Hamas, Islamic Jihad: Holding Hostages Is A War Crime, Says HRW

Hamas and Islamic Jihad are committing war crimes by holding scores of Israelis and others as hostages in Gaza, Human Rights Watch said Friday. No grievance can justify holding anyone hostage. The groups should immediately and safely release all civilians detained.

As of October 19, 2023, Israeli authorities said that at least 203 hostages were being held in Gaza. In a statement on October 16, the Hamas armed wing said that it was holding about 200 hostages, and that other Palestinian armed groups were holding more. Islamic Jihad has claimed it is holding 30 hostages. In addition, the Hamas armed wing has held two Israeli civilians with psycho-social disabilities hostage for nearly a decade.

“Civilians, including children, people with disabilities, and older people should never be treated as bargaining chips,” said Lama Fakih, Middle East and North Africa director at Human Rights Watch. “Governments that have influence with Hamas, including Qatar, Egypt, and Turkey should use their leverage to press for hostages to be released as soon as possible and treated humanely until then.”

Palestinian fighters seized those being held as hostages on October 7, after breaching the fences between Israel and Gaza, in an operation that the Israeli government said killed more than 1,400 people, hundreds of them civilians. In a recorded message on October 9, the Hamas armed wing threatened to execute hostages.

Hamas has said it will not release the hostages until Israel ends its bombardment of Gaza, and only then in exchange for the release of 5,000 Palestinian prisoners held by Israel, including women and children.

Islamic Jihad has also said that it will not release hostages until Palestinian prisoners are freed. They have made unverified claims that 22 hostages have been killed in Israeli airstrikes in Gaza. As of October 1, Israel held, according to Israeli Prison Services figures, 5,192 Palestinians in custody for “security” offenses, including 1,319 in administrative detention without trial or charge.

The hostages include men, women, and children; at least one of whom has a disability. Some are Israeli military personnel. According to media reports and Human Rights Watch interviews, hostages include dual or foreign nationals, including from Mexico, the United States, and Germany. They also may include at least eight members of the Palestinian Bedouin community in Israel.

In the days following the October 7 attacks, Human Rights Watch interviewed six family members of ten people who are still missing. They said that all of their missing relatives are civilians, including children, older people, and the parent of young children. The Israeli military informed two of those families that their relatives, four in all, were being held as hostages in Gaza.

Family members said they believed that Palestinian fighters took their relatives from several collective farms known as kibbutzim, which are small communities in agricultural areas, in southern Israel, including Nir Oz, Nahal Oz, and Holit, as well as from an outdoor dance party near the Re’im kibbutz. Members of other kibbutzim, including Be’eri, have also said that dozens of members of the community are still unaccounted for and may be being held as hostages. Some of the kibbutzim are less than a kilometer from Gaza.

News organizations have documented the seizure of people inside Israel and their transport to Gaza. The Washington Post, in a visual investigation, reported on the cases of 64 people whom Palestinian fighters had taken on October 7 from Israel into Gaza, 49 of whom appeared to be civilians – including 9 children – 11 who appeared to be Israeli military personnel, and 4 whose civilian status they could not determine.

Human Rights Watch verified one video posted on social media in which a group of men speaking Arabic appear to take into custody a young woman on a motorcycle about four kilometers west of the party site in southern Israel, close to Gaza. The woman, identified by her family in media interviews as 26-year-old Noa Argamani, cries out, “No, don’t kill me,” as other men lead away a man identified as Avinatan Or, her partner, with his hands behind his back. In another video posted on social media on October 7, Argamani is seen alive, apparently being held in Gaza.

In addition to taking hostages, the Hamas-led fighters involved in the offensive massacred hundreds of civilians, including children. They attacked the open-air “Supernova Sukkot Gathering” outdoor dance party, spraying partygoers with gunfire, and killing at least 260 people, according to the Israeli rescue service, Zaka Search and Rescue. Fighters also invaded homes in towns near the border with Gaza, killing civilians. Palestinian armed groups in Gaza have also launched thousands of rockets towards Israeli population centers. Thousands of people in southern Israel have been displaced.

According to Gaza’s Health Ministry, since heavy Israeli bombardment of Gaza began on October 7, more than 3,785 people have been killed, including more than 1,524 children, 1,000 women, and 120 elderly people; around one million people are displaced. Israeli authorities have cut electricity, water, fuel, internet, and food into Gaza, in violation of the international humanitarian law prohibition against collective punishment, and the requirement to facilitate vital supplies, including medical supplies, to civilians. This is exacerbating the dire humanitarian situation created by over 16 years of Israeli closure.

Taking hostages is prohibited under Common Article 3 to the 1949 Geneva Conventions, which applies to the armed conflict between Israel and Hamas, Islamic Jihad, and other Palestinian armed groups, and article 34 of the Fourth Geneva Convention, which applies in occupied territories.

The 2016 Commentary of the International Committee of the Red Cross on 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.” Article 8 of the Rome Statute of the International Criminal Court (ICC) similarly defines hostage-taking as a war crime.

Hostage-taking is also linked to other war crimes, including the prohibitions on using captive civilians as human shields, cruel treatment by threatening harm to hostages, and collective punishment. Common Article 3 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 “[t]he wounded and sick shall be … cared for.” As a matter of customary humanitarian law, those deprived of their liberty must be allowed to correspond with their families.

On October 14, at a news conference in Tel Aviv with the families of the hostages and missing persons, family representatives called for the immediate transfer of life-saving medication to the hostages who need them: “Our loved ones … need life-saving drugs. Without the drugs, they will not survive. Time is running out,” one said. Family representatives at the news conference voiced alarm about the well-being of their relatives, due to injuries they sustained during the Hamas-led attack or to chronic and underlying health conditions.

Adva Gutman-Tiroh spoke about her sister, 27-year-old Tamara, who was abducted from the outdoor party. “Tamara suffers from Crohn’s disease,” Adva said. “She could die without her medication and without her medical treatment.”

Qatar, Turkey, and Egypt, as countries that regularly engage and have leverage with Hamas and other Palestinian armed groups, should press for the immediate release of hostages being held in Gaza, Human Rights Watch said.

Those who ordered or carried out hostage-taking or the holding of hostages can be held criminally liable. In addition, Hamas and Islamic Jihad commanders may also be prosecuted as a matter of “command responsibility” if they knew or should have known of crimes being committed by their subordinates and failed to prevent the crimes or punish those responsible.

“Hostage-taking, using human shields, and threatening to kill people in custody are war crimes,” Fakih said. “The International Criminal Court’s prosecutor has made clear that he has a mandate to investigate these abuses.”