Today, Eli Sharabi, Ohad Ben Ami, and Or Levy were freed from Hamas’ hell hole. Upon their release, they were reported to be in a state of starvation, indicating they had been subjected to severe food deprivation during their captivity. This aligns with broader reports of hostages being given very little food, with some accounts mentioning a single piece of pita bread per day or less. Eli, Ohad and Or appeared frightened, suggesting they might have endured other difficult experiences beyond starvation, possibly including psychological torment.

Psychological torment refers to the extreme distress or suffering inflicted on an individual’s mental state. This can manifest in various forms, including but not limited to emotional abuse which involves behaviors that aim to control, intimidate, or undermine someone’s sense of self-worth (constant criticism, humiliation, gaslighting or manipulation); isolation, threats and intimidation to instill fear or compliance, manipulation by playing with emotions or perceptions to control behavior and decisions, constant surveillance and trauma bonding. The effects of psychological torment can be profound and long-lasting, leading to mental health issues, self-esteem problems, physical health effects and cognitive impairments.

The issue of hostage starvation in relation to Israel’s case before the International Court of Justice (ICJ) is complex and multifaceted. The world could see that hostages held by Hamas in Gaza have experienced conditions that involve “mild starvation,” as reported by an Israeli military doctor to Reuters (BBC, January 26, 2025). Evidence of hostages returning in poor health could be presented as evidence of mistreatment by Hamas, potentially bolstering Israel’s narrative or defense against allegations of war crimes or human rights abuses.

WAR CRIMES AND CRIMES AGAINST HUMANITY

War crimes are serious violations of the laws and customs applicable in international armed conflict, as defined by international humanitarian law, include acts such as murder, torture, rape, inhumane treatment, unlawful deportation or transfer, taking hostages, and intentionally directing attacks against civilians not taking part in hostilities. These acts are criminalized under treaties like the Geneva Conventions and the Rome Statute of the ICC.

War crimes can be prosecuted by

• national courts under universal jurisdiction. Many treaties explicitly or implicitly support universal jurisdiction. For example, the Convention against torture (1984) mandates that states either prosecute or extradite individuals found within their territory accused of torture. Some states apply universal jurisdiction based on customary international law, where certain crimes are recognized by the international community to warrant universal jurisdiction even without specific treaty obligations.

Universal jurisdiction is a legal principle that allows states or international tribunals to claim criminal jurisdiction over individuals for certain severe crimes, regardless of where the crime was committed, the nationality of the accused or the victim, or any other relation with the prosecuting entity. The primary aim of universal jurisdiction is to combat impunity for the most serious international crimes, ensuring that perpetrators cannot find safe havens by crossing borders. It’s rooted in the idea that some crimes are so egregious that they affect the international community as a whole.

• by international tribunals like the ICTY, the ICTR or by the ICC.

The treatment of hostages includes conditions of starvation, and human rights abuse. Human rights abuses in the context of Israeli hostages, particularly those held by Hamas and other Palestinian armed groups in Gaza, have been documented and discussed extensively. Types of Abuses reported according to several reports included beatings, and torture. Some released hostages have described being held in harsh conditions, such as small cages, subjected to physical violence, and experiencing significant weight loss due to starvation or limited food access. There are accounts of sexual abuse or witnessing sexual violence. Reports from UN experts and released hostages suggest that sexual violence has been part of the ordeal for some hostages. Mental torture, including threats, isolation, and being kept in dark tunnels without human contact, has been reported. The psychological impact can be profound, affecting hostages long after their release. Hostages often report being denied adequate medical attention, which can exacerbate injuries or lead to health deterioration.

Legal Implications at the ICJ – Defense and Counter-Arguments

Both the entity holding the hostages (Hamas) and the state (Israel) have responsibilities under international law. Hamas is obligated to treat hostages humanely, and Israel must protect its citizens and seek their release through legal channels, with the caveat that military actions should respect IHL to avoid further civilian harm.

The application of International law in modern conflicts, especially asymmetric warfare involving non-state actors or cyber operations, can be contentious. There’s ongoing debate about the accountability of states not party to the Rome Statute or the effectiveness of international justice mechanisms.

The ICC has previously argued that Israeli restrictions on aid to Gaza, including water and medicine, amount to starvation as a method of warfare, leading to arrest warrants for Israeli officials (Al Jazeera, January 28, 2025). However, this relates more directly to the treatment of the general population rather than specifically to hostages.

The physical state of today’s released hostages could theoretically be used to argue against Israel in terms of humanitarian law, particularly if Israel is seen as not doing enough to protect its citizens or if there’s an accusation of negligence. However, the primary responsibility for the condition of hostages lies with Hamas. In fact, Israel could argue that the starvation or poor treatment of hostages is a direct result of Hamas’s actions, not Israeli policy. Furthermore, Israel’s efforts to secure the release of hostages through ceasefire agreements and negotiations could be presented as evidence of its commitment to the welfare of its citizens, even under duress.

The treatment of hostages under IHL is clear; all parties to a conflict must ensure humane treatment i.e establishing direct responsibility for the starvation of hostages might be complicated. If the hostages were held in areas where Israel conducted military operations, including blockades or restrictions on supplies, the narrative could be flipped to suggest that Israeli actions contributed to the conditions of the hostages. However, proving direct causation or intent in legal terms can be challenging. The ICJ’s jurisdiction typically deals with disputes between states. While the humanitarian aspect of hostages’ treatment is significant, the court’s primary focus might be on broader legal issues such as state compliance with international law, including humanitarian law. The ICJ would look at whether there was a deliberate policy of starvation or if conditions were a byproduct of broader conflict dynamics: the starvation of hostages could be seen in this larger context but might not directly influence the core legal arguments unless tied to state policy or actions.

Beyond legal arguments, the condition of hostages can significantly affect public opinion and political pressure on how the ICJ case is perceived. However, this does not straightforwardly translate into legal outcomes at the ICJ, where decisions are based on legal merits rather than solely on humanitarian optics. When considering the “legal merits” in the context of Israel’s case before the ICJ, particularly with respect to the starvation of hostages, several key legal principles and arguments come into play:

1) International Humanitarian law:

Protection of hostages – Under IHL, hostages must be treated humanely. Any deliberate act leading to their starvation would be a grave breach of these conventions, potentially constituting a WAR CRIME.

Proportionality and Distinction – If the starvation is argued to be an indirect result of broader military operations, principles like proportionality and distinction become relevant. Israel would need to demonstrate that any impact on hostages was not due to disproportionate or indiscriminate actions.

2) State Responsibility

Attribution – For Israel to leverage the condition of hostages in its defense, it would need to attribute the starvation directly to Hamas’s actions or policies. Conversely, if Israel’s actions contributed to the conditions leading to starvation, this could be seen as a breach of its obligations under IHL.

Due Diligence – States have a duty to ensure that parties under their control do not violate international law. If Israel’s military actions or policies indirectly caused or exacerbated the conditions of hostages, this could be scrutinized under the principle of due diligence.

3) Evidence and Burden of Proof

Documentation – The legal merits depend heavily on the evidence presented. Medical records, testimonies, and direct evidence of the conditions the hostages were kept in would be crucial. Israel would need to present compelling evidence linking Hamas’s control to the state of the hostages.

Counter-Evidence: – Conversely, any evidence suggesting that Israeli actions (like blockades or military operations) contributed to the situation would need to be addressed by Israel’s legal team.

4) Jurisdiction and Applicable Law

ICJ’s Role – The ICJ mainly adjudicates disputes between states, not between a state and non-state actors like Hamas directly. However, Israel’s actions could be examined in the context of its obligations under treaties like the Genocide Convention or the laws of war, depending on the case’s specifics.

Advisory vs. Contentious – If this is an advisory opinion or part of a contentious case, the legal merits might focus on different aspects. An advisory opinion might look at broader legal questions, while a contentious case would be more about specific state actions.

4) Human Rights Law

Beyond IHL, human rights law could be invoked, focusing on the right to life and health. The starvation of hostages could be seen as a violation of these rights, though the state’s responsibility would depend on direct causation or negligence.

5) Political and Legal Strategy:

Narrative Building –While not a legal merit per se, how Israel frames its narrative—emphasizing the plight of hostages as part of a broader human rights or humanitarian law argument—can influence legal proceedings indirectly by shaping perceptions and possibly the interpretation of evidence.

In summary, the legal merits of Israel’s case regarding hostages would involve demonstrating adherence to IHL, attributing responsibility for the hostages’ condition to Hamas, and navigating the complexities of state responsibility, evidence, and the specific legal questions before the ICJ. Each aspect would need careful legal argumentation, supported by robust evidence.

Public and International Perception

The plight of hostages could garner international sympathy for Israel, potentially influencing public opinion and diplomatic support. However, this depends on how the information is presented and perceived globally. The condition of hostages might strengthen Israel’s position in arguing for the urgency of their release and the need for international pressure on Hamas, potentially aiding Israel’s diplomatic efforts.

CONCLUSION

The act of hostage-taking itself is considered a war crime under international humanitarian law, as it involves the deprivation of liberty of individuals to compel a third party to act or refrain from acting as an explicit or implicit condition for the release of the hostages. While the starvation or poor treatment of hostages by Hamas might not directly “help” Israel in its case before the ICJ in a legal sense, it could:

• Highlight the humanitarian crisis and the urgency of resolving the hostage situation.
• Serve as a point to critique Hamas’s actions, potentially garnering more international support for Israel’s position.
• Complicate the narrative around Israel’s actions in Gaza by focusing on the plight of individuals caught in the conflict, possibly influencing the broader discourse around the case.

If Israel can argue that the treatment of hostages by Hamas constitutes war crimes, this could serve as a counterbalance to any accusations against Israel for its actions in Gaza. It might be used to shift some of the legal scrutiny towards Hamas. However, it’s crucial to understand that the ICJ will primarily look at legal arguments, evidence, and adherence to international law. There is a significant challenge in ensuring accountability due to the ongoing conflict, political complexities, and the difficulty in prosecuting non-state actors under international law. Here, the hostage situation is intertwined with broader political, security, and humanitarian issues in the region, complicating the path to justice and peace.