October 7 and beyond: Hamas's use of sexual violence was systematic weapon of war, report finds

Yahoo

2 days ago

The report concludes that "Hamas used sexual violence as a tactical weapon of war," a finding that carries potentially far-reaching consequences in the international realm.
Content warning: This article contains disturbing references and descriptions of physical and sexual violence. Reader discretion is advised.
A new report on the systematic use of sexual violence by Hamas terrorists against Israelis in the Gaza border area on October 7, 2023, offers a framework to approach the legal monstrosity of proving and eventually indicting the perpetrators of such crimes.
The fact that the attacks were carried out by a group driven by a particular ideology is itself enough of a basis for a new evidentiary model, the report suggests, adding that there is legal precedent for this type of model.
This model suggests that when the perpetrators agreed to breach Israel's borders on that fateful Saturday, they consented to all the crimes that would be carried out. As such, the group as an entity bears responsibility, as do the individuals within, especially given the systematic pattern of sexual violence evidenced on October 7 and by some who did them to captives later on.
The full report can be viewed at www.thedinahproject.org
The Dinah Project, which authored the report, is comprised of five women, legal and gender experts in their own right, who came together after October 7 to form 'the leading resource for recognition and justice for victims of Conflict Related Sexual Violence.'
The report finds that 'Hamas used sexual violence as a tactical weapon of war,' a conclusion that carries potentially far-reaching consequences in the international realm. CRSV has been documented in other conflict zones, such as Nigeria and Iraq.
The report, titled 'A Quest for Justice: October 7 and Beyond,' was authored by the Dinah Project's founding members: Prof. Ruth Halperin-Kaddari, Col. (res.) Sharon Zagagi-Pinhas, and retired judge Nava Ben-Or. The team, led by Halperin-Kaddari, analyzed and verified what they could on CRSV from October 7, including incidents of rape, gang rape, torture, and humiliation. Other team members include Eetta Prince-Gibson and Nurit Jacobs-Yinon, the visual editor of the report.
The report documents the widespread and systematic use of sexual violence during the October 7 attacks across at least six different locations: the Nova music festival, Route 232, the Nahal Oz military base, Kibbutz Re'im, Kibbutz Nir Oz, and Kibbutz Kfar Aza.
The main issue that confronted the researchers was gathering the evidence, as 'most victims were murdered; survivors and released captives may be too traumatized to come forward and testify against their abusers; and forensic evidence required for criminal convictions is difficult to obtain in crime scenes that remain war zones.'
The Dinah Project suggests two essential frameworks: evidentiary and legal. The evidentiary one 'organizes and categorizes all available information based on its reliability and source,' including testimonies, accounts from survivors, first responders, and any visual evidence that can be gathered. The legal framework 'offers a tailor-made evidence model' for CRSV.
Traditional evidentiary approaches don't work with CRSV, the report states, since conflict settings render traditional evidence unstable and unreliable. It suggests expanding the legitimacy of evidential sources to eyewitness and earwitness accounts, as well as circumstantial evidence. CRSV also targets communities in a unique way, not just harming individuals, but also their wider circles. As such, the broader context of the attack should serve as evidence in itself.
What establishes CRSV is the pattern recognition, the report states: 'Recurring patterns across multiple incidents... establish systematic nature and intentionality.'
To build a strong body of evidence, the report suggests recognizing CRSV as a distinct category with its own, specialized evidentiary paradigms; broadening that model from being victim-centered so that the 'systematic silencing of victims' could be accounted for; diversifying what is considered admissible evidence; applying joint criminal responsibility to all the perpetrators as opposed to demanding a direct link in specific acts; taking into account community harm; and applying a higher-than-normal standard of credibility.
Although they are less conventional, all of these suggestions take into account CRSV's tragically unique circumstances.
International frameworks exist (in the form of United Nations Security Council resolutions and others) that acknowledge the communal aspect of CRSV, but there is no formal legal definition.
Several UN and international NGO reports on the sexual violence crimes of October 7 paved the way, however, despite facing comprehension challenges within their given frameworks, as did arrest warrants from the International Criminal Court, which were also issued to Prime Minister Benjamin Netanyahu and former defense minister Yoav Gallant.
In the warrant for Mohammed Diab Ibrahim al-Masri (Mohammed Deif), commander of Hamas's military wing, the ICC attributes 'reasonable grounds' for 'rape and other forms of sexual violence as crimes against humanity and war crimes.' The report's findings correspond with what is available from the gathered external reports.
This reality demands that more weight be given to personal accounts from survivors, eyewitnesses, earwitnesses, first responders, workers from the Shura military base – which served as the morgue – healthcare workers, therapists, and other open sources, like media.
Many freed hostages gave interviews and testimonies upon return, providing this basis. Collectively, attempted rape and sexual assault occurred at the Nova music festival site. Forced sexual acts, sexual abuse, forced nudity, verbal and physical harassment, verbal and sexual harassment, threats of rape, stripping of sexual and gender identity, threats of forced marriage, and sexual humiliation faced the hostages in captivity.
The testimonies of 15 former captives were compiled for the report.
Because the majority of the victims are no longer alive, and those that are can't all speak about it, 'The testimonials by those who saw or heard sexual violence taking place serve as a main source of information,' the report says.
Some saw the attacks while they hid, while others heard sounds and voices, 'including screams of women begging for help or begging the perpetrator to stop, that leave no doubt as to what went on.' Other testimonies are from people who heard those who were with the victims at the time of the attack begging for it to stop.
'These witnesses are themselves survivors,' reads the report, noting that this explains why it took survivors so long to step forward.
One important thing the report notes is that while these testimonies, along with those of first responders, are not first-hand testimonies of victims, 'They do serve as direct sources of evidence with a high degree of reliability. Many of them go beyond the categories that are often referred to as circumstantial evidence.'
The report includes testimonies from 17 witnesses that addressed over 15 separate cases: at least four accounts of gang rapes on October 7; eight cases of rape or severe sexual assault, some in captivity; three or four separate cases of sexual assaults; and three separate cases of mutilation. These took place across several locations: nine near the Nova music festival site, two near the Nahal Oz military base, one near Route 232, and four in captivity.
Most of the rape victims were murdered during or immediately after the attack, and 'there was more than one report of continuous sexual assault after the victim was no longer alive,' the report said.
'It is important to note that one of the hallmarks of CRSV is the public nature of the sexual attack, which is purposefully done out in the open in front of spectators to instill yet more fear and terror.' Additionally, since the attacks were carried out within a short time span, this strengthens the idea that they were a pattern.
Among the first responders, the research was divided into three groups: the security forces who came to fight Hamas, ZAKA volunteers who are trained in the collection of bodies in emergency situations, and civilians. Testimonies were gathered from 15 people: four security force members, four first responders, and seven civilians.
'Overall, 27 different individuals recounted at least 30 different accounts from at least six different locations. While it is impossible to assign a precise number, it is clear that these amount to a few dozen cases, all of which exhibited indications of sexual assaults,' reads the report.
Some of the descriptions included 'bodies with objects inserted into their private parts, bodies with signs of shooting or other mutilations in the area of the genitalia, bodies of naked women cuffed onto trees, bodies of half-naked or fully naked women, some lying with their genitalia exposed and legs spread.'
Most of the cases – at least 13 – were from the area of the Nova music festival; five were in the area of Kibbutz Be'eri, three near Kibbutz Alumim, one near Route 232, one near Kibbutz Nahal Oz, and one near Kibbutz Re'im.
'All of the first responders who were at the Nova festival site described the same scenes: Dozens of female bodies naked or partially naked form the waist down, many of them bleeding from the genitalia as a result of gunshots,' reads the report, adding that some of the external reports corroborate these accounts.
All recovered bodies were transferred to the Shura military base for identification and to be prepared for burial. The testimonies from there are consistent descriptions of bodies of mostly females 'completely or partially undressed and/or bleeding from the lower parts, some with clear signs of shots in the genitalia area, and/or with other signs of mutilation, including burning, in their sexual organs.'
Survivors were treated and are still being treated by healthcare providers and therapists. The Dinah Project team received indications that these accounts hold information on abuse, torture, sexual violence, rape, and gang rape, but for confidentiality and ethical reasons, they were not publicized.
The last leg is visuals, which recorded the atrocities of the attack in real time. They depict 'forced partial or full nudity, sometimes accompanied by public display; sexual humiliation by various acts of violence (e.g., kicking, jumping over, stomping) directed at the genitalia or the buttocks; possible mutilation of the genitalia.
'Prominent among those is the footage depicting the kidnapping of the body of [slain hostage] Shani Louk... Louk's dead body was seen thrown onto the back of a van and paraded in Gaza, almost fully naked, surrounded by cheering terrorists. Similar content was posted on Telegram, depicting the desecration of bodies of partially naked male hostages, including stomping on their genitalia.'
Soon after October 7, Israeli security authorities opened an investigation into the identities of the attackers, which is still ongoing. However, since they are following traditional evidentiary procedures, the team estimates, they are running into a wall. 'Classical doctrines have yet to develop the tools necessary to deal with the phenomena of mass atrocities.' This is where the Dinah Project's model comes in.
Under international law, CRSV crimes are defined as war crimes and crimes against humanity. What the report proposes is that, due to the unique circumstances of these crimes, 'all terrorists who participated in the attack bear full responsibility for all acts of sexual violence committed during the attack, especially the commanders of the terrorists in various locations.'
Not only can responsibility be applied to all those who participated in the attack, but it is 'legally and morally proper' to do so, due to Hamas's ideological underpinnings and what drove the attacks in the first place,' the report says.
'Each participant entered a situation in which they acted collectively with others to achieve the objectives of this attack and joint responsibility for all crimes committed thus constitutes a necessary legal conclusion.' The fuel for the attack was Hamas's ideological foundation, 'which merges radical Islamist doctrine with elements of traditional European and Nazi antisemitism,' including 'explicit genocidal intent' that was 'fundamentally driven by a complete and other dehumanization of the Jewish people.'
One example is a book that IDF troops found in Gaza that states that 'due to military necessity, previously forbidden actions were now permissible. One ruling explicitly stated that it was not prohibited to take female soldiers hostage, touch them if necessary, or even strip hostages of their clothing.'
The report explains, 'Sexual violence has long been recognized by the international community as a strategic operational component used by certain terrorist organizations to exert control, instill fear, and dismantle the social fabric of targeted communities, and has been labeled by the United Nations Security Council as a tactic of terrorism.'
In criminal law, the principle of culpability means that any individual who commits a crime is responsible for violating the 'societal values out of free will and with full awareness of the implications of their actions.' Indeed, Israeli law assumes autonomy – that people are in their right mind and make their decisions consciously. When someone 'chooses to violate societal values,' they are deserving of 'condemnation, conviction, and punishment.'
This paradigm, though, doesn't fit crimes that are extraordinary, like what took place on October 7. The Dinah Project team argues that 'it is legally justified to hold each individual participant accountable not only for their own actions but also for the offenses committed by others within the collective group to which they belonged. A collective mob attack should be answered by a model of atrocity criminal law that will attribute to all participants responsibility for all the crimes committed.'
Drawing on psychological and sociological research, the team asserts that individual autonomy diminishes in a group setting. In a violent group, an 'alternative moral' framework is used, where 'conventional norms are abandoned, and the foundational principles of human society disintegrate.'
The term 'blind force,' coined by French social psychologist Gustave Le Bon, explains that when 'an individual becomes part of a group, their sense of belonging leads to an overwhelming feeling of invincibility.'
'This feeling causes them to relinquish basic instincts that they would not have abandoned had they been acting alone,' the report says. 'This leads to the abandonment of all restraints and results in more violent and aggressive behavior than the individual would have exhibited outside of this particular form of group.'
The report proposes a different perspective: 'The conscious decision to join a violent horde that lacks any moral restraint is, in and of itself, enough to attribute responsibility to the individual, due to the overall set of crimes committed by that horde.'
This radical approach is necessary with the unconventional conditions of CRSV. The crowd commits the crime in this case, while the victims symbolically represent the collective enemy.
Additionally, a legal basis already exists for this in the principles of Joint Criminal Enterprise (JCE) and Derivative Liability.
JCE 'imposes criminal liability on those who commit an offense jointly with others and are cognizant of the implications of their actions and their contribution to the crime.'
Derivative Liability 'holds accomplices accountable for additional crimes committed during the collective action, even if they did not individually commit them, provided that the additional crime was foreseeable to a reasonable person, and that it bears a substantive link to the execution of the original crime.'
A classic JCE case is a group that comes together to carry out an illegal act, and under Israeli law, each individual perpetrator has to be aware of a 'concrete purpose' – what is likely to happen during the act. 'Mere awareness of a general willingness to commit a crime is insufficient.'
This has been thoroughly challenged because of its moral and legal implications. The team wrote that it agrees with the critique but believes that in exceptional cases, 'the law must adapt.'
The report adds, 'Autonomy cannot be treated as an elastic concept that is selectively applied or manipulated at will. Perpetrators cannot choose, on the one hand, to join an unrestrained mob that operates as a singular entity and deliberately erases individual autonomy to enable full integration within the group, and then later, on the other hand, seek to evade responsibility by arguing that they lacked specific awareness of particular crimes committed at a given time and place.'
Derivative liability 'assumes that even if the individual lacked actual awareness, when a reasonable person in the same circumstances could have foreseen the additional crimes, the individual remains liable because of their willingness to enter into circumstances that are fundamentally risk-creating.'
On October 7, 2023, the report argues, every individual who participated in the attack could foresee the crimes committed, including sexual violence.
Joint responsibility is the key here. Therefore, showing a 'separate mental element' to each individual is not necessary; participating in the attack is enough.
The communal aspect of these attacks takes an important form from both a substantive and an evidentiary perspective. The harm to one person carries waves to the community, and, as the Dinah Project team argues, it can serve as corroborative evidence.
Circumstantial evidence, which ordinarily would not stand, can also 'provide the inferential framework necessary for the drawing of legal conclusions,' the team suggests. For CRSV crimes, this comes in the form of physical findings that serve as evidence that sexual violence was a part of these attacks.
The team urges Israeli prosecution authorities to 'ensure that sexual violence crimes are fully addressed through criminal charges... as a moral and legal imperative.' It further recommends that specialized investigative and prosecutorial units be established to see this through.
The Dinah Project called for the report to be used in international doctrine and for the UN secretary-general to blacklist Hamas for its 'strategic use of sexual violence as a weapon of war.'