The two North Korean soldiers captured by Ukrainian forces while fighting on the side of Russia are now in South Korea. The case raises a number of questions, from their status as prisoners of war and the legal basis for their transfer to the checks they will undergo and their eventual settlement in the country, journalists Shim Kyu-seok and Lee Hyo-yeon explain.
The two are expected to be questioned and undergo security checks before South Korean authorities decide whether to formally grant them protection and begin a process for their integration into society.
The Unification Ministry in Seoul said their cases would be reviewed in accordance with current law and established practice. This involves the application of the North Korean Refugee Protection and Settlement Assistance Act.
According to it, the National Intelligence Service (NIS) checks the identity of those arriving from North Korea, the reasons for leaving the country, and any issues related to national security.
The investigation and temporary protection can last up to 90 days, and in exceptional circumstances the period can be extended.
A valuable source of military information
The procedure for the two soldiers is likely to be longer due to their military past and the information they have about North Korea's participation in the war on the side of Russia.
Opposition South Korean lawmaker Yoo Yeon-won, who met with the two in Ukraine in February 2025, said that they served in North Korean special forces. He said the soldiers could provide valuable information about the training and capabilities of the North Korean army, as well as the deployment of its units to Russia.
Usually the decision on whether a North Korean citizen should be granted asylum is made by the unification minister. However, when national security issues are involved, the decision can be made by the director of the NIS.
Yu believes the sensitivity of the case could mean that the two will remain out of the public eye significantly longer than most North Koreans arriving in South Korea.
They are also expected to undergo an assessment of their physical and psychological condition. When meeting them in Ukraine, the MP saw them being held separately from each other, and the prolonged isolation and uncertainty about their future may have taken a toll on their mental health.
If granted protection, the two would likely go through the usual program to prepare North Koreans for life in South Korean society.
Was Ukraine entitled to hand them over?
The transfer also raises an unusual international legal issue.
The Third Geneva Convention provides that prisoners of war must be released and repatriated without delay after the cessation of active hostilities. However, this does not necessarily mean a ban on their early release or transfer to a third country.
Ukraine and South Korea have not yet announced the specific legal basis on which the two were transferred, nor whether this officially terminated their status as prisoners of war.
Peter Ward of the "Sejong" Institute points out that repatriation is a fundamental principle in the treatment of prisoners of war, but it should not be applied when return threatens their well-being or fundamental rights.
According to him, international humanitarian law and human rights law provide sufficient grounds for a prisoner of war to be transferred to a third country of his choice, if that country agrees to accept him.
Additional complexity is created by the different positions on the status of North Korean citizens. International law considers North and South Korea to be separate states, while under South Korean law, North Koreans are generally considered citizens of the Republic of Korea.
Why they were not returned to North Korea
Both soldiers have repeatedly stated that they want to go to South Korea - including in media interviews and to lawmaker Yoo Yeon-won.
The principle of non-refoulement prevents a person from being sent to a country where there is a real risk of being subjected to torture, persecution or other grave harm.
Korea University professor and former special representative for human rights in North Korea, Lee Shin-hwa, notes that repatriation remains the general principle for prisoners of war, but international practice also recognizes voluntary repatriation and does not allow for forced return in the event of danger of persecution or torture.
An additional factor is Pyongyang's attitude towards captured servicemen. North Korean leader Kim Jong-un has publicly praised soldiers who committed suicide during fighting against Ukrainian forces in Russia's Kursk region, where both men were captured.
North Korea has little basis under international law to demand their return against their will.
Seoul and Kiev dispute over secret operation
The transfer has also caused diplomatic tensions between South Korea and Ukraine.
Seoul demanded an apology from Kiev after Ukrainian President Volodymyr Zelensky revealed to the United Nations General Assembly that the two North Koreans had been transferred to South Korea.
South Korean authorities said that by disclosing the information, Ukraine had broken an agreement to keep the operation confidential. According to Seoul, the secrecy was necessary both for the protection of the two soldiers and for the safety of their relatives who remained in North Korea.
Kiev, for its part, claims that there was no agreement to keep the transfer secret.
The case comes against the backdrop of South Korea's cautious policy towards the war in Ukraine. Despite pressure from Kiev and some Western countries, Seoul has so far refused to provide lethal weapons and has limited itself mainly to humanitarian and non-lethal aid.
President Lee Jae-myeon announced a $100 million aid package for Ukraine in July, with the government again emphasizing that it did not include lethal weapons.
At their meeting in July, Lee and Zelensky agreed that the issue of North Korean prisoners of war would be resolved in accordance with the free will of the soldiers themselves, international law and humanitarian principles.