Treaties, States Parties and Commentaries
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Commentary of 1958 

1. ' Definition and historical survey '

The word "hostage" has stood for rather different conceptions. It is not, therefore, easy to give a definition of it valid for every case. Generally speaking, hostages are nationals of a belligerent State who of their own free will or through compulsion are in the hands of the enemy and are answerable with their freedom or their life for the execution of his orders and the security of his armed forces.
In the beginning, the hostage constituted a guarantee by the adversary that a treaty would be carried out; hostages were given [p.230] as a pledge or a safeguard; this practice, which is very ancient, has now disappeared. The modern form, with which this Article is concerned, is the taking of hostages as a means of intimidating the population in order to weaken its spirit of resistance and to prevent breaches of the law and sabotage in order to ensure the security of the Detaining Power.

(a) The most frequent case is that of an Occupying Power taking as
hostages persons generally selected from among prominent persons in a
city or a district in order to prevent disorders or attacks on
occupation troops.

(b) Another form of the taking of hostages which is very close to (a)
consists of arresting after an attack a certain number of inhabitants
of the occupied territory and announcing that they will be kept
captive or executed if the guilty are not given up.

(c) Resort has also been had to the taking of hostages to guarantee the
life of persons themselves detained as hostages by the adverse Party.

(d) Hostages have also been taken and kept prisoner by the occupying
Power in order to obtain the delivery of foodstuffs and supplies or
the payment of an indemnity, etc.

(e) Finally, the practice of taking so-called accompanying hostages
consists of placing inhabitants of occupied territory on board lorry
convoys or trains in order to prevent attacks by their
compatriots (2).

These are examples. In accordance with the spirit of the Convention, the word "hostages" must be understood in the widest possible sense.
During the last two world wars, hostages were imprisoned, often put in solitary confinement, deported and in many cases executed without previous warning or trial.
The International Committee of the Red Cross considered that the prohibition of such practices, which are based on contempt for the principle of individual responsibility for breaches of the law, must be one of the essential elements in the new Convention. In the Tokyo Draft submitted to the XVth International Red Cross Conference in 1934, it had devoted two provisions to the question of hostages: Article 4, applicable to enemy civilians in the territory of a belligerent and forbidding the taking of hostages, and Article 19 regarding enemy civilians in occupied territory and according to which if, "in an [p.231] exceptional case", it appeared indispensable for an Occupying Power to take hostages, they should always be treated humanely; under no pretext should they be put to death or subjected to corporal punishment (3). During the Second World War, the Committee on several occasions made representations to the Governments and Red Cross Societies in the belligerent countries, urging them to respect, even in face of military considerations, the natural
right of man not to be subjected to arbitrary treatment and not to be made responsible for acts he has not committed (4). During the work of revising and preparing the Convention, between 1945 and 1949, the Committee considered that the moment had come to state clearly that the taking of hostages was forbidden. The very short text which it had put forward was approved at all preparatory meetings and adopted without change by the Diplomatic Conference.

2. ' Absolute nature of the provision '

This Article, coming at the very end of the provisions common to the four Conventions, is absolute in character. It applies to persons protected under the terms of Article 4 in the territory of the belligerent or in occupied territory, in the case of international conflict or in that of civil war. It supplements Article 33 which embodies the principle of individual responsibility and the prohibition of collective penalties and measures of reprisal. The two Articles bring positive law into line with the principles of justice and humanity.
While it is true that Article 5 of the Convention provides for certain exceptions to its application in cases where the security of the State or of the Occupying Power may be threatened, these exceptions could not be taken to extend as far as not applying the fundamental rules such as those in Articles 33 and 34. Paragraph 3 of Article 5 in any case provides every guarantee in this respect.

Notes: (1) [(1) p.229] See C. PILLOUD: ' La question des otages et
les conventions de Genève, ' Revue internationale de la
Croix-Rouge, 1950, pp. 430-447. For different aspects of
the question of hostages, the following should also be
' Annuaire de l'Institut de droit international, '
1913, tome VI, pp. 1113-1114.
' Bellot Regulations of Laws of War in Occupied
Territory, ' Article 29, in ' The International Law
Association, Report of the 35th Conference, ' Warsaw,
1928, p. 287.
' Report of Robert H. Jackson; United States
representative to the International Conference on Military
Trials. ' Department of State, 1949.
' Jugement du Tribunal militaire international, '
Paris, p. 22.
' Revue de droit international, de sciences
diplomatiques et politiques, ' 1948, p. 109.
' Lord Wright: The Killing of Hostages as a War
Crime, British Year Book ' of International Law, 1938, pp.
296 sq.; ' Nispen tot Sevenaer, La Prise d'otages, ' The
Hague, 1949, pp. 123 sq. ' Revue ' (Belgian) ' de Droit
pénal et de criminologie, ' 1948-1949, pp. 986-995;

(2) [(1) p.230] See also Article 28, p. 208;

(3) [(1) p.231] See ' Conference diplomatique pour la revision
et la conclusion d'accords relatifs à la Croix-Rouge, '
document préliminaire nã 6, Berne, January 1939, p. 12;

(4) [(2) p.231] See ' Appeal of the International Committee of
the Red Cross, ' Geneva, July 24, 1943;