Since Saturday, October 7, the day Al-Aqsa Flood operation was launched, there has been increasing focus on the “Israelis” held by the resistance in Gaza. They have been called different names depending on the media and political sides covering and commenting on events.
This issue became more prominent when the media covered the few days of truce, which witnessed the release of some of those in exchange for the release of a number of Palestinians held by the “Israeli” occupation. Specifically, in Western media, those held by the resistance were called “hostages”, while this same media called the Palestinians held by the “Israeli” occupation “detainees”. At the same time, the resistance uses the term “prisoners of war” when referring to those held by it. This disparity and difference in nomenclature is not insignificant and has its legal and political repercussions, at least according to international law.
One word… summarizes the story!
Before talking about the legal meaning of these terms, attention should be paid to the impression these terms make on the average audience when heard repeatedly. The word “hostages”, although just one word, tells a complete story in which there are two parties, one “innocent” and the other “criminal” or “kidnapper”, one “civilian” and the other “armed”, one “peaceful” and the other “terrorist”. This word makes those who hear it recall many criminal examples, whether from reality, or from Hollywood movies that adore plots involving kidnapping and criminality.
The second term, “detainee”, tells a different story. Detention is an act carried out by a formal entity or state, and this detention can be “legal” or “illegal”, but there is a possibility that it is “legal”. Therefore, this “detainee” can be a “criminal”, “saboteur”, “terrorist”, etc.
Processes of manipulating the consciousness of the masses through terminology are not new. Well-known Italian communist thinker and activist, Antonio Gramsci, gave a profound description of this particular type of manipulation, when he said something along the lines of: “The enemy does not need to convince the masses of its story, it only needs to formulate the terms through which the masses think, and the masses will easily find their way to the result the enemy wants”.
Zionist and Western media framing dictionary does not stop at distinguishing between “hostages” and “detainees”. Rather, it extends to a very wide spectrum of carefully calculated expressions, which – as in the example of hostages-detainees – retell the facts in a specific way that is completely biased in favor of the Zionist and against the Palestinian, and under the fragile cover of supposed “media objectivity”.
Perhaps the most prominent and vulgar example of this is the expressions used to describe the ages of “hostages” and “detainees” in the Western narrative. Those who are under the age of 18 among the “hostages” are “children”, but when talking about Palestinian child prisoners, they are “detainees under the age of eighteen”.
In the same context, it is also important to remember that according to the current Western international law masters, what is happening in Gaza is called “a conflict between Israel and Hamas”, and it is classified as “an armed conflict not of an international character”. It is not difficult to understand the narrative generated by these nomenclatures, which ignores the issue of occupation and resistance, and transforms the issue into an “armed conflict”, and, more dangerously, between a “state” and a “group”.
Introduction to the legal aspect
Of course, analyzing the media-political aspect of these nomenclatures and terms is an extensive field that cannot be confined to an article. What we mentioned above is just a quick reference to this important field of knowledge, which is a very important part in the context of the conflict.
Returning to the legal aspect, which is the main focus of this article, it must be noted that in order to perform a comprehensive analysis (from a legal point of view) of these terms, and since the detention of Palestinians did not begin on October 7, but rather has been happening continuously for many decades before that, “‘Israel’ as an occupying state and due to its belligerent, illegal occupation in perpetuity of the Palestinian territory, including Gaza, meets the definition of aggression, which makes it the aggressor and in a permanent state of aggression against the Palestinian state and the Palestinian people”. In this context, for a broader legal analysis of this aspect, the reader can go back to a Kassioun Research Unit article titled “The Occupying State, ‘Self-Defense’, and International Law”.
Common Article 2 of the Geneva Conventions states, among other things: “In addition to the provisions which shall be implemented in peacetime, the present Convention shall apply to all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties, even if the state of war is not recognized by one of them. The Convention shall also apply to all cases of partial or total occupation of the territory of a High Contracting Party, even if the said occupation meets with no armed resistance”.
Relevant international law
As for the definition of “hostages”, the International Conventions against the taking of hostages states the following: “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 intergovernmental organization, a natural or juridical person, or a group of persons, to do or abstain from doing any act as an explicit or implicit condition for the release of the hostage commits the offence of taking of hostages (“hostage-taking”) within the meaning of this Convention”. Additionally, according to Article 8 of the Rome Statute, the legal basis of the International Criminal Court, “hostage-taking” is considered a war crime.
The Geneva Conventions also reference the matter, where taking hostages is prohibited by Common Article 3, which states, among other things:
“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, including members of armed forced who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, color, religion or faith, sex, birth or wealth, or any other similar criteria.
To this end, the following acts are and shall remain prohibited at any time and in any places whatsoever with respect to the above-mentioned persons:
a) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture;
b) taking of hostages;
c) outrages upon personal dignity, in particular, humiliating and degrading treatment;
d) the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court affording all judicial guarantees which are recognized as indispensable by civilized peoples.”
Article 4 of the Third Geneva Convention (1949) defines “prisoner of war” as follows:
“Prisoners of war, in the sense of the present Convention, are persons belonging to one of the following categories, who have fallen into the power of the enemy:
1) Members of the armed forces of a Party to the conflict as well as members of militias or volunteer corps forming part of such armed forces.
2) Members of other militias and members of other volunteer corps, including those of organized resistance movements, belonging to a Party to the conflict and operating in or outside their own territory, even if this territory is occupied, provided that such militias or volunteer corps, including such organized resistance movements, fulfill the following conditions:
a) that of being commanded by a person responsible for his subordinates;
b) that of having a fixed distinctive sign recognizable at a distance;
c) that of carrying arms openly;
d) that of conducting their operations in accordance with the laws and customs of war.
3) Members of regular armed forces who profess allegiance to a government or an authority not recognized by the Detaining Power.
4) Persons who accompany the armed forces without actually being members thereof… provided that they have received authorization from the armed forces which they accompany.”
While the taking of prisoners of war is not considered a war crime, as opposed to hostage-taking, nevertheless, international humanitarian law states that all people detained in time of war, including prisoners of war, must be treated humanely. As such, an inhumane treatment of a prisoner of war could rise to the level of a war crime.
For the purposes of this article, it is also useful to state the definition of “military objectives”, which is defined by Article 52 of Protocol I additional to the Geneva Conventions (1977) as follows: “military objectives are limited to those objects which by their nature, location, purpose or use make an effective contribution to military action”. Additionally, according to Article 51 of the same Protocol: “Civilians shall enjoy the protection afforded by this Section, unless and for such time as they take a direct part in hostilities”.
The legal classification of “Israelis” held by the resistance
First, the “Israelis” being held by the resistance and who are soldiers in the occupation army, according to international law, they are prisoners of war and the rules of war relevant to their legal status and treatment apply to them.
As for the settlers, things are a little different. As a start, it is well-known that settlements, especially those like the ones around the Gaza Strip, have military roles. This makes them military objectives, according to the abovementioned Article 52, because they are used as focal points for military operations, and weapons, military equipment and vehicles are collected there. Additionally, many military operations that target Gaza – during the current aggression and past ones – are launched from these settlements. Furthermore, as for the settlers themselves, many of them work in posts in the settlements of a security nature and/or military affiliation. Not to mention that most settlers openly carry arms.
Settlers also have an increasing role in violence within the framework and protection of the “Israeli security forces”, as a lot of reports on the situation in occupied Palestine touched on the issue of settler violence. One such example was the “Concluding observations of the fifth periodic report of Israel”, No. CCPR/C/ISR/CO/5, dated 5 May 2022. Paragraph 24 of said report states: “the Committee remains concerned about: (a) a significant increase in the number and severity of incidents of settler violence in recent years; (b) the involvement of the Israeli security forces in such violence”.
All of this strips the settlers of their “civilian status” due to their de facto participation in military actions, making the settlers who were detained by the resistance “prisoners of war” and not “hostages”.
The legal classification of Palestinians held by the occupation
As for the Palestinians detained by the occupation, whose detention goes back years and in some cases decades, it is known that most of them fall under the so-called “administrative detention”, which has been mentioned in many international and human rights organizations reports. For example, the “Concluding observations of the fifth periodic report of Israel”, No. CCPR/C/ISR/CO/5, dated 5 May 2022, says in paragraph 34: “The Committee is concerned about the widespread practice of arbitrary arrest and detention… of Palestinians, including journalists, human rights defenders and children, in violation of international humanitarian law and the Covenant. It is further deeply concerned about the continuing practice of administrative detention of Palestinians, including children, without charge or trial and without the guarantee of fundamental legal safeguards…. It notes with concern the use of secret evidence in administrative detention proceedings and routine approvals and renewals by military courts of administrative detention orders”.
Based on the above and the relevant legal texts, the Palestinians detainees, especially those who have been detained pursuant to the so-called “administrative detention” fully meet the definition of “hostages”, and the detention of Palestinians by “Israel” is a war crime by all standards.
Conclusion
We did not address in this article an important aspect of this same issue, which is the behavior of both the occupation, on the one hand, and the resistance, on the other hand, towards those held by each of the two sides. This on its own is a broad subject that illustrates a huge difference in the mentalities and ethics of the two sides. The Zionist occupation is almost one of the most brutal in history in the way it deals with people it detains, which is proven by many international reports. On the other hand, the high morals shown by the resistance in dealing with those it is holding are an intense expression of the morality and legitimacy of the Palestinian cause and the Palestinian people.
Going back to the legal aspect, if we wanted to resort to international law as it actually is in the texts, then we would reach a result completely opposite to what is adopted by Western media, and even some Arab media, including the media that supports the Palestinian resistance.
According to international law, those detained by the resistance are “prisoners of war”, while Palestinians detained by the Zionist entity are “hostages”. This expression is closer to the actual description of the behavior of the Zionist occupation, which acts as a criminal gang that not only kidnaps Palestinians, but also kidnaps the entire the Middle East for the benefit of the American and its dominance over this region.