JUSTICE - No. 71

52 No. 71 JUSTICE In addition, the IHRC sent requests for urgent action regarding the hostages to the Working Group on Enforced or Involuntary Disappearances and to the Working Group on Arbitrary Detention. It urged the Working Groups to issue an urgent appeal for Hamas to reveal and clarify the fate and whereabouts of every person abducted by it or any other organization within the Gaza Strip. The IHRC further collaborated with Bizchut – The Israel Human Rights Center for People with Disabilities, the Hebrew University’s Center for Disability Studies, and 23 disability advocacy organizations in Israel, in an urgent call to the International Committee of the Red Cross (ICRC). Together we requested the ICRC’s immediate action, in any way possible, to bring about the release of all abductees, and pending such release, to ascertain where they are being held, establish contact with them, and ensure their security and well-being, including the provision of full medical and caregiving support. B. Communications on behalf of individuals Following the general appeals described above on behalf of the Hostages and Missing Families’ Forum, the IHRC submitted individual requests for urgent actions to the Working Group on Enforced Involuntary Disappearances (WG-EID) and to the Working Group on Arbitrary Detentions (WG-AD), on behalf of the families of 13 hostages, men, women, elderly people and children. In December 2023, the WG-EID informed Israel’s Foreign Minister that it had transmitted a communication to Hamas regarding eight of the hostages on behalf of whom the IHRC had filed communications (some of whom had been released by the time the Working Group reported on its actions) as cases tantamount to enforced disappearances under international law. C. Legal Arguments 1. Hamas’s Status The IHRC’s appeals and requests to the various special mandates were based on the growing acknowledgement that obligations under international human rights law extend not only to states but also to non-state actors, at least (but not necessarily only) those that exercise effective control over territory.6 The IHRC stressed that Hamas is a political and military organization that both exercises control over the territory of the Gaza Strip and functions currently as its governing body. Given its effective territorial and functional control in Gaza, Hamas is directly bound by certain international human rights obligations. These include, at a minimum, those considered to be peremptory norms under customary international law (jus cogens),7 such as the prohibition on torture. Hamas is thus responsible for the abductions that took place on October 7, 2023, not only because it is the direct perpetrator of the act, but also because it controls the territory where the hostages are currently held. As the authority exercising de facto governmental powers in the Gaza Strip, Hamas is accountable for the respect and protection of the human rights of individuals held within the territory under its control.8 This accountability extends to the respect and protection of hostages held by other armed groups in the Gaza Strip. Hamas’s control over such organizations was demonstrated by the fact that the hostage deal carried out by Israel and Hamas in November 2023 included the release of Israeli hostage Hanna Katzir who had been held by the Islamic Jihad. Indeed, the UN Secretary-General has stated that Hamas must release all hostages immediately and without conditions,9 addressing Hamas directly as the entity holding all hostages within territory under its effective control. Moreover, as has been recognized in the past, armed non-state actors exercising de facto authority over a specific territory are bound by the treaty obligations of the relevant state.10 The Gaza Strip is recognized by UN 6. Yaël Ronen, ”Human Rights Obligations of Territorial Non-State Actors,” 46 CORNELL INTERNATIONAL LAW JOURNAL 21 (2013). 7. UN Human Rights Council, Report of the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions on Armed Non-State Actors: The Protection of the Right to Life, Dec. 7, 2020, UN Doc A/HRC/38/44, para 19. 8. UN Economic and Social Council, Report of the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, Philip Alston, Addendum, Mission to Sri Lanka (Nov. 28 - Dec. 6, 2005), March 27, 2006, UN Doc E/CN.4/2006/53/Add.5, paras. 25, 71; see also UN Human Rights Council, Communications transmitted, cases examined, observations made and other activities conducted by the Working Group on Enforced or Involuntary Disappearances, 27 April 2020, UN Doc A/ HRC/WGEID/120/1, para. 135. 9. UN Secretary-General’s statement on the situation in the Middle East, Oct. 15, 2023, available at https://www. un.org/sg/en/content/sg/statement/2023-10-15/secretarygeneral%E2%80%99s-statement-the-situation-themiddle-east

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