The History, Current Situation, and Challenge in the Implementation of
II. The Korean War and Geneva Conventions 1. Accession to Geneva Conventions
A telegram message of the International Committee of the Red Cross (ICRC) was delivered at the beginning of the Korean war, suggesting the provision of its humanitarian service based upon its non-political policy.
The UN military command announced the observance of the Geneva Convention on July 4, 1950, which was soon followed by the declaration of the Syngman Rhee administration. The Geneva Convention mentioned here by both the UN Command and the ROK government was limited to the Geneva Convention III concerned with the protection of the prisoners of war (POWs).2 The character of the ROK government’s announcement is a political commitment to observe the Convention with no legally-binding force in the strict sense of the word, which is therefore different from the obligation that a state party bears to the Convention following the accession.
The most controversial issue throughout the negotiations during the Korean war was concerned with the treatment and repatriation of POWs.
The Geneva Convention III, Article 1183 stipulated for the prompt release of POWs following the cessation of hostilities. The ROK government insisted
2. The UN military command announced the treatment in accordance with the Geneva Convention III of “personnel of the armed forces of North Korea and other persons of North Korea who are taken into custody or fall into the hands of armed forces now under my operational control”.
3. Article 118 of the Geneva Convention III: “Prisoners of war shall be released and repatriated without delay after the cessation of active hostilities. In the absence of stipulations to the above effect in any agreement concluded between the Parties to the conflict with a view to the cessation of hostilities, or failing any such agreement, each of the Detaining Powers shall itself establish and execute without delay a plan of repatriation in conformity with the principle laid down in the foregoing paragraph...”
upon the non-repatriation of North Korean POWs who expressed their unwillingness to return, and North Korea strongly objected to such position.
Ultimately, it was agreed that the POWs’ wills be considered.
The ROK deposited the instrument of accession to the 1949 Geneva Conventions with the Swiss Federal Government on August 16, 1966, with the reservation4 of the Geneva Convention III, Article 118. The ROK signed the Additional Protocols to the Geneva Conventions on December 7, 1978 and ratified them on January 15, 1982 with the reservation5 of the 1st Additional Protocol, Article 85, paragraph 4(b). In July 1999 on the 50th anniversary of the conclusion of the Geneva Conventions, the ICRC requested the withdrawal of the reservation on Article 118 in order to secure the universality of the interpretation and application of the Conventions. The ROK government confirmed in the general meeting of the ICRC in October 1999 that it would withdraw the reservation of the clause, but this has not eventuated. The repatriation of POWs was controversial. Following the experience of World War I and II, the 1907 Convention respecting the Laws and Customs of War on Land,6 and the 1929 Geneva Convention,7 the Geneva Convention III, Article 118 provided
4. The reservation of the ROK is follows: “The Republic of Korea interprets the provisions of Article 118, paragraph 1, as not binding upon a Power detaining prisoners of war to forcibly repatriate its prisoners against their openly and freely expressed will.”
5. The reservation of the ROK is as follows: “In relation to paragraph 4(b) of Article 85 of Protocol I, a party detaining prisoners of war may not repatriate its prisoners agreeably to their openly and freely expressed will, which shall not be regarded as unjustifiable delay in the repatriation of prisoners of war constituting a grave breach of this Protocol.”
6. The 1907 Convention respecting the Laws and Customs of War on Land, Article 20 provides: “After the conclusion of peace, the repatriation of prisoner of war shall be carried out as quickly as possible.”
7. The 1929 Geneva Convention, Article 75 provides: “When belligerents conclude an armistice convention, they shall normally cause to be included therein provisions concerning the repatriation of prisoners of war, If it has not been possible to inset in that Convention such stipulation, the belligerents shall, nevertheless, enter into
that prisoners of war shall be released and repatriated without delay after the cessation of active hostilities. In light of the literal letters of the Geneva Convention, the withdrawal of reservation would obligate or pressure the ROK government to repatriate the POWs who have refused their repatriation. The ROK government held the opinion that the forcible repatriation of POWs contravenes basic tenet of international human rights law, which is compatible with IHL.
2. Korean War and the Legacy of IHL
Despite the announcement made by the United Nations and the ROK government about the compliance of the Geneva Conventions at the beginning of the Korean war, the prisoners of war (POW) and protection of civilians respectively provided for in the Geneva Convention III and IV remain outstanding. The pending issues of the non-repatriation of POWs, as well as the whereabouts of and communication with displaced families need to be resolved as soon as possible in the humanitarian perspective.
The Geneva Conventions in part have not been implemented following the Korean war in the midst of tense military confrontation and regime competition on the Korean peninsula.
North Korea has tenaciously persisted in its position that no POWs exist in their territory, though the ROK raised the issue of POWs non-repatriation since the army second lieutenant Cho Changho defected from North Korea in 1994. It is reasonable and natural that displaced family issues should be dealt with from a humanitarian perspective, but North Korea approaches the issue of displaced families politically. Meetings of
communication with each other on the question as soon as possible. In any case, the repatriation of prisoners shall be effected as soon as possible after the conclusion of peace...”
family reunions numbering merely hundreds of people have been arranged intermittently, only during times when South and North Korean relations turn amicable, and is dependent on North Korean politics. It is desirable to regularize family reunion meetings and allow free communication for displaced people in a humanitarian perspective.