Lieber Studies Indo-Pacific Volume – Prisoners of War and a Taiwan Conflict – Lieber Institute West Point

Editors' note: This post is based on the author's chapter in Armed Conflict and International Law in the Indo-Pacific Region (Douglas Guilfoyle & Jennifer Maddocks eds. 2026), the thirteenth volume of the Lieber Studies Series published with Oxford University Press.

If conflict were to erupt over Taiwan, one of the most immediate and consequential legal questions would be how to classify the conflict and what such classification would mean for those taking active part in the hostilities. Whether fighters are recognized as prisoners of war (POWs) or treated simply as detainees can determine everything from their legal protections to their treatment in captivity and even whether they can be prosecuted at the end of hostilities.

This post draws on my chapter in Volume XIII of the Lieber Studies book series, edited by Professors Douglas Guilfoyle and Jennifer Maddocks. In both the post and my chapter, I examine how and why international humanitarian law (IHL) would apply to a conflict in and over Taiwan, and why the answer is more complicated than it might first appear.

The Crucial First Step: Classifying the Conflict

At the heart of the issue lies a fundamental distinction in the law of armed conflict: the difference between international armed conflicts (IACs) and non-international armed conflicts (NIACs). IACs are between two or more States, while NIACs occur within a State, typically between government forces and non-State armed groups (or between such groups themselves).

This distinction matters because fighters qualify for combatant status only in IACs and, if captured, POW status. In contrast, fighters captured in NIACs receive only basic humanitarian protections which, while still significant, are far less extensive in scope. Importantly, such NIAC fighters may also be prosecuted under domestic law simply for taking part in the hostilities.

So where would a conflict involving China and Taiwan fall? The answer depends in part on how Taiwan is understood in international law. Taiwan possesses many characteristics of a State: a functioning government; control over its territory; and the capacity to independently engage in international relations. However, it lacks widespread formal recognition as a sovereign State and has not explicitly declared independence in legal terms. Most international legal scholars therefore stop short of recognizing Taiwan as a fully sovereign State.

This ambiguity has major consequences. If Taiwan is treated as part of China, a conflict would be classified as non-international, but if Taiwan is treated as a separate State, the conflict would be international. The prevailing legal position suggests that a China–Taiwan conflict would, at least initially, be considered a NIAC.

What This Means for Fighters

This classification has immediate implications for people captured during hostilities. In an IAC, captured fighters who qualify as lawful combatants are entitled to POW status as outlined in Geneva Convention III. POW status includes a range of rights and protections such as humane treatment, food, shelter, clothing, legal protections, and medical care, among a host of other rights, as well as protection from prosecution for lawful acts of war. This final protection is known as combatant immunity.

However, in a NIAC, captured fighters on the non-State side are not considered POWs. Moreover, they do not benefit from combatant immunity and can be prosecuted under domestic law for taking part in hostilities, even if such direct participation was fully compliant with the law of armed conflict. Captured fighters in a NIAC are still protected under Common Article 3 and Additional Protocol II, which guarantee humane treatment and certain procedural safeguards. However, these protections are significantly narrower.

Could a Taiwan Conflict Become “International�

Despite the initial classification as a NIAC, there are several pathways by which a Taiwan conflict could transform into an international one. If Taiwan were to formally declare independence and meet the criteria for statehood outlined in the Montevideo Convention, any conflict with China would likely be classified as an IAC. In that case, Taiwanese fighters would be entitled to combatant and POW status, provided they meet standard criteria such as operating under responsible command, wearing distinguishable insignia, carrying arms openly, and complying with the laws of war.

Internationalisation could also occur if another State, most plausibly the United States, intervened militarily on Taiwan's behalf. This would create the complex situation of having two parallel conflicts in existence: an IAC between China and the intervening State; and a NIAC between China and Taiwanese forces.

However, under certain circumstances, the entire conflict could also become internationalized, even in the absence of a declaration of independence by Taiwan. The key doctrine here is the idea of “overall control,†as outlined by the International Criminal Tribunal for the Former Yugoslavia.

If an intervening State exercises sufficient control over a non-State armed group, by coordinating or directing its military activities, that group may be treated as effectively part of that State's armed forces. If, for example, Taiwanese forces were deemed to be under the overall control of the United States, they could be considered as “belonging†to the United States and therefore qualify as lawful combatants in an IAC and become eligible for POW status upon capture.

Notably, the threshold for “belonging†to a party to the conflict is relatively low, far lower than the “effective control†test enunciated by the International Court of Justice in Nicaragua. It may only require that the State accepts that the group is fighting on its behalf.

Could China Extend POW Treatment Anyway?

Even in a NIAC, it is possible, though unlikely, that China could voluntarily extend POW-like protections. The Geneva Conventions allow parties to adopt “special agreements†by which some or all of the rules outlined in the Conventions would apply, including those rules relating to POWs. Therefore, China could theoretically agree to treat captured Taiwanese fighters as POWs.

However, this scenario appears improbable. Given China's longstanding position that Taiwan is part of its sovereign territory, it seems more likely that China would view Taiwanese fighters not as enemy combatants, but as domestic separatists.

A Final Complication: Does Nationality Matter?

Finally, even if a conflict were classified as international, and even if Taiwanese fighters met the criteria for combatant status, one further issue arises: does nationality affect entitlement to POW status?

The Geneva Conventions do not explicitly state that POWs must be foreign nationals in order to be considered POWs. However, some State practice and legal commentary suggest that fighters who are nationals of the detaining power may not be entitled to POW status but will instead be treated as traitors or criminals. China would likely argue that Taiwanese fighters are Chinese nationals, and therefore not eligible for POW protections.

This position is contestable for several reasons. First, the law itself does not clearly impose nationality as a requirement. Second, some courts and scholars emphasize allegiance and factual relationships rather than formal nationality. Finally, public opinion in Taiwan overwhelmingly identifies as Taiwanese rather than Chinese, strengthening arguments for separate status. As a result, the nationality question remains legally unsettled as well as politically fraught.

Conclusion: Law, Politics, and Human Consequences

A conflict over Taiwan would be a geopolitical and legal crisis. At stake are issues such as whether captured soldiers are treated as legitimate combatants or criminals, whether they are protected from harsh interrogation or punishment, and whether they are guaranteed release after conflict. What emerges in my chapter is a picture of legal ambiguity layered onto an already volatile political situation.

Ultimately, the classification of conflict is not just a technical exercise. Classification determines the rights and protections of real people in the most extreme circumstances imaginable. And in the case of Taiwan, those decisions may be as contested as the conflict itself.

***

Emily Crawford is a Professor at the University of Sydney Law School

The views expressed are those of the author, and do not necessarily reflect the official position of the United States Military Academy, Department of the Army, or Department of Defense. 

Articles of War is a forum for professionals to share opinions and cultivate ideas. Articles of War does not screen articles to fit a particular editorial agenda, nor endorse or advocate material that is published. Authorship does not indicate affiliation with Articles of War, the Lieber Institute, or the United States Military Academy West Point.

 

 

 

 

 

 

Photo credit: Taiwan Presidential Office via Wikimedia Commons