07 Dec The Hostage Situation in Gaza and the Responsibilities of the International Community
[Dr. Shelly Aviv Yeini is a Research Fellow at the University of Haifa and the head of the international law department at the Hostages and Missing Persons Family Forum.
Prof. Amichai Cohen is a member of the Faculty of Law at the Ono Academic College and a senior fellow at the Israel Democracy Institute.
Prof. Tamar Hostovsky Brandes is a member of the Faculty of Law at the Ono Academic College and a senior fellow at the Institute for Israeli Thought.]
Hamas’ atrocious attacks of Israeli civilians and the ongoing conflict in Gaza are currently at the center of the attention of international jurists. Over 1200 people were killed and over 240 taken hostage (113 of which were released in an exchange deal), the vast majority of which are civilians. There is evidence documenting torture, sexual violence, violence against children and mutilation of bodies.
In this blog post, we wish to cast a light on the question of the responsibilities of the international community with respect to the situation in Israel and Gaza, focusing on responsibilities with regards to the ongoing hostage situation. The term international community is rooted in ethical and moral considerations and a “community of values”, which, when disrupted, may necessitate a specific response. Our claim is that the brutal, premeditated attack and kidnapping of civilians in their own homes constitutes violations of international human rights law and international criminal law. Due to the gravity of the offences, the responsibility to ensure redress of these violations lies not only with the parties involved, but with the international community of states. We review the legal sources and doctrines establishing such responsibility, and call for mobilization of the relevant international mechanisms and steps needed in order to ensure resolution of the situation and accountability.
The International Crimes Involved
Hamas’ attacks have been condemned by over 300 international law experts as war crimes, crimes against humanity and most likely genocide. Specifically with regards to kidnapping, the following are the violations of international criminal law committed by Hamas.
First, war crimes: during armed conflict it is forbidden to take hostages. The taking of hostages is defined as a crime in international law. Additional war crimes committed during the attack include the killing of hostages, infringement of human dignity, rape and sexual violence.
Second, crimes against humanity: the attacks and the kidnapping, were performed as part of a widespread and systematic attack directed against a civilian population. They thus constitute the crimes against humanity of forced disappearance, torture and persecution.
Third, the crime of genocide also must be mentioned: The actions of Hamas probably also constitute genocide. Perhaps a more detailed legal argument is required to support this claim. Genocide is considered the crime of crimes. It does not require that an entire group will be destroyed, but rather there is solid support in the judgments of international tribunals that mass killings, such as those committed in the October 7th attack, satisfy the material element of crime [ICTY, Jelisic TC, para. 82]. What differentiates genocide from crimes against humanity, when committed on this scale, is the “special intent” attached to these acts, namely: “to destroy in whole or in part a “national, ethnical, racial or religious group as such”. This intention is notoriously hard to prove, since states and non-state-actors usually do not publicize their genocidal intent, and so it is usually inferred from the acts. [ICTR, Akayesu TC, para. 523] In the case of the Hamas attack, however, proving the intent is actually uncomplicated.
The Hamas Covenant supports the malicious intent behind the attack, openly calling for the destruction of the Jews: “the Day of Judgement will not come about until Moslems fight the Jews (killing the Jews), when the Jew will hide behind stones and trees. The stones and trees will say O Moslems, O Abdulla, there is a Jew behind me, come and kill him.”; “Israel, Judaism and Jews challenge Islam and the Moslem people. “May the cowards never sleep”(Articles 7 & 28, Hamas Covenant).
Hamas openly uses antisemitic and racial language against Jews in its public statements, a clear indication of its intent. Such views also appear in the educational material. After the October 7th attack one of Hamas’s leaders said that “Israel has no place in our land” and thus it must be wiped off Palestinian lands. Clearly, if the intention of Hamas is to destroy the Jewish population living in Israel, this constitutes a clear case of intention for genocide. As the ICJ stated: “it is widely accepted that genocide may be found to have been committed where the intent is to destroy the group within a geographical limited area” (Bosnian Genocide case, para. 199).
But even if the intention of the Hamas was only to destroy the Jewish population living near the border of Gaza, as clearly proven by their actions on October 7th, this more limited intent constitutes the intention to destroy a “part of the group”, as the ICTY stated in the Krstic case (ICTY, Krstic TC, para. 560) “The Bosnian Muslim population of Srebrenica…. Constitute a part of the protected group”. Hamas terrorists admitted that they were given explicit orders to murder, rape and mutilate all civilians in the towns they entered.
Indeed, in an open letter published just days after the October 7th attack, several hundred international law and human rights scholars stated that as these widespread, horrendous acts appear to have been carried out with an “intent to destroy, in whole or in part” a national group – Israelis, a goal explicitly declared by Hamas – they most probably constitute genocide, proscribed by the Genocide Convention and the Rome Statute of the International Criminal Court. It therefore seems to us that there is at least an a-priori case for claiming that the acts of October 7th constitute genocide.
Below we discuss the responsibilities of states other than Israel to respond to these actions.
Common Article 1 to the Geneva Conventions states that “The High Contracting Parties undertake to respect and to ensure respect for the present Convention in all circumstances.” This provision entails several obligations.
First, it includes a duty of compliance of the armed forces of any high contracting party or “persons or groups acting in fact in its instructions, or under its direction or control” (ICRC Customary IHL Study, Rule 139). This obligation is applicable in both international and non-international armed conflicts.
Second, states have an obligation to ensure respect for international humanitarian law. The prevalent position in international law, as expressed in the ICJ’S jurisprudence (Military and Paramilitary Activities in and against Nicaragua case; the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory Advisory Opinion), is that this obligation applies not only to the parties to the conflict, but rather to other states as well.
The obligation to ensure respect for IHL has both negative and positive aspects. The negative aspect of the obligation requires states to refrain from aiding or assisting violations of IHL. This is both an independent obligation based on Common Article 1 and a general principle of international law. states are responsible for violations of IHL when they are aiding other legal entities (states or non-state actors) in the commission of the violations.
In recent years, it has been increasingly acknowledged that there is also a positive aspect to this obligation (for instance, see ICTY, Furundžija TC, para. 151). Third states, i.e. even those not parties to the conflict, are obligated to take measures in order to ensure respect for IHL. As detailed below, such measures could be of a variety of kinds. The best-known form of actions taken by states in this regard is the use of criminal law. States have the right, and in some cases, such as for grave breaches of the Geneva Conventions, the duty to employ criminal means by using the doctrine of universal jurisdiction. According to the grave breach provisions in the Conventions, states have an obligation to enact domestic legislation authorizing their courts to prosecute criminal cases of serious violations of IHL, even if these violations took place in a different state.
There is also a variety of non-criminal measures that can be employed by states to ensure respect with international humanitarian law. As the 2020 commentary to the Third Geneva Convention indicates (see paras. 180-184), these may include addressing questions of compliance within the context of a diplomatic dialogue; exerting diplomatic pressure by means of confidential protests or public denunciations; applying measures of retorsion, such as the halting of ongoing negotiations or refusing to ratify agreements already signed, the non-renewal of trade privileges, and the reduction or suspension of voluntary public aid; adopting lawful countermeasures such as arms embargoes, trade and financial restrictions, flight bans and the reduction or suspension of aid and cooperation agreements; conditioning, limiting or refusing arms transfers, resorting to penal measures to repress violations of humanitarian law; and supporting national and international efforts to bring suspected perpetrators of serious violations of international humanitarian law to justice.
As regards measures the High Contracting Parties may adopt vis-à-vis states party to a non-international armed conflict, reference can be made to essentially the same measures available in the context of international armed conflict. In practice, states and international organizations regularly denounce violations of Common Article 3, including by non-state armed groups, and adopt economic and other non-military sanctions (for different measures available to countries, see this article in the International Review of the Red Cross, p. 9).
The kidnapped persons are mostly Israeli nationals. Many of them, however, are nationals of other countries (with some holding dual citizenship): the US, UK, Thailand, France, and more. In discussing the duties of states other than Israel to the kidnapped persons, we should clearly differentiate between states whose nationals are among the kidnapped and those that are “pure” third parties because their nationals are not.
Duties to Nationals
States have responsibilities towards their own nationals. States use diplomatic and economic means, including countermeasures, to protect their nationals, especially when their basic rights to life and liberty were hurt. The controversy relates to the cases in which force is required in order to free the nationals of a states. There is some support for the position that states can use force to protect their nationals when (1) there is an imminent threat of injury to nationals, and (2) a failure or inability on the part of the territorial sovereign to protect them – although (3) the action of the intervening state must be strictly confined to the object of protecting its nationals against injury. This position is supported by several Western states such as the US, UK, and Israel, who have actually sent troops to extract nationals when they faced dangers in other countries. Many states, however, oppose this notion and view it as an illegal use of force against the territorial sovereignty of another state.
In the context of the Gaza strip, there are reasons to assume that the right of states to protect their nationals is stronger than in other cases. First, there is a question whether the prohibition to the use of force in protection of nationals is even relevant in the Gaza strip, where there is no formal sovereign. Second, here the nationals were kidnapped in clear violation of international law, by the same authority, Hamas, that now wishes to use international law in order to limit the ability of states to respond.
Responsibility to Protect
Over the course of its development, the United Nations Security Council, the Secretary General, and the General Assembly have each articulated their endorsement of R2P. This affirmation underscores the interconnected roles of sovereign states and the international community in their shared responsibility to prevent mass atrocities. However, it is important to note that R2P remains a subject of ongoing contention and deliberation within the legal academia. R2P is based on three pillars.
The first is state responsibility, as the sovereign state is initially entrusted with the responsibility of safeguarding and upholding the human rights of its sovereign territory.
The second is international assistance and capacity enhancement. in instances where a state encounters difficulties in fulfilling its protective role, the international community is encouraged to provide assistance, build the state’s capacity, and offer support to enable it to meet its IHRL obligations. The aim is to forestall the escalation of potential human rights crisis.
Third, timely and decisive response. In the event that a state proves unable or unwilling to protect its population against severe and systemic human rights abuses, the international community is mandated to take prompt and determined measures. These interventions may encompass diplomatic, economic, political, or, in some cases, military actions, provided they are duly authorized by the Security Council (UNSC), in conformity with the United Nations Charter.
The responsibility towards the kidnapped, however, does not stop with the states whose civilians were kidnapped. In the realm of international human rights law (IHRL), the concept of state responsibility to intervene (whether by diplomacy, sanctions, or force upon UNSC authorization) derives from R2P. In 1999, NATO’s use of “humanitarian intervention” in the Serbia conflict revealed a legal void in international force regulations. R2P, recognized by the International Commission on Intervention and State Sovereignty (ICISS) in 2001, aimed to reconcile the global South’s rejection of humanitarian intervention with the global North’s resolve to prevent atrocities.
R2P posits that while the primary duty to safeguard the human rights of individuals within a state lies with that sovereign entity, it also acknowledges the existence of situations in which the international community assumes a responsibility to intervene when a state demonstrates incapacity or unwillingness to prevent grave and systematic human rights violations of genocide, war crimes, and crimes against humanity. This is a legal tool that is relevant in the case of ongoing violations rather than violations that have occurred and ended – as the goal is to prevent and stop atrocities. The enforced disappearance of the abductees (Rome Statute (7)1(i), 1992 Declaration on the Protection of all Persons from Enforced Disappearance and 2010 Convention against Enforced Disappearance), constitutes a crime against humanity – which is still occurring. A fair assessment would be that Hamas is unwilling and Israel is unable to do what it takes to end this ongoing crime against humanity and end the abductees’ enforced disappearance by releasing them back to Israel. Other relevant IHRL violations that can trigger R2P include violations the right to life, of the prohibition against torture and cruel, inhuman and degrading treatment, including sexual and gender-based crimes committed on a large scale. If one considers R2P a legitimate doctrine in international law, then the offences committed by Hamas should be sufficient to trigger its applicability.
R2P addresses wide variations of IHRL violations as its scope is quite wide and is evaluated on a case-to-case basis. That is, the fact that a violation of IHRL is of sufficient gravity and scope and constitutes on of the mentioned categories does not in itself oblige the international community to operate – but rather triggers an avenue to do so upon discretion. In the case of hostages held by Hamas, and the grave risk those kidnapping pose to international security, it is probably what the drafters of the doctrine had in mind when considering the importance of the international community in order to maintain global stability and IHRL protection.
The crime in which the obligation of third parties to intervene is the clearest is the “crime of crimes” – genocide. Article 1 of the Genocide Convention provides that the contracting parties confirm that genocide, whether committed in a times of peace or in time of war, is a crime under international law which they undertake to prevent and to punish.
First, it is important to note that the prohibition on genocide also includes (in Article III to the Convention) a prohibition on “complicity” in genocide. This allows us to impose responsibility for genocide on other states, and not only on Hamas. According to the prevailing view, complicity in genocide does not require specific intent to be present in the accessory (ICTY, Krstic AC, para. 140). Complicity, in this regard, includes assistance, which means all contributions that enable, facilitate or facilitate the commission of the principal offence. Article 25 to the ICC Statute also states that persons are criminally responsible for committing crimes if he “aids, abets, or otherwise assists in its commission.”
The duty to prevent genocide, as mentioned in Article I, is wider than the prohibition on complicity. This duty was discussed in the Bosnian Genocide case, in which the ICJ affirmed the duty on all states to prevent genocide, and added the following explanation regarding States’ responsibility:
In this area the notion of “due diligence”, which calls for an assessment in concreto, is of critical importance. Various parameters operate when assessing whether a State has duly discharged the obligation concerned. The first, which varies greatly from one State to another, is clearly the capacity to influence effectively the action of persons likely to commit, or already committing, genocide. This capacity itself depends, among other things, on the geographical distance of the State concerned from the scene of the events, and on the strength of the political links, as well as links of all other kinds, between the authorities of that State and the main actors in the events. The State’s capacity to influence must also be assessed by legal criteria, since it is clear that every State may only act within the limits permitted by international law; seen thus, a State’s capacity to influence may vary depending on its particular legal position vis-à-vis the situations and persons facing the danger, or the reality, of genocide. (Judgment 2007, para. 430)
The content of the duty also depends on the character of the entity responsible for the crime. When the criminal entity is a radical organization, the duties of the third states are those of assistance to the territorial states, in terms of intelligence, providing financial assistance, etc. States are also under a duty not to allow representatives and members of the organization to find refuge within them. (See Tams, Convention on the Prevention and Punishment of the Crime of Genocide – Commentary, p. 52-53).
The Relevance of the International Response to the Russian Invasion of Ukraine
We have discussed, so far, the legal sources and doctrines that support the grounds for international intervention in the hostage situation. In examining which steps can be used, it may be helpful to turn to the response of states to the Russian invasion of Ukraine as a framework of reference.
We are aware of the eyebrows that may be raised in response to this comparison, in light of the ongoing Israeli occupation of the West Bank. However, no other acts are relevant to the fact that the crimes committed by Hamas constitute grave violations of international law that warrant international response. In arguing that the Russian invasion to Ukraine posed a test for international law, Oona A. Hathaway was similarly aware of possible claims regarding past violations by other states, notably the US. Whether these claims were true did not detract from that fact that the Russian invasion was a violation of “a fundamental principle of international law” and that the test of a legal rule “is not determined simply by whether it is violated. It is determined, too, by the response when it is violated”. Surely, the planned slaughter, torture, and kidnapping of civilians, which constitute war crimes, crimes against humanity, and most probably genocide, is equally an unequivocal violation of a fundamental rule of international law, regardless of any claims that can be brought against Israel. The question of how the international community will respond to the situation is thus equally relevant as in the case of Russia.
Hathaway reviews four kinds of responses of the international community to the Russian invasion: condemnation, outcasting, arming, and accountability. Three of these four are relevant to the hostage situation: condemnation, outcasting, and accountability. With regards to condemnation, Hathaway noted that the General Assembly and the ICJ among the institutions that condemned the invasion as unlawful. In light of the fact that the GA, which adopted a resolution calling for an “humanitarian truce” and for the release of civilians held captive, refused to condemn the slaughter and kidnapping as “terrorist attacks”, the GA is unlikely to play any significant role with respect to condemnation of Hamas for its crimes.
There is a wide array of other international bodies and institutions that can be expected to condemn the kidnapping and hostage holding, from the UN Secretary General to the Human Rights Council, UN Women, and relevant special rapporteurs. While some of these bodies have indeed acknowledged the illegality of the attacks and the kidnappings, the response was often late and the language condemning the holding of hostages weak. Each of these bodies should be demanded by states committed to the international rule of law to exercise their mandate to unequivocally condemn the attacks and kidnapping and acknowledge them for what they are: blatant violations of international law that must be stopped immediately, regardless of any claims that may be made against Israel.
The second measure mentioned by Hathaway is outcasting, which she defines as “enforcing international law where states exclude the law-violating state… from the benefits of international cooperation to which it would otherwise be entitled”. The main form of outcasting, she explains, is the system of “unprecedented economic sanctions” directed against Russia. Both measures are relevant first and foremost with regards to Hamas, which should be universally recognized as a terror organization and treated accordingly. The US, the UK, Germany, Japan, France, Australia and Switzerland have imposed sanctions or taken measures against Hamas or individuals associated with it following October 7th, and France has called for EU sanctions on people linked to Hamas and Hezbollah. However, the majority of states have yet to take similar steps.
Such measures are also relevant with respect the states that facilitate Hamas and finance its operations, such as Qatar, which hosts Hamas’ leaders, allowing them to evade accountability, and Iran, which funds and arms Hamas. By continuing to support and facilitate Hamas throughout the ongoing violations of international law, these states bear international responsibility. Here, too, in order to be efficient, steps need to tailored specifically to the case. Hathaway explains that economic sanctions had limited impact due to the size of the Russian economy, and that Russia’s political power was also a factor in the effectiveness of attempts to isolate it. The modes of outcasting of states that support Hamas need to be crafted in accordance to what these states need or desire. These may include cutoff of economic ties, but cutoff of diplomatic, commercial or cultural ties can also be effective with respect to states that strive to be part of the global community, such as Qatar. The latter is currently playing a role as a mediator in the hostage crisis.
The third mode of response regards accountability, which includes both criminal responsibility and demands for reparations. ICC Prosecutor Karim Khan has already stated, following a visit to Israel, that “the attacks against innocent Israeli civilians on 7 October represent some of the most serious international crimes that shock the conscience of humanity, crimes which the ICC was established to address”. The magnitude of the crimes and their nature – as war crimes, crimes against humanity and possibly genocide – additionally justify exercising universal jurisdictions to ensure those responsible for the kidnapping and those facilitating them will be held accountable. Civil lawsuits are also likely to be filed in various counties across the world. Israel may not be able to ensure accountability on its own, and the international community will need to step it to ensure it.
International jurists rightly stress that in responding to Hamas’ attacks and kidnapping, Israel is bound by international humanitarian law. But there is another side to this argument – the gross violations of rights involved cannot simply be “Israel’s problem”. States that take international law seriously should take all measures they have to ensure the restoration of rule of law in the international realm. Otherwise, the widely used terminology of an “international community” will remain an empty shell.
In assessing the authority and duty for international response to the kidnappings, we may ask three different questions: who may respond; against whom; and what are the possible measures that may be taken?
Who may respond. We find that there is strong support in international law for the authority and duty of states other than Israel to respond to the kidnappings. This is clearest with regards to states whose nationals were kidnapped. In addition, there is strong support for the authority of all states to respond to the crimes of Hamas.
Against whom. Hamas is the main culprit in this situation, and indeed Israel is acting militarily in order to dismantle Hamas’ regime and has declared the return of all kidnapped persons as one of its military goals. Hamas, however, is not the sole party responsible. It is clear that international law supports the authority of states to act (in accordance with international law) also against states that aided and assisted Hamas in executing the attacks. If Iran assisted Hamas in its actions, it bears responsibility for them. Similarly, if Qatar assisted Hamas in the commission for the crimes, it might be held responsible.
Permissible measures. It is possible that states whose nationals were kidnapped have a right to use force in order to free them. But other than that, states have the right, and probably the obligation, to stop the ongoing criminal violations of international law by employing all legal measures that might assist in stopping the crimes. If criminal proceedings are effective, then states have a duty to open criminal proceedings against the perpetrators for grave breaches. If economic sanctions of the kind used against Russia are required, then these should be used. If cutting diplomatic and cultural ties could be effective, this should be done. And they should be used not only against Hamas, which is widely considered a terrorist organization anyway, but also against states assisting Hamas such as Iran and Qatar to the extent that there is proof of their complicity.