From Hostage to Human Trafficked — Part One

Introduction

On October 7, 2023, Hamas conducted surprise attacks on several areas in Israel, slaughtering millions of innocent people.[1] Akin to the holocaust, the attack was politically motivated and aimed at terrorizing and destroying the Jewish community.[2] This horrific attack was not only unexpected and unprecedented, but it happened at the most vulnerable of times. Israeli men, women, and children were just beginning to awaken in their kibbutz, and others were gathering at the Nova Music Festival, which symbolized peace, love, and happiness to the attendees.[3] This horrific day is now being referred to as ‘Black Saturday’ by the nation of Israel.[4] On this day, 1,200 people were brutally murdered, and approximately 250 others were kidnapped and taken hostage in Gaza.[5][6] Their crime was being in Israel.[7] Hamas did not check identification or passports.[8] They did not exempt the elderly, women, or children.[9] If you were in Israel on October 7, you were the target.

This multi-part series will introduce the international obligations of signatory states within the United Nations, identify the human trafficking paradigm and hostage-taking, provide an in-depth analysis of the terrorist group Hamas and their tactics, focusing on the hostages’ status. Conclusively, the article will present questions for the international legal community consider regarding state sanctions and remedy possibilities for hostages taken during this conflict. Specifically, the paper will address the issue of whether hostages taken by Hamas on October 7^th, 2023, fit into the paradigm of human trafficking, and if so, what, if any, remedy is afforded to them after the conflict ceases?

1. International Obligations

Globally, there are treaties and international written agreements between states and international organizations. One of the overarching communities that attempts to protect humanitarian needs globally is the United Nations (UN). To become a member of the United Nations, any State must apply. At present, there are 193 UN Member States, which include Israel but not Palestine. The State of Palestine is recognized by 146 of 183 UN Members and has been a non-member observer state of the UN General Assembly since November 2012. As a permanent observer state, Palestine is allowed to participate in proceedings but is unable to vote on resolutions and governing decisions. However, it is important to recall that the October 7^th attack on Israel was from a politically motivated terrorist organization, Hamas, which is currently operating in Palestine but is not a representative of the State and is therefore not recognized by the United Nations nor required to abide by its humanitarian restrictions.

The International Legal Protection of Human Rights in Armed Conflict is a publication by the United Nations for international situations and “provides guidance to State authorities, human rights and humanitarian actors and others on the application of international human rights law and international humanitarian law for the protection of persons in armed conflict.”^[10] The Human Rights Committee writes in this United Nations publication that humanitarian law prohibits “the taking of hostages, abductions or unacknowledged detention; discrimination, deportation or forced transfer of minorities; incitement to discrimination, hostility or violence through advocacy of national, racial, or religious hatred.”^[11] This definition proves that the taking of hostages is undoubtedly inhumane and without justification.[12]

Per the International Committee of the Red Cross (ICRC), nation-states have an obligation under international humanitarian law to protect their civilian population during armed conflicts, including undertaking feasible measures to ensure the protection and care of children who are affected.^[13] Although humanitarian law generally addresses state-to-individual persons relationships, there are obligations set forth under international humanitarian law that stem from global treaties and conventions. These treaties and conventions have set forth proper humanitarian acts during an armed conflict, the most important of these treaties may be the Geneva Convention.

The Geneva Convention established humane rules of war and rules of international humanitarian laws, beginning in the 1940s, and was updated as recently as 2005. The Geneva Convention applies in 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.”^[14]  The purpose of the Geneva Convention was to protect people who did not take part in the fighting (civilians, medics, aid workers) and those who could no longer fight (wounded, sick, shipwrecked troops, prisoners of war).^[15] Overall, the use of the Convention requires certain limitations on war so that the escalation does not result in total barbarity. The Geneva Convention also provides consequences to “those who commit grave breaches, [who] must be pursued and tried or extradited.”^[16] The Geneva Convention “require[s] States to search for persons alleged to have committed, or ordered to have committed, grave breaches,” including foot soldiers, officers, and all members in between.^[17] Both Israel and Palestine are signatories of the Geneva Convention, which means the Geneva Convention’s rules on the protection of human rights apply to both states.[18] Israel became a signatory on December 8, 1949, and Palestine on April 2, 2014.[19]

All the aforementioned conventions and treaties speak specifically to the responsibilities of governments to protect their citizens and recognize humanitarian boundaries between and among state actors. The overarching question is, because Hamas is a politically motivated terrorist organization and not a state, whether a paradigm exists that extends humanitarian protection to citizens involved in actions by politically motivated terrorist organizations. Moreover, if the state hosts and passively endorses the terrorist organization’s activities, can those activities be imputed to the state? No treaties protect vulnerable citizens in these types of conflicts, particularly civilian hostages who are taken out of their homes, away from their families, for the crime of merely being present in a particular state. These hostages are not prisoners of war; they are not enemy combatants; they are civilians. Alternatively, is a vulnerable civilian hostage capable of fitting into the human trafficking paradigm so that a form of humanitarian justice can be achieved to remedy their experience upon release?

[1] American Jewish Committee, Israel at War: What You Need to Know, (Feb. 21, 2025, 2:45 PM) https://www.ajc.org/IsraelHamasWar.

[2]Grace Wermenbol, The Post-October 7 Specter of the Holocaust, Georgetown Journal of International Affairs (Jan. 22, 2025), https://gjia.georgetown.edu/2025/01/22/the-post-october-7-specter-of-the-holocaust/#:~:text=In%20the%20aftermath%20of%20the,suffering%20experienced%20on%20October%207.

[3]Jean-Luc Mounier, France 24, Hamas Terrorist Attacks on October 7: The deadliest day in Israel’s history, (July 10, 2024), https://www.france24.com/en/middle-east/20241007-hamas-terrorist-attacks-7-october-deadliest-day-israel-history-anniversary

[4]Patrick Anidjar, Times of Israel, Opening the Gates of Hell: How Hamas Carnage Unfolded on Israel’s ‘Black Shabbat,’ (Oct. 27, 2023), https://www.timesofisrael.com/opening-the-gates-of-hell-how-hamas-carnage-unfolded-on-israels-black-shabbat/.

[5] American Jewish Committee, supra note 1. This included

[6] According to the Israel Journal of Health Policy Research, during the first 24 hours of the conflict, 673 people were evacuated to the hospital. 7.9% were under 18 years old, 57.4% were between 19-30, 4% were above 65. Within these numbers, 77.3% were males. Their injuries included 42.8% gunshot wounds and 37% shrapnel injuries. Aya Gozlan, et.al., October 7th 2023 Mass Casualty Incident in Southern Israel: Lessons for Emergency Preparedness and Management, Israel Journal of Health Policy Research, (Mar. 17, 2025, 7:34 PM), https://ijhpr.biomedcentral.com/articles/10.1186/s13584-024-00651-7#:~:text=More%20than%201%2C300%20Israelis%20were,University%20Medical%20Center%20(SUMC).

[7] Rachel Briggs, Why Has Hamas Taken Hostages, Chatham House, (Oct. 28, 2024, 7:45 PM), https://www.chathamhouse.org/2023/10/why-has-hamas-taken-hostages.

[8] Id.

[9] Id.

[10] Geneva Convention Relative to the Protection of Civilian Persons in Time of War, art. 1, Aug. 12, 1949, 6 U.S.T. 3516, 75 U.N.S.T. 287, https://www.ohchr.org/en/instruments-mechanisms/instruments/geneva-convention-relative-protection-civilian-persons-time-war#:~:text=In%20addition%20to%20the%20provisions,recognized%20by%20one%20of%20them.

[11] United Nations, Office of the High Commissioner for Human Rights, International Legal Protection of Human Rights in Armed Conflict (2011), https://www.ohchr.org/sites/default/files/Documents/Publications/HR_in_armed_conflict.pdf.

[12] Id.

[13] Int’l Comm. Of the Red Cross, Civilian Population, (Nov. 1, 2024, 2:43 PM), https://casebook.icrc.org/law/civilian-population.

[14] United Nations Human Rights, supra note 10.

[15] The Geneva Conventions and their Commentaries, International Committee of the Red Cross (Nov. 1, 2024, 4:12 PM), https://www.icrc.org/en/law-and-policy/geneva-conventions-and-their-commentaries.

[16] Id.

[17] Id.

[18] Thomas Resnick, The Fourth Geneva Convention Applies to the Israeli-Palestinian Conflict in Gaza, The International Business Digest, (Mar. 17, 2025, 7:25 PM), https://www.hofstrajibl.org/2024/10/the-fourth-geneva-convention-applies-to-the-israeli-palestinian-conflict-in-gaza/

[19] Id.