The Hamas Abductions and International Law
Details and clarifications on the international crimes committed by the Hamas in their abduction of Israeli civilians, and the responsibilities attached to these crimes.
Photo by Gili Yaari/Flash90
On the morning of the Jewish festival of Simhat Torah, Saturday October 7, 2023, more than a thousand terrorists infiltrated Israel from the Gaza Strip, most of them members of Hamas, and a minority members of the Palestinian Islamic Jihad.[1] They entered communities and massacred residents—women, children, and elderly—and gained control of several IDF bases. They also attacked the Supernova outdoor festival being held close to the border, and murdered in cold blood hundreds of young people attending the festival. The terrorists initially faced resistance only from a small number of IDF troops, community civil defense teams, and police officers. Only after long hours of difficult fighting were Israeli forces able to return control of its sovereign territory to the State of Israel.
More than 200 civilians—most of them Israeli, but also citizens of other countries—were captured alive by the terrorists. Some of them were murdered after being captured alive.[2] Most were transferred to the Gaza Strip and are being held there. Videos posted on social media testify to brutal abuse by Hamas operatives: violence against children, sexual violence including rape, murder, and more.
The Hamas operatives holding the hostages in Gaza are concealing the identity of the hostages, their location, and their medical condition, with the exception of one video that was made public. It would seem that a small number of the hostages are male and female soldiers.
The attack by Hamas constitutes a highly severe breach of international law in general, and international criminal law in particular, in addition to every basic human moral code. Mass slaughter on this scale meets the definition of genocide, in that it was explicitly directed at Jews and was based on a racist and antisemitic ideology, as appears in the Hamas charter.[3] It is also an infringement of the most basic rules of war, which ban attacks specifically directed against civilians.[4] The huge scale of the horrors inflicted also places the attack within the framework of crimes against humanity—including murder, torture, sexual assault, and more.[5]
In this document, we focus solely on the status of the hostages.
Several areas of international law are relevant to the status of the hostages in Gaza.
- War Crimes
Israel and Hamas have been in a state of armed conflict for a number of years.[6] The intensity of the fighting in recent days, following the Hamas attack on October 7, only reinforces this conception. During an armed conflict or war between a state and a non-state organization such as Hamas, the rules of armed conflict or international humanitarian law apply. These rules apply to all sides in such a conflict, whether states or non-state organizations.[7]
The rules of combat in international laws state that during an armed conflict, it is forbidden to take hostages.[8] This is defined by the International Committee of the Red Cross (ICRC) 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.”[9]
- Seizure of a person: The term “hostage” does not only include civilians. Hamas is a terrorist organization, and thus does not have the option of taking “prisoners of war” as a bargaining chip.[10] In any case, all the hostages taken by Hamas are being held in an illegal manner.
- Compelling a third party to do an act: Hamas is holding civilian hostages. As noted, according to the ICRC definition, and also in accordance with case law produced by international tribunals, there is no need to wait for an explicit demand by Hamas for some kind of ransom for their release. Based on past experience, the goal of Hamas in holding hostages is to bring about the release of Palestinian prisoners held by Israel. In the current case, its goal may also be to hold some kind of “insurance policy” for the safety of the Hamas leadership.
- Not harming hostages: Hostages have already been physically harmed by Hamas terrorists, whose actions have included murder, sexual violence, torture, and abuse. Multiple videos published in the media have already proved this. Thus, there is no doubt that the hostages are in danger of real harm, and are not only suffering from the continued denial of their freedom as a result of not being released. In addition, they are being held in an area in which active combat is taking place, which also threatens their safety.
- Other War Crimes
According to the videos documenting the abductions, and to the testimonies of survivors of the massacre, Hamas also committed the following war crimes during and after the abductions:[11]
- Killing of hostages: There is video evidence that hostages were executed after they were abducted.
- Violence toward hostages: There is video evidence of beating, kicking, and burning of hostages.
- Severe infringement of human dignity: This includes mutilation of the bodies of hostages after they were abducted.
- Rape and sexual violence:[12] The videos published include evidence that the women who were abducted suffered rape and sexual violence.
- Crimes Against Humanity
Crimes against humanity are serious infringements of human rights which are “committed as part of a widespread or systematic attack directed against any civilian population.”[13] The attack by Hamas was indeed widespread: It was carried out by over a thousand terrorists, and was directed against a very large number of Israeli civilians (more than a thousand of whom were murdered). It was organized, planned in advance, and targeted a civilian population as part of Hamas’s overall policy of striking at civilian populations, which it has pursued for several decades and has continued with ongoing rocket fire targeted at civilian populations. A very large number of infringements were committed during this attack. Thus, it falls under the legal rubric of crimes against humanity.
The specific crimes against humanity committed in the context of the abductions, as part of a widespread attack against a civilian population, include:
Enforced disappearance of persons
This is defined by the International Criminal Court (ICC) as follows:
“Enforced disappearance of persons” means the arrest, detention or abduction of persons by, or with the authorization, support or acquiescence of, a State or a political organization, followed by a refusal to acknowledge that deprivation of freedom or to give information on the fate or whereabouts of those persons, with the intention of removing them from the protection of the law for a prolonged period of time.[14]
The abductions carried out on October 7 meet this definition. Hamas is a political organization and can be held responsible for this crime. There is considerable evidence—including videos distributed by Hamas itself—that it is holding the hostages under its control. Hamas is refusing to reveal the location of the hostages or their medical situation, and there is no doubt that it intends to hold them for a prolonged period of time.
Torture
Torture is defined by the ICC as “the intentional infliction of severe pain or suffering, whether physical or mental, upon a person in the custody or under the control of the accused.”[15] According to video testimony, the hostages were beaten and subjected to great physical violence.
Persecution
Persecution is “the intentional and severe deprivation of fundamental rights contrary to international law by reason of the identity of the group or collectivity.”[16] The Israeli hostages were abducted on the basis of their identity as Israelis, and as part of Hamas’s systematic struggle against Israel. There is no personal reason for denying the hostages’ freedom; rather, they were taken because they belong to the collective of Israeli citizenry.
Thus, Hamas is committing the crime of persecution against the hostages and has committed the crime of torture against at least some of them.
Genocide
As stated above, the attack by Hamas meets the criteria of the crime of genocide. “Genocide” encompasses the perpetration of certain crimes involving mass casualties, committed with the intention of destroying all or part of a certain population group. The removal of a group from a particular geographical area is also included under the heading of genocide.[17]
To the extent that the Hamas attack was carried out with the intention that the Gaza border region would no longer contain Jews and Israeli citizens— whether by murdering them or abducting them, or by terrorizing other residents—or as the first stage in implementing Hamas’s plan to destroy Israel, then the basis exists for it to be classified as genocide. In any case, the acts of mass murder carried out fall under the heading of the crime of genocide.
Regarding the factual basis, there is no need for murder to be carried out for the crime of genocide to have been committed. Genocide also includes “causing serious bodily or mental harm to members of the group.” Abducting members of the group inflicts severe mental harm, and the physical abuse described above constitutes severe bodily harm.
Obviously, the criminal responsibility for international crimes of the scale described above falls on the perpetrators of the crime. However, this responsibility is not limited solely to the perpetrators themselves, and also applies to wider circles:
- Commanders and others involved in the crimes: Each and every one of the senior Hamas officers who was involved in the planning and command of the crimes, or even knew in advance about the possibility that crimes would be committed and did not act to prevent them, is criminally responsible for their commission. This responsibility applies both to the Hamas chain of command and to the “civilian” leadership of Hamas, which wields authority over and is involved in the use of force by Hamas.[19]
- Hamas operatives: International criminal law holds responsible not only the direct perpetrators of crimes and their commanders, but also wider circles of Hamas operatives. First, responsibility is attached to anyone who aided in the commission of crimes, in the knowledge that they would be committed. Second, regarding some of the offenses, there is a broader responsibility that falls on anyone who made a significant contribution to the activity of Hamas, when aware of its nature as a terrorist organization, even if they were not aware of the planning for the commission of a specific crime.[20]
The application of international criminal responsibility means that all countries in the world have the duty to do all they can to prevent breaches of international law. The entire international community has the duty to prevent the severe and continuing breach of international law represented by the continued holding of hostages by Hamas. This includes the duty to apply pressure to Hamas, or to any state or other legal entity that permits it to operate from its territory, aids it, or acts in coordination with it, regarding the hostages who are still alive. The international community also has the duty to act after the event to bring to trial all those who were involved in the commission of these crimes.
As long as Hamas does not release the hostages, and without diminishing its criminal responsibility for the abductions themselves, a number of duties apply to it:
- Caring for essential needs and medical care: The hostages are under the control of Hamas, which thus has the duty to care for their wellbeing and their essential needs, and to maintain their human dignity. With regard to the women and children, a special duty to maintain their dignity applies. Severe breaches of these duties constitute separate and independent crimes under international law.
- Providing information: Failure to provide information about the hostages’ condition constitutes a further harm to the hostages and to their families. It means that the hostages cannot receive the help they need, and inflicts tremendous mental suffering on their families.
The abduction of a very large number of civilians was one of the terrible outcomes of the October 7 attack by Hamas. The framing of these abductions within international law can help convey to the world, to a certain extent, the appalling harms inflicted during that attack. This framing also helps define the legal areas of responsibility of the various bodies around the world that are addressing this issue.
In this document, we have not looked at the international and Israeli mechanisms that can hold the perpetrators of these crimes to account. We shall do this in a separate document, relating to all the actions carried out as part of the Swords of Iron War.
[1] We do not currently have any information that establishes the precise role of the Palestinian Islamic Jihad in the attacks and the abductions. Consequently, we refer in this document only to Hamas, though of course if Islamic Jihad is involved, then the document should be read as applying to that organization as well.
[2] Meg Kelly and Sarah Cahlan, “Video shows apparent death of Israeli hostages in Hamas custody,” Washington Post, October 9, 2023, https://www.washingtonpost.com/investigations/2023/10/09/israel-hamas-hostage-death/.
[3] The Hamas charter of 1988, which is the founding document of the Hamas movement, presents a clearly antisemitic worldview. Jews are compared to Nazis and blamed for revolutions and wars around the world. The fundamental ideology contained in the charter is one of violent jihad regarding all of Palestine and the destruction of the State of Israel. See The Hamas Charter (1988), Intelligence and Terrorism Information Center at the Center for Special Studies, March 21, 2006, https://www.terrorism-info.org.il/Data/pdf/PDF_06_032_2.pdf.
[4] International Committee of the Red Cross, Protocols Additional to the Geneva Conventions of 12 August 1949, Part IV, Article 48 (2010), https://www.icrc.org/en/doc/assets/files/other/icrc_002_0321.pdf.
[5] A separate article will be dedicated to the crimes committed during the attack itself.
[6] Eyal Benvenisti, “’When you lay siege to a city, you shall not cut down its trees’: On proportionality in long-term sieges,” Iyunei Mishpat 43 (2020): 461 [Hebrew].
[7] For more details, see: Hilli Moodrick-Even Khen, “Rules of War,” in Robbie Sabel and Yael Ronen (eds.), International Law, pp. 367–373 (Tzafririm: Nevo, 2016) [Hebrew].
[8] Rome Statute of the International Criminal Court, Article 8 Section 2(c)(iii), https://www.icc-cpi.int/sites/default/files/RS-Eng.pdf.
[9] ICRC, Geneva Conventions of 1949, Additional Protocols and Their Commentaries, Convention (III) Relative to the Treatment of Prisoners of War, Article 3, Paragraph 686, https://ihl-databases.icrc.org/en/ihl-treaties/gciii-1949/article-3/commentary/2020?activeTab=1949GCs-APs-and-commentaries#_Toc44265136.
[10] Moodrick-Even Khen, “Rules of War,” p. 375.
[11] For a review of the topic of war crimes, see Amichai Cohen, “International Criminal Law,” in Robbie Sabel and Yael Ronen (eds.), International Law, p. 473 (Tzafririm: Nevo, 2016) [Hebrew].
[12] Rome Statute of the International Criminal Court, Article 8 Section 2(e)(vi).
[13] Rome Statute of the International Criminal Court, Article 7. It should be noted that crimes against humanity can also be committed during combat.
[14] Rome Statute of the International Criminal Court, Article 7(2)(i).
[15] Rome Statute of the International Criminal Court, Article 7(2)(e).
[16] Rome Statute of the International Criminal Court, Article 7(2)(g).
[17] Rome Statute of the International Criminal Court, Article 6.
[18] For more details, see Amichai Cohen, “International Criminal Law.”
[19] Rome Statute of the International Criminal Court, Article 28.
[20] Rome Statute of the International Criminal Court, Article 25.