A large number of Israeli and foreign civilians were taken hostage during Hamas’ unprovoked barbaric attack on Israel on October 7th, 2023. Reports indicate that more than a hundred and thirty individuals, including children, women and the elderly, were forcibly taken from their homes at gunpoint and are presently held captive by Hamas.
Such actions go against the principles of International Humanitarian Law, which explicitly and consistently prohibits the act of taking hostages, categorizing it as a heinous war crime. Additionally, this body of law governs the treatment of prisoners of war (POWs). In accordance with universally accepted international norms, civilian hostages must be released immediately. At the very least, they should be accorded the rights granted to POWs.
The Third Geneva Convention laid out the legal framework for the protection of POWs. Every country in the world is a party to the Third Geneva Convention, which also confers a special mandate on the International Committee of the Red Cross, entrusting it with a central role in the protection of the dignity and well-being of POWs.
In accordance with universally recognized international standards, notably the Geneva Conventions, POWs are entitled to fundamental and immediate rights, which include: The detaining power must notify the authorities on which the prisoners depend of the capture. The International Red Cross must be granted regular access to visit prisoners of war in order to verify the conditions of their detention and to restore contact between them and their families.
Prisoners of war who are seriously wounded or suffer from specified diseases must be repatriated directly back to their own country or to a hospital in a neutral State.
In addition, any form of torture or cruelty is forbidden. The following acts are grave breaches of the Geneva Conventions: wilful killing, torture or inhuman treatment, wilfully causing great suffering or serious injury to body or health. Prisoners of war are entitled in all circumstances to respect for their person. Women must be treated with due regard to their specific needs. They must be given sufficient food and water and receive medical attention.
Prisoners of war must also be released and repatriated without delay after the cessation of active hostilities.
Therefore, International Humanitarian Law mandates that Hamas must promptly provide Israel and foreign governments with precise information regarding the number and identities of all citizens held within Palestinian custody. Moreover, it obliges Hamas to grant unrestricted access to the Red Cross for humanitarian purposes.
Additionally, the organization is expected to either promptly release or facilitate the transfer to a neutral country, such as Egypt, for individuals who are seriously wounded or afflicted by specified medical conditions, such as elderly individuals with mental disabilities, among others.
All countries, international organizations and institutions, must demand that Hamas uphold its obligations under international law. The International Committee of the Red Cross must demand immediate access to each and every one of the hostages.
- Dr. Adi Schwartz is a research fellow at the Misgav Institute for National Security and Zionist Strategy