had, while he was launching an attack, distinguished himself from civilians and had not attacked civilian targets. …

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… I am prepared to accept that where a rule of customary international law is recognised as such by international law it will be so recognised by our law.

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To my way of thinking, the trouble with the first Protocol giving rise to State practice is that its terms have not been capable of being observed by all that many States. At the end of 1977 when the treaty first lay open for ratification there were few States which were involved in colonial domination or the occupation of other States and there were only two, South Africa and Israel, which were considered to fall within the third category of ra[c]ist regimes. Accordingly, the situation sought to be regulated by the first Protocol was one faced by few countries; too few countries in my view, to permit any general usage in dealing with armed conflicts of the kind envisaged by the Protocol to develop.

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Mr Donen contended that the provisions of multilateral treaties can become customary international law under certain circumstances. I accept that this is so. There seems in principle to be no reason why treaty rules cannot acquire wider application than among the parties to the treaty.

Brownlie Principles of International Law 3rd ed at 13 agrees that non-parties to a treaty may by their conduct accept the provisions of a multilateral convention as representing general international law. …

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I incline to the view that non-ratification of a treaty is strong evidence of non-acceptance.

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It is interesting to note that the first Protocol makes extensive provision for the protection of civilians in armed conflict. …

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In this sense, Protocol I may be described as an enlightened humanitarian document. If the strife in South Africa should deteriorate into an armed conflict we may all one day find it a cause for regret that the ideologically provocative tone of s 1(4) has made it impossible for the Government to accept its terms.

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To my mind it can hardly be said that Protocol I has been greeted with acclaim by the States of the world. Their lack of enthusiasm must be due to the bizarre mixture of political and humanitarian objects sought to be realised by the Protocol. …

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According to the International Review of the Red Cross (January/February 1987) No 256, as at December 1986, 66 States were parties to Protocol I and 60 to Protocol II, which, it will be remembered, deals with internal non-international armed conflicts. With the exception of France, which acceded only to Protocol II, not one of the world’s major powers has acceded to or ratified either of the Protocols. This position should be compared to the 165 States which are parties to the Geneva Conventions.

This approach of the world community to Protocol I is, on principle, far too half-hearted to justify an inference that its principles have been so widely accepted as to qualify them as rules of customary international law. The reasons for this are, I imagine, not far to seek. For those States which are contending with “peoples[’]” struggles for self-determination, adoption of the Protocol may prove awkward. For liberation movements who rely on strategies of urban terror for achieving their aims the terms of the Protocol, with its emphasis on the protection of civilians, may prove disastrously restrictive. I therefore do not find it altogether surprising that Mr Donen was unable to refer me to any statement in the published literature that Protocol I has attained the status o[f] customary international [law].

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I have not been persuaded by the arguments which I have heard on behalf of the accused that the assessment of Professor Dugard, writing in the Annual Survey of South African Law (1983) at 66, that “it is argued with growing conviction that under contemporary international law members of SWAPO [South-West Africa People’s Organisation] and the ANC [African National Congress] are members of liberation movements entitled to prisoner-of-war status, in terms of a new customary rule spawned by the 1977 Protocols”, is correct. On what I have heard in argument I disagree with his assessment that there is growing support for the view that the Protocols reflect a new rule of customary international law. No writer has been cited who supports this proposition. Here and there someone says that it may one day come about. I am not sure that the provisions relating to the field of application of Protocol I are capable of ever becoming a rule of customary international law, but I need not decide that point today.

For the reasons which I have given I have concluded that the provisions of Protocol I have not been accepted in customary international law. They accordingly form no part of South African law.

This conclusion has made it unnecessary for me to give a decision on the question of whether rules of customary international law which conflict with the statutory or common law of this country will be enforced by its courts.

In the result, the preliminary point is dismissed. The trial must proceed. 

In Petane, … Conradie J found that the provisions of [the 1977 Additional] Protocol I are not part of customary international law, and therefore are also not part of South African law.

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Referring to the fact that in December 1986 only 66 of the 165 States party to the Geneva Conventions had ratified Protocol I, the Court [in Petane] stated:

Important changes with respect to certain aspects applicable at the time of Petane have taken place. The ANC [African National Congress] has become South Africa’s ruling party and in 1995 ratified Protocol I. The total number of States that have ratified it, is now … 162.

This last aspect forms the basis on which the First Respondent [the State] and the applicants agree that Protocol I forms part of customary international law as well as of South African law. As requested, this position is accepted for the purposes of the decision, without deciding on the matter.

Despite these changes, it remains debatable whether the provisions of Protocol I have become a part of South African law in this way.

The consensus of both parties to the conflict is required. See Petane … and Article 96 of Protocol I. …

Parliament’s failure to incorporate Protocol I into legislation in accordance with Article 231(4) of the Constitution in fact points to the contrary, and is indicative that the requirements of usus and/or opinio juris have not been met. See Petane.  [footnotes in original omitted]

If the [1977 Additional Protocol I] applies in South Africa as customary international law, the two requirements that form the basis of customary law must be met. It is arguable that the requirement of usus has been met by the vast number of States that have acceded or ratified it. By ratifying Protocol I the Republic of South Africa has indicated its intention to apply the Protocol, thereby fulfilling the requirement of opinio juris. 

“Protected person” means any person entitled to protection under one or more of the Geneva Conventions, including: (a) civilians not taking part in hostilities; (b) military personnel placed hors de combat by sickness, wounds, or detention; and (c) military medical or religious personnel. 

It is the understanding of the United States of America that the terms used in Part III of [the 1977 Additional Protocol II] which are the same as the terms defined in Article 8 [of the 1977 Additional Protocol I] shall so far as relevant be construed in the same sense as those definitions. 

81. “Religious personnel” means military or civilian persons, such as chaplains engaged exclusively in their ministry and attached:

The attachment of religious personnel can be temporary.

82. The law of war grants the same status to military and civilian religious personnel …

83. The provisions governing medical personnel also apply to religious personnel.

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474. Specifically protected personnel … recognized as such must be respected.

475. Specifically protected personnel shall be allowed to fulfil their activity, unless the tactical situation does not permit … Their mission and genuine activity may be verified. Armed enemy personnel may be disarmed. 

As in certain armies burial was carried out by religious personnel, and since their performance of that duty was in accordance with the Geneva Conventions, that personnel must be covered and protected by the Conventions and the Protocols, in the same way as any other medical and religious personnel.