Rule 96. Hostage-Taking

Rule 96. The taking of hostages is prohibited.
State practice establishes this rule as a norm of customary international law applicable in both international and non-international armed conflicts.
Common Article 3 of the Geneva Conventions prohibits the taking of hostages.[1] It is also prohibited by the Fourth Geneva Convention and is considered a grave breach thereof.[2] These provisions were to some extent a departure from international law as it stood at that time, articulated in the List (Hostages Trial) case in 1948, in which the US Military Tribunal at Nuremberg did not rule out the possibility of an occupying power taking hostages as a measure of last resort and under certain strict conditions.[3] However, in addition to the provisions in the Geneva Conventions, practice since then shows that the prohibition of hostage-taking is now firmly entrenched in customary international law and is considered a war crime.
The prohibition of hostage-taking is recognized as a fundamental guarantee for civilians and persons hors de combat in Additional Protocols I and II.[4] Under the Statute of the International Criminal Court, the “taking of hostages” constitutes a war crime in both international and non-international armed conflicts.[5] Hostage-taking is also listed as a war crime under the Statutes of the International Criminal Tribunals for the former Yugoslavia and for Rwanda and of the Special Court for Sierra Leone.[6] Numerous military manuals prohibit the taking of hostages.[7] This prohibition is also set forth in the legislation of numerous States.[8]
Instances of hostage-taking, whether in international or non-international armed conflicts, have been condemned by States.[9] International organizations, in particular the United Nations, have also condemned such instances with respect to the Gulf War and the conflicts in Cambodia, Chechnya, El Salvador, Kosovo, Middle East, Sierra Leone, Tajikistan and the former Yugoslavia.[10]
In the Karadžić and Mladić case in 1995 before the International Criminal Tribunal for the former Yugoslavia, the accused were charged with grave breaches for taking UN peacekeepers as hostages. In its review of the indictments, the Tribunal confirmed this charge.[11] In the Blaškić case in 2000, the Tribunal found the accused guilty of the taking of hostages as a violation of the laws and customs of war and the taking of civilians as hostages as a grave breach of the Fourth Geneva Convention.[12] In the Kordić and Čerkez case before the Tribunal in 2001, the accused were found guilty of the grave breach of taking civilians hostage.[13]
The ICRC has called on parties to both international and non-international armed conflicts to refrain from taking hostages.[14]
International human rights law does not specifically prohibit “hostage-taking”, but the practice is prohibited by virtue of non-derogable human rights law because it amounts to an arbitrary deprivation of liberty (see Rule 99). The UN Commission on Human Rights has stated that hostage-taking, wherever and by whoever committed, is an illegal act aimed at the destruction of human rights and is never justifiable.[15] In its General Comment on Article 4 of the International Covenant on Civil and Political Rights (concerning states of emergency), the UN Human Rights Committee stated that States parties may “in no circumstances” invoke a state of emergency “as justification for acting in violation of humanitarian law or peremptory norms of international law, for instance by taking hostages”.[16]
The International Convention against the Taking of Hostages defines the offence as the seizure or detention of a person (the hostage), combined with threatening to kill, to injure or to continue to detain the hostage, 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 of the hostage.[17] The Elements of Crimes for the International Criminal Court uses the same definition but adds that the required behaviour of the third party could be a condition not only for the release of the hostage but also for the safety of the hostage.[18] It is the specific intent that characterizes hostage-taking and distinguishes it from the deprivation of someone’s liberty as an administrative or judicial measure.
Although the prohibition of hostage-taking is specified in the Fourth Geneva Convention and is typically associated with the holding of civilians as hostages, there is no indication that the offence is limited to taking civilians hostage. Common Article 3 of the Geneva Conventions, the Statute of the International Criminal Court and the International Convention against the Taking of Hostages do not limit the offence to the taking of civilians, but apply it to the taking of any person. Indeed, in the Elements of Crimes for the International Criminal Court, the definition applies to the taking of any person protected by the Geneva Conventions.[19]
[1] Geneva Conventions, common Article 3 (cited in Vol. II, Ch. 32, § 2046).
[2] Fourth Geneva Convention, Article 34 (ibid., § 2047) and Article 147 (ibid., § 2048).
[3] United States, Military Tribunal at Nuremberg, List (Hostages Trial) case (ibid., § 2195).
[4] Additional Protocol I, Article 75(2)(c) (adopted by consensus) (ibid., § 2050); Additional Protocol II, Article 4(2)(c) (adopted by consensus) (ibid., § 2051).
[5] ICC Statute, Article 8(2)(a)(viii) and (c)(iii) (ibid., § 2054).
[6] ICTY Statute, Article 2(h) (ibid., § 2062); ICTR Statute, Article 4(c) (ibid., § 2063); Statute of the Special Court for Sierra Leone, Article 3(c) (ibid., § 2055).
[7] See, e.g., the military manuals of Argentina (ibid., § 2068), Australia (ibid., §§ 2069–2070), Belgium (ibid., §§ 2071–2072), Benin (ibid., § 2073), Burkina Faso (ibid., § 2074), Cameroon (ibid., §§ 2075–2076), Canada (ibid., § 2077), Colombia (ibid., § 2078), Congo (ibid., § 2079), Croatia (ibid., §§ 2080–2081), Dominican Republic (ibid., § 2082), Ecuador (ibid., § 2083), France (ibid., §§ 2084–2087), Germany (ibid., § 2088), Hungary (ibid., § 2089), Italy (ibid., §§ 2090–2091), Kenya (ibid., § 2092), Republic of Korea (ibid., § 2093), Madagascar (ibid., § 2094), Mali (ibid., § 2095), Morocco (ibid., § 2096), Netherlands (ibid., § 2097), New Zealand (ibid., § 2098), Nicaragua (ibid., § 2099), Nigeria (ibid., § 2100), Philippines (ibid., § 2101), Romania (ibid., § 2102), Russian Federation (ibid., § 2103), Senegal (ibid., § 2104), South Africa (ibid., § 2105), Spain (ibid., § 2106), Sweden (ibid., § 2107), Switzerland (ibid., § 2108), Togo (ibid., § 2109), United Kingdom (ibid., §§ 2110–2111), United States (ibid., §§ 2112–2115) and Yugoslavia (ibid., § 2116).
[8] See, e.g., the legislation (ibid., §§ 2117–2192).
[9] See, e.g., the statements of Germany (in the context of the conflict in Nagorno-Karabakh) (ibid., § 2198), Italy (ibid., § 2199), Pakistan (in the context of the conflict in Kashmir) (ibid., § 2202), United States (in relation to the Gulf War) (ibid., §§ 2204–2205) and Yugoslavia (ibid., § 2207).
[10] See, e.g., UN Security Council, Res. 664 (ibid., § 2210), Res. 674 (ibid., § 2210), Res. 686 (ibid., § 2210) and Res. 706 (ibid., § 2210); UN Security Council, Statements by the President (ibid., §§ 2211–2212); UN General Assembly, Res. 53/164 (ibid., § 2213); UN Commission on Human Rights, Res. 1992/71 (ibid., § 2214), Res. 1992/S-1/1 (ibid., § 2215), Res. 1995/55 (ibid., § 2216), Res. 1998/60 (ibid., § 2217) and Res. 1998/62 (ibid., § 2218); Council of Europe, Parliamentary Assembly, Res. 950 (ibid., § 2224); European Parliament, Resolution on violations of human rights and humanitarian law in Chechnya (ibid., § 2225); OAS, Permanent Council, Resolution on Hostages in El Salvador (ibid., § 2226).
[11] ICTY, Karadžić and Mladić case, Initial Indictment and Review of the Indictments (ibid., § 2231).
[12] ICTY, Blaškić case, Judgment (ibid., § 2232).
[13] ICTY, Kordić and Čerkez case, Judgment (ibid., § 2233).
[14] See, e.g., ICRC, Memorandum on the Applicability of International Humanitarian Law (ibid., § 2236), Press Release, Tajikistan: ICRC urges respect for humanitarian rules (ibid., § 2238), Communication to the Press No. 93/25 (ibid., § 2240), Memorandum on Respect for International Humanitarian Law in Angola (ibid., § 2241), Memorandum on Compliance with International Humanitarian Law by the Forces Participating in Opération Turquoise (ibid., § 2242), Press Release No. 1793 (ibid., § 2243) and Communication to the Press of ICRC Moscow (ibid., § 2244).
[15] UN Commission on Human Rights, Res. 1998/73 (ibid. , § 2219) and Res. 2001/38 (ibid., § 2220).
[16] UN Human Rights Committee, General Comment No. 29 (Article 4 of the International Covenant on Civil and Political Rights) (ibid., § 2234).
[17] International Convention against the Taking of Hostages, Article 1 (ibid., § 2052).
[18] Elements of Crimes for the ICC, Definition of the taking of hostages as a war crime (ICC Statute, Article 8(2)(a)(viii) and (c)(iii)).
[19] Elements of Crimes for the ICC, Definition of the taking of hostages as a war crime (ICC Statute, Article 8(2)(a)(viii)).