Fliers posted by families of Israelis held hostage by Hamas in the Gaza Strip outside the Israeli Defense Ministry in Tel Aviv, Oct. 14, 2023. Photo by Avshalom Sassoni/Flash90.
Fliers posted by families of Israelis held hostage by Hamas in the Gaza Strip outside the Israeli Defense Ministry in Tel Aviv, Oct. 14, 2023. Photo by Avshalom Sassoni/Flash90.
featureIsrael at War

Legal experts slam Hamas amid concern for captives with medical issues

The Hostages and Missing Forum, a group representing the families of those captured by Hamas on Oct. 7, are demanding the immediate establishment of a humanitarian corridor for the delivery of essential medical care.

On Monday, Hamas released a video of Mia Shem, 21, one of at least 199 people taken hostage by the Palestinian terrorist group during its Oct. 7 assault on southern Israel, which left over 1,400 dead and more than 4,100 wounded.

In the video, Shem, who holds both French and Israeli citizenship, can be seen apparently receiving treatment for a severe arm wound.

According to representatives of the hostages’ families, many of the other captives are in desperate need of medical attention.

Mor Hershkovitz, the head of data operations with The Hostages and Missing Families Forum’s medical team, told JNS that many are in critical condition or might even already be dead. 

“Some suffer from serious heart and kidney conditions and should be taking blood-thinning medication. Others were wounded during their brutal kidnapping,” said Hershkovitz. Some of these wounds could lead to death within hours or even minutes, she added.

Dr. Hagai Levine, chairman of the Israel Association of Public Health Physicians, and a team of experts have compiled a report on hostages at risk.

The team used data provided by the hostages’ families on preexisting medical conditions, along with footage of the abductees being taken into Gaza and eyewitness testimonies to establish their health status. 

Rotem Grosman, the Forum medical team’s media liaison, said the group is calling for the immediate establishment of a humanitarian corridor to facilitate the delivery of essential medications.

International law

Alan Baker, a former legal adviser to Israel’s Foreign Ministry and ambassador to Canada and presently director of the legal program at the Jerusalem Center for Public Affairs, said that even though Hamas is not a state actor, it is bound by international conventions with regard to the treatment of hostages. 

“[Hamas is in] violation of the 1979 International Convention against the Taking of Hostages,” said Baker, adding that taking captives is listed as a crime by the International Criminal Court. “Despite the fact that Hamas is not a state party to the international conventions, it is obliged to observe the accepted norms of humanitarian law in as much as it has openly declared that it is at war with Israel,” he said.

According to Arsen Ostrovsky, a human rights expert and CEO of the International Legal Forum, a global network of lawyers advocating for Israel and combating antisemitism, the hostages are not to be considered prisoners of war. 

“It is important to underscore that these are not prisoners of war, but hostages, and that the taking of hostages is considered a war crime and gross violation of international humanitarian law, including under both the Rome Statute and the International Convention Against the Taking of Hostages,” he said.

Liron Libman, former head of the Israel Defense Forces’ International Law Department, insists that while Hamas has violated international humanitarian and criminal law, the terror organization is still obligated to fulfill its responsibilities towards the illegally seized hostages, as stipulated by the Convention. 

“In case of armed conflict, persons taking no active part in the hostilities should be treated humanely. As such, violence to life including mutilation, cruel treatment and torture, as well as outrages upon personal dignity, rape, humiliating and degrading treatment, are forbidden,” said Libman. 

Menachem Rosensaft, adjunct professor of law at Cornell Law School and General Counsel Emeritus at Cornell Law School, told JNS that the Geneva convention explicitly stipulates the obligation of participants in armed conflict to allow impartial humanitarian bodies such as the Red Cross access to hostages. 

However, he continued, “The Red Cross has not gotten access to the hostages because Hamas has not allowed.”

This, he said, should come as no surprise.

“These are the same genocidal terrorists who engaged in the wholesale murder of civilian women, children and men, who slit the throats of infants, who burned entire families alive, who raped women and girls in a rampage of harrowing crimes against humanity. Why should anyone be surprised that Hamas is equally callous and vicious in its treatment of the hostages?”

Sanctions, international pressure

When asked what role the international community is expected to play in securing the hostages’ release, Ostrovsky noted that many of the captives are not Israeli.

“Hamas is also holding captive civilians from many other countries, including Europe and North America. These countries need to speak out more forcefully to demand their release,” he said.

“Arab countries also have a significant role to play, and must exert their influence, as should the United Nations,” he added.

It was “imperative” that the international community unite in “full solidarity with Israel,” Ostrovsky continued.

“Instead of lecturing Israel on the rules of war and proportionality, the international community needs to understand that the military actions Israel is undertaking are also designed to secure the return of their own nationals,” he said.

With regard to sanctions, while Hamas in Gaza may be out of international reach, most of the terror group’s leadership is not, said Libman. 

“Terrorists should be accountable. Those who surrendered to the IDF are put to trial. What about the leadership relaxing in five-star hotels in Qatar and Turkey? Iran’s Foreign Minister Hossein Amir-Abdollahian just met with Hamas leader Ismail Haniyeh in Doha,” said Libman.

“This is an opportunity for the government of those countries and the international community as a whole to prevent the genocidal organization [Hamas] from continuing to operate in Gaza by targeting the leaders away from the enclave.”

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