The author, a law professor at the University of Utah and former lawyer for the Israeli military, argues that the fates of Hamas' hostages must take priority over the desire for a swift resolution of the ongoing conflict in Gaza...
To understand the current war between Israel and Hamas we must focus on the single most important issue: the safe return of over 200 innocent hostages captured by Hamas on Oct. 7.
The graphic images and videos from that day, coupled with the uncertain fate of the hostages, demand our undivided attention. These cannot be relegated to the back pages of newspapers. While there have been calls for a cease-fire between Israel and Hamas, that demand while perhaps understandable from a humanitarian perspective, must be set aside until the hostages are returned.
Despite criticisms of the Israel Defense Forces’ (IDF) actions in Gaza, it’s essential to view their operational decisions from two perspectives: 1) Israel’s obligation to secure the hostages’ return and 2) Hamas’s use of innocent Palestinians as human shields, recklessly exposing them to harm.
Undoubtedly, the distressing images and the tragic fate of innocent Palestinians are deeply troubling. The core reason for this lies in Hamas’s deliberate endangerment of Palestinians and Israel’s steadfast commitment to recovering the hostages.
Concerns exist in Israel about Prime Minister Bejamin Netanyahu’s prioritization of the hostages’ fate. Families of the hostages express justified anguish, feeling that the Israeli government lacks genuine focus or commitment to their return. Accountability, whether through commissions of inquiry or the court of public opinion, is crucial.
While the international community scrutinizes IDF actions in Gaza, those wielding the critical gaze must redirect their focus to the fate of infants, children, and the elderly held captive by Hamas for the past five weeks. The failure of the International Red Cross to insist on meeting with the hostages is reminiscent of their complicity in the Holocaust for not meeting with Jews in concentration camps.
It is as if nothing has been learned.
A cease-fire would hand Hamas a two-fold victory: innocent Israelis murdered on Oct. 7th and the IDF’s apparent inability to return the hostages. No government can tolerate this, nor should any government succumb to cease-fire pressure under these conditions.
Anti-Israel demonstrators, callously ripping up posters of the hostages should really ask themselves: “What the hell am I doing?” That blatant disregard of the fate of innocent civilians reflects a profound misunderstanding of the humanitarian requirement to ensure their safe return. Losing sight of the fact that they are held in tunnels in Gaza or some other unknown location is to be complicit in their fate and endorse conduct violating international law and basic human morality.
We as individuals, and as members of the international community, must remain focused on a nine-month-old baby held by Hamas in the Gaza Strip. Forgetting this is to be complicit in their fate and enable conduct that breaches international law and basic human morality.
Resolving this conflict will require the active intervention of multiple parties. However, the resolution of the hostage crisis must precede considerations of the broader conflict’s long-term resolution. Sequencing and prioritization are vital; minimizing the hostage crisis in favor of “the day after” risks the hostages’ fate. Temptations to prioritize the strategic questions of conflict resolution must be deferred until the hostage crisis is resolved.
Resolution must be defined solely by the hostages’ immediate release. Any other decision, whether by the international community or Israeli leadership, reflects unconscionable decision-making that can never be forgiven.
Hence, all talk of a cease-fire must be set aside, with all efforts directed towards resolving the hostage crisis. Only then can questions about the broader crisis be addressed. Hamas has undoubtedly caused harm to Gaza and innocent Palestinians, but conflating this with the hostage issue is a mistake. Placing bunkers which are in essence armories under a hospital not only violates international law; it all but ensures the death of innocent Palestinians.
The events of Oct. 7th in which Hamas murdered over 1200 Israelis leading to the capture of over 200 hostages demands our fullest attention.
To misconstrue this obligation is to guarantee their deaths.
Amos N. Guiora is a professor of law at the S.J. Quinney College of Law, University of Utah. He served for 20 years in the Israel Defense Forces Judge Advocate General Corps and is involved with the Bystander Initiative.
Opinions expressed in JURIST Commentary are the sole responsibility of the author and do not necessarily reflect the views of JURIST's editors, staff, donors or the University of Pittsburgh.