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‘Civilians’ Holding Israeli Hostages Were Not Civilians — an Analysis of International Law

Noa Argamani, a rescued hostage embraces her father, Yakov Argamani, after the military said that Israeli forces have rescued four hostages alive from the central Gaza Strip, in Ramat Gan, Israel, in this handout image obtained by Reuters on June 8, 2024. Photos: Israeli Army/Handout via REUTERS

The IDF completed a stunning rescue operation last Saturday, bringing home hostages Noa Argamani (25), Andrey Kozlov (27), Almog Meir (21), and Shlomo Ziv (40), who had been held in Gaza for eight months.

A number of the hostage takers were killed in the operation, including Abdala Aljamal, a journalist for Al Jazeera, as well as his father, a local doctor. The deaths of the hostage takers triggered significant international criticism against Israel over civilian casualties, including the startling assertion by a BBC journalist that Israel should have warned of the rescue operation in advance.

Yet under international law, common sense, and basic morality, a person who holds hostages is not, in fact, a civilian at all.

The Geneva Convention Additional Protocol I defines three categories of persons in a conflict: 1. combatants (Article 43), 2. civilians (Article 50), and 3. any person who has taken part in hostilities but who does not qualify as a legitimate combatant under Article 43 (Article 44).

In 2006, the United States officially adopted a designation called the “unlawful combatant,” which reflects this third category from the Geneva Convention. A number of other countries have also adopted their own “unlawful combatant” laws, including the United Kingdom and Israel. The argument in favor of the “unlawful combatant” designation is that it is necessary for dealing with terrorism and other non-state actors — an entire category of combat that was not fully contemplated at the time the Geneva Conventions were created.

The concept of an “unlawful combatant” is not universally accepted and is strongly criticized by some countries. Nonetheless, it is well established by international humanitarian law that “a civilian is a person who does not take an active part in hostilities.” Therefore, a person who does take part in hostilities is, at best a combatant, or at worst an “unlawful combatant,” but in no event can such a person claim to be a “civilian.”

Hamas claimed that all those who died in the hostage rescue operation were “civilians,” yet the Hamas fighters who opened fire on the hostages were clearly not, and the locals who captured and held hostages cannot be considered “civilians” either.

The International Convention Against the Taking of Hostages and Geneva Convention Additional Protocol I, Article 75, strongly prohibit taking and holding hostages, and treat doing so as both a war crime and an act of terrorism.

Therefore, a person holding Israeli hostages in Gaza is, at the very least, a hostile combatant, and arguably an “unlawful combatant.” In either case, a hostage taker is unquestionably a war criminal and, by international convention, also a terrorist. This is true whether or not such a person wears a uniform or holds a rank, and remains true even if the hostage taker “moonlights” at some other job, such as, in this case, a journalist or a doctor. In no event can a person who holds hostages be considered a “civilian.”

It is clear from common sense and basic morality why this legal conclusion must be true: if it were not, then hostage rescue missions and even basic self defense would be prohibited as long as the attacker does not wear a uniform or hold an official rank, creating a paradoxical world in which terrorism is technically permitted, but self-defense is not.

During last Saturday’s hostage rescue operation, the IDF came under heavy fire, much of which was directed at the hostages themselves. Hamas claimed that some 200 civilians were killed, figures which triggered widespread international condemnation against Israel.

Yet in an exposé last November, the Associated Press revealed what local journalists have known for years: that Hamas casualty figures, as a rule, do not distinguish between civilians and combatants, nor do they identify the cause of death, which sometimes includes accidental Hamas crossfire, intentional Hamas executions, and misfired Hamas rockets.

A further Associated Press exposé this month revealed that Hamas has significantly overstated the number of women and children supposedly killed in Gaza since October 7. Therefore, any Hamas claims relating to casualty figures should be treated with significant skepticism. Furthermore, it is unclear how many of the locals present at the hostage rescue had been active in taking and holding the hostages, which is not only a war crime and an act of terrorism, but also precludes such a person from claiming the status of “civilian.”

International criticism of Israel’s hostage rescue operation stands in stark opposition to the fundamental tenets of international law, morality, and basic common sense. Such discussions lead us toward a paradoxical worldview in which hostage taking and terrorism are permitted, while self-defense and hostage rescue operations are not: thus emboldening terror groups the world over, and planting the seeds of long-term danger to all free societies.

Daniel Pomerantz is the CEO of RealityCheck, an organization dedicated to deepening public conversation through robust research studies and public speaking.

The post ‘Civilians’ Holding Israeli Hostages Were Not Civilians — an Analysis of International Law first appeared on Algemeiner.com.

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Herzog Confirms Behind-the-Scenes Negotiations with Hamas – Deal ‘Possible’

Israeli President Isaac Herzog looks on during a meeting with US Secretary of State Antony Blinken, not pictured, in Washington, DC, on Oct. 25, 2022. Stefani Reynolds/Pool via REUTERS

i24 NewsPresident Isaac Herzog revealed on Sunday that contacts are ongoing between Israel and Hamas for a ceasefire and hostage release deal.

In a conversation with Yael Alexander, the mother of the abductee Edan Alexander who has been held captive for 422 days by Hamas, Herzog said that “there are negotiations behind the scenes – and it is possible.”

“I reiterate the call – now, after the agreement in Lebanon, it’s time to make a deal and bring the captives home,” Herzog said.

His meeting comes after Hamas released a video over the weekend showing Edan Alexander, an American-Israeli who was captured on October 7, 2023, while serving in the IDF. The video showed him pleading for Prime Minister Benjamin Netanyahu and US President-Elect Donald Trump to secure a deal.

“There are negotiations with a bitter and cruel enemy whose entire purpose in the video was to demoralize us all,” he said. “On the contrary – I think this video gave us a lot of strength.”

“I had a sleepless night,” Yael Alexander said – “Edan, his voice. and the video which plays continuously. You can see from the video that Edan is going through hell, he is screaming and his eyes look sad, but this gave me a lot of strength – Edan strengthened us with his call to us. We released this video, so everyone can see – Edan is alive, and many other captives are alive and the time has come to do something and release them.”

Out of the 101 hostages held in Gaza, estimates range as to the number still living, with some going as low as two dozen.

The post Herzog Confirms Behind-the-Scenes Negotiations with Hamas – Deal ‘Possible’ first appeared on Algemeiner.com.

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The Voice of Jacob

Chabad Rabbi Zvi Kogan. Photo: @Chabad/X.

JNS.orgThe Jewish world is grieving the horrific murder of Rabbi Zvi Kogan in the United Arab Emirates. A gentle ambassador of Judaism, his young life was snuffed out by the perpetrators of evil. We grieve with his young widow, his parents and his family. May God grant them strength, solace and only simcha (“happiness”) in the future.

In this week’s Torah portion, Toldot, we read of the birth of twin sons to Isaac and Rebecca. These twins could not have been less identical. Genesis 25:27 tells us, “The boys grew; Esau became an expert hunter, a man of the field, while Jacob was a guileless man, dwelling in the tents (of Torah).”

Esau was a wild man, hunting animals as well as women. Jacob was a student of Torah. One was a gladiator, the other a sage. Esau would become the father of Rome, the destroyers of our temple, while Jacob went on to become one of the founding fathers of our faith, the patriarch who fathered the 12 tribes of Israel.

Who should we want our children to emulate: the wild warrior or the gentle scholar?

“The voice is the voice of Jacob, and the hands are the hands of Esau,” said Isaac when he was going to bestow the all-important blessings to his son and heir apparent. Jacob is forever represented by the soft voice of the Torah, of wisdom, reason and ethics. Esau, however, is not symbolized by the voice but by the violent hands that strike out and hurt others.

Jewish heroes have always been the peaceful giants of philosophy, wisdom, ethics and morals. Violent murderers are the antithesis of everything we stand for.

I feel that there is a danger today, when our heroes are our Israel Defense Forces soldiers, pilots and naval officers, as they surely should be. They are superheroes of body and soul. Every time a young man or woman puts on a Tzahal uniform, they put their lives on the line. They are prepared to give their lives to defend our homeland and our people. The most secular kibbutznik becomes a tzaddik, the holy of holies, when he makes that courageous commitment.

In fact, the Sheloh—Rabbi Isaiah Horowitz (1558-1628)—wrote that at the holiest moment of the year, on Yom Kippur, at the very climax of the Neilah service when we shout out Shema Yisrael (“Hear O Israel”), we should have in mind to give our life for God, Al Kiddush Hashem “to sanctify his name,” and it will be considered as if we actually did.

Those courageous chayalim make that pledge daily. And far too many have sacrificed their lives in the current war against terror. So it is entirely appropriate that they should be our superheroes. But the inherent danger here is that our children and the younger generation idealize war and military action, heroic though it may be. These wars of defense are a regrettable necessity in our neck of the woods. And today, sadly, Jews everywhere need to be able to defend themselves.

While we honor, cherish and admire our chayalim, they themselves would much rather be at their desktops, in the library or the yeshivah instead of on the front lines.

We dare not forget who we really are, the children of Jacob, B’nai Yisrael. Jacob is our eternal role model. Esau is the antithesis of everything we stand for.

Yes, believe it or not, Jews are pacifists. We are peace-loving people despite the scandalously libelous claims of genocide against us. Our enemies at the United Nations won’t acknowledge it, but it’s who we are.

Yes, we need the IDF, and we need it to be strong and fearless. But that is an unfortunate necessity, not an ideal.

Rabbi Zvi Kogan was a faithful scion of Jacob. His life was cut short by the hands of Esau. Perhaps the appropriate response to this tragedy would be to emulate his ways and enhance our own observance of this sacred ideal or to encourage another to embrace it.

May the voice of Jacob forever drown out and overpower the tumultuous, blood-stained hands of Esau. And may our reluctant warriors be able to go home and resume their gentle lives in peace and security.

The post The Voice of Jacob first appeared on Algemeiner.com.

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Unable to Destroy Israel Militarily, Its Enemies Resort to Lawfare

An exterior view of the International Criminal Court in the Hague, Netherlands, March 31, 2021. Photo: REUTERS/Piroschka van de Wouw

JNS.orgJerusalem has decided to appeal the International Criminal Court’s (ICC) decision to issue warrants for the arrest of Israeli Prime Minister Benjamin Netanyahu and former defense minister Yoav Gallant. Israel submitted an announcement to the ICC on Wednesday regarding its intention, along with a demand to delay the warrants’ implementation.

In its decision, the ICC said there were reasonable grounds to believe Netanyahu and Gallant were criminally responsible for acts including murder, persecution and starvation as weapons of war as part of a “widespread and systematic attack against the civilian population of Gaza.”

Netanyahu has called the accusation a “modern Dreyfus trial.”

Once again, the Jews have been placed in the docket, this time as antisemites seek to punish Israel on trumped-up charges of “genocide” against the Palestinian people, he said.

Netanyahu met in Jerusalem on Wednesday with U.S. Sen. Lindsey Graham (R-S.C.), who updated him on the efforts he is advancing in Congress against the ICC and countries that cooperate with it.

Amb. Alan Baker, director of the Institute for Contemporary Affairs at the Jerusalem Center for Security and Foreign Affairs and the head of the Global Law Forum, told JNS that practically, “assuming states agree to honor the arrest warrants, despite their being inherently invalid and ultra vires [running against] the ICC statute, they could theoretically try to arrest Netanyahu and Gallant if they enter their territory.”

In a statement published on Wednesday, the Israeli Prime Minister’s Office said Jerusalem’s notice of appeal “shows in detail to what degree the decision to issue the arrest warrants was baseless and without any factual or legal foundation whatsoever.”

Israel denies the authority of the ICC and the legitimacy of the warrants issued against the prime minister and the former defense minister, the statement continued.

Should the court reject the appeal, it will underscore to Israel’s friends in the United States and elsewhere the ICC’s bias against the Jewish state, it added.

The court lacks jurisdiction in the case for several reasons.

First, Israel is not a party to the Rome Statute that established the court, and second because Israel has its own independent, robust judiciary. Third, Palestine is not a state and does not meet the criteria for statehood under international law.

By calling for the arrest of Israel’s leaders, the ICC is violating the Rome Statute, which clearly states that complementarity is the crucial factor in such a decision.

Since Israel has a robust judicial system, it is unnecessary and unlawful for the ICC to involve itself in Israel’s internal matters, and by doing so the court breaches its foundational principles.

Furthermore, as a recent Wall Street Journal editorial noted, “The charge of deliberate starvation is absurd. Israel has facilitated the transfer of more than 57,000 aid trucks and 1.1 million tons of aid [into Gaza], even though Hamas’s rampant theft means Israel is provisioning its battlefield enemy, something the law can’t require.”

The warrant also, absurdly, calls for the arrest of Hamas leader Ibrahim al-Masri, otherwise known as Mohammed Deif, whom Israel and Hamas both say was killed in an Israeli airstrike in July.

By naming him together with Israel’s leaders and thereby feigning even-handedness, the ICC has only demonstrated morally repugnant equivalence.

The Wall Street Journal also highlighted the case of Alice Wairimu Nderitu, the U.N. Special Adviser on the Prevention of Genocide. After she declared that the war against Hamas does not meet the qualifications for genocide, the United Nations announced that her contract will not be renewed, though it has denied the two things are linked.

According to Nderitu, the term “genocide” encapsulates the Holocaust, the Hutus’ mass murder of Tutsis in Rwanda, the Serbian attacks on Bosnian Muslims and the killings being carried out in Sudan.

“As a legal matter, establishing a pattern of violence as a genocide requires demonstrating intent. Israel’s campaign of self-defense doesn’t qualify,” the Journal‘s editorial noted.

The court’s baseless case against Israel’s leaders, coupled with Nderitu’s dismissal, demonstrates that the ICC is abusing the law for political means.

Several world leaders, including President Joe Biden, have harshly criticized the ICC decision.

Biden stated on Thursday evening that warrants were “outrageous.”

Rep. Mike Waltz, tapped by President-elect Donald Trump as National Security Advisor, tweeted, “The ICC has no credibility and these allegations have been refuted by the U.S. government. Israel has lawfully defended its people & borders from genocidal terrorists. You can expect a strong response to the antisemitic bias of the ICC & UN come January.”

Hungarian Prime Minister Viktor Orban has invited Netanyahu to visit his country, assuring him he faces no risk of arrest.

While ambiguous at first, France has declared it will not enforce the warrants as Israel is not a signatory to the ICC.

Some analysts have questioned whether France’s decision was linked to the ceasefire announced Wednesday between Hezbollah and Israel.

Famed lawyer Alan Dershowitz has announced he is assembling a “dream team” to defend Israel in The Hague.

This support is crucial because so much of the international community has fallen for the widespread anti-Israel propaganda.

Hala Rharrit, a former U.S. State Department diplomat who has made her anti-Israel opinions well known, said in an Al-Jazeera interview that most of the world is feeling that “finally, finally, there is a sense that the international community is taking action, far little too late.”

She said that in the State Department, “secretly, many American diplomats are celebrating this.”

Rharrit resigned in April in protest over Biden’s support for Israel.

Several world leaders have condoned the ICC decision.

Turkish President Recep Tayyip Erdogan called the ICC warrants “courageous.”

European Union foreign policy chief Josep Borrell said, “The states that signed the Rome convention are obliged to implement the decision of the court. It’s not optional.”

Some experts have questioned whether the warrant and its implications could prevent civilized nations from fighting terrorism.

“If this progresses to a large-scale issuance of arrest warrants for a wider range of military people and politicians, it  could certainly serve as a warning to states involved in fighting terror,” said Amb. Baker.

“But this issue is more of a blatant Israel-directed issue and would not necessarily be used against other states fighting terror,” he added.

According to Natasha Hausdorff, legal director of UK Lawyers for Israel Charitable Trust, “Every phrase of every sentence” in the court’s warrant “was in fact false.”

In a conversation with Matt Frei of Leading Britain’s Conversation (LBC), Hausdorff provided a stinging rebuke to the ICC. “One example is that in furtherance of this allegation of starvation, the prosecutor relied on a report that suggested that famine might come to parts of the Gaza Strip,” she said.

“That report was subsequently debunked by a Famine Review Committee report that indicated it had been based on insufficient or incomplete information and it drew implausible conclusions,” she said.

“The overall conclusion of that process and also from the press release the court put out on Thursday is that they have made that determination to arrest Netanyahu and Gallant on the basis of this slew of false information,” she said.

Should Israel be approaching this challenge differently?

According to Baker, Israel needs to show the countries that are party to the ICC statute “that the issuance of the warrants is ultra vires the terms of the statute since the ICC cannot exercise jurisdiction in the territory of a non-state entity that has no sovereign territory.”

He added that it is “widely acknowledged that no state of Palestine exists, and the fact that the Palestinian leadership has manipulated the United Nations and ICC to treat them as if they are a state doesn’t alter the basic legal and political fact that there is no state of Palestine. Hence the ICC cannot be given jurisdiction by a non-state, and cannot issue arrest warrants.”

“Also,” he said, “as Israel is not a party to the ICC statute, its senior officials enjoy state and diplomatic immunity and thus cannot be arrested.”

The post Unable to Destroy Israel Militarily, Its Enemies Resort to Lawfare first appeared on Algemeiner.com.

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