human-rights military laws-of-war
Can prisoners of war be exchanged against their will?
<p>Assume the following situation:</p>
<ul>
<li>You live under an authoritarian regime.</li>
<li>Your country is at war with another country, which has a far more favorable human rights record.</li>
<li>Your attitude of your regime is critical, and you see the war as unjustified.</li>
<li>Nonetheless, you were drafted (or became a career soldier, maybe during better times) and are now required to fight in this war.</li>
<li>The other side captures you, making you a prisoner of war. You are glad it turned out this way, believing this is the end of the war for you.</li>
<li>Now both sides are arranging a prisoner exchange, and you are informed that you are among those who will be repatriated. However, you would rather remain a prisoner until the end of the war than be returned to your country. Not only do you no longer wish to live under that regime and support it, you may also face punishment in your country, e.g. for surrendering to the enemy.</li>
</ul>
<p>What international law would apply to such a situation? Would it allow the repatriation of a POW against their will? Are there any further circumstances that would make a difference here?</p>

<p>One option would be for the PoW to claim asylum as a refugee in the &quot;capturing&quot; country or, for example, via an international human rights organisation:</p>
<blockquote>
<p>Refugees are defined and protected in international law. The <a href="https://www.unhcr.org/3b66c2aa10.html" rel="noreferrer">1951 Refugee Convention</a> is a key legal document and defines a refugee as:</p>
<p>&quot;someone who is unable or unwilling to return to their country of origin owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group, or political opinion. <a href="https://www.unhcr.org/uk/what-is-a-refugee.html#:%7E:text=The%201951%20Refugee%20Convention%20is,group%2C%20or%20political%20opinion.%E2%80%9D" rel="noreferrer">Source: UNHCR</a></p>
</blockquote>
<p>That said, things like political objectives, diplomatic negotiations, military strategies, and the prisoner's &quot;value&quot; (on both sides) may influence decisions around which prisoners are exchanged and when.</p>

<p>This question is investigated <a href="https://www.refworld.org/pdfid/413c8b444.pdf" rel="noreferrer">here</a>. If we take the refugee question off the table for a moment, we need only consider the
<a href="https://www.un.org/en/genocideprevention/documents/atrocity-crimes/Doc.32_GC-III-EN.pdf" rel="noreferrer">Third Geneva Convention Relative to the Treatment of Prisoners of War</a> which is the international law that governs prisoners of war.
No provision of that treaty requires a detaining power to, in any fashion, consult with a prisoner regarding selection for a prisoner exchange. Therefore, &quot;I'd rather stay here&quot; has no legal force.</p>
<p>Article 7 may be an important procedural requirement for a POW: &quot;Prisoners of war may in no circumstances renounce in part or in entirety the rights secured to them by the present Convention, and by the special agreements referred to in the foregoing Article, if such there be&quot;. The rationale behind this is the presumption that the prisoner may well have been coerced into some renunciation, so Art 7 makes such coercion ineffective. Art. 21 says that a POW can be interned (etc.) but also</p>
<blockquote>
<p>Prisoners of war may be partially or wholly released on parole or
promise, in so far as is allowed by the laws of the Power on which
they depend. Such measures shall be taken particularly in cases where
this may contribute to the improvement of their state of health. <em>No
prisoner of war shall be compelled to accept liberty on parole or
promise.</em></p>
</blockquote>
<p>(This does not refer to repatriation, it refers to &quot;letting them roam about&quot;).</p>
<p>The one exception of note regarding the principle that prisoners get no say is Art. 109 which states that</p>
<blockquote>
<p>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</p>
</blockquote>
<p>where the first-paragraph condition is being a seriously wounded or
seriously sick prisoners of war who is has been treated to be fit for travel.</p>
<p>The convention states an unconditional requirement to repatriate prisoners at the end of hostilities, so we must assume that since this is a prisoner exchange that hostilities persist. As <a href="https://www.refworld.org/pdfid/413c8b444.pdf" rel="noreferrer">the analysis article states</a>,</p>
<blockquote>
<p>Those benefiting from the protective status of prisoners of war are,
in principle, not entitled to the international protection granted to
refugees. However, prisoners of war who refuse to be repatriated at
the end of the hostilities can apply for asylum in the detaining
State....</p>
<p>The 1951 Refugee Convention is not applicable to ex-combatants during
their period of internment</p>
</blockquote>
<p>Thus a line can be draws between prisoner exchanges and repatriation at the cessation of hostilities. However,</p>
<blockquote>
<p>From a refugee law perspective, a former combatant <em>in a neutral State</em>
who has been disarmed and interned can be a refugee</p>
</blockquote>
<p>In summary, in the case of a POW held by an enemy state (not a neutral state), one who is not seriously injured, and while hostilities exist, there is no clear path to refuse repatriation. The refugee door is open at the cessation of hostilities, where one asks if a person is &quot;includable&quot; (might be persecuted) and is not &quot;excludable&quot; (war criminals are excluded). Being an enemy combatant is a legitimate ground for exclusion (there is a long exegesis of the 1951 Refugee Convention <a href="https://www.unhcr.org/4ca34be29.pdf" rel="noreferrer">here</a>, see Art. 9).</p>

<p>I'm going to go out on a limb here and guess this question is motivated by Ukraine and Russia. <a href="https://www.rferl.org/a/ukraine-zelenskiy-russians-surrender-dodge-draft/32051023.html" rel="nofollow noreferrer">Ukraine is encouraging Russians to surrender.</a> <a href="https://odessa-journal.com/10-years-for-surrender-desertion-and-refusal-to-fight-putin-signed-a-package-of-amendments-to-the-criminal-code/" rel="nofollow noreferrer">Russia is threatening prison time to those who surrender.</a></p>
<p><strong>Bottom Line</strong>:
If you are Russian and want to avoid being sent to Ukraine, your best bet is to seek asylum <em>before</em> reporting for duty.</p>
<p>There are reasons to think <a href="https://digital-commons.usnwc.edu/cgi/viewcontent.cgi?article=1927&amp;context=ils" rel="nofollow noreferrer">involuntary repatriation of POWs may not happen</a>, but once you are a POW you are holding yourself hostage to the outcomes of the war and the politicians who are negotiating the wars conclusions. POWs are <em>always</em> a part of those negotiations, and if Russia wants to demand involuntary repatriation as a condition of the end of hostilities they will. Furthermore, once in the military you are subject to military law, which can be dangerous. International law does not cover how military.s treat <em>their own soldiers</em> and there is no guarantee that your superior will not just shoot you for trying to surrender.</p>
<p>If you seek asylum in a third country <em>before</em> reporting, you are still hostage to politicians and laws, but different politicians and different laws. Those countries will have their processes, and politics can still play a part, but it would be difficult for Russia to tie peace in Ukraine to the forcible repatriation of asylum seekers from (say) Finland. In most cases, asylum seekers have more protections, and I suspect that some countries would be happy to stick a thumb in Russia's eye. <em>Getting</em> to the third country is the challenge, but it will not be easier or safer if you are in a Russian military uniform.</p>
