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In some conflicts exchanges of prisoners of war happen during the conflict, and this acts as an additional incentive for taking prisoners instead of killing enemy troops.

However, in certain cases prisoners might not wish to get exchanged (for example, they may face severe criminal penalties for surrendering, up to including the death penalty in some historical situations) and would prefer to stay as prisoners; while the detaining power has an interest of forcing the exchange in order to get more of their prisoners returned.

What is the position of international law, Geneva conventions and/or tradition for such cases? Is it considered permissible to extradite prisoners to their host country against their will, or does the detaining country has a legal requirement to grant asylum if requested and they would face prosecution back home?

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    Do you have any historical examples? Sep 21 at 22:42
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    @MoziburUllah a motivation for this question is to consider the consequences of the recent Russian law restoring severe penalties (3-10 years) for surrendering, and whether that would prevent a potential repeat of today's Ukraine-Russia prisoner of war exchange, however, I'm intentionally asking about the general principle there, not about this specific scenario.
    – Peteris
    Sep 21 at 22:44
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    @JoeW there is historical precedent such as rarehistoricalphotos.com/american-soldiers-stayed-north-korea ; other reasons include consequences upon return (e.g. WW2 USSR POWs of which many were sent to Gulags, USSR also had up to death penalty for surrender until 1960 IIRC) or ideological differences (especially in conscript armies) where they would rather want to live in the opposite side after the conflict is over; again, with many cases even in/after WW2.
    – Peteris
    Sep 21 at 23:01
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    en.wikipedia.org/wiki/… would be another example. Sep 22 at 0:43
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    this acts as an additional incentive for taking prisoners instead of killing enemy troops in a situation where one has a choice between killing an enemy or taking them prisoner, killing is a war crime. Sep 22 at 8:53

3 Answers 3

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In general, the Geneva Convention does not specify the terms of repatriation during wartime for PoWs whose health is not at risk. The cases it does cover are: the sick and wounded during wartime, and the repatriation after the war ends.

Article 109 specifies that the detaining side should repatriate seriously wounded and seriously sick prisoners of war as soon as possible without causing additional risk ("after having cared for them until they are fit to travel"). But his article also states:

No sick or injured prisoner of war who is eligible for repatriation under the first paragraph of this Article, may be repatriated against his will during hostilities.

On another hand, Article 118 is equally clear:

Prisoners of war shall be released and repatriated without delay after the cessation of active hostilities.

This article lacks the provision for the willingness article 109 has.

That said, traditionally, many governments apply the same logic to the article 118 that is present in the last sentence of article 109. Notable cases where this principle had been applied include the Korean War, where significant numbers of Chinese and Korean PoWs expressed desire to stay in detaining countries after release, and the Gulf War. In the latter case, the detaining side (Saudi Arabia) granted refugee status to ~13000 PoWs unwilling to return to Iraq (source: ICRC 1991 Annual report, page 102).

In any case, the position of ICRC is that

...prisoner’s refusal to be repatriated cannot be based on mere convenience. Rather, there must be ‘serious reasons for fearing that a prisoner of war who is himself opposed to being repatriated may, after his repatriation, be the subject of unjust measures affecting his life or liberty, especially on grounds of race, social class, religion or political views, and that consequently repatriation would be contrary to the general principles of international law for the protection of the human being’.

and that any refusal should be evaluated on case-by-case basis.

This means that one cannot refuse to be repatriated to escape punishment for desertion, unless the reviewing entity decides that such punishment would be "unjust".

P.S. Note that most countries include some sort of impressive punishment in their legal system for failure to fight the enemy to the best of soldier's ability. For example, in USA, Article 99 of the Uniform Code of Military Justice states that one might earn himself a life in prison for willfully surrendering to the enemy (although, as far as I understand, usually less severe punishments are used).

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  • Even if the reviewing entity decides that such punishment would be unjust (causing asylum laws to apply), the detaining country could argue that a foreign combatant is a threat to national security and the community of the country, making it legal to deport them under the refugee convention (laws of the detaining country may differ).
    – xyldke
    Sep 22 at 8:35
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Prisoners of war who refuse to be repatriated can apply for asylum in the detaining State (source).

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    That's just the view/position of the ICRC though. Governments are not really bound by that... although many Western ones have asylum provisions in their own laws that are similar.
    – Fizz
    Sep 22 at 8:15
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The Geneva Conventions govern the condict of war, and so also the treatment of prisoners-of-war.

I would expect that to legally stipulate and enforce brutal prison sentences for surrender in cases would contravene the Geneva Conventions.

As you specifiy that what prompted this question is the recent toughening of laws against surrender in Russia. It should be noted that this is for "voluntary surrender" when there is a reasonable chance of holding out or winning. For example, the Code of Fighting for the US Forces disallows surrender unless:

all reasonable means of resistance are exhausted ...

The Russian "toughening up" is not far from USA conventions which, according to article 430 of the Criminal Code allow for upto 7-10 years imprisonment.

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    The Geneva Convention doesn’t cover how they are treated after they return home.
    – Joe W
    Sep 22 at 0:05
  • @JoeW: Yes, it does because it governs the rules of war, within and without the theatre of war. Sep 22 at 0:16
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    This answer did not address the OP's concerns.
    – r13
    Sep 22 at 1:11
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    "Yes, it does because it governs the rules of war": it governs the rules of war that apply to the relations between opposing parties in a war. If you look at the text of the conventions you will see that indeed @JoeW is correct. They contain nothing concerning the treatment of former prisoners after repatriation. Here is the third convention at Wikisource: en.wikisource.org/wiki/Geneva_Convention/…
    – phoog
    Sep 22 at 9:03

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