LENS Essay Series: “Reviving the Right to Rescue: Analyzing International Law on the Use of Force for Hostage Rescue in the 21st Century”

One of the grimmest aspects of recent conflicts has been the proliferation hostage-taking.  While this unconscionable tactic has been part of warfare since virtually the beginning of armed conflict, it has taken on new prominence as it is increasingly proving to be an effective tool for amoral belligerents to gain advantages. 

One way of defeating and, importantly, deterring hostage-taking is through the rescue of those taken–by deadly force if necessary. 

My sense is that most Americans would want, as a last resort, our military to try to rescue victims of hostage-taking.  It would not occur to most of the citizenry that there could be legal impediments to doing so.  However, as Duke Law 2L Katherine French points out in the latest addition to the LENS Essay Series “the legal foundation for doing so is complicated.”  

What are those complications?  Ms. French’s essay,Reviving the Right to Rescue: Analyzing International Law on the Use of Force for Hostage Rescue in the 21st Century details the legal issues involved (and you may be surprised at some of the objections).  She concludes (correctly in my view) that the “right to rescue” exists and that it ‘is not only legally permissible but morally and practically desirable.”

Here’s the abstract of Katherine’s extremely timely (and well-researched) article:

The capture of foreign nationals is becoming an increasingly popular strategy for bad actors seeking global attention or change. The recent practices of Hamas, Russia, Iran, and other enemies of the rules-based international order demonstrate this trend. While States universally recognize the illegality of hostage-taking, they fail to reach a consensus regarding how they may respond. The choice to use force to bring these nationals home is the most controversial of all.

The so-called “right to rescue” was once standard practice, but its support has faded since the signing of the United Nations Charter, which reset the guidelines on uses of force. Nevertheless, the right to rescue has not gone away. This paper explains how international law continues to support States’ legitimate ability to use force to rescue nationals held abroad by governments or non-state actors. Such a right is not only legally permissible but morally and practically desirable, as no end to the upsetting practice of hostage-taking is in sight.

If you want to really understand this in-the-headlines topic, be sure to read Katherine’s full essay found here.

About the Author

Katherine French (J.D. 2025) is a 2L at Duke University School of Law. She is from Clifton, Virginia and graduated as a Distinguished Military Graduate of Princeton University, where she majored in Public and International Affairs with minors in Spanish and Values and Public Life. She interned during her 1L Summer with the Criminal Division of the U.S. Attorney’s Office for the Eastern District of Virginia and will spend her 2L Summer with the Department of State’s Office of the Legal Advisor.

At Duke, Katherine is Co-President of the International Law Society, VP of Outreach for the National Security Law Society, 2L Rep for the Women Law Student Association, a Notes Editor for the Duke Law Journal, and a member of the Moot Court Board. Following law school, she will serve as an Army Judge Advocate.

Remember what we like to say on Lawfire®: gather the facts, examine the law, evaluate the arguments – and then decide for yourself!

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