Article by Prof. Yaël Ronen, Academic Center for Science and Law, Hod Hasharon; Minerva Center for Human Rights, Hebrew University of Jerusalem

In the early morning hours of October 7, 2023, Hamas launched a massive rocket barrage on civilian areas in southern and central Israel. At the same time, Hamas militants and other persons crossed from Gaza into Israeli territory and attacked numerous Israeli towns and communities in the vicinity of the Gaza Strip. They intentionally killed and injured hundreds of civilians. The confirmed death toll of this attack has exceeded 1,200. Over 3,300 others have been wounded.

Over the course of the same day, some 250 persons were abducted by militants to the Gaza Strip, where they have since been held by Hamas and associated armed groups, such as the Islamic Jihad and the Al-Kassam Brigades (Izz ad-Din al-Kassam). Among the hostages are persons in situations of special vulnerability, namely women, children, older persons, and persons with disabilities. Hamas leaders confirmed that the organization was holding 200 captives, with other groups holding 50 more.

As of mid-February 2024, 112 hostages have returned to Israel alive through one exchange deal and two military rescue operations. Eleven other hostages have been killed and their bodies were recovered. According to reports, 134 hostages remain in captivity, and it is estimated that only 106 of them are still alive.

Human Rights violated by the taking of hostages

The taking of the hostages is a violation of numerous human rights. The deprivation of individuals of their liberty, followed by the refusal to disclose their fate or whereabouts places Hamas’s conduct squarely within the definitions of enforced or involuntary disappearance and arbitrary detention. In addition, accounts by released hostages confirm that physical and mental harm is intentionally inflicted on the hostages, including sexual violence, as well as 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. The hostages are particularly vulnerable to extrajudicial killings,[1] and Hamas has declared numerous hostages dead.

Hamas’ obligations under international human rights law

Since Hamas is an organized armed group, its obligations are often considered in the framework of international humanitarian law (IHL). This does not dispose of the need to consider Hamas’ obligations under international human rights law (IHRL). Notwithstanding the significant substantive overlap between IHL and IHRL, the identification of obligations under IHRL is important because of the institutional mechanisms that exist to ensure respect and protection of IHRL, principally through UN organs and bodies.

While international human rights treaties impose direct obligations only on States, there is a growing appreciation that IHRL extends not only to States but also to non-State actors.[2] IHRL obligations exist first and foremost for non-State actors that exercise effective control over territory.[3] Different doctrinal bases have been put forward for this view, which is reflected in international practice, primarily that of the UN special procedures.

One doctrinal basis for the obligation of non-State actors is the peremptory character of certain human rights norms.[4] As the governing entity in the Gaza Strip, Hamas is thus directly bound by certain international human rights obligations. Perhaps most prominent is the prohibition on torture. This view found expression in the jurisprudence of the Committee Against Torture[5] and of the UK Supreme Court.[6]

Another widely recognized doctrinal basis for the obligations of non-State actors is the exercise of effective territorial control.[7] Hamas’ obligations based on its government-like functions and control have long been recognized by the Human Rights Council.[8] Similarly, in February 2023, nine Special Procedures’ mandate holders issued a joint statement of concern following reports of alleged enforced disappearance as violations of the CRC when committed by de facto authorities in north-east Syria.[9]  

Perhaps most explicit in asserting the authority to address non-State actors is the Working Group on Enforced Involuntary Disappearances. In February 2023, the Working Group revised its work methods to incorporate reports of cases “tantamount to enforced disappearances” attributed to non-State actors exercising government-like functions or de facto control over territory and population.[10] In this light, as early as 2022, the Working Group has transmitted communications regarding cases tantamount to enforced disappearance to Hamas.[11] No response was received. In July 2023, it transmitted a general allegation to the de facto authorities in Yemen.[12] Following the 7 October 2023 abduction, the Working Group sent a communication to Hamas regarding cases tantamount to enforced disappearances which occurred in Israel on that day.[13] Again, the Working Group has received no response.

Where non-State actors have displaced the government and have established exclusive territorial control, their obligation extends not only to the respect of rights, but also to the protection of human rights in the territory under their control.[14] Thus, as the authority exercising exclusive de facto governmental powers in the Gaza Strip, Hamas is obligated to protect the human rights of individuals held within the territory under its control by other armed groups. That Hamas is capable of controlling these groups was demonstrated by the fact that the hostage deal carried out by Israel and Hamas in late November included the release of a hostage who had been held by the Islamic Jihad.

Conclusion

Hamas is much more than an organized armed group. Its effective control over the territory and population of Gaza requires that its conduct and obligations be considered through the lens of IHRL. This means that The UN special procedures have the mandate and the task of holding Hamas to account for its violation of the fundamental human rights of the hostages in the Gaza Strip. Compliance with these obligations requires the immediate and unconditional release of all hostages. Pending their release, they are all entitled to be treated with humanity and respect. This means not only the absolute respect of the inviolability of their physical and mental integrity, but also the provision of proper medical care and supply of essential medication for those who need it, and the provision of information regarding the hostages and means of communication with them.