This article is by Seo Ji-eun and read by an artificial voice.
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.
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.
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.
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 'par...