Useful Information

Are the hostages prisoners of war?

No, the laws on prisoners of war apply only to armed conflicts between states and pertain to persons who fall into the hands of the forces of an adversary state. Hamas and other terrorist organizations are not considered military forces of a state. Therefore, regardless of the status of the Palestinian Authority or 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?

Yes, the taking of hostages is a violation of international law. It is prohibited in international armed conflict under Article 34 of the 1949 Geneva Convention IV, which also classifies the act as a grave breach of the Convention. In non-international armed conflict, it is prohibited under Common Article 3 of the 1949 Geneva Conventions. The 2016 Commentary of the International Committee of the Red Cross oon 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 Hostages The customary international law prohibition on the taking of hostages applies to both international and non-international armed conflicts. Therefore, it applies to the armed conflict between Israel and Hamas and other armed groups operating in 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?

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 Articles 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 jurisdiction over war crimes committed by nationals of states parties, including perpetrators of hostage-taking. Hostage-taking also constitutes other war crimes, including the prohibition on violence to life and person, particularly cruel treatment and torture (Rome Statute Article 8(2)(c)(ii)).

Is the taking of hostages a crime against humanity?

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.” 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 providing 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 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 jurisdiction over war crimes committed by nationals of states parties, including perpetrators of 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 tto all hostages, as they are 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. Customary international humanitarian law prohibits hostage-taking in both international 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 provide information on 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 Statute of the International Criminal Court. The harms inflicted on hostages, including the elderly and those with disabilities, along with their enforced disappearance and arbitrary detention, constitute torture and cruel treatment, in contravention of Common Article 3 of the Geneva Conventions of 12 August 1949, customary international humanitarian law, and 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 behavior in both international and non-international armed conflicts, pursuant to Common Article 3 of 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 Council 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 specifically enforced disappearances.

Highlighting the specific risks faced by women in armed conflicts, Article 76 of Additional Protocol I to the Geneva Conventions concerning the Protection of Victims of International Armed Conflicts states: “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 emphasizes that: “Pregnant women and mothers with dependent infants who are arrested, detained, or interned for reasons related to armed conflict shall have their cases considered with the utmost priority.”

In non-international armed conflicts, Common Article 3 of the Geneva Conventions, prohibits any violation of personal dignity, including humiliating and degrading treatment, irrespective of gender. Customary international law mandates 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 as part of a widespread and systematic attack targeting 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) address the severe suffering and trauma resulting from gender-based violence in armed conflicts. UNSCR 1325 (2000) “specifically “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 emphasize the need for special protection, noting that women and girls in armed conflicts face disproportionate and severe risks of being 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 occur in domestic courts of the state where the crimes occurred, in states whose nationals were victims of the crimes, or through the principle of universal jurisdiction in other countries. Additionally, prosecution can take place in the International Criminal Court (ICC), where perpetrators may face charges.

Second, states are obligated to prevent impunity for individuals who commit international crimes, including those involved in hostage-taking. This duty 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. These agreements impose obligations on states to prosecute and punish individuals responsible for the crimes defined within them.

The Security Council may impose sanctions on individuals, groups, or entities involved in hostage-taking or other violations of humanitarian law under Article 41 of Chapter VII of the UN Charter. Such sanctions may include freezing the assets of organizations like Hamas and other entities holding hostages and their leaders, as well as imposing international travel bans on these leaders.Additionally, the Security Council may designate Hamas and other terrorist organizations under the Counter-Terrorism (UNSC 1373) sanctions regime. Being designated means that dealing with the assets of or making assets available to the designated person or entity is prohibited.

What is the role of the ICRC with respect to the hostage situation?

The ICRC is an impartial, neutral, and independent organization dedicated to protecting the lives and dignity of victims of armed conflict and violence while providing humanitarian assistance. It promotes respect for international humanitarian law.
Hostage-taking is prohibited under international humanitarian law, and the ICRC emphasizes that fallen or captured soldiers, or civilians taken captive by an adverse party, must be treated humanely. However, since October 7, 2023, the ICRC has not visited the hostages due to Hamas denying access. While acknowledging these limitations, and in light of Hamas's repeated refusals and violations, the ICRC has not fully utilized its available tools. Given the urgency of the situation, the ICRC should amplify its public statements, reminding Hamas that, according to International Humanitarian Law (IHL), hostages must be treated humanely and have the right to communicate with their families. Holding hostages, using them as bargaining chips, preventing ICRC visits, denying medical treatment, subjecting them to abuse, and intentionally withholding information from their families are grave violations of international law.
We urge the ICRC to issue a public statement calling on Hamas to allow visits to the hostages as required by IHL and to emphasize that these actions necessitate their immediate release. The ICRC should advocate for the hostages, speak on their behalf, and support their families by sharing their stories globally. This advocacy aligns with the ICRC's mission, reinforcing its commitment to the hostages and their families while ensuring ongoing efforts for their prompt release and well-being.

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.

A woman passing by a wall filled with the hostages' posters