Hostages and International Law

By W. Thomas Mallison

The taking of air passengers as hostages is widely recognized as a violation of customary and treaty international law. Less well known is the fact that the Government of Israel has also taken hostages in violation of international law.

The brutality, including killings and hostage taking, by the Government of Israel in "Operation Iron Fist" in South Lebanon has been described elsewhere in detail. In March and early April, 1985, Israel moved more than 700 hostages from Southern Lebanon to Atlit Prison in Israel and on April 3rd the U.S. Department of State publicly characterized the action as a violation of several articles of the Geneva Convention (IV) for the protection of Civilian Persons (1949).

Israel, Lebanon, the United States, and almost the entire membership of the United Nations are state parties to this Convention. The Convention, in reaction to the Nazi occupations of World War II, restricts occupying powers in dealing with civilians ("protected persons"). Israel has been the occupying power in Southern Lebanon since its March, 1978 invasion, either directly or indirectly through its agents—earlier, Major Haddad's militia and, more recently, the Israeli armed, trained and paid "South Lebanon Army."

At the outset, Israel apparently admitted the violation but more recently it has claimed that its action is lawful under one of the exceptions to article 49. The basic rule of the first paragraph of article 49 is that "mass forcible transfers" of protected persons to the territory of the military occupant "are prohibited, regardless of their motive." The only two exceptions permitted are temporary transfers which are urgently necessary to protect "the security of the population" of the occupied country or for "imperative military reasons." According to the negotiating history of the Convention and the International Committee of the Red Cross Commentary on it, these reasons are limited to the protection of the occupied population. Since the major threats to the "security" of the South Lebanese come from the Israeli Army, Israel cannot invoke either exception.

Both the Israeli Government and the U.S. State Department have viewed the Lebanese prisoners in Israel as civilians interned for security offenses. They are in fact hostages taken at random in "Operation Iron Fist" as a collective punishment and not even charged with security offenses. This results in the necessary application of other articles of the Convention not mentioned by Israel or the State Department. Article 34 is unequivocal and states in full: "The taking of hostages is prohibited." There are no exceptions to it. The Lebanese hostages were taken as collective penalties and reprisals against protected persons.

These actions violate article 33, which provides that:

Collective penalties and likewise all measures of intimidation or of terrorism are prohibited.

Reprisals against protected persons and their property are prohibited.

The Nazi practice of taking hostages often resulted in the taking of other hostages in claimed reaction, as the hijackers of TWA flight 847 did. If the United States Government should become serious about fighting international group terrorism, it must concurrently confront the more destructive, closely related and often causally connected international state terrorism, rather than continuing to pretend that it does not exist. The alternative is the acceptance of the totalitarian principle that, of all the institutions created to serve human needs, only government is above the law.

W. Thomas Mallison is Professor of Law and Director of the International and Comparative Law Program at George Washington University in Washington, D.C.