Seunghyun Nam (Korea National Diplomatic Academy)
With new reports of North Korean troops captured as POWs in Ukraine, as President Zelensky puts it, there is now ‘irrefutable evidence’ that North Korea has been involved in Russia’s war against Ukraine. The ROK’s National Intelligence Service provides that North Korea deployed around 12,000 soldiers in Kursk Oblast, and at least 300 soldiers have been killed and 2700 wounded. Among them, two were captured as POWs by the Ukraine government, and President Zelensky proposed that he is ready to exchange captured North Korean POWs with Ukrainian POWs in Russia. And if exchanges do take place, it is likely that North Korean POWs will be returned to North Korea, but President Zelensky did leave the option open for the soldiers not to be return to North Korea if the “soldiers express a desire to bring peace closer by spreading the truth about the war in Korean”. As for the POWs, they have not provided a clear position, but in an interview posted by President Zelensky, one of the POWs said he wanted to return to North Korea while the other mentioned that he would like to stay in Ukraine, but would return home if it was required for him to do so.
While the Third Geneva Convention, which regulates POWs, does stipulate that POWs should be returned to their homeland, many human rights organizations are concerned about their possible return to North Korea since these POWs can face serious human rights risks if they are sent back to North Korea. The Third Geneva Convention clearly provides that POWs should be treated humanely at all times, and therefore, the Ukraine government is now cooperating with the UN and the ICRC and other organizations to protect the POWs from violence, public humiliation, or insult. But if they are repatriated to North Korea, it is highly likely that they can be punished for not obeying military orders. In particular, captured North Korea soldiers may be deemed to be traitors since reports show that North Korea authorities instructed these soldiers to commit suicide or self-destruction before being captured by the enemy. They may also be punished for consuming foreign media, which can lead to arbitrary detention and even torture. Many North Korean defectors already face serious consequences when they are repatriated, which is why the UN is calling for states not to forcibly repatriate North Korea defectors in accordance with the principle of non-refoulement under international law.
In the meantime, the ROK government has not provided an official position on this issue, and a spokesperson rather announced that return of North Korean POWs “requires review of international law and other legal matters, and consultation with other related countries”. But as a matter of law, North Korean POWs are entitled to go to the ROK based on ROK’s constitutional law since North Korean citizens are considered to be South Korean citizens under the ROK’s constitution. It is under this legal basis that North Korean defectors are able to enter South Korea. However, the challenge lies in that North Korea and Russia have not officially acknowledged the deployment of North Korean troops to Russia, and possibilities remain that Russia will claim the North Korea POWs as their own soldiers.
Therefore, many uncertainties remain, but it is clear that the free will of the North Korean POWs should be respected. In fact, it was during the Korean War, when this free will or ‘voluntary repatriation’ of Korean POWs was implemented for the first time. At the end of the war, a large number of communist POWs did not want to return to North Korea or China because they feared they would be punished or killed for being captured or cooperating with the UN. Due to such risks, President Truman at that time acknowledged the need for ‘voluntary repatriation’, claiming that forced repatriation would be repugnant to the fundamental moral and humanitarian principles. These same principles should be applied to the North Korean POWs in Ukraine today considering the dangers they will face when they go back to their homeland.
