In Times of Conflict

International humanitarian law prohibits taking and executing hostages. Such acts are considered war crimes (GCI–IV Common Art. 3; GCIV Arts. 34, 147; API Art. 75) and can be tried before any national court, under the principle of universal jurisdiction. This is possible as long as the State in question has incorporated this obligation (derived from the Geneva Conventions) into its domestic laws.

The Statute of the Nuremberg Military Tribunal, set up after World War II, also asserts that such acts are war crimes, as do its judgments (as established by the UN International Law Commission in June 1950). This is reinforced by the Statute of the International Criminal Court (ICC), adopted 17 July 1998 and entered into force on 1 July 2002. The ICC Statute defines taking hostages in an international or internal conflict as a war crime, which will come under the Court’s jurisdiction (Arts. 8.2.a.viii and 8.2.c.iii of the ICC Statute). Hence, following certain conditions governing the Court’s operations, the ICC is able to judge hostage takers. International humanitarian law also forbids the use of the human shield.

This rule has gained customary law status. Indeed, Rule 96 of the study on the rules of customary international humanitarian law published by the ICRC in 2005 provides that “the taking of hostages is prohibited” both in international and non-international armed conflicts.

▸ Universal jurisdiction ▸ International Criminal Court

In Times of Peace or Internal Disturbances and Tension

The International Convention against the Taking of Hostages was adopted on 17 December 1979, by the UN General Assembly (Resolution 34/146). The Convention entered into force in 1983 and had 174 States Parties as of June 2015.

Article 12 of the Convention expressly states that its provisions do not apply in times of armed conflict, in which case humanitarian law is applicable.

The Convention defines a hostage taker as “any person who seizes or detains and threatens to kill, to injure or to continue to detain another person (‘hostage’) in order to compel a third party, namely a State, an international inter-governmental organization, a natural or juridical person, or a group of persons, to do or to abstain from doing any act as an explicit or implicit condition for the release of the hostage, commits the offence of taking hostages (‘hostage taking’)” (Art. 1 of Hostage Convention).

The Convention further specifies that not only those who commit such an act but also any person who attempts to commit or who participates as an accomplice in such an act or attempt is accountable and must be punished. The States Parties to the Convention undertake to punish such offenses (Art. 2).

They must therefore adapt their domestic legislation and take such measures as may be necessary to establish [their] jurisdiction over any of the offences set forth in Article 1 which are committed:

1. in its territory or on board a ship or aircraft registered in that State;
2. by any of its nationals or, if that State considers it appropriate, by those stateless persons who have their habitual residence in its territory;
3. in order to compel that State to do or abstain from doing any act; or
4. with respect to a hostage who is a national of that State, if that State considers it appropriate. (Art. 5)

In case an alleged offender is on the territory of a participant State and the State does not extradite him or her, the State is under the obligation, without exception whatsoever and whether or not the offense was committed in its territory, to judge that person (Art. 8).

▸ Human shields ▸ Mutual assistance in criminal matters ▸ War crimes/Crimes against humanity