Taking civilians as hostages and Hostage-taking (Prise dotage et prise de civils en otage)

Legal Basis:
These acts are charged under Article 2(h) and Article 3 of the ICTY Statute. In the context of an international armed conflict, the elements of the offence of taking of hostages under Article 3 of the Statute are essentially the same as those of the offence of taking civilians as hostage as described by Article 2(h).

Origins of the concept:

Since the Hostages Case, in which Military Tribunal V held in April 1949 that the shooting of hostages or reprisal prisoners may under certain circumstances be justified as a last resort in procuring peace and tranquillity in occupied territory and has the effect of strengthening the position of a law abiding occupant, Taking of hostages has became a grave breach of the Geneva Conventions and a violation of the laws or customs of war. Indeed, it was only shortly afterwards that the taking of hostages and their execution without a proper trial was explicitly prohibited and penalised in Articles 3 and 147 of Geneva Convention IV, because although they were common practice until quite recently, they are nevertheless shocking to the civilized mind. The taking of hostages, like reprisals, to which it is often the prelude, is contrary to the modern idea of justice in that it is based on the principle of collective responsibility for crime. Both strike at persons who are innocent of the crime which it is intended to prevent or punish. The taking of hostages should therefore be treated as a special offence. Certainly, the most serious crime would be to execute hostages which constitutes wilful killing. However, the fact of taking hostages, by its arbitrary character, especially when accompanied by a threat of death, is in itself a very serious crime; it causes in the hostage and among his family a mortal anguish which nothing can justify.( in reference to Commentary to Geneva Convention IV, pp 600-601, regarding Article 147) International costumary law thus prohibits hostage taking, crime considered as a grave breach of the Geneva Convention IV and prohibited by the Common Article 3.

Article 12 of the International Convention Against the Taking of Hostages specifically states that the Convention does not apply to acts of hostage-taking committed in the course of armed conflict, it is argued that it can be of assistance in determining the essential elements of the offence. The Article 1 of the the International Convention Against the Taking of Hostages (1979) provides : 1. 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 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.

The crime of hostage-taking is prohibited by Common Article 3 of the Geneva Conventions, Articles 34 and 147 of Geneva Convention IV,1333 and Article 75(2)(c) of Additional Protocol I. Before the ICTY, two cases dealt with the crimes of hostage taking and taking civilians as hostages ( see BLAKI Tihomir Case and KORDI and ERKEZ Case). But until now, none of the Accused were found guilty of taking hostages.

Definition:
As stated by the Chamber in Blaski Case, the elements of the offence of taking civilians as hostages ( Article 2(h) of the Statute) are similar to those of hostage taking (Article 3(b) of the Geneva Conventions covered under Article 3 of the Statute). In the KORDI and ERKEZ Case, the Chamber however stated that the elements of these two offences are similar except for the requirement that the victims be protected persons contained in Article 2. Indeed, taking civilians as hostages applies to civilians, whereas hostage taking applies not only to civilians, but to all persons not taking an active part in the hostilities.

Taking civilians as hostages ( as a grave breach of the Geneva Conventions), in reference to KORDI and ERKEZ, Trial Judgment, 26 February 2001, para 311-314 and 319_320 ; and Hostage-taking as a violation of the laws or customs of war, in reference to BLAKI Tihomir, Appeal, 29/07/2004, para 638-639

Taking Civilians as Hostages (Article 2) :

This crime is listed as one of the grave breaches in Article 147 of Geneva Convention IV. The Chamber in the KORDI and ERKEZ Case referred to the ICRC Commentary which provides: Hostages might be considered as persons illegally deprived of their liberty, a crime which most penal codes take cognizance of and punish. However, there is an additional feature, i.e. the threat either to prolong the hostages detention or to put him to death. The taking of hostages should therefore be treated as a special offence. Certainly, the most serious crime would be to execute hostages which, as we have seen, constitutes wilful killing. However, the fact of taking hostages, by its arbitrary character, especially when accompanied by a threat of death, is in itself a very serious crime; it causes in the hostage and among his family a mortal anguish which nothing can justify. It would, thus, appear that the crime of taking civilians as hostages consists of the unlawful deprivation of liberty, including the crime of unlawful confinement (detention may be lawful in some circumstances, inter alia to protect civilians or when security reasons so impel). The additional element that must be proved to establish the crime of unlawfully taking civilians hostage is the issuance of a conditional threat in respect of the physical and mental wellbeing of civilians who are unlawfully detained. The ICRC Commentary identifies this additional element as a threat either to prolong the hostages detention or to put him to death. Such a threat must be intended as a coercive measure to achieve the fulfilment of a condition. The Trial Chamber in the Blaki case phrased it in these terms: The Prosecution must establish that, at the time of the supposed detention, the allegedly censurable act was perpetrated in order to obtain a concession or gain an advantage. Consequently, the Chamber in the KORDI and ERKEZ case found that an individual commits the offence of taking civilians as hostages when he threatens to subject civilians, who are unlawfully detained, to inhuman treatment or death as a means of achieving the fulfilment of a condition.

Taking of Hostages (Article 3)

Common Article 3(1)(b) of the Geneva Conventions prohibits the taking of hostages in respect of persons taking no active part in the hostilities, members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause. Since Common Article 3 provides a minimum protection for all conflicts, international or internal, its prohibition on hostage taking cannot be read to be limited to civilians, as it is in Article 2. Hostage taking applies to all persons not taking a direct part in the hostilities.

The Trial Chamber in Blaki case concurs with these findings and considers that, in the context of an international armed conflict, the elements of the offence of taking of hostages under Article 3 of the Statute are essentially the same as those of the offence of taking civilians as hostage as described by Article 2 (h).

Related concepts:
Definition of hostages : hostages are nationals of a belligerent State who of their own free will or through compulsion are in the hands of the enemy and are answerable with their freedom or their life for the execution of his orders and the security of his armed forces Consonant with the spirit of the Fourth Convention, the Commentary sets out that the term hostage must be understood in the broadest sense. The definition of hostages must be understood as being similar to that of civilians taken as hostages within the meaning of grave breaches under Article 2 of the Statute, that is - persons unlawfully deprived of their freedom, often wantonly and sometimes under threat of death. To be characterised as hostages the detainees must have been used to obtain some advantage or to ensure that a belligerent, other person or other group of persons enter into some undertaking. The Blaki Trial Chamber, relying upon the ICRC Commentary adopted this broad definition of the term hostage. Unlawful detention as an element of hostage-taking : In Blaki case, the Chamber stated that within the meaning of Article 2 of the Statute, civilian hostages are persons unlawfully deprived of their freedom, often arbitrarily and sometimes under threat of death. However, as asserted by the Defence in this case, detention may be lawful in some circumstances, inter alia to protect civilians or when security reasons so impel. Unlawful detention is an element of hostage taking. The lawfulness of the detention does not depend on on the circumstances in which any individual comes into the hands of the enemy, but rather depends on the whole circumstances relating to the manner in which, and reasons why, they are held. ( in reference to KARADZI Case, Decision on Six Preliminary Motions Challenging Jurisdiction (28 April 2009) at para. 65)