Blog Post – International Law

This was an off-the-cuff blog post about the fictional character Bucky Barnes, of the Captain America movie trilogy within the Marvel cinematic universe. Bucky Barnes (aka the Winter Soldier) was originally a soldier in WWII, before he was captured by the evil organization known as ‘HYDRA’ and brainwashed into doing their bidding. This post examines whether or not he could or would be considered a POW under international law. (In this environment, “tl;dr” is the relevant colloquialism for an executive summary.)

Is Bucky Barnes a Prisoner of War, under International Law?

In the real world, whether or not Bucky Barnes is a Prisoner of War would likely be a massive political and philosophical debate…but legally? Yes – mostly. There’s a tl;dr at the bottom, but for now, here goes my superficial analysis of the Geneva Conventions and speculation as to how they might apply to Bucky Barnes.

The big problem is that HYDRA isn’t a state, and most laws concerning war crimes and prisoners of war are about states. The legal status of non-state terrorist groups are, even now, under dispute. However, HYDRA would be subject to Article 3 of the Third Geneva Conventions:

In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each Party to the conflict shall be bound to apply, as a minimum, the following provisions:

(1) Persons taking no active part in the hostilities, including armed conflict not of an international character occurring in the territory of one of the High Contracting Partiesmembers of armed forces who have laid down their arms and those placed ’ hors de combat ’ by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria. To this end, the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons:

( a ) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture;

( b ) taking of hostages;

( c ) outrages upon personal dignity, in particular humiliating and degrading treatment;

(Emphasis mine)

In short, Bucky was placed hor de combat (“out of combat”) due to his wounds. GCIII.3(1(a)) is what means HYDRA couldn’t mutilate or torture Bucky (his arm)…if they’d done that after 1949, which is when the Geneva Conventions were solidified into (mostly) what we know them as, today.

However, given that we see clearly that his treatment at the hands of HYDRA even in the 21st century (the vault scene from Captain America 2) causes pain extreme enough to constitute torture, it still applies on those grounds. So this merely leaves the mutilation aspect up in the air, legally.

The brainwashing, the dehumanization, and the cryogenic freezing – all of this against Bucky’s will (meaning he never provided legal consent for any of this beforehand) – definitely constitutes “outrages upon personal dignity”, and “degrading treatment”. Or at least it should.

The only questionable bit is whether or not the first emphasis applies: “armed conflict not of an international character occurring in the territory of one of the High Contracting Parties”. HYDRA operates all over the world, but since most countries are signatories to at least the Geneva Conventions (even if not all three of the Protocols added later), it’s safe to assume that HYDRA still falls into this category.

Beyond that, Article 4 of GCIII also states additional definitions of a Prisoner of War that can apply to Bucky:

A. Prisoners of war, in the sense of the present Convention, are persons belonging to one of the following categories, who have fallen into the power of the enemy:

(1) Members of the armed forces of a Party to the conflict as well as members of militias or volunteer corps forming part of such armed forces.

(3) Members of regular armed forces who profess allegiance to a government or an authority not recognized by the Detaining Power.

While the exact application of these definitions are confounded by the fact Bucky was captured in 1945 (the Geneva Conventions being created in 1949), but since HYDRA kept Bucky well after that point, it seems safe to assume this applies to them.

Finally, Article 5 explains who is covered by the GCIII, in relation to the length of their time in captivity:

The present Convention shall apply to the persons referred to in Article 4 from the time they fall into the power of the enemy and until their final release and repatriation.

So, here’s the conundrum: this specifies “release and repatriation” to be considered no longer a POW – but these are two separate events, and it’s hard to tell whether either of these happened.

The first question: Was Bucky ever actually released?

Just because Bucky is “released” (an adjective describing his state of being after escaping HYDRA’s clutches in Captain America 2) doesn’t mean he was “released” (a verb meaning ‘HYDRA let him go’). That’s the legally debatable part: if HYDRA didn’t give up their claims to Bucky, can we really say he was released? Or is he still effectively in their captivity, from the legal stand point, and is currently evading that captivity by hiding from them? Even though Bucky escaped HYDRA and has been free of them for two years by the events of Civil War, we can still argue that if HYDRA was still trying to recapture him. That would mean they haven’t actually released him, which means Bucky isn’t released, meaning he’s still a POW – just one on the run from a semi-omnipresent terrorist organization (meaning one could argue that he’s justified in not turning himself into any legal or state entity, given the level of infiltration HYDRA has accomplished before).

But that’s assuming HYDRA still exists to make that claim. Given that HYDRA was reported to be destroyed completely/no longer exist a bit after the events of Civil War (if we’re taking Agents of SHIELD for their word when they showed a systematic take-down of current HYDRA leadership, and take HIVE’s death as the ultimate culmination of their collapse), then the fact that the organization no longer exists would definitely mean that Bucky is legally ‘released’. However, as their saying goes, “cut off one head, two more will grow in its place” – just because we thought HYDRA was destroyed doesn’t mean it is.

Despite all that, there’s still the second event: repatriation.

Repatriation means returning someone to their country of origin. Conventionally, it would mean that Bucky has to be returned to the United States, since he was a soldier of the United States Army when he was captured. If we go by this definition, then Bucky is technically still a POW, since he hasn’t been returned to the US…maybe.

After all, when he escaped HYDRA, and thus theoretically satisfied the “released” component, it was on US soil (Washington, D.C.), meaning that it’s possible that his repatriation occurred at the same time as his release. So the moment he walked away from Steve on the river bank, he was no longer a POW.

Additionally, one could argue that “returned to the country of origin” doesn’t have to mean physically returned. They could just be legally returned to the custody of that country, with another country or an international entity actually holding the person on behalf of the country that the POW has been repatriated to.

It’s entirely possible that somewhere in the background of Captain America 3, when Bucky was captured and taken into UN custody, a bunch of pieces of paper were signed wherein the United States formally accepted Bucky Barnes as a United States citizen, and were just letting the UN hold Bucky on their behalf. Or, they legally took Bucky back, then when Bucky’s status as a POW formally ended with that action, the US was giving Bucky over to the UN to be tried for war crimes committed as the Winter Soldier.

tl;dr

Bucky was definitely a Prisoner of War from his capture in 1945 up until his escape from them in 2014 (the events of Captain America 2: The Winter Soldier). It’s debatable whether or not he is still a Prisoner of War between then and 2016 (the events of Captain America 3: Civil War). While technically possible possible, it is unlikely that he is legally still considered a prisoner of war after the events of Captain America 3, especially if we assume HYDRA really was destroyed when they seemed to collapse in Agents of SHIELD.

Whether or not Bucky is still culpable for the war crimes committed by the Winter Soldier while in HYDRA’s captivity is a separate can of worms entirely that I’ll write about another day.

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