I write in the shadow and continuing pain of the mass atrocities perpetrated by Hamas and its collaborators on October 7th — murder, rape, torture, mutilation, pillaging and burning — culminating in the cruel and violent abduction of 251 hostages into torturous Hamas captivity, of which 94 hostages remain 475 days later.

I write also in the moving moment of the release of three Israeli hostages. Romi, Doron, and Emily — “our daughters” from the family of hostages — taunted and tormented by howling mobs of Hamas supporters, as they were transferred to the custody of the Red Cross, the first time the international aid organization had seen them in their 470 days of captivity. And on the eve of the impending release on Saturday of four more female hostages, as well as details regarding which of the some 30 remaining hostages are still alive.

It is the first stage of a three-stage process towards the release of 94 more hostages in exchange for the continued release of close to 2,000 security detainees and terrorists, many with blood on their hands. The asymmetry of paradigms — rescue and recovery of hostages, versus freeing for convicted mass murderers — rewards terrorist criminality and extortion while incentivizing further acts of terror and bloodshed.

In announcing the agreement, Hamas leaders reiterated, yet again, their intention to commit the heinous crimes of October 7th over again. The mass murderers being released to secure the return of innocent civilians taken hostage could be the architects or perpetrators of the atrocities Hamas proclaimed their intention to commit again.

Simply put — if past be prologue — more than acquiescence to extortion, this asymmetry not only rewards and incentivizes, but entrenches, rather than removes, Hamas. Indeed, the previous release of over 1,000 terrorists in the Gilad Shalit exchange included Yahya Sinwar and other murderous Hamas leaders who went on to perpetrate the horrors of October 7th. The international community should be combatting, rather than indulging, such asymmetry and its attending acts of extortion and incentivization of terror.

No country should be put in such a painful and impossible position, and every country should have condemned this dangerous paradigm from its inception.

From the Israeli and Jewish people’s perspective, it reflects the commitment to the redemption of captives (pidyon shvuim) as a supreme principle, for which transgressing the Sabbath is even permissible (as when the Israeli cabinet met on Shabbat to authorize the agreement); as well as the Covenant of Fate, between the Israeli government and its people that mandates the rescue of its people as itself being a supreme value. The community of democracies must stand steadfast against Hamas and the terrorist exploitative extortion of these values.

The global condemnations of Israel, coupled with the indulgence of Hamas’s ongoing “rejectionism” of a negotiated hostage-ceasefire agreement — including Hamas’s demands to release mass murderers in exchange for civilian hostages — only prolonged the painful process, and the pernicious paradigm that underpinned it. In not condemning Hamas’s outrageous demands, the international community delayed both the release of hostages and a ceasefire agreement, and thereby contributed to the suffering of Palestinians and Israelis alike.

A hostage release and ceasefire could have likely been achieved earlier — and many lives and universes been saved — had the world held Hamas accountable, and more clearly and unequivocally called for the release of the hostages as a stand-alone imperative and international legal obligation.

Indeed, I advocated in support of the framework agreement for a hostage release and humanitarian ceasefire immediately following the first agreement at the end of November 2023. I continued to reaffirm it, and then supported the framework agreement proposed in May by then-US president Biden and supported in Israel, but rejected by Hamas. As well, I supported former US Secretary of State Antony Blinken, when he spoke of the “fierce urgency of now” in his August reformulation of the agreement, and, as Secretary Blinken mentioned in recent public statements, Hamas was emboldened by the “daylight” created with Israel and the giving of a free pass to Hamas.

Accordingly, in the immediate aftermath of these “barbaric acts which outraged the conscience of mankind,” as the UN Declaration on Human Rights characterized the mass atrocities of the Holocaust, and where October 7th has been characterized as the worst day in Jewish history since the Holocaust, our Raoul Wallenberg Centre for Human Rights, which I chair, developed an advocacy plan for the release of the hostages. I also co-authored a piece with our hostage legal team lead Brandon Silver calling for the “immediate” and “unconditional” release of the hostages as “a stand-alone imperative,” irrespective of where one stands on the Israeli-Palestinian conflict, or any other consideration.

In particular, we characterized the urgency of the release of the hostages as a “humanitarian imperative” of the first order, given the violent abduction of babies, children, women, wounded, the infirm, and the elderly, Holocaust survivors amongst them. Those taken captive included the most vulnerable of the vulnerable, and they languished in Hamas captivity, where 98 hostages, about half of whom are believed to no longer be alive, remain in horrific conditions 15 months later. Their kidnappings posed a moral imperative of the first order, grounded in the foundational principle of humanity, and the inhumanity of their tortuous captivity. It is a legal obligation of the first order, as every day that hostages remain in captivity is an ongoing crime against humanity. It is also an international legal obligation of the first order, given that the hostages also include nationals from over 30 countries, whose abduction constitute war crimes, crimes against humanity, and mass atrocities constitutive of acts of genocide.

The Raoul Wallenberg Centre for Human Rights has been serving as pro bono counsel to hostage families, and has been engaged with them since late October 2023. What follows is a narrative of the sequence and substance of our involvement and advocacy, which also serves as a looking glass into the run-up of the hostage-ceasefire agreement, finally concluded on January 17th.

First, in the days following the genocidal attack on October 7th, we mobilized and began pursuing diplomatic, judicial and legal advocacy strategies on an international level to secure the release of the hostages. We called on all those involved to prioritize bringing them home. Accordingly, we also established a Hostage Advocacy Task Force, where the imperative of hostage release became a priority on our Wallenberg Centre’s “Pursuit of Justice” agenda.

Second, we led high-level delegations of hostage family members to capitals around the world, including the United States, Canada, and the European Union. These delegations featured meetings with world leaders, expert officials, testimony in legislatures and engagement with the media, the whole to focus global attention and action on Hamas atrocities — and the need for the immediate and unconditional release of the hostages.

Third, during our engagement, we sought to remind the international community that Hamas is not only a terrorist organization under US, Canadian, and international law; it is an antisemitic, genocidal terrorist army and statelet — not because I say so, but because Hamas says so, in its founding charter of 1988 and since. Indeed, it has sworn to commit October 7th mass atrocities “again and again and again.” This constitutes incitement to genocide that is a standalone breach of the Genocide Convention, and where the State Parties to the Genocide Convention are required to “prevent and punish” these acts of genocide.

Fourth, early on, our RWCHR had proposed an international action coalition of states against hostage-taking, to develop a critical mass of advocacy for this purpose. While such a standing mechanism was regrettably not established, it should still be pursued to help ensure the implementation of the present hostage-ceasefire agreement and protect against future hostage-taking.

Fifth, our advocacy, combined with expert legal submissions and sanctions appeals, led to the designation of terrorist entities and their leaders and the seizure of their assets globally. In particular, our RWCHR also pursued justice and accountability — and pressure on the hostage-takers — via strategic litigation. In particular, we sought to ensure that evidence of Hamas atrocities and hostage-taking crimes were presented to international bodies, such as United Nations Special Rapporteurs and the International Criminal Court. We engaged with the Chief Prosecutor of the International Criminal Court, including hosting him for a visit to the crime scenes and sites of the hostage-taking in Israel, and filing a 1,000 page brief against Hamas leaders on behalf of hostages at the ICC in the Hague.

Sixth, in partnership with Hostage Aid Worldwide, we hosted world leaders on the heels of United Nations High-Level Week on combatting global hostage taking. UN Secretary General Guterres delivered a keynote address where he belatedly, but unequivocally, condemned Hamas hostage-taking and echoed calls for the immediate and unconditional release of their captives. The Ambassadors of the US, UK, Germany, and Argentina similarly spoke out, moderated by Canadian Ambassador and UN Economic and Social Council President Bob Rae and with opening remarks by the Canadian Foreign Minister. Joint statements of likeminded countries were published, sending an important message to perpetrators.

Regrettably, while we proposed at the time the international action coalition referenced above, such a standing mechanism was not then established.

Now that a deal has been secured – and assuming it holds through the first three stages -Israel should, in concert with the US and Arab allies, put a strategy in place for “the day after” – which has arrived.

First, Israel should frame a strategy for the governance of Gaza based on the seven “Ds” – the Disarming of Hamas; the Dismantling of its terrorist infrastructure; the Demilitarization of Gaza; the Deradicalization of the genocidal ideology; De-escalation of conflict zones in the region; the Deployment of a civil government administration for the protection and governance of the security, health and well-being of its inhabitants; and the Development and rehabilitation of the Gazan infrastructure.

Second, a state commission of inquiry should also be formed, which would improve Israeli governance by addressing the failures of October 7th, and thereby also provide important healing for the people and public of Israel. It would also further strengthen the complementarity legal principle in the ICC Statute – that the ICC will not substitute its judgement where there exists, as in Israel, an independent judiciary that reviews compliance with international law; thereby protecting Israel in the international legal arena and facilitating the withdrawal of ICC arrest warrants.

Third, Israel should not embark on yet another judicial overhaul which polarized, divided and weakened Israel, while Iran and its terrorist proxies Hamas and Hezbollah were thereby aided and abetted in their criminal planning and preparation of the mass atrocities of October 7th. To paraphrase Einstein, insanity is repeating the same action over and over again and expecting a different result.

Fourth, Israel should initiate prosecutions of Hamas terrorism on October 7th so that a Nuremberg-like legal process can be implemented and the evidence and documentation of the horrors of October 7th can be secured and acted upon.

Finally, as part of “the day after” which is now, Israel should frame a “political horizon” for a pathway to peace with the Palestinians, expansion of the Abrahamic Accords, and normalization with Saudi Arabia.

As the hostage deal unfolds, the international community must ensure that Hamas is held accountable to its commitments, for the sake of both the Israeli hostages and Gazan civilians. Every life is a universe and must be safeguarded, and there is now an historic opportunity to build a brighter future for all. We must seize it for the sake of our common humanity.

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