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Hostage-Taking Chapter II Hostage-Taking The development of the international humanitarian law rules that prohibit hostage-taking followed a similar trajectory to those relating to collective pun- ishment recounted in the previous chapter, although the transition from per- mitted practice to a prohibited one was much more abrupt. The taking of hostages had been embraced by belligerents as a means of warfare from ancient times right up to the Second World War, after which it was transformed almost overnight into one of the most egregious violations of international humani- tarian law, a grave breach of the 1949 Geneva Conventions. Previously, hostages were exchanged pursuant to interbelligerent agreements and taken from com- munities as a means of ensuring compliance with demands and for the purpose of deterring hostile acts. Those held were frequently executed in the event of disobedience, killed in response to the acts of others. As such, the taking and particularly the killing of hostages was based on a notion of collective respon- sibility, whereby those held were liable to death, injury, or continued detention for the acts or omissions of the target group or its members.1 The use of hostages was common during the wars of Ancient Greece and Rome. These were usually exchanged or taken to ensure the maintenance of truces and other agreements, and although an injured State often “wreaked a terrible vengeance on the foreign hostages,” they were, for the most part, treated with courtesy and consideration.2 Early international law writers, such as Grotius and de Vattel, supported the taking of hostages, but opposed their killing, if the hostages themselves were innocent of any crime.3 But killed they were, through- 1 Unless otherwise stated, hostage-taking is used in this chapter to mean both the taking and the killing or ill treatment of hostages. 2 Coleman Phillipson, The International Law and Custom of Ancient Greece and Rome, Volume II, London: Macmillan and Co., Ltd., 1911, pp. 295–296. On the subject of killing hostages, Arthur Kuhn contended that even the Romans “recognized the obli- gation to connect the hostage with the reprehensible act,” Arthur K. Kuhn, “Editorial Comment: The Execution of Hostages,” 36 American Journal of International Law (1942) 271, pp. 271–272. 3 Grotius wrote that “Hostages should not be put to death unless they have them- selves done wrong,” Hugo Grotius, De Jure Belli ac Pacis Libri Tres, Amsterdam: Johan Blaeu, 1646, Book III, Chapter XI, XVIII, translated by Francis W. Kelsey, Vol. II, Washington: Carnegie Endowment for International Peace, Division of International Law, 1925, p. 742. He elaborated that “according to the strict law of nations a hostage can be put to death; but that is not also in accord with moral justice, unless there is fault on the part of the hostage meriting such punishment,” Book III, Chapter XX, LIII, at p. 81 82 • Collective Responsibility Under International Law out the wars of the nineteenth and early twentieth century, culminating with the notorious mass executions of hostages during the Second World War. Hostages were taken for a variety of reasons: to secure performance of a treaty, to pun- ish hostile governments, to ensure compliance with requisition demands, the levying of contributions or the collection of fines, to deter hostile acts, such as sabotage or espionage, and to pressure a community to deliver up an offender in the event of attacks.4 Persons were also used as “prophylactic hostages,” or human shields, whereby they were placed at objects of military importance, such as trains or military installations, for the purpose of deterrence.5 Hostage-taking in the latter half of the twentieth century and at the begin- ning of the twenty-first century has become a very different beast. It is now almost entirely a non-State phenomenon, a favored tool of resistance, separatist, and national liberation movements. A cheap means of warfare, it is also com- mon outside the sphere of armed conflict, and with the advent of the “western hostage,” the community that is now likely to be held to ransom is far-removed from the small town or village of earlier times. In exploring the development of the rules on hostage-taking, this chapter will show how international human- itarian law has sought to respond to the challenges presented by the modern theater of conflict with its ever-changing cast of actors. Hostage-taking was used for many of the same purposes as collective pun- ishment and similarly relied upon an imputed collective responsibility of the particular community from which the hostages were taken. Hostages were seized from within a group to deter acts being committed by members of the group. The collective responsibility involved did not entail anything approaching the actual responsibility of the community for the individual acts for which the hostages would be held liable. It was the solidarity of the group that would, in theory, contribute to deterrence. As Ellen Hammer and Marina Salvin observed, 828 of Kelsey’s translation. Writing on the exchange of hostages pursuant to interstate agreements, de Vattel put it that “[t]he liberty of the hostages is the only thing pledged: and if he who has given them breaks his promise, they may be detained in captivity. Formerly they were in such cases put to death;—an inhuman cruelty, founded on an error. [ . ] The custom of nations, the most constant practice, cannot justify such an instance of barbarous cruelty, repugnant to the law of nations,” De Vattel, The Law of Nations; or, Principles of the Law of Nature, Book II, Chapter XVI, § 247, 261, trans- lated by Joseph Chitty, London: S. Sweet, Stevens & Sons, and A. Maxwell, 1834, pp. 238, 243. 4 See Ellen Hammer and Marina Salvin, “The Taking of Hostages in Theory and Practice,” 38 American Journal of International Law (1944) 20, p. 21; Donald A. Wells, The Law of Land Warfare: A Guide to the U.S. Army Manuals, Westport, Connecticut/London: Greenwood Press, 1992, p. 13; Gerhard von Glahn, The Occupation of Enemy Territory . A Commentary on the Law and Practice of Belligerent Occupation Minneapolis: University of Minnesota Press, 1957, pp. 237–238; H. Wayne Elliott, “Hostages or Prisoners of War: War Crimes at Dinner,” 149 Military Law Review (1994) 241, p. 246. 5 H. Wayne Elliott, “Hostages or Prisoners of War: War Crimes at Dinner,” p. 246. .
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