Published in the Jerusalem Post, 5 December 2023
The events of October 7
have proved too flagrant to be ignored by the body that is supposed to be the
world’s watchdog on protecting and advancing human rights.
The UN Human Rights
Council (UNHRC) was established in 2006 with one over-riding purpose – to
rectify the egregious faults of its predecessor body, the UN Commission on
Human Rights (UNCHR). Over the 60 years of its existence the Commission had
accrued a raft of objectionable practices, high among them an obvious
anti-Israel bias.
UNHRC is UNHCR with just
one letter transposed, and it soon became obvious that all the UN had done was
to substitute Tweedledee for Tweedledum.
It did not take long before the same anti-Israel stance began to emerge
from the new Council. Since its founding
it has passed more than 90 resolutions condemning Israel – more than against
Iran, Syria, North Korea, China, Russia, Cuba and Venezuela combined. The
Council would have the world believe that Israel is more guilty of human rights
abuses than all the blatant abusers of human rights put together.
Its determined
anti-Israel position was actually codified in a decision in 2006 to include as
a permanent feature of its sessions a review of alleged human rights abuses by
Israel. Even Human Rights Watch, no
friend of Israel, urged the Council to look as well at international human
rights and humanitarian law violations committed by Palestinian armed groups.
This proposal was not followed through.
Now the Council’s
commission of inquiry has undertaken an investigation on “possible
international crimes and violations of international human rights law in Israel
and the Palestinian territories since October 7, 2023.” The Commission’s findings will be delivered to
the Human Rights Council in June 2024.
Given the long-standing
anti-Israel bias of the chairperson, Navi Pillay, as well as several commission
members, what sort of picture it will eventually present is a matter for
speculation. But it is perhaps a
hopeful sign that on October 10 the commission included the following in a
media release: “The taking of hostages is a violation of international law and
constitutes an international crime.”
The International
Committee of the Red Cross (ICRC) has a unique role in the system of
international humanitarian law. It works
on battlefields, reports on the problems encountered, and makes practical
proposals for improving international humanitarian law. Its proposals have led to the revision and
extension of international humanitarian law, notably in 1906, 1929, 1949 and
1977. This special role of the ICRC is
now formally recognized by the states party to the Geneva Conventions – that
is, practically the whole world.
According to the ICRC,
the prohibition on hostage-taking is now “firmly entrenched in customary
international law and is considered a war crime.”
Among the elements of
the offence in international armed conflict are:
1. The perpetrator
seized, detained or otherwise held hostage one or more persons.
2. The perpetrator
threatened to kill, injure or continue to detain such person or persons.
3. The perpetrator
intended to compel a State…to act or refrain from acting as an explicit or
implicit condition for the safety or the release of such person or persons.
On October 11 the
Lieber Institute published a lengthy, detailed and explicit survey of the
provisions in international law regarding the taking of hostages. The Lieber
Institute is situated at West Point and is part of the US Military
Academy. Its purpose is to contribute to
the global dialogue on the complex issues surround the law of war, and to maintain
the primacy of law in today’s armed conflicts.
It seeks to bridge the divide between legal scholarship and battlefield
experience.
The Lieber document explains that the provisions of the law of
armed conflict depend on how a conflict is classified. The ongoing conflict
between Israel and Hamas is best characterized
as non-international in character. Therefore the applicable treaty
law is Common Article 3 of the four 1949 Geneva Conventions, and this
unequivocally forbids hostage-taking. The International Court of Justice has
determined that “The taking of hostages is prohibited.”
The Lieber document goes
on to explain that as a war crime, the offence of hostage-taking is subject to
universal jurisdiction. That means that any
State, even those with no connection to the hostage-taking, is free to prosecute offenders. Many States have
accordingly criminalised the offence in their penal codes.
On the matter of
hostage-taking alone – the unspeakably brutal onslaught on innocent civilians
is an issue in its own right – the Lieber paper adjudges that Hamas has “without
the slightest doubt” violated the law of armed conflict. It concludes: “Hostage-taking was a central
feature of Hamas’s opening salvo in its conflict in Israel…those involved are
subject to worldwide prosecution as war criminals under international criminal
law.”
The basis for this
conclusion is the International Convention against the Taking of Hostages,
a UN treaty under which states agree to prohibit and punish hostage taking.
The creation of an anti-hostage-taking treaty was a project initiated by
the Federal Republic of Germany in 1976. The convention was adopted by
the UN General Assembly in December 1979 and came into force in 1983. As of October 2016, 176 states are party to the
convention.
Too little public
consideration has been given to the likelihood of the Hamas organisation
eventually being found guilty by the UN and other international bodies of the
war crime of hostage-taking, and consequently that its leaders would then be
liable to be arrested, charged and imprisoned in virtually any part of the
world.
All provided that Israel
achieves its primary war aim, and destroys Hamas.
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