How Should the Ukranian Government Deal with Captured North Korean Soldiers?
During peace talks in Istanbul on May 16, Russia and Ukraine agreed to exchange 1,000 Prisoners of War (POWs) each, raising questions about how two captured North Korean soldiers will be treated or whether they quality as POWs at all.
Despite North Korea’s recent admission of its direct involvement in Russia’s warfighting efforts, whether North Korea is legally party to the conflict is still unclear, making the status of its captives difficult to determine. Furthermore, Pyongyang has invoked provisions under the Russia-DPRK Comprehensive Strategic Partnership Treaty as grounds for its soldiers to be returned, but there is reason to believe they may face unique risks upon repatriation, raising the principle of non-refoulement under international human rights law. Given the numbers of North Korean soldiers who were deployed—and the potential for more to be provided if the war continues—sorting out the legal status and protocols for captive North Korean soldiers could have broad legal and political implications for a number of key stakeholders of the conflict.
Confirmation of North Korean Participation in the Russia-Ukraine War
On April 28, 2025, North Korea officially admitted sending troops to aid Russia in its war on Ukraine, citing Article 4 of the Comprehensive Strategic Partnership Treaty between Russia and North Korea. Russian President Vladimir Putin promptly expressed his gratitude, acknowledging that North Korean soldiers have been fighting in the Kursk region of Russia. During North Korea’s direct involvement in Russia’s war, North Korean soldiers have been captured by Ukrainian forces and the issue of how to deal with them is complex.
The Comprehensive Strategic Partnership Treaty, signed in June 2024, involves broad cooperation in trade, science and technology, space and nuclear energy, and defense. Unlike the terms of the previous Friendship Treaty, this upgraded agreement includes provisions for immediate military assistance if either nation faces armed aggression.[1] The treaty aims to work towards “global strategic stability” and the establishment of a “new fair and equitable international order.”
North Korean Captives
Ukrainian forces captured two injured North Korean soldiers in Kursk, on January 11, 2025. The Ukrainian government has stated its willingness to exchange them for Ukrainian prisoners of war held by Russia and that the North Korean captives would be given an opportunity to contribute to a peaceful resolution of the war by helping to spread the truth about the conflict. However, their status as POWs is in question, as it is possible they thought they were engaging in bilateral military drills, rather than fighting in a war.
South Korea’s Chosun Daily has reported that one of the North Korean captives has expressed a desire to live in Ukraine, while the other wants to return to North Korea. The reports stem from an informal interview, but legal experts doubt whether these were fully informed or freely expressed wishes.
Legal Situation of the North Korean Captives
The Third Geneva Convention (GC III) governs the treatment of POWs. In this instance, the legal obligations of the Ukrainian government toward the North Korean captives are somewhat unclear. Whether they are legally POWs depends o the command-and-control structure between Russia and North Korea: is North Korea considered a formal party to the military conflict and are North Korean troops understood to form part of the Russian armed forces?
If they are POWs, then Article 118 of GC IIII obliges the Ukrainian government to release and repatriate them without delay upon the cessation of hostilities, and Article 21 allows their internment for the duration of active hostilities. Articles 109 and 110 permit some exceptions to these arrangements, including the accommodation of wounded and sick POWs in neutral countries. Article 12 also allows POWs to choose to be transferred to co-belligerent or neutral states, provided that the detaining power is satisfied itself that the relevant state is willing to and able to apply the Convention.
Moreover, the Ukrainian government has indicated that they would be willing to surrender the North Korean captives as part of a prisoner exchange with Russia. Although such exchanges have happened on multiple occasions, they do not appear to be explicitly regulated by International Humanitarian Law (IHL).
Exceptions to the Repatriation Obligation
Under IHL, a POW’s desire not to be repatriated does not necessarily constitute a valid barrier to repatriation. However, the International Committee of the Red Cross (IRCR) has identified one exception, reflected in state practice, to the general obligation to repatriate POWs: in circumstances where the POW faces a real threat of a fundamental violation to their human rights upon return, state practice indicates respect for the will of POWs who do not wish to repatriated. In this case, the IRCR adopts the view that the wishes of POWs should be respected.
This exception reflects the wider principle of non-refoulement under international 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 violation of fundamental rights upon return. This principle has been considered as applicable to POWs by the UN General Assembly, and is widely seen as a peremptory rule of international law. Non-refoulement would therefore prevail over Article 118 of GC IIII in the event of military conflict and limits the discretion of states to engage in exchanges of POWs.
These considerations are particularly relevant to the disposition of North Korean POWs, since a UN Commission of Inquiry has documented consistent evidence of gross human rights violations, including torture and arbitrary imprisonment, being applied to individuals who have been repatriated to North Korea after fleeing the regime. While the situation of POWs is different, they could still face special risks. Some reports have suggested that North Korean soldiers are instructed to commit suicide to avoid capture. If true, this suggests repatriated POWs could face severe punishments.
Alternative Options to Repatriation
If North Korean POWs captured by Ukraine’s military do not wish to be repatriated, and/or non-refoulement prevents their exchange or repatriation, there are other possibilities. One option is to allow them to resettle in Ukraine. Both the ICRC and Amnesty International consider this to be a legal and viable solution.
Another option is to transfer them to neutral third states, as has happened in the past. During the Korean War, many North Korean and Chinese POWs refused repatriation, fearing execution or imprisonment, and the majority of those chose to settle in South Korea and Taiwan. South Korea has reportedly indicated its willingness to receive North Korean POWs, should they request resettlement to South Korea. Given South Korea’s long-standing history of accepting North Korean defectors it should be seen as a suitable third state for temporary or permanent accommodation of North Korean POWs.
Political and Diplomatic Ramifications
The formal acknowledgment that North Koreans are fighting in Russia’s war coincided with Moscow’s claim to have retaken the Kursk region from Ukrainian forces, allowing North Korea to frame their troops’ mission as a success. Russia has also used this declaration to buttress domestic political support, particularly in the 80th anniversary of Victory Day Parade in Moscow on May 2, 2025.
North Korean framing of their deployment as both legitimate and victorious, besides being useful for international grandstanding, seems intended to suppress potential unrest among the families of the North Korean soldiers killed, wounded, or captured in a foreign war. The return of any of those soldiers might jeopardize that public narrative, given the regime’s incentives to silence them rather than give them any kind of hero’s welcome.
From the Ukrainian perspective, the capture of North Korean troops offers an opportunity to present Ukraine to the international community as a fully democratic and transparent regime which adheres to the rule of law—in contrast to the autocratic Russian and North Korean systems—simply by respecting the wishes of the captives.
Conclusion
The confirmation that North Korean troops are fighting alongside Russian forces in Russia’s war on Ukraine does not, by itself, clarify what should be done with captured North Korean soldiers. To date, there have been only two such captives, and they have apparently expressed different wishes about their disposition. However, at least 10,000 North Korean soldiers have been deployed to Russia since November 2024, so it is very possible that the dimensions of this problem may expand. The most fundamental difficulty is that it is still unclear, legally, whether North Korea should be regarded as a party to the Russia-Ukraine military conflict in accordance with International Humanitarian Law, and thus whether any North Korean captives would, by law, be considered POWs.
The legal obligation of the Ukrainian government, under GC III, to promptly repatriate POWs following the cessation of hostilities is complicated by the principle of non-refoulement, under human rights law. The inclusion of the North Korean captives in a prisoner swap would be subject to the same principle.
An alternative solution would be to transfer the North Koreans to a third country. South Korea has confirmed its willingness to accept them. North Korea insists that the captive soldiers should be returned to North Korea in accordance with its Comprehensive Strategic Partnership Treaty with Russia; whereas South Korea states that the captives are considered South Korean nationals under its constitution, and that the wishes of the captives must be taken into account. Whatever the fate of the North Korean soldiers captured by Ukraine, there will be continuing political and diplomatic consequences.
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On June 20, Sputnik has translated the full text of the comprehensive agreement signed by Vladimir Putin and Kim Jung Un during the state visit of the Russian president to North Korea. See https://sputnikglobe.com/20240620/full-text-of-russia-north-korea-strategic-agreement–1119035258.html.