JUSTICE - No. 71

53 Spring 2024 organs and specialized agencies as constituting part of the territory of Palestine, which enjoys a non-member observer State status in the UN11 and is a party to various human rights treaties.12 As regards the substantive obligations, the IHRC’s appeals clarified that the holding of hostages violates international human rights law, as well as international humanitarian law, which applies in situations of armed conflict. 2. International Human Rights Law The taking and holding of the hostages violates numerous human rights. The deprivation of individuals of their liberty, followed by the refusal to disclose their fate or whereabouts, places Hamas’s conduct within the definitions of enforced or involuntary disappearance and arbitrary detention. Accounts obtained since the release of some hostages confirm that physical and mental harm is intentionally inflicted on the hostages, including genderbased violence, and deprivation of food and medical care. The harm inflicted upon hostages through atrocious acts, compounded by their enforced disappearance and arbitrary and incommunicado detention, amounts to torture and cruel treatment. In its appeals, the IHRC emphasized how the current conditions impose a risk to the hostages’ lives. It recalled that forcible and involuntary disappearance and arbitrary deprivation of liberty have been recognized as rendering abductees particularly vulnerable to extrajudicial killings.13 This assessment has been proven correct, as numerous hostages have since been declared dead. 3. International Humanitarian Law The 2016 Commentary of the International Committee of the Red Cross on Common Article 3 defines hostagetaking 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.14 This definition draws on Article 1 of the International Convention Against the Taking of Hostages. The taking of hostages is prohibited in both international armed conflict (Article 34 of Geneva Convention IV, which also classifies it as a grave breach) and non-international armed conflicts, as outlined in Common Article 3 of the Geneva Conventions and customary international humanitarian law. It thus applies to the armed conflict between Israel and Hamas and other armed groups operating in Gaza. Common Article 3 further specifies that everyone in the custody of a party to a conflict “shall in all circumstances be treated humanely,” be protected from “violence to life and person,” and that “the wounded and sick shall be… cared for.”15 As a matter of customary humanitarian law, those deprived of their liberty must also be allowed to correspond with their families. The taking of hostages and the conditions in which they are held violate other provisions in Common Article 3: the prohibition of violence towards persons not taking active part in hostilities, in particular murder of all kinds, mutilation, cruel treatment and torture; the prohibition of outrage upon personal dignity, in particular humiliating and degrading treatment; and the obligation to care for the wounded and sick. V. International Law Q&A Project In addition to the formal general and individual appeals and complaints submitted to the different UN bodies, the IHRC initiated an informal legal Q&A project addressing the role of IHL in the wake of October 7. The project focused particular attention on the taking of hostages, the responsibility of the UN organs towards the hostages, and the international status of Hamas as a non-state organization. Former IHRC students, as well as current 10. UN Human Rights Council, Report of the Special Rapporteur on extrajudicial, summary or arbitrary executions on her mission to Iraq, 20 June 2018, UN Doc A/HRC/38/44/Add.1, para. 17. 11. UN GA Res. A/Res/67/19, Nov. 29, 2012, para. 2. 12. See UN Treaty Body Database, available at https:// tbinternet.ohchr.org/_layouts/15/TreatyBodyExternal/ Treaty.aspx?CountryID=217&Lang=en 13. UN Human Rights Council, Resolution adopted by the Human Rights Council on 6 October 2022, UN Doc A/ HRC/RES/51/8, para 2. 14. International Committee of the Red Cross (ICRC), Commentary on First Geneva Convention, 1949 (Geneva: ICRC, 2016), para. 650. 15. First Geneva Convention, 75 UNTS 31, Art. 3; Second Geneva Convention, 1949, 75 UNTS 85, Art. 3; Third Geneva Convention, 1949, 75 UNTS 135, Art. 3; Fourth Geneva Convention, 1949, 75 UNTS 287, Art. 3.

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