Taking Hostages Is A War Crime – OpEd

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The events of October 7 have proved too flagrant to be ignored by the body that is supposed to be the world’s watchdog on protecting and advancing human rights.  

The UN Human Rights Council (UNHRC) was established in 2006 with one over-riding purpose – to rectify the egregious faults of its predecessor body, the UN Commission on Human Rights (UNCHR). Over the 60 years of its existence the Commission had accrued a raft of objectionable practices, high among them an obvious anti-Israel bias. 

UNHRC is UNHCR with just one letter transposed, and it soon became obvious that all the UN had done was to substitute Tweedledee for Tweedledum.  It did not take long before the same anti-Israel stance began to emerge from the new Council.  Since its founding it has passed more than 90 resolutions condemning Israel – more than against Iran, Syria, North Korea, China, Russia, Cuba and Venezuela combined. The Council would have the world believe that Israel is more guilty of human rights abuses than all the blatant abusers of human rights put together.

Its determined anti-Israel position was actually codified in a decision in 2006 to include as a permanent feature of its sessions a review of alleged human rights abuses by Israel.   Even Human Rights Watch, no friend of Israel, urged the Council to look as well at international human rights and humanitarian law violations committed by Palestinian armed groups. This proposal was not followed through. 

Now the Council’s commission of inquiry has undertaken an investigation on “possible international crimes and violations of international human rights law in Israel and the Palestinian territories since October 7, 2023.”  The Commission’s findings will be delivered to the Human Rights Council in June 2024.

Given the long-standing anti-Israel bias of the chairperson, Navi Pillay, as well as several commission members, what sort of picture it will eventually present is a matter for speculation.  But it is perhaps a hopeful sign that on October 10 the commission included the following in a media release: “The taking of hostages is a violation of international law and constitutes an international crime.” 

The International Committee of the Red Cross (ICRC) has a unique role in the system of international humanitarian law.  It works on battlefields, reports on the problems encountered, and makes practical proposals for improving international humanitarian law.  Its proposals have led to the revision and extension of international humanitarian law, notably in 1906, 1929, 1949 and 1977.  This special role of the ICRC is now formally recognized by the states party to the Geneva Conventions – that is, practically the whole world.

According to the ICRC, the prohibition on hostage-taking is now “firmly entrenched in customary international law and is considered a war crime.” 

Among the elements of the offense in international armed conflict are:

1. The perpetrator seized, detained or otherwise held hostage one or more persons.

2. The perpetrator threatened to kill, injure or continue to detain such person or persons.

3. The perpetrator intended to compel a State…to act or refrain from acting as an explicit or implicit condition for the safety or the release of such person or persons.

On October 11 the Lieber Institute published a lengthy, detailed and explicit survey of the provisions in international law regarding the taking of hostages. The Lieber Institute is situated at West Point and is part of the US Military Academy.  Its purpose is to contribute to the global dialogue on the complex issues surround the law of war, and to maintain the primacy of law in today’s armed conflicts.  It seeks to bridge the divide between legal scholarship and battlefield experience.

The Lieber document explains that the provisions of the law of armed conflict depend on how a conflict is classified. The ongoing conflict between Israel and Hamas is best characterized as non-international in character. Therefore the applicable treaty law is Common Article 3 of the four 1949 Geneva Conventions, and this unequivocally forbids hostage-taking. The International Court of Justice has determined that “The taking of hostages is prohibited.” 

The Lieber document goes on to explain that as a war crime, the offense of hostage-taking is subject to universal jurisdiction.  That means that any State, even those with no connection to the hostage-taking, is free to  prosecute offenders. Many States have accordingly criminalized the offense in their penal codes. 

On the matter of hostage-taking alone – the unspeakably brutal onslaught on innocent civilians is an issue in its own right – the Lieber paper adjudges that Hamas has “without the slightest doubt” violated the law of armed conflict.  It concludes: “Hostage-taking was a central feature of Hamas’s opening salvo in its conflict in Israel…those involved are subject to worldwide prosecution as war criminals under international criminal law.”  

The basis for this conclusion is the International Convention against the Taking of Hostages, a UN treaty under which states agree to prohibit and punish hostage taking. The creation of an anti-hostage-taking treaty was a project initiated by the Federal Republic of Germany in 1976.  The convention was adopted by the UN General Assembly in December 1979 and came into force in 1983.  As of October 2016, 176 states are party to the convention.

Too little public consideration has been given to the likelihood of the Hamas organization eventually being found guilty by the UN and other international bodies of the war crime of hostage-taking, and consequently that its leaders would then be liable to be arrested, charged and imprisoned in virtually any part of the world.  

Ismail Haniyeh may believe himself safe in Qatar, but in Qatar he would have to stay.  If Yahya Sinwar, who masterminded the October 7 onslaught, is not captured by the IDF within the Gaza Strip, he would be on the run for the rest of his life.  Mohammed Deif, architect of the Hamas tunnel complex, Marwan Issa, Khaled Meshaal, Mahmoud Zahar – they and a host more leaders of Hamas would have nowhere to hide but in the few states not prepared to fulfil their obligations under the International Convention against the Taking of Hostages, and prosecute them.  Even so, they would all, no doubt, have in mind the fate of the perpetrators of the Munich Olympics massacres, given the remarks by Shin Bet chief Ronen Bar in a domestic broadcast on December 3.  Israel will hunt down the Hamas leaders, he said, even if it takes years

All provided that Israel achieves its primary war aim, and destroys Hamas.

Neville Teller

Neville Teller's latest book is ""Trump and the Holy Land: 2016-2020". He has written about the Middle East for more than 30 years, has published five books on the subject, and blogs at "A Mid-East Journal". Born in London and a graduate of Oxford University, he is also a long-time dramatist, writer and abridger for BBC radio and for the UK audiobook industry. He was made an MBE in the Queen's Birthday Honours, 2006 "for services to broadcasting and to drama."

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