CommentaryOn October 7th, 2023, the State of Israel was brutally attacked by the terrorist organization known as Hamas, instigating an all-out war. In the early morning of October 7th, Hamas terrorist fighters made their way into Israel from the Gaza Strip, invading and occupying Israeli towns, cities, and military bases. This surprise attack in Israel by Hamas led to an unprecedented death toll of over 700 murdered Israelis and over 2,500 wounded within 24 hours of the attack, which has led many within Israel and abroad to refer to this as the “Israeli 9/11”.
Positing these attacks as the “Israeli 9/11” reflects the fact that the victims and targets of this Hamas attack were not military objectives but rather innocent Israeli civilians, with perhaps the most egregious part of these civilian targeted attacks being the kidnappings/hostage-taking of an estimated over 100 Israeli civilians, mostly women, children and the elderly, into the Gaza Strip. In this regard, Hamas is outrightly committing serious and irrefutable war crimes in direct violation of international law, specifically, international humanitarian law and international human rights law.
To provide some basic international law context, the governing international legal framework applying to both Israel and Hamas respectively is the “Law of Armed Conflict”, alternatively referred to as “International Humanitarian Law”. Drawing on jurisprudence, the International Criminal Tribunal for the former Yugoslavia (“ICTY”) established in the Tadić case that “an armed conflict exists whenever there is a resort to armed force between States or protracted armed violence between governmental authorities and organised armed groups or between such groups within a State.” In applying this standard to the Hamas attack against Israel alongside the Israeli retaliation, Hamas squarely falls under this definition. Therefore, as stated by the UN, Hamas is obliged to abide by the “Law of Armed Conflict”/“International Humanitarian Law”. In the realm of international law, armed conflicts are classified into two predominant categories: “international armed conflict” and “non-international armed conflict.” Each category is governed by distinct rules, even though a substantial number of foundational provisions are mutual to both. Notably, the precise legal framework applicable to cross-border military altercations involving a sovereign State and a non-State terrorist armed entity operating out of a distinct territory remains a matter of ongoing legal debate.
In the current legal discourse, the Gaza Strip does not squarely fit the definitions of either a State or a territory under Israel’s occupation or control. Given these unique and distinct circumstances, Israel, as a policy directive, subjects its military undertakings in Gaza to the “Law of Armed Conflict” regulations pertinent to international and non-international armed confrontations. Ultimately, whether one categorizes the hostilities between Hamas and Israel as international or non-international remains predominantly an academic query, given that a substantial number of corresponding norms and principles govern both categories of conflicts. Within the ambit of international legal frameworks governing the use of force in armed conflicts, certain rules are articulated in treaty instruments like the Geneva Conventions of 1949 and the Regulations annexed to the Fourth Hague Convention of 1907. Beyond these codified norms, other rules have crystallized through consistent and general practices of the international community, consequently forming an integral part of customary international law (customary international law being international law that applies to all). As such, in ongoing armed conflicts with terrorist organizations such as Hamas, both Israel and Hamas are mandated to abide by: (a) the Fourth Geneva Convention; (b) the Regulations annexed to the Fourth Hague Convention (emblematic of customary international law); and (c) the norms underpinning certain clauses of Additional Protocol I to the Geneva Conventions of 1949 that are representative of customary international law.
Therefore, in taking Israeli civilians’ hostages, an act prohibited in numerous provisions applying to both international and non-international armed conflicts, Hamas is in direct violation of international humanitarian law. The International Convention against the Taking of Hostages (Article 1) delineates the crime of hostage-taking by detailing it as the act of seizing or detaining an individual (termed as the hostage), alongside threats of killing, inflicting injury, or prolonged detention, all in a bid to pressure a third party to act or refrain from acting in a certain way, serving as either an overt or tacit stipulation for the release of said hostage. Corroborating this, the Elements of Crimes for the International Criminal Court (ICC Statute, Article 8(2)(a)(viii) and (c)(iii)) stipulates an identical definition of hostage-taking. As such, Hamas’s taking of Israeli hostages amounts to said definition as they do so with the multiple objectives of: psychological warfare against the Israeli population; as a means to bargain for the release of convicted terrorists; prevent the Israeli Defense Forces from going after the terrorist’s responsible for the attack as they use the hostages as human shields etc. Importantly, these are not mere allegations; rather, Hamas itself has explicitly shown and boasted its hostage-taking, as can be seen in the picture above where footage from a video sent out by Hamas shows an Israeli [female] teenager being taken hostage by a Hamas fighter heading into the Gaza Strip.
In turning to the specific provisions of the prohibition of hostage-taking under international law, Hamas clearly violates said prohibition. Common Article 3 of the Geneva Conventions explicitly proscribes the act of taking hostages. This prohibition is further echoed in the Fourth Geneva Convention (Article 34), wherein it is characterized as a grave breach (Article 147). Essentially, contemporary legal evolution, buttressed by the clauses of the Geneva Conventions and consistent international practice, has emphatically embedded the prohibition against hostage-taking in customary international law, categorizing it as a war crime.
The inviolability of the prohibition against hostage-taking stands reinforced as a cardinal assurance for civilians and persons hors de combat, as enshrined in Additional Protocols I (Article 75(2)(c)) and II (Article 4(2)(c)). The Statute of the International Criminal Court categorically deems the “taking of hostages” as a war crime, irrespective of whether the conflict is international or non-international in nature (ICC Statute, Article 8(2)(a)(viii) and (c)(iii) ). Furthermore, the codified statutes of the International Criminal Tribunals for both the former Yugoslavia (ICTY Statute, Article 2(h)) and Rwanda (ICTR Statute, Article 4(c)), in conjunction with the Special Court for Sierra Leone (Statute of the Special Court for Sierra Leone, Article 3(c)), explicitly earmark hostage-taking as a war crime. This interdiction is consistently echoed in an array of military manuals (e.g. the military manuals of Argentina, Australia, Belgium, Benin, Burkina Faso, Cameroon, Canada, Colombia, Congo, Croatia, Dominican Republic, Ecuador, France, Germany, Hungary, Italy, Kenya, Republic of Korea, Madagascar, Mali, Morocco, Netherlands, New Zealand, Nicaragua, Nigeria, Philippines, Romania, Russian Federation, Senegal, South Africa, Spain, Sweden, Switzerland, Togo, United Kingdom, United States) and is also incorporated within the legislative frameworks of several nations (e.g. Armenia, Australia, Azerbaijan, Bangladesh, Belarus, Belgium, Bulgaria, Canada, China, Colombia, Croatia, Cyprus, Democratic Republic of the Congo, Denmark, Estonia, Ethiopia, Finland, Georgia, Germany, India, Iraq, Ireland, Israel, Italy, Jordan, Kazakhstan, Kenya, Lithuania, Luxembourg, Malaysia, Mexico, Netherlands, New Zealand, Nicaragua, Nigeria, Norway, Poland, Portugal, South Korea, Russian Federation, South Africa, Spain, Switzerland, United Kingdom, United States, etc.). Moreover, hostage-taking incidents, regardless of whether they transpire within international or non-international armed conflicts, have elicited denunciations from State actors (See, e.g., the statements of Germany (in the context of the conflict in Nagorno-Karabakh), Pakistan (in the context of the conflict in Kashmir), United States (in relation to the Gulf War), etc.). Likewise, global institutions, most notably the United Nations, have vociferously condemned such acts in relation to various global conflicts, including those of the Gulf War, Cambodia, Chechnya, El Salvador, Kosovo, Middle East, Sierra Leone, Tajikistan, and the former Yugoslavia (See, e.g., UN Security Council, Res. 664, 674, 686 and 706; UN General Assembly, Res. 53/164; UN Commission on Human Rights, Res. 1992/71, Res. 1992/S-1/1, Res. 1995/55, Res. 1998/60 and Res. 1998/62; Council of Europe, Parliamentary Assembly, Res. 950; European Parliament, Resolution on violations of human rights and humanitarian law in Chechnya; OAS, Permanent Council, Resolution on Hostages in El Salvador).
Turning to international case law, in the landmark 1995 case of Karadžić and Mladić before the International Criminal Tribunal for the former Yugoslavia (ICTY), the defendants faced charges of committing grave breaches by detaining UN peacekeepers as hostages. In its examination of the charges, the Tribunal upheld the indictment. In the ICTY Blaškić trial in 2000, the Tribunal rendered a verdict finding the defendant culpable for hostage-taking in contravention of the laws and customs of war and for detaining civilians as hostages, a grave breach of the Fourth Geneva Convention. Additionally, in the 2001 ICTY Kordić and Čerkez case adjudicated by the Tribunal, the accused were determined to have committed the grave breach of detaining civilians as hostages.
Furthermore, while international human rights law does not expressly outlaw “hostage-taking,” such acts are implicitly proscribed under non-derogable human rights provisions, given that they constitute an arbitrary curtailment of liberty. The UN Commission on Human Rights has firmly posited that hostage-taking, irrespective of its locale or perpetrator, stands as an illicit act fundamentally undermining human rights, and at no point can it be rationalized (UN Commission on Human Rights, Res. 1998/73 and Res. 2001/38). Offering further clarity, the UN Human Rights Committee, in its General Comment on Article 4 of the International Covenant on Civil and Political Rights (which addresses states of emergency), underscored that State parties can, under no scenario, cite a state of emergency “as justification for acting in violation of humanitarian law or peremptory norms of international law, for instance by taking hostages” (UN Human Rights Committee, General Comment No. 29 (Article 4 of the International Covenant on Civil and Political Rights)).
As such, both international humanitarian law and international human rights law prohibit hostage-taking under treaty law, state practice/opinion juris amounting to international customary law, case law, and endless UN resolutions – thus leading to the clear and unequivocal violation of international law by Hamas amounting to war crimes. It now falls upon the international community to condemn the over 100 hostage-takings by Hamas and hold them accountable for this egregious war crime.
Yahel Gerlic is an LLM student at the Buchmann Faculty of Law, Tel-Aviv University. His research focuses on international and constitutional law, specifically international humanitarian and human rights law alongside transitional justice.
Suggested citation: Yahel Gerlic, The War Crimes of Hamas – Hostage-Taking in International Law, JURIST – Student Commentary, October 9, 2023, https://www.jurist.org/commentary/2023/10/the-war-crimes-of-hamas-hostage-taking-in-international-law/ .
