Families, friends and acquaintances have almost no information about their loved ones, and do not even know who is holding them and whether they are safe. Hamas has so far reported several captives killed in Israeli airstrikes. Friends and relatives do not know whether the captives are being provided enough food, water and clothes, whether they are being allowed to maintain basic hygiene, what their medical condition is and whether they are receiving the treatment and medication they need.

The circumstances of the kidnappings make it clear that the purpose was to hold the captives as hostages. According to the media, Hamas has issued several demands, primarily to release Palestinians from Israeli prisons. Other reported proposals were to release some captives in exchange for a humanitarian ceasefire, or to release the women and children in exchange for releasing women and minors from Israeli prisons. According to another report, Hamas threatened to execute the captives unless Israel stopped bombing Gaza.

Taking hostages, i.e., kidnapping innocent people and holding them as bargaining chips, is immoral, which is why it is absolutely prohibited under international law: there are no exceptions, no excuses and no mitigating circumstances. The prohibition applies to all human beings – civilians and combatants alike – and is considered part of customary international law, which binds all parties to an armed conflict, international or otherwise. Violating this prohibition constitutes a war crime and is listed as such in the Rome Statute of the International Criminal Court in The Hague.

The ban on taking hostages appears in common Article 3 of all the Geneva Conventions, which is considered a ‘Convention in miniature.’ The article lays out the minimum requirements for all parties to the conflict and encapsulates the essence of international humanitarian law. The ICRC’s commentary on the Geneva Conventions clarifies that the article applies automatically to any party, regardless of expressed acceptance of it, and a violation by one party does not justify a violation by another.

According to the International Convention Against the Taking of Hostages, the difference between legitimate arrest and hostage-taking lies in the intent: hostages are held under threat of harm in order to force a third party “to do or abstain from doing an act as an explicit or implicit condition” for their release.

Hamas must immediately release all the hostages, with no conditions. Until then, it must provide accurate information about them, ensure they are safe and protected, and treat them with humanity and dignity. The hostages must be provided whatever treatment and medication they need, enough food and water, and conditions that allow them to maintain proper hygiene.

Israel must act now to strike a deal to release the captives. Their lives are in danger and the state has a duty to do everything in its power to bring them back. Media reports and statements by the captives’ families indicate this is not the case. Early in the war, Israeli UN Ambassador Gilad Erdan made it clear that freeing the captives was not Israel’s top priority. The special coordinator appointed by the Israeli government to handle the issue does not appear to be doing enough to get them back. If these reports are true, the state is abdicating its role.

The price of any deal with Hamas is known: Israel will have to release thousands of Palestinian prisoners. Using convicted prisoners as a negotiating asset in political bargaining may meet with objections. However, Palestinian prisoners are convicted by Israel’s military justice system, which has put hundreds of thousands of Palestinians behind bars since the occupation began. Unlike the justice system inside Israel, the military courts are not a neutral arbiter: they serve political goals and work to uphold and perpetuate the occupation. Palestinians have almost zero chances of acquittal in this system; most cases are closed with plea bargains, and the conviction rate is almost 100%. Many of these prisoners are political prisoners, and thousands have been convicted without evidence, due process or any opportunity to defend themselves. Hundreds of others are being held in administrative detention, without even a show of a fair trial.

Even if it had a fair, objective military court system that truly sought justice, Israel would still be obliged to reach a prisoner release deal in order to free the captives. Abandoning them is an immoral choice the state must not make. Dozens of lives are at stake. The choice between certain rescue and future danger, real or not – is obvious.

B’Tselem – The Israeli Information Center for Human Rights in the Occupied Territories