October 7th Sexual Violence as Crimes Against Humanity

March 24, 2024

Prof. Ruth Halperin-Kaddari *

On the 4^th of March 2024, the Under-Secretary-General of UN, Special Representative on Sexual Violence in Conflict, Ms. Pramila Patten, published a report on the fact-finding mission she conducted with a technical team a month earlier,  that there were reasonable grounds to believe that  conflict-related sexual violence occurred during the seventh October attacks in multiple locations across Gaza periphery, including rape, and gang rape in at least three locations, and there is clear and convincing evidence that hostages in Gaza were subjected to sexual assaults that were probably still on-going.

I shall argue that the report published by the SRSG, not only contains sufficient findings to establish the systematic nature of the sexual violence, it provides enough information to determine that the acts of sexual violence committed by Hamas on October 7^th constitute crimes against humanity.

The publication of the report  was a culmination of a process that started right after the 7^th of October. On the following day, upon realizing that Hamas had so many hours to operate uninterruptedly in civilian and military locations before Israeli security forces arrived, and recalling the horrific accounts that I heard from survivors of sexual violence in other conflict areas such as Bosnia, Rwanda, and the Yazidis, the likelihood that Hamas too weaponized women was clear to me. I contacted Ms. Patten, whom I knew from the years during which we were both members of the CEDAW Committee, to find out whether and how her office could get involved, in a similar manner to her involvement in comparable situations, such as following Russia’s invasion into Ukraine and the massacre in Bucha.

Numerous issues had to be overcome in arranging for the SRSG’s visit including Israel’s entrenched hesitancy from cooperating with the UN, and the understanding that unlike in previous settings, in Israel the SRSG would not have verified UN information gathered by UN investigative mechanisms available to her, for there are no such mechanisms on the ground in Israel. Both these issues took some time to resolve, and on November 27^th Special Representative Patten responded positively to an invitation from the Government of Israel to conduct an official visit. In a statement she issued on December 8^th, upon the release of the first group of hostages, she “welcomed [the visit] as an opportunity to meet with survivors of conflict-related sexual violence, including recently released hostages, in order to amplify their voices, and hear testimonies first-hand”. She unequivocally condemned the attacks by Hamas on the 7^th of October and expressed her serious concern over horrific reports of sexual violence and atrocities allegedly committed by them and expressed sympathy for the severe collective trauma wrought by this brutality.

The visit took place between 29 January to 14 February. As explained in the press release announcing the visit, its purpose was to gather information on sexual violence reportedly committed in the context of the attacks of 7 October 2023 and their aftermath. [1] Unlike visits conducted by the SRSG in other places, in this visit she was accompanied by an expanded technical team of nine highly qualified experts from various UN entities, including staff from the office of the SRSG-SVC and specialists trained in safe and ethical interviewing of survivors/victims and witnesses of sexual violence crimes; a forensic pathologist; and a digital and open-source information analyst. [2] I had the privilege of accompanying the team for most of the first week and could appreciate the high degree of cooperation it received from all the relevant stakeholders.

While the visit’s outcome was originally meant to remain an internal document to serve as a source of information for the SG’s annual report, the whole report was eventually published, with the necessary omissions to secure privacy and protect the sources of information. In the press conference that accompanied the publication, the SRSG was attacked for not having met with victims/survivors of the sexual violence, and for not adequately addressing the Palestinians’ allegations against IDF soldiers. Both these points were answered in the report itself: the SRSG could not meet with survivors for the grim reason that most of the victims of the sexual assaults had been murdered, or taken hostage, and those that remained were too traumatized to speak. As for the allegations against IDF soldiers, the SRSG explained it was not for her to verify them, since there were other UN entities mandated to do that. [3]

While the SRSG clarified that the mission team could not ascertain whether sexual violence was used as a tactic of war, or in a widespread and/or systematic manner, she also explained that this was due to the limited time that they had and that it would require a fully-fledged investigation. [4] Nevertheless, the report was also met with some criticism from the Israeli side, for not having found the sexual violence of October 7 to be systematic, or attributable to Hamas. [5]

In what follows, I shall argue that not only does the report contain sufficient findings to establish the systematic nature of the sexual violence, but that even without this conclusion, it provides enough information to determine that the acts of sexual violence committed by Hamas on October 7^th constitute crimes against humanity. According to the report, “across multiple locations of the Gaza periphery, a pattern of victims, mostly women, found fully or partially naked from the waist down, with their hands tied behind their back and/or tied to structures such as trees and poles, and shot.” [6] This is a distinct finding of a pattern. In addition, the mission found “reasonable grounds to believe that conflict-related sexual violence occurred during the 7 October attacks in multiple locations across Gaza periphery, including rape and gang rape, in at least three locations.” [7] This could also be taken as an indication of a pattern.

But what’s more important is the fact that for a determination that the sexual violence committed by Hamas on October 7 constitutes a crime against humanity, there is no need to ascertain its prevalence or even the accurate attribution. According to the Rome Statute, when rape is committed “as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack”, it constitutes a crime against humanity. [8] The report’s findings meet these elements. The report refers to “a coordinated attack by Hamas joined by other armed groups”, and states that “[t]he complexity and modus operandi of the attacks, which seem to have occurred over three cumulative waves, appear to demonstrate a significant level of planning, coordination and detailed prior knowledge of the targets selected.”[9] Clearly, then, the rapes and the gang rapes that took place on October 7^th were committed as part of a “widespread or systematic attack directed against any civilian population, with knowledge of the attack”, and thus constitute crimes against humanity.