Hostages in Gaza: What Does International Law Say?
Israel arrests and holds large numbers, some under a procedure that does not require that the person be charged with a particular crime.
The mother of Mia Shem, one of 200 Israelis captured by Hamas in Gaza, Photo by Anadolu Images.
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ostage-taking is the enforced sequestration of persons as a means of pressuring a government. It is prohibited under international law. The most famous recent instance was the sequestration of diplomats of the United States 1979-1981 in Iran.
But whether diplomats or not, hostage-taking is unlawful. Hamas is bound by the laws of warfare, which protect civilians. From Hamas’ vantage point, the hostage-taking is justified by the widespread incarceration of Palestinians by Israel. Israel arrests and holds large numbers, some under a procedure that does not require that the person be charged with a particular crime.
Hostages must be treated humanely pending their release. They are not to be made the objects of ridicule, or be used in a public way to promote the interests of those holding them. The release of hostages may require negotiation and compromise. Those held in Iran beginning in late 1979 were released only in early 1981.
Hostage-taking brings into play the rights of the states of nationality of the persons held. Those states have a legitimate basis for demanding release. The situation is more complex when the hostages hold more than one nationality, but not fundamentally different. Any of the states whose nationality a person holds can ask that the person’s rights be respected.
In Israel, many of its nationals also hold a nationality in Europe or North America. Those European or North American states thus are in a position to make demands. To that extent, these dual-national Israelis gain an extra layer of diplomatic protection. And from the standpoint of other states in the region, Israelis, at least those who are dual nationals, therefore hold a privileged position.
Even where a person is a permanent resident of a state, that state may decide to take up their case. Increasingly, human rights are regarded as matters in which all states have an interest, thus, that they too may ask that rights be respected. International human rights organs may take up a hostage-taking situation.
So a hostage-taking situation may become internationalized. In 1979, the United Nations Security Council took up the hostage-taking in Iran and called for release. While all this international activity may help to gain release, it also gives a stronger hand to the more powerful countries in relations with other countries.
