I. IN TIMES OF ARMED CONFLICT

IHL is clear: taking and executing hostages is prohibited. Such acts are war crimes in both international and non-international armed conflict (GCI-IV, Common art. 3; GCIV, arts. 34 and 147; API, art. 75). Perpetrators can be tried before any national court under the principle of universal jurisdiction. This is possible as long as the State in question has incorporated this obligation (derived from the Geneva Conventions) into its domestic laws.

The Statute of the Nuremberg Military Tribunal, set up after World War II, unambiguously asserts that such acts are war crimes. This is also reflected in its judgments, (as established by the United Nations (UN) International Law Commission in June 1950). This is further reinforced by the Rome Statute of the International Criminal Court (ICC), adopted 17 July 1998 and entered into force on 1 July 2002. The Rome Statute categorically defines taking hostages in an international or non-international armed conflict as a war crime, which comes under the Court’s jurisdiction (arts. 8(2)(a)(viii) and 8(2)(c)(iii) of the Rome Statute). Consequently, in accordance with the conditions of its jurisdiction, the ICC is therefore able to judge and prosecute individuals accused of taking hostages, provided that certain conditions pertaining to the Court’s operations are met. Furthermore, IHL explicitly prohibits the use of human shields.

This rule has gained customary international law status. Indeed, Rule 96 of the study on the rules of customary IHL published by the ICRC in 2005 provides that “the taking of hostages is prohibited” both in international and non-international armed conflicts.

Commentary of the Fourth Geneva Conventions recall that the term “hostage” must be understood in the broadest sense in the context of armed conflict. This includes anyone unlawfully deprived of their freedom, often wantonly and sometimes under threat of death by parties to the armed conflict to obtain some military advantage in their conduct of hostilities. This broad interpretation has been confirmed by the decisions of international tribunals. To be considered hostages, detainees must have been used by the party to the conflict to obtain some advantage or to ensure that a belligerent, other person or other group of persons enter into some undertaking. ( Prosecutor v. Tihomir Blaskic , Case no. IT-95-14-T, Judgment, 3 March 2000, paras. 158 and 187).

➔ Human shield ▸ International Criminal Court ▸ Protected Persons ▸ Universal jurisdiction ▸ War crimes/Crimes against humanity

II. IN TIMES OF PEACE OR INTERNAL DISTURBANCES AND TENSION

The International Convention against the Taking of Hostages was adopted on 17 December 1979, by the UN General Assembly (Resolution 34/146). The Convention entered into force in 1983 and had 176 States Parties as of May 2024.

Article 12 of the Convention expressly states that its provisions do not apply in times of armed conflict, in which case humanitarian law is applicable.

Article 1 of the Convention defines a hostage-taker as:

“Any person who seizes or detains and threatens to kill, to injure or to continue to detain another person (hereinafter referred to as the “hostage”) in order to compel a third party, namely, a State, an international intergovernmental organization, a natural or juridical person, or a group of persons, to do or to abstain from doing any act as an explicit or implicit condition for the release of the hostage, commits the offence of taking hostages (“hostage-taking”) within the meaning of this Convention.

The Convention further specifies that not only those who commit such an act but also any person who attempts to commit or who participates as an accomplice in such an act or attempt is accountable and must be punished. The States Parties to the Convention undertake to punish such offenses (arts. 1(2) and 2).

They must therefore adapt their domestic legislation and take such measures as may be necessary to establish their jurisdiction over any of the offences set forth in article 1 which are committed:

“(a) in its territory or on board a ship or aircraft registered in that State;

2. by any of its nationals or, if that State considers it appropriate, by those stateless persons who have their habitual residence in its territory;
3. in order to compel that State to do or abstain from doing any act; or
4. with respect to a hostage who is a national of that State, if that State considers it appropriate.” (art. 5) In case an alleged offender is on the territory of a participant State and the State does not extradite him or her, the State is under the obligation, without exception whatsoever, and whether or not the offense was committed in its territory, to judge that person (art. 8).

➔ Mutual assistance in criminal matters ▸ Universal jurisdiction