By: Jacob Benchetrit
The surprise attacks carried out by Hamas against the Israeli populace on October 7, 2023 represent the third most deadly terrorist attack since 1970. In the early hours of the morning Hamas led armed groups carried out a series of coordinated attacks in the southwestern region of Israel that borders Gaza. The attacks targeted civilian neighborhoods and kibbutzim, social gatherings such as the Nova Music Festival, and Israeli Defense Force bases in the region, in an assault designed to kill civilians and take as many people hostage as possible. The attack resulted in an initial death toll of around 1,200 people and the taking of over 240 hostages. Many unique questions regarding the stance and application of international law resulted in the aftermath of the October 7th Attack.
One such question centers around the rights and obligations of a state under international law to rescue its citizens that are being held hostage. This question has risen to the forefront of scholarly discussion in light of Hamas’ murder of six hostages taken during the October 7th Attack, one of whom was American citizen, and California native, Hersh Goldberg Polin. In order to determine whether a state has an inherent right or obligation to rescue one of its citizens being held hostage one must assess the applicable international law and the evolution of the so-called right to rescue doctrine.
Hostage taking is defined as the seizing or detaining and threatening to kill, to injure or to continue to detain another person. It has long been outlawed under international law under the International Convention Against the Taking of Hostages. Historically, the use of force was allowed in hostage rescue attempts, but was thrust into a sea of uncertainty after the adoption of the U.N. Charter, as Article 2(4) establishes the prohibition on the use of force as a jus cogens norm; meaning the prohibition is peremptory. However, Article 51 of the Charter does outline the exceptions of self-defense and limited Security Council-authorized actions. While many scholars view these exceptions as limited police powers, others extend the umbrella of these police powers to include the use of force for the rescue of nationals held hostage abroad as opposed to classifying them as a violation of a jus cogens prohibition on the use of force.
As such, a topic that has been addressed at length by academics around the world is whether a state has the right to rescue its citizens that are being held hostage. Kristen E. Eichensehr lays out a four pronged assessment for the use of force to be justified in instances of hostage rescue operations. First, the magnitude of the harm caused by the taking of the hostage(s) must pass a character threshold. Generally, she posits, the number of hostages is a factor, but, more importantly a state can make the best argument for justification if the hostages were targeted due to their position as it relates to the state, meaning that the hostages were employed by the state or were taken within an embassy setting, as was the case during the Iran Hostage Crisis. In the case of the Iran Hostage Crisis, the hostages consisted of employees of the United States Government within the U.S. Embassy in Iran. Second, the rescue must arise out of necessity beyond the failure of international organs to secure the hostages’ release. Rather there must be effective certainty of the hostages being in imminent physical peril and a lack of non-forceful alternatives. Scholars offer wide latitude for the certainty requirement of the necessity prong. Third, the threat to the hostages must be immediate, both in the sense that physical harm is imminent and that a change in circumstances will cause the rescue of the hostages to be impossible in the future. Last, the force exerted in the rescue operation must be proportional. This means that the least amount of force necessary to carry out the rescue must be used and that the sole object of the operation must be to rescue the hostages.
In the context of the October 7th Attack, one could make an argument that both Israel and the United States had a right to rescue their nationals being held hostage by Hamas in the Gaza Strip. The magnitude prong is certainly the most difficult hurdle for this argument as many of the hostages taken were not employed by their governments nor were they taken hostage while operating in a governmental adjacent capacity. Despite this, the fact that a large number of hostages were taken–reports indicate that at least twelve of the 240 hostages were American citizens–coupled with the fact that the stated objective of the attacks were to capture civilians due to their nationality weighs in favor of meeting this requirement.
The necessity prong is an easier sell. There have been an overwhelming number of pictures, videos, and press releases that have shown the hostages being physically harmed as well as physical examinations of returned or rescued hostages and bodies of deceased hostages that indicate physical abuse. Considering the wide latitude afforded to states in determining certainty of harm, this element is likely met. Regarding the lack of non-forceful options, the United States and Israel have conducted multiple hostage negotiations to varying levels of success, but recent hostage negotiations have shown to be futile, as evidenced by the aforementioned murder of six hostages. While non-forceful options may have presented themselves prior, the murder of the aforementioned hostages points in the direction of their lack of utility.
In terms of the immediacy requirement, the same developments play an important role. Some studies indicate that less than five percent of hostage situations result in the death of the hostage. The fate of the six hostages recently murdered by Hamas falls into this minority category. Reports indicate that the murder of these six hostages occurred within seventy two hours of their bodies being found, displaying both the immediate nature of potential physical harm to the remaining hostages and that the slightest change in circumstances may make rescue impossible at a later time.
If either the United States or Israel are to carry out further hostage rescue operations then their operations must remain proportional. In order to maintain a sole focus of hostage rescue during the operation these states may look to previous hostage rescue operations that Israel carried out in the past few months. One in particular was Operation Seeds of Summer, carried out in June of 2024. The operation was carried out to retrieve four hostages from the Nuseirat camp in central Gaza and resulted in a successful rescue. Despite the ongoing war in the region, the operation itself maintained razor focus on the rescue of the hostages, with the special forces entering the building they were kept in, exfiltrating the hostages, and leaving in armored vehicles immediately after. As for the use of the least amount of necessary force, the matter is much more subject to raw data analysis and comparison tools that would require a greater discussion in itself.
To conclude, the October 7th Attacks presented many unique questions of international law. The recent murder of six Hamas held hostages brought the question of the right and obligation of a state to employ the use of force to rescue their citizens being held hostage under international law. Scholars have long debated the viability of the so-called right to rescue doctrine, but newer academics have laid out a framework for the determination of when and how the use of force is justified to rescue hostages. By using this framework and learning from previous experience, countries such as the United States and Israel may find effective means of rescuing their nationals being held hostage within the bounds of international law.
