Hamas, Islamic Jihad: Holding Hostages is a War Crime

Human Rights

  • Hamas and Islamic Jihad are committing war crimes by holding scores of Israelis and others as hostages in Gaza and say they will not free them until Palestinian prisoners in Israel are freed.
  • Civilians, including children, people with disabilities, and older people, should never be treated as bargaining chips. No grievance can justify holding anyone hostage.
  • The armed groups should immediately and safely release all civilians detained. Governments that have influence with Hamas should use their leverage to press for hostages to be treated humanely and freed.

(Jerusalem, October 19, 2023) – Hamas and Islamic Jihad are committing war crimes by holding scores of Israelis and others as hostages in Gaza, Human Rights Watch said today. No grievance can justify holding anyone hostage. The groups should immediately and safely release all civilians detained.

As of October 19, 2023, Israeli authorities said that at least 203 hostages were being held in Gaza. In a statement on October 16, the Hamas armed wing said that it was holding about 200 hostages, and that other Palestinian armed groups were holding more. Islamic Jihad has claimed it is holding 30 hostages. In addition, the Hamas armed wing has held two Israeli civilians with psycho-social disabilities hostage for nearly a decade.

“Civilians, including children, people with disabilities, and older people should never be treated as bargaining chips,” said Lama Fakih, Middle East and North Africa director at Human Rights Watch. “Governments that have influence with Hamas, including Qatar, Egypt, and Turkey should use their leverage to press for hostages to be released as soon as possible and treated humanely until then.”

Palestinian fighters seized those being held as hostages on October 7, after breaching the fences between Israel and Gaza, in an operation that the Israeli government said killed more than 1,400 people, hundreds of them civilians. In a recorded message on October 9, the Hamas armed wing threatened to execute hostages.

Hamas has said it will not release the hostages until Israel ends its bombardment of Gaza, and only then in exchange for the release of 5,000 Palestinian prisoners held by Israel, including women and children.

Islamic Jihad has also said that it will not release hostages until Palestinian prisoners are freed. They have made unverified claims that 22 hostages have been killed in Israeli airstrikes in Gaza. As of October 1, Israel held, according to Israeli Prison Services figures, 5,192 Palestinians in custody for “security” offenses, including 1,319 in administrative detention without trial or charge.

The hostages include men, women, and children; at least one of whom has a disability. Some are Israeli military personnel. According to media reports and Human Rights Watch interviews, hostages include dual or foreign nationals, including from Mexico, the United States, and Germany. They also may include at least eight members of the Palestinian Bedouin community in Israel.

In the days following the October 7 attacks, Human Rights Watch interviewed six family members of ten people who are still missing. They said that all of their missing relatives are civilians, including children, older people, and the parent of young children. The Israeli military informed two of those families that their relatives, four in all, were being held as hostages in Gaza.

Family members said they believed that Palestinian fighters took their relatives from several collective farms known as kibbutzim, which are small communities in agricultural areas, in southern Israel, including Nir Oz, Nahal Oz, and Holit, as well as from an outdoor dance party near the Re’im kibbutz. Members of other kibbutzim, including Be’eri, have also said that dozens of members of the community are still unaccounted for and may be being held as hostages. Some of the kibbutzim are less than a kilometer from Gaza.

News organizations have documented the seizure of people inside Israel and their transport to Gaza. The Washington Post, in a visual investigation, reported on the cases of 64 people whom Palestinian fighters had taken on October 7 from Israel into Gaza, 49 of whom appeared to be civilians – including 9 children – 11 who appeared to be Israeli military personnel, and 4 whose civilian status they could not determine.

Human Rights Watch verified one video posted on social media in which a group of men speaking Arabic appear to take into custody a young woman on a motorcycle about four kilometers west of the party site in southern Israel, close to Gaza. The woman, identified by her family in media interviews as 26-year-old Noa Argamani, cries out, “No, don’t kill me,” as other men lead away a man identified as Avinatan Or, her partner, with his hands behind his back. In another video posted on social media on October 7, Argamani is seen alive, apparently being held in Gaza.

In addition to taking hostages, the Hamas-led fighters involved in the offensive massacred hundreds of civilians, including children. They attacked the open-air “Supernova Sukkot Gathering” outdoor dance party, spraying partygoers with gunfire, and killing at least 260 people, according to the Israeli rescue service, Zaka Search and Rescue. Fighters also invaded homes in towns near the border with Gaza, killing civilians. Palestinian armed groups in Gaza have also launched thousands of rockets towards Israeli population centers. Thousands of people in southern Israel have been displaced.

According to Gaza’s Health Ministry, since heavy Israeli bombardment of Gaza began on October 7, more than 3,785 people have been killed, including more than 1,524 children, 1,000 women, and 120 elderly people; around one million people are displaced. Israeli authorities have cut electricity, water, fuel, internet, and food into Gaza, in violation of the international humanitarian law prohibition against collective punishment, and the requirement to facilitate vital supplies, including medical supplies, to civilians. This is exacerbating the dire humanitarian situation created by over 16 years of Israeli closure.

Taking hostages is prohibited under Common Article 3 to the 1949 Geneva Conventions, which applies to the armed conflict between Israel and Hamas, Islamic Jihad, and other Palestinian armed groups, and article 34 of the Fourth Geneva Convention, which applies in occupied territories.

The 2016 Commentary of the International Committee of the Red Cross on Common Article 3 defines hostage-taking as “the seizure, detention or otherwise holding of a person (the hostage) accompanied by the threat to kill, injure or continue to detain that person 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, safety or well-being of the hostage.” Article 8 of the Rome Statute of the International Criminal Court (ICC) similarly defines hostage-taking as a war crime.

Hostage-taking is also linked to other war crimes, including the prohibitions on using captive civilians as human shields, cruel treatment by threatening harm to hostages, and collective punishment. Common Article 3 specifies that everyone in the custody of a party to the conflict “shall in all circumstances be treated humanely,” be protected from “violence to life and person,” and “[t]he wounded and sick shall be … cared for.” As a matter of customary humanitarian law, those deprived of their liberty must be allowed to correspond with their families.

On October 14, at a news conference in Tel Aviv with the families of the hostages and missing persons, family representatives called for the immediate transfer of life-saving medication to the hostages who need them: “Our loved ones … need life-saving drugs. Without the drugs, they will not survive. Time is running out,” one said. Family representatives at the news conference voiced alarm about the well-being of their relatives, due to injuries they sustained during the Hamas-led attack or to chronic and underlying health conditions.

Adva Gutman-Tiroh spoke about her sister, 27-year-old Tamara, who was abducted from the outdoor party. “Tamara suffers from Crohn’s disease,” Adva said. “She could die without her medication and without her medical treatment.”

Qatar, Turkey, and Egypt, as countries that regularly engage and have leverage with Hamas and other Palestinian armed groups, should press for the immediate release of hostages being held in Gaza, Human Rights Watch said.

Those who ordered or carried out hostage-taking or the holding of hostages can be held criminally liable. In addition, Hamas and Islamic Jihad commanders may also be prosecuted as a matter of “command responsibility” if they knew or should have known of crimes being committed by their subordinates and failed to prevent the crimes or punish those responsible.

“Hostage-taking, using human shields, and threatening to kill people in custody are war crimes,” Fakih said. “The International Criminal Court’s prosecutor has made clear that he has a mandate to investigate these abuses.”

Yaffa Adar and Tamir Adar

Orian Adar on October 15 told Human Rights Watch about her grandmother, 85-year-old Yaffa Adar, and 38-year-old uncle, Tamir Adar, who have been missing since Hamas-led fighters raided Kibbutz Nir Oz on October 7, killing and kidnapping people and destroying and setting fire to people’s homes. The kibbutz had a population of 392 people as of 2021, according to the Central Bureau of Statistics.

Both Yaffa and Tamir lived in the kibbutz with 10 other relatives. Tamir, a farmer, is the father of Neta, 3, and Assaf, 7. Orian said that during the attack on the kibbutz, Tamir’s wife and children were in the safe room, while Tamir was outside. The last message from Tamir was sent to his wife at 9 a.m. in which he told her not to open the safe room for anyone, including him.

Orian said she last communicated with her grandmother Yaffa on the morning of October 7. “At around 9 a.m. she posted on our WhatsApp group that there were terrorists in the kibbutz. We didn’t hear anything after that,” Orian said. “At 9:30 a.m. my grandma called my Aunt Vered, but she couldn’t answer and that was it.”

Orian said that Yaffa uses a walker and hearing aid and has a heart condition, kidney disease, chronic pain, and multiple slipped discs. Orian showed researchers a long list of medications that Yaffa takes daily.

On October 7, a video was published on social media showing Yaffa being driven through Gaza in a golf cart, in the custody of Palestinian fighters. Orian said that the Israeli military informed the family that both Yaffa and Tamir were being held as hostages in Gaza.

Shani Louk

Tom Louk on October 14 told Human Rights Watch that his cousin, 22-year-old Shani Louk, was abducted by Palestinian fighters on October 7 from the Supernova Sukkot Gathering dance party. Shani, a dual Israeli and German citizen, was at the party with her boyfriend and some friends. Tom said that the family saw a video online on October 7 of Shani being taken by members of Palestinian armed groups. Human Rights Watch verified and geolocated the video, which shows Shani unconscious and in her underwear. As the truck carrying her drives away, a bystander spits on her.

The family believes that based on the footage, Shani suffered a serious head injury. Tom says the family has received some indications that she may be alive, and they retain “great hope” that she will soon be able to return home.

Chaim Peri

Lior Peri on October 15 told Human Rights Watch that his father, Chaim Peri, 79, was kidnapped by Palestinian fighters from his home in Kibbutz Nir Oz, where he had been living for 60 years. Lior learned about the circumstances surrounding his father’s abduction from Chaim’s wife, Osnat Peri, 71, who was with him at the time of the attack but was not abducted. He said:

[O]n Saturday [October 7] … they started to get WhatsApp messages from the security team of the kibbutz saying “lock your safe rooms” and “stay inside because there might be a penetration”. And then the terrorists arrived … The fighters tried to break into the safe room, but my father had barricaded the door. He was helping his wife to hide behind a small sofa in the safe room. When they came back a second time, he came out of the safe room willingly so they wouldn’t force entry and find her.

Lior said that Osnat heard the fighters come in again and trash the house. She said the military arrived and secured the area about four hours later.

“I scanned whatever part of the internet I could, and asked friends to look on all social networks … [for] any footage of him,” he said. “I only found footage of other members of the kibbutz.” As of October 15, the family had not been contacted by the Israeli government with any additional information about Chaim’s status.

Lior said that of the 330 kibbutz residents, 80 are missing and at least 25 are confirmed dead. He said his brother, Danny Darlington, a 34-year-old United Kingdom citizen, was among those killed. The last time he heard from his brother was on October 7 at 7 a.m. in a text message that read “shit, big balagan (mess) in the kibbutz.”

Judith and Natalie Raanan

In an interview on October 15, Ayelet Sela told Human Rights Watch that her cousin Judith Raanan, 59, has been missing since October 7 along with her daughter, Natalie Raanan, a 17-year-old recent high school graduate. The mother and daughter are dual US and Israeli citizens who live in Illinois in the United States and who were in Kibbutz Nahal Oz on October 7 to celebrate the birthday of Judith’s mother, Tammy, a kibbutz resident. The kibbutz had a population of 470 people as of 2021, according to the Central Bureau of Statistics.

Ayelet said that on October 7, after hearing that there were alarms warning of rocket attacks in the area, she phoned Tammy at around 10 a.m. to check on them. Tammy said they were fine, and that Judith and Natalie were staying in the kibbutz guest house. Ayelet did not hear from them again. She said:

[A]fter a while, Tammy stopped responding […] I started calling Judith’s brother, and he said that he was in touch with Tammy, and they were all fine. But later he told me that a ground incursion had taken place, and civilians were being slaughtered. We started to realize this was severe […] Later we found out no one had been able to contact them since noon.

Later that night, the Israeli military took control of the kibbutz and started evacuating people, Ayelet said. Tammy refused to leave before looking for Judith and Natalie. “They [the military and Tammy] came to the apartment [where Judith and Natalie were staying] and found it ransacked,” Ayelet said. “The doors were taken off the hinges, and the windows were broken, and Judith and Natalie were nowhere to be found.”

Ayelet’s family spoke to a resident of the kibbutz who said they saw Palestinian fighters take both away unharmed during the attack. An official from the Israeli military contacted them to say they were considered kidnapped.

Ayelet said that she also has two second cousins who were taken from Be’eri with their loved ones, and that in all, 10 people from her family are missing, 5 of them presumed kidnapped.

Youssef, Hamza, Bilal, and Aisha al-Zayadna

Daham al-Zayadna on October 14 told Human Rights Watch that four of his relatives – his cousin Youssef al-Zayadna, 53, and Youssef’s sons Hamza, 22, and Bilal, 19, and daughter, Aisha, 17 – were all last seen in the custody of Palestinian armed groups who attacked Kibbutz Holit, where they were day laborers.

Daham and his family live in a Palestinian Bedouin village in the Negev region that is unrecognized by the Israeli government. Daham said that Youssef and his sons do farm work at the kibbutz. On October 7, Aisha also went there with them to harvest olives. After the attack on the kibbutz, the family could not reach Youssef, and Daham said that at about 10 a.m. they saw a photo posted online of Bilal and Hamza on the ground, with fighters pointing guns at them. Daham added that the person in charge of the kibbutz farm contacted him days later to tell him that CCTV footage from the farm entrance captured images of Youssef and Aisha being taken away by fighters.

“Youssef’s wife and other kids cannot even speak,” Daham said. “It is too difficult for them.”

Daham said that he spoke with someone he knows in the Israeli military who told him informally that the military had no information about the status of Youssef and his three children and the four other members of the Palestinian Bedouin community in Israel who have been reported missing since October 7.

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