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Last January, when two North Korean soldiers were taken as prisoners of war on the Ukrainian front, neither North Korea nor Russia had officially confirmed the presence of their troops. According to the Third Geneva Convention, individuals who are “members of the armed forces of a party to the conflict” are granted prisoner-of-war status, which has sparked discussion about whether these individuals met the criteria for such designation under international law.

At that time, the South Korean government reportedly contemplated classifying them as “North Korean defectors” and relocating them to South Korea. Under the Nationality Act and the North Korean Refugees Act, North Koreans are regarded as South Korean citizens irrespective of where they were born, and individuals who indicate a wish to defect qualify for governmental support.

In April, both North Korea and Russia officially recognized the involvement of North Korean soldiers, bestowing the captured individuals with prisoner-of-war status. The Third Geneva Convention states that “prisoners of war taken during conflicts must be released and sent back to their countries promptly once hostilities cease.” Nevertheless, it also emphasizes that “prisoners should not be repatriated against their own wishes.” As North Korean captives have consistently shown a wish to go to South Korea, compelling them to return to North Korea would breach the convention. The International Committee of the Red Cross (ICRC) also noted in its 2020 analysis of the Third Geneva Convention that “individuals who resist repatriation and encounter significant risks to their basic rights in their native country are not required to be returned.”

At present, North Korean prisoners possess a distinctive legal position: they are considered prisoners of war under international law and South Korean citizens under national law. Specialists suggest that the resolution of their situation should be addressed through diplomatic discussions with Ukraine, which has primary authority. The South Korean government should engage in talks with Ukraine, emphasizing that these individuals are South Koreans according to the Constitution and have declined to return to North Korea. During this process, possibilities involve formally verifying their voluntary decisions via the ICRC and arranging repatriation or transfer procedures.