A/HRC/24/47 10. The definition in article 1 of the Convention does not make any distinction based on whether an act is committed in time of peace or during an armed conflict. However, article 12 excludes the applicability of the Convention to situations of hostage-taking committed in the course of armed conflicts covered by the 1949 Geneva Conventions and the 1977 Additional Protocols. Furthermore, in addressing one of the most contentious issues during the negotiation of the treaty, the provision specifically excludes the applicability of the Convention to armed conflicts covered by Additional Protocol 1 (4), in which “peoples are fighting against colonial domination and alien occupation and against racist regimes in the exercise of their right of self-determination”. 11. Hostage-taking is indeed prohibited in all the 1949 Geneva Conventions and 1977 Additional Protocols.9 An authoritative commentary on international humanitarian law states that the prohibition of hostage-taking during both international and non-international armed conflicts is established as a norm of customary international law. 10 Under Additional Protocols I and II, the prohibition of hostage-taking is recognized as a fundamental guarantee for civilians and persons hors de combat.11 Moreover, the Rome Statute of the International Criminal Court lists hostage-taking as a war crime. 12 The Elements of Crimes under the jurisdiction of the International Criminal Court reproduced the definition of hostage-taking contained in the International Convention against the Taking of Hostages with an additional clarification that “the required behaviour of the third party could be a condition not only for the release of the hostage but also for the safety of the hostage”. 13 12. In sum, a combined reading of the different above-mentioned international legal instruments displays a common understanding in considering hostage-taking a prohibited, and thus criminal, act under international law. It is considered a punishable offence constitutive of a war crime within the particular context of armed conflicts. Outside the context of armed conflicts, the International Convention against the Taking of Hostages requires State parties to criminalize the offence and to cooperate in arresting, prosecuting and punishing hostage-takers. Owing to the persistent disagreements over the definition of terrorism, however, the various instruments examined above do not necessarily tie the concept of hostage-taking to the notion of terrorism. 13. For decades, several actors, including various United Nations bodies, have attempted elusively to design a generally accepted definition of terrorism. In his report to the Human Rights Council at its sixteenth session, the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism adhered to the understanding of terrorism proposed by the Security Council in its resolution 1566 (2004).14 In that resolution, the Council construed terrorism as criminal acts, including against civilians, committed with the intent to cause death or serious bodily injury, or taking of hostages, with the purpose of provoking a state of terror in the general public or in a group of persons or particular persons, intimidate a population or compel a government or an international organization to do or to abstain from doing any act, which constitute 9 10 11 12 13 14 See relevant provisions in the Geneva Conventions, common art. 3 (1) (b); Geneva Convention IV, arts. 34 and 147; Additional Protocol I, art. 75(2) (c); and Additional Protocol II, art. 4(2) (c). Jean-Marie Henckaerts and Louise Doswald-Beck, Customary International Humanitarian Law (International Committee of the Red Cross, Cambridge University Press, 2005), vol. I, pp. 334–336. Ibid. A/CONF.183/9, arts. 8 (2)(a)(viii) and (c) (iii). Henckaerts and Doswald-Beck, Customary International Humanitarian Law (see footnote 10). p. 336. A/HRC/16/51, para. 27. 5