Seoul treads legal, ethical minefield over fate of North Korean POWs in Ukraine

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Seoul treads legal, ethical minefield over fate of North Korean POWs in Ukraine

Published: 11 Feb. 2026, 18:35 Updated: 11 Feb. 2026, 21:59

SEO JI-EUN
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Audio report: written by reporters, read by AI

In this photo provided by the defector-led civic group NK People’s Liberation Front, North Korean POWs eat “dubu-bap” (tofu rice) — a North Korean-style meal sent by defector groups — during a meeting with South Korean conflict-documentary producer Kim Young-mi at a Ukrainian POW camp on Oct. 28, 2025. A portrait of North Korean leader Kim Jong-un, drawn by the prisoners, is taped to the upper-left of the bed frame. [NK PEOPLE'S LIBERATION FRONT]

[NEWS ANALYSIS]

When the latest high-profile prisoner-of-war (POW) exchange between Russia and Ukraine took place on Feb. 5, 314 individuals walked toward freedom — but two names were conspicuously absent: Ri and Baek, the North Korean soldiers captured in the Kursk region about a year earlier.

Seized by Ukrainian forces in early 2025, they have since publicly expressed a wish to resettle in South Korea, as they could face severe punishment — potentially even death — if forced back to North Korea.

Their case has since become a high-stakes test of international law, pitting the rigid mandates of the Geneva Conventions, which call for POWs to be returned to their home country, against the fundamental principle of non-refoulement — the prohibition on returning individuals to states where there are substantial grounds to believe they will meet with irreparable harm.

While Seoul maintains that the two are South Korean citizens under its Constitution, the dilemma is reaching a tipping point as momentum for a cease-fire builds.

Lawmakers, international law experts and North Korean human rights activists attend a National Assembly seminar to discuss legal and diplomatic pathways for transferring two North Korean POWs held in Ukraine to South Korea on Feb. 3 in western Seoul, hosted by ruling People Power Party Rep. Yu Yong-weon. [OFFICE OF REP. YU YONG-WEON]

Their plight — amplified by an MBC investigative documentary from late January that showed rare on-site footage and interviews from the POW facility, followed by a National Assembly seminar led by People Power Party Rep. Yu Yong-weon on Feb. 3 — has forced a critical debate over how to engineer a lawful off-ramp for the captive soldiers.

The consensus among lawmakers, experts and activists is that Ukraine can, and should, leverage international law to transfer the men to South Korea as a willing third state, prioritizing the principle of non-refoulement over mandatory repatriation. By framing the transfer as a humanitarian necessity rather than a political provocation, experts suggest Seoul can fulfill its constitutional duty to protect its citizens while minimizing the risk of North Korean retaliation.

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The legal duel

Under South Korea’s Constitution, North Korean nationals are considered citizens of the Republic of Korea, giving Seoul a legal basis to accept the two POWs.

However, on the international stage, the tug-of-war centers on the interpretation of the 1949 Third Geneva Convention.

Article 118 of the Convention stipulates that POWs should be released and repatriated “without delay” after the end of active hostilities. Under a literal reading, this would mandate the return of Ri and Baek to North Korea upon the signing of a cease-fire.

Sung Jae-ho, a professor emeritus of Sungkyunkwan University's law school, however, argues that the principle of non-refoulement serves as a "superior norm" that all states must follow.

“The established interpretation in international law and the UN is that the obligation for repatriation under Article 118 is not absolute,” Sung said. “It must reflect the voluntary will of the prisoner.”

Sung points to UN General Assembly Resolution 610, adopted in 1952. A pivotal document from the 1950-53 Korean War, the resolution affirmed that "force shall not be used against prisoners of war to prevent or effect their return to their homelands."

The International Committee of the Red Cross (ICRC), in its updated Commentaries on the Third Geneva Convention, states that the obligation to repatriate under Article 118 must be interpreted in line with the principle of non-refoulement as reflected in international human rights law. Under this framework, as the ICRC notes, states are barred from transferring any person under their control if there are “substantial grounds” for believing they would be in danger in the receiving state.

While the ICRC Commentary is not legally binding, it is widely treated as persuasive interpretive guidance.

Legal framework on the North Korean POWs [YUN YOUNG]

For the two soldiers, the risk is codified in North Korean law.

If they are repatriated to the North via Russia, “there is a strong likelihood” that the charge of treason would apply, the Korea Institute for National Unification (KINU) said in a report published Monday.

Under North Korea’s criminal code revised on Dec. 24, 2023, the report noted, the offense carries at least five years of "reform through labor," and in particularly serious cases, life terms or the death penalty, along with confiscation of property.

“Given their capture as prisoners of war, their publicly expressed desire to go to South Korea, and their interviews with international media, the North Korean POWs could be deemed a ‘particularly serious’ case and thus potentially face the death penalty,” the report added. Fearing that up to three generations of their families could be "exterminated," the two have reportedly suffered from severe despair and even attempted suicide.

To break the deadlock, Sung argues that Ukraine, as the detaining power, should invoke Article 12 of the Geneva Conventions. This clause mandates transferring prisoners to a state that is “willing and able to apply the Convention" to ensure humane treatment.

He emphasized that transferring the North Korean POWs to South Korea is not an exception to Article 118, but rather a "lawful implementation" of the convention, supplemented by the principle of non-refoulement.

South Korea has already signaled its willingness.

In an interview with Hankook Ilbo on Feb. 5, National Security Adviser Wi Sung-lac said Seoul has been “continuing efforts” to bring the soldiers to the South — the first time a senior presidential official publicly acknowledged that consultations are underway.

To bolster the legitimacy of the process, Sung recommended enlisting the ICRC to verify the consent independently.

“Let the ICRC confirm each prisoner’s wishes objectively,” he said, which would make clear to all parties that the men choose not to return to North Korea.

South Korean President Lee Jae Myung, left, shakes hands with Ukrainian President Volodymyr Zelensky after a group photo at the Group of Seven (G7) summit in Alberta, Canada, on June 17, 2025. [PRESIDENTIAL OFFICE]

Diplomacy in the shadows

On the international front, Ukraine’s cooperation is key.

Elizabeth Salmon, the UN special rapporteur on human rights in North Korea, underscored last Friday that the decision ultimately rests with Kyiv, saying that while the UN can offer technical support, “it is up to Ukraine.”

“There are reasonable grounds to believe that in [North Korea], cases of torture and ill-treatment have been very well documented over the years," she added. "So I think that Ukraine has some legal obligations concerning the principle of non-refoulement."

A Ukrainian government delegation that visited South Korea in November of last year said the two POWs were being treated in accordance with international law, while stressing that any discussion of a transfer to Seoul should be handled directly between South Korean President Lee Jae Myung and Ukrainian President Volodymyr Zelensky.

For Kyiv, exposing Pyongyang's involvement had propaganda value.

When they were first captured, Ukraine released their photos and voices without modification. Ukrainian authorities also seemed to consider the North Koreans a bargaining chip — at one point, Zelensky floated an offer to swap the two North Koreans for Ukrainian POWs held by Russia.

But experts say Ukraine may ultimately be willing to release the men to South Korea, especially if doing so bolsters Kyiv’s ties with Seoul.

South Korea has provided humanitarian aid and pledged billion-dollar-scale loans for reconstruction.

“Frankly, Ukraine would trade the two soldiers away if it helped bring back their own captives,” said Sohn Kwang-joo, chairman of the NGO Council for North Korean Human Rights. “They know South Korea has a top-notch arms industry. You can bet Zelensky will use this card — implicitly or explicitly — to ask for something like arms support or reconstruction investment in return.”

Russia, for its part, has grown closer to North Korea, but experts assess that Moscow’s penchant for confrontation over this issue may be limited.

Russian President Vladimir Putin sees North Korean leader Kim Jong-un off following their talks after attending a military parade marking the 80th anniversary of victory over Japan and the end of World War II, in Beijing on September 3, 2025, in this pool photograph distributed by the Russian state agency Sputnik. [AFP/YONHAP]

“Some worry about Russia’s backlash, but Russia likely won’t cut ties with Seoul over the North Korean POWs,” says Jeon Seong-hoon, a visiting research fellow at the Seoul-based think tank Sejong Institute.

The number of soldiers is small, and they are in Ukrainian custody — not a Russian bargaining asset — so Moscow has no direct standing.

More importantly, Jeon notes, the Kremlin’s bigger concern is whether South Korea crosses what Moscow has repeatedly described as a "red line" — providing weapons to Ukraine, something which Seoul has avoided so far.

“Russia needs South Korea’s help for postwar reconstruction as well, so it still has considerable lingering expectations toward Seoul. Because we have assets that Russia cannot resolve through its relationship with North Korea, Russia’s pushback is unlikely to be very strong,” Jeon said.

Sohn pointed to "Freikauf," a Cold War-era practice in which West Germany provided money and goods to East Germany to secure the release of political prisoners, suggesting that creative, nonpublic arrangements may prove more effective.

North Korean troops deployed to the Kursk front line in Russia appear in combat footage released by North Korea’s state-run Korean Central Television (KCTV) on Aug. 31, 2025. [YONHAP]

Minimizing backlash from the North

Even if Seoul and Kyiv can agree on a lawful pathway, another risk looms: how to get the two men out before they are safely on their way to South Korea.

Experts argue that quiet, low-key diplomacy is not simply a stylistic preference but a risk-management strategy. The more the case is politicized in public, the greater the likelihood that North Korea will harden its stance, taking punitive steps against those connected to the soldiers, including family members back home.

“This is a sensitive issue that can provoke a strong reaction from the North,” Jeon said, “so we need to act smart — keep it low-key and tie it into our broader North Korea policy by adhering to the principle of reciprocity.”

He pointed to Ahn Hak-sop, an unrepentant former North Korean spy in his mid-90s who spent decades in prison in South Korea. Ahn has long campaigned to return to North Korea before his death. This reciprocal model could eventually expand to the six South Korean citizens currently detained in the North.

“We can publicly announce our willingness to support the return of individuals like Ahn to the North in exchange for the two North Korean POWs,” Jeon explained. “By framing it as a reciprocal humanitarian gesture, we can mute internal opposition and provide a justification for the North Korean regime to engage without losing face [...] as we shouldn’t needlessly provoke the North.”

BY SEO JI-EUN [[email protected]]