Ukraine Holds the Cards on North Korean POWs

Two North Korean soldiers, captured on the Kursk front, sit in Ukrainian custody. When they expressed fear of reprisal if returned home, they unknowingly triggered one of the most complex legal puzzles of the Ukraine war: Who decides their fate?

On February 6, UN Special Rapporteur for North Korean Human Rights Elizabeth Salmon provided a clear answer that surprised many in Seoul. The fate of North Korean prisoners of war, she declared, rests with Ukraine's government—not South Korea, despite its repeated offers to accept the soldiers as citizens.

This position, announced just after the first Russia-Ukraine prisoner exchange in five months, introduces unexpected complications to what seemed like a straightforward case of humanitarian repatriation.

From Battlefield to Legal Battleground

North Korea's support for Russia escalated gradually. What began with artillery shells and weapons in 2022 evolved into something unprecedented by late 2024: 10,000 North Korean troops deployed to active combat zones. Ukrainian intelligence reported an additional 7,000 soldiers stationed at training facilities in Russia's Far East.

The numbers created an inevitable reality—prisoners of war. In January 2025, Ukraine confirmed it held two North Korean soldiers. After interviews conducted by South Korea's National Intelligence Service, both men expressed fear of retaliation if returned to North Korea. Given Pyongyang's propaganda encouraging "heroic sacrifice" over capture, their concerns were hardly unfounded.

Theoretically, four options exist for these prisoners: repatriation to Russia, detention in Ukraine, direct repatriation to North Korea via a third country, or asylum in a third country—presumably South Korea. In practice, the choice is far more constrained.

The Geneva Convention Meets Geopolitics

International law provides specific guidance. Under Article 118 of Geneva Convention III, foreign nationals fighting for another state's military should be repatriated to the country they fought for, not their country of origin. This means North Korean POWs should technically return to Russia, not North Korea.

But the principle of "non-refoulement" complicates matters. This internationally recognized doctrine prohibits transferring individuals to countries where they face persecution, torture, or serious human rights violations. Salmon's acknowledgment that North Korean POWs face "risk of harm upon repatriation" effectively ruled out both Russia and North Korea as destinations.

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South Korea's position adds another layer. Its constitution recognizes all North Koreans as Republic of Korea citizens, creating a legal obligation to assist anyone seeking repatriation to the South. Seoul has repeatedly offered to accept any North Korean POWs who request it.

Initially, President Zelenskyy was firm about treating all POWs equally. In October 2024, he told KBS that all Russia-side prisoners were valuable assets for securing Ukrainian captives' release. Given Russia's preference for one-to-one exchanges, this was strategically sound reasoning.

But the North Koreans' explicit refusal to return home changed the calculus.

Three Countries, Three Calculations

Russia and North Korea have remained notably silent about repatriating their captured soldiers. Moscow appears willing to defer to Pyongyang, while the Kim regime seems inclined to treat captured soldiers like any other defectors. Given North Korea's propaganda about dying rather than surrendering, acknowledging these prisoners' existence creates uncomfortable contradictions.

For Ukraine, North Korean POWs offer limited exchange value if neither Russia nor North Korea actively seeks their return. With South Korea willing to accept them and international law supporting non-refoulement, holding onto reluctant prisoners makes little strategic sense.

The most probable outcome: North Korean POWs will remain in Ukrainian custody until hostilities cease, then transfer to South Korean custody under structured government monitoring. South Korea already operates comprehensive defector resettlement programs through the National Intelligence Service and Korean National Police Agency—systems that could accommodate former POWs.

Setting Precedents in Gray Zone Warfare

This case matters beyond two individual soldiers. North Korea has committed to sending 6,000 additional personnel to Russia, including 1,000 sappers and 5,000 construction workers. More captures seem inevitable.

The broader implications extend to modern warfare's evolving nature. As states increasingly provide military support without direct engagement—so-called "gray zone warfare"—the legal status of auxiliary forces becomes increasingly complex. Traditional POW frameworks struggle with fighters who aren't technically fighting for their home countries.

For South Korea, accepting North Korean POWs offers both opportunities and challenges. These soldiers could provide valuable military intelligence and serve powerful propaganda purposes, demonstrating the South's willingness to protect North Korean citizens. But they also represent security risks and integration challenges.

The international community watches closely. How Ukraine, South Korea, and international organizations handle this case will establish precedents for future conflicts involving proxy forces, mercenaries, and auxiliary troops.