The Biden administration is debating whether to designate Travis King, the US Army soldier who crossed into North Korea last month, as a prisoner of war, defense officials told CNN.
No final decision has been made, officials said, and as of now King's status is still AWOL, or absent without leave.
King could potentially qualify for POW status since the Korean War ended in an armistice rather than a peace treaty, meaning the US and North Korea are still technically at war.
Granting King prisoner-of-war status could afford him greater protections under the Geneva Convention, which provides strict guidelines to signatories about how a prisoner must be treated while in captivity. The US and North Korea are both signatories.
But officials have repeatedly emphasized that King was seized by the North Koreans after crossing into the country of his own volition, while dressed as a civilian and on a private tour of the demilitarized zone -- not as part of any active fighting between the US and North Korean militaries.
A Defense official told CNN that "a final determination has not been made regarding Private King's status," but emphasized that King "must be treated humanely in accordance with international law."
"Although I'm not able to comment on any ongoing internal deliberations, I can emphasize that the Department's priority is to bring Private King home, and that we are working through all available channels to achieve that outcome," the official said.
King, a junior enlisted soldier assigned to US Forces Korea, had faced assault charges in South Korea and was due to be removed from the US military upon his return to Fort Bliss, Texas, in July, CNN has reported.
The North Koreans have acknowledged receipt of the UN Command's inquiries about King's whereabouts and well-being, officials have said, but have not engaged with the command or the US substantively on the issue.
Reuters first reported that no final determination had been made about how the US would designate King.
Rachel VanLandingham, a military law expert at Southwestern Law School, said invoking POW status would be a way for the United States to try to ensure that King was treated humanely. Under the Geneva Conventions, prisoners of war are also entitled to have a neutral, independent observer check on the detainee.
But VanLandingham said it's unclear that North Korea would even acknowledge POW status or afford King the protections it bestows.
"The POW status really is a symbol for what is the best way the United States could ensure this young man receives humane treatment and what is the best way to try to ensure we can get him back, but to do so without exacerbating the situation," VanLandingham said.
Such a determination, VanLandingham cautioned, would come with serious risks. If the US invokes POW status for King, it could signal to the North Korean regime that the US views the conflict as active instead of an armistice agreement that has lasted for seven decades.
"The political implications of asking for that are just too grave," VanLandingham said.
A former senior Air Force lawyer said it's unlikely King would receive POW status because there was no active fighting when he entered North Korea.
"He wasn't captured in the context of the conflict," the lawyer said. In addition, King wasn't forced into North Korea or captured by their forces, instead entering the country of his own free will.
"He chose to go to North Korea," the lawyer said, pointing out that King's entry into North Korea was not related to the conflict in any way.
