Related Rule
United States of America
Practice Relating to Rule 96. Hostage-Taking
The US Field Manual (1956) restates common Article 3 of the 1949 Geneva Conventions and provides that the “taking of hostages” is a war crime under the 1949 Geneva Convention IV. 
United States, Field Manual 27-10, The Law of Land Warfare, US Department of the Army, 18 July 1956, as modified by Change No. 1, 15 July 1976, §§ 11 and 502(c).
The US Air Force Pamphlet (1976) states that hostage-taking is a grave breach of the 1949 Geneva Conventions. 
United States, Air Force Pamphlet 110-31, International Law – The Conduct of Armed Conflict and Air Operations, US Department of the Air Force, 1976, § 15-3(c).
The US Instructor’s Guide (1985) prohibits hostage-taking and specifies that it is a grave breach of the 1949 Geneva Conventions. 
United States, Instructor’s Guide – The Law of War, Headquarters Department of the Army, Washington, April 1985, p. 8.
The US Naval Handbook (1995) provides: “Enemy civilians may not be interned as hostages.” 
United States, The Commander’s Handbook on the Law of Naval Operations, NWP 1-14M/MCWP 5-2.1/COMDTPUB P5800.7, issued by the Department of the Navy, Office of the Chief of Naval Operations and Headquarters, US Marine Corps, and Department of Transportation, US Coast Guard, October 1995 (formerly NWP 9 (Rev. A)/FMFM 1–10, October 1989), § 11-8.
The US Manual for Military Commissions (2007), Part IV, Crimes and Elements, includes in the list of crimes triable by military commissions:
TAKING HOSTAGES.
a. Text. “Any person subject to this chapter who, having knowingly seized or detained one or more persons, threatens to kill, injure, or continue to detain such person or persons with the intent of compelling any nation, person other than the hostage, or group of persons to act or refrain from acting as an explicit or implicit condition for the safety or release of such person or persons, shall be punished, if death results to one or more of the victims, by death or such other punishment as a military commission under this chapter may direct, and, if death does not result to any of the victims, by such punishment, other than death, as a military commission under this chapter may direct.”
b. Elements.
(1) The accused seized, detained, or held hostage one or more persons;
(2) The accused threatened to kill, injure, or continue to detain such person or persons;
(3) The accused intended to compel a State, an international organization, a natural or legal person, or a group of persons, to act or refrain from acting as an explicit or implicit condition for the safety or release of such person; and
(4) The conduct took place in the context of and was associated with armed conflict.
c. Comment. This offense cannot be committed by lawfully detaining enemy combatants or other individuals as authorized by law of armed conflict.
d. Maximum punishment. Death, if the death of any person occurs as a result of the hostage taking. Otherwise, confinement for life. 
United States, Manual for Military Commissions, published in implementation of the Military Commissions Act of 2006, 10 U.S.C. §§ 948a, et seq., 18 January 2007, Part IV, § 6(7), p. IV-6.
The US Naval Handbook (2007) states that “the following acts are prohibited with respect to detainees in DOD [Department of Defense] custody and control: … Taking of hostages”. 
United States, The Commander’s Handbook on the Law of Naval Operations, NWP 1-14M/MCWP 5-12.1/COMDTPUB P5800.7, issued by the Department of the Navy, Office of the Chief of Naval Operations and Headquarters, US Marine Corps, and Department of Homeland Security, US Coast Guard, July 2007, § 11.2.
The Handbook further states: “Civilians of an enemy nation may not be interned as hostages.” 
United States, The Commander’s Handbook on the Law of Naval Operations, NWP 1-14M/MCWP 5-12.1/COMDTPUB P5800.7, issued by the Department of the Navy, Office of the Chief of Naval Operations and Headquarters, US Marine Corps, and Department of Homeland Security, US Coast Guard, July 2007, § 11.5.
The US Manual on Detainee Operations (2008) states:
As a subset of military operations, detainee operations must comply with the law of war during all armed conflicts …
… Common Article 3 to the Geneva Conventions of 1949, as construed and applied by U.S. law, establishes minimum standards for the humane treatment of all persons detained by the United States, coalition, and allied forces. Common Article 3 prohibits at any time and in any place: “… taking of hostages … ”. 
United States, Manual on Detainee Operations, Joint Chiefs of Staff, 30 May 2008, pp. I-2–I-3.
The manual further states:
DODD 2310.01E [Department of Defense Directive, The Department of Defense Detainee Program] requires that all DOD [Department of Defense] personnel and contractors will apply, without regard to a detainee’s legal status, at a minimum, the standards articulated in Common Article 3 to the Geneva Conventions of 1949 …
Article 3 Common to the Geneva Convention of 1949
In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each Party to the conflict shall be bound to apply, as a minimum, the following provisions:
(1) Persons taking no active part in the hostilities … shall in all circumstances be treated humanely …
To this end, the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons:
(b) taking of hostages. 
United States, Manual on Detainee Operations, Joint Chiefs of Staff, 30 May 2008, pp. III-11–III-12.
The US Manual for Military Commissions (2010), Part IV, Crimes and Elements, includes in the list of crimes triable by military commissions:
TAKING HOSTAGES.
a. Text. “Any person subject to this chapter who, having knowingly seized or detained one or more persons, threatens to kill, injure, or continue to detain such person or persons with the intent of compelling any nation, person other than the hostage, or group of persons to act or refrain from acting as an explicit or implicit condition for the safety or release of such person or persons, shall be punished, if death results to one or more of the victims, by death or such other punishment as a military commission under this chapter may direct, and, if death does not result to any of the victims, by such punishment, other than death, as a military commission under this chapter may direct.”
b. Elements.
(1) The accused seized, detained, or held hostage one or more persons;
(2) The accused threatened to kill, injure, or continue to detain such person or persons;
(3) The accused intended to compel a State, an international organization, a natural or legal person, or a group of persons, to act or refrain from acting as an explicit or implicit condition for the safety or release of such person; and
(4) The conduct took place in the context of and was associated with hostilities.
c. Maximum punishment. Death, if the death of any person occurs as a result of the hostage taking. Otherwise, confinement for life. 
United States, Manual for Military Commissions, published in implementation of Chapter 47A of Title 10, United States Code, as amended by the Military Commissions Act of 2009, 10 U.S.C, §§ 948a, et seq., 27 April 2010, § 5(7), pp. IV-6 and IV-7.
Under the US War Crimes Act (1996), violations of common Article 3 and grave breaches of the 1949 Geneva Conventions are war crimes. 
United States, War Crimes Act, 1996, Section 2441(c).
The US War Crimes Act (1996), as amended by the US Military Commissions Act (2006), includes in its definition of war crimes any conduct constituting a grave breach of common Article 3 of the 1949 Geneva Conventions:
§ 2441. War crimes
(c) Definition.—As used in this section the term “war crime” means any conduct—
(3) which constitutes a grave breach of common Article 3 (as defined in subsection (d)) when committed in the context of and in association with an armed conflict not of an international character; or
(d) Common Article 3 Violations.—
(1) Prohibited conduct.—In subsection (c)(3), the term “grave breach of common Article 3” means any conduct (such conduct constituting a grave breach of common Article 3 of the international conventions done at Geneva August 12, 1949), as follows:
(I) Taking hostages.—The act of a person who, having knowingly seized or detained one or more persons, threatens to kill, injure, or continue to detain such person or persons with the intent of compelling any nation, person other than the hostage, or group of persons to act or refrain from acting as an explicit or implicit condition for the safety or release of such person or persons.
(4) Inapplicability of taking hostages to prisoner exchange.—Paragraph (1)(I) does not apply to an offense under subsection (a) by reason of subsection (c)(3) in the case of a prisoner exchange during wartime.
(5) Definition of grave breaches.—The definitions in this subsection are intended only to define the grave breaches of common Article 3 and not the full scope of United States obligations under that Article. 
United States, War Crimes Act, 1996, 18 United States Code Sec. 2441, as amended by Military Commissions Act, 2006, 17 October 2006, § 2441 (c)(3) and (d).
In July 2006, the US Deputy Secretary of Defense issued a memorandum to senior military and civilian personnel in the Department of Defense (DoD) on the subject of common Article 3 of the 1949 Geneva Conventions and its application to the treatment of detainees:
The Supreme Court Hamdan v. Rumsfeld, 548 US 557, 29 June 2006] has determined that Common Article 3 to the Geneva Conventions of 1949 applies as a matter of law to the conflict with Al Qaeda. The Court found that the military commissions as constituted by the Department of Defense are not consistent with Common Article 3.
It is my understanding that, aside from the military commission procedures, existing DoD orders, policies, directives, execute orders, and doctrine comply with the standards of Common Article 3 … In addition, you will recall the President’s prior directive [President George W. Bush, Memorandum, Humane Treatment of Al Qaeda and Taliban Detainees, 7 February 2002] that “the United States Armed Forces shall continue to treat detainees humanely,” humane treatment being the overarching requirement of Common Article 3.
You will ensure that all DoD personnel adhere to these standards. In this regard, I request that you promptly review all relevant directives, regulations, policies, practices and procedures under your purview to ensure that they comply with the standards of Common Article 3. 
United States, Department of Defense, Deputy Secretary of Defense, Gordon England, Memorandum, Application of Common Article 3 of the Geneva Conventions to the Treatment of Detainees in the Department of Defense, 7 July 2006.
The US Military Commissions Act (2006), passed by Congress following the Supreme Court’s decision in Hamdan v. Rumsfeld in 2006, amends Title 10 of the United States Code as follows:
§ 950v. Crimes triable by military commissions
“ …
“(b) OFFENSES.—The following offenses shall be triable by military commission under this chapter at any time without limitation:
“ …
“(7) TAKING HOSTAGES.—Any person subject to this chapter who, having knowingly seized or detained one or more persons, threatens to kill, injure, or continue to detain such person or persons with the intent of compelling any nation, person other than the hostage, or group of persons to act or refrain from acting as an explicit or implicit condition for the safety or release of such person or persons, shall be punished, if death results to one or more of the victims, by death or such other punishment as a military commission under this chapter may direct, and, if death does not result to any of the victims, by such punishment, other than death, as a military commission under this chapter may direct. 
United States, Military Commissions Act, 2006, Public Law 109-366, Chapter 47A of Title 10 of the United States Code, 17 October 2006, p. 120 Stat. 2626, § 950v (b) (7).
The Military Commissions Act also states:
Sec. 6. Implementation of Treaty Obligations
“ …
“(b) REVISION TO WAR CRIMES OFFENSE UNDER FEDERAL CRIMINAL CODE.—
“(1) IN GENERAL.—Section 2441 of title 18, United States Code, is amended—
“ …
“(B) by adding at the end the following new subsection:
“(d) COMMON ARTICLE 3 VIOLATIONS.—
“(1) PROHIBITED CONDUCT.—In subsection (c)(3), the term ‘grave breach of common Article 3’ means any conduct (such conduct constituting a grave breach of common Article 3 of the international conventions done at Geneva August 12, 1949), as follows:
“ …
(I) TAKING HOSTAGES.—The act of a person who, having knowingly seized or detained one or more persons, threatens to kill, injure, or continue to detain such person or persons with the intent of compelling any nation, person other than the hostage, or group of persons to act or refrain from acting as an explicit or implicit condition for the safety or release of such person or persons. 
United States, Military Commissions Act, 2006, Public Law 109-366, Chapter 47A of Title 10 of the United States Code, 17 October 2006, p. 120 Stat. 2634, Sec. 6(b) (1) (B) (d) (1) (I).
In July 2007, and in accordance with section 6(a)(3) of the Military Commissions Act (2006), the US President issued an Executive Order which stated that a “Program of Detention and Interrogation Operated by the Central Intelligence Agency” complied with US obligations under common Article 3 of the 1949 Geneva Conventions. The Executive Order stated in part:
Sec. 3. Compliance of a Central Intelligence Agency Detention and Interrogation Program with Common Article 3.
(a) Pursuant to the authority of the President under the Constitution and the laws of the United States, including the Military Commissions Act of 2006, this order interprets the meaning and application of the text of Common Article 3 with respect to certain detentions and interrogations, and shall be treated as authoritative for all purposes as a matter of United States law, including satisfaction of the international obligations of the United States. I hereby determine that Common Article 3 shall apply to a program of detention and interrogation operated by the Central Intelligence Agency as set forth in this section. The requirements set forth in this section shall be applied with respect to detainees in such program without adverse distinction as to their race, color, religion or faith, sex, birth, or wealth.
(b) I hereby determine that a program of detention and interrogation approved by the Director of the Central Intelligence Agency fully complies with the obligations of the United States under Common Article 3, provided that:
(i) the conditions of confinement and interrogation practices of the program do not include:
(B) any of the acts prohibited by section 2441(d) of title 18, United States Code, including murder, torture, cruel or inhuman treatment, mutilation or maiming, intentionally causing serious bodily injury, rape, sexual assault or abuse, taking of hostages, or performing of biological experiments. 
United States, Executive Order 13440, Interpretation of the Geneva Conventions Common Article 3 as Applied to a Program of Detention and Interrogation Operated by the Central Intelligence Agency, 20 July 2007.
The US Military Commissions Act (2009) amends Chapter 47A of Title 10 of the United States Code as follows:
§ 950t. Crimes triable by military commission
“The following offenses shall be triable by military commission under this chapter at any time without limitation:
“ …
“(7) TAKING HOSTAGES.—Any person subject to this chapter who, having knowingly seized or detained one or more persons, threatens to kill, injure, or continue to detain such person or persons with the intent of compelling any nation, person other than the hostage, or group of persons to act or refrain from acting as an explicit or implicit condition for the safety or release of such person or persons, shall be punished, if death results to one or more of the victims, by death or such other punishment as a military commission under this chapter may direct, and, if death does not result to any of the victims, by such punishment, other than death, as a military commission under this chapter may direct. 
United States, Military Commissions Act, 2009, § 950t(7).
In its judgement in the List case (The Hostages Trial) in 1948, the US Military Tribunal at Nuremberg considered the right to take hostages from the innocent civilian population of an occupied territory and stated:
Certain rules of customary law … lay down the rules applicable to the subject of hostages.
The term “hostages” will be considered as those persons of the civilian population who are taken into custody for the purpose of guaranteeing with their lives the future good conduct of the population of the community from which they were taken.
The Tribunal further stated:
The occupant may properly insist upon compliance with regulations necessary to the security of the occupying forces and for the maintenance of law and order. In the accomplishment of this objective, the occupant may, only as a last resort, take and execute hostages … The occupant is required to use every available method to secure order and tranquility before … taking and execution of hostages.
If attacks upon troops and military installations [continue to] occur … hostages may be taken from the population to deter similar acts in the future provided it can be shown that the population generally is a party to the offence, either actively or passively.
It is essential to a lawful taking of hostages under customary law that proclamation be made, giving the names and addresses of hostages taken, notifying the population that upon the recurrence of stated acts of war treason that the hostages will be shot … Unless the foregoing requirements are met, the shooting of hostages is … a war crime in itself. 
United States, Military Tribunal at Nuremberg, List case (The Hostages Trial), Judgment, 19 February 1948.
In 1987, the Deputy legal adviser of the US Department of State affirmed: “We support the principle that [all persons who are in the power of a party to a conflict and who do not benefit from more favorable treatment under the Conventions] not be subjected to … the taking of hostages”. He added that “the basic core of [the 1977 Additional Protocol II] is, of course, reflected in common Article 3 of the 1949 [Geneva] Conventions and therefore is, and should be, a part of generally accepted customary law. This specifically includes its prohibitions on … hostagetaking.” 
United States, Remarks of Michael J. Matheson, Deputy Legal Adviser, US Department of State, The Sixth Annual American Red Cross-Washington College of Law Conference on International Humanitarian Law: A Workshop on Customary International Law and the 1977 Protocols Additional to the 1949 Geneva Conventions, American Journal of International Law and Policy, Vol. 2, 1987, pp. 427 and 430–431.
In 1991, in a letter to the President of the UN Security Council, the United States protested against “the announcement of the intention of the Government of Iraq to hold prisoners of war as hostages … in flagrant violation of the Third Geneva Convention of 1949”.  
United States, Letter dated 21 January 1991 to the President of the UN Security Council, UN Doc. S/22122, 21 January 1991.
In 1992, in its final report to Congress on the conduct of the Gulf War, the US Department of Defense stated:
Whatever the purpose, whether for intimidation, concessions, reprisal, or to render areas or legitimate military objects immune from military operations, the taking of hostages is unequivocally and expressly prohibited by Article 34 [of the 1949 Geneva Convention IV] …
The taking of hostages … constitute Grave Breaches (that is, major violations of the law of war) under Article 147 [of the 1949 Geneva Convention IV]. 
United States, Department of Defense, Final Report to Congress on the Conduct of the Persian Gulf War, 10 April 1992, Appendix O, The Role of the Law of War, ILM, Vol. 31, 1992, pp. 617–618 and 624.
The report listed Iraqi war crimes, including the taking of hostages. 
United States, Department of Defense, Final Report to Congress on the Conduct of the Persian Gulf War, 10 April 1992, Appendix O, The Role of the Law of War, ILM, Vol. 31, 1992, p. 632.
The report also mentioned some specific Iraqi war crimes:
–the taking of Kuwaiti nationals as hostages … in violation of Articles 34 … and 147 [of the 1949 Geneva Convention IV].
–the taking of third nationals in Kuwait as hostages … in violation of Articles 34 … and 147 [of the 1949 Geneva Convention IV].
–the taking of third nationals in Iraq as hostages … in violation of Articles 34 … and 147 [of the 1949 Geneva Convention IV]. 
United States, Department of Defense, Final Report to Congress on the Conduct of the Persian Gulf War, 10 April 1992, Appendix O, The Role of the Law of War, ILM, Vol. 31, 1992, p. 634.
According to the Report on US Practice, “Articles 4, 5 and 6 [of the 1977 Additional Protocol II] reflect general US policy on treatment of persons in the power of an adverse party in armed conflicts governed by common Article 3” of the 1949 Geneva Conventions. The report also notes: “It is the opinio juris of the US that persons detained in connection with an internal armed conflict are entitled to humane treatment as specified in Articles 4, 5 and 6 [of the 1977 Additional Protocol II].” 
Report on US Practice, 1997, Chapter 5.3.