The Unlucky Story of Bucky, the World’s Oldest Prisoner of War

With Captain America: Civil War coming out, Cap fever is in high gear. The movie will hopefully answer many of the questions we still have on exactly what happened to Bucky during the events between Captain America: The First Avenger, and Captain America: The Winter Soldier. One such question will be whether or not Bucky is viewed as a prisoner of war, or a feared terrorist. While it became fairly clear during the events of CATWS that Bucky was under some form of control by Hydra, this is a presumption conveniently presented to the audience. In the Marvel Universe however, Bucky’s culpability for his actions is a very contested issue. While there are likely few witnesses who can attest to Bucky’s good character, there are dozens that could attest to seeing the Winter Soldier attacking Captain America, Falcon, Black Widow, and multiple S.H.I.E.L.D agents. To even begin to answer this, we must first decide what Bucky’s military status is.

What is a POW?

POW, or “prisoner of war,” is a term that has been around since the 17th century. In many instances, enemy combatants were simply executed. However, although some countries were already holding prisoners, more countries began utilizing the POW model after the promulgation of the Geneva Convention. A POW is defined under the convention as a member of the armed forces who has fallen into the power of the enemy.  Under the convention, POWs have certain rights and their captors are obliged to provide a certain level of humanitarian care.

In a deleted avengers clip, Steve Rogers comes across Bucky’s personnel file, which indicates that he was considered MIA, or “missing in action.” Given that the last time Bucky was seen he was falling off a moving train into an icy ravine, it’s almost surprising that he was listed as MIA and not killed in action (KIA). MIA still seems like a fitting description. Normally most soldiers listed as MIA have their designation changed to KIA  after a certain amount of time has passed. Bucky would be among the 73,000 Americans reported as unaccounted from World War II.

Photo found at http://marvelcinematicuniverse.wikia.com/wiki/Winter_Soldier.
Photo found at http://marvelcinematicuniverse.wikia.com/wiki/Winter_Soldier.

No one would think he was a POW without having some knowledge as to where he went. He was not reported as being seen by anyone before he was taken in by the former Soviet Union, who at the time of World War II was our ally. At the time of the war, the Soviet Union was not an enemy, but Hydra certainly was. If the Soviet Union government, commingled with Hydra, took possession of Bucky, then there might be an argument that Bucky was a POW being held by an enemy combatant.  This becomes less of a sticking point during the Cold War, when the Soviet Union would be our enemy. According to the Defense POW/MIA Accounting Agency, there are still 126 service members who are unaccounted for from the Cold War. There is no legal distinction for allies that become enemy combatants, that then become allies again. This might not matter though if we consider that Bucky is being held by Hydra as part of the Soviet Union.

Unlawful Combatant v. Enemy Combatant

The United States has been fighting Hydra since World War II. Although the United States (including Steve Rogers and the Howling Commandos) were fighting them, Hydra itself does not exist as a nation state, thus the laws of the Geneva Convention are not applicable. This means that soldiers fighting under Hydra would be considered unlawful combatants, or people engaged in armed conflict in violation of the laws of war. In this way, soldiers being held by Hydra would still have POW status, while the same would not be said of Hydra soldiers held by the United States. Bucky would have the protections of humane treatment under the Third Geneva Convention, but Hydra soldiers being held would not be afforded those same protections.

Although Hydra had infiltrated the Soviet government (and many other governments for that matter) the choice to hold him was one made by that government. As such, they would be responsible for the humane treatment of Bucky while holding him. It is probably a safe assumption that forced brainwashing, electrocution, and repeated freezing do not constitute “humane” treatment.

Photo found at http://marvelcinematicuniverse.wikia.com/wiki/Winter_Soldier.
Photo found at http://marvelcinematicuniverse.wikia.com/wiki/Winter_Soldier.

Russia would also be responsible for violating Article 118 of the Geneva Convention for not releasing and repatriating Bucky “without delay after the cessation of active hostilities.” President George H. W. Bush and Mikhail Gorbachev declared the Cold War over on December 3, 1989 at the Malta Summit. The fact that Bucky was not repatriated from 1989 to 2014 would suggest there was definitely some delay.

Was Bucky a Prisoner?

Obviously a significant issue with Bucky is whether or not he actually was a prisoner in the true sense of the phrase. Arguably, he was not since he was only confined for certain periods of time. He left his cryogenic chamber intermittently to carry out missions for Hydra. This does not make him seem like a prisoner, but at this time he was also being brainwashed and subject to electrocution if he disobeyed orders. This is analogous of prisoners whom are instructed to read propaganda messages for terrorist groups. The POWs usually comply to this to prevent personal harm unto themselves. Bucky was arguably complying with Hydra’s demands in order to prevent himself from receiving continued torture.

Certainly then someone will argue that he had the training (he was a highly skilled assassin) in order to leave Hydra and escape, but at this point he was brainwashed such that he didn’t even know who he was. The necessary free thought to escape would have been beyond his capabilities. In this sense, he was a prisoner to Hydra and the Soviet Union both physically and mentally.

Can Bucky Sue?

After all of this, we would wonder whether or not Bucky can recover at the hands of the Russian government, as successors to the Soviet Union. Since the United States government is likely not going to back Bucky in this endeavor, he will do the most American thing he can. Sue them! In a courtroom version of the miracle on ice, he will try to defy the odds and best the successors of the Soviet Union. This may prove to be more difficult than it seems.

Take for example the hostages from the Iran hostage crisis. According to CNN, most of those individuals have yet to see any money from their endeavor, despite this having occurred over 30 years ago. This is in part due to treaties which indemnify Iran from legal suits. Previously a bill in congress is being pushed along which would grant some relief to these captives. The legislation did successfully pass and was signed into law on December 18, 2015. The only reason such a bill exists is because the government foreclosed those victims from the ability to seek relief through suit. Even if the hostages wanted to sue the Iranian government, they would be unable to because of the treaties. Although Bucky may want to sue the more visible Russian government (as successor to his Soviet Union captors) the United States government does not often back these suits since they might interfere with current foreign policy relations. This is already seen in the case of POW forced labor suits against private Japanese corporations. Although  the soldiers who provided forced labor to these corporations are not actually suing the Japanese government, United States courts still hold that these suits are impermissible as violative of the peace treaty with Japan.

Even without those treatises, bringing suit can still be difficult. In the case of terrorist suits, there is no direct person to serve. In lieu of that, some parties have resorted to suing banks with funds tied to terrorists, reported Israel National News. It will be interesting to see how this plays out. Technically Bucky could try to sue parties which provided funding to Hydra (such as national banks), but that inquiry would be heavily burdened by discovery given the deep infiltration of Hydra.

Captain-America-2-Official-Photo-Winter-Soldier-Sebastian-Stan-close-up
Photo found at http://screenrant.com/wp-content/uploads/Captain-America-2-Official-Photo-Winter-Soldier-Sebastian-Stan-close-up.jpg.

Conclusion

In the end Bucky is in the unenviable position that even on the off chance he is considered a POW, and his Soviet/Hydra captors are considered enemy combatants, foreign relations interests may prevent him from recovering after his half-century long torture debacle. Even if he could recover, Bucky has gone from being imprisoned behind the Iron Curtain, to going toe-to-toe with the Iron Man. In no short order, Bucky will leave his imprisonment only to be “reigned in” by another group. Not only is Bucky certainly unlucky, but his circumstances are downright oppressive. At this rate, the Winter Soldier is in for a cold reception both from team Iron Man, and the United States Justice system.

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Kean Zimmerman
Kean Zimmerman is an attorney in Connecticut, and a graduate of Michigan State University College of Law (his choice of school may have been affected by the fact that MSU has the largest library comic book collection in the world). He is a fan of all things geek related, but he has a special affinity for anything Star Wars. It is for this reason that his Darth Vader toaster is the most important appliance in his kitchen.