"Misnaming things increases the misery of the world." French writer and philosopher Albert Camus

The Palestinian resistance announced that it was detaining between 200 and 250 people, including foreigners or dual nationals, during a military operation called "Al-Aqsa Flood" on 7/10/2023, in which it stormed camps and settlements adjacent to the Gaza Strip. She also said that the foreigners detained by her were guests, and that their detention was due to a lack of knowledge of their nationality, and because of the dictates of the circumstances of the military operation at the time. If security conditions permitted, they would be handed over to the International Committee of the Red Cross.

Israeli military leaders, as well as leaders of Western countries, as well as the Western media, addressed this issue with much ado, saying that all those held by the resistance are hostages, and the resistance should release them unconditionally. While the resistance said: Whoever applies the term prisoner of war will remain detained as a prisoner of war, in order to exchange it with Palestinian prisoners (the number of prisoners in the occupation prisons reached more than (5250) prisoners, including (39) female prisoners, (170) children, and (1913) administrative detainees).

Israel does not recognize the legal status of Palestinian prisoners, and says that they are treated according to its internal laws (criminal), in denial of the rights granted to them by the four Geneva Conventions of 1949, especially the third of them, as well as inhuman treatment in the way they are arrested, during interrogation, and then thrown into cells, in addition to intransigence in the matter of family visits, medical treatment, etc. The question now is: What is the difference between the term hostage and prisoner, and what is the legal status of detainees held by the Palestinian resistance? Based on the above, we ask the question of what is the difference between the term hostage and prisoner?

The First Geneva Protocol of 1977 defines military objectives as: "those that make an effective contribution to military action, whether by nature, position, purpose or use."

The hostage

A hostage is the holding of a person with the threat of killing or harming him as a means of pressure to achieve certain goals, to obtain ransom, etc. According to national law, it is a felony, and according to international humanitarian law, it is a war crime.

International humanitarian law (law of war)

International humanitarian law, also known as the law of war, is a set of legal rules governing armed conflict. International humanitarian law aims to protect people not taking part in hostilities, including civilians and prisoners of war. International humanitarian law states that holding a hostage is a serious violation of humanitarian law, and that people held hostage should be treated humanely. According to Article 8 of the 2002 Statute of the International Criminal Court, "a war crime, in the context of an international or non-international armed conflict: ... (2) Taking hostages."

National Criminal Law

Most national criminal laws state that holding a hostage is a crime. International human rights law: This is the law that is often applied in a peaceful situation. International human rights law is defined as: the set of legal rules that protect the fundamental human rights of all persons, regardless of their sex, race, religion or political beliefs. Taking persons hostage accordingly is a crime.

Captive

According to international humanitarian law, a prisoner is a person under the control of an adverse party to an international armed conflict. The definition of a prisoner is set out in the Third Geneva Convention of 1949, an international convention governing the treatment of prisoners of war. To be a prisoner of war, a person must meet the following conditions: He must be a member of the armed forces, a paramilitary force, or an organized non-state armed group engaged in hostilities. It must fall into the hands of the enemy. He must be unable to continue fighting.

As for the conditions for prisoners in national liberation movements, they are:

  • To be led by a person responsible for his subordinates.
  • Respect the laws and customs of war.
  • To bear arms visibly and wear a distinctive insignia.
  • International humanitarian law states that people detained in time of war, including prisoners, must be treated humanely.

Are the settlers held by the Palestinian resistance prisoners of war or hostages?

With regard to Israeli soldiers detained by the resistance, it is now legally determined that they are prisoners of war, and the relevant rules of war apply to them in terms of their legal status and good treatment. As for the settlers, there is a breakdown in the matter.

The First Geneva Protocol of 1977 defines military objectives as: "those that make an effective contribution to military action, whether by nature, position, purpose or use."

Jewish settlements are known to play multiple roles that have nothing to do with civic activities. From a military point of view, the settlements are collection points for weapons and military equipment, in addition to being used as focal points for military operations, making them play an undeniable military role.

On the other hand, a large number of settlers work in security posts in settlements. The settlers' bearing of arms, in addition to the military role played by settlements, strips them of the "civil protections" that humanitarian civil law confers on them – assuming they are civilians – because of their participation in hostilities under article 51 of the 1977 First Geneva Protocol.

Therefore, they are considered prisoners of war, and the Palestinian resistance must treat them well.

On the other hand, Israel does not recognize the legal status of Palestinian prisoners (members of armed resistance movements), nor even the civilians in its custody, and treats them as criminals, calling them "security prisoners", and applies its internal laws or laws that were in force during British colonialism, in order to evade its legal obligations towards them, especially the rights provided by the Geneva Conventions: the third on prisoners or the fourth on civilians. Israel denies in principle that it is an occupying Power of the West Bank and the Gaza Strip. The violations of the occupation army against prisoners and civilians (non-recognition of their legal status, the practice of all forms of physical and mental torture, the denial of visits, the denial of treatment...) constitute a war crime.