The evidence is now irrefutable that Hamas and its confederates tortured the hostages released from Gaza in November 2023. A new hostage exchange deal has just seen the release of three Israeli women who had been held hostage by Hamas for 471 days. Make no mistake, despite braided hair, clean clothes, and “gift bags” for those Hamas-held hostages, they too will have been victims of torture. Torture is an assault on health and, as such, is a man-made disease. Recently, the Ministry of Health in Israel submitted a complaint to Alice Edwards, UN Special Rapporteur on torture and other cruel, inhuman, or degrading treatment or punishment. In my work as an opponent to the medicalization of punishment, I have submitted two separate complaints to this same UN office about an allegation of torture by the State of Alabama when they chose to execute prisoners with forced inhalation of nitrogen gas. In reply to my complaint, UN experts released a joint statement expressing alarm at the prospect of nitrogen gas execution.

Israel’s Ministry of Health report is based on an extensive analysis of former hostages freed and rescued from Gaza. The submitted document details a harrowing account of captivity that includes sexual and physical assault of men, women, and children, withholding medical treatment, subjecting people to surgery without anesthesia, starvation, and psychological abuse. In keeping with its stated mandate, the UN Special Rapporteur must now review the document and issue a report. No democratic country asserts a legal right to hostage-taking and kidnapping. It would be hard-pressed to imagine, apart from narrow political considerations, that the UN would not judge that Hamas indeed committed torture and indeed continues to do so if “only” by maintaining hostages in captivity.

The United Nations Convention Against Torture (CAT) requires signatory parties to take measures to end torture within their territorial jurisdictions. The Palestinian Authority has been a party to the Convention against Torture and its Optional Protocol since 2014 and 2017, respectively. Hamas, as the governing body in Gaza since 2007, is also obliged to comply with international law.

On October 7, 2023, approximately 6000 people crossed from Gaza into southern Israel. This group consisted mainly of Hamas terrorists but also Gazan civilians. This heavily armed group, fueled by violent rage, set itself upon an unsuspecting and mostly unarmed group of citizens of Israel, including men, women, children, the elderly, and other foreign nationals. The strategy was twofold. First, in the most cruel and cold-hearted fashion, Hamas and their confederates raped and murdered as many people as possible. Second, Hamas and their confederates sought to capture as many people as possible and bring them into Gaza. The organization and its leaders  have publicly taken great pride in this act, which is euphemistically termed an act of “resistance.”

The common assumption was that Hamas wanted hostages. The organization’s leadership well understood the Israeli mind and knew from experience that the country would exchange hostages — and even dead bodies — for many more convicted terrorists held by Israel. For the last 76 years, this macabre human-body currency exchange has always had Israel offer many more people than would ever be returned.  This was dramatically demonstrated in the case of Gilad Shalit, an Israeli soldier captured by Hamas in 2006 and held for five years. In 2011, Israel released 1,027 prisoners in exchange for this individual. Within the group of released prisoners, 280 had been sentenced to life in prison for planning and carrying out attacks against Israeli and Palestinian citizens. After the release, Hamas military leader Ahmed Jabari confirmed that the released prisoners were collectively responsible for the killing of 569 Israelis. In the current hostage exchange deal, Israel will exchange 1900 Palestinian prisoners for 33 hostages. Some of those 33 may be corpses. Convicted murderers are within the 1900 prisoners set for release.

Whether or not captives are treated “humanely,” hostage-taking is prohibited under international humanitarian law and is judged a war crime. Hostage-taking is most effective strategically when hostages are taken from an entity such as Israel that values their safe return over almost all other tactical objectives. As the conflict between Israel and Hamas continued, Hamas may have shifted its position concerning the captives from hostage-taking to kidnapping. A hostage is always intended for exchange, while kidnapping is holding someone indefinitely. A hostage, kidnapped person, or even a dead body has the potential to protect those holding them.

According to the UN convention, torture is defined as an extreme form of cruel and inhuman punishment committed under the color of law. The Convention allows for no circumstances or emergencies where torture could ever be permitted. According to the UN Convention against Torture, the proof of torture requires four elements. These are (1) severe pain or suffering, (2) intentionality, (3) specific purpose, (4) official capacity. In Gaza, Hamas is the ruling government, and its actions are now under consideration. When a de facto government takes hostages or commits acts of kidnapping, the threshold needed for torture is immediately exceeded.

Between November 24 and December 1, 2023 (about 7 weeks after the initial abduction), Hamas released from Gaza 50 women and children in exchange for 105 prisoners held by Israel. These released hostages have undergone rigorous evaluation and ongoing treatment because of their ordeal. Through interviews and medical and psychological examination, a clearer picture of the torture experience of the hostages can now be shared. This report is not intended to provide threshold evidence to prove torture. I believe the mere fact of the initial hostage-taking and kidnapping has established the crime of torture on the part of Hamas.

After a thorough evaluation of returned hostages, the Israeli Ministry of Health Document organized pertinent findings into four broad categories:

• Physical and sexual violence against men, women, and children
• Torture by withholding medical treatment, providing improper treatment, or causing intentional pain during treatment
• Starvation, poor nutrition, and harsh sanitary conditions
• Psychological abuse

Of these categories, the story of sexual violence requires further focus and comment. “Rape” is defined as unwanted and forced sexual intercourse. “Sexual assault” occurs when any unwanted sexual contact happens without consent. International law, drawing from the Geneva Conventions and the Rome Statute, has long forbidden the use of rape and sexual assault as tools in military conflict. After the notorious case of Jean-Paul Akayesu, mayor of Taba, Rwanda, rape is considered a war crime, a crime against humanity, torture, or may even comprise a component of genocide.

In the Hamas- Israel war, the horror of the act of rape grips us and shocks our consciousness. The idea that these mass rapes were not simply the spoils of war but a tactic intended to instigate the current Israeli response must be realistically considered. The Hamas leadership has shown itself to be capable of playing a deadly long game and proven itself implacable, cruel, and single-minded.

During captivity, children, too, were the victims of sexual violence. Children were sometimes bound hand and foot, beaten, and forced to perform sexual acts. Their captors sexually assaulted them, forced them to strip, beat them on their bodies and genitals, and burned their skin as an intentional act of branding and marking them. The scars of these actions will remain visible for the remainder of the victim’s lives.

Concerning sexual assault, the story of the children requires further analysis. Adopted on November 20, 1989, The UN Convention on the Rights of the Child proclaimed that childhood is entitled to special care and assistance. Articles 2,3,6,8,9,11,20,24 etc… and specifically, Article 11 states, “Parties shall take measures to combat the illicit transfer and non-return of children abroad.” In effect, this convention prohibits kidnapping, whether any further abuse is perpetrated. Denying the special rights of the child in all these essential needs would constitute clear actions that constitute torture, as defined above. Children remain among the kidnapped Israelis, including the Bibas children; at the time of capture on October 7, 2023, Kfir Bibas was aged 9 months, and Ariel Bibas was aged 4 years and, unbelievably, these children have “celebrated” birthdays in captivity.

The captors also forced most of the adult women to undress in front of others, subjected them to sexual assault at gunpoint, and tied them naked to beds so they could be observed without encumbrance and experience further humiliation. Male captives also experienced physical and sexual abuse, severe beatings over their bodies, including genitals, branding of the skin with hot irons, tying them for extended periods, and forcing them to defecate on themselves.

Sexual assault survivors carry myriad serious mental health problems. Approximately 31% of all sexual assault victims develop Post Traumatic Stress Disorder (PTSD) during their lifetime. PTSD is a severe, often chronic, and disabling disorder that occurs in victims who have suffered a traumatic event. This condition is characterized by intrusive thoughts, nightmares, and flashbacks of past traumatic events, avoidance of reminders of trauma, hyper-vigilance, and sleep disturbance, all of which lead to considerable social, occupational, and interpersonal dysfunction.

Victims of sexual assault are three times more likely than nonvictims of crime to have ever had a major depressive episode. Also, they are 3.5 times more likely to be experiencing a major depressive episode at any time. Victims of sexual assault were 4.1 times more likely than non-crime victims to have contemplated suicide. Victims of sexual assault are 13 times more likely than non-crime victims to have attempted suicide.

There is substantial evidence that victims of sexual assault have a higher rate of subsequent substance abuse than nonvictims. This may include both drug and alcohol consumption and the consequences of drug and alcohol-related problems. The vicious cycle of drug and alcohol abuse, mental health deterioration, social deterioration and dysfunction, and the risk of suicide may continue to plague some survivors for the rest of their lives.

Sexual assault is a crime in perpetuity. The end of the actual physical assault is usually just the beginning of the physical and psychological trauma that so often marks the survivor. The stain of this action is well known to the perpetrators and, as such, is a crime in perpetuity. There is no easy restitution under these conditions. Hostage survivors who were victims of sexual assault will always bear this stain.

As alluded to above, the UN Convention Against Torture defines the act as the “intentional infliction of severe physical or mental pain or suffering on a person.” Every version of kidnapping or hostage-taking is an example of torture, regardless of the experience of the hostage during captivity. The details of captivity include sexual assault, physical assault, starvation, the weaponization of illness, lack of sanitation, isolation, intimidation, and, for many – death. Hamas and its confederates perpetrated a heinous crime against innocent, defenseless men, women, children, and the elderly.

Former hostages now face an uncertain future fraught with enormous challenges. Liberty for them may be both a relief and embittering as they come to terms with what they lost and will never have. Former hostages are no longer under the same physical threat, but they still carry with them a perpetuating experience of tortuous memories as they try to rebuild their lives. Many have expressed the notion that until all hostages are released, they do not feel fully emancipated.  The taking of hostages by Hamas and support by its confederates, in the most explicit sense, falls under the definition of torture. Any conclusion to the contrary is a manifestation of complicity.