From Hostage to Human Trafficked — Part Five

Hostage Relief

The world has seen the egregious treatment of the hostages taken by Hamas. People are being raped, physically assaulted, starved, and psychologically impacted by the confinement. The question remains, however, as to how and when these hostages will be released and what remedy, if any, is afforded to them upon that release. Unfortunately, this question does not contain a definite answer but rather causes more questions. If we can agree that the hostage-taking situation on October 7^th equates to an emerging form of human trafficking, what remedy can victims of human trafficking be offered? Are there remedies that have already been established for human trafficking victims in Israel or on the international scale? Who would provide this relief? Would it be Israel as a State or Hamas? How could you get monetary or property assets from Hamas since they are not a State, and the location of their assets is unknown? Could a third party be held liable or could they provide a remedy for their part in supporting Hamas banking abroad? Would Israel be held responsible for providing relief due to the amount of time hostages have been held in Gaza? If Israel provided relief, would it be a federal relief fund for victims or their families similar to the United States’ September 11^th Victim Compensation Fund of 2001? Is there a potential for third-party liability for countries or organizations that have resourced Hamas during the conflict? Should or can international conventions provide relief? If so, how? Generally, these conventions are not funded at the international level but would be funded by the nations that ratify them. And, ultimately, what kind of relief would be appropriate for an attack on this magnitude? If the relief sought is prosecution, is that enough and, if so, where would it take place? Could a civil cause of action take place, if so, where? Is there a possibility of the death penalty for Hamas members who orchestrated the attack? Regarding the death penalty, would this be appropriate if, because of their religion, they believe in martyrdom, or dying for the cause, which would likely bring them more accolades in their afterlife?

According to an article entitled “Holding Hamas Accountable at the ICJ Through Palestine,” author David J. Scheffer discusses the potential ability for state parties to sue the State of Palestine in the International Court of Justice. According to his conclusions, first, a state could request that the State of Palestine officially affirm that Hamas conducted the October 7th attacks on Israel which constituted genocide, and to further admit that the State of Palestine “failed to prevent those acts and has further failed to punish Hamas and any other Palestinian perpetrators of those acts.”^[1]Although Palestine would likely reject these claims since they have yet to condemn the attacks publicly, the UN General Assembly has yet to do so as well.^[2] However, as previously discussed, while Palestine is not a signatory, it is a recognized state by the United Nations. A nation that recognizes both Palestine and is a party to the Genocide Convention, could file a case through the International Courts of Justice; however, only thirty-three of these nations are signatories of both, and these nations to not include the United States nor Israel.^[3] As it currently stands, there is extremely limited authority allowing for the Palestinian Authority to be held responsible for the actions of Hamas both because Hamas is the acting de facto government in Israel and because of their lack of recognition on the international stage.

On the international scale, this type of an attack is unprecedented and leaves a variety of questions open for a post-conflict resolution. However, something that can be agreed upon is that the hostage-taking situation of innocent civilians is not an appropriate humanitarian response during a conflict. The hostages, and their families, deserve to be compensated for the trauma that unexpectedly was inflicted upon them and will remain with them forever.[4]

Conclusion

The unprecedented attack on Israel on October 7, 2023, by Hamas was one of the most egregious attacks on the Jewish Community since the Holocaust.[5] Although many international treaties and conventions discuss humanitarian law and expectations during a conflict, these treaties are referencing the conflict between two States who have ratified and are signatories of these treaties.[6] Because the October 7^th attack on Israel was by Hamas, a political terrorist organization, it is not bound to these humanitarian laws.[7] The lack of moral guidelines led to the egregious hostage-taking by Hamas and Gazan civilians on the October 7^th attack on Israel.[8] The hostages, some who are still being kept to this day, have endured barbaric and inhumane treatment and living conditions.[9] Some have been beaten, some raped, and some even killed.[10] Because of how these hostages were taken, it can be concluded that they fall into a human trafficking paradigm because they meet the five elements of (1) recruitment, (2) abduction, (3) transporting, (4) harboring, (5) transfer.[11] Based on the treatment of the hostages, both physical and psychological, there remain many questions as to the relief these hostages can and should be provided once this conflict has concluded. By beginning to think of these questions now, hostages can be more readily protected, rehabilitated, and compensated upon their return to Israel or their home country and hostage taking in the future can be deterred.

The question that should continue to plague the world is the quandary as to where the world is now in the aftermath of World War 2. After World War 2, states quickly redelegated land, as seen with Israel and Palestine in the Balfour Declaration but did they did not think about the implications it would have in the future.[12] The world should now be thinking about the aftermath of this conflict and the state in which it will leave the world. Will it leave Palestine susceptible for human traffickers to invade? Will it leave the hostages with a remedy that will protect future generations?

The world mustn’t lose sight of the individuals who were innocently taken from their homes or a music festival. These people were fathers, mothers, daughters, sons, friends, husbands, wives, and most importantly human beings. No human, despite their origin, race, religion, ethnicity, or any other identifier, deserves to be forcibly taken, placed into forced captivity and subjected to despicable conditions all to be used as a bargaining chip. These hostages are owed so much more than what can be given to compensate for their captivity. Identifying trafficking victims and initiating the discussion for providing relief post-conflict is a necessary way to create a remedy. Ultimately, while October 7, 2023, was a horrific tragedy, its recognition can put an end to hostage taking and therefore decrease the utilization of human trafficking as a war tactic.

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[1] David Scheffer, Holding Hamas Accountable at the ICJ Through Palestine, LAWFARE, (Dec. 18, 2024, 3:59 PM), https://www.lawfaremedia.org/article/holding-hamas-accountable-at-the-icj-through-palestine.

[2] Id.

[3] Id.

[4]Yossi Levi-Belz, et. al., supra note 144.

[5]Grace Wermenbol, supra note 2

[6] Id. 

[7] Jamil Hilal, Jamil, supra note 30, at 185.

[7] Council on Foreign Relations, supra note 31.

[8] Kimberly Heatherington, Analysis: Israel’s War on Hamas Raises Significant Moral Concerns as Gaza Death Toll Soars, Catholic Review(Jan. 4, 2024), https://catholicreview.org/analysis-israels-war-on-hamas-raises-significant-moral-concerns-as-gaza-death-toll-soars/

[9] American Jewish Committee, supra note 125.

[10] Id.

[11] Data and Research on Human Trafficking, supra note 22.

[12] History of the Question of Palestine, United Nations, supra note 62.