North Korean POWs in Ukraine: Navigating the Legal Framework for Transfer or Repatriation

[Nurul M. Azmi is a Legal Researcher and Ciara Laverty is a Legal Adviser with UpRights, an NGO which builds partnerships with victims, civil society, and judicial authorities to document human rights violations and international crimes, and identify and pursue effective legal pathways to accountability, including in the contexts of Ukraine and North Korea]

Recent reporting has confirmed the deployment of North Korean troops to support the Russian military in fighting against Ukrainian forces in the Kursk region of Russia. Estimates indicate that at least 10,000 North Korean soldiers have been deployed and are reported to have entered combat in late 2024. In early January 2025, President Volodymyr Zelenskyy reported that the Ukrainian military had captured two injured North Korean soldiers. In a statement, Zelenskyy indicated that Ukraine would be willing to return these soldiers to North Korea in exchange for Ukrainian prisoners of war in Russia. He nevertheless also noted that “[f]or those North Korean soldiers who do not wish to return, there may be other options available. In particular, those who express a desire to bring peace closer by spreading the truth about this war in Korean will be given that opportunity.”

These reports add the question of Ukraine’s legal obligations towards North Korean POWs, in particular the options for or barriers to their transfer or repatriation, to the multitude of international legal questions arising from North Korea’s growing involvement in the Russia-Ukraine armed conflict (see e.g. here and here). 

Transfer, Release and Repatriation of POWs

The Third Geneva Convention (GC III) governs the treatment of POWs who fall into enemy hands during international armed conflict, including obligations related to their transfer to third states and their release and repatriation upon the cessation of hostilities. The nature of the command and control relationship between the North Korean troops and the Russian armed forces, which may have consequences for whether North Korea can be considered to have become a party to the conflict or whether North Korean troops can instead be understood to form part of the Russian armed forces, remains unclear (for discussion see here). However, for the purposes of determining whether the North Korean soldiers enjoy the protections afforded to POWs under GC III, what matters is that, in either case, they constitute members of the armed forces of a Party to the conflict within the meaning of Article 4 of GC III, whether that is of Russia or North Korea. The rights accorded to and obligations imposed on a detaining power under GC III are therefore applicable to Ukraine’s treatment of the captured North Korean POWs.

Once captured, Article 21 of GC III provides the detaining power with the general authority to intern POWs for the duration of active hostilities, in order to prevent them from returning to participate in hostilities. Exceptions to this authority are contained in Articles 109 and 110 of GC III. Article 109(1) requires that seriously wounded and sick POWs be repatriated, once fit to travel, while Article 109(2) provides that detaining powers should endeavour to make arrangements for the accommodation in neutral countries of POWs who are wounded and sick, but not seriously so, as well as of able-bodied POWs who have been interned for a long period. Pursuant to Article 12 of GC III, a detaining power may also choose to transfer other POWs to co-belligerent or neutral states, provided that it has satisfied itself that the relevant state is willing and able to apply the Convention. Once active hostilities have ceased, Article 118 of GC III requires that POWs are released and repatriated without delay. 

Return of POWs to North Korea

Based on current information, and without evidence of a more formal incorporation of North Korean troops into the Russian armed forces, the presumption in this case would be that Ukraine’s obligations to repatriate North Korean POWs would apply to their return to North Korea (for discussion of the definition of repatriation and how it applies in circumstances where individuals have fought on behalf of, or otherwise belonged to, a state other than their country of nationality see the ICRC Commentary on Articles 109 and 118). 

In addition, the Ukrainian authorities have also indicated that they would be open to returning the POWs to North Korea in exchange for Ukrainian POWs detained in Russia prior to the cessation of hostilities. Exchanges of prisoners of this nature, which have taken place between Ukraine and Russia on multiple occasions, are not explicitly regulated by IHL and choosing to repatriate POWs prior to the end of active hostilities is not, in principle, prohibited. Significant incentives evidently exist for Ukraine to conclude such exchanges, given the serious violations to which Ukrainian POWs in Russia are subjected and the appalling conditions in which they are detained. There are nevertheless some limitations on states’ discretion to engage in exchanges of POWs and exceptions to their general obligations to repatriate POWs, which may be particularly relevant in the context of North Korea.

Potential Barriers to Repatriation

During an interview shared by the Ukrainian authorities, one of the North Korean POWs captured in early January is reported to have stated that he would like to live in Ukraine, while the other indicated that he wished to return to North Korea. Given the circumstances of such an interview, it is doubtful whether these are fully informed or freely expressed wishes. However, the responses nevertheless highlight the question of the detaining power’s obligations if a POW does not wish to be repatriated or exchanged.

Under IHL, a POW’s desire not to be repatriated does not necessarily constitute a valid barrier to repatriation. Only Article 109(3) of GC III, applicable to the repatriation of seriously wounded or sick POWs, prohibits the return of such POWs against their will, for any reason, while hostilities are ongoing. By contrast, Article 118 does not address the possibility that POWs may refuse to be repatriated once hostilities have ceased. State practice nevertheless indicates respect for the will of POWs who do not wish to be repatriated (see Fleck p.447 and ICRC Customary IHL Study) while the ICRC also adopts the view that the wishes of POWs should be respected.

In addition to respecting the wishes of POWs who do not wish to be repatriated, the ICRC identifies an exception, reflected in state practice, to the general obligations to repatriate POWs in circumstances where they face a real threat of fundamental rights violations if repatriated. This exception reflects the wider prohibition on non-refoulement under human rights law, which prohibits the removal or transfer of individuals, regardless of their status, to any state where there are grounds to believe that they would face the risk of torture, ill-treatment, or other serious violations of fundamental rights. The principle of non-refoulement has been recognised as applicable to the particular situation of POWs by the UN General Assembly and is widely seen as a peremptory rule of international law, which would therefore prevail over Article 118 in the event of a conflict (see Sassòli p.1054) and also constitutes a limitation on states’ discretion to engage in exchanges of POWs.

These considerations are particularly relevant in the context of possible repatriation or exchange of POWs to North Korea, given the nature of the North Korean state and its extensive record of serious human rights violations. While there is no information to indicate the nature of the reception North Korean POWs would receive were they to be repatriated, the UN Commission of Inquiry on human rights in the Democratic People’s Republic of Korea has documented a consistent practice of subjecting individuals who have fled and been repatriated to North Korea to torture, arbitrary imprisonment and other gross human rights violations. While POWs may not be subjected to the same treatment as attempted escapees, there are indications that they may also be at specific risk if repatriated. Some reports suggest that North Korean soldiers are instructed to commit suicide in order to avoid capture, suggesting that failure to do so could result in punishment. A North Korean soldier who defected to South Korea in 2022 has described in this respect how “becoming a prisoner of war means treason. Being captured means you are a traitor. Leave one last bullet, that’s what we are talking about in the military.” Commentators have also suggested that repatriated POWs could be executed or imprisoned in order to maintain secrecy around North Korean operations in Russia. 

In the case of the two North Korean POWs captured in early January, filmed interviews with whom have been shared with the global media (in itself a possible violation of the obligation to protect POWs against public curiosity contained in Article 13 of GC III), they, and possible family members remaining in North Korea, may also be at particularly heightened risk due to the disclosure of their identities and the extensive publicity around their capture.

Accommodation of North Korean POWs in Ukraine

If North Korean POWs captured by Ukraine do not wish to be repatriated or issues of non-refoulement prevent their exchange or repatriation, one option will be for them to be accommodated in Ukraine. The legal status of POWs who refuse final repatriation and the detaining power’s authority to continue to detain them remains unsettled, but is generally considered to be governed by the protections accorded to civilians under GC IV as well as by international human rights law and, where relevant, refugee law (for discussion see Sassòli p.1060). Refugee law will be particularly relevant where issues of non-refoulement arise. Such questions arose during the repatriation of POWs after the Gulf War, where, following a process in which ICRC delegates inquired with all Iraqi POWs about their willingness to return to Iraq, over 13,000 declined to be repatriated and were instead transferred to coalition member Saudi Arabia. These POWs were subsequently granted refugee status by the Saudi authorities and also remained entitled to the protections of GC IV in the view of the ICRC (see Roberts p.161 and Amnesty International p.2).

Transfer of North Korean POWs to Third States

Alternative solutions to accommodation within Ukraine, similar to those employed in the past, could also be explored in the form of transfer to neutral third states. During the Korean War, many North Korean and Chinese POWs refused repatriation, fearing execution or imprisonment upon return. To prevent forced returns, the UN Command established a screening process to determine whether POWs wished to be repatriated. Through the screening process, the UN Command determined that only 70,000 of 170,000 would not oppose repatriation (see Charmatz and Witt p.392). The majority of those who rejected repatriation chose to settle in South Korea or Taiwan, but a small number were also resettled in neutral states, namely India, Argentina and Brazil (see Jung). Similarly, during the Soviet-Afghan war, a number of Soviet POWs captured by the Afghan resistance were temporarily transferred to Switzerland, a neutral third state. Those who chose to do so were eventually repatriated to the Soviet Union while others chose to remain in Switzerland (see Stadler).

Any agreement to transfer North Korean POWs, temporarily or permanently, to a neutral third state would be governed by Article 12 of GC III, requiring Ukraine to satisfy itself that the relevant state is willing and able to apply the Convention, as well as by the principle of non-refoulement. This means that any transfer to a third state would be prohibited if the relevant state is unable to guarantee the rights and protections accorded to POWs under GC III or if there is a risk that POWs would face serious violations of their fundamental rights.

In this context, South Korea is reported to have indicated that it would be open to receiving North Korean POWs, should they request resettlement to South Korea, and plans to hold consultations with the Ukrainian authorities on the issue. Given South Korea’s human rights record and its sympathy for North Korean defectors, it is possible that transfer to South Korea could be explored as a suitable third state for temporary or permanent accommodation of North Korean POWs. 

The question of whether to exchange, transfer or repatriate North Korean POWs is evidently a delicate one involving both legal and political considerations. Given the nature of the North Korean state, it will be important to account for the risks that POWs may face if returned to North Korea and ensure that any decisions are made and implemented in compliance with Ukraine’s obligations under GC III and international human rights law.