Jagoda Julia Sekular*
- Introduction
The purpose of this article is to discuss the legal basis in International Humanitarian Law (IHL) for the International Committee of the Red Cross’ (ICRC) role in the release of hostages by Hamas in October and November 2023. Although the ICRC has clarified its role in its mission statement, the legal basis of this neutral intermediary’s role has not been subject to extensive research. Furthermore, as the Hamas-Israel conflict and the Ukraine-Russia are relatively recently, literature on the subject is still developing.
This article also examines the potential role of the ICRC in an exchange of prisoners of war (PoWs) between Ukraine and Russia as well as who PoW status is granted and International Human Rights Law (IHRL) violations in relation to the treatment of PoWs. With regard to the role of the ICRC, as the ban on hostage-taking is one of the most firmly established rules of IHL and IHRL prohibits the deprivation of liberty, this article finds that ICRC is upholding IHRL in the Hamas-Israel conflict by facilitating the release of hostages.
This article suggests that provision, by States, to access to PoWs in places of interment can provide a preliminary indication of the treatment of the PoWs. The article also highlights that IHRL violations in relation to the treatment of POWs during all stages of captivity should be examined.
- The Hamas-Israel conflict and its classification
Firstly, it is important to note that the conflict between Hamas and Israel can be classified as a non-international armed conflict (NIAC) as Hamas is a non-state actor and it has not been proven that it is under the overall control of another state as per the Tadić standard.[1] In the International Criminal Tribunal for the former Yugoslavia (ICTY) Tadić Appeal judgment in 1999, it was clarified that some armed conflicts classified as NIACs are of an international character when a state controls a non-state armed group and responsibility can be attributed to a foreign state in situations where the state coordinates the actions of an organised and structured armed group by arming, financing or training the paramilitary force.
A. IHL prohibitions on taking and executing hostages
The classification is necessary to determine the appropriate IHL regime of protection of individuals and identify the rights and obligations of belligerents. However, as Israel has not ratified the Additional Protocols to the Geneva Conventions, the conduct of hostilities and the protection of individuals is governed by Common Article 3[2] to the Geneva Conventions and customary international law which includes the prohibition of hostage-taking.[3]
Notably, Common Article 3 of the Geneva Conventions and the Fourth Geneva Convention prohibits the taking of hostages, which is considered a war crime and is listed as one under the Statutes of the International Criminal Tribunals for the former Yugoslavia and for Rwanda and of the Special Court for Sierra Leone. Specifically, Common Article 3, relates to minimum thresholds of treatment during NIACs and prohibits “at any time and in any place whatsoever the taking as hostages of persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause.” It should also be noted that under IHL the occupying state must ensure the humane treatment of the population and provide for their basic needs, including food and medical care.
B. Legal basis in IHL for the ICRC role in the release of hostages by Hamas
With regard to the legal basis in IHL for the ICRC role in the release of hostages by Hamas, the ICRC, a humanitarian organisation, has clarified that it is not a negotiator and remains a neutral intermediary which does not take part in any negotiations or political deals between the parties. After facilitating the release of hostages from Gaza on 20 October and 28 November 2023, the ICRC continued to call for the immediate release of all hostages adding that ICRC was ready to visit the remaining hostages and to facilitate any future release following an agreement reached by the parties. The role of the ICRC is to receive and bring the hostages safely out of the Gaza Strip once an agreement has been reached. It can also conduct humanitarian visits and facilitate communication between hostages and family members.
However, it is important to note that the ICRC can only act either at the request of one party and with the consent of the other, or following acceptance by all parties. The ICRC also needs to believe that the parties will honour the undertakings that they will be required to give the ICRC.
C. IHRL compliance
Lastly, IHRL prohibits the deprivation of liberty, notably in the International Covenant on Civil and Political Rights (ICCPR) as well as the European and American Conventions on Human Rights. As this is viewed as a non-derogable right, it could be said that ICRC is upholding IHRL. Pertinently, in the International Commission of Jurists’(ICJ) briefing paper (June 2020) examining Israel’s failure to implement and comply with certain obligations under the ICCPR, the ICJ recommended that Israeli authorities “ensure that the domestic rules of engagement governing the use of potentially lethal force are designed in accordance with article 6 of the ICCPR to guarantee the right to life and bodily integrity, and that Israeli security forces comply with them in practice”.
- The Ukraine-Russia war and its classification
Considering the above-mentioned provisions, the ICRC could play a role in the exchange on POWs between Ukraine and Russia, if Ukraine and Russia came to an agreement on the issue. According to ICRC, since February 2022, the humanitarian organisation has visited a total of over 1,500 PoWs in Ukraine and Russia. However, one must first establish the classification of the conflict between Ukraine and Russia and then which IHL regime applies. As international armed conflicts (IAC) are between two or more states, it can be concluded that the current conflict in Ukraine is an IAC and therefore governed by the four Geneva Conventions and Additional Protocol I, which Russia and Ukraine are parties to. It should however be noted that in 2015, a NIAC erupted in the separatist provinces Donetsk and Luhansk in eastern Ukraine and in NIACs, members of non-state armed groups are not granted POW status. Though their participation in hostilities is not prohibited under IHL itself, domestic laws may criminalise such conduct under political crimes, such as insurgency.
A. PoW status
PoW status is granted to members of the enemy armed forces, including members of army support services, and those captured should be tried according to the provisions of Geneva Convention, rather than undergoing domestic criminal prosecution. This rule is set forth in Article 43(2) of Additional Protocol I and was previously cited in the Hague Regulations as “the armed forces of the belligerent parties may consist of combatants and non-combatants”. This distinction of who exactly the PoW status is granted to is important due to the presence of foreign fighters, volunteers and mercenaries in the conflict. Mislabeling the various fighters involved in the conflict runs the risk of undermining the very purpose of the IHL framework, efforts to regulate armed conflict and provide protection and necessary legal safeguards.
PoWs in IACs are also not provided complete immunity from prosecution as they may be tried for war crimes. However, as per Article 85 of the Third Geneva Convention relative to the Treatment of PoWs immunity is provided for lawful acts of war committed in the course of an armed conflict, even if such acts qualify as crimes under the domestic laws of the detaining power.
B. The potential role of the ICRC in an exchange of PoWs between Ukraine and Russia
As mentioned, though ICRC could play a role in the exchange of PoWs, specific attention should be paid to who is considered a PoWs and if there are individuals to whom the status has not been granted despite them fulfilling the legal requirements. In these cases, the ICRC should continue to advocate for transparency and, at the very least, due process in the criminal proceedings of those individuals.
- Recommendations and the way forward
As discussed, the ICRC, as a neutral intermediary, could indeed play a vital role in the facilitation of hostages and/or PoWs. However, in addition to facilitating the release, as the ICRC is guided solely by the interests of the victims, the ICRC should also pay attention to indications of IHL violations by the parties.
Regarding the Hamas-Israel conflict and hostages, the hostages should have been be treated humanely during their time being held captive, as per Article 3 common to the four Geneva Conventions prohibits, among other things, “violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture” and “taking of hostages”. The ban on hostage-taking dates back to Articles 46 and 50 of the Regulations annexed to the 1907 Hague Convention concerning the Laws and Customs of War on Land as well as other notable international agreements, and is considered as one of the most firmly established rules of international humanitarian law.
Regarding the Ukraine-Russia war and PoWs, the ICRC should work closely with bodies such as the Office of the United Nations High Commissioner for Human Rights (OHCHR), which in 2023 released a report on the treatment of PoWs by the parties to the IAC. IHL and IHRL violations in relation to the treatment of PoWs during all stages of captivity–from their capture through to their internment and repatriation, should be examined. Compliance by the states, both Ukraine and Russia, as well as providing access to the PoWs in official places of interment, is an important aspect of the examination and can provide an indication of the treatment of the PoWs.
Lastly, though the situation in both Gaza and Ukraine has been complicated by geopolitical complexities and, arguably, exacerbated by the international community’s inability and, potentially, unwillingness to act, and pursue prosecution for serious international crimes, the onus is on the international community, not solely the ICRC, to consistently remind the parties to comply with IHL and at the very least, minimise harm to the civilian populations.
*University of Amsterdam (Faculty of Law).
[1] Prosecutor v Dusko Tadic aka “Dule” (Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction), IT-94-1, International Criminal Tribunal for the former Yugoslavia (ICTY), 2 October 1995.
[2] Geneva Conventions 1949, Common Article 3 (cited in Vol. II, Ch. 32, § 2046).
[3] The taking of hostages is prohibited by international humanitarian law (Article 34, Fourth Geneva Convention; Article 3 Common to the Geneva Conventions; Article 75(2c), Additional Protocol I ; and Article 4(2c), Additional Protocol II).