Are the hostages prisoners of war?
No. The laws on prisoners of war apply only in armed conflicts between states. Hamas is not a state organ. Therefore, regardless of the status of the Palestinian Authority and regardless of whether the conflict between Israel and Hamas is classified as an international armed conflict or a non-international armed conflict, it is not an armed conflict between states. Accordingly, the laws on prisoners of war do not apply. Thus, holding both civilian and soldier hostages constitutes a violation of the laws of war and a war crime.A: No. The laws on prisoners of war apply only in armed conflicts between states, and relate to persons who fall into the hands of the forces of the adversary state. Hamas and other terrorist organizations are not the military forces of a state. Therefore, regardless of the status of the Palestinian Authority and regardless of how the conflict between Israel and Hamas is classified, the laws on prisoners of war do not apply. Holding both civilian and soldier hostages constitutes a violation of the laws of war and a war crime.
Is the taking hostage of civilians a violation of the laws of armed conflict?
A: Yes, the taking of hostages is a violation of international law.The taking of hostages is prohibited in international armed conflict under Article 34 of the 1949 Geneva Convention IV which also renders the act a grave breach of the Convention. It is also prohibited in non-international armed conflict under Common Article 3 to the 1949 Geneva Conventions.The 2016 Commentary of the International Committee of the Red Cross on Common Article 3 defines hostage-taking as “the seizure, detention or otherwise holding of a person (the hostage) accompanied by the threat to kill, injure or continue to detain that person in order to compel a third party to do or to abstain from doing any act as an explicit or implicit condition for the release, safety or well-being of the hostage”. This definition is reflected in Article 1 of the International Convention Against the Taking of HostagesThe customary international law prohibition on the taking of hostages applies both to international armed conflicts and to non-international armed conflicts. It thus applies to the armed conflict between Israel and Hamas and other armed groups operating gin Gaza.Common Article 3 further specifies that everyone in the custody of a party to the conflict “shall in all circumstances be treated humanely”, be protected from “violence to life and person”, and that “the wounded and sick shall be… cared for”. As a matter of customary humanitarian law, those deprived of their liberty must also be allowed to correspond with their families.
Is the taking of hostages a war crime?
A. Yes, the taking of hostages is a war crime.Article 8 of the Rome Statute of the International Criminal Court (ICC) defines hostage-taking as a war crime. Furthermore, in accordance with Article 7(1) and 7(2)(i), the taking of hostages as part of an armed conflict may also be considered a crime against humanity. The State of Palestine acceded to the Rome Statute on January 2, 2015, and the Statute entered into force for Palestine on April 1, 2015. As the Prosecutor of the ICC has noted, the Court has jurisdictionover war crimes committed by nationals of states parties, including perpetrators of the hostage taking.Hostage taking also constitutes other war crimes, including the prohibition on violence to life and person, in particular cruel treatment and torture (Rome Statute Article 8(2)(c)(ii)(.
Is the taking of hostages a crime against humanity?
A. Yes, the taking of hostages is a crime against humanity. The term “crimes against humanity” as defined in Article 7 of the Rome Statute refers to acts carried out as part of a “widespread or systematic attack directed against a civilian population”. The acts that may constitute crimes against humanity include, among others, enforced disappearances, imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law, torture, sexual violence and persecution. The taking of hostages without provision of information regarding their whereabouts constitutes the crime of enforced disappearances. Furthermore, available information indicates that many hostages were tortured by their captors. These acts were committed severally by Hamas towards the hostages in execution of its policy to attack civilians, and thus constitute crimes against humanity. The State of Palestine acceded to the Rome Statute on January 2, 2015, and the Statute entered into force for Palestine on April 1, 2015. As the Prosecutor of the ICC has noted, the Court has jurisdictionover war crimes committed by nationals of states parties, including perpetrators of the hostage taking.
Are there any specific provisions that address the treatment of injured hostages or those with medical needs? If so, what do they include?
Yes. Injured hostages and those with medical needs are entitled to receive adequate medical care with the least possible delay while held in captivity. Those requiring the most urgent medical care must be treated first. At the very least, the ICRC should be granted immediate access to all hostages, as persons deprived of their liberty due to reasons related to armed conflict.International humanitarian law and customary international law unequivocally prohibit hostage-taking in all armed conflicts. Hostage -taking amounts to a war crime and a crime against humanity under the Rome Statute of the International Criminal Court. Hamas must release all hostages immediately, unconditionally, and unharmed to a place of safety. Until it does so, it has an obligation to provide information about the hostages and their whereabouts, ensure their health and safety, provide the injured with prompt and adequate treatment, provide medication as needed, and treat the hostages with dignity.
What are the rights of specific groups of hostages such as the elderly and hostages with disabilities?
Common state practice establishes that the elderly and persons with disabilities are entitled to special respect and protection in armed conflict as a norm of customary international law. The customary international humanitarian law prohibits hostage-taking in both international armed conflicts and non-international armed conflicts . Hostage taking is a war crime under Articles 8(2)(a)(viii) and 8(2)(c)(iii) of the Rome Statute of the International Criminal Court. The taking of hostages, the refusal to grant information as to the whereabouts of hostages, and the refusal to grant the International Committee of the Red Cross (ICRC) access to hostages amount to the crime against humanity of enforced disappearance of persons, under Article 7 of the Rome Statue of the International Criminal Court The harms inflicted on hostages, including the elderly and hostages with disabilities, and their enforced disappearance and arbitrary detention, amount to torture and cruel treatment, in contravention of Common Article 3 of the Geneva Conventions of 12 August 1949 and customary international humanitarian law, as well as the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. Elderly hostages may suffer from mental and physical health conditions, reduced mobility, and impaired senses, requiring routine medication and oversight. As particularly vulnerable members of the civilian population, they have the right to be protected from abusive behaviour,, in both international armed conflict and non-international armed conflict, pursuant to Common Article 3of the four Geneva Conventions. Hostages with disabilities face aggravated physical and mental health conditions due to the deprivation of access to routine and familiar medical care, caregivers, and assistive products. United Nations Security Resolution 2475 of 2019 on the protection of persons with disabilities during armed conflict urges parties to all armed conflicts to protect civilians, including those with disabilities, from abduction and torture. Holding persons with disabilities hostage violates their rights under the Convention on the Rights of Persons with Disabilities, posing a grave risk to their safety in situations of armed conflict.
Are there provisions that address potential gender-based violence against women hostages?
Customary international humanitarian law explicitly prohibits hostage taking in international armed conflicts or non-international armed conflicts. The taking of hostages and the refusal to grant information as to the location of hostages is a blatant violation of international law, amounting to war crimes and crimes against humanity of enforced disappearances.Calling attention to the specific risks to women in armed conflicts, Article 76 of the Additional Protocol I to the Geneva Conventions relating to the Protection of Victims of International Armed Conflict explicitly sets out that: “Women shall be the object of special respect and shall be protected in particular against rape, forced prostitution and any other form of indecent assault.” This Article clearly provides that: “Pregnant women and mothers having dependent infants who are arrested, detained or interned for reasons related to the armed conflict, shall have their cases considered with the utmost priority.” Common Article 3 of the Geneva Conventions, speaking to non-international armed conflicts, prohibits any violation of personal dignity, including humiliating and degrading treatment, irrespective of gender. Customary international law requires respect for the specific protection, health, and assistance needed by women affected by armed conflict and prohibits sexual violence, in both international and non-international armed conflicts. Rape and sexual violence that are part of a widespread and systematic attack directed at a civilian population constitute crimes against humanity under Article 7 of the Rome Statue of the International Criminal Court.Numerous United Nations Security Council Resolutions (UNSCR) speak to the grave suffering and trauma that result from gender-based violence in armed conflicts. In particular, UNSCR 1325 (2000) “calls on all parties to armed conflict to take special measures to protect women and girls from gender-based violence, particularly rape and other forms of sexual abuse, and all other forms of violence in situations of armed conflict”. UNSCR 2106 (2013) and 1888 (2009) further reiterate this demand for special treatment, noting that women and girls in armed conflicts are at a disproportionate and grave risk of being the targets of sexual violence.
What are the consequences for individuals or groups who violate international law in hostage situations?
First, individuals who engage in international crimes such as the war crimes of hostage-taking, torture, or other serious violations of humanitarian law, or the crimes against humanity of enforced disappearance, imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law, torture and sexual violence, may be subject to criminal prosecution. Such prosecution can be carried out in domestic courts or in the state where the crimes occurred, in a state whose nationals have been victims of the crimes, or in other countries through the principle of universal jurisdiction. It can also take place in the International Criminal Court (ICC). Perpetrators may be prosecuted.Second, states are under a duty to prevent impunity for individuals who commit international crimes, including those involved in hostage-taking. This obligation is rooted in several international legal principles and agreements, including The Geneva Conventions, the ICC Statute, customary international law, and various international treaties and conventions, such as the International Convention against the Taking of Hostages and the Convention against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment, that place obligations on states to prosecute and punish individuals responsible for the crimes defined in these agreements.The Security Council may impose sanctions on individuals, groups, or entities involved in hostage-taking or other violations of humanitarian law, by exercising its powers under Article 41 in Chapter VII of the UN Charter. Such sanctions can involve the freezing of assets of the Hamas and other organizations holding hostages and their leaders, and the imposition international of travel bans on leaders of the Hamas and other organizations holding hostages.The Security Council may also designate Hamas and other terrorist organizations under the Counter-Terrorism (UNSC 1373) sanctions regime. The effect of being designated is that it is, inter alia, an offence to use or deal with the assets of, or to make an asset available to, the designated person or entity.
What is the role of the ICRC with respect to the hostage situation?
The ICRC is an impartial, neutral and independent organization whose exclusively humanitarian missionic is to protect the lives and dignity of victims of armed conflict and other situations of violence and to provide them with assistance. It takes action in response to emergencies and promotes respect for international humanitarian law. The ICRC has a formal mandate in international armed conflicts, but it also offers its services in other situations. In this capacity it helped facilitate the release of two hostages from Gaza to Israel on 20 October 2023.The ICRC has stated that carrying out an act of hostage-taking is prohibited under international humanitarian law. Anyone detained, including combatants, must be treated humanely and with dignity. The ICRC has stressed that it is ready to visit the hostages and to facilitate any future release following an agreement reached by the parties. It reiterated that hostages must be allowed to receive humanitarian assistance and medical care.
Are the Israeli soldiers held in Gaza by the Hamas prisoners of war or hostages?
Israeli soldiers held in Gaza by the Hamas and other terrorist groups are not prisoners of war (POWs).The laws on prisoners of war apply in conflicts between states, and relate to persons who fall into the hands of the forces of the adversary state. Hamas and other terrorist organizations are not the military forces of a state. Israeli soldiers held in Gaza by the Hamas and other terrorist groups are hostages.