Since the Hamas attack of October 7 on Israel, more than 230 people have been taken hostage. Amongst them are women, children, and elderly people; some of them are Holocaust survivors. In the past few days, four women hostages were returned to Israel (two who are American citizens and two Israelis) with the assistance of third party states (the U.S., Egypt and Qatar) and the facilitation of the International Committee of the Red Cross (ICRC). As of the 30th of October, Israel managed to retrieve one more woman in a military action.
There is no doubt that Hamas’s goal in taking the people is to use them as leverage to compel Israel to act as they wish. Therefore, the taking of them is considered to be hostage-taking, as mentioned elsewhere. Hostage-taking is prohibited under international law (under Article 3 Common to the Geneva Conventions (Common Article 3), which reflects customary international law and applies to all parties to an armed conflict, including non-state organized armed groups such as Hamas) and constitutes an international crime (under Article 8(2)(c)(iii) in non-international armed conflict and under Article 8(2)(a)(viii) in international armed conflict). To set the record straight, even if among the 230 people are Israeli soldiers, they are still considered hostages, as opposed to prisoners of war, because of Hamas’s intention to use them as leverage (in addition, the Geneva Convention (III) on Prisoners of War, 1949 does not apply to this situation, assuming that the conflict between Hamas and Israel is a non-international armed conflict).
The fact that an act is prohibited under international law does not exonerate the party blamed for it from its international obligations. Therefore, Hamas still has a responsibility towards the individuals it took hostage. Under Common Article 3, there is an obligation to treat those who are taking no active part in the hostilities humanely. Treating a person humanely is a minimum standard of treatment, and a party to an armed conflict is bound by this obligation “irrespective of the conduct of an opposing party” as the ICRC 2020 Commentary to Convention (III) relative to the Treatment of Prisoners of War (ICRC 2020 Commentary to GC III) mentions. The obligation covers the respect for one’s dignity and prohibits “humiliating and inhuman treatment.” Under customary international law, there is a “prohibition of torture and outrages upon personal dignity, in particular humiliating and degrading treatment,” which is recognized as a fundamental guarantee for civilians and persons horse de combat (injured and sick combatant) under Additional Protocols I and II to the Geneva Conventions.
Under the obligation of humane treatment, the ICRC 2020 Commentary to GC III mentioned that some countries have included in their military manuals, codes of conduct, and policy documents indications of what this obligation may entail. The obligations that are mentioned are, for example, to provide adequate food and drinking water, clothing, safeguards for health and hygiene, suitable medical care, and appropriate contact with the outside world. From the testimony of Yocheved Lifshitz, one of the hostages who was released, it appears that even though Hamas is complying with some of these obligations, it disregards others. Nevertheless, the fact that some of the rights toward the hostages are upheld does not exonerate Hamas from the crime itself – of hostage-taking.
Regarding the obligation for contact with the outside world, contrary to the situation in an international armed conflict where the ICRC has the right to visit detainees, in non-international armed conflict, this right does not exist. However, under Common Article 3, the ICRC may “offer its service” to the parties to the conflict. On this basis, the ICRC requests access to persons deprived of their liberty. In the context of the hostages taken by Hamas, the ICRC had mentioned it is ready to visit the hostages and to work and facilitate the future release of hostages.
We all hope that, at the bare minimum, the hostages are treated humanely and that the ICRC would be granted access to them so it can ensure such treatment is given.
