Ukraine Symposium – Release of Chinese POWs in Ukraine

In early April, reports emerged indicating that Ukraine had captured two Chinese nationals who were fighting alongside Russian forces in Ukraine. Additional reports shared by Ukraine’s intelligence agencies identified nearly two hundred other Chinese nationals also participating in the conflict on Russia’s side. These controversial reports surfaced amid China’s repeated claims of neutrality and cast renewed doubt on the true nature of China’s involvement.

Following the capture of the Chinese nationals, Ukraine’s president expressed an intention to exchange them for Ukrainian military personnel held in Russia. The Chinese prisoners of war (POWs) rejected the possibility of being a part of a Ukraine-Russia POW exchange but expressed the desire to be released directly to China and for China to negotiate their release.

Prisoner exchanges have been a common occurrence in the Ukraine-Russia war and have already been discussed here, here, and here. What remains unclear in the context of such exchanges, however, is how the existing legal framework applies when one of the exchanging States is likely not a party to an armed conflict, or whose relation to the war remains ambiguous.

This post aims both to analyze the legal implications of involving third States in negotiating POWs’ release and, more broadly, to examine the available legal mechanisms for facilitating the early release of Chinese POWs.

POW Release

According to the existing detention framework, specifically the Third Geneva Convention (GC III), all captured POWs must generally be released once the active hostilities cease on the ground, subject to factual assessment (art. 118). The provision requiring repatriation of POWs at the end of an armed conflict is based on an understanding of captivity as a security measure, aimed at preventing POWs from contributing militarily to the battlefield.

Beyond a general obligation to release POWs at the end of the war, GC III also provides an exception for the obligatory release of severely sick and wounded POWs already during the war (art. 109). This provision aligns with the preventive logic of wartime internment, as sick and wounded POWs are generally not expected to strengthen the forces on the battlefield upon their return.

As for the release of able-bodied POWs before the end of an armed conflict, GC III does not explicitly require such releases, although it also does not prohibit them. Article 109 states that the Parties “[m]ay conclude agreements with a view to the direct repatriation or internment in a neutral country of able-bodied prisoners of war who have undergone a long period of captivity.” As stated in an updated Commentary to GC III, the aim of this provision is merely to emphasize the balance between the military necessity and humanity that belligerents should always seek in their decisions to intern POWs. Despite the non-obligatory nature of the provision, as it stands in international humanitarian law (IHL) today, exchanges of POWs are common occurrences in wars.

However, the textual provision pertaining to such POW exchanges, similar to many other provisions concerning the release and repatriation of POWs, generally refers to the Parties to an armed conflict who are authorized to conclude such agreements (for a discussion on the priority of the principle of allegiance over nationality in decisions concerning the release and repatriation of POWs see, e.g., United States vs. Noriega, para. 1526). Notable exceptions exist with regard to the transfer of POWs to a neutral third State (art. 12).

Therefore, in order to determine whether any agreement with China regarding the release of POWs is relevant under the existing detention framework, it is first necessary to establish to which State the Chinese soldiers’ conduct is attributable. For the purposes of this analysis, the POW status of Chinese soldiers is assumed, as recognized by Ukraine.

State Attribution for the Acts of Chinese Soldiers

While there may be significant incentives for China to deploy its forces in the war in Ukraine, and despite some evidence that suggests otherwise (i.e., reports of Chinese officers distantly serving as military advisers within Russian-aligned units), it remains unlikely that Chinese soldiers are currently participating in the war in their official capacity as de jure organs of China. Reinforcing this conclusion is the apparent absence of the command and control relationship required under Article 4 of the Articles on State Responsibility (ASR) to attribute their conduct to China.

By its own account, “the Chinese government has consistently urged its citizens to stay away from conflict zones and to avoid involvement in armed conflicts in any form—particularly participation in military actions on any side.” Furthermore, despite the presence of Chinese nationals on the battlefield, Ukrainian intelligenceagencies, as well as other States’ intelligence communities, have been reluctant to officially connect the actions of the Chinese nationals to the Chinese government, even if it remains likely the Chinese government has acknowledged or even tacitly approved the mass participation of its nationals in the conflict on Russia’s side.

At the same time, the existence of a command and control relationship—required for the purposes of attributing the conduct of soldiers to a State under Article 8 of the ASR—is more evident between Chinese soldiers and the Russian Armed Forces. Available reports suggest that Chinese nationals participating in the conflict in Ukraine have been officially integrated into Russian military units. Specifically, most of them are currently serving within the Pyatnashka International Brigade, a pro-Russian military formation active in combat operations in the Donetsk region of Eastern Ukraine.

Furthermore, despite the fragmented nature of available data, extensive evidence indicates that Chinese fighters are receiving direct operational orders from Russian officers, which are at times facilitated by online translation apps. In view of these operational ties, as analysis shows, it is more reasonable to conclude that Chinese POWs captured in Ukraine belong to Russia as a party to an armed conflict. Therefore, under a strict reading of the provisions of GC III regulating the release of POWs, any such agreement should be pursued directly with Russia. Nevertheless, any such arrangement must also consider additional legal factors that may arise.

Potential Barriers to the Release of Chinese POWs

When considering options for the release of Chinese POWs, one important factor to account for is the preferences of the POWs themselves. Although this requirement is not explicitly embedded in Articles 109(2) and 118 of GC III, a similar provision concerning the release of sick and wounded POWs during an armed conflict addresses it (art. 109(3)). Moreover, in practice, States have upheld the principle of respecting POWs’ preferences such that it is now embedded in customary international law (see, Henckaerts and Doswald-Beck, Customary International Humanitarian Law, rule 128). Chinese POWs, by refusing release to Russia, could directly constrain the negotiation of an exchange agreement with Russia.

In addition to preferences of Chinese POWs, releasing them to Russia may also violate the principle of non-refoulement, which prohibits the return of individuals to a country where they are likely to face violations of their human rights. This principle is particularly relevant in the current Ukraine-Russia war due to reports suggesting Russia is compelling foreign nationals, including Chinese citizens, to join combat operations by force.

On this basis, viable reasons exist to expect that Russia would prefer to re-deploy Chinese POWs to the battlefield upon their release rather than return them to China, which may violate the Chinese POWs’ rights to life and freedom. For instance, one Chinese national participating in the war reportedly recalled his commander’s response to a request for release upon completion of his contract: “We’ll terminate your contract only after winning the war.” Therefore, given these risks, the most appropriate course of action would be to ensure that Chinese POWs are released directly to China.

At the same time, uncertainty remains about how the two previously discussed principles interact, particularly given reports that Chinese POWs might face punishment upon returning to China for participating in foreign military operations. While no principle appears to automatically overarch the other, any such contradiction should be resolved by accounting for the nature and proportionality of the punishment. If the punishment is too severe (e.g., death penalty, life imprisonment), or politically motivated (e.g., exile), which some accounts suggest is still widely practiced in the People’s Republic of China, the principle of non-refoulement should take precedence.

In this case, Ukraine may consider releasing such POWs to a neutral third State, as some recently suggestedregarding the release of North Korean POWs (GC III, art. 12). In any case, Ukraine should investigate the nature of any punishment POWs might face before making any decision regarding their release.

Current Options for the Release of Chinese POWs

Two alternative legal mechanisms can facilitate the early release of Chinese POWs to China: exchange; and diplomatic protection.

Exchange  

On an initial read, the provision of GC III addressing POW exchanges appears to have been adopted on the assumption that only belligerent States could conclude exchange agreements. Yet the text of the provision itself, its underlying history, and the key tenets and goals of IHL suggest that such a narrow reading is not only unsupported but also undermines the very goals of IHL. As such, support for a broader reading of Article 109(2) exists in the non-mandatory phrasing of the provision, which suggests flexibility rather than exclusivity.

Second, as already mentioned, a Commentary to GC III states that the main goal of the provision is merely to underscore the balance between military necessity and humanity that belligerents should pursue in their decisions regarding the release of POWs. Doing so encourages States to adopt humanitarian measures that are most favourable to POWs whenever possible, including the involvement of additional parties in negotiating their release. Furthermore, this interpretation of the provision extends to the categories of POWs eligible for exchange, suggesting States should exchange all pertinent groups, including, but not limited to, long-detained POWs (see Gottlieb, Repatriation in Theory and in Practice Throughout the First World War, p. 11).

Third, support for a broader interpretation of the provision exists in Article 6 of GC III, which incentivizes the conclusion of agreements beyond those explicitly provided for in GC III, so long as they serve to improve the condition of POWs. Importantly, Article 6 does not limit the conclusion of such agreements solely to the parties to an armed conflict, but rather also permits agreements with third States. This provision has proven to be especially important in facilitating the early release of POWs both historically and even during the ongoing war between Ukraine and Russia (see, e.g., here and here).

Therefore, in the context of a potential POW exchange with China, two special agreements are possible: one between Ukraine and China concerning the release of Chinese POWs to China; and another between China and Russia regarding the release of Ukrainian POWs. Such special agreements are desirable even without considering the incentives Ukraine could obtain by having China—one of Russia’s closest allies in its current war—involved in negotiating the release of Ukraine’s POWs.

Diplomatic Protection

Alternatively, China could seek the release of its nationals captured in Ukraine by invoking the mechanism of diplomatic protection under customary international law (see Draft Articles on Diplomatic Protection). Unlike the rules governing the release and repatriation of POWs under IHL, this mechanism relies on the principle of nationality, which recognizes the legal protective bond between an individual and their State. For instance, Article 1 of this legal instrument permits a State to act on behalf of its nationals—through negotiation, diplomatic dialogue, or other peaceful means—when the State believes the rights of one of its nationals have been violated, including in cases of detention.

In this case, while one of the captured POWs reportedly signed a military contract with Russia voluntarily, the other traveled to Russia to work as a medic in the Russian military, yet ended up deployed into combat without the opportunity to refuse. This, in turn, could itself be regarded as an internationally wrongful act, triggering China’s right, as a State of the POW’s nationality, to negotiate with Ukraine for his release, as his continued detention violates his right to life and freedom under international human rights law (IHRL). The United Kingdom asserted a similar right during this war in response to the unlawful detention and prosecution of British nationals by the so-called Donetsk People’s Republic, after the British nationals were caught fighting on Ukraine’s side.

Concluding Thoughts

The analysis above outlines several legal avenues for securing the early release of Chinese POWs captured in Ukraine. It also advocates for a broad interpretation of existing IHL provisions on early the release of POWs that allows for the involvement of third States in negotiating such release. The underlying legal mechanisms will be particularly relevant in future armed conflicts, especially protracted conflicts involving nationals of multiple States, like the ongoing Ukraine–Russia war.

***

Anna Lyfar is a PhD candidate at the Bar Ilan University.

The views expressed are those of the author, and do not necessarily reflect the official position of the United States Military Academy, Department of the Army, or Department of Defense. 

Articles of War is a forum for professionals to share opinions and cultivate ideas. Articles of War does not screen articles to fit a particular editorial agenda, nor endorse or advocate material that is published. Authorship does not indicate affiliation with Articles of War, the Lieber Institute, or the United States Military Academy West Point.

Photo credit: Security Service of Ukraine